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Sunday, April 30, 2006

Ind. Courts - "Candidates for new Vigo court bring experience to election"

Deb McKee of the Terre Haute Tribune Star reports today in a story that begins::

The new Vigo County Superior Court Division 6 presents a unique opportunity for judicial candidates Michael Lewis and R. Steven Johnson.

Whichever Democratic candidate is chosen in the primary will face James Walker in the general election to determine who will preside over a court still in its infancy.

The new court was established through legislation in the Indiana General Assembly last year and began processing cases in January. Walker (R) was appointed by Mitch Daniels to preside as the first judge of Division 6.

This ILB entry from last Wednesday quoted from a WTWO story that concluded: "Judge Eldred worked for almost seven years to get the county`s newest court that was just added this past January."

Posted by Marcia Oddi on Sunday, April 30, 2006
Posted to Indiana Courts

Ind. Law - My latest Res Gestae article coincides with important Boston Globe feature today

One couldn't ask for better timing.

My April column for Res Gestae, which I completed and submitted for publication March 20th, will finally appear in the issue to be mailed out this coming week (delayed because of the bank tower storm damage).

The title of my column this month is "Executive Orders, Signing Statements, and Veto Messages, Part One." I have just posted it online; you may access it here. Here is how my article begins:

Presidential signing statements and executive orders have been much in the news, as has the revival of the concept of the line-item veto. Can a president, via a signing statement, effectively amend a bill as he signs it into law, by virtue of written his words? Can the president make law via an executive order and, if so, does his power extend outside the boundaries of the executive branch of government? Can a line-item veto authority created by statute ever survive Supreme Court scrutiny?

My thought this month is not to examine the federal doctrine of the “unitary executive.” Rather, in this Part One, I plan to survey where one can access executive orders, signing statements and veto messages at both the federal and state levels. In addition, I will explore the use (and availability) of the signing statement at the state level, particularly in Indiana.

Next month, in Part Two, my focus will be on the use of the executive order by Indiana governors, and the issues raised by these orders.

The article concludes with more about Part Two (which I hope to complete and get in to the Res Gestae offices later today):
Next Month. Some of the issues that will be explored: Does a governor’s executive order continue in effect when his term is over? Can a governor, via an executive order, legally impact entities outside the executive branch of government? Can the general assembly by passing a statute preempt an area – thereby invalidating an executive order on the same subject?
In the April article I point out that Indiana governors' veto messages are readily available going back to at least 1852. Not so for executive orders, which have been available, albeit a few months after the fact, in the Indiana Register in the nearly 30 years it has been published (as I've noted in other posts, publication will cease next month), but Indiana's treatment of executive orders does not begin to approach their careful handling on the federal level. As for gubernatorial signing statements in Indiana, yes, some have been issued, and no, they are nearly impossible to locate even if you know precisely what you are looking for.

The Boston Globe today has a fascinating, and lengthy, article by Charlie Savage, headlined "Bush challenges hundreds of laws: President cites powers of his office." (Although the phrase is nowhere used in the article, the subject is the concept of the unitary executive.) Some quotes:

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional. * * *

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts. * * *

Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush's challenges to the laws he has signed.

Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has ''been used for several administrations" and that ''the president will faithfully execute the law in a manner that is consistent with the Constitution."

But the words ''in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed. * * *

But it was not until the mid-1980s, midway through the tenure of President Reagan, that it became common for the president to issue signing statements. The change came about after then-Attorney General Edwin Meese decided that signing statements could be used to increase the power of the president.

When interpreting an ambiguous law, courts often look at the statute's legislative history, debate and testimony, to see what Congress intended it to mean. Meese realized that recording what the president thought the law meant in a signing statement might increase a president's influence over future court rulings.

Under Meese's direction in 1986, a young Justice Department lawyer named Samuel A. Alito Jr. wrote a strategy memo about signing statements. It came to light in late 2005, after Bush named Alito to the Supreme Court.

In the memo, Alito predicted that Congress would resent the president's attempt to grab some of its power by seizing ''the last word on questions of interpretation." He suggested that Reagan's legal team should ''concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."

Reagan's successors continued this practice. George H.W. Bush challenged 232 statutes over four years in office, and Bill Clinton objected to 140 laws over his eight years, according to Kelley, the Miami University of Ohio professor. [see graphic] * * *

Still, Reagan, George H.W. Bush, and Clinton used the presidential veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to override their decisions.

But the current President Bush has abandoned the veto entirely, as well as any semblance of the political caution that Alito counseled back in 1986. In just five years, Bush has challenged more than 750 new laws, by far a record for any president, while becoming the first president since Thomas Jefferson to stay so long in office without issuing a veto.

''What we haven't seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House," said Kelley, who has studied presidential signing statements through history. ''That is what is staggering. The numbers are well out of the norm from any previous administration." * * *

[P]olitical fallout from Congress is likely to be the only check on Bush's claims, legal specialists said.

The courts have little chance of reviewing Bush's assertions, especially in the secret realm of national security matters. * * *

Bruce Fein, a deputy attorney general in the Reagan administration, said the American system of government relies upon the leaders of each branch ''to exercise some self-restraint." But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every time.

''This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy," Fein said. ''There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."

A side-bar to the Globe story provides summaries of various presidential signing statements; while my Res Gestae article gives links to the actual documents.

In the April article, I also look at the use of gubernatorial signing statements in states other than Indiana. I find: "Interestingly, Governor Jeb Bush of Florida comes closest to duplicating the signing statements of his brother, President Bush."

[More] I just ran across this chapter heading in Phillip J. Cooper's book, By Order of the President:

Ch. 7. Presidental Signing Statements: A Different Kind of Line Item Veto.
Well said.

Posted by Marcia Oddi on Sunday, April 30, 2006
Posted to General Law Related | Indiana Law

Law - Cameras in the U.S. Supreme Courtroom

"Courtroom camera bill stirs debate" is the headline to this story today in the Chicago Tribune. Some quotes:

WASHINGTON -- As far as opinions go, Justice David Souter has made it clear what he thinks of TV cameras in Supreme Court hearings.

"I think the case is so strong," Souter told a House subcommittee in 1996, "that I can tell you the day you see a camera come into our courtroom it's going to roll over my dead body."

But now a bill sponsored by Sen. Arlen Specter (R-Pa.) and approved by the Senate Judiciary Committee he leads would force the Supreme Court to let cameras into its hallowed halls, one of the few public spaces in Washington, along with other federal courts, where cameras are banned.

That prospect miffed two other justices, Anthony Kennedy and Clarence Thomas, who told a House subcommittee early this month that if Congress authorized the use of cameras at the court, it would mar the Supreme Court's decorum, endanger the justices' personal security and raise constitutional questions over the proper role of each branch of government. * * *

Supporters of courtroom cameras dismiss Kennedy's assertion on legal grounds that forcing cameras into the court would raise separation-of-powers concerns. They note that Congress sets the judiciary's budget, its jurisdiction and the number of justices.

"For him to say that we couldn't say that you have cameras in the courtroom is just idiotic," said Grassley, who has proposed legislation that would let judges decide whether to televise proceedings in their courtrooms. The Specter measure would force the nine justices to admit cameras into the court although they could on a case-by-case basis have them banned. * * *

The Supreme Court now makes audio recordings and transcripts of the oral arguments available later each term. Recordings for noteworthy cases are [ILB - should read "may be"] released immediately after a hearing. * * *

At the state level, numerous states allow cameras and televising of trials; Illinois does not. [ILB - neither does Indiana, but, more on point here, Indiana does provide webcasts of the Indiana Supreme Court oral arguments].

Posted by Marcia Oddi on Sunday, April 30, 2006
Posted to General Law Related

Law - "Remaking cities: What price?"

"Remaking cities: What price?" is the headline to one of two major stories today in the Cincinnati Enquirer about the use of eminent domain in Ohio. To begin, take a look at this powerful photo from the Enquirer, showing the houses of the three hold-outs, who are the subject of a battle before the Ohio Supreme Court. From the story:

In a test case watched nationwide, the Ohio Supreme Court soon will decide whether Norwood had the right to take people's homes and businesses for a planned $125 million complex of trendy shops, offices and condos.

The city's action has been widely criticized in congressional committees and newspaper editorials, on talk radio and cable TV. It's unpopular everywhere, it seems, but the five streets in Norwood where it matters most.

An Enquirer analysis of property transfers found that most of the 73 former private owners in the project area willingly sold and were compensated well. The properties sold for an average of more than twice what they were worth three years before.

Six of the owners balked at selling and were awarded even more. They were given an average of three times the fair market value estimated by the Hamilton County auditor's office in 2002, the latest year for which comparisons were available. * * *

The local case gained national stature when the U.S. Supreme Court ruled last year that New Haven, Conn., could take people's private property and give it to a private developer. The court left it to the states to set restrictions. Ohio is the first state to have a case reach the state Supreme Court.

The Enquirer has a special "Eminent Page" page, with this introduction:
The power of a government to take private property for public use goes back centuries. But when that property is someone's home and the government wants it for private development, the result can be a legal and political firestorm over the nature of private property rights versus the definition of a public use.

Today, the epicenter for that national debate is a muddy, 11-acre field off I-71 in Norwood where a city neighborhood once stood. With dozens of middle-class homes razed for a shopping an office complex, the Ohio Supreme Court is considering the rights of the few holdouts who refused to sell. And the Ohio General Assembly is considering curbs on this ancient government exercise of power - limits that some say could hinder the ability of cities to remain vital centers of commerce.

The page inclludes links to all the paper's past stories, plus an invaluable resource -- links to all the briefs in the upcoming Supreme Court case.

The second story in the Enquirer today is titled "The untold story." Some quotes from a lengthy report:

A year after they sold their properties in Norwood, the people who once owned homes and commercial buildings on 11 acres marked for the Rookwood Exchange office-retail-and-condo complex are settling into new lives.

Gone are their solid brick and wood-frame houses, sidewalks, tree-lined streets and back yards big enough for swing sets, barbecue grills and gardens. They've been bulldozed over, leaving only three houses standing in a barren landscape of muddy ground surrounded by a chain-link fence and "No Trespassing" signs.

As soon as this week, the Ohio Supreme Court could decide whether Norwood had the right to take the property of anyone who refused to sell so a deteriorating neighborhood could be used for an ultra-modern - and tax-producing - development project. It's one of the most far-reaching and heavily publicized eminent domain cases in local history.

As justices weigh the case, an Enquirer analysis of real-estate sales records provides the fullest picture yet of how properties were acquired and how former owners fared.

The analysis shows that most of the 73 property owners were handsomely compensated. On average, they were paid twice the fair market value estimated by the Hamilton County Auditor in 2002, the latest year for which comparisons are available.

Also, all but six property owners sold voluntarily. The six who refused to sell were named in eminent domain lawsuits and ultimately were awarded, on average, three times their property's value. The Supreme Court is considering the appeals of three of those owners.

Here is a list of earlier ILB entries on the Ohio case.

Posted by Marcia Oddi on Sunday, April 30, 2006
Posted to General Law Related

Ind. Law - New scrapyard regulations passed by South Bend Common Council

Jamie Loo of the South Bend Tribune reports:

SOUTH BEND -- In an attempt to stop rampant metal theft, including most recently the theft of city manhole covers, the Common Council passed a new scrap metal ordinance Thursday evening.

Since the legislation's introduction in February, scrap yard owners and residents have said they were worried too many regulations would drive scrap sellers out of South Bend and hurt local businesses. The council's Health and Public Safety committee discussed the issue during four meetings and attempted to address some of the concerns in an amended ordinance which passed unanimously.

The newly passed ordinance requires scrap-metal dealers to have their license applications screened by the South Bend Police Department. SBPD would make a formal recommendation to the city controller for the license. The Common Council would also have to approve the license.

Scrap yards are required to report all purchases within 24 hours including the names of sellers. The sellers would be required to present photo identification, thumbprint impressions, motor vehicle license numbers and vehicle descriptions. The address of where the metal was obtained is also required on the form.

The businesses are also restricted from purchasing or receiving property from minors with the exception of rags, paper, aluminum beverage cans or tin cans. Records are not required for aluminum or tin cans. * * *

At one of the meetings council members challenged scrapyard owners to find solutions in the fight against scrap metal theft. Mike Morris, general manager of Industrial Disposal & Recycling, presented a "Business Watch" program where SBPD could use phone, e-mail or fax communication to alert scrapyard owners of reported scrap theft. Scrapyard owners could then be on the lookout for the stolen scrap and help police efforts.

Posted by Marcia Oddi on Sunday, April 30, 2006
Posted to Indiana Law

Ind. Courts - Yet another story on the Lake Superior Court race

"Noncandidate Cantrell a factor in judge’s race against Villalpando" is the headline to this story in the Gary Post-Tribune by John Byrne. Some quotes:

There’s a 1,000-pound elephant, er, donkey, no wait, elephant ... let’s just say gorilla ... a 1,000-pound gorilla in the race for Lake Superior Court judge: Robert “Bob-by” Cantrell.

The former East Chicago Republican chairman and current Democratic powerbroker has publicly targeted Judge Jesse Villalpando for defeat.

Cantrell, not a candidate himself, has also been linked to the two men running against Villalpando for the Democratic nomination, attorneys Eduardo Fontanez and Stanley Jablonski.

Villalpando has filed complaints with the state Commission on Judicial Qualifications in recent months, charging Cantrell has attempted to coerce him into participating in various illegal moneymaking schemes from the bench.

The campaign has largely been seen as a proxy fight for the ongoing spat between Cantrell and Villalpando, while Fontanez and Jablonski clamor to make known their qualifications for the post. * * *

Jablonski, a public defender in the courtroom of Judge Julie Cantrell, Bobby Cantrell’s daughter, contends Villalpando only has his job because of politics. While a state representative, Villalpando was a co-sponsor of the bill that created the judgeship that the late Gov. Frank O’Bannon later bestowed upon him.

“It’s a clear conflict of interest,” Jablonski said. “The guy has hardly any courtroom experience as an attorney, and he’s given the seat on the bench? Come on. Let’s get somebody with trial experience in there.”

A recent Lake County Bar Association survey, in which local attorneys gave Villalpando higher marks than the hopefuls, is a testament to the incumbent’s tendency to cater to the lawyers who appear before him, according to Jablonski.

“If I wasn’t running against him, I’d vote for him, too, as an attorney,” Jablonski said. “The lawyers have the run of that place, and it’s not fair to the regular people who go in there.”

Villalpando scoffs at the notion he treats professionals better than citizens. He points to the 23,000 hours of community service performed by defendants at numerous local charities during his term as evidence of his civic mindedness.

At the end of the campaign, however, Villalpando still feels the race is about Cantrell.

“Cantrell tried and failed to co-opt this court, and this election is a referendum on that, whether the citizens of Lake County will tolerate a political attack against judges,” he said. “I don’t believe they will.”

Posted by Marcia Oddi on Sunday, April 30, 2006
Posted to Indiana Courts

Ind. Courts - "Pike County ballot has judicial focus"

"Pike County ballot has judicial focus" is the headline to a story by Bryan Corbin today in the Evansville Courier& Press. It begins:

Big changes could be in store for Pike County's judicial system this year as the incumbent prosecutor attempts to challenge the Circuit Court judge while a former judge from next-door Dubois County is trying to replace the prosecutor.

The primary election contests in Pike County come as three candidates said they want to start a Drug Court program in which substance abusers undergo intense supervised probation, drug testing and regular court appearances. Pike County faces a big problem with methamphetamine abuse, candidates said.

There is an open seat in the prosecutor's race because incumbent Pike County Prosecutor Boyd Toler isn't seeking re-election. Instead, Toler is running in the Republican primary for Pike Circuit Court judge. He is opposed Tuesday by Wyatt Rauch, a Petersburg attorney. The winner will face incumbent Circuit Court Judge Jeffrey Biesterveld in November. Biesterveld, who was appointed to the bench in 2003 to fill a vacancy, is unopposed in the Democratic primary.

Posted by Marcia Oddi on Sunday, April 30, 2006
Posted to Indiana Courts

Ind. Gov't. - Some takes on Tuesday's primary election

Lesley Stedman Weidenbener writes in her Sunday Louisville Courier Journal column, under the headline "Officials feel a loss of control as elections near," that:

[A]fter problems nationally in the 2000 presidential election, new emphasis has been placed on voting accuracy.

Under state and federal laws, governments have spent millions to upgrade equipment, eliminating punch-card ballots and lever machines in favor of systems including optical scans, which electronically read ballots marked by voters, and direct-record electronic devices in which voters hit buttons on a machine that tallies their votes.

Those machines are high-tech and need knowledgeable operators to manage them. Counties using Election Systems & Software equipment are spending thousands on contracts to ensure that company employees are available 24 hours a day leading up to and on Election Day.

That means the accuracy of an election lies largely in the hands of a few companies, not so much the elected officials that the public has chosen to run them.

The Indianapolis Star's Mary Beth Schneider writes today:
Dissatisfaction with the status quo has spurred challenges this year to seemingly entrenched incumbents in Tuesday's election.

For instance, Senate President Pro Tempore Robert D. Garton, R-Columbus, is facing his first-ever primary challenge -- and he's been in office since 1970.

In the Indiana Senate, where half of the 50 seats are up for election, Garton's race is one of only five with more than one Republican candidate on the ballot; Democrats have only four contested races.

In the Indiana House, where all 100 seats are up for election this year, there are 15 contested races on the Democratic side and 17 on the Republican side. The numbers may be small, but the intensity and competitiveness of some races -- particularly against GOP incumbents in the House -- have insiders in both parties watching for upsets. * * *

In the Indiana House, where Republicans hold a slim 52-48 majority, the GOP is worried that even if the challenged incumbents win, the tough primary races could leave them vulnerable to Democratic attacks in November.

"Absolutely, that's my fear. No question about it," said Indiana Republican Party Chairman Murray Clark, a former state senator.

Some of the races he's watching closely are House incumbents who are being challenged by Republicans angry about their votes for daylight-saving time, the Indiana Toll Road lease, or both.

However, as a story by the AP's Mike Smith makes clear, opportunities for voters to express their dissatisfaction are limited:
Garton is one of only five incumbents among 25 Senate seats on this year's ballot to face a primary challenge. * * *

Many in the Senate, which Republicans control 33-17, don't yet have a major-party general election opponent. The parties have until June 30 to get someone on the November ballot. But those who fill vacancies after the primary rarely win in the fall.

In the House, where Republicans have a 52-48 advantage, only nine Democratic and 12 Republican incumbents face primaries, and most are expected to win. Seventeen Republicans and 17 Democrats face no primary contest or major-party opponent for the general election as of yet.

Posted by Marcia Oddi on Sunday, April 30, 2006
Posted to Indiana Government

Saturday, April 29, 2006

Courts - Allegations in yet a third state of collusion between Justices and Legislators

The Minneapolis Star-Tribune reports today:

For what may be the first time in its 40-year history, the state Board on Judicial Standards has opened investigative files on all seven Minnesota Supreme Court justices, the result of a complaint that alleges that one or more of them may have had improper conversations with a legislator regarding Minnesota's marriage laws.

The board could dismiss the complaint or take disciplinary action against any or all of the justices.

It launched an investigation of Chief Justice Russell Anderson and Associate Justices Barry Anderson and Paul Anderson earlier this month on the basis of complaints filed by state Rep. Tom Emmer, R-Delano, and lawyer Greg Wersal. In a follow-up letter, Emmer made clear that his complaint was not limited to those three.

After a preliminary investigation, the board has now opened files on Justices Lorie Gildea, Samuel Hanson, Helen Meyer and Alan Page.

David Paull, executive secretary of the board, said he could not comment on the specifics.

"We have opened investigative files," he said. "I can't say more than that."

Paull said that neither he nor his assistant, Deborah Flanagan, who has been with the board nearly since its inception, could recall a time when investigations had been opened on all sitting justices. * * *

The multiple investigations into the current court arose from the controversy over whether Senate Majority Leader Dean Johnson, DFL-Willmar, had improper conversations with one or more justices.

In January, Johnson privately assured a group of pastors that he had been told by more than one Supreme Court justice that the court would not take up the issue of same-sex marriages. Such marriages are prohibited by law, but proponents of a constitutional ban have insisted that the court could at any time overturn the law.

Johnson was caught on tape saying that justices had told him they would not take up the case, in part because they had to stand for reelection.

Johnson later disavowed those statements, saying he had "embellished" the conversations. But even when he was called before a Senate ethics panel, his lawyer maintained that he did have casual conversations with justices about the law.

At the time, Chief Justice Anderson said that he had questioned his associates and that no such conversation had ever taken place. The Supreme Court operates under a strict code of judicial canons that prohibits justices from giving any indication of how they might rule on cases.

Johnson apologized to the Senate, and the ethics panel closed its investigation without resolving the basic conundrum of a chief justice who insisted that no such conversations had ever taken place and a senator who said they had.

Johnson said Friday that he had been informed by the board that investigations had begun but had no other contact.

The alleged conversations in Minnesota involved same-sex marriage legislation. Recall this April 23rd ILB entry where school funding deliberations between at least one Kansas justice and the General Assembly were alleged. And in late 2005, voters' outrage at possible Pennsylvania Supreme Court involvement with the General Assembly in a pay raise bill which raised both legislators' and judges' pay led to the failure of one justice to be retained by the voters.

The Kansas issue continues to appear daily in the local papers; here is a story from the April 26th Wichita Eagle that begins:

TOPEKA - A Senate panel raised the question Tuesday of whether a Supreme Court justice's discussion with two senators about school funding has tainted other members of the court.

One senator even asked whether the possible ethics violation could be grounds for dismissal of the seven-year-old school funding lawsuit.

The issues were raised as the full Legislature prepares to reconvene today to finish this year's work, including finding additional money for schools to satisfy a Supreme Court order.

Once the Legislature acts, the court will decide whether the plan is acceptable.

Justice Lawton Nuss, 53, of Salina, recused himself from the case last week after revealing he discussed school funding over lunch March 1 with Senate President Steve Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina.

At a hastily arranged meeting of the Senate Elections and Local Government Committee Tuesday, three senators questioned whether Nuss may have shared information about legislative deliberations with other justices--perhaps without them even knowing the source.

"I'm very concerned that there was a 50-day lag," said Sen. Kay O'Connor, R-Olathe. "If there was indeed sharing, do we have grounds for dismissal of the entire case?"

Chief Justice Kay McFarland has asked the Commission on Judicial Qualifications to investigate whether Nuss violated ethics rules for judges by discussing the case outside of court.

Ex parte communication -- discussing a pending court case outside of court proceedings -- is a violation of judicial conduct.

Posted by Marcia Oddi on Saturday, April 29, 2006
Posted to Courts in general

Ind. Courts - "Judge says his name, former slogan were used without his permission"

"Candidate's ad stirs complaint: Judge says his name, former slogan were used without his permission" is the headline to a story by Tom Spalding in today's Indianapolis Star. Some quotes:

"Experience Counts" was Hendricks Superior Court Judge Robert Freese's slogan when he won a seat on the bench six years ago. That same phrase, used in a campaign advertisement Friday in The Indianapolis Star, led Freese to file a complaint with a state ethics board.

Freese said he filed the complaint with the Indiana Commission on Judicial Qualifications, claiming an advertisement paid for by judicial candidate Larry R. Hesson uses the "Experience Counts" saying and Freese's name without his permission.

Freese, who has publicly supported Stephenie LeMay-Luken in the crowded Republican primary for judge of Superior Court 5, contends the ad implies he is endorsing Hesson.

Hesson and LeMay-Luken are competing on the GOP side with Maureen Devlin, Mike Jeffries and Scott Knierim. The winner will face Democrat Nicholas G. Schmutte in the fall election.

"My name was used without my permission, and I was not even asked whether I would give permission," Freese said. "I did say those two words, but I did not say them about Larry Hesson."

Hesson said Friday that he used the quote to highlight his 25 years of legal experience. "There was no intent to convey the impression that he was endorsing me," Hesson said. "To quote him, 'Experience Counts,' which I agree." Hesson said he wasn't aware that a complaint was filed against him and was looking into the incident.

Meg Babcock, an attorney for the commission, said ethics rules prohibit her from acknowledging whether a complaint was filed. But in general, she said, if a candidate were to falsely imply endorsement by another office-holder, it might be a violation that could lead to sanctions. The seven-member commission next meets privately in June. The primary is Tuesday.

Posted by Marcia Oddi on Saturday, April 29, 2006
Posted to Indiana Courts

Ind. Decisions - Appeals Court reverses Steuben verdict in murder try

Reporting on the Court of Appeals ruling Thursday in the case of Mark E. Collier v. State of Indiana (see ILB entry here), Angela Mapes reports today in the Fort Wayne Journal Gazette:

The Indiana Court of Appeals has overturned the conviction of a Steuben County man accused attempting to kill his estranged wife.

Mark E. Collier, 50, was convicted of attempted murder in October 2004 and sentenced to 25 years in prison by Steuben Superior Judge William Fee. * * *

Collier’s attorneys argued during the appeals case that Collier’s conduct was not “a substantial step” toward committing murder – as required by Indiana law – and was “mere preparation,” according to court documents. * * *

Collier was found by police the night of April 24, 2003, in his truck in the parking lot of the hospital while his wife was working a night shift.

He was within view of the exit his wife would have used, with an ice pick, a box cutter, binoculars and an open container of beer. He had fallen asleep or passed out, police said.

A former neighbor testified that Collier said he planned to run over his estranged wife with his pickup truck, stab her in the heart and cut her throat, according to court documents.

Even though Collier was found with the weapons, “given the distance between (Collier) and (his wife) at the time of his arrest, those items were virtually useless to Collier in terms of an attempted murder,” the court said in its ruling Thursday.

“We may have reached a different result had Collier been awake and alert, had he begun his approach toward the building, either in his pickup or on foot, or even if he had simply opened the door and taken a step out,” the Court said.

Judge Michael P. Barnes dissented, saying that Collier’s statements to his neighbor, combined with his actions that night, support Collier’s criminal purpose.

Posted by Marcia Oddi on Saturday, April 29, 2006
Posted to Ind. App.Ct. Decisions

Environment - More on: Gravel pits in the news in Martinsville and Carmel [Updated]

Updating this ILB entry from Thursday on gravel pit issues in Martinsville and Carmel, the Indianapolis Star reports on the IDEM public hearing last week in Moorseville. Some quotes:

A group of Morgan County neighbors is fed up with gravel pits near residential homes. So when a company requested an air-quality permit for another gravel pit on Centenary Road, nearly 100 residents came together to fight it.

"Is there any limit to these gravel pits?" Dawn Horock asked at a public hearing Wednesday at Mooresville Public Library. "Madison Township is being smothered with them. They are eyesores. None of us moved here to look at them. Enough is enough."

Horock and her neighbors spoke at the Indiana Department of Environmental Management hearing on an air-quality permit requested by U.S. Aggregates for its proposed Waverly Plant 2 at 7201 E. Centenary.

Representatives from U.S. Aggregates didn't attend the meeting and couldn't be reached for comment Thursday.

Doug Wagner, an IDEM representative, said his department has no timetable for making a ruling. IDEM can deny a permit only if the company's proposal doesn't meet air-quality standards. Any other environmental issues would require permits with the Department of Natural Resources. U.S. Aggregates also must obtain a zoning variance from the county's Board of Zoning Appeals. U.S. Aggregates hasn't submitted its proposal to Morgan County yet.

County officials, who say Morgan County has higher standards on gravel pit operations than most counties, contend they can do little to prevent new mines. The county only has authority to make companies return the land to a useable, attractive condition when they finish mining and prohibit operation on a few holidays during the year.

"We really can't prevent them from operating," said County Commissioner Jeff Quyle. "State law doesn't allow us. I wish we had the power to regulate it, so we could limit the number that are in operation."

Seven gravel pits operate within a two-mile radius of where U.S. Aggregates wants to add the new gravel pit. Another three pits in that area sit vacant.

Carmel. On May 9th, the Indiana Court of Appeals will hear oral arguments in the case of City of Carmel v. Martin Marietta Materials. Here is the case synopsis:
Synopsis: The City of Carmel enacted an ordinance to regulate various aspects of mining activity within the city limits. Martin Marietta is the only company engaged in such activities within the city limits. Martin Marietta filed a Complaint for Declaratory Judgment and Injunctive Relief regarding the ordinance. The trial court granted a preliminary injunction prohibiting the City of Carmel from enforcing the ordinance until a final determination on Martin Marietta's request for declaratory relief is made. The City of Carmel now appeals the trial court's order. (The Scheduled Panel Members are: Judges Sharpnack, Najam and Robb.)
[Updated 5/1/06] Here is the Moorsesville-Decatur Times' report on the IDEM public hearing last week on the proposed sand and gravel pit in Waverly.

Posted by Marcia Oddi on Saturday, April 29, 2006
Posted to Environment

Friday, April 28, 2006

Environment - "State EPA chief questioned in grand jury landfill probe"

Illinois...

This story is from the Chicago Tribune. Some quotes:

Gov. Rod Blagojevich's environmental chief has been questioned before a Cook County grand jury investigating whether the governor's office overstepped its authority last year in shutting down a landfill run by a relative of the governor's estranged father-in-law, sources said Thursday.

Prosecutors last week brought before the grand jury Douglas Scott, director of the Illinois Environmental Protection Agency, as part of the joint probe begun more than a year ago by Atty. Gen. Lisa Madigan and Cook County State's Atty. Richard Devine's offices, according to two sources familiar with the proceedings.

Earlier this year, the grand jury heard testimony from two EPA administrators who were involved in the closing of the Joliet landfill, including a bureau chief for the EPA's land management division.

Scott did not head the EPA at the time the agency shut down the landfill, but the sources said that during his April 19 appearance, he was asked to detail what the EPA's standard operating procedures are for closing landfills. Former EPA Director Renee Cipriano, now a lobbyist, headed the EPA at the time. Cipriano did not return phone calls seeking comment Thursday.

For background, start with this ILB entry from April 13, 2005.

Posted by Marcia Oddi on Friday, April 28, 2006
Posted to Environment

Ind. Courts - "Embattled judges vie for Clark Superior No. 1"

Another article today on the Clark Superior Court 1 race. The Albany News-Tribune has this story by Larry Thomas. The lengthy story begins:

Clark County’s judicial incumbents generally aren’t running for their political lives.

Since 1976, only three incumbent judges have faced opposition in either the primary or general elections while 13 have sought re-election without opposition. The three years incumbents have faced opposition only Judge Harry A. Paynter lost — by 471 votes to Clementine B. “Tiny” Barthold in the 1982 Democrat primary.

On Tuesday, two-term Clark Superior Court No. 1 Judge Jerome F. Jacobi will face his first challenge since he was elected to the bench in 1994, when Jeffersonville City Court Judge Vicki Carmichael challenges him in the Democratic Party primary.

Both judges have been in the news of late for more than campaigning. There is an ongoing investigation of alleged corruption in Jacobi’s court and special prosecutor Stan Levco has asked that a special grand jury be convened May 25 to review evidence in the case.

Former Jeffersonville City Court deputy clerk Christina M. Herchenrader was charged with class D felony theft earlier this month after she allegedly stole approximately $7,300 in court funds.

Jacobi and Carmichael were among five candidates who sought the democratic nomination for the court in 1994, following Barthold’s retirement. Jacobi won the race with 31 percent of the vote, while Carmichael finished third with 18 percent. In 1999 and 2003, Carmichael was elected judge in City Court.

Posted by Marcia Oddi on Friday, April 28, 2006
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending April 28, 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 April 28, 2006.

There are 55 Court of Appeals cases listed this week, and two Tax Court cases.

Posted by Marcia Oddi on Friday, April 28, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending April 28, 2006

Here is the Indiana Supreme Court's transfer list for the week ending April 28, 2006.

Three cases were granted transfer today, including Cinergy Corporation, et al. v. St. Paul Surplus Lines Insurance Company, et al.. From a 12/13/05 ILB entry:

Judge Riley states the issue to be:

Whether a policyholder of a first-layer liability insurance policy is entitled to payment of defense costs as they are incurred when the insurance policy does not contain a duty to defend clause or express language authorizing a delay in payment of those costs until determination of whether the underlying claims are covered. * * *

In sum, Cinergy’s arguments are merely attempts to identify imperfections in the insurance policy that simply do not rise to the level of ambiguity. Accordingly, mindful of our standard of review and in light of the evidence before us, we find that the insurance policy is clear and unambiguous, awarding defense costs upon the determination that the Underlying Lawsuit is covered by the policy.

CONCLUSION Based on the foregoing, we find that the unambiguous language of the policy only entitles Cinergy to payment of defense costs upon determination of coverage of the Underlying Lawsuit. Affirmed.

Over two years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Friday, April 28, 2006
Posted to Indiana Transfer Lists

Ind. Courts - Lawsuit may impact Clark County budget

A story in the Louisville Courier Journal today by Alex Davis about the Clark County budget ends with this:

Another matter that could affect the budget is a lawsuit between the council and the county's four elected judges. The case, now before the Indiana Court of Appeals, could require the council to repay the judges hundreds of thousands of dollars in fee money that was appropriated in the county's 2005 and 2006 budgets.

The judges claim that the council didn't have the authority to use the fee money.

Nearly $48,000 has been appropriated this year for legal costs in the suit.

For background, see this ILB entry from March 8th.

Posted by Marcia Oddi on Friday, April 28, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides four today

In Charles D. Cope, Jr. v. Anita D. Cope, a 6-page opinion which includes live links to the Defense Finance and Accounting Service, Military Pay: Garnishment, USFSPA Q&A, Judge Friedlander concludes:

Charles has flatly refused to make payments to Anita, despite the fact that he is currently receiving his monthly military pension. There is no legitimate basis for said refusal, and Anita’s only practical recourse was to file the instant proceedings supplemental to collect on the agreed property settlement through garnishment of Charles’s current wages. The trial court properly ordered garnishment.
In Virgil Cornelious v. State of Indiana, an 11-page opinion, Judge Barnes writes:
Virgil Cornelious appeals the denial of his petition for post-conviction relief. We reverse and remand. Issue Cornelious raises two issues. We address the dispositive issue of whether his guilty plea was voluntary. * * *

Conclusion. The assurances that Cornelious could plead guilty and preserve the alleged Criminal Rule 4(B) violation for appeal or post-conviction proceedings were material to his decision to plead guilty. The post-conviction court improperly denied his petition for post-conviction relief. We reverse and remand.

In Jonathan J. Rose v. State of Indiana, an 11-page opinion, Judge Najam writes:
Jonathan Rose appeals his conviction for Child Molesting, as a Class A felony. He presents a single issue for our review, namely, whether he was denied the effective assistance of trial counsel. We reverse and remand. * * *

In light of the inconclusive physical evidence, Dr. Chaganti’s vouching testimony, in which he stated that he found A.G.’s allegations convincing, improperly bolstered A.G.’s credibility and impinged upon the province of the jury to determine the witness’s credibility. Because much of the evidence supporting Rose’s conviction is based on A.G.’s allegations and testimony, Rose has demonstrated that there is a reasonable probability that, but for counsel’s failure to object to the admission of Dr. Chaganti’s vouching testimony, the result of the trial would have been different. See Strickland, 466 U.S. at 694. Thus, we are constrained to reverse and remand for a new trial.

In Thomas Perryman v. Motorist Mutual Insurance Company, a 14-page opinion, Judge Riley concludes:
Nevertheless, Perryman now encourages this court to find that Motorist violated its duty by failing to advise Perryman of our supreme court’s decision in Kiger which signaled a change in the law. In this regard, Perryman maintains that Motorist had a duty to revisit and investigate Perryman’s claim again two years after it was first denied and determine that, based on Kiger, coverage existed under the Garage Policy.

We decline to impose such duty. Our supreme court’s published decision in Kiger was a matter of public record, equally available and accessible to Perryman. By now attempting to shift responsibility of his duty to be aware of the law, Perryman would have us not only create a new burden on insurance companies to keep abreast of developments in claims that have been rejected already but which are still viable within the statute of limitations’ term, but also reward plaintiffs who fail to diligently research Indiana law within the statute of limitations term in order to timely bring a claim. This we will not do. Accordingly, we conclude that Perryman’s fraud claim fails.

CONCLUSION Based on the foregoing, we find that the trial court properly granted summary judgment as a matter of law.

Posted by Marcia Oddi on Friday, April 28, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Plea agreement for Tippecanoe ex-bailiff rejected

The Lafayette Journal & Courier reports today. The story begins:

A judge has rejected a plea agreement involving a former Tippecanoe County court employee who was paid for more than 1,000 hours of overtime in 2003.

Kelly M. Davis, 31, the former bailiff in Tippecanoe Superior Court 1, came to court Thursday prepared to plead guilty to theft. But without giving a reason, Judge Don Daniel of Tippecanoe Circuit Court rejected the proposal.

"Back to the drawing board," special prosecutor Todd Meyer said after meeting with Daniel and Davis' defense attorney, Jennifer Lukemeyer.

The attorneys said they will try to work out a deal that is acceptable to the judge. They declined to say whether Daniel told them why he rejected the agreement.

Under terms of the agreement, filed with the court on Feb. 28, Davis would have pleaded guilty to theft as a Class D felony, served 11/2 years on supervised probation, performed 60 hours of community service and paid $6,162 in restitution to Tippecanoe County.

If Davis paid restitution and successfully completed probation, her conviction would have been reduced to a misdemeanor.

Three earlier ILB entries are available here.

Posted by Marcia Oddi on Friday, April 28, 2006
Posted to Indiana Courts

Ind. Law - Tear it down, or not?

One of the recurrent issues in zoning law is highlighted in this story today by Jenni Glenn in the Fort Wayne Journal Gazette, headlined "Costly bedroom approved despite zoning snooze." It begins:

A homeowner on one of Fort Wayne’s most upscale streets will be able to complete a $500,000 renovation project that faced demolition because of a zoning violation.

The master bedroom being added to Kevin and Cara Gerbers’ Forest Park Boulevard home was started too close to the property line. But Fort Wayne Board of Zoning Appeals members agreed Thursday that it would be too costly to ask the contractor, Cedar Creek Homes Inc., to demolish the addition and start over.

Board members issued a stern warning to Cedar Creek Homes’ co-owner Tim Stauffer to follow the city’s zoning ordinance more carefully in the future.

“Approved or not, I hope the next time Mr. Stauffer decides to do work in the city limits he’s a little more cautious about it,” board member Andy Downs said.

Posted by Marcia Oddi on Friday, April 28, 2006
Posted to Indiana Law

Thursday, April 27, 2006

Environment - "The D.C. Circuit gives environmental regulators a refresher course in the law -- again"

From an editorial today in the Washington Post headlined "The D.C. Circuit gives environmental regulators a refresher course in the law -- again":

BARELY A MONTH ago, the U.S. Court of Appeals for the D.C. Circuit issued a stinging rebuke to the Environmental Protection Agency's efforts to rewrite federal clean air law to weaken rules concerning power companies upgrading old coal-fired equipment. This week, a cross-ideological panel of the court unanimously accused the agency, once again, of defying federal environmental law -- this time concerning efforts to clean up the Anacostia River. The panel's strong, derisive language should send a message to the agency to take congressional enactments seriously, as written, not as the agency wishes Congress had written them.

Decades after the passage of the Clean Water Act, the Anacostia remains one of the dirtiest rivers in the country. To redress such problems, the law requires the EPA to identify pollutants and set what the law calls "total maximum daily loads" -- the daily dumping the river can take for each of these pollutants, measured at a level adequate to "implement the applicable water quality standards." The trouble for the Anacostia, and for a lot of dirty rivers, is that measuring the maximum load by the day requires expensive changes. Heavy rains can cause sewage to overflow into the river day, killing fish and blotting out sunlight necessary for plant life. Instead of forcing the D.C. government and the D.C. Water and Sewer Authority to create systems to prevent this, the EPA read the word "daily" to mean -- as it put it in one brief -- "non-daily" and measured the total maximum load for different pollutants on a seasonal and annual basis. This effectively allows big dumps now and then, as long as the total over time stays within specific limits. * * *

Wrote Judge David S. Tatel for the panel, " 'Daily' connotes 'every day.' Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually. And no one thinks of '[g]ive us this day our daily bread' as a prayer for sustenance on a seasonal or annual basis." Federal regulators shouldn't need such judicial reminders that the law means what it says.

The decisions are State of New York et al v. EPA (DC Cir., 3/17/06) (ILB entry here), and Friends of the Earth v. EPA (DC Cir., 4/25/06).

Posted by Marcia Oddi on Thursday, April 27, 2006
Posted to Environment

Ind. Decisions - Court of Appeals decides six today

Kevin Bentley v. State of Indiana

In Mark E. Collier v. State of Indiana, a 26-page opinion with Judge Barnes dissent beginning on p. 19, Judge Vaidik writes:

Mark Collier appeals his conviction for the attempted murder of his estranged wife. Specifically, he argues that his conduct did not constitute a substantial step toward commission of the crime of murder, as required by Indiana’s attempt statute, but was instead mere preparation. We agree, and therefore we reverse Collier’s conviction for attempted murder. * * * Reversed.

CRONE, J., concurs.
BARNES, J., dissents with separate opinion.

[Judge Barnes concludes his dissent:] The bottom line is that this jury, on these facts, returned a guilty verdict. To conclude otherwise amounts to infringing on this prosecutor’s charging discretion and this jury’s exclusive prerogative to weigh the evidence. This is a close case, and my dissent should not be taken to mean that in another case, with different facts and legal issues, that I necessarily would vote to sustain an attempted murder conviction. I do so here.

In Valerie L. Hamilton v. Steven D. Ashton, et al., a 15-page opinion, Judge Robb concludes:
The trial court improperly granted summary judgment to the Hospital, as Hamilton’s designated evidence raises at least a question of fact regarding whether the Hospital’s alleged negligence was a proximate cause of her injuries. The trial court properly granted partial summary judgment to Dr. Ashton on the issue of his performance of the actual surgical procedure in question. Hamilton’s claims regarding informed consent and Dr. Ashton’s post-operative care remain. Accordingly, the judgment of the trial court as to the Hospital is reversed; the judgment as to Dr. Ashton is affirmed.
In HK New Plan Marwood, etal., v. Onofrey Food Services, et al., a 13-page opinion by Judge Shaprnack, he writes:
In this interlocutory appeal, HK New Plan Marwood Sunshine Cheyenne, LLC, (“New Plan”) appeals the trial court’s denial of its motion for summary judgment and the trial court’s grant of summary judgment to David Onofrey (“Onofrey”). New Plan raises two issues, which we consolidate and restate as whether Onofrey’s guaranty of the lease between Onofrey Food Services, Inc., and New Plan was enforceable. We reverse and remand.
Walter Starks v. State of Indiana (NFP)

Diana Nieto, etal., v. Amy Kezy, et al., a 22-page opinion by Judge Sharpnack, involves a tax sale. The opinion begins:

Diana Nieto and Maribel Gonzalez, administrator of the Estate of Irma Nava, (collectively “Nava”), appeal the trial court’s judgment in favor of Amy Kezy and Walter H. Swets. Nava raises thirteen issues, which we consolidate and restate as:

I. Whether the trial court’s findings of fact and conclusions thereon regarding Swets’s payment of the real estate taxes on Nava’s property are clearly erroneous;

II. Whether the trial court’s findings of fact and conclusions thereon regarding the placement of Nava’s property on the July 1997 delinquent property tax list are clearly erroneous; and

III. Whether the trial court’s findings of fact and conclusions thereon regarding the validity of Kezy’s tax deed are clearly erroneous.

We affirm in part, reverse in part, and remand.

Posted by Marcia Oddi on Thursday, April 27, 2006
Posted to Ind. App.Ct. Decisions

Courts - Federal judge bans juror checks

"Judge bans juror checks" is the headline to a story today in the Chicago Tribune. Some quotes:

Prosecutors and defense attorneys can't so much as run a Google search on prospective jurors in the upcoming corruption trial of former mayoral aide Robert Sorich, according to a federal judge's ruling Wednesday.

U.S. District Judge David Coar's decision is only the latest development in an ongoing struggle over how much federal judges, prosecutors and defense attorneys should know about jurors' backgrounds before a trial begins.

The issue took center stage during deliberations in the trial of former Gov. George Ryan, when the six-month case narrowly avoided a mistrial over revelations that several jurors concealed arrest or conviction records.

For now, federal judges and attorneys in Chicago are sorting out, on a case-by-case basis, whether they should perform criminal background checks, even as U.S. District Chief Judge Charles Kocoras and U.S. Atty. Patrick Fitzgerald develop separate policies to address the issue.

The result so far is an uneven approach among judges and attorneys to jurors' pasts.

U.S. District Judge Amy St. Eve indicated Friday that she is inclined to permit criminal history checks of jurors in next year's fraud trial of former Hollinger chief Conrad Black.

Defense lawyers raised the issue, saying they want to avoid the juror controversies that plagued Ryan's trial.

"I don't disagree with you that we should do that," St. Eve said. ***

Assistant U.S. Atty. Patrick Collins requested background checks. Collins, who was the lead prosecutor in Ryan's case, said he was seeking the checks to prevent the kind of problems that plagued the trial.

Days before Ryan was convicted of corruption April 17, two jurors were dismissed from deliberations after the Tribune reported they had failed to reveal a history of arrests or convictions.

Two alternates were brought in, and the jury had to begin deliberations all over again.

"We are not trying to be Big Brother," Collins said Wednesday. "The reality is I can't imagine news outlets will not be doing searches of these jurors in [Sorich's] case."

Coar responded that, historically, federal courts in this district have not checked up on jurors. He cautioned that conducting the checks would present a "delicate, problematic issue" and said he was concerned about digging into the backgrounds of jurors without some valid reason for doing so.

For background, see this ILB entry from March 28th, titled "Juror problems in federal trial of former Illinois Governor Ryan; thoughts on Indiana jurors."

Posted by Marcia Oddi on Thursday, April 27, 2006
Posted to Courts in general

Law - More on U.S. Supreme Court rules that homeowners need better notice before losing homes for back taxes

Updating yesterday's ILB entry re the Supreme Court's ruling in Jones v. Flowers, Linda Greenshouse writes today in the NY Times:

"An elementary and fundamental requirement of due process," the Supreme Court ruled many years ago, is that the government must provide "notice" and an opportunity to be heard before it seizes property.

On Wednesday, the court added teeth to that requirement, ruling that Arkansas violated a homeowner's right to due process when it sold his house for nonpayment of taxes after sending him two certified letters that came back "unclaimed."

Writing for a 5-to-3 majority, Chief Justice John G. Roberts Jr. said that "it is not too much to insist that the state do a bit more" before using its "extraordinary power" to take and sell a person's house.

The Constitution does not require "actual notice" like personally handing the letter to the homeowner, the chief justice observed. But he said that once the state became aware, as in this case, that an effort at notice had failed, it must take "additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so." * * *

For anyone watching the emergence of the Roberts court, the case provided intriguing tea leaves. It was the chief justice's fourth majority opinion, and the first to provoke any dissenting votes. That the dissenters included the court's two best-known conservatives was interesting, of course.

Equally intriguing was the choice by Justice Kennedy, seen by many as the justice most likely to assume the central position on the court previously held by Justice Sandra Day O'Connor, to join Justices Thomas and Scalia in an almost paradigmatic case pitting an individual against the state.

While this was hardly the most high-profile case on the court's docket, no case that requires the justices to express their views on the meaning of constitutional due process is insignificant.

Further, the federal government raised the stakes by entering the case to argue that the notice Arkansas provided to Mr. Jones was adequate. Given that many federal agencies have authority to seize property, "the United States has a substantial interest in the question presented," the solicitor general's office told the court in a 29-page brief.

Posted by Marcia Oddi on Thursday, April 27, 2006
Posted to General Law Related

Ind. Law - More on Crown Point's "Big Box" Ordinance

Updating this ILB entry from Jan. 13th, 2006, detailing Lauth Development Group's filing suit against Crown Point, is this story by Allison Fasher in today's Munster (NW Indiana) Times, headlined "CP hires firm for big-box suit." Some quotes:

CROWN POINT | The city is turning to outside counsel to assist with its fight against a big-box developer's suit.

On Wednesday the Board of Works approved hiring Spangler, Jennings & Dougherty to represent it in the lawsuit filed by Lauth Property Group LLC and Crown Point Partners LLC March 8 in Lake Superior Court.

The suit accuses the city and the Crown Point Plan Commission of enacting an ordinance controlling big-box development to prohibit a Wal-Mart. It claims the city violated the U.S. Constitution, the Indiana Constitution and says the decision conflicts with federal and state anti-trust laws. * * *

The city will pay a fee of $170 per hour for partners, $150 per hour for associates and $80 per hour for paralegals, according to the contract. It was approved retroactive to March 24.

Board member Mike Conquest supported the move.

"I think we want to defend this pretty aggressively," he said.

Earlier this month the city requested the suit be moved from county court to federal court in Hammond.

Posted by Marcia Oddi on Thursday, April 27, 2006
Posted to Indiana Law

Ind. Gov't. - More on attorney for Lake Station city clerk - add Merrillville

Recalling these ILB entries from March 5th and April 7th, on the efforts of the Lake Station Clerk-Treasurer to obtain money for legal fees, today's Gary Post-Tribune has a story by Tom Wyatt about a similar effort by the Merrillville Clerk-Treasurer:

MERRILLVILLE — Town leaders said the clerk-treasurer is more than welcome to hire her own lawyer, but the money will have to come from her budget.

The Town Council on Tuesday quietly denied approval of one line of the accounts payable voucher. And that one line was for $3,187.50 worth of special legal counsel provided by Munster law firm Pinkerton and Friedman to Clerk-Treasurer Rose Ann Antich-Carr.

Antich-Carr, who took over as Merrillville clerk-treasurer in November when John Petalas left to become county treasurer, hired the legal services of Jeffrey Gunning of Pinkerton and Friedman earlier this year to help transition into the office.

Along with helping Antich-Carr prepare for her first but regular visit from the State Board of Accounts, Gunning was charged with creating an equipment and telephone policy for employees of the clerk-treasurer’s office. * * *

Indiana Code specifically allows for a municipality’s clerk-treasurer to hire its own legal counsel. Town leaders, though, insist the money for such counsel must come out of the clerk-treasurer’s budget.

“We budget only so much,” Town Council President Richard Hardaway said. “We can’t afford it.”

Gunning said the Town Council can use whatever wording it likes, but maintains the town must allocate the money to Antich-Carr’s office through whatever permissible means it deems best.

“I suspect the council is acting in a fashion they believe is wise for their budget considerations,” said Gunning, a member of the Merrillville Town Board from 1984 through 1991. “It sounds like it’s just an accounting clarification. But the state law requires there be appropriations approved and allocated for this purpose.”

The town’s regular attorney is Stephen Bower of Merrill-ville law firm Cohen and Thiros. Bower refused to comment on the matter.

Antich-Carr said she chose to hire Gunning because of his experience with municipalities. He was the city of Hobart’s attorney for four years and also worked for Ogden Dunes and Beverly Shores for several years.

Gunning said he doesn’t expect to conduct similar extensive work in the future for Antich-Carr — such as the work that amounted to nearly $3,200 — but anticipates providing guidance to Antich-Carr from time to time.

He cautioned the town not to sit on the matter, considering the fact his law firm is expecting payment for services and that fees for non-payment could be assessed.

“The harsh reality of the law also says ... (the Town Council) may have to dig into their own pockets and pay that,” Gunning said.

Earlier this month, Lake Station Clerk-Treasurer Martha Kroledge threatened to file a lawsuit against the city for violating her right to hire an attorney. The Lake Station City Council said a city ordinance restricts hourly rates for attorneys to $100 an hour. Kroledge’s attorney charges $175 an hour.

Posted by Marcia Oddi on Thursday, April 27, 2006
Posted to Indiana Government

Environment - Gravel pits in the news in Martinsville and Carmel [Updated]

Martinsville. The Martinsville Reporter-Times reports that "Neighbors get to state their case against gravel pit." Aaron Blevins writes:

WAVERLY. The Indiana Department of Environmental Management will hold a hearing at 6 p.m. Wednesday at the Mooresville Public Library to address residents’ questions about an air permit for U.S. Aggregates’ proposed second plant.

But it may not be enough for residents opposed to the creation of a new gravel pit to stop the plan.

Robert Elstro, a public information officer with the department, said that the hearings are held based on the amount public interest expressed through letters.
***

However, stopping the mineral extraction business from digging into Waverly may be an arduous undertaking.

“If the applicant provides all of the necessary information to show they will operate within the parameters of the permit, IDEM is required by law to issue the permit,” Elstro said. “IDEM expects no adverse impact on public health based on this permit.”

He also said that the agency received 28 separate comments on the air permit.

U.S. Aggregates’ proposed location for the new gravel pit is at 7201 East Centenary Road. The company is already extracting sand and gravel from a plant at 10351 North Mann Road, on the opposite side of Ind. 144. The area is home to several other operating gravel pits as well.

Here is the IDEM press release, including a link to the draft permit. Here is an earlier ILB entry (last item), from 3/1/06, about the proposed gravel pit. The link to the earlier Reporter-Times story still works.

Carmel. "Carmel blocks new mining operations" was the headline to a story yesterday in the Indianapolis Star by Lesley Rogers Barrett:

Martin Marietta won't be allowed to expand its mining operation in Carmel, after neighboring residents launched a campaign to fight the company.

The Carmel Board of Zoning Appeals on Monday voted 4-0 against expansion on about 96 acres on the southwest corner of 106th Street and Hazel Dell Parkway.

More than 100 residents -- many wearing yellow "No Blasting Expansion" buttons -- packed into the City Hall chamber to hear the decision.

"It's certainly a good day," said attorney Larry Kane, a resident of Kingswood, the neighborhood closest to mining activity. "We'll relish this while we can."

Martin Marietta will likely seek an appeal of the decision in the Hamilton County courts, said Zeff Weiss, an attorney for the company.

Martin Marietta has mined sand, gravel and industrial limestone for more than 50 years. Carmel annexed the mine in 2002, and the city and Martin Marietta are at odds over another issue -- a mining ordinance that would regulate permits and blasting levels. The Carmel City Council approved the ordinance last year, but the ordinance isn't in effect while the company challenges the decision in court.

In meetings over the past two months, the Board of Zoning Appeals heard from residents who said their homes shake when the company uses explosives, saying Martin Marietta needs restrictions on blasting levels. More than 1,170 families in six neighborhoods fought the expansion, Kane said.

"We would like to see them regulated before they're allowed to expand," said Susan Becker, who lives in Kingswood.

Martin Marietta contends that the mining operation was in place long before neighborhoods like Kingswood were developed. "Nobody can come in and say they didn't know that mine was there," said Wayne Phears, an attorney for Martin Marietta.

The mining company has been trying to expand its operations since 2002. The land, which Martin Marietta leases, is currently zoned for low-density residential use, so the company needs special use approval from the city to allow for the mining expansion.

[Updated] Note that there will be Ct. of Appeals oral argument 05/09 on a Carmel/Martin Marietta appeal.

Posted by Marcia Oddi on Thursday, April 27, 2006
Posted to Environment

Wednesday, April 26, 2006

Ind. Decisions - "Schools Can No Longer Charge Parents for Full-Day Kindergarten"

"Schools Can No Longer Charge Parents for Full-Day Kindergarten" is the heading to this brief story today on the WISH TV news site.

Should parents be allowed to pay to enroll their children in full day kindergarten? Based on a recent ruling by the Indiana Supreme Court, the Indiana Department of Education says no.

The department plans to send out letters to school districts throughout the state, advising them to stop charging for full-day kindergarten if they already do so.

The Center Grove school board discussed the issue this week, and showed support for continuing full-day kindergarten in the district, even though the school system will now foot the bill.

"We had decided this was best for our kids. It was something that we thought was going to give our kids a boost where they really needed it in that critical reading stage," said school board member Jackie Ponder.

The Supreme Court decision is Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation.

Access a list of releated ILB entries here.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Ind. Sup.Ct. Decisions

Law - U.S. Supreme Court Justices Reject Immunity Below State Level

Linda Greenhouse writes in the NY Times today about the U.S. Supreme decision yesterday in the case of Northern Insurance Company of New York v. Chatham County. Like the case reported earlier today on tax sales, this case has impact at the state government level. Some quotes from the Greenhouse story:

The Supreme Court ruled unanimously on Tuesday that cities, counties and other levels of government below that of states themselves are not protected by the general immunity from suits that states enjoy in federal court.

Ruling in a case from Chatham County, Ga., which includes Savannah, the court overturned a decision by the federal appeals court in Atlanta that had shielded the county from an insurance liability suit from damage caused to a yacht by a faulty drawbridge.

The appeals court acknowledged that the 11th Amendment, which the Supreme Court has interpreted as the precise source of constitutional immunity for the states, did not apply to smaller units of government under the court's precedents. But the appeals court found that "common law has carved out a 'residual immunity,' which would protect a political subdivision such as Chatham County from suit."

But there is no such "residual immunity," Justice Clarence Thomas said in his opinion for the Supreme Court. Justice Thomas added, with reference to the intentions of the Constitution's framers, that the concept of a free-floating immunity for other levels of government "would serve to extend sovereign immunity beyond its preratification scope."

A series of Supreme Court decisions in the 1990's invigorated the concept of state immunity and raised the question that the court answered in this case. The majority's position in the earlier cases, most of which were decided by 5-to-4 votes, was that because the states were sovereign before the Constitution was ratified, they retained immunity from suits in federal court as an aspect of their retained sovereignty, given expression by but not limited to the 11th Amendment.

So the question naturally arose of whether this free-floating "residual" immunity applied below the state level to units of government. Under long-standing precedent of the lower court in this case, the United States Court of Appeals for the 11th Circuit, it did, at least to counties and municipalities that exercise power "delegated from the state."

Given that all political subdivisions exercise power delegated by the state, the justices found this analysis unpersuasive. Only those subdivisions acting as "an arm of the state" can claim the state's immunity, Justice Thomas said.

This next part I found particuarly interesting, given the abundance of quasi-public entities in Indiana, including the Indiana Economic Development Commission:
The phrase "arm of the state" is a legal term of art that the court has applied very sparingly in the 11th Amendment context to agencies that are subject to a state's complete control and that have no independent powers or separate legal identity. Port authorities, regional transportation systems, land-use planning agencies and the like that make claims to the special protections given to arms of the state are regularly rejected.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to General Law Related

Ind. Law - IU to honor five, including Judge Shields and Attorney Eichhorn

A press release from Indiana University today, via Inside Indiana Business, announces:

BLOOMINGTON, Ind. -- Five Indiana University alumni have been named as recipients of the 2006 Distinguished Alumni Service Award. The award is the highest honor reserved solely for IU alumni and provides recognition for outstanding career achievements and significant contributions benefiting the recipient's community, state and nation or IU.

This year's recipients will be Frederick F. Eichhorn of Bloomington; V. Sue Shields of Noblesville; George Taliaferro of Bloomington; Ronald J. Webb of Niceville, Fla.; and James E. Weigand of Bloomington. With the addition of these recipients, IU has honored 284 alumni since the award's inception in 1953. * * *

Frederick F. Eichhorn

Fred Eichhorn received his bachelor's degree in business in 1952 and served in the U.S. Air Force during the Korean War. After earning his law degree from the IU School of Law-Bloomington in 1957, he joined his father's law firm in Gary and became a partner in 1963. He served on the boards of numerous civic organizations in northwest Indiana. He served as president of the Indiana State Bar Association, received the Chancellor's Medallion from IU Northwest and is a member of the Academy of Law Alumni Fellows. Eichhorn served as a member of the IU Board of Trustees for 15 years and was president from 2002 to 2005.

V. Sue Shields

Sue Shields earned a law degree from the IU School of Law-Bloomington in 1961. She was the first woman to be elected judge of a general jurisdiction trial court in Indiana, the first female judge in the Indiana Court of Appeals and the first female U.S. magistrate judge in Indiana. She also has been inducted into the Academy of Law Alumni Fellows, the highest honor the IU School of Law bestows upon its graduates. Shields received two lifetime achievement awards from the Indianapolis Bar Association.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides one Indiana case today

In Marshall v. Knight (ND Ind., Robert L. Miller, Jr., Chief Judge), a 10-page opinion, Circuit Judge Sykes writes:

Kenneth Marshall, an inmate at Indiana’s Miami Correctional Facility, alleged in a pro se complaint that the prison’s superintendent, along with other unnamed prison employees, unconstitutionally deprived him of access to the courts by impeding his access to the prison law library. Before any of the defendants were served with the complaint, Marshall filed what he captioned a “Petition To Amend Complaint And To Include The Submission Of Exhibits And Affidavits.” The district court summarily denied Marshall’s petition to amend and later dismissed his complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). We reverse.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Ind. (7th Cir.) Decisions

Law - U.S. Supreme Court rules that homeowners need better notice before losing homes for back taxes

In a ruling today, Jones v. Flowers, Chief Justice Roberts, writing for the majority, said, as reported via this AP story (link thanks to How Appealing):

Arkansas officials should have done more when certified letters mailed to Jones' home were returned as unclaimed and when he failed to respond to a newspaper ad announcing the sale.

Roberts said many states require authorities to post notices on the doors of the homes up for sale or to send letters via regular mail that don't require signatures and can be left at the address.

States do not spare efforts to collect taxes, Roberts wrote. So, he said, they also should not spare efforts to track down owners of homes about to be sold off to pay delinquent taxes.

Roberts said states must take "additional reasonable" steps to provide notice. But he declined to define what those steps should be.

"In this case, the state is exerting extraordinary power - taking and selling a house," the chief justice wrote. "It is not too much to insist that the state do a bit more to attempt to let (a homeowner) know about it when the notice letter addressed to him is returned unclaimed."

Here is the report from Lyle Denniston of SCOTUSblog:
The Supreme Court ruled on Wednesday that when a mailed notice of a tax sale is returned unclaimed, a state must take added steps to attempt to make sure the property owner knows the property is at risk before it may be sold. The Court said, however, that only "reasonable" additional steps need be taken, and then only when it is "practicable" to do so.

Chief Justice John G. Roberts, Jr., wrote for the majority in a 5-3 ruling, in Jones v. Flowers (04-1477). New Justice Samuel A. Alito, Jr., took no part. The case involved a Little Rock, Ark., man who lost his house in a tax forfeiture sale because he did not receive notice until too late to redeem the property.

Roberts' opinion drew the support of the Court's more liberal members, Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Clarence Thomas dissented, joined by Justices Anthony M. Kennedy and Antonin Scalia.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to General Law Related

Ind. Courts - Vigo County Legal System Overcrowded

"Vigo County Legal System Overcrowded" is the headline to a story via WTWO, Terre Haute:

According to the latest figures from the Indiana Supreme Court Administration, the legal system in Vigo County is moving at an incredibly slow rate.

The figures were based on 2004 data and suggest nine judges would be appropriate to handle the caseload in Vigo County. Right now the courthouse houses just six, and one of those was just added in January of 2006.

Vigo County Superior Court, Division #1 Judge Michael Eldred knows the backlog all too well. Scheduling seven criminal cases every Monday, he`s booked through the year and that doesn’t include civil cases: "It`s just not fair for some of these people to have to wait 2 or 3 years to get into court, nor for a person who`s charged with a crime and presumed innocent to have to wait that long."

An overcrowded court system leads directly to an overcrowded jail and that`s where it gets really expensive. Judge Eldred says housing an inmate for one year can cost up to $50,000.

“Its a difficult issue,” says Eldred,” on one hand you worry about the tax payers having an overcrowded jail and on the other, you don`t want to turn loose people into the community that may be committing violent crimes.”

But it`s not the criminal cases that are clogging the system. Judge Eldred says of any given stack of cases in his office, half are for collections:
“It revolves around the conflict in our society about whether or not every kind of conduct that we deem inappropriate ought to be criminalized or whether there are alternatives for dealing with that."

Any alternative: settlement, mediation, or de-criminalization could reduce the overworked legal system in Vigo County and ensure the right to a fair and speedy trial.

But even the process to ensure a speedy trail is slow. Judge Eldred worked for almost seven years to get the county`s newest court that was just added this past January.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Indiana Courts

Ind. Courts - Steuben judge has rare primary rival

"Steuben judge has rare primary rival" is the headline to a story by Kara Hull in today's Fort Wayne Journal Gazette. It begins:

For the first time since being elected in 1994, Steuben Circuit Judge Allen Wheat has competition in the primary.

A former Steuben County prosecutor, Donald P. Shively, 51, now chief deputy prosecutor in DeKalb County, is challenging Wheat, 56, in the Republican primary May 2.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides two today

In Paul Meyers v. James and Eva Meyers d/b/a J. Meyers Construction, Inc., an 18-page opinion (with a concur/dissent by Chief Judge Kirsch on p. 18), Judge Robb concludes:

An employee who has been fired for exercising his statutory right to overtime pay can bring a claim for retaliatory discharge under the public policy exception to the employment-at-will doctrine created in Frampton. The trial court erred in granting J. Meyers Construction’s motion to dismiss Meyers’ retaliatory discharge claim because Meyers alleged sufficient facts to support such a claim. The trial court also erred in granting J. Meyers Construction’s motion to dismiss James and Eva as defendants because Meyers alleged sufficient facts to survive this motion. The trial court’s order granting J. Meyers Construction’s motion to dismiss is therefore reversed, and we remand for further proceedings.

MAY, J., concurs.
KIRSCH, C.J., concurs in part and dissents in part with separate opinion.

Our Supreme Court in Morgan Drive Away, Inc. v. Brant, 489 N.E.2d 933 (Ind. 1986) stated the “employment at will doctrine has steadfastly been recognized and enforced as the public policy of this State” and observed that the “[r]evision or rejection of the doctrine is better left to the legislature.”

In Keybank National Association v. Grant F. Shipley, an 18-page opinion, Judge Vaidik writes:
KeyBank National Association (“KeyBank”) appeals the trial court’s grant of summary judgment in favor of attorney Grant Shipley on its negligence claim. Specifically, KeyBank contends that Shipley, who was the attorney for a receiver, owed a duty to KeyBank, a creditor of the receivership. Although a receiver owes a duty to a creditor, Indiana courts have not yet addressed whether an attorney for a receiver owes a duty to a creditor. After analyzing our case law, the law of other states, and various public policies, we conclude that a receiver’s attorney does not owe a duty to a creditor and therefore cannot be held liable for negligence. Instead, the creditor’s remedy is to sue the receiver, which in turn can sue its attorney for malpractice. We therefore affirm the trial court.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More about Judge Julie Cantrell

Mentioned the the entry immediately below, Lake County Judge Julie Cantrell is also the subject of this story by John Byrne today in the Gary Post Tribune. Some quotes:


CROWN POINT — Lake County Judge Julie Can-trell’s court-administered driving school has drawn the attention of state judicial officials.

Meg Babcock, attorney for the state Commission on Judicial Qualifications, recently appeared at the Lake County Clerk’s Office traffic division and requested documents related to the program, according to sources.

The legality of Cantrell’s driving school, in which traffic defendants pay to attend classes to avoid having tickets appear on their records, has been called into question in recent months.

Cantrell’s colleague, Lake Superior Court Judge Jesse Villalpando, contended in a wide-ranging critique to state officials that Cantrell has been overcharging defendants in recent years for taking part in the school.

According to Villalpando’s claims, Cantrell has not reported the proceeds of the school to the state Bureau of Motor Vehicles, and instead funnels the funds to other locations.

Cantrell has denied any wrongdoing.

Babcock’s appearance in Crown Point within the past two weeks is an indication the state Commission on Judicial Qualifications is investigating Villalpando’s claims, according to political observers.

The commission, which has the authority to discipline judges, does not comment on ongoing investigations.

“People recognize me, and if they saw me, and you believe they are credible, then I guess they saw me,” Babcock said. “But whatever reason I may have had to be in Lake County would have been on commission business, and as a policy I do not comment on commission business.”

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Indiana Courts

Ind. Courts - Lake County attorneys rate judges

The Indiana Lawyer reports today on Lake County judges, in a story by Ron Browning. Some quotes:

A survey of Lake County attorneys named Magistrate Michael N. Pagano the best jurist in the four county courts.

The magistrate in County Division III rated at the top of the list in competence, character, temperament, and overall qualification.

The poll, conducted by the Lake County Bar Association, sought responses from all 1,042 attorneys in the county -- not just bar association members. It asked for anonymous ratings of the County Court judges in one of five rankings ranging from exceptionally well qualified to not qualified. * * *

Attorneys were asked to rate only those judges with whom they had personal experience or knowledge, limiting the number of responses because only 300 to 350 attorneys in the county have any significant practice in the county courts, Funk said. A total of 276 surveys were returned.

While Magistrate Pagano scored the highest in the three areas attorneys were asked to consider, as well as his overall qualification -- which deemed him "well qualified" -- the judge in his court did not fair as well in the survey.

Judge Julie N. Cantrell scored the lowest of all active judicial officers in the county courts in each category as well as in the overall qualification -- where she rated as "qualified." She was rated "less than qualified" in the area of character.

Her ratings in each category scored only above Eduardo Fontanez and Stanley W. Jablonski -- judicial candidates for the bench in County Division IV.

The respondents said the candidates should not be elected judge, but incumbent Judge Jesse M. Villalpando should retain the seat.

Here is an ILB report from April 22nd with similar information, quoting a Gary Post-Tribune story.

[More] Today's Munster (NW Indiana) Times has a story on the Lake County Bar survey, by Marc Chase. Some quotes:

It may be one of the most rough-and-tumble Lake County judicial races on record, but attorneys in the county don't believe it's a close one, a new Bar Association survey shows.

Each year, the Lake County Bar Association members rank local judges in the categories of competence, character, temperament, overall qualifications and whether the judges should be elected to new terms.

This year, two judicial candidates for Lake County's contested superior court judgeship, Merrillville lawyer Stanley W. Jablonski and Hammond lawyer Eduardo Fontanez, also were ranked in the mix, coming up far short of the incumbent they are challenging, Judge Jesse Villalpando.

The race thus far has been characterized by sharp attacks on all sides, with Villalpando saying the challengers were placed on the ballot by political rivals to dilute his vote count. He claims both men were recruited because he declined to refer defendants to a counseling service run by a rival political operative's friend and supporter.

Fontanez has said Villalpando has performed inefficiently, creating a backlog of cases.

Say what they may about each other, but about 200 attorneys surveyed on Villalpando, Fontanez and Jablonski believe that the sitting judge is far and away the better candidate.

Of the 223 attorneys that answered questions regarding whether Villalpando should be re-elected in the May 2 primary, 74 percent indicated yes.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Indiana Courts

Ind. Courts - Head of Indiana Criminal Justice Institute has been placed on paid administrative leave by Gov. Mitch Daniels

The Indianapolis Star reported on its website late this morning:

Heather Bolejack, executive director of the Indiana Criminal Justice Institute, has been placed on paid administrative leave by Gov. Mitch Daniels while an investatigation continues by the state's inspector general.

A press release issued this morning by the governor's office did not say why the disciplinary action is being taken. * * *

Bolejack's leave, which was recommended by Inspector General David Thomas, began Tuesday. Thomas said that he hopes to have results within the next two weeks which then will be shared as permitted by Indiana law and that further comment at this time is prohibited by Indiana law.

The Indiana Criminal Justice Institute is the state's planning agency for criminal justice, juvenile justice, traffic safety and victim assistance.

Bolejack was named to the position last April.

[More] This additional information from an AP story by Mike Smith:
Daniels in April 2005 appointed Bolejack, an attorney from Indianapolis, to head the institute. The agency oversees state planning for criminal justice, traffic safety and victim services, and administers state money to carry out long-range strategies.

Bolejack had worked as a litigation associate for the Indianapolis law firms of Ice Miller and Bingham McHale. At the time of her appointment, Daniels said he wanted her to focus much of the institute's efforts on initiatives to stop the spread of methamphetamine use.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to Indiana Courts

DSL down across midwest this morning

When I called IQuest early this morning to say my DSL service was down, they told me several carriers were involved and service was down across the midwest. It is back now, at least for the moment.

Posted by Marcia Oddi on Wednesday, April 26, 2006
Posted to About the Indiana Law Blog

Tuesday, April 25, 2006

Ind. Courts - Hamilton County Bar Association ranks judicial candidates

The Noblesville Daily Times reports:

The Hamilton County Bar Association, which is comprised of local judges, prosecuting attorneys, civil practitioners and criminal defense attorneys, has completed a survey of its membership with respect to qualifications and recommendations of the candidates for Judge of Hamilton Superior Court No. 6 for the upcoming primary election. Superior Court 6 is the newly formed court that will open Jan. 1, 2007.

Members were only to respond with regard to candidates with whom they have had professional contact. Members were requested to rate the candidates based upon their work ethic, efficiency, ethics, impartiality, application of the law, and temperament.

Of those members who had professional contact with the candidates, the following is each candidate's percentage of votes recommending him or her for Judge of Hamilton Superior Court 6:

  • Will Greenaway: 98 percent of those in contact with Greenaway recommended him for the bench.
  • Larry Sells: 43 percent recommended him for the bench.
  • Gail Bardach: 7 percent of those in contact with Bardach recommended her for the bench.
The winner of the May 2 Primary will face Democratic candidate N. Frederick Eggeson in the General Election. Eggeson received no recommendation in the Bar Association's study.

Bardach has received an endorsement of the Carmel Fraternal Order of Police Lodge 185. Carmel Police Chief Michael Fogarty, Fishers Police Chief George Kehl, and the Carmel Professional Firefighters Local 4444 have also endorsed Bardach.

“This endorsement represents the opinion of the law enforcement officers who know me best, who appear before me in court on a regular basis. Their support recognizes, and is a tribute to, my service on the bench.” Bardach said. “The primary goal of my outreach programs has been to keep our young adults out of court by showing them the consequences that their actions can have.”

Posted by Marcia Oddi on Tuesday, April 25, 2006
Posted to Indiana Courts

Ind. Law - STAR posts ISTA lawsuit

Thanks to the Indianapolis Star, we can all now have access to the 44-page ISTA lawsuit. It is a scanned copy - available here.

The ILB entry of 4/21/06 complained that the complaint was not available. An entry posted earlier that same day provides background on the suit.

Posted by Marcia Oddi on Tuesday, April 25, 2006
Posted to Indiana Law

Courts - Two Arkansas judges declaring stands on issues

"Two high court candidates declaring stands on issues: They say practice helps inform public; others worry it undermines judiciary’s impartiality." So reads the headline to this story from yesterday's Arkansas Democrat-Gazette (thanks to How Appealing for the link). Some quotes from a lengthy story:

Two candidates in next month's Arkansas Supreme Court elections are breaking with long-standing practice and running on something other than their titles and experience: They're taking stands.

Arkansas Court of Appeals Judge Wendell Griffen and Maumelle District Judge Roger Harrod take stands on issues judges usually avoid. They argue the voters deserve to know more before electing judges. "Our democracy works by the people being informed about the folks they are to vote for," Griffen said. "As opposed to being uninformed."

Griffen's opponent, Logan County Circuit Judge Paul Danielson, and others say judges and judicial candidates shouldn't discuss issues that might come before them in a case. Opinionated judges undermine a court's claim to being impartial and unbiased, they say.

"I don't think anybody wants to elect judges who bring to the court a specific agenda," Danielson said. "And I don't think most people want these legal issues resolved at the ballot box. They want it resolved in the courtroom."

Harrod, running against Justice Donald Corbin, said he simply disagrees with the court's decision in June 2005 to reopen the landmark Lake View school funding case. He says the court was out of line and without authority.

"To me, that is playing havoc with our separation of powers," Harrod said. "Just taking jurisdiction where the Constitution does not give you that jurisdiction is a dangerous precedent, I believe."

Corbin, who supported reopening the case, said the court had "an inherent right" to make sure its order is enforced. He worries that judicial candidates who campaign against the unpopular decisions made by their opponents threaten the independence of the court. * * *

Corbin, a 15-year veteran of the court, was one of the strongest supporters of declaring the level of school funding to be unconstitutional on grounds that it was not adequate.

Running for the Supreme Court on a high profile case or with links to some hot issue is rare. But it isn't unheard of. Jim Johnson knocked off incumbent Minor Milwee in 1958 after gaining a reputation as a foe of desegregating public schools.

Milwee's campaign was limited by rules on judicial conduct. Johnson later said that "I didn�t play by the rules. I ran for that position based upon championing at that time a cause that was identifiable to the people."

In a letter to the editor of the Arkansas Democrat-Gazette, Johnson recently wrote that "Faced with the same set of circumstances today, despite the carefully concocted, incumbent-protecting court rules, I have no hesitancy in saying I would do it again."

The elections come when the state is trying to determine the effect of an 8th U.S. Circuit Court of Appeals ruling last year that said rules limiting speech of judges were unconstitutional.

Arkansas' similar rules haven't been challenged and still are in effect.

But Harrod said the 8th Circuit's ruling "makes me a little more comfortable" in talking about his views.

The state Supreme Court also is the target of criticism from some political leaders for its decision to reopen the school funding case in June and for declaring the state's system of funding public schools unconstitutionally inadequate twice in the last four years.

Posted by Marcia Oddi on Tuesday, April 25, 2006
Posted to Courts in general

Ind. Econ. Dev. - The South Shore Line, something that works, and could work even better

Thanks to Indiana Insight for spotting this column that appeared yesterday in the Chicago Tribune.

Jon Hilkevitch's column is about how the South Shore needs more cars. There have been a number of stories on this over the past few months, including this one that caught my eye at the time (8/12/05) in the Chesterton Tribune, where Paulene Poparad wrote a long report that began:

The cars parked in the grass Friday along U.S. 12 told the story.

Dune Park Station badly needs more parking spaces for commuters riding the South Shore.

Officials with the public Northern Indiana Commuter Transportation District, which owns and operates the railroad, announced it has begun making plans to add 119 parking spaces at Dune Park this year. The new spaces will be located east of the current east parking lot.

Dune Park currently has 392 parking spaces. By comparison the South Shore station in East Chicago has 1,200 parking spaces and some days only about 50 or 60 are left.

NICTD general manager Gerald Hanas said passenger vehicles at Dune Park have been parked on the grass, which is in the U.S. 12 right-of-way, all summer and the Indiana Department of Transportation is not happy about it.

A check of license plates in South Shore parking lots shows several of the vehicles are from the state of Michigan, Hanas said, with those commuters apparently boarding South Shore trains rather than driving into Chicago. Ridership from NICTD’s station at the Michiana Regional Airport in South Bend has seen a more than 15 percent increase in ridership year-to-date.

“South Bend is really pushing the entire railroad but the balance of the stations are catching up,” said Hanas.

NICTD marketing director John Parsons said in 2003 the price of a gallon of unleaded gasoline was $1.31 compared to today’s $2.27. While diesel-powered commuter systems are reeling from increased fuel prices, said NICTD board member Dennis Burke, the South Shore’s fortunate to be powered by an overhead electric catenary system. * * *

It was announced late last week that U.S. Rep. Peter Visclosky, D-Merrillville, has secured a $1.5 million grant for NICTD to update a 1998-99 major investment study regarding the feasibility of extending the South Shore south to Lowell and/or Valparaiso. Known as the Westlake line, Parsons said the study needs to be updated with the results of the 2000 census as well as other data.

Now some quotes from Hilkevitch's column, written more than 8 months later:
The South Shore Line, known for most of the past century as "The Little Train That Could," is facing its biggest test in many years.

The familiar trains sporting an orange stripe on the outside are crowded, often standing-room only during even some non-rush hour runs on the 90-mile line between South Bend, Ind., and downtown Chicago. The ridership gains would be more welcome if only customers were not so unhappy about the cramped quarters and if the railroad could promise when new train cars would on the way. * * *

South Shore officials say they hope to buy more cars and eventually expand the line deeper into Indiana to carry even more passengers. But the only thing on the immediate horizon is a fare increase.

Jobs, museums, shopping and restaurants in Chicago are among the draws attracting more South Shore riders than the electric-powered rail line has carried since 1961, according to the Northern Indiana Commuter Transportation District, which operates the passenger service.

Just a note here - I rode the South Shore between Chesterton and Chicago at least 5 days a week during the early 60s, and in the evenings it was standing room only often from Randolph Station to as far as Hammond or Gary. The story notes:
The orange trains go past dilapidated dwellings in Hammond and Gary that are marked by abandoned junk cars on the front lawns and families inside living below the poverty line--the very people who would benefit from regional development.

The South Shore is essential to the economy and to helping prepare for growth in a region that has more than its share of poverty. It links thousands of people from the South Side, the south suburbs and other states to downtown Chicago.

My memories are that you had to actually hold your breath as the train traveled through East Chicago, because the air was so polluted at the time. Gary, on the other hand, was a destination -- I spent much time while in high school taking the South Shore back and forth between Chesterton and the Gary Public Library. More from the story:
South Shore ridership increased 7 percent in 2005, when a record 3.8 million rides were provided, the railroad reported. Ridership rose about 10 percent in the first quarter of this year, it said.

The 10 percent boost came before many drivers traded their car keys for train passes at the start of the Dan Ryan Expressway reconstruction this month and the steep rise in gasoline prices. Daily rider increases have ranged from 15 to 30 percent higher this year than normal during rush periods and to more than 70 percent higher in off-peak hours, officials said. * * *

Many visitors from southern Michigan, eastern Indiana and northwest Ohio travel to South Bend to catch the South Shore instead of driving or flying to Chicago. "The passenger traffic at our South Bend station is growing almost exponentially," said Bill O'Dea, the South Shore's terminal superintendent at the Millennium Station. "People gravitate to it, using the parking at the South Bend [Regional] Airport. It really is a regional stop for people coming to Chicago."

But the packed trains are becoming a daily grind for regular commuters riding to Chicago.

"I've become way more aggressive when I get on the train. I go straight to my piece of standing room in the vestibule, and I protect it," said Amelia Solorio, 40, of Calumet City. "You can't even read the paper. That is how tight it is on the train."

The South Shore owns 68 passenger cars, although several are typically out of service for maintenance.

Plans are in motion to acquire about 12 more cars, but funding has not been lined up, Parsons said. The railroad is seeking about $39 million for the cars from the State of Indiana and a recently created regional development authority, he said. * * *

The South Shore has struggled to operate with unpredictable funding for years. Unlike Metra and CTA, which receive a portion of sales tax receipts in the six-county Chicago area to subsidize transit operations, the South Shore has no local or regional funding sources.

The South Shore has been able to cover about 50 percent of its operating costs through fares, with another approximately $10 million coming from the state, Parsons said.

Indiana has historically underfunded its transportation infrastructure compared with neighboring states, according to data tracked by the U.S. Department of Transportation. The state is now trying to catch up on years of neglect by leasing the Indiana Toll Road to a private consortium for $3.8 billion.

Some of the money from the 75-year toll road deal would go toward expanding and repairing other forms of transportation. No specific amounts have been earmarked for the South Shore, officials said. * * *

Meanwhile, studies are under way on long-sought plans to extend the South Shore from South Bend to Valparaiso and Lowell, Ind. The studies are intended to determine potential ridership levels and travel-time savings that the new service would generate.

Posted by Marcia Oddi on Tuesday, April 25, 2006
Posted to Indiana economic development

Ind. Decisions - Court of Appeals decides one today

In Nicholas Biddinger v. State of Indiana, a 14-page opinion, Judge Baker writes:

Appellant-defendant Nicholas Biddinger appeals from the sentence imposed by the trial court after Biddinger pleaded guilty to one count of Aggravated Battery,1 a class B felony. In particular, Biddinger argues that the trial court erred in: (1) refusing to permit him to make a statement in allocution; (2) considering the type of gun and ammunition Biddinger used in committing the crime as an aggravating circumstance when it was lawful for him to own and possess them; (3) overlooking the fact that Biddinger suffered from post-traumatic stress disorder (PTSD) as a mitigator; and (4) imposing a sentence that is inappropriate in light of the nature of the offense and his character.

We conclude that the trial court erred in considering the type of weapon and ammunition that Biddinger used in committing the instant offense as an aggravating circumstance. We also conclude that the trial court should have considered Biddinger’s PTSD to be a mitigator. But because the trial court sentenced Biddinger to the minimum amount of executed time permitted by the plea agreement—ten years—we do not have authority to reduce his sentence. Consequently, we affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, April 25, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Union County Court rennovation moving along

Despite the brief AP story that appears today in the Indianapolis Star, headlined "Courthouse renovation project is delayed," work looks to be moving along at the Union County Courthouse.

This story from the Richmond Palladium-Item, written by Pam Tharp, including this great photo, may give a better picture of the progress. It begins:

LIBERTY, Ind. -- Sometimes it pays to be a packrat.

During the Union County Courthouse's 116-year history, custodians never threw anything away.

So when carpenters needed pieces of Victorian corner trim for a new doorway cut between courthouse offices, they found it in the attic.

"We used every piece we found," said Eric Mullen, field superintendent for Oberle, the general contractor renovating the 1890 courthouse. "We found a piece of railing that we think was left over from the original construction because it was never stained. It matched the gate used in the auditor's office."

Union County's $3.13 million project, which began last July, is a little behind schedule. Offices won't return to the courthouse until July 10, instead of the end of May as planned. The county will owe about six more weeks of rent to three different landlords for the extra time.

Earlier ILB stories on the Courthouse rennovation: 10/27/05 and 12/20/05.

Posted by Marcia Oddi on Tuesday, April 25, 2006
Posted to Indiana Courts

Ind. Law - "Daniels wants Toll Road foes to post billions"

"Daniels wants Toll Road foes to post billions" is the headline to this story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – Gov. Mitch Daniels has asked a St. Joseph County judge to require citizens challenging the 75-year lease of the Indiana Toll Road to post a $3.8 billion surety bond to protect the state from possible economic losses.

“A handful of protesters must not be permitted to derail or delay the execution of any projects authorized by Major Moves, particularly the leasing, funding and construction of the Indiana East/West Tollway, with a meritless and harassing lawsuit,” the Thursday filing said. * * *

The state’s petition asks the judge to certify the legal action as a “public lawsuit,” which under Indiana law provides an expedited process for suits that seek to interfere with major public works projects “where time is of the essence to public officials, private industry and the citizens of Indiana alike.”

If the judge agrees, according to the petition, the burden is on those challenging the public improvement project to either demonstrate in the beginning of litigation that their lawsuit has merit or post a bond sufficient to protect the state from any losses.

A bond is essentially a legal promise – backed by a bank or investors – to pay that amount should the plaintiffs fail in their efforts to stop the lease and the state is damaged financially.

“There’s a lot at stake here,” said Daniels’ press secretary Jane Jankowski. “Thousands of jobs. Hundreds of road projects. It’s important for us to keep moving ahead.”

Although the lease has been signed, the financial part of the deal isn’t expected to close until June 30. That is when Statewide Mobility Partners – a Spanish-Australian consortium – would give Indiana the $3.8 billion to use for highway projects over the next 10 years.

Martin DeAgostino of the South Bend Tribune writes:
The lawsuit says Major Moves violates many constitutional and statutory provisions, including a requirement that all proceeds from public works be used to retire the public debt.

Judge Michael P. Scopelitis has scheduled a May 11 hearing on the state's motion, filed by lawyers for Daniels, state Treasurer Tim Berry, the Indiana Department of Transportation and the Indiana Finance Authority, which owns the Toll Road. * * *

According to a lawyer not involved in the case, the state's use of the public lawsuit statute is an expected response when plaintiffs challenge publicly funded construction projects.

But Jon Laramore, former legal counsel to Govs. Frank O'Bannon and Joe Kernan, said Scopelitis could let the suit proceed without a bond requirement if the plaintiffs "show a certain degree of merit."

According to the motion seeking the bond, the plaintiffs must demonstrate "a substantial issue" to be tried as well as facts that would entitle them to a temporary injunction to block the Toll Road lease.

The motion repeatedly asserts that the plaintiffs cannot make either case, but it presents no arguments to support those assertions. State officials have previously said Major Moves received careful legal scrutiny before it was drafted and presented for approval to the Indiana General Assembly.

According to Laramore, the immediate questions about the suit's merits will turn on two issues: imminent harm to the plaintiffs if the lease proceeds, and the lawsuit's likelihood of success.

He said likelihood of success is a common legal phrase that does not require a full demonstration by plaintiffs of the merits of their case. But he said the court will attempt to determine whether the facts as alleged would indeed constitute a violation of state law.

"A plaintiff in our system is not required to marshal all its evidence in order to file a case," Laramore said. "The court won't put the plaintiff to its proof yet."

Yesterday's Indianapolis Star web story (or scroll down to next entry) is expanded in today's paper, and concludes:
The bench of attorneys defending the Toll Road lease deal for the state is deep. The Indiana attorney general's office is involved, along with an attorney from the South Bend firm of Jones Obenchain and five attorneys from Indianapolis' Ice Miller firm.
Check here for a list of earlier ILB entries concerning the toll road.

Posted by Marcia Oddi on Tuesday, April 25, 2006
Posted to Indiana Law

Monday, April 24, 2006

Ind. Law - More on: Suits filed against Toll Road deal

Michele McNeil writes for the Indianapolis Star website this afternoon, in a story to be expanded in print tomorrw:

In a legal argument filed last week in St. Joseph Superior Court, Daniels' attorneys have asked a judge to require the citizens who've filed suit to fork over up to $3.8 billion as a bond. That's how much the state stands to gain when the Toll Road lease is complete on June 30.

The legal document asks the judge to declare this suit a "public lawsuit," which places more of a burden on the citizens who are suing. The state law governing public lawsuits allows the defendants -- in this case the Daniels' administration -- to ask for a bond to cover damages and costs incurred because of the suit. If the citizens can't post the bond assuming it's ordered by the court, then the lawsuit would be dismissed.

Of course, this would mean there would no way to challenge the 2006 law authorizing the "lease" of the Toll Road, or to determine whether there is in fact a legal contract. It also might mean that that the State is saying the unless the deal closes on June 30th, it is off. Interesting. The ILB has not seen the State's filing.

For background, see this ILB entry from April 13, 2006, and this one from April 14th.

Posted by Marcia Oddi on Monday, April 24, 2006
Posted to Indiana Law

Ind. Decisions - Former New Castle doctor's felony theft convictions stand

The Fort Wayne News-Sentinel reports today:

A former New Castle doctor convicted on 20 felony counts of theft will not have the charges amended to misdemeanors, the Indiana Court of Appeals ruled.

The appeals court agreed with a Henry County court's decision to uphold the felony convictions against Mark Albrecht.

Albrecht was convicted 10 years ago for stealing more than $60,000 from his elderly mother while he was empowered as her attorney. Prosecutors say Albrecht spent the money on a Rolex watch, landscaping for his house and to lease a convertible car.

He received a suspended sentence.

Albrecht filed a request last July to have his sentence amended to change the felony counts to misdemeanors. He said his felony record made it difficult to complete his medical residency and advance his medical career, although he has maintained his license.

Henry Circuit Court Judge Mary Willis denied his request for an amended sentence, and Albrecht filed the appeal with the state.

The appeals court last week said Albrecht failed to establish any errors made by the local court. Justices said even though state code allows a court to reduce a conviction from a felony to a misdemeanor, it is a discretionary decision of the judge.

According to the AP story, Judge Barnes wrote:
"Albrecht's crimes were not an isolated incident of criminal misconduct," wrote Judge Michael Barnes in the ruling. "That Albrecht's felony convictions have prohibited him from achieving as successful a career as he would like is insufficient to show that the trial court abused its discretion in denying his petition."
Unfortunately, the 4/17/06 decision in Mark Albrecht v. State of Indiana is not available online, because the Appeals Court panel stamped it "not for publication." (You can see it listed as the fourth case on last week's NFP list.)

Posted by Marcia Oddi on Monday, April 24, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues three today

Joe M. Cummins v. Brent R. McIntosh, M.D., a 17-page opinion, involves a medical malpractice claim and a release entered into in other litigation. Judge Riley concludes:

Factual issues exist regarding the intent behind the release, and therefore, the trial court erred in finding as a matter of law that the release barred Cummins’ claim against Dr. McIntosh. The trial court’s grant of summary judgment in favor of Dr. McIntosh is reversed, and this case remanded to the trial court for further proceedings.
In Donna Forler v. State of Indiana, an 11-page opinion, Judge Barnes concludes:
We conclude that the trial court properly admitted the starting fluid can label into evidence as proof that Forler possessed ether, pursuant to Indiana Evidence Rule 803(17). This evidence, combined with her unchallenged possession of pseudoephedrine or ephedrine and other indicia of methamphetamine manufacturing, is sufficient to support her conviction under Indiana Code Section 35-48-4-14.5(e). We affirm.
In James D. McCutchan and Lisa D. McCutchan v. David R. Blanck and Karen L. Blanck, an 18-page opinion, Judge Riley concludes:
Here, the McCutchans clearly had a reasonable opportunity to inspect the residence, and did so with the aid of Cornerstone before purchasing. If the McCutchans had desired a more thorough inspection of the sewage system, they should have contracted for it prior to the purchase of the residence. At this point however, our established case law merely requires the buyers to be provided a reasonable opportunity, not a one hundred percent guarantee. As the McCutchans took advantage of this opportunity, they no longer relied on the Blancks’ representations regarding the condition of the sewage field. Accordingly, summary judgment was properly granted.

CONCLUSION. Based on the foregoing, we conclude that the trial court properly granted summary judgment as a matter of law in favor of the Blancks.

Posted by Marcia Oddi on Monday, April 24, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Courts ordering Hispanics to learn English

"Courts ordering Hispanics to learn English" is the headline to an AP story this morning on the Indianapolis Star site. Some quotes:

FORT WAYNE, Ind. -- Some Indiana judges are handing down sentences that include mandatory English classes for offenders who don't speak the language.

While the idea has quietly gained popularity, it's nothing new, The Journal Gazette reported.

It's been happening in Noble County for at least 10 years, said Stacey Beam, the county's chief of probation, and in the past five or six years, it's become routine.

Generally, anyone placed on probation who requires the use of an interpreter will be ordered to take English classes, said probation officer James Hunt, who deals with most of the department's 50 Spanish-speaking clients. * * *

Similar sentences have drawn fire from the Hispanic community in other states, including Florida and Tennessee. But Fran Quigley, executive director of the American Civil Liberties Union of Indiana, said ordering offenders to a class is different from demanding that they learn a language.

When used appropriately, the sentence is no different from ordering a defendant to work toward earning a GED, and within a judge's rights, he said.

Sometimes offenders also are ordered to attend classes that teach national and state laws, Noble County Prosecutor Steven Clouse said.

Kosciusko County will start offering a similar class in Spanish next month, said Marsha Streby of the Bowen Center in Warsaw. The content was designed by a local attorney and includes information about domestic violence and substance abuse.

"Very few of the people that have gone through the class have had probation violations," Streby said.

Posted by Marcia Oddi on Monday, April 24, 2006
Posted to Indiana Courts

Ind. Law - Two lawsuits take aim at State

The AP's Mike Smith had a column this weekend in the Fort Wayne News Sentinel that began:

Another week, another potentially costly lawsuit against the state.

When opponents of Gov. Mitch Daniels' "Major Moves" highway law filed a lawsuit against it two weeks ago, they said they hoped to raise enough money to take the case all the way to the Indiana Supreme Court.

Even if they first lose in St. Joseph Superior Court, they'll get another shot before the Indiana Court of Appeals. And if they lose there, the state Supreme Court will be forced to at least consider whether to take up the case. The lawyering could cost the grassroots group $200,000 or more, its attorneys have told them.

The state got hit with another lawsuit last week, this one by a group with deep pockets - the Indiana State Teachers Association - one of the strongest, richest lobbying organizations in the General Assembly.

Their legal claim is that Indiana is violating its constitution by failing to provide enough money for all children to have a fair chance to learn. More specifically, it says that the state is not adequately funding schools so they can meet academic standards and performance mandates placed on them.

(The filing of both cases has been covered in detail in earlier ILB entries.)

Posted by Marcia Oddi on Monday, April 24, 2006
Posted to Indiana Law

Sunday, April 23, 2006

Courts - Kentucky courts wrestle with jury questions

"Courts wrestle with jury questions: Some say they bog down, disrupt process in Kentucky" is the headline to a comprehensive story by Jason Riley in today's Louisville Courier Journal. Here is a snippet:

Jurors asked 69 questions during the [accused serial rapist Bryce Bonner] trial before convicting him of raping and kidnapping two women and unlawfully imprisoning a third woman and her child. They recommended a sentence of 122 years in prison.

Foreman Penny Thielmeier said the questions helped jurors feel more comfortable about deciding Bonner's fate.

"Not being able to ask those questions would have left a lot of stones unturned," she said.

The questions "helped us prove it beyond a reasonable doubt."

But critics, including some judges, say a slew of questions from the jury can cause difficulties.

"Everybody becomes Perry Mason, and that becomes a problem because all you are doing is answering questions," most of them irrelevant, said Circuit Judge Geoffrey Morris, who doesn't tell jurors they are allowed to ask questions, but doesn't forbid them, either.

Unlike some states, Kentucky allows jurors to take notes and question witnesses in both civil and criminal proceedings, provided they submit the questions in writing to the judge after the prosecution and defense have finished with their questioning.

The judge then decides, with advice from attorneys, whether to allow them.

While five states ban jury questions in criminal trials, the rest leave the decision up to judges.

But most judges choose not to allow them, according to an ongoing study by the National Center for State Courts.

Only 15 percent of judges permitted jurors to write questions for witnesses in criminal trials, based on 8,200 returned questionnaires.

All 13 of Jefferson County's circuit judges say they permit written questions -- but to differing degrees. Some, like Morris and Lisabeth Hughes Abramson, don't encourage it.

Abramson said she once had a trial where one juror asked 40 to 50 questions.

"It slowed (the trial) down tremendously," she said. "And half of the questions were totally irrelevant."

Others, like Judge Judith McDonald-Burkman, who presided over the Bonner trial, tell jurors from the outset that they may question witnesses.

"It's better for a jury to have more information than not," McDonald-Burkman reasoned.

What about Indiana? See this Nov. 28, 2004 ILB entry, including this quote from an AP story of that date:
A new rule that takes effect in January could alter the dynamics of jury trials in Indiana by permitting jurors to freely discuss elements of a case before they begin deliberating.

Combined with another recent change that allows jurors to ask questions of witnesses, the new rule could lead to shorter deliberation times for Hoosier juries.

At a minimum, jurors might ask witnesses even more questions. And, having sorted out some of the trial's issues before final arguments, they might spend less time deliberating verdicts, judges predict.

The change applies both to criminal and civil cases and is mandated by a new jury rule adopted by the Indiana Supreme Court on Sept. 30 that takes effect Jan. 1. Under the old rule, jurors are ordered not to discuss the case until they start deliberating.

But trials can last days or weeks, and evidence may include technical testimony from expert witnesses. Throughout that time, jurors must keep silent about the case, both inside and outside court.

The change will mean jurors can talk about evidence among themselves in the jury room, as long as they reach no conclusion about a verdict. * * *

The new rule comes on the heels of another rule change two years ago that spelled out jurors' right to ask witnesses questions. Since then, most trial juries pose at least a handful of questions, sometimes more, judges say.

In the current format, a juror individually thinks of a question, jots it down on note paper and passes it to the judge. Starting Jan. 1, jurors might draft questions as a group in the jury room, depending on when trial recesses are taken.

Here are the Indiana Jury Rules.

Posted by Marcia Oddi on Sunday, April 23, 2006
Posted to Courts in general | Indiana Courts

Courts - "A Kansas Supreme Court justice has removed himself from future discussions of the school funding case"

"A Kansas Supreme Court justice has removed himself from future discussions of the school funding case" was the headline to this story Friday in the Wichita Kansas Eagle. Some quotes:

TOPEKA - Kansas Supreme Court justice Lawton Nuss will no longer take part in deliberations over school funding, the court said Thursday.

His removal, at his request, resulted from a lunch meeting with two senators on March 1 that included a discussion of school finance, court spokesman Ron Keefover said.

Sometime after the meeting, Keefover said, "He decided he should recuse himself, and the court agreed."

The Legislature remains under a court order to increase school funding, with emphasis on students at risk of failing. The issue has dominated legislative deliberations since the court ruled in January 2005 that the school finance law violates the Kansas Constitution.

Lawyers on both sides of the case said Nuss' removal likely will have little impact on the case. The court's decision was unanimous, and four votes are needed to prevail whether six or seven justices are deciding a case.

"I doubt this changes the dynamics but if it does, we'll probably never know it," said Alan Rupe of Wichita, lead lawyer for the plaintiff school districts that sued the state in 1999.

The story built on Saturday:
TOPEKA - An investigator from Attorney General Phill Kline's office has interviewed state senators about potential ethics violations by Supreme Court Justice Lawton Nuss, four senators said Friday.

Nuss removed himself Thursday from the ongoing litigation over school finance after informing other justices that he spoke briefly about the case with Senate President Steve Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina, on March 1.

Late Friday, Kline declined to comment on Nuss' recusal, but added, "I would certainly say investigation is not a word that would apply."

The senators said they gave sworn depositions.

House Speaker Doug Mays, R-Topeka, said he intends to assign a special committee with subpoena powers to probe the issue when lawmakers return Wednesday for the Legislature's wrap-up session. * * *

The seven-year-old lawsuit over school funding has dominated the Legislature's attention since the Supreme Court ruled the state's school funding law unconstitutional in January 2005, upholding a trial court decision.

The court retained jurisdiction in the case after ruling that additional funding lawmakers approved during a special session last summer was insufficient.

Sen. Jim Barnett, R-Emporia, said he requested the investigation in a letter to Kline late last month. He said comments Morris made to other senators led him to believe that "back-door communications" were taking place between the court and some lawmakers. * * *

Sen. Pat Apple, R-Louisburg, also was interviewed. He said his understanding from Morris -- based on a conversation with "someone at court" -- was that the justices would look favorably at a funding plan that provides in excess of $400 million in new money and has bipartisan legislative support. A multi-year approach likely would win court approval, he was told.

Apple said the investigator never mentioned Nuss. He assumed the inquiry was about a court employee.

The Lawrence Kansas Journal-World reported Saturday:
Topeka — A two-pronged inquiry appeared in progress Friday into what was said between Kansas Supreme Court Justice Lawton Nuss and two influential lawmakers about the pending school funding lawsuit.

House Speaker Doug Mays said he would likely convene a special legislative investigation, in which powerful lawmakers and justices could be called to testify under oath.

“Public confidence in the judiciary is at stake,” said Mays, R-Topeka.

And several senators confirmed that they have been questioned in the Nuss matter by investigators for Atty. Gen. Phill Kline’s office.

On Thursday, Nuss announced he would remove himself from future proceedings in the school finance lawsuit after it was disclosed that he spoke about the pending case while having lunch on March 1 with Senate President Stephen Morris, R-Hugoton, and Sen. Pete Brungardt, R-Salina. * * *

It is a basic tenet of ethics that judges are not supposed to have communications with interested parties in cases outside the courtroom. Legal scholars and many legislators, both attorneys and non-attorneys, have expressed shock that Nuss would discuss with two legislators the most high-profile case before the court.

The Kansas Supreme Court has declared the school funding system unconstitutional because it shortchanges all students, especially poor ones. After a special session last summer, the Legislature added $290 million to the $3 billion system.

The court has said more funding is needed in line with a cost-study analysis. Lawmakers return Wednesday for a wrap-up session to debate school finance and other issues.

News of the Nuss-Morris-Brungardt lunch added to the suspicions of many lawmakers who have complained about alleged “back-channel” discussion between the court and legislators sympathetic to the lawsuit. * * *

The incident has thrown light upon the fact that it is not uncommon for key lawmakers to meet with justices, but it is usually over budgetary issues, officials said.

Mays said he has had lunch at least twice with Chief Justice McFarland, whom he said tells funny stories and then lobbies for funding for the court system.

“Never in my wildest dreams did I ever think a justice and legislator would meet and talk about a pending case,” he said.

These reports are somewhat reminiscent of the reports from Pennsylvania in February, complied in this ILB entry headed "Astonishing stories of collusion between Pennsylvania's legislature and its Supreme Court."

Background. This August 10th, 2005 ILB entry quotes from a Kansas City InfoZine story (still available here) that begins: "In the wake of last year's costliest and possibly nastiest elections ever for state Supreme Court justices, a few states are drawing up changes to curb threats to the impartiality and fairness of their legal systems."

See also this Dec. 6, 2005 ILB entry headed "Voters, activists put heat on judges: Interest groups, playing to voter resentment, mount TV attack ads; more on Pennsylvania judges."

Posted by Marcia Oddi on Sunday, April 23, 2006
Posted to Courts in general

Ind. Courts - "Judge also enjoys sitting on piano bench"

"Judge also enjoys sitting on piano bench" is the title to Russ Pulliam's column today in the Indianapolis Star. It begins:

If it weren't for the law, [Marion County] Superior Court Judge Mark Stoner might be a poverty-stricken, starving musician.

Yet if it weren't for his music, Stoner also might have been a poverty-stricken deputy prosecutor in his early days as a lawyer.

Judge Stoner still keeps his music close at hand. He is one of the top-notch freelance pianists and organists in town, playing for churches and synagogues. He keeps a practice piano in his office, next to his judicial chambers. It has a synthesizer, four-track recording and harpsichord.

(As reported in the entry below, Judge Stoner received a 95.2 percent approval rating in the Indianapolis Bar Association poll.)

Posted by Marcia Oddi on Sunday, April 23, 2006
Posted to Indiana Courts

Ind. Gov't. - Former IDEM Commissioner has new job

The Indianapolis Star's Sunday column, Behind Closed Doors, reports today:

It's old home week in Lawrence

Lawrence City Hall has the feel these days of a halfway house for refugees from the administrations of Democratic governors Frank O'Bannon and Joe Kernan.

Mayor Deborah Cantwell, a Democrat, announced last week she had hired another former state department head displaced when Daniels took over the governor's office in 2005.

The city's new public works director will be Lori Kaplan, who was director of the Indiana Department of Environmental Management under O'Bannon and Kernan. She replaces Glenn Lawrence, who was director of the Indiana Department of Administration and then executive director of the Indiana Gaming Commission before going to Lawrence after Daniels' election.

Kaplan will join two other Democratic refugees in Lawrence City Hall. Former Indiana Department of Natural Resources Director John Goss serves as the city's economic development director. Matt Hopper, who was deputy director of the DNR, is now Lawrence's deputy mayor.

Kaplan was IDEM Commissioner for nearly eight years. Almost a year to the day ago (April 21, 2005) she sent out an announcement to IDEM staffers that read in part:
It is with great pleasure that I am writing to you today to inform you of my new position. * * * I am very excited to announce that I will begin my new position as President of the Charter School Association of Indiana on May 31, 2005.

Posted by Marcia Oddi on Sunday, April 23, 2006
Posted to Indiana Government

Ind. Courts - Marion County judicial election

The Indianapolis Star today has a story by Richard D. Walton on the Marion County system of electing judges. Some quotes:

The May 2 judicial primary election in Marion County will produce 20 winners and likely result in a general election in November that has no losers.

Such is the county's Rube Goldberg-like system for choosing Superior Court judges, a blend of party politics and safeguards to keep campaigning to a minimum.

Marion Superior Court Judge Robert R. Altice Jr. calls it a "hybrid" system that provides for party input while giving voters a say. But others say it confuses voters unfamiliar with the glut of candidates and injects politics into what should be a decision about judicial qualifications. * * *

Unlike the rancorous campaigns sometimes waged by candidates seeking other offices, judicial races in Marion County tend to be quiet affairs. This may be due to the continuing efforts to make the local bench bipartisan.

Marion County has 32 Superior Court judges. They face the voters in staggered years. For example, the Republican and Democratic parties each have selected nine candidates in the primary. Of the 18 candidates who would run in the fall, the top 17 vote getters were elected. It was dubbed "the odd man out" rule.

A new law, however, changes the math. With four new judgeships to be phased in over three years, each party this primary can select nine candidates. The parties' chairmen then select a 10th contender.

This November, 20 judges will be elected, which means -- barring a third-party upset -- all 20 of the major-party candidates will be victorious. Eventually, the local bench could be equally divided between the two parties. * * *

By contrast, some states select judges in one or another version of a "merit" system. Instead of being elected, judges are chosen by nominating panels, which proponents say are better able than voters to weigh the candidates' qualifications. Judges are then appointed, typically by the governor.

That's how Indiana selects its Supreme Court justices. While they periodically appear on the ballot, it is not for re-election. People cast an up-or-down vote on whether the jurist should be retained.

[Jesse Rutledge, a spokesman for Justice at Stake, a Washington, D.C.-based group that aims to keep U.S. courts fair and impartial] says 16 states appoint Supreme Court justices with subsequent retention votes; 12 use appointment with no retention provision; and 22 have competitive elections.

In Marion County, the parties "slate" the candidates they want before the primary. That translates into party backing -- a huge advantage.

But those who favor elections argue that even where judges are selected by panels, politics can be involved.

A side-bar to the story gives the results of the recent Indianapolis Bar Association survey:
A survey of local attorneys by the Indianapolis Bar Association asked the lawyers which candidates for Marion Superior Court judge they would recommend. Here are the results. The numbers show the percentage of respondents who recommended each candidate:

Michael D. Keele (96.6 percent).

Robert R. Altice Jr. (96 percent).

Mark E. Stoner (95.2 percent).

Heather A. Welch (92.5 percent).

Carol J. Orbison (90.4 percent).

Grant W. Hawkins (90 percent).

William J. Nelson (88.4 percent).

Sheila A. Carlisle (88 percent).

Linda E. Brown (85.9 percent).

Reuben B. Hill (82.5 percent).

Scherry "S.K." Reid (82.2 percent).

Barbara Collins (80.6 percent).

Clark H. Rogers (79.6 percent).

Thomas J. Carroll (74.9 percent).

John F. Hanley (71.9 percent).

William E. Young (70.1 percent).

William R. Fatout (67.2 percent).

Jose Salinas (61.4 percent).

Becky Pierson-Treacy (58.5 percent).

Karen Celestino-Horseman (44 percent).

LilaBerdia Batties (29.6 percent).

For more, see this ILB entry from April 19th.

Posted by Marcia Oddi on Sunday, April 23, 2006
Posted to Indiana Courts

Saturday, April 22, 2006

Ind. Courts - Supreme Court suspends two NW Indiana lawyers

The Munster (NW Indiana) Times reports today:

INDIANAPOLIS | The Indiana Supreme Court has disciplined two local attorneys.

James Kapitan, of Highland, has been suspended indefinitely for failing to cooperate with an investigation by the Supreme Court Disciplinary Commission.

The nature of the investigation was not made public.

John Peters, of Portage, will serve a 30-day suspension beginning May 2, after agreeing to a disciplinary settlement with the court. Peterson failed to file proper tax forms after an out-of-state client added him to an estate and named him sole beneficiary in 1999.

Posted by Marcia Oddi on Saturday, April 22, 2006
Posted to Indiana Courts

Ind. Courts - Two Lake judges fare poorly on bar survey

John Byrne of the Gary Post-Tribune reports today:

Lake County Bar Association ratings of county judges and candidates for the bench are out, and they don’t look good for Jesse Villalpando’s sparring partners.

Eduardo Fontanez and Stanley Jablonski, who are running against incumbent Villalpando for the Democratic nomination for Lake Superior Court Division Four in Hammond, got the lowest scores in all four categories among 11 people rated by bar association members. * * *

Judge Julie Cantrell, a frequent Villalpando antagonist, rated just above Jablonski and Fontanez in all four categories.

Michael Pagano, Cantrell’s magistrate, got the highest scores across the board.

Villalpando’s scores were a mixed bag, mostly in the middle of the pack.

He fared worst in “character,” finishing seventh of the 11.

Fontanez said he puts little stock in the results.

“Stanley Jablonski and I at the bottom, with Judge Cantrell just ahead of us? That sounds to me like Judge Villalpando was out working the phones to make sure his friends filled out their questionnaires,” Fontanez said. “That says more about Judge Villalpando’s politicization of the bench than it does about my qualifications.”

Posted by Marcia Oddi on Saturday, April 22, 2006
Posted to Indiana Courts

Friday, April 21, 2006

Ind. Courts - Hamilton Judge hopefuls discuss plans and expectations

The Noblesville Daily Times reports today, in a story by Rob Borders that begins:

One Republican candidate for judge for the newly created Hamilton County Superior Court 6 made it very clear how he would like to see overcrowding in the county jail handled: build more jail space.

That was the idea Larry Sells presented to audience members Thursday in a candidate forum sponsored by the League of Women Voters at the Hamilton County Government and Judicial Center.

“No dangerous individual should be released to the public, so the best solution is to build more jail space,” said Sells, who has 19 years experience as a deputy prosecutor in Marion County. “It will cost us, and it is a sad fact of life, but we need to spend money to build more space.”

The county jail currently has capacity for 292 inmates, reported candidate Will Greenaway, who indicated the first quarter of 206 showed an average of 320 inmates a day.

Neither Greenaway, who serves as the master commissioner for Hamilton County Superior Courts 2, 4 and 5, nor candidate Gail Bardach, Carmel City Court judge since 1993, mentioned the need for more jail space. But both mentioned better use of programs currently in place.

“There are now a lot of initiatives in place,” Bardach said. “The community corrections program helps people earn the right to get back into society and not fall in lock and key.”

Greenaway mentioned the community corrections program as well as the work release program to the audience, which included N. Frederick Eggeson, the Democrat candidate. Eggeson is running unopposed in the primary and will run against the Republican winner of the May 2 primary election.

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending April 21, 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 April 21, 2006.

There are 34 Court of Appeals cases listed this week, and one Tax Court case.

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to NFP Lists

Law - 6th Circuit rules Ohio's punch-card and central-count optical scan voting systems are unconstitutional

The 6th Circuit opinion is Stewart v. Blackwell, a 47-page decision issued today. Here is a story from the Toledo Blade that begins:

COLUMBUS — Ohio's continued use of punch-card ballots like those called into question after the 2000 presidential election in Florida discriminates against African Americans whose votes are less likely to be counted, a federal appeals court ruled this morning.

The 2-1 ruling by the Cincinnati-based Sixth Circuit Court of Appeals may soon be moot since, as of the May 2 primary election, no voter in Ohio should be casting a punch-card ballot.

"Hopefully, the state will do this year what the 6th Circuit is telling them, which is, in effect, to get rid of its punch-card and central-count optical-scan systems,'' said Dan Tokaji, an Ohio State University law professor. He argued the case on behalf of the American Civil Liberties Union of Ohio and plaintiff voters from Sandusky, Hamilton, Montgomery, and Summit counties.

"Every year for the past three years, the state has said it would replace those systems,'' he said. "Every year, the state has said one thing and done another. I hate to sound like Thomas, but I'll believe it when I see it."

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to General Law Related

Ind. Decisions - Transfer list for week ending April 21, 2006

Here is the Indiana Supreme Court's transfer list for the week ending April 21, 2006.

(There was no April 14 list.)

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, April 21, 2006
Posted to Indiana Transfer Lists

Ind. Law - No luck in obtaining ISTA lawsuit

The ILB is sorry to report it has had no luck in obaining a copy of the ISTA lawsuit filed yesterday for posting.

Although the Gary Post Tribune story this morning reported that the lead attorney, Michael D. Weisman, of Weisman & McIntyre, PC, Boston, was handing out copies of the complaint at the news conference yesterday, the ILB's e-mail to his firm's "contact us" (here) bounced immediately. And an e-mail sent earlier today to the ISTA's Dr. Brown has not been acknowledged. So it looks like we are out of luck, at least for now.

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to Indiana Law

Ind. Law - More on "Info-hungry citizens making a difference in government openness"

"Win a battle, lose the war, or NOT" might be the motto of Ryan Nees, Kokomo student who successfully sued the mayor of Kokomo to turn over the mayor's e-mail list as a public record, only to have the General Assembly pass a law saying that in the future such a list is protected.

But since then Ryan has been awarded the $11,000 in attorney fees his suit racked up, plus become a national figure, a poster boy for public access, as indicated by this story today in the Washington Post, by local AP reporter Ken Kusmer. Some quotes from the Post story:

INDIANAPOLIS -- In nine months, Ryan Nees has gone from a precocious, 15-year-old filmmaker to an open records activist whose latest foray cost the city of Kokomo more than $11,000.

Nees won that amount in attorney fees this week after the city lost a lawsuit he brought to force Kokomo Mayor Matt McKillip to turn over the e-mail addresses of subscribers to the city's electronic newsletter. Nees sued under Indiana's open records law after receiving campaign messages upon subscribing to the newsletter.

"I didn't so much become an advocate for public access until I was denied," said Nees, who will join journalists and advocates at the national Freedom of Information Summit, which runs Friday and Saturday in Indianapolis. "There was a certain amount of indignation there." * * *

Nees, now a 16-year-old sophomore at Western High School outside Kokomo, was seeking information last summer on a city disciplinary hearing that he documented in a student film about censorship. Getting those records was no problem, but when he went after the list of the 1,400 e-mail subscribers _ which he suspected the Republican mayor was using for political purposes _ the young Democratic activist met resistance.

He enlisted the state's public access counselor, Karen Davis, and took the mayor to court. On Monday, Judge Lynn Murray ordered the city to pay the full amount of fees sought by Nees' attorney.

The victory was bittersweet. The Indiana General Assembly has also amended state law to let government officials withhold lists of e-mail addresses.

Davis said people like Nees are making a difference. "Most people would think of a 16-year-old as pretty powerless," she said. "It really is amazing what one individual did in that one case."

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to Indiana Law

Ind. Courts - RSS feeds to the Indiana Supreme and Appeals Court opinions

Michael Ausbrook of INCourts has created RSS feeds for Indiana Appellate decisions. That is great; it is something I've been wishing for for a long time. See his entry here.

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to Indiana Courts

Ind. Courts - "Artists to hang a tribute to history in courthouse"

"Artists to hang a tribute to history in courthouse" is the headline to a story today in the Terre Haute Tribune Star, from the Hendricks County Flyer (Avon, Ind.). Lynn Hamilton writes:

DANVILLE, Ind. — A depiction of the former county courthouse will soon hang in the southeast portion of the Hendricks County Courthouse rotunda here. Artists Kerry Trout and Judy Krebs recently completed a 4x9-foot mural of the past centerpiece of the downtown square.

Together, the women have owned K&J Custom Murals on the square for about four years. They do faux finishing, furniture, portraits, teach adult art classes, and more, but both agree that their favorite projects are murals.

“We have other muralists call and ask us for advice,” Krebs said. “We have a reputation for our murals.”

So, it was seemingly only natural that when Betty Bartley of The Republican newspaper of Danville came up with the idea to place a mural of the old courthouse in the current courthouse, Trout and Krebs were asked to do the job. * * *

Krebs said Bartley told Bob Carroll, who works for the engineering department, about her idea for a mural and it was presented to the Hendricks County Commissioners. The commissioners approved it and it went from there, she added.

“We had an old history book [A Pictorial History of Hendricks County Indiana, by Linda Balough and Betty Bartley] that we got the picture from,” Trout explained. * * *

Trout said the mural features the second courthouse, which had replaced the log cabin that once served as the courthouse. The current courthouse was built in 1912, she added, after the second one suffered roof damage.

“The vantage point to the viewer is actually standing on the corner of Washington and Main streets,” Trout said. * * *

The courthouse mural, which has been hanging in their studio for a few weeks, is already causing a stir among Danville citizens, they said. Visitors have already shared stories from the past after seeing it.

“I think it’s going to bring a lot of enthusiasm because it has already with people coming in here talking about it,” Krebs said.

For more information about Krebs and Trout’s work, visit their website.

See a photo of the former county courthouse mural here, via the TribStar.

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to Indiana Courts

Environment - ProLiquids bankruptcy hearing continued

"ProLiquids bankruptcy hearing continued: IDEM notifies firm it will likely face legal enforcement action" is the headline to this story by Steve Zabroski in today's Munster (NW Indiana) Times. Some quotes:

HAMMOND | An illegally operating north side waste treatment firm may have dodged a bullet Thursday, but there are plenty more big guns pointed in its direction.

ProLiquids Environmental Services continues to accept truckloads of waste at its 3 141st St. facility, despite the revocation last month of its state operating permits after an inspection discovered numerous hazardous waste violations there.

A hearing in federal bankruptcy court scheduled for Thursday afternoon -- which could have forced the company to immediately close with the liquidation of all its assets -- was continued to May 19.

But after an April 12 inspection at the site disclosed further illegal actions, the Indiana Department of Environmental Management notified ProLiquids on Wednesday that the firm would likely face legal enforcement action.

And the U.S. Environmental Protection Agency wants to know what happened to drums of hazardous waste found on the property during a joint EPA, IDEM and Hammond Department of Environmental Management inspection in September 2005.

See also this Sept. 5, 2004 ILB entry (last item) and this one from Aug. 20, 2004 (third item).

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to Environment

Ind. Gov't. - Still more on: ISTA to sue over school funding

"Teachers sue state, alleging inequality: School funding not fair to all children, suit says" is the headline to a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

A battle expected to reach the Indiana Supreme Court began Thursday when the Indiana State Teachers Association officially filed a lawsuit challenging the state’s funding of education as unconstitutional.

The move had been rumored for months, and Indiana joins 45 other states where proponents have sought more money for education.

The lawsuit claims the state’s school funding formula does not provide the resources necessary for all Hoosier schoolchildren to have a fair chance to learn.

Children who have specifically fallen behind are those living in poverty, minorities, kids with disabilities and those trying to learn English as a second language.

The union points to ISTEP+ scores that show a decided achievement gap among these groups.

“The proof is in the pudding. We have too many children who are being unsuccessful in school,” said Michael Weisman, the Boston attorney hired by the teachers association to fight the case.

He went on to say the group isn’t seeking a specific dollar amount. Instead, he wants the state to make an honest assessment of what resources are needed for students to meet the high standards set by the “grown-ups.”

Weisman won a similar challenge in Massachusetts, and said he expects the Indiana case to take years – likely ending at the state Supreme Court level. He did, however, say the plaintiffs are willing to work toward a compromise to avoid a trial. * * *

The technical basis for the challenge is the education clause of the Indiana Constitution, which says knowledge and learning shall be diffused generally through the community and that the General Assembly has a duty to provide a “general and uniform system” of schools.

Teachers’ union executives said they had expected state officials to provide adequate funding after passing rigorous standards and accountability laws in 1999, but the money hasn’t followed.

“We think the only piece that has been left out – and we had hoped that the legislature and the Indiana (Education) Roundtable would have stepped up to the challenge and they have not – is the funding and providing the resources for all children,” said Warren Williams, executive director of the ISTA.

Lesley Stedman Weidenbener of the Louisville Courier Journal reports:
Indiana's school funding system is "arbitrary and not rationally related" to the educational requirements of needy or disabled children, a lawsuit filed yesterday said.

That's a violation of the Indiana Constitution, the suit filed by the Indiana State Teachers Association alleges. * * *

The suit doesn't seek a specific amount of state spending to educate Indiana's 1 million students.

Instead, the association's attorney, Michael Weisman of Boston, said it asks Marion Superior Court to require state officials to determine what funding is necessary to ensure that all students in Indiana achieve to their full potential, regardless of whether they speak English or are poor, in special-education classes or are minorities.

Current funding, he said, is inadequate.

"The state says to children that you have to be successful on the ISTEP (standardized test) and there are no ifs, ands or buts about it," he said.

"The grownups are not held to the same level of accountability," he said. "What we're saying in this case … is that the grownups, the elected branches of government, need to determine what resources are necessary" to help every child succeed.

Nine children and their parents were named plaintiffs in the suit but the association asked that it be certified as a class action, meaning that tens of thousands of children across Indiana would automatically become plaintiffs. * * *

Over several decades, lawsuits challenging school funding have been brought against 45 states, including one in Indiana that was settled.

Since 1989, plaintiffs have won about two-thirds of the school-funding decisions (19 of 29), including landmark cases in Kentucky and Montana, according to ACCESS to Education, a project of the Campaign for Education Equity at Columbia University.

The Council for Better Education, a coalition of Kentucky school districts, successfully sued the state in the mid-1980s, resulting in the Kentucky Supreme Court's 1989 decision declaring the state's education system unconstitutional. The court's ruling led to the passage of the Kentucky Education Reform Act in 1990.

But in 2003, the council filed another lawsuit alleging that the General Assembly has not adequately funded education. That suit is pending in Franklin Circuit Court.

Sharlonda L. Waterhouse of the Gary Post-Tribune reports, in a story headed "Education lawsuit joins other states," that:
State supreme courts across the country have ruled that school funding formulas are unconstitutional and inadequate for ensuring quality education.

Litigants suing boards of education might have waited years and endured appeals, but the boons have been plenty, fueling high hopes for a lawsuit filed in Indiana on Thursday.

In Colorado’s Giardano v. State, the state legislature was forced to provide $190 million more in school repairs and construction as part of court settlement to put needy districts on par with others.

In Texas, a 25-year-plus court battle resulted in “Robin Hood” funding policies in which rich districts were forced to share tax money with poorer ones.

Just last year in Arkansas, a court ruling increased school aid by 25 percent, resulting in $400 million more in school tax dollars yearly.

Parties in 45 states have sued boards of education, saying poor and minorities have been disenfranchised.

This week Indiana joined the ranks. * * *

Attorney Michael Weisman had the Hoosier class action complaint stamped with a cause number in Marion Superior Court on Thursday morning. He represents nine sets of children and parents from eight Indiana districts, including a child from Thomas A. Edison Elementary school in Hammond.

At a news conference hosted by the Indiana State Teachers Association, Weisman, joined by a few parents, chided the state for funding inequality: “It is not an option to abandon a whole generation of children ... and say because you’re poor, black, or don’t speak English as a first language, that we’re giving up on you and your future is to flip burgers at McDonald’s,” Weisman said. * * *

Weisman distributed copies of the lawsuit, which emphasizes lows ISTEP scores statewide, as well as low SAT scores and graduation rates. [The ILB is still trying to obtain a copy.]

He plans to argue to the highest court that will listen that such a failure of children is unconstitutional.

Other state cases have hinged on arguments that funds for public schools don’t support the state Constitution’s ideals.

Those lawsuits have traced three main sources of inequity: facilities, range of curriculum and classes offered, and teacher salaries.

In the Indiana complaint, the plaintiffs allege funding for kindergarten and summer programs are uneven across the state. It says money for remediation (tutoring and reteaching) has decreased from $20 million in 2004 to $9 million in 2006.

The complaint calls the Indiana school funding scheme a constitutional violation that is “arbitrary and not rationally related to educational needs.”

It demands a true analysis of how much money is needed to meet state curriculum and mastery of standards.

The lawsuit suggests that children who are impoverished, ethnic, disabled or limited in English proficiency “are not receiving an education that equips them with the knowledge and skills for productive employment, higher education, and responsible (citizenship).”

Posted by Marcia Oddi on Friday, April 21, 2006
Posted to Indiana Government

Thursday, April 20, 2006

Law - Wine law changes in Illinois and other states

"Shipping news means more choices for consumers, but some winemakers unhappy" is the headline of a story from the Chicago Tribune, by Bill Daley, as reprinted in the Arizona Republic. Some quotes from the lengthy report:

Blame, or credit, the court. Last May, the justices overturned laws in New York and Michigan that allowed wineries in those states to ship directly to residents while barring out-of-state wineries from doing the same. "Unfair," the justices said.

This decision has rippled nationwide, prompting dozens of states, including Illinois, to reexamine their laws to ensure there are no discriminatory provisions. The process has pitted wineries seeking to sell their products directly to more customers against distributors trying to retain their traditional role as a conduit to retailers and restaurants.

Illinois law allows direct wine shipments from Illinois wineries and from wineries in states that have signed a reciprocity agreement with Illinois. That means wine from only a dozen states could be shipped directly to consumers in Illinois.

After the Supreme Court ruling, Illinois liquor officials came to view the reciprocity regulation as unenforceable. It allows wines to be directly shipped into Illinois from some states but not others, said Ted Penesis, industry education manager for the state Liquor Control Commission.

Illinois legislators are looking to amend the law so that residents can order up to 12 cases of wine a year directly from a winery in Illinois or elsewhere. That's up from the two cases of wine from an out-of-state winery allowed under the current law, but it also means a cap on how much Illinois wine an Illinois resident can order directly. Current law specifies no case limit. * * *

A devil's brew of special interests, from lawyers and lobbyists for wineries, beer and liquor distributors, retail store reps and politicians, has been stirring the proverbial pot across the nation as states grapple to define new wine shipping and distribution laws.

Trouble is, the U.S. Constitution gives the power to sell wine (and liquor and beer) to the states, meaning there can be up to 50 different sets of rules. All the Supreme Court's decision of last May did was rule that states couldn't discriminate against out-of-state wineries on behalf of in-state wineries when it came to direct shipping to consumers. It has to be all or nothing.

While most states have or are moving toward the "all" camp, some are going in the other direction. Other states are theoretically open to direct shipping but the fees they would levy on wineries can get pretty hefty - too high for a small winery to recoup in selling to three or four customers, said Dan Webb of Cameo Vineyards in Greenup, Ill.

What works in one state may not work in another. Indiana, for example, won't permit any wine to be shipped directly to a consumer unless that person pays a personal call to the winery. Michigan will let you drive into the state with one case of wine in your trunk; you can leave the state with as much wine as you can pack. And Iowa and Wisconsin officials are still talking of reciprocity, those if-you-take-mine-I'll-take-yours agreements that many think were dealt a death blow by the Supreme Court's decision. [emphasis added]

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to General Law Related

Ind. Law - "Info-hungry citizens making a difference in government openness"

"Info-hungry citizens making a difference in government openness" is the headline to a brief item by the AP on the WISH-TV website. Some quotes:

Reporters aren't the only ones who want to know what the government's doing.
More public records requests are coming from ordinary citizens.

The annual report from Indiana's public access counselor shows that more than 800 of the 16-hundred inquiries came from the public, compared with about 200 from the news media. The rest came from government agencies.

Public access complaints filed by the Indiana public over the past year include an activist seeking enforcement records from the state's Department of Environmental Management, an Elwood man challenging closed meetings on the redistricting of elementary schools and a LaPorte woman fighting to open private meetings of that city's Board of Public Works.

Here is the PAC Annual Report referenced, covering July 1, 2004 through June 30, 2005. (Looks like a new one will be due out in a few months.)

Be sure to check out
one of the newest features of the PAC site, the FAQ section. Here is an example from the FAQ:
Do I have to file a formal complaint to get assistance from the Public Access Counselor?

No. The Public Access Counselor can advise you about your rights over the telephone or by e-mail (www.in.gov/pac/contact). In addition, you can send a letter asking for an "informal inquiry response." Often, the Public Access Counselor can resolve a dispute by calling the agency directly. You should provide the name of the agency, the name of a person you have been dealing with, and a telephone number for informal dispute resolution.

The PAC is probably one of the most "user friendly" agencies in state government.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Indiana Law

Ind. Gov't. - More on: ISTA to sue over school funding

Updating this ILB entry from yesterday, the ISTA's lawsuit has now been filed, according to this AP story by Mike Smith. Some quotes:

Indiana is violating its constitution by failing to provide enough money for all children to have a fair chance to learn, according to a lawsuit filed by the Indiana State Teachers Association on Thursday.

The lawsuit was filed in Marion Superior Court on behalf of nine children and their families from various school corporations. It claims that the state is not adequately funding schools so they can meet standards and performance mandates placed on them.

An attorney representing ISTA said the lawsuit does not seek a specified amount of increased funding. But Michael Weisman of Boston said current spending is clearly not enough for all students to reach their full potential, and the state should determine how much money it would take and then provide it.

The lawsuit seeks class action status to represent all students in public schools, including those living in poverty, minority students, those with disabilities and those just beginning to learn English.

The ILB is attempting to obtain a copy of the ISTA complaint.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Indiana Government

Environment - First EPA chief urges action to reduce greenhouse gases

The AP is reporting:

BLOOMINGTON, Ind. (AP) -- William Ruckleshaus, the first head of the Environmental Protection Agency, says it's time for America to get serious about reducing greenhouse gas emissions because global warming is real.

While there is legitimate debate over how best to address climate change, he said studies have overwhelmingly concluded that human industrial activity contributes to global warming.

"It's time to get serious and stop arguing about whether it's real or not. It's real," he said Wednesday during an environmental symposium on the Indiana University campus.

Ruckleshaus said the United States should be leading the world in taking steps to cut emissions of gases released by the burning of fossil fuels to make energy. He said that unless the U.S. acts, "it's unlikely the rest of the world will either."

Ruckleshaus, an Indiana native, became the first EPA administrator after the agency was created under the Nixon administration. He headed EPA from 1970 to 1973 and again from 1983 to 1985 under the Reagan administration.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Environment

Ind. Courts - Perry Circuit Court judge race

The Perry County News has a story headed "McEntarfer, Goffinet face off in judge's race." It begins:

TELL CITY - The two Democrats vying for circuit-court judge argued their cases Tuesday, testifying about their legal experience and touting personality traits that ranged from respect and responsibility to hard work and commitment.

Judge James McEntarfer, seeking his second six-year term, and Chief Deputy Perry County Prosecutor Lucy Goffinet squared off during a political forum sponsored by The Perry County Chamber of Commerce and The Perry County News. They fielded questions during the evening and provided written answers to The News ahead of the event.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Indiana Courts

Ind. Courts - New judge in New Castle City Court

From East Central Indiana's WLBC News, this item:

New judge

The New Castle City Court has a new judge. Governor Mitch Daniels has appointed Jim Small to the position. He takes over for David Sadler, a Democrat who resigned to run for the District 54 Indiana House of Representatives seat.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues two today

Jason Edward Fuchs v. Megan & Cheryl Martin

Jerry Grinstead v. State of Indiana

DETAILS TO FOLLOW

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit issues two Indiana opinions today

In Crouch v. Whirlpool Corp. (SD Ind., Richard L. Young, Judge), an 8-page opinion, Circuit Judge Bauer writes:

Whirlpool Corporation (Whirlpool) terminated Harold Crouch after determining that he falsely applied for a leave of absence. Crouch sued Whirlpool for various violations of the Family and Medical Leave Act (FMLA) and Employee Retirement Income Security Act (ERISA). The district court granted summary judgment for Whirlpool, finding in relevant part that its honest suspicion of Crouch’s misuse of FMLA leave justified his termination. We affirm.
In POURGHORAISHI v. Flying J., Inc. (ND Ind., Rudy Lozano, Judge), a 25-page opinion, Circuit Judge Rovner writes:
Following his arrest for disorderly conduct and trespass, Ahmmad Pourghoraishi, a truck driver of Middle Eastern descent accused of trying to leave a gas station without paying for fuel, sued the gas station, its manager, the off-duty police officer employed as a security guard, the security company, and the City of Gary, Indiana, for intentional discrimination in a place of public accommodation (pursuant to 42 U.S.C. § 2000a), for interfering with his right to make and enforce a contract (42 U.S.C. § 1981), for violating his Fourth and Fourteenth Amendment rights by arresting him without a warrant or probable cause (42 U.S.C. § 1983), and for various injuries addressed by Indiana state tort law. The district court dismissed the public accommodation claims as moot and untimely, granted summary judgment on the § 1981 and § 1983 claims, and dismissed the state law claims. Pourghoraishi appealed all but the public accommodations claims. On appeal of the remaining claims, we affirm in part and reverse in part.

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

Ind. Decisions - Court of Appeals issues three today

In Rodney S. Perry v. State of Indiana, an 8-page opinion, Judge Barnes writes:

Case Summary. Rodney Perry appeals his seventy-year sentence on two convictions for Class A felony voluntary manslaughter. We affirm.

Issues. On cross-appeal, which we address first, the State asserts that the trial court erred in granting Perry permission to file a belated appeal. Perry’s claim is that his sentence is improper. * * *

Conclusion. The trial court properly granted Perry permission to initiate a belated appeal, but we conclude that his sentence was properly explained and is appropriate. We affirm.

In Alexander J. Anglemyer v. State of Indiana, an 11-page opinion, Judge Barnes concludes:
Because Anglemyer was sentenced within the statutory ranges, his sentence is proper. Because Anglemyer’s guilty plea called for an executed sentence “capped” at sixteen years and he was sentenced to a total of sixteen years executed, he has inherently agreed that such a sentence is appropriate. We affirm.
In Indiana State Board of Health Facility Administrators v. Angela Werner, H.F.A., an 8-page opinion on rehearing, Judge Barnes writes:
The Indiana State Board of Health Administrator’s (“the Board”) petitions for rehearing following our opinion in Indiana State Board of Health Facility Administrators v. Werner, 841 N.E.2d 1196 (Ind. Ct. App. 2006). We grant the Board’s petition for rehearing; however, we reaffirm our opinion in all regards. We issue this opinion on rehearing to clarify our earlier opinion and to address an argument raised by the Board for the first time in its petition for rehearing. * * *

The Board’s petition for rehearing is granted. We affirm our original opinion in all respects.

SHARPNACK, J., concurs.
RILEY, J., would deny petition for rehearing.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Terre Haute citizens voice concerns about adult-oriented businesses

"About 50 people attend public input meeting to voice concern about adult-oriented businesses" is the headline to a story today in the Terre Haute Tribune-Star by Joanne Hammer that begins:

Most of 50 people who attended a public input meeting Wednesday about a new adult entertainment ordinance told council members they did not want any adult-oriented businesses in Vigo County.

The purpose of the Terre Haute City Council hearing was to receive feedback about what a new zoning ordinance should or should not include.

Councilman Ryan Cummins, R-2nd, said he has researched adult entertainment regulations on behalf of the council for about two years.

“I know it’s a First Amendment right but I am not in agreement,” Dorothy Rasche, a Sister of Providence from Terre Haute told the assembled group. “Give a block and say this is it. But not in a residential or business area.” * * *

The city has no enforceable adult entertainment ordinance but can provide some enforcement within zoning guidelines.

Adult entertainment establishments must be zoned C-3 within the city’s limits and must have an entertainment permit from the state. To serve alcohol, a business also must have a special use permit.

In 2000, the city council passed a moratorium on future zoning changes of those businesses until a new ordinance was drafted.

For background, here is a list of earlier ILB entries on adult businesses.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Indiana Law

Ind. Gov't. - Police panel violated state law

"Police panel violated state law" is the headline to a story this morning in the Gary Post-Tribune, by Lori Caldwell. Some quotes:

GARY — The Police Commission violated the state’s Open Door Law twice in a single illegal meeting, the Indiana Public Access counselor said Wednesday.

A delegation of police officers sent to a personnel committee meeting March 7 was improperly barred from attending the session that was not legally advertised, Karen Davis wrote in a four-page ruling.

“The commission failed to justify turning persons away from the meeting by arguing no final action was taken. The public has a right to observe all official action taken by a governing body,” Davis wrote. In addition, the board failed to post a public notice at least 48 hours in advance, she added. * * *

As part of the complaint process, commission attorney Charles Brooks wrote a letter to Davis explaining the board’s actions. He said the meeting began late because of lack of a quorum, and when officers were “mistakenly” turned away, the meeting had not yet begun.

He said he was unaware anyone else attempted to enter.

“If even one person was told that the meeting was closed, a violation of the Open Door Law occurred,” Davis wrote. * * *

Davis said the board has a copy of her advisory. One option would be to conduct another meeting.

“They need to make their own decision about how they intend to comply,” Davis said.

If the board does not take appropriate action, the matter can be appealed in court where the commission’s actions could be declared void, she said.

“They can call me and ask me how to fix it,” Davis suggested.

Abiding by the Open Door Law “can be difficult,” Davis acknowledged. “But it’s a part of governing.”

Here is a link to the PAC Advisory Opinion.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Indiana Government

Ind. Gov't. - Still more on Fort Wayne's $1.2 million in legal fees

Today's Fort Wayne Journal Gazette has an editorial on the $1.2 million the city has paid in legal fees in an effort to take over a private water utility (see more in yesterday's ILB entry). Some quotes from the editorial:

Fort Wayne City Council Democrats showed disdain for their constituents Tuesday when they voted to hide how much money those constituents are paying to an Indianapolis law firm. * * *

Councilman Don Schmidt, R-2nd, was the strongest voice advocating for the public’s right to know when he told city representatives, “You do not have the right to spit on the public and tell them they don’t have any right to know how much they are spending.”

City Attorney Tim Manges denied an earlier request from The Journal Gazette for access to the public information, claiming the fees were confidential because of attorney-client privilege.

But state law is clear. “The attorney-client privilege belongs to the clients, not to the attorneys, and certainly not to the city,” Larmore wrote. “The taxpayers are entitled to an environment of openness and transparency and thus to the information concerning how much of their taxes have been paid to outside counsel for legal services.”

It seems likely the Richard administration didn’t want to share the legal fees information because it wanted to avoid giving the taxpayers footing the bill a case of sticker shock. That’s understandable. Legal fees of more than $1.2 million will inevitably raise questions.

This isn’t to imply the fees are unreasonable. No one is suggesting the fees are out of line with the work performed. Cases as complicated as acquiring a water utility and challenging its rates before state regulators are invariably complex and will produce substantial legal costs.

But isn’t that the precise reason for openness, the idea that information will give constituents a reason for questioning decisions?

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Indiana Government

Ind. Courts - Focus on Clark Superior Court 1 race

Today's Louisville Courier Journal has a story by Alex Davis that begins:

The two Democrats running for judge of Clark Superior Court 1 both say that the winner of the race should play an active role in the lives of young people.

The court handles all of the county's juvenile cases, and the incumbent, Jerome "Jerry" Jacobi, has begun three separate youth-related programs since taking office in 1995.

"We see this as a part of our mission," he said, adding that the cost of the programs is "incredibly small."

But allegations about financial problems in at least one program have sparked an investigation by a special prosecutor appointed last month. Jacobi said in a letter at the time that the allegations under review involved his longtime chief of staff, Jerry Lemmons, who had resigned shortly before the prosecutor was named.

And Vicki Carmichael, who faces Jacobi in the May 2 primary, recently sent a letter to teachers and principals in some Clark County schools raising concerns about Jacobi's programs being used as a tool for his re-election campaign.

Jacobi said he is keeping the programs out of politics. But he said he has taken Carmichael's letter "to heart" and recently reprimanded a volunteer in one of the programs for making political statements in his courtroom.

For background, start with this ILB entry from Sunday, April 16th.

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Indiana Courts

Courts - State Bar of Texas Steps In After Solo Is Reported Missing

Yesterday the ILB had an entry based on a South Bend Tribune story headlined "Missing South Bend lawyer leaves clients angry, baffled."

Today a story from the Texas Lawyer titled "State Bar of Texas Steps In After Solo Is Reported Missing." The lengthy story begins:

Where is William Britton "Britt" Hall?

Hall's wife, friends, clients and the State Bar of Texas would like to know.

Hall, a Houston solo, has not been seen since Jan. 3, according to a private investigator who is searching for him. And State Bar officials say Hall has not been to his leased law office for months.

While those close to the 41-year-old lawyer are worried about him, some of his clients are angry.

"I know there have been clients that have been prejudiced by this," says Beaumont solo Mike Getz, who referred some clients to Hall. "There was one client that suffered a summary judgment that did not have an answer, and there have been default judgments."

On March 21, the Commission for Lawyer Discipline, the disciplinary arm of the State Bar, took the unusual step of seeking an order that gives the quasi-state agency jurisdiction over Hall's bankruptcy and business litigation practice. Judge Grant Dorfman of Houston's 129th District Court signed the order March 31.

Rule 13.02 of the Texas Rules of Disciplinary Procedure allows the Bar to assume jurisdiction over an attorney's law practice, if the Texas lawyer has "died, disappeared, resigned, become inactive, been disbarred or suspended, or become physically, mentally or emotionally disabled and cannot provide legal services necessary to protect the legal interests of clients."

Posted by Marcia Oddi on Thursday, April 20, 2006
Posted to Courts in general

Wednesday, April 19, 2006

Ind. Courts - Selection of judges in Marion County

Gary Welsh of Advance Indiana has just posted an excellent and comprehensive entry, headlined "Can't We Find A Better Way To Select Judges In Marion County?" He concludes:

The Indianapolis Bar Association should be holding its head in shame at the manner in which we select judges in Marion County. Even Lake County’s system of selecting judges through a merit selection system is preferable to Marion County’s politically-driven system. Often, I hear members of the bar complain about the incompetence of certain of Marion County’s judges. It is not uncommon for many attorneys to file for an automatic change of judge, which is permitted by court rules, if their case is assigned to a particular judge in Marion County; not because the judge is necessarily unfair, but because the attorney does not have confidence in the ability of the judge to hear his case.

Don’t count on the Indianapolis Bar Association to make any real effort in promoting judicial reform of this undemocratic system in Marion County. Two recent presidents of the Association, including the current president, Judge Cynthia Ayers and past president Gary Miller, are Marion County Superior Court judges and probably like the system just the way it is—totally political and free of competition. You would think we were living in some banana republic rather than Indianapolis based upon the system we've chosen for selecting judges.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Courts

Ind. Courts - Montgomery County judges' mandate case set for mid-July

The Crawfordsville Journal Review reports on a Montgomery County council meeting Tuesday evening, April 18th. Among the items:

In other business, councilmen:
  • Learned from [county attorney Dan Taylor that] a two-day bench trial has been scheduled for a Cass County judge to hear the judges’ mandate case July 17-18 at Montgomery County courthouse. Following budget cuts in 2005, Montgomery County Judges Thomas K. Milligan, David A. Ault and Peggy Q. Lohorn mandated the county council give $10,000 pay increases to court employees. A change of venue was requested by the judges for the trial and denied because of the public interest of Montgomery County citizens, Taylor said.
For background, see this Nov. 16, 2005 ILB entry titled "Ind. Courts - More on: Montgomery County judges issue mandate for staff raises."

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Courts

Ind. Gov't. - More on Fort Wayne's $1.2 million in legal fees

"City grab for utility surpasses $1 million: Divided City Council reveals acquisition fees" is the headlie to a story today in the Fort Wayne Journal Gazette (see earlier News Sentinel story quoted here). Reporter Benjamin Lanka writes:

The city of Fort Wayne has spent more than $1.2 million in legal fees since 2003 in its attempt to acquire Aqua Indiana, according to documents released Tuesday by the City Council.

The Republican-controlled council voted 5-4 along party lines to release information on fees paid by the city for ongoing legal work, in particular work with Aqua Indiana. The city is trying to take over the private utility, saying it will be able to provide better service at lower cost to its customers.

Councilman Don Schmidt, R-2nd, said after the meeting that it would have been nice to know what the city planned on spending in legal fees before starting the acquisition process.

“There would have been a very lively discussion on whether this was necessary to take over a healthy utility,” he said.

The city started an eminent domain action in 2002 to acquire Aqua Indiana’s north system, which serves about 8,000 customers on the north side, most of whom have been annexed into Fort Wayne. The Indiana Court of Appeals ruled in September that the city used the wrong condemnation procedure against the utility, and the Indiana Supreme Court is considering whether to accept the case. * * *

The city paid $1.2 million since 2003 to Bingham & McHale, an Indianapolis law firm, for Aqua Indiana matters, including condemnation litigation, settlement negotiations, rate case opposition and other matters.

Councilman Tim Pape, D-5th, said releasing the fees would “handcuff” the city’s ability to fight legal battles because telling the other side how much the city will spend would give the other side an unfair advantage. * * *

Councilman Sam Talarico, R-at large, said the city should not be forced to release the legal fees it is paying for an ongoing case when that release would hurt the city’s ability to win that case.

He said if someone sued the city and knew the city was willing to spend $200,000 to defend the case, that person could try to settle for $100,000 because it is less than the amount the city wanted to spend. He said it would be more appropriate to give full disclosure of fees after a case ended. Talarico, however, voted for the release, saying there was a difference in legal fees for a lawsuit and legal fees for a negotiation.

Both Pape and Talarico are attorneys.

Philip Larmore, council attorney, wrote a letter to the council outlining that it should release the fees because the taxpayers are the real clients in the matter.

“The attorney-client privilege belongs to the clients, not to the attorneys, and certainly not to the city,” he wrote. “The taxpayers are entitled to an environment of openness and transparency and thus to the information concerning how much of their taxes have been paid to outside counsel for legal services.”

He also provided a message from Karen Davis, state public access counselor, who wrote that a report that shows the dollar amounts and law firms to which fees were paid should be fully disclosed.

The Journal Gazette had previously requested a release of the attorney fee information.

Schmidt asked the city to request prior approval before spending more than $100,000 on legal fees in a case, as it does for engineering or other consulting work, excluding cases involving monetary damages. City Attorney Tim Manges said the city should be able to comply with that.

Here are some earlier ILB entries re Allen County legal fees: 4/8/06, 3/17/06, 2/17/06, and 2/12/06.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Government

Ind. Decisions - More on: Ex-FSSA caseworker's conviction overturned

The Indianapolis Star today has a letter of appreciation from attorney Jack Crawford:

On behalf of my client Denise Moore and myself, I would like to commend The Star for its coverage of the reversal of Moore's conviction by the Indiana Court of Appeals ("Ex-FSSA caseworker's conviction overturned," April 13).

Often in a prominent case, newspapers give front-page treatment to a conviction and then "bury" the story of a later reversal in small print in Section B. You gave equal prominence to both Moore's trial and the recent decision overturning her conviction. Moreover, the story was fair and accurate.

This professionalism and fairness was most appreciated in a difficult and sensitive case.

The online version includes a photo.

See the April 13th ILB entry here.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Yet more on: Court says activity fee amounts to tuition. Shouldn't the same view apply to book rentals?

The new Indiana Lawyer has an article beginning on page 5 by Abrigail Johnson on the Supreme Court's recent decision in Nagy v. Evansville-Vanderburgh School Corporation.

Headed "Supreme Court sides with parents on fees," it is the sub-head that really tells the tale: "Some say opinion is unclear about what activities fall under permissible school fees."

Here is a list of earlier ILB entries on the case.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Ind. Sup.Ct. Decisions

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

Updating this March 24th ILB entry, titled "Move IDEM lawyers to AG's office?", the new issue of the Indiana Lawyer, which I just plucked out of my mailbox, includes this ad:

Section Chief of Environmental Legal Affairs

The Office of the Attorney General is presently seeking an experienced attorney to represent and provide counsel to the Indiana Department of Environmental Management (IDEM).

This Indiana-licensed attorney will have the ability to effectively manage and supervise personnel, and will prosecute civil actions on behalf of the aforementioned agencies.

The Section Chief will participate in and oversee the legal facets of IDEM rulemaking, permitting, and enforcement actions, and will review all incoming litigation relating to the agency.

So it looks like the decision on whether to move IDEM attorneys to the AG's office has been made. Now the question becomes, who will be the client who ultimately calls the shots?

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Environment | Indiana Government

Ind. Gov't. - ISTA to sue over school funding

Sharlonda L. Waterhouse of the Gary Post-Tribune reports today:

From science to math to ISTEP testing benchmarks, Hoosier public schools struggle to teach to the high standards handed down by the state.

But where’s the money to produce the higher achievement?

The Indiana State Teachers Association wants to know.

And in a landmark action for Indiana, the union is suing the Department of Education to get answers — and more cash.

On Thursday, a class-action lawsuit will be filed in Marion Superior Court, the union announced Tuesday.

It names as injured parties nine children from eight districts in Indiana, including Hammond, Indianapolis, South Bend and Anderson. Any verdict would affect the entire state. * * *

The lawsuit names Superintendent of Public Instruction Suellen Reed, Gov. Mitch Daniels, who is head of the roundtable, and other state officials as defendants.

This caught my attention:
They hired Boston-based attorney Michael Weisman, the man who successfully sued the Massachusetts Commission of Education.

Over the past 13 years, Weisman said, his litigation has helped boost Massachusetts schools with $30 billion in funding.

He’s hoping to be just as successful in Indiana, which has a similar constitutional requirement to educate children.

“This is a very practical effort,” Weisman said. “It’s an attempt to establish that Indiana is not providing the education that its constitution requires to children throughout state, particularly to children growing up in poverty or with special education needs.”

Weisman said boards of education in Montana, Kansas, New York, and New Jersey have all been taken to higher courts for judgment.

Here is more on Michael Weisman and the Massachusetts suit, including a number of trial documents.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Government | Indiana Law

Ind. Courts - Delaware County Judge denies he gave preferential treatment

"Judge denies he gave preferential treatment: The Circuit Court 5 judge ordered police to release a man after getting a phone call from the man's wife" is the headline to a story today in the Muncie Star-Press. Some quotes:

A habitual traffic law violator allegedly wanted on outstanding warrants and caught driving without a license in a Monday-night crash avoided being jailed after his wife called a Delaware County judge.

Delaware Circuit Court 5 Judge Wayne Lennington defended his decision Tuesday, saying the man's three warrants were all more than five years old, and there was uncertainty about whether any remained active. Rather than incarcerate the man in an already crowded jail on questionable warrants and a traffic violation, Lennington said, he ordered police to release the man. * * *

Moore was apparently wanted on a 1998 warrant out of child support court for failing to appear, a 2001 warrant out of Yorktown City Court for failure to appear on a check deception case, and a 1998 warrant out of the court now presided over by Lennington for being a habitual traffic offender.

Lennington said he knew of Moore's father because he once operated a business downtown. The judge said he believed Moore might have once done some furnace work at the judge's house.

Moore did not receive preferential treatment, Lennington said.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Courts

Ind. Courts - Three lawyers vie to fill post of retiring judge in Noble County

"Three lawyers vie to fill post of retiring judge in Noble County" is the headline to a story by Kara Hull in the Fort Wayne Journal Gazette. It begins:

Three lawyers, each with more than 20 years of experience in the field, will square off in the May 2 Republican primary to become the next Noble Superior I Court judge.

Steven C. Hagen, 55, Hal Hossinger, 48, and Robert E. Kirsch, 53, are looking to fill the judgeship left vacant when current Judge Stephen Spindler retires this year. Currently, Indiana judges are paid $110,500 a year and are elected to six-year terms.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Courts

Ind. Courts - Teen Court at the Tippecanoe County Courthouse

"Dropping the gavel: Peers mete out punishment to teenage offenders" is the headline to this story by Jennifer Schaff in today's Lafayette Journal & Courier. Some quotes:

It's 5:30 p.m. at the Tippecanoe County Courthouse, and while all other courtrooms are starting to clear out, Tippecanoe Superior Court 6 is full of kids.

Kids make up most of the audience, which is so full teens are standing against the walls. Kids sit behind both the defense and prosecution tables. A kid stands up from the bailiff's seat at the front of the room and asks the jury, also made up of kids, to stand and take an oath.

Teen Court is now in session.

Teen Court is a way for juvenile offenders between the ages of 12 and 17 to learn about the court system, and to see the consequences of their actions, Christina Potts, Teen Court specialist, said. Offenses such as battery, shoplifting, minor consumption, runaway, truancy and vandalism are heard here, and all respondents must first plead guilty before being referred to Teen Court. * * *

Juvenile Judge Loretta Rush said Teen Court has been a successful program, given that it does not have a lot of repeat offenders. * * *

Clif Reeder, 17, a senior at West Lafayette High School, has been serving on Teen Court for the past four years.

By acting as an attorney, Reeder gets to show off his debate skills three Tuesdays a month. He said the training to be a Teen Court attorney takes six hours.

Reeder, who has served in pretty much every aspect of Teen Court, even got to sit in as the judge during one court session. A local attorney acting as judge is normally the only adult who serves Teen Court.

Trent Klingerman has acted as judge for Teen Court three or four times. Klingerman got involved with Teen Court because some of the senior members of his Lafayette firm, Stuart and Branigin, passed it down.

"It's different to be on this side of the bench," Klingerman said. "I always enjoy this perspective."

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Courts

Ind. Decisions - "Court denies Corcoran bid to overturn death penalty"

Niki Kelly of the Fort Wayne Journal Gazette writes today on the Supreme Court's opinion yesterday in the case of Corcoran v. State (see ILB entry here). Some quotes:

The Indiana Supreme Court once again turned down convicted killer Joseph Corcoran’s death penalty appeal, finding Tuesday that “the public interest in achieving finality at this stage weighs heavily against further review.”

The court did not set a new execution date, however, because the U.S. District Court for the Northern District of Indiana has intervened on federal claims. * * *

Both the trial court and the Indiana Supreme Court have found Corcoran competent even though he suffers from paranoid schizophrenia. They said he wants to die because he killed four people and deserves to be executed – not because of delusions.

The U.S. Supreme Court is hearing a case today "on the place of the insanity defense and evidence of mental illness in the criminal courtroom." See this entry from SCOTUSblog on the case, Clark v. Arizona. NPR's Morning Edition this morning also had a commentary on this case:
High Court Reviews Insanity-Defense Case
by Nina Totenberg

Morning Edition, April 19, 2006 · The Supreme Court reviews Clark v. Arizona, a new test of the insanity defense. The parents of an Arizona man who killed a police officer want their son declared guilty but insane. The state does not want his mental state considered in court.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "A Supreme visit: Locals fill IU East for high-court hearing"

Updating this ILB entry from April 12th titled "Supreme Court to hear case in Richmond," the Richmond Palladium-Item reports today on the "high-court hearing." Some quotes:

When Joan Ripley found out the Supreme Court was to visit Indiana University East on Monday, she quickly invited friend Charlene Ward to observe with her.

Hundreds of students and other community members almost filled IU East's Vivian Auditorium, joining them to hear prosecuting and defense attorneys give oral arguments for Norman Thompson v. State of Indiana.

People spoke in hushed tones, rose as the justices entered the room, and attorneys made their cases.

But others were different. There were no witnesses, no jury.

Afterward, Ripley and Ward beamed as the justices and community members chatted in Whitewater Hall over cookies and coffee.

Seeing the court in action tapped into a longtime interest for Ward. When she was a schoolteacher and only worked mornings, Ward said sometimes during the afternoon she would stop by the Wayne County Courthouse just to watch trials. * * *

"It's (watching the Supreme Court work) something we don't get to do very often," Ripley said. Both want to see the case's outcome, which Chief Justice Randall Shepard said will most likely be finished in the next few days.

Here is the case background: The state charged Thompson with carrying a handgun without a license. Thompson argued the evidence of the handgun should be kept out court, and a Marion Superior Court judge agreed. However, the Indiana Court of Appeals overturned the trial judge's decision.

Now Thompson is asking the Indiana Supreme Court to review the case and reinstate the trial judge's decision.

The justices have to decide whether the lower courts had properly applied provisions in the U.S. and Indiana constitutions -- guidelines dealing with the circumstances under which people can be searched and their belongings seized. Shepard said he expects the court to do that in the next few days.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Missing South Bend lawyer leaves clients angry, baffled

"Missing lawyer leaves clients angry, baffled: Judges have reassigned some of Hosinski's cases" is the headline to a story by Jeff Parrott in the South Bend Tribune. Some quotes:

SOUTH BEND -- Paul and Linda Dyer don't know Mark Harvey, but they and several others around town have a few things in common with him.

They each face criminal charges in St. Joseph County courts, paid attorney John Hosinski to represent them, and have been unable to find him.

Hosinski, who served on the South Bend Common Council from 1996-2000 and whose father, the late William Hosinski, was a highly regarded judge from 1972-86, has repeatedly failed to appear in court recently on behalf of an undetermined number of clients, according to court records. * * *

Hosinski also can no longer be found at the office he shared with attorney Jeff Majerek on the eighth floor of the JMS Building downtown. The building's owners, Donna and John Freidline, evicted Hosinski Dec. 30 for nonpayment of rent, according to a lawsuit they filed in Superior Court.

A sign posted on the suite's window urges visitors: "DO NOT BOTHER OTHER TENANTS IN THE BUILDING."

Occupants of nearby offices told The Tribune that numerous Hosinski clients have stepped into their offices looking for him. * * *

It is unclear how many people Hosinki has left without attorneys in court hearings during his absence. The county clerk's office has no accurate way of identifying all of the cases an attorney is handling.

Judges have reassigned a few of Hosinski's cases to attorney Phillip Skodinski, who handles some cases as a court-appointed public defender. Skodinski said he did not know where Hosinski was. * * *

The Tribune was unable to locate Hosinski to comment for this story. When telephoned Tuesday, Paul Hosinski, his brother, declined The Tribune's request for an interview. He said he would pass a message on to his brother to return a reporter's call, but John Hosinski had failed to do so by the Tribune's deadline.

"He has assigned his cases to two attorneys," said Paul Hosinski, declining to elaborate. "I know what's going on but I'm not at liberty to say."

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Courts

Ind. Gov't. - Two cities rack up attorneys fees - $11,000 and $1.2 million

Kokomo. Yesterday the ILB posted this entry quoting from an AP report that began: "Fighting a teenager's public records request will cost the city more than $11,000 in attorneys fees."

Here is another story, this one from the Kokomo Tribune by Scott Smith. Some quotes:

The bill has come due for the city’s decision to fight a public records request by Western High School student Ryan Nees — more than $11,000 in attorneys fees.

Howard Circuit Court Judge Lynn Murray awarded Indianapolis-based attorney William Groth the full amount requested for work performed on Nees’ behalf. Her fees order should drive costs for the city in the case to well over $15,000. * * *

City Attorney Ken Ferries — and later two attorneys from the Indianapolis-based Ice Miller law firm — argued the e-newsletter subscribers’ e-mail addresses should be treated the same as a city-compiled list of physical mailing addresses.

By law, government officials can limit access to lists of physical mailing addresses to inspection and hand-copying.

So city officials turned down Nees’ request for a copy of the list, saying the teen could come in and hand-copy it. McKillip also suggested giving out copies of address lists would leave the newsletter subscribers open to spam and computer viruses.

Murray, however, said the law governing access to government-compiled mailing lists doesn’t extend to e-mail addresses, as the city’s attorneys contended. She said the city must turn over either a copy or an electronic copy of the list.

“The city’s arguments here are of a policy rather than a legal character, and are more appropriately addressed to the Indiana Legislature than to this court,” Murray wrote. “The courts cannot fill gaps in a statutory scheme designed by the legislature.”

Shortly after Murray issued that ruling, the Indiana General Assembly amended the Indiana Access to Public Records Act to give government officials the right to withhold lists of e-mail addresses.

City officials decided against appealing Murray’s ruling. Ferries said the combination of the judge’s ruling and the fact the Indiana General Assembly was looking at further restrictions on public access to government-compiled e-mail addresses convinced the administration to end the matter.

City officials were warned they were probably in violation long before Nees filed his suit.

Indiana Public Access Counselor Karen Davis issued a nonbinding opinion last year, saying the restrictions which apply to mailing addresses did not apply to e-mail addresses. McKillip chose to ignore that opinion and test the case in court.

Fort Wayne. "City reveals $1.2 million attorney fees in attempt to acquire Aqua Indiana" is the headline to this story by Cindy Larson in the Fort Wayne News Sentinel. Some quotes:
The city of Fort Wayne has paid attorneys $1.2 million over the past three years in its efforts to acquire the Aqua Indiana water utility — and that’s a figure they’d rather the public didn’t know.

After a debate at Tuesday night’s City Council meeting, council voted 5-4 to reveal the attorney fees, which the city claimed were confidential, privileged attorney-client material.

Last year, City Councilman Tom Smith, R-1st District, asked the city for a summary of all consulting fees it had paid for 2003 through 2005. The initial list omitted legal fees that have been paid for several City Utilities issues, including the Aqua Indiana matter. The city has been trying to acquire the water utility for years. * * *

Several weeks ago, the city provided a summary of legal fees paid for the Aqua Indiana issue and other utility-related legal matters, but it told council members the information should remain confidential.

The city is pursuing dual paths to try to acquire Aqua Indiana — it is seeking condemnation through eminent domain, and at the same time is negotiating with Aqua Indiana to try to reach a settlement. The reluctance to publicly reveal legal costs associated with the Aqua Indiana matter stemmed from a concern that doing so would give Aqua Indiana an advantage in any settlement by knowing how much the city already had spent on attorney fees. * * *

City attorney Tim Manges told council members, “I wanted to be careful with this issue,” but said ultimately it was the council’s decision as to whether or not to reveal the costs.

City Council attorney Phil Larmore disagreed that the legal fees were protected by attorney-client privilege, noting that it’s the client’s decision — in this case, the taxpayers — not the attorney’s.

Meszaros argued against releasing the figures on the legal fees at the meeting, which was televised live on Comcast Cable Channel 58. “We are in very intense settlement negotiations right now,” he said. “It is a vulnerable time in this process.” * * *

The majority of the legal fees spent on Aqua Indiana matters have been paid to the Bingham and McHale law firm, with $429,299 being paid to them in 2003; $398,838 in 2004; and $397,443 in 2005, according to a city document. Those fees were for condemnation litigation, settlement negotiations, rate-case opposition and other matters.

Posted by Marcia Oddi on Wednesday, April 19, 2006
Posted to Indiana Government

Tuesday, April 18, 2006

Ind. Decisions - Two cases decided today by Supreme Court

Posted late this afternoon:

In Donna M. Schriber v. Anonymous, a 6-page opinion, Justice Dickson writes:

The plaintiff in this medical malpractice action seeks appellate review of a trial court or-der that found the defendant to be a qualified healthcare provider under the Indiana Medical Malpractice Act. She seeks to pursue her complaint for damages free of the constraints of the Act. The defendant, asserting that two of the three counts of the complaint were not timely and properly filed with the Department of Insurance, seeks to preclude plaintiff from any remedy on these counts. We decline both claims and, as explained below, disagree with the remedy fashioned by the Court of Appeals and find this appeal to be premature.

In Joseph E. Corcoran v. State of Indiana, an 8-page opinion, Justice Sullivan concludes:

We affirm the post-conviction court’s dismissal of Joseph Corcoran’s February 10, 2005 petition for post-conviction relief. We hold that the February 10, 2005 petition does not relate back to the unverified September 9, 2003 petition as the latter was not timely filed.

The Court takes judicial notice of the stay of Corcoran’s sentence entered by the United States District Court for the Northern District of Indiana and so will not set an execution date at this time, notwithstanding the requirements of Ind. Criminal Rule 24(H) and Indiana Code Section 35-50-2-9.

Rucker, J., dissents without separate opinion.

Posted by Marcia Oddi on Tuesday, April 18, 2006
Posted to Ind. Sup.Ct. Decisions

Law - The Congressional Review Act, ten years later

Cindy Skrzycki, who writes the Tuesday column, The Regulators, for the Washington Post, today has a column headed "Reform's Knockout Act, Kept Out of the Ring," about the Congressional Review Act, which was sponsored by former representative David M. McIntosh (R-Ind.). The CRA, Skrzycki writes:

was supposed to be the ultimate weapon for curbing big government, the knockout punch for eliminating bad rules. But a recent review of the first 10 years of the law shows it often sits in a corner unused -- and even when unleashed, it misses more regulations than it hits.

The worry was that Congress delegated too much power to federal agencies to write rules to go along with the laws it passed. The CRA was designed to be a powerful oversight tool to get rid of rules that turned out substantially different than lawmakers anticipated.

The procedure allows nullification of a rule if both houses of Congress and the president disapprove of an agency action. A final rule's effective date is delayed for 60 days while Congress makes up its mind. But it has been used successfully only once, to kill a controversial ergonomics rule issued by the Clinton administration Labor Department to deal with repetitive-motion injuries.

Since the law passed in 1996, 37 joint resolutions of disapproval relating to 28 rules have been introduced, according to the Government Accountability Office . Only the ergonomic rule was voted on by both houses. * * *

[McIntosh] envisioned the law as wresting back power from the agencies and the executive branch, which had become increasingly involved in regulatory policy and review. * * *

Instead of eliminating rules, the law has generated a mountain of paperwork. Some 41,218 non-major rules and 610 major rules have been reported to Congress in the past decade. This means that copies of those rules had to be submitted to both houses of Congress and the GAO.

Posted by Marcia Oddi on Tuesday, April 18, 2006
Posted to Administrative Law | General Law Related

Law - Eminent domain laws - more bark than bite?

Here is an interesting story that was in the Boston Globe last Sunday, titled "Eminent domain is dead! (Long live eminent domain!)". Here is oe section from the lengthy article:

But while virtually every state, including Massachusetts, is considering legislation to curb Kelo, a closer look at the legislative response reveals a different story. As moving as the plight of holdouts like the Connecticut resident who was the lead plaintiff in Kelo may be, Americans have long been of two minds when it comes to property rights. On the one hand, there is the old notion that ownership is inviolable, a home is a castle, and the government has no business messing with private property. On the other hand, there is the equally old notion that no one is an island and that the value in any individual's property is deeply interconnected with the health of the community as a whole. Eminent domain may be a power that people love to hate, but it's also one that communities that are serious about planning are rightly reluctant to restrict-and one that should not have to be used only in poor and minority neighborhoods, where residents usually have the least amount of political influence.

As a legal matter, the Constitution says the government can only take private property for a ''public use," but more than a century of precedent interprets that requirement to mean government may use eminent domain for a ''public purpose." Just as government took private property to promote private railroads and mills a century ago, it has done so in recent decades to promote commercial building to revitalize urban areas, from the Inner Harbor in Baltimore to Lincoln Center in New York City.

New London's effort to address its severe economic distress by using eminent domain for private waterfront development seemed well within bounds to the court's majority, even though it involved taking homes in good repair. Nevertheless, the decision came as a shock to many unfamiliar with constitutional case law, generating a groundswell of opposition spanning the usual left-right divide.

Anything opposed by both the conservative Institute for Justice and the liberal NAACP would not seem long for this world, the authority Kelo upheld has thus far survived largely unscathed. As many as 50 anti-Kelo bills are pending in some states, and, at last count, 14 states have enacted laws against it. But to this point, only one has a new law that actually limits eminent domain to government-owned development projects, such as roads, schools, and airports. And that state is South Dakota-which has a legislature that is not big on nuance lately, having just banned abortions in all cases except to save the life of the mother.

The other anti-Kelo state statutes all have more bark than bite-and, interestingly enough, tend to allow exemptions for eminent domain aimed at redevelopment in blighted areas. For example, Alabama's, the first to pass, provides that eminent domain can't be used for economic development except ''on a finding of blight in any area covered by any redevelopment plan or urban renewal plan." That means even a fine house in a ''bad" neighborhood may be taken as part of a broader redevelopment project.

Texas's law contains strong pro-property rights rhetoric before providing that taking private property and handing it to private developers is just fine so long as the private benefit results incidentally from community development or urban renewal efforts aimed at improving ''blighted areas." Another section permits eminent domain in connection with a pending stadium project for the Dallas Cowboys, while yet another allows it for constructing a museum.

Idaho, Kentucky, West Virginia, Utah, and Wisconsin have enacted similarly porous legislation. Indiana and Georgia arguably have somewhat stricter new laws, but they, too, exempt blighted properties, and Indiana's law expressly permits takings for technology parks. Laws passed by Colorado, Delaware, and Ohio are even less aggressive, and Michigan has simply kicked the issue to voters by calling for a constitutional referendum. Thus, the Institute for Justice, which once seemed poised to win a clean sweep, now merely touts the fact that many states have ''in some way" responded to Kelo.

Of course, it's only been one year. But the pending legislation is itself riddled with carve outs in which the very thing that supposedly must be stopped-using eminent domain to transfer property from one private person to another-is expressly permitted.

For its part, Congress has enacted one symbolic anti-Kelo bill, while another bill has passed the House that bans federal funds to states that do not bar the kind of takings Kelo permits. But the federal government is on the hook for lots of money to redevelop areas ravaged by Hurricane Katrina, and eminent domain involving transfers to private developers is likely to be a key feature. What's more, many real estate developers, known to make political contributions, strongly defend the decision. It's unlikely that federal legislation restricting eminent domain will go too far.

Posted by Marcia Oddi on Tuesday, April 18, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals posts five today

In Lance Dawson v. Thomas Newman, Jr., a 9-page opinion, Judge May writes:

Lance Dawson appeals the dismissal under Ind. Trial Rule 12(B)(6) of his suit against Judge Thomas Newman, Jr. Dawson raises two issues, which we consolidate and restate as whether Judge Newman is protected by absolute judicial immunity under the facts alleged in the complaint. We affirm. * * *

Because we agree with the Seventh Circuit that the “functioning of the system is more important than some particular and rare judicial misdeed which can be dealt with in other ways,” we decline to “label some part of the judicial process as administrative or ministerial and thereby encroach on the judicial defense of absolute immunity, as disturbing as the judicial conduct may be[.]” Lowe, 772 F.2d at 313.

(Read this decision in conjunction with this April 6th ILB entry titled "Columnist James J. Kilpatrick features Indiana case.")

In State of Indiana v. Miguel Campos III, a 5-page opinion (with Judge Sulivan's dissent on page 5), Judge Darden dismisses the State's appeal of the trial court's dismissal of Count I, concluding:

The State previously sought an interlocutory appeal, which this Court denied. The State now attempts to circumvent our decision by appealing under Indiana Code section 35-38-4-2(1), which provides that “[a]ppeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken by the state . . . [f]rom an order granting a motion to dismiss an indictment or information.” The State, however, wants to appeal an order dismissing only one count of the information. Indiana Code section 35-38-4-2(1) does not provide for such an appeal.4 See State v. Evansville & T.H.R. Co., 107 Ind. 581, 8 N.E. 619, 620 (1886) (A motion to dismiss an information, “which will authorize an appeal by the state, must be a judgment which finally disposes of the whole case, and not merely a ruling . . . leaving other counts upon which the trial may proceed.). Thus, the State cannot now appeal the dismissal of Count I. See State v. Aynes, 715 N.E.2d 945, 948 (Ind. Ct. App. 1999) (“The right of the State to appeal in a criminal action is statutory and, unless there is a specific grant of authority by the legislature, the State cannot appeal.”). Accordingly, we dismiss this appeal.

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

The order of dismissal dismissed only Count I, the C felony charge. The State was left to proceed only as to the two Class A misdemeanors. The State did not proceed upon those lesser charges nor did it dismiss them. It was not required to do so.

In my view, this court erred in rejecting the interlocutory appeal from the dismissal of the C felony because that issue is and was not thereafter available for review unless the State dismissed the misdemeanor charges.

I would consider the instant appeal as an appropriate appeal from the dismissal.

In John W. Anthony v. Indiana Farmers Mutual Insurance Group, a 13-page opinion, Judge Friedlander writes:
This case stems essentially from a dispute between John W. Anthony and his attorneys regarding a settlement between Anthony and Indiana Farmers Mutual Insurance (IFMI). Anthony, pro se, presents as the sole issue upon appeal the propriety of the trial court’s ruling that Anthony authorized his attorneys to settle his uninsured motorist claim against (IFMI). We affirm.
In Kevin Weaver v. State of Indiana, a 12-page opinion, Judge May concludes:
The jury could have correctly concluded Weaver did not prove he reasonably believed E.B. was sixteen, and the sentencing court did not abuse its discretion in declining to assign weight to the mitigating circumstances Weaver offered. We accordingly affirm Weaver’s conviction and sentence. Affirmed.
In Ward Allen and Allen's Excavating v. First National Bank of Monterey, et al., a 12-page opinion (with a cocurr/dissent beginning on p. 9), Judge May writes:
Ward Allen (“Ward”) appeals summary judgment in favor of the First National Bank of Monterey, Claiborn Wamsley, George Wamsley, Randy Howard and Dick Gearhart (collectively “the Bank”).1 Allen contends the trial court erred in granting the Bank’s motion for summary judgment because the Bank’s perfected security interest does not preclude all liability for damages. We reverse and remand. * * *

The Bank’s perfected security interest is superior to Ward’s interest in the backhoe. However, the Bank may be liable for its failure to comply with Ind. Code § 26-1-9.1-609. We therefore remand so the trial court may consider this issue.

KIRSCH, C.J., concurs.
ROBB, J., concurring in part, dissenting in part with separate opinion.

I agree with the majority’s resolution of the breach of the peace issue. However, because I believe there are issues of material fact with respect to whether the Bank should be estopped to assert a superior interest in the backhoe, I respectfully dissent from the majority’s resolution of this issue.

Posted by Marcia Oddi on Tuesday, April 18, 2006
Posted to Ind. App.Ct. Decisions

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

"Kokomo must pay in records case" is the headline to an AP story posted on the Indianapolis Star website. Sme quotes:

KOKOMO, Ind. -- Fighting a teenager's public records request will cost the city more than $11,000 in attorneys fees.

Howard Circuit Court Judge Lynn Murray on Monday ordered the city to pay the full amount sought by the attorney who handled the lawsuit for Western High School student Ryan Nees.

Murray already had ordered Mayor Matt McKillip to turn over a list of e-mail addresses for the 1,400 subscribers to the city's electronic newsletter. * * *

Nees said he decided to pursue the lawsuit because he believed McKillip was wrongly using the city's e-mail list. The state's public access counselor had also sided with Nees last year on whether the mayor was required to release the mailing list.

Shortly after Murray issued that ruling, the General Assembly amended the state's Access to Public Records Act to give government officials the right to withhold lists of e-mail addresses.

City officials decided against appealing Murray's ruling.

For a list of some of the earlier ILB entries, check here.

Posted by Marcia Oddi on Tuesday, April 18, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Ind. Decisions - More on: Federal court upholds voter ID law

Updating this ILB entry from Saturday on Judge Barker upholding the state votr ID law, Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:

The Indiana Democratic Party said yesterday it will appeal a federal judge's decision upholding the state's voter-identification law.

The appeal is unlikely to affect the May 2 primary, party officials said. * * *

"I respect Judge Barker, but I believe she glossed over several important details in this case," Indiana Democratic Party Chairman Dan Parker said in a statement yesterday. "Hoosiers deserve to have a second opinion." * * *

"We believe the state needs to stop moving backward in time with its election laws," Parker said. "That's why we're going to ask the 7th Circuit (Court of Appeals) to review our case."

Niki Kelly of the Fort Wayne Journal Gazette writes:
The Indiana Democratic Party said Monday it will appeal last week’s ruling upholding the state’s voter identification law, although the party concedes the appeal likely will not affect the May 2 primary election.

The decision was handed down late Friday by U.S. District Court Judge Sarah Evans Barker, who found the rule placed reasonable restrictions on voting. She rejected a claim that the law would unfairly affect the poor, minorities, people with disabilities and the elderly who may struggle to obtain photo identification.

But Indiana Democratic Party Chairman Dan Parker said Barker glossed over several important details in the case, and Hoosiers deserve a second opinion.

“No matter what party someone belongs to, if a legal voter can’t cast a ballot in this or any election, we have a serious problem,” Parker said. “Someone needs to cut through all this white noise and get to the big questions: Is this law good for Indiana? Is it legal, or is it going to set up more roadblocks for people trying to exercise their constitutional right to vote?”

The case now moves to the 7th Circuit Court of Appeals. * * *

There are several exemptions to the law – including those who are indigent or have a religious objection to being photographed. Those who use one of these exemptions will be asked to cast a provisional ballot that will be counted only if the exemption-seeker goes to the county clerk’s office within 10 days to sign an affidavit swearing to the exemption.

Those who forget their IDs can also cast a provisional ballot and then bring identification in within 10 days.

Also, free IDs are available at the Bureau of Motor Vehicles if you can meet the documentation requirements – such as having a Social Security number and birth certificate. So far, almost 60,000 free IDs have been issued by the BMV.

Posted by Marcia Oddi on Tuesday, April 18, 2006
Posted to Ind Fed D.Ct. Decisions

Monday, April 17, 2006

Ind. Law - More on proposed ordinance to keep sex offenders out of Indy public parks [Updated]

The Indianapolis Star reports:

A proposed Indianapolis ordinance to ban child molesters from city parks and other public places is scheduled for a vote tonight in the City-County Council.

The law would require those convicted of sex crimes against children to stay at least 1,000 feet from a public playground, recreation center, swimming pool, beach or sports facility when children are present. Instead of criminal charges, offenders would face fines of up to $2,500.

The measure allows an exception if a sex offender visits a park in the company of another adult who is not an offender.

State lawmakers took up a similar issue this year. A bill that prohibits sex offenders from living within 1,000 feet of a public park, school or youth program center goes into effect July 1.

For background, see this ILB entry from March 28th and this one from Dec. 14, 2005, which surveys court challenges to similar bans.

The proposed ordinance, 2006-184, is available here.

[Updated 4/18/06] "Sex-offender ban, council hit impasse: Officials see Indy's landmark proposal as being either too harsh or too lenient" is the headline to this story by Brendan O'Shaughnessy in today's Indianapolis Star. Some quotes:

Council members voted 15-11 to return Proposal 184 -- which would be one of the most far-reaching sex-offender bans in the nation -- to the Parks Committee for more discussion. * * *

Many council members who blocked the city proposal said they wanted to strengthen what one called a weak attempt to "jump on the bandwagon" against sex offenders.

"I don't see any teeth in this," said Councilman Lincoln Plowman, a Republican. "It's window dressing that doesn't do anything to protect our children." He said fines would not deter someone who previously was not stopped by criminal laws against such actions.

Two Democrats joined 13 Republicans in deciding the issue needed a deeper look.

Instead of criminal charges, the ban would require fines of $300, rising to $500, then $2,500. Some council members want to discuss the possibility of starting the fine at $2,500.

A similar ordinance in Plainfield was overturned as unconstitutional. Proposal 184 attempts to avoid a lawsuit by borrowing a page from conditions sometimes used for those on probation: Sex offenders could visit parks and other gathering places in the company of an adult who is not an offender.

Kobi Wright, the city's corporation counsel, told council members that the proposal had to be written narrowly enough to pass constitutional challenges while still being broad enough to have some effect. * * *

Others said the proposal goes too far, dumping on a group that has become a popular target for feel-good legislation.

"I think it's overreaching," said Angela Mansfield, a Democrat. "Around this country, this is the hot legislation, like the zero-tolerance laws or let's get tough on drugs. They didn't decrease drug use; they just filled up our prisons."

Ken Falk, legal director of the American Civil Liberties Union of Indiana, said the proposal isn't constitutional. People concerned about the ban have contacted his office, and he said he expects a legal challenge.

"Not a lot of municipalities have taken such a broad stroke," Falk said. "It's a ban based not on present behavior but on a past conviction, regardless of whether they're any threat today."

Posted by Marcia Oddi on Monday, April 17, 2006
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts one today

In Rusty Bradbury v. Comprehensive Mental Health Services, a 5-page opinion, Chief Judge Kirsch writes:

Rusty Bradbury appeals from the trial court’s order involuntarily committing him temporarily to a mental institution.1 He raises one issue, which we restate as whether sufficient evidence supported the involuntary commitment order. We affirm. * * *

Essentially, Bradbury asks us to reweigh the evidence presented at his commitment hearing. This we cannot do. We may not reweigh evidence in reviewing a challenge to the sufficiency of the evidence with respect to commitment proceedings. M.Z., 829 N.E.2d at 637. After hearing testimony from Dr. Metzger, Baird, and Bradbury, the trial court found that Bradbury was gravely disabled. The trial court’s commitment order represents a conclusion that a reasonable person could have drawn and was sufficiently supported by clear and convincing evidence.

Posted by Marcia Oddi on Monday, April 17, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lake County's lawyers have more cases, make less money than those in Porter, Cook"

"Lake County's lawyers have more cases, make less money than those in Porter, Cook" is the headline to this story by RuthAnn Robinson in today's Munster (NW Indiana) Times. Some quotes:

n an informal comparison of Lake and Porter County prosecutor's offices and the Cook County state's attorney's office, it appears that Lake County deputy prosecutors are overworked, underpaid and inexperienced.

Take starting salaries.

Lake County -- $38,000

Porter County -- $44,000

Cook County -- $48,000

[Lake County Prosecutor Bernard Carter] said it's not unusual to lose candidates to nearby counties because those counties pay more.

"They have to go with the money," he said. "If a deputy can make $15,000 more and have about a third of the case load, they figure the commute is worth it."

But there are those who want to work in Lake County for the experience.

And there's no doubt they'll get lots of chances to try cases with an average caseload of 175 per deputy prosecutor. Compare that to 60 per prosecutor in Porter and about 135 in Cook County.

How much is too much? That's something the Indiana Prosecuting Attorneys Council may be able to answer. It is in the middle of a caseload study, Assistant Director Suzanne O'Malley said.

Posted by Marcia Oddi on Monday, April 17, 2006
Posted to Indiana Courts

Not law but interesting - Lugar rated top 10 senator; Kentucky's Bunning in bottom five

The Louisville Courier Journal reports on a story in this week's Time magazine, that:

Time magazine has named Indiana's Richard Lugar, known throughout the world for his efforts to eliminate unsecured nuclear weapons, one of the nation's Top 10 senators — but Time also called Kentucky's Jim Bunning one of the five worst.

The magazine, on newsstands today, said it created its best and worst lists after talking with dozens of academics, political scientists, and current and former senators. The lists are subjective, not scientific, but a number of political observers said yesterday that they weren't surprised by the results.

"Dick Lugar is the face of the U.S. Senate to most of the world," said Bill Kubik, a professor of political science at Hanover College near Madison, Ind. "His work on nuclear-proliferation issues has done more for American interests than probably anything any other senator has done."

Here is the Time story. Here is the feature headed "Richard Lugar: The Wise Man."

Posted by Marcia Oddi on Monday, April 17, 2006
Posted to General News

Sunday, April 16, 2006

Ind. Law - Parallels between the Toll Road suit and the Fort Wayne Airport suit [Revised and Expanded]

Now available here.

Posted by Marcia Oddi on Sunday, April 16, 2006
Posted to Indiana Law

Ind. Courts - Clark Judges Jacobi, Carmichael speak at meeting

The New Albany Tribune had a story last week about a by Larry Thomas headed "Jacobi, Carmichael speak at meeting: Audience raise questions about ethics, Superior Court post."

Questions about Judge Jerome F. Jacobi’s integrity led to verbal sparring between Jacobi and his audience during a professional association’s monthly meeting Thursday.

The Building Trades Association of Southern Indiana invited Jacobi and Jeffersonville City Court Judge Vicki Carmichael to address its members during the group’s general membership meeting on Thursday at New Albany’s Culbertson West. Jacobi is in his 12th year as judge in Clark Superior Court No. 1 but Carmichael has challenged him in the May 2 Democrat primary.

“I was not informed this was going to be a candidates’ forum,” said Jacobi, beginning his turn at the lectern. “Nevertheless, I am a flexible speaker.”
* * *

Once [association President Bob] Lynn opened the floor to the audience, Jacobi was hit with questions about his integrity almost immediately.

Asked about the ongoing suit between the county’s judges and the Clark County Council over control of probation user fees, Jacobi said the case needs to be “resolved quickly” and “in the best interest of the taxpayers.”

“I believe if I had been the only court involved in probation user fees, this suit would never have happened,” he said, adding it is his opinion that the dispute should have been settled two years ago.

Asked about the ongoing criminal investigation relating to the financial dealings of former chief of staff Jerry Lemmons, Jacobi said, “That situation is pending … and it would be inappropriate for me to comment on that matter.”

Lemmons has denied committing any crimes.

Another member of the audience asked Jacobi whether media reports that he agreed to a three-day suspension in 1999, following alleged ethics violations, were true.

“That’s not the type of question I would expect from the Building Trades Association,” Jacobi said before ultimately admitting he did agree to the three-day leave.

For related ILB entries, check here.

Posted by Marcia Oddi on Sunday, April 16, 2006
Posted to Indiana Courts

Law - Text book rental an issue in Illinois too, with a twist

The lead story in today's Chicago Tribune is headlined "Aging textbooks fail Illinois kids: Throughout the state, schoolchildren are using books that are falling apart and badly out-of-date." Some quotes from the lengthy report:

Across Illinois, students are resorting to duct tape and rubber bands to hold together decrepit textbooks. Other books are so woefully out-of-date they don't teach fundamentals such as the fall of Soviet communism, a three-month Tribune investigation has found.

A survey of 50 districts of varying wealth and size shows public schools are failing to provide the most basic tool of learning: a current book in good condition.

Nearly 80 percent of districts surveyed are using textbooks in a main academic area that are out-of-date--at least 8 years old. About 22 percent of districts have books at least 15 years old.

Some schools have too few books to go around, forcing students to share and limiting teachers' ability to assign homework.

Shortages and old books, however, hardly register in Springfield, where lawmakers decide how much to spend on books. * * *

Among Tribune findings:

Book prices continue to increase, but state funding for textbooks has been flat to declining since 2000-01 and often doesn't buy even one text per child. Local districts, many struggling with deficits, must pick up the rest of the tab, but officials say teacher salaries and other needs take priority over books.

Parents are being squeezed to buy their children's books, a practice unheard of in most states. [emphasis added] In fact, Illinois collects more revenue from book fees and sales in public schools than any other state, federal data show. Some districts also mark up books sold to students by as much as 25 percent, a practice that is raising concerns among state officials.

Like blackboards and chalk, textbooks long have been an academic staple, and educators agree that they are here to stay even though laptop computers and electronic books are popular in some classrooms.

Schools nationwide typically try to replace books every five to eight years to keep up with new developments and changing standards for schoolchildren, said Stephen Driesler, an executive at the Association of American Publishers. * * *

A 2002 survey by the Association of American Publishers and the National Education Association showed that one out of six teachers surveyed did not have enough books for every child.

In California, a 2000 lawsuit over book shortages and other inequities led to new requirements to ensure children have texts to take home.

Although states such as California and Texas fund textbooks predominantly with state tax dollars, Illinois depends more on local property taxes, as it does for most public education expenses.

But with voters rejecting local tax increases, districts rely on parents to pay for books, through fees that help cover book purchases or book sales to students.

Even with parents chipping in, Illinois doesn't spend as much on textbooks per student as other states such as Florida, New Jersey and New York, publishing industry data show.

Posted by Marcia Oddi on Sunday, April 16, 2006
Posted to General Law Related

Law - Unique zoning protest in Cincinnati area

The Cincinnati Enquirer reports today on a couple who were refused to right to build a fence, so have been protesting with "unusual yard décor". Some quotes:

Sutton and Lade set up the toilets - almost all donated by their plumber friends - because Anderson Township refused to allow them to build a 6-foot-high cedar fence along the Lancelot Drive side of their backyard.

The couple wanted the fence for privacy and to allow their grandchildren to play safely. But the township's board of zoning appeals said the fence would be too visually imposing.

Since then, Sutton and Lade have greatly expanded their own visually imposing display. * * *

Paul Drury, Anderson Township's assistant director of development services, said he gets occasional calls about the yard display.

"Most of them are inquiries about why they're allowed to do that," he said. "We haven't found any zoning violations."

That underscores Sutton and Lade's point, they say. Somehow, it's okay to put 15 toilets in your yard, but not to erect a cedar fence.

Posted by Marcia Oddi on Sunday, April 16, 2006
Posted to General Law Related

Ind. Courts - "Supreme Court coming Monday" to Richmond

"Supreme Court coming Monday: Public invited to watch Indiana's top justices hear appeal at IU East" is the headline today to this story in the Richmond Palladium-Item.

See the earlier ILB entry from April 12th here.

Posted by Marcia Oddi on Sunday, April 16, 2006
Posted to Indiana Courts

Ind. Law - More on: Lawmaker to work for firm linked to Toll Road lease

Lesley Stedman Weidenbener of the Louisville Courier Journal writes today on the lack of any restrictions on Indiana legislators retiring and taking jobs as legislative lobbists. Some quotes:

A lawmaker who announced earlier this year that he wouldn't be seeking a second term said last week he'll be taking a job with an Indianapolis law and lobbying firm instead.

And while Rep. Luke Messer, R-Shelbyville, is finishing his term in the Indiana House, his job at Ice Miller LLP has already begun. Last week, he told The Times of Northwest Indiana [see ILB entry here] that he'd stay away from state policy issues until his term ends this fall.

Such a move -- from lawmaker to lobbyist -- is legal in Indiana, which has no requirement that a former legislator wait any period of time before returning to the Statehouse to try to woo former colleagues' votes.

In fact, the practice is quite common in Indiana. * * *

Such transitions are not allowed in the executive branch, where Gov. Mitch Daniels has imposed a waiting period for some state employees who want to go to work with companies which they previously regulated or with which they had some other type of contact. But they remain commonplace at the General Assembly. * * *

In Indiana, the issue has been occasionally discussed but hasn't been considered seriously in recent years.

The issue could come up, though, next year, when House Speaker Brian Bosma has promised he'll pursue some changes in legislative ethics rules.

He hasn't been specific, so there's no way to know yet whether a waiting period might be part of his proposed changes. But it wouldn't be a surprise.

The Indianapolis Star Sunday column, Behind Closed Doors, reports:
State. Rep. Luke Messer, R-Shelbyville, is following in the footsteps of dozens of other legislators over the years.
He's becoming a lobbyist. But he's doing it even before he stops being a legislator.

Messer is finishing out his term, which ends this November. But he's just taken a new job as a partner in the public affairs division of the Indianapolis law firm Ice Miller LLP. Messer said that until he's no longer a state lawmaker, he'll focus on federal issues. "I certainly don't want to have any conflicts of interest," said Messer, who previously was executive director for the Indiana Republican Party. After the election, he'll also be lobbying on state and local issues.

While Messer had announced at the beginning of the year that he was leaving his post with the state party, he said he did not interview with Ice Miller, or any other firm, until after the session ended.

At least 20 former legislators are serving as lobbyists, including former House speakers Paul Mannweiler, R-Indianapolis, and Mike Phillips, D-Boonville. Attempts in the past to pass laws imposing a cooling-off period between when legislators leave office and when they can start lobbying have failed.

Posted by Marcia Oddi on Sunday, April 16, 2006
Posted to Indiana Government | Indiana Law

Saturday, April 15, 2006

Ind. Decisions - More on: 7th Circuit revives lawsuit involving Notre Dame

Updating this ILB entry from yesterday, Charles Wilson of the AP has a detailed review of the decision and reactions to it - access the story here via the Fort Wayne Journal Gazette. Some quotes:

A judge can order the University of Notre Dame to pay back a government grant used to train teachers in Roman Catholic schools if he finds the use was unconstitutional, the 7th U.S. Circuit Court of Appeals ruled.

The judges in Chicago ruled 2-1 Thursday that Indianapolis federal Judge Larry McKinney acted prematurely when he dismissed the case as moot because the $500,000 Department of Education grant had already been spent.

The American Civil Liberties Union of Indiana, which sued on behalf of taxpayers, wanted the court to order the Education Department to demand repayment. But Circuit Judge Richard Posner said that procedure was needlessly complex. * * *

Notre Dame received the money to redistribute to other colleges to help them replicate the Alliance for Catholic Education. The program trains teachers who then teach in Catholic schools that have inadequate resources. Private donations also fund the program.

The ACLU of Indiana said the government had no business paying for religious education. The ruling is "another step in our ability to be able to prove that the government should not be subsidizing this type of parochial school training," said ACLU of Indiana attorney Ken Falk.

"From our view of this program, it was purely to teach teachers to teach religion," said Falk, who did not argue the case in court.

The attorney who represented Notre Dame disagreed, saying the school had handled the program in line with previous U.S. Supreme Court decisions.

"There was no teaching of religion involved," said Michael Carvin, an attorney with Jones Day's Washington office. "The money was segregated for secular purposes."

Carvin said Notre Dame might decide to appeal to the Supreme Court. He agreed with Circuit Judge Diane Sykes' 13-page dissent.

Sykes wrote that the case was moot and the two-judge majority kept it alive by concocting a "newfangled" remedy inconsistent with previous rulings.

"This is a dramatic expansion of taxpayer standing, and there is no authority for it," she wrote.

Posted by Marcia Oddi on Saturday, April 15, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Federal court upholds voter ID law [Updated]

"Law upheld: Voters need photo ID - Federal judge says plaintiffs failed to demonstrate hardship" is the headline to a front-page story by Richard D. Walton this morning in the Indianapolis Star. The 127-page opinion by federal (SD Ind.) Judge Sarah Evans Barker, Indiana Democratic Party v. Rokita, is available here. Some quotes from the Star story:

On Friday, U.S. District Judge Sarah Evans Barker upheld Indiana's stringent voter-identification law. Barker said plaintiffs, including the Indiana Democratic Party, failed to back up their contention that the ID law is unduly burdensome and would keep many people from casting ballots.

Barker wrote in her 126-page opinion that the opponents' arguments would require "the invalidation" not only of the photo ID statute, "but of significant portions of Indiana's election code which have previously passed Constitutional muster."

A number of states require photo identification for voters, but Indiana's law is considered among the most stringent because it offers few exceptions to the requirement.

The Democratic Party and the American Civil Liberties Union of Indiana, a co-plaintiff, had argued that the law -- passed by the Republican-led legislature in 2005 to prevent voter fraud -- would particularly affect the elderly, minorities and people with disabilities.

They would bear the cost of obtaining the documentation needed to get state-issued ID cards, plaintiffs said, arguing that having to spend money to vote was the modern-day equivalent of the "poll tax" -- the Jim Crow-era method of keeping black people from voting.

But Barker wrote: "Despite apocalyptic assertions of wholesale voter disenfranchisement, plaintiffs have produced not a single piece of evidence of any identifiable registered voter who would be prevented from voting" because of the statute.

The judge had particular scorn for a report prepared by an expert hired by the Democrats that said 989,000 registered voters in Indiana do not possess a BMV-issued driver's license or photo ID.

Barker said she did not consider the report in her determination because she viewed the analysis and conclusions as "utterly incredible and unreliable." Among the report's numerous flaws, she said, was that it failed to account for Indiana's bloated voter rolls, called by a defense expert the most inflated in the nation.

The AP story, by Tom Davies, is available here. It includes a pointer to the Secretary of State's Voter ID page.

[Update] For links to earlier ILB entries on the voter photo-ID law, start with 1/3/06 and this 12/22/05 entry.

Posted by Marcia Oddi on Saturday, April 15, 2006
Posted to Ind Fed D.Ct. Decisions

Friday, April 14, 2006

Ind. Law - Parallels between the Toll Road suit and the Fort Wayne Airport suit [Revised and Expanded]

The ILB is struck by the parallels between Bonney v. Indiana Finance Authority, a suit filed Wednesday contesting the toll road deal, and the case of SMDfund v. Fort Wayne Airport Authority, decided by the Indiana Supreme Court on Aug. 2, 2005.

On Sept. 13, 2004 the Indiana Supreme Court granted transfer in the case of SMDfund, Inc. et al. v. Fort Wayne-Allen County Airport Authority (6/28/04 AllenCirCt), via the infrequently used Rule 56 which permits an appeal directly from the trial court "upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination."

The trial court decision in SMDfund.

This ILB entry from 9/21/04 summarizes the trial court decision. The trial judge defined the issue as: "Whether the doctrine of the statute of limitations precludes citizens from contesting the constitutionality of a statute that provides a basis for the formation of an airport authority 17 years after the statute was enacted."

Plaintiffs asserted that the 1985 statute authorizing the airport authority was unconstitutional as "special legislation". As the trial judge noted: "To this day, Allen County is the only county in Indiana that meets the requirements of the specific population bracket stated in the statute."

The Plaintiffs argue that the statute of limitations does not apply to this lawsuit because the [airport] statute should be considered special legislation therefore allowing Plaintiffs to bring a claim at anytime. The Plaintiffs base this reasoning from a case in which property owners filed a remonstrance and presented a petition in opposition to annexation by the defendant city. Municipal City of South Bend v. Kimsey. 78 1 N.E.2d 683 (Ind. 2003).
Relying on the 10-year general statute of limitations, IC 34-11-1-2, the Airport Authority asserted that the statute precluded the plaintiffs from contesting the constitutionality of the airport authority statute.

[Note: I've read the trial court opinion again this weekend, and below is my revised analysis of the reasoning ...]

First, the trial court stated that if the statute was unconstitutional because it violated the restriction of Art. 4, Sec. 23 against use of a special law "where a general law could be made applicable," then it had been unconstitutional from the date of its enactment.

A facial challenge is a claim that the "mere enactment" of a statute is unconstitutional. * * * An as-applied challenge focuses on the effect of a statute's application to specific property and individuals. * * *

In a facial challenge, the statute of limitations begins to run on the date the statute was enacted. * * *

Since Indiana does not have a statute of limitations that applies specifically to a constitutional challenge premise[d] on special legislation, the general statute of limitations [of 10 years] would apply * * *.

The trial court reasoned that if Plaintiffs' claim was to be successful, then the statute at issue would have to be special legislation. But if it was, the court continued, then the 10 year statute of limitations would have begun to run at the time of the law's enactment 17 years before, in 1985, and would act to bar the suit. The trial court concluded:
The Authority's motion for summary judgment requests that Plaintiffs' claim be barred because the statute of limitations precludes any challenge to the constitutionality of the statute.

Plaintiffs' claim was filed more than 17 years after the enactment of the challenged statute. Because * * * Plaintiffs filed a facial challenge, the general statute of limitations of ten years bars Plaintiffs from filing such a claim.

The ILB made one point after reviewing the opinion that is worth repeating here:
If upheld, would this decision mean that the General Assembly can protect its statutes from constitutional challenge by simply passing a law limiting the time for challenge (or perhaps totally prohibiting challenge)? Or does the separation of powers play a part here?
Well, it was that question in the back of my mind this week as I read about the toll road suit.

The Supreme Court decision in SMDfund.

From the ILB entry of August 2, 2005:

Today's 9-page ruling, by Justice Boehm, with the other four justices concurring, begins with the somewhat disappointing:
The plaintiffs challenge the constitutionality of the statute creating the Fort Wayne-Allen County Airport Authority. The Authority was created in 1985 pursuant to a statute the plaintiffs now contend violates the prohibition in the Indiana Constitution against special legislation. We hold that laches bars this claim.
At page 8 Boehm writes:
In short, laches bars the plaintiffs’ claim. Because we hold that the plaintiffs’ claim is barred by laches, we need not address the statute of limitations issue which was the basis of the trial court’s ruling reaching the same result. We affirm the trial court’s entry of summary judgment for the defendants.
The Supreme Court thus avoided the question of whether the General Assembly by law could limit the time for challenge of a statute's constitutionality, by stating that the right to challenge the constitutionality of a statute, even apparently a statute that was void ab initio and in every application, could be lost by the passage of time.

It seems perhaps a short step from a holding that a patently unconstitutional statute could become unchallengeable though the passage of time via laches, and the same result via the application of a statute of limitations (although one turns on the inaction of a plaintiff, and the other upon a limitation set by the General Assembly.)

Some reactions to the SMDfund ruling.

This ILB entry from August 4, 2005 quoted from an editorial in the Fort Wayne News-Sentinel that concluded:

A group called SMDfund filed a lawsuit in 2003 challenging the law that created the airport authority. The law, the suit said, violated the state constitution’s prohibition on special legislation that affects only certain communities instead of the whole state. Lawmakers historically have gotten around that provision by using population limits instead of naming specific locations. The airport-authority legislation, for example, allowed a city-county airport authority in any county populated by more than 300,000 but less than 400,000 people. Guess which Indiana county is the only one of 92 to fit that category?

The Indiana Supreme Court had always looked the other way instead of confronting such fiction. But in 2003, justices struck down an annexation law in St. Joseph County because it was contrary to one applying to the rest of Indiana. That made a lot of people nervous.

Which the court probably realizes. This week, it ruled against SMDfund, but on the narrow, technical grounds that the group shouldn’t have waited 17 years before challenging the law. Of course, the group had no reason to challenge the law before the Supreme Court signaled that it might take such a challenge seriously.

Nobody should relax too much because of this ruling. The court left another shoe up in the air, which it could drop at any time.

This ILB entry from September 5, 2005 quotes from an opinion piece in the Fort Wayne Journal Gazette from Joe Tocci, "a Fort Wayne resident and chairman of the SMDfund, which represents Smith Field supporters." Some quotes:
Like any other legal complaint, courts can’t proceed on a constitutional matter except when brought in a specific case. SMDfund v. Fort Wayne-Allen County Airport Authority, et al., was such a case. At the lawsuit’s filing, the 2003 Supreme Court’s Kimsey ruling was a watershed that could halt the General Assembly’s addiction to making special laws beneficial to local elites and otherwise confine them to making uniform policy beneficial to all of us. * * *

Each time an Indiana court excused bracketed populations, its decision bolstered legal precedent and emboldened Indiana’s legislators to do it again until it is now routine. The remarkable thing is that for more than 20 years, Indiana courts have found excuses for allowing this transparent device to disguise the constitutional violation.

The Kimsey ruling suddenly changed everything. When the Indiana Supreme Court defined explicitly, for the first time, the only legal exception to our Constitution’s prohibition, the justices seemed to be signaling they’d finally had enough. Thirty-one days after Kimsey, SMDfund asked the court to try the high court’s new criteria against the airport authority’s circumstance.

The airport authority’s claim that we waited 17 years is nonsense. The high court’s reliance on it is stunning. When the Supreme Court upheld dismissal of SMDfund, the justices rescinded the Kimsey notice, and by doing so unanimously, the justices may have emboldened the legislature to resume the log rolling with the highest impunity since 1850.

This week's toll road suit.

As reported by the Fort Wayne Journal Gazette and quoted in this ILB entry yesterday:

The legislation authorizing the public-private partnership gave opponents of the plan only a 15-day window to dispute the deal – and that deadline was Wednesday.
HEA 1008 (PL 47-2006), a 107-page bill, at p. 41 adds a new Article 8-15.5 to the Indiana Code, titled "Public-Private Agreements for Toll Road Projects."

Chapter 6 is titled "Selection of Operator by RFP." Section 12 (IC 8-15.5-6-12), at p. 47, provides:

Sec. 12. Any action to contest the validity of a public-private agreement entered into under this chapter may not be brought after the fifteenth day following the publication of the notice of the designation of an operator under the public-private agreement as provided in section 11 of this chapter.
The first question is, "Does this 15-day statute of limitations apply to the agreement, or to the authorizing statute?"

Clearly, by its terms, the limitation applies to the agreement. If HEA 1008 is successfully challenged, the result could impact the validity of the agreement itself.

In past decades, laws creating quasi-public authorities such as the State Office Building Commission and the Toll Road Commission that authorized the issuance of revenue bonds, were never implemented until a friendly "test case" was brought, posing every possible challenge to the validity of the statute. It was a given that until the Supreme Court ruled that the law met every test, Wall Street would not underwrite the financing.

What if a challenge to the new toll road law had not been filed until, say, five years from now?

Perhaps the plaintiffs in Bonney are doing the State a favor, whatever way the suit turns out.

Posted by Marcia Oddi on Friday, April 14, 2006
Posted to Indiana Law

Law - Ohio Supreme Court: Governor’s office may withhold internal documents from public

Following up on this ILB entry from March 21st headed "Two Ohio Supreme Court decisions regarding public records" and this one from March 27th headed "Another records case heads to Ohio's top court; what about Indiana?" is this editorial today in the Cincinnati Enquirer headlined "Ohio court wrong on privilege." However, this is about yet a fourth recent Ohio public records case, this one involving Governor Taft. Some quotes:

The Ohio Supreme Court on Thursday gave the governor power to withhold documents from public view in a badly formed decision that could allow the chief executive unprecedented power to cover up his own mistakes.

We agree with the strenuously worded dissent by Justice Paul Pfeiffer: "the majority has crafted a lingering monument to bad government. For the first time in our history, Ohio governors will be free to operate in the dark."

The irony of this decision is that the harm it could do probably won't involve the case before the court. The danger is in the opportunity for cover-up that it will provide for future administrations with future problems.

Thursday's 5-2 decision involved a dispute between Gov. Bob Taft and State Sen. Marc Dann, D-Youngstown, involving the "Coingate" investment scandal in the Ohio Bureau of Workers Compensation. That scandal involves $12 million to $13 million missing from an investment in rare coins BWC made with Tom Noe, a major GOP donor from Toledo. Noe has pleaded not guilty to theft and money laundering. He was a political friend and sometimes golfing partner of Taft's. Taft was fined last year after pleading no contest to ethics violations for not reporting greens fees, golf outings and other gifts, including some from Noe.

Dann, seeking the Democratic nomination for attorney general, requested copies of weekly reports made to the governor by the head of BWC over a period of several years. Taft released some, redacted some and withheld others, claiming executive privilege. Dann sued, claiming the reports were public records.

The Columbus Dispatch reported yesterday, in a story headlined "Top court says governor’s office may withhold internal documents from public":
Bob Taft and future Ohio governors can withhold internal memoranda and communications from the public under a new exception to the state's open-records law, the Ohio Supreme Court ruled this morning.

In a 5-2 decision, justices said the governor and his aides have ``executive privilege'' that overrides public access to communications between the governor's office and state agencies.

The decision settles a case brought by state Sen. Marc Dann, D-Liberty Township, seeking access to memos between Taft's office and the Ohio Bureau of Workers' Compensation. Dann requested the memos and weekly reports in June 2005 amid a burgeoning scandal over Bureau of Workers Compensation investments in a rare coin fund controlled by Thomas W. Noe, a Republican fundraiser with ties to Taft.

The court ruled that Taft's interest in candid communications between his office and department managers is more important than the public's right to review those communications. Advocates for open records called the ruling a crippling blow to the public's right to know.

Here is a link to the Ohio opinion in State ex rel. Dann v. Taft.

Posted by Marcia Oddi on Friday, April 14, 2006
Posted to General Law Related

Courts - Kentucky judicial candidates encouraged to avoid issue surveys

A story in the Lexington Herald-Leader that begins:

A non-partisan group seeking to protect the integrity of the courts is asking judicial candidates to be wary of answering issue questionnaires from special-interest groups.

The Kentucky Judicial Campaign Conduct Committee, formed by Chief Justice Joseph Lambert, says answering issue surveys may create a perception that a candidate is committed to ruling a certain way on particular cases if he's elected. The committee is sending a letter to every candidate in the more than 200 judicial races in Kentucky this year.

The appearance of commitment "threatens the cornerstone of the judicial system -- the independence of judges, and the ability to remain free of outside influence," the letter states.

Not answering surveys could help judges prevent some motions for recusal by attorneys, according to the letter.

The letter was welcomed by some judicial candidates but criticized by a socially conservative activist who says voters deserve to know a judge's legal and constitutional philosophies.

Posted by Marcia Oddi on Friday, April 14, 2006
Posted to Courts in general

Ind. Decisions - 7th Circuit revives lawsuit involving Notre Dame

Updating this ILB entry from yesterday on the 7th Circuit decision involing Notre Dame, the Chicago Tribune reports:

A federal lawsuit alleging that the University of Notre Dame and the U.S. Department of Education used federal money for religious purposes was ordered to proceed Wednesday by a panel of the 7th Circuit Court of Appeals in Chicago.

In a 2-1 decision to send the case back to a lower court in Indiana, the panel of judges found that the case was prematurely dismissed without deciding issues such as whether the university appropriately tracked how the money was spent.

The lawsuit sought to prevent Notre Dame from spending the money, but the district court ruled that the issue was moot and threw out the case because Notre Dame already had received and spent the grant.

Without ruling on the merits of the case, the appeals court panel said the money could be returned to the government if the lower court finds in favor of the plaintiffs.

Posted by Marcia Oddi on Friday, April 14, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Lawmaker to work for firm linked to Toll Road lease

"Lawmaker to work for firm linked to Toll Road lease: Rep. Luke Messer says he didn't know law firm was involved in deal."

Patrick Guinane reports today in the Munster (NW Indiana) Times:

A state lawmaker who last month helped legislation to lease the Indiana Toll Road pass by the barest of margins is going to work for an Indianapolis law firm connected to the $3.8 billion deal.

State Rep. Luke Messer, R-Shelbyville, the former executive director of the Indiana Republican Party, was not seeking re-election and will leave the General Assembly when his term ends this fall. On Monday, he joins the lobbying arm of Ice Miller, one of the state's largest legal firms.

"Actually, I did not know they represented anyone in connection with the Toll Road," said Messer, one of 51 House Republicans who voted to authorize the lease.

"I voted on it based on the merits and based on the fact I think it's the best thing for the state," said Messer, adding that his job search didn't start until after Legislature adjourned March 14. "I can say with complete faith the two things were completely unrelated." * * *

The state expects to pay roughly $25 million in legal and consulting fees related to the highly complex deal. Ice Miller attorneys are charging the state hourly rates ranging from roughly $100 to more than $300, State Public Finance Director Ryan Kitchell said.

The biggest slice of the consulting work went to the Chicago office of Goldman Sachs, which will receive $19.5 million. Kitchell said he did not yet know the size of Ice Miller's bill, but said the firm is giving the state a 15 percent discount.

Ice Miller also has a $900,000, one-year contract to help the governor's office build a new Indianapolis Colts stadium and expand the Indiana Convention Center.

Messer said he will stay away from state policy issues until his House term is over.

No state law prevents former legislators from immediately lobbying past colleagues. House Speaker Brian Bosma, R-Indianapolis, has said he wants the House to focus on ethics reforms in 2007, but he has not offered specifics.

Messer's term ends with the November election. At that time, assuming he has served 3 two-year terms and a day, he will be eligible for lifetime health benefits.

Posted by Marcia Oddi on Friday, April 14, 2006
Posted to Indiana Government | Indiana Law

Environment - State CAFO strategy questioned

"CAFOs dominate rural strategy session" is the headline to a story by Seth Slabaugh in the Muncie Star-Press. Some quotes:

WINCHESTER -- A community input session Wednesday night on the state's proposed Rural Indiana Strategy for Excellence (RISE) became what the facilitators described as argumentative, emotional and volatile.

The meeting was attended by about 100 people, the majority of whom made it clear that their vision for the Indiana countryside does not include an influx of industrial-size hog farms, also known as concentrated animal feeding operations (CAFOs).

Lt. Gov. Becky Skillman last year initiated RISE, a 37-page draft of which is being unveiled in 16 communities throughout the state.

Skillman did not attend the meeting in Winchester, but in a letter that was read to the audience, she wrote, "Together, we can bring economic opportunity and develop strong, sustainable communities that provide a high quality of life for those who call rural Indiana home."

"These pigs farms are going to destroy what (economy) we've still got left," one member of the audience told facilitators Nancy Kinder, director of Eastern Indiana Development District, and Joe Pearson, staff associate at Purdue University's Center for Regional Development.

Others in attendance complained that the swine CAFOs "being pushed down our throats" would pollute Randolph County's air and water and make the county unattractive to new business.

"Your local land-use laws are what can protect you," Kinder told the crowd. (In an interview after the meeting, Kinder criticized Randolph County's Area Planning Commission for not addressing concerns about CAFOs raised by the public in recent years. "No planning is bad planning," Kinder told The Star Press).

Another, very brief story today in the Star-Press is headed "State ag department responds":
Deborah Abbott, spokeswoman for Andy Miller, the commissioner of the Indiana Department of Agriculture, issued this response Thursday to demands from Randolph County residents for a moratorium on concentrated animal feeding operations (CAFOs):

"This administration does not support a moratorium on large livestock farms. Most farmers are good managers and protect the environment.

Livestock farming and other agribusiness offer opportunities for local economic growth. However, it is the local leaders -- not the state -- who decide if large livestock farms or other agribusinesses are good opportunities for their communities.

We want to assist communities and farmers in starting this dialogue and finding the right locations in Indiana to expand livestock production."

Posted by Marcia Oddi on Friday, April 14, 2006
Posted to Environment

Ind. Law - When wind hit, privacy flew out the window

"When wind hit, privacy flew out the window: Tower's tenants work to restore lost documents" is the headline to a story by Erika D. Smith in the Business Section of today's Indianapolis Star. Some quotes:

When that fateful 70 mph wind cut through Downtown and made the Indiana Square building look like a block of Swiss cheese, it deposited more than just glass, vertical blinds and insulation on the streets below.

Thousands of confidential papers fluttered to the ground, too, then blew for blocks.

Internal memos, mismatched pages of litigation, printed e-mails, insurance documents, sealed medical bills and even part of someone's will were drifting in the streets and stuck in bushes after the storm.

Most of the documents appeared to belong to law firms, including Krieg DeVault LLP and Tabbert Hahn Earnest & Weddle. But some could belong to accounting firms or professional services firms in Indiana Square. * * *

Offices on floors 16 to 34 were damaged in the April 2 windstorm, which also closed several surrounding streets. But it remains unclear exactly which firms were in those now- windowless offices because a comprehensive list of tenants has not been made public.

Spokespeople for the building's owners say they won't release a list without the tenants' permission. So the general public, at least, is in the dark about which firms lost documents through missing windows. * * *


Law firms Krieg DeVault and Tabbert Hahn Earnest & Weddle say they generally deal with corporate clients, not individuals. So the papers that escaped their offices wouldn't have that type of personal information on them.

That doesn't mean having legal documents sucked out of windows is good.
"Obviously, there's an attorney-client privilege, and clients would not want their confidential information blowing through Downtown," said Michael Williams, managing partner for Krieg DeVault.

That's why attorneys from the firm say they combed the streets around Indiana Square early April 3, picking up every piece of paper they could find from Krieg DeVault. The official cleanup process didn't begin until days later. * * *

The windstorm yanked windows from six to 10 offices at Krieg DeVault. Since then, work crews have been removing documents from those offices and putting them in a communal dry area. Attorneys had yet to match them up with the documents the firm still has.

"We won't know that for sure until we identify all of the files," Williams said. "As soon as we get access to those files, we can figure out what happened."

Bob Weddle, a partner with law firm Tabbert Hahn Earnest & Weddle, had a similar story.

But of the many offices in his firm's 19th-floor suite in Indiana Square, only his lost a window -- and documents. Some of those documents have been reconstructed already. Others? "I'm not even sure what those were," Weddle said. "I wake up in the middle of the night and wonder what those were."

Attorney Michael Cracraft got lucky. The managing partner of Hackman Hulett & Cracraft LLP lost the window to his 24th-floor office, but several court briefs and other public documents laying nearby miraculously stayed put. Clients were informed about potential loss anyway.

"I got an e-mail from a client which was somewhat facetious," Cracraft said. "He said: 'None of those records that blew out were my files, were they?' I said: 'No, your case is closed.' "

"I don't keep confidential files on the windowsill," he added.

See these earlier ILB entries on the damage to the bank tower from April 3rd and April 4th.

Posted by Marcia Oddi on Friday, April 14, 2006
Posted to Indiana Law

Ind. Decisions - More on: Gay couple wins adoption appeal

"Court OKs adoption by gay couple: Ruling paves way for unmarried partners to adopt" is the headline to a front-page story in the Indianapolis Star today by Tim Evans. Some quotes:

An appeals court on Thursday cleared the way for unmarried couples in Indiana -- including gays and lesbians -- to jointly adopt children.

In a 2-1 decision, the Indiana Court of Appeals denied a Morgan County judge's efforts to overturn the adoption of an infant girl by a same-sex couple in April 2005 in Marion County. The judge opposed the adoption not because the partners were gay, but because, he said, Indiana law did not allow for simultaneous adoptions by unmarried individuals.

Previously, adoptions to unmarried couples were granted only if the child was either the natural offspring of one partner or already had been adopted by a partner in the couple, rights that have been granted by other recent appellate decisions.

"The main thing this ruling does is approve joint adoption by unmarried couples when it is in the best interest of the child," said Patricia Logue, senior counsel for Lambda Legal. The national organization that promotes civil rights for gays represented the couple in the appeals case. * * *

The ruling places Indiana among about 25 states that allow joint adoptions by unmarried couples, Logue said.

Two previous appeals court rulings have established precedent in Indiana for co-adoptions by unmarried couples, but those cases did not address joint adoptions that occurred simultaneously, explained Barbara J. Baird, an Indianapolis attorney who also represented the Morgan County couple in the appeals case.

In the prior decisions, the subject of the adoption was either the natural child of one partner or had been previously adopted by one partner.
"There has been a lot of discussion about whether there has been an amendment (to the law) to affect that," Baird said.

But judges noted in Thursday's ruling that there had been no court ruling or legislation that overturns those appellate decisions.

See yesterday's ILB entries here (3rd case) and here.

Here is a listing of earlier ILB entries on this topic.

Posted by Marcia Oddi on Friday, April 14, 2006
Posted to Ind. App.Ct. Decisions

Thursday, April 13, 2006

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

In JOAN LASKOWSKI and DANIEL M. COOK v. MARGARET SPELLINGS, Secretary of Education, and UNIVERSITY OF NOTRE DAME (SD Ind., Larry J. McKinney, Chief Judge), a 28-page opinion (with Judge Sykes' dissent beginning on p. 13), Judge Posner writes:

This is a taxpayer suit, originally to enjoin a grant by the Secretary of Education of money to the University of Notre Dame to be used for a program called Alliance for Catholic Education (ACE). A congressional appropriation for fiscal year 2000 had earmarked $500,000 to be given Notre Dame for redistribution to several other religious colleges in order to enable them to replicate the ACE program on their own campuses. Consolidated Appropriations Act, 2000, 113 Stat. 1501, 1501A-262 (Nov. 29, 1999). The complaint alleges that the grant violated the First Amendment’s prohibition against Congress’s creating religious establishments, a prohibition that the Supreme Court has interpreted to encompass any direct financial support by the government of religious activities. Notre Dame was permitted to intervene in the case in the district court as a defendant.

ACE is a program for training teachers in Catholic schools. It has three parts—professional development, community life, and spiritual growth. The first part consists of both teacher-training courses and field experience teaching at Catholic elementary and secondary schools. The second consists of the teachers’ residing in faith-based communities while doing apprentice teaching in those schools. The third is encouragement of the teachers to live and work in accordance with the tenets of the Catholic faith. Thus, the program has both secular and religious components.

The district court dismissed the suit as moot because Notre Dame had received and spent the grant, a one-time grant in an appropriations bill. It was too late to enjoin the expenditure and the likelihood of a future such earmark was too remote to warrant injunctive relief.* * *

The suit was dismissed prematurely. VACATED AND REMANDED.

SYKES, Circuit Judge, dissenting. This case is moot. The majority keeps it alive by declaring the availability of a form of restitutionary relief that was not sought by the plaintiff taxpayers and is inconsistent with the doctrine of taxpayer standing under Flast v. Cohen, 392 U.S. 83 (1968), a limited exception to the general rule that citizens lack standing to sue in federal court on generalized grievances about the conduct of government. The Supreme Court has steadfastly refused to expand Flast and has never recognized private party repayment to the Treasury as an appropriate remedy for an Establishment Clause violation in a suit based on taxpayer standing. [numerous cites omitted]

Against this backdrop, the majority holds that a recipient of a federal grant may be ordered to repay the grant as a remedy in a taxpayer lawsuit alleging that the government violated the Establishment Clause in making or insufficiently monitoring the grant. The majority achieves this result by importing the common law doctrine of restitution—a private law concept—into the public law realm of Establishment Clause litigation, vesting taxpayers with a unique sort of qui tam-like authority to sue private parties for reimbursement of the Treasury when the government is alleged to have committed an Establishment Clause violation. And the majority does this even though the claim against the government’s representative is itself moot, making the newfangled remedy against the grant recipient the sole basis for the taxpayers’ standing to pursue the Establishment Clause claim. This is a dramatic expansion of taxpayer standing, and there is no authority for it. I must respectfully dissent.

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending April 13, 2006

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending April 13, 2006.

There are 33 Court of Appeals cases listed this week.

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to NFP Lists

Ind. Decisions - Gay couple wins adoption appeal [Updated]

"Gay couple wins adoption appeal" is the headline to a brief story by Tim Evans posted on the Indianapolis Star website this afternoon about the Courts of Appeals ruling today in In the Matter of Infant Girl W v. Morgan County FCS (see ILB entry here, or just scroll down three). From the Star:

In a split-decision today, the Indiana Court of Appeals quashed a Morgan County judge's efforts to halt the adoption of an infant girl by a same-sex couple.

The court ruled that a Marion County probate court which approved the adoption by two Morgan county women, who have been in a committed relationship for more than 10 years, had the authority to make the decision.

Attorneys for the state had argued the Morgan County court should have had jurisdiction in the case. The adoption was not challenged on the basis of the women's sexual orientation; rather that Indiana law prohibits simultaneous adoption by two unmarried individuals.

See also the Advance Indiana analysis of today's decision.

[Update] Mike Smith of the AP reports:

Unmarried couples, including those of the same sex, can adopt a child through a joint petition that gives both partners equal custody simultaneously, the Indiana Court of Appeals ruled Friday.

The 2-1 ruling involved a lesbian couple from Morgan County whose attempt to adopt an infant girl was approved by a judge in one county but denied by a judge in another.

The decision overturned a ruling by Morgan Circuit Court Judge Matthew Hanson, who opposed the joint petition of Becki Hamilton and Kim Brennan because he said Indiana law limits adoption to married couples and individuals. State law prohibits same-sex marriages.

The appeals court said state law requires married persons seeking adoption to petition jointly.

"But it does not follow that in placing this requirement upon a married couple, the legislature was simultaneously denying an unmarried couple the right to petition jointly," the ruling said. * * *

The appeals court noted that his decision had nothing to do with Hamilton and Brennan as a same-sex couple but with being unmarried. * * *

Judge Edward Najam, who dissented in Thursday's ruling, said the General Assembly amended a law last year to say that adoption by a second parent divests the previous adoptive parent of his or her parental rights if the two are not married.

Najam said that precluded sequential adoptions by an unmarried couple, and, "It must follow that the legislature also intended to preclude unmarried couples from filing joint petitions to adopt."

The majority opinion written by Judge John Baker disagreed.

"The simple truth ... is that the legislature has not amended the Adoption Act to affect, in any way, the ability of an unmarried couple to file a joint petition to adopt. The statute is silent on that," Baker wrote.

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Suits filed against Toll Road deal

Updating this entry from this morning, the ILB has obtained a copy of the 16-page complaint , in Bonney et al v. Indiana Finance Authority et al, as filed in St. Joesph County April 12, 2006. Access it here.

(I've not posted the exhibit to the complaint, the 111-page Indiana Toll Road Concession and Lease Agreement.)

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Indiana Law

Ind. Gov't. - Battle of lawsuit legal documents

The Munster (NW Indiana) Times reports today, in a story by Melanie Csepiga:

LOWELL | The gloves have flown off, and this south Lake County community's political season is in full swing.

Residents opposing the retention of Councilmen Phillip Kuiper, D-4th, and Al Bachman, D-2nd, learned late Monday that legal documents from the lawsuits filed by Lowell Police Lt. Shane Tucker and Detective Sgt. Scott Tokach were posted on the town's Web site.

Tucker, who is running against Bachman, and Trent Staggs-Laughrey, a Lowell High School teacher opposing Kuiper, are running as a team.

On Tuesday, Tucker began e-mailing, at his attorney's urging, the "Plaintiff's Memorandum in Support of Their Response to Defendants' Motion for Summary Judgment" to as many Lowell residents as possible and asking others to forward the document. He said it is in response to the "biased version of their account of the lawsuit" posted on the town's Web site.

Tucker and Tokach filed suit against the town's councilmen and police commissioners charging their First Amendment rights to free speech were violated after they spoke out at a public commissioner's meeting in July 2004 and were subsequently targeted for discipline for their comments.

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Indiana Government

Ind. Decisions - Three today from the Court of Appeals

In William W. Pond v. B. Paul McNellis, et al, a 33-page opinion, Judge Sharpnack writes:

William Pond appeals the trial court’s grant of summary judgment to Paul McNellis and Linda Chrzan and denial of his motion for summary judgment. Pond raises one issue, which we revise and restate as whether the trial court erred by granting McNellis and Chrzan’s motion for summary judgment and denying Pond’s motion for summary judgment concerning his request for restitution for attorney fees paid to McNellis and Chrzan, his ex-wife’s attorneys. We affirm in part, reverse in part, and remand.

The relevant facts follow. This is the fourth appeal concerning the dissolution of marriage between Pond and Brenda Armentrout (formerly Pond). * * *

In summary, the trial court should have denied McNellis and Chrzan’s motion for summary judgment. The trial court should have granted Pond’s motion for summary judgment to the extent that McNellis and Chrzan were liable for restitution, but denied summary judgment regarding the amount of attorney fees, which remains an issue to be decided by the trial court. For the foregoing reasons, we reverse and remand the trial court’s grant of summary judgment to McNellis and Chrzan and affirm in part, and reverse in part, the trial court’s denial of summary judgment to Pond.

In John E. Moyer and Angela R. Moyer v. Three Unnamed Physicians, an 18-page opinion, Judge Crone concludes:
Even if we were to agree with the Moyers’ argument that the occurrence-based statute is unconstitutional as applied to them, we would reach the same result of affirming the trial court’s summary judgment order. As explained in Booth, claimants that discover alleged malpractice before the statutory deadline with insufficient time to file suit, must initiate their actions within a reasonable time. 839 N.E.2d at 1172. As discussed above with regard to the Moyers’ claim against Dr. Zemstov, eighteen months passed between the discovery date—May 1, 2002—and the date upon which the Moyers filed their malpractice complaint—November 17, 2003. In our view, this delay was unreasonable. In sum, the trial court did not err in entering summary judgment in favor of Dr. Chuang and Dr. Zemstov.
In In the Matter of Infant Girl W v. Morgan County FCS, a 41-page opinion (with a dissent by Judge Najam beginning on page 31), Judge Baker writes:
This is a consolidated appeal, and all of the issues presented herein involve M.A.H., an eighteen-month-old girl, and the desire of her foster parents, who have cared for M.A.H. since she was two days old, to adopt her and become a legally-recognized family unit. M.A.H.’s foster parents, R.K.H. and K.A.B., are an unmarried couple. Everyone involved in this case, including the Morgan County Office of Family and Children (OFC) and the judge who has blocked the adoption, believes that R.K.H. and K.A.B. have provided a loving, supportive, healthy, and happy home for M.A.H., and everyone except the Morgan County Juvenile Court believes that it is in the best interests of M.A.H. that the adoption proceed. Although this appeal presents a number of issues, the primary question we must resolve is one of statutory interpretation, namely, whether the Indiana Adoption Act permits an unmarried couple—any unmarried couple, regardless of gender or sexual orientation—to file a joint petition for adoption.

The first set of issues concerns M.A.H.’s adoption in Marion County (the adoption case). In the adoption case, appellant OFC argues that the Marion Probate Court erred in granting the joint adoption petition of appellees-petitioners R.K.H. and K.A.B. (the Parents) because the Morgan Circuit Court opposed it and because Indiana law limits adoption to married couples and to individuals. Concluding that the Probate Court properly exercised jurisdiction over the Parents’ joint petition and that petition was properly granted, we affirm the judgment of the Probate Court.

The second set of issues surrounds M.A.H.’s Child In Need of Services (CHINS) proceedings in Morgan County (the CHINS case). In the CHINS case, appellants-intervenors the Parents argue that the Morgan Juvenile Court erred in refusing to dismiss the CHINS action and in voiding the Probate Court’s adoption decree. Specifically, the Parents argue that these orders were erroneous because the adoption satisfied M.A.H.’s dispositional goal and because the Juvenile Court was not entitled to treat the final judgment of a sister court as void. Concluding, among other things, that the Juvenile Court improperly refused to dismiss the CHINS proceeding, we reverse the judgment of the Juvenile Court. * * *

CONCLUSION. In sum, we have determined that the Marion Probate Court properly exercised jurisdiction over the adoption case and properly granted the Parents’ joint petition for adoption. We have also concluded that the Morgan Juvenile Court erred in refusing to dismiss the CHINS case and in treating the adoption decree as void.

We affirm the judgment of the Marion Probate Court.

We reverse the judgment of the Morgan Juvenile Court and remand with instructions to dismiss the CHINS and TPR cases.

VAIDIK, J., concurs.
NAJAM, J., dissents with opinion.

I respectfully dissent. The Adoption Act neither authorizes nor permits a joint petition for adoption by unmarried petitioners. I would hold that Indiana law does not allow an unmarried couple, regardless of their gender or sexual orientation, to file a joint petition to adopt a minor child.

For more on this case, see this Feb. 10, 2006 ILB entry headed "Morgan County lesbian couple fight to keep child" that begins:
On October 15th, 2005 the ILB had an entry quoting from an AP story that a "lesbian couple from Morgan County has gone to the Indiana Court of Appeals to win the adoption of a 1-year-old girl approved by a judge in one county but denied by a judge in another." Today the case was argued before the Court of Appeals.

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts one late yesterday, another today

In In the Matter of Anonymous, a 2-page per curiam opinion, the Court writes:

We require out-of-state attorneys who seek to appear in an Indiana court to file a motion for admission pro hac vice with the court, and within thirty (30) days after the court’s approval, to file a notice of admission along with the required admission fee with the Clerk of the Indiana Supreme Court. These rules concerning limited admission are designed to protect the public by determining that good cause exists for admission, that Indiana standards of professional responsibility will be observed, and that the attorney is in good standing in the jurisdiction where he or she is admitted to practice law. Failure to comply with these requirements may lead to the revocation of the opportunity to appear in Indiana courts or other sanctions.

In this attorney discipline case, the Disciplinary Commission has charged that the respondent attorney failed to register his admission pro hac vice with the Clerk of the Indiana Supreme Court and failed to pay his annual registration fee in violation of both Rule 3 § 2 of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys and Rule 3.4(c) of the Indiana Rules of Professional Conduct (2004 & 2005). * * *

In accord with our acceptance of the parties’ agreement, the respondent shall be issued a private reprimand.

In Eddie Trail v. Boys and Girls Clubs of Northwest Indiana, an 18-page opinion (with Justice Rucker's dissent beginning on p. 14), Chief Justice Shepard writes:

Subsequent to a parting of ways with the Boys and Girls Clubs of Northwest Indiana, former executive director Eddie Trail sued the organization and a number of its board members. He alleged breach of contract, defamation, and tortious interference with an employment at will relationship. Because Trail failed to plead sufficient operative facts, and because certain of his claims have no basis in law, we conclude that the trial court was correct to dismiss. * * *

Conclusion. To survive a 12(B)(6) motion to dismiss of a tortious interference claim, the plaintiff must provide “at the very least a description of the tortious conduct.” Kiyose v. Trs. of Indiana Univ., 166 Ind. App. 34, 44, 333 N.E.2d 886, 891 (1975). In this case, Trail has failed to do so. Consequently, his claim for tortious interference was properly dismissed. We therefore affirm the decision of the trial court.

Sullivan and Boehm, JJ., concur.
Rucker, J., dissents with separate opinion in which Dickson, J., joins.

I respectfully dissent. The law is settled that a complaint may not be dismissed under Ind. Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted unless it appears to a certainty on the face of the complaint that the complaining party is not entitled to any relief. King v. S.B., 837 N.E.2d 965, 966 (Ind. 2005); City of New Haven v. Reichhart, 748 N.E.2d 374, 377 (Ind. 2001); Martin v. Shea, 463 N.E.2d 1092, 1093 (Ind. 1984). In ruling on a motion to dismiss for failure to state a claim, the trial court is required to view the complaint in a light most favorable to the nonmoving party and with every reasonable inference in his favor. King, 837 N.E.2d at 966. The trial court may only look to the complaint, and well-pleaded material must be taken as admitted.

A Munster (NW Indiana) Times story today by Patrick Guinane reports:
A divided Indiana Supreme Court threw out a lawsuit brought by a former director of the Boys and Girls Clubs of Northwest Indiana who was fired four years ago.

Eddie Trail could not sufficiently support interference and defamation claims made against the nonprofit's board of directors, the high court ruled 3-2 Wednesday. The appellate court already had dismissed Trail's allegation of wrongful termination.

Wednesday's decision backs up an earlier dismissal from Lake County Superior Court.

"Because Trail failed to plead sufficient operative facts, and because certain of his claims have no basis in law, we conclude that the trial court was correct to dismiss," Chief Justice Randall Shepard wrote in a 12-page opinion. * * *


In a dissenting opinion, Justice Robert Rucker argued that Trail had proven defamation. Even though the report was shown to only a few employees, it still contained malicious comments about Trail that cost him a loss of earnings, Rucker said.

"The defendants should not be allowed on one hand to withhold the report, which apparently would reveal the specific contents of the alleged defamatory statements, and on the other hand complain" that Trail had made vague allegations, Rucker wrote.

Rucker also disagreed with the majority ruling on the interference claim.

He acknowledged that Trail's argument had its weaknesses, but that he should have been given more time to build his case.

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - Still more on: Kentucky Judge Resigns Amid Accusations He Profited From Fen-Phen Case

Updating this ILB entry from March 10th are two stories today, in Kentucky and Ohio papers.

Andrew Wolfson of the Louisville Courier Journal reports:

BURLINGTON, Ky. -- A lawyer for three attorneys accused of deceiving their clients in Kentucky's fen-phen case said yesterday that they shouldn't be held liable for overpaying themselves because they were acting on a judge's orders.

William E. Johnson said Lexington lawyers Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr., relied on an order from then-Circuit Court Judge Joseph Bamberger when they paid themselves extra fees and placed $20 million from a $200 million settlement into a charitable trust.

"If you can't trust a court and a court's orders, who can you trust?" Johnson asked yesterday in Boone Circuit Court, where he unsuccessfully tried to persuade Special Judge William Wehr to set aside a ruling that the Lexington attorneys breached their duties to 440 former clients.

Bamberger was publicly reprimanded and forced to resign in February, in part for allowing the lawyers to pay themselves excessive fees. But Johnson argued that the attorneys still had a right to rely on his orders.

Wehr said, however, that the lawyers had a duty to their clients regardless of the judge's rulings. Wehr also said Bamberger may have been misled into believing the clients -- who were injured by the popular diet drug -- approved transferring $20 million of settlement money into what was later named the Fund for Healthy Living.

Jim Hannah of the Cincinnati Enquirer writes:
BURLINGTON - Special Judge William Wehr declined Wednesday to throw out his own order that found three Lexington lawyers paid themselves too much money from Kentucky's $200 million fen-phen settlement.

Now the lawyers - Melbourne Mills Jr., William Gallion and Shirley Cunningham - appear ready to appeal the decision.

This means that more than 400 Kentuckians who have been fighting in Boone Circuit Court since last year to have the lawyers' fees reimbursed likely will have to wait at least another year to learn if they will get any of the money. * * *

Another issue to be decided is whether Cincinnati lawyer Stan Chesley, a nationally known class-action expert who was hired by the Lexington lawyers to negotiate the settlement, violated his fiduciary duty to the clients as well. Chesley collected a $20 million fee.

Frank Benton IV of Newport, Chesley's attorney, told the court that Chesley's role was limited to negotiating the settlement and he had no contact with the plaintiffs, contract with them, or duty to them.

Benton has argued that Chesley's contract was with Mills, Gallion and Cunningham and that he received a set percentage from them.

Wehr asked Ford and Benton to provide more information on Chesley's role before he made a decision on that aspect of the case.

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Courts in general

Ind. Decisions - Ex-FSSA caseworker's conviction overturned

Much more today in the Indianapolis Star on yesterday's Court of Appeals decision in Denise Moore v. State of Indiana. (See yesterday's ILB entry here.) Some quotes from the lengthy story by Kevin Corcoran and Tim Evans:

An Indiana appellate court Wednesday set aside a child welfare caseworker's felony conviction for obstructing justice in the death of a 4-year-old boy placed for adoption.

The unanimous panel found criminal charges were filed too late against Denise C. Moore, 44, Indianapolis. Judges said Moore was negligent and "at least partially" responsible for the death of young Anthony Bars in early 2002. But the court ruled her actions on the job were not criminal. * * *

A high-ranking aide to Marion County Prosecutor Carl Brizzi disagreed and pledged to appeal Wednesday's ruling to the Indiana Supreme Court. * * *

"She was made a scapegoat for a deficient child-placement system," [her attorney, Jack] Crawford said. "Now she can get on with her life."

James W. Payne, director of Indiana's Department of Child Services, which oversees child welfare, said he knew Moore from when he was Marion County's juvenile court judge.

He declined to talk specifically about her work but said she was like many other caseworkers who had far more children in their care than they could handle. Moore said she had about 120 cases.

"What they were being asked to do was almost an impossible job," Payne said. "Denise, like a lot of other caseworkers, simply was not able to perform her job like we, as Hoosiers, expected."

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Suits filed against Toll Road deal [Updated with complaint]

A number of papers this morning have stories about the suits against the Indiana Toll Road deal. The most comprehensive, insofar as the lawsuit details are concerned, is this story by Jennifer Whitson in the Evansville Courier& Press. Some quotes:

Wednesday midmorning, a group of seven Hoosiers and the Citizens Action Coalition filed a lawsuit in St. Joseph County asking for an injunction barring state officials from signing the lease or turning over the Indiana Toll Road and also asking that a judge void House Enrolled Act 1008, the new law that allows the administration to contract with private firms to run roads.

The lawsuit also specifically requests the Indiana Department of Transportation be barred from changing the proposed route of the Interstate 69 extension.

The suit claims a slew of violations, including that portions of the new law barring I-69 from running through Perry Township on Indianapolis' south side and prohibiting tolls from Martinsville to Indianapolis violate a constitutional ban on special legislation.

In 2003, the Indiana Supreme Court ruled laws must apply generally statewide unless the conditions the law addresses are specific to the geographic area targeted by the legislation.

Other arguments in the filing:

  • The new law breaks a constitutional mandate that any money from the lease or sale of state assets goes toward paying down state debt. The new law instead sets up several funds to spend the Indiana Toll Road lease proceeds to build new roads and give local government entities funds.
  • The Spanish-Australian consortium picked to run the toll road isn't properly registered as a business in Indiana.
  • A property tax exemption included in the legislation and contract runs counter to the state constitution. State officials said the state will retain ownership of the Indiana Toll Road; thus no property taxes will be paid on it. But the plaintiffs argue that the move violates the constitutional mandate for uniform and equal property taxation.
  • The window to sue over the legislation and lease, which was defined in the legislation, was unreasonably short.
  • The new law violates the separation of powers by giving the governor the authority to turn any road into a toll road.
The Louisville Courier Journal's Lesley Stedman Weidenbener has this story, headlined "State signs deal on toll road lease: Two lawsuits filed to block agreement."

Niki Kelly of the Fort Wayne Journal Gazette has this story, headlined "Toll Road lease spurs lawsuit as it’s signed: Farmer, truckers join to fight privatization." Some quotes:

INDIANAPOLIS – Hours before a lawsuit was filed in St. Joseph County challenging the privatization of the Indiana Toll Road, state officials signed the final lease agreement that will give control of the road to a foreign consortium until 2081.

The two actions collided on the same day even though previous plans were to finalize the contract later this week.

“I’m not sure why the governor signed the lease two days early, probably to upstage us,” said Steve Bonney, a West Lafayette farmer who is the lead plaintiff on the suit.

The legislation authorizing the public-private partnership gave opponents of the plan only a 15-day window to dispute the deal – and that deadline was Wednesday. * * *

The defendants in the case include the Indiana Finance Authority, Statewide Mobility Partners, the proposed operator, the Indiana Department of Transportation, Gov. Mitch Daniels and Treasurer Tim Berry.

[State Budget Director Chuck] Schalliol also denied moving up the signing to pre-empt any part of the lawsuit, which included a request for an injunction prohibiting the signing of the lease.

“We had the documents ready so we went ahead and did it,” Schalliol said, comparing it to filing his taxes early. “There was no reason to wait.”

Friday was the deadline for the contract to be signed, and Daniels’ press secretary previously told The Journal Gazette there would be a small public signing Friday at a downtown Indianapolis law firm.

Martin DeAgostino of the South Bend Tribune has this story, headlined "Suit would block Toll Road deal: Indiana state official says law's constitutional basis is sound." A quote:
The suit, filed in St. Joseph Superior Court in South Bend, asks the court to invalidate the law's spending provisions and to enjoin the state from entering the lease.

State officials signed the lease on Wednesday, but it would not take effect until June 30. * * *

Charles E. Schalliol, state director of management and budget, said bond lawyers and others have examined the law's constitutional basis and found it sound. "(The lawsuit) misses the point that this is not a (financial) obligation of the state," he said. "It's an obligation of a quasi(governmental) organization ... and it's not a sale; it's a lease."

He referred to the Indiana Finance Authority, which owns the Toll Road and issues bonds that support new capital investments.

Bill Ruthhart of the Indianapolis Star reports, in a story headlined "Toll Road lease signed, promptly snared in lawsuits":
As the ink was drying on a $3.8 billion agreement to lease the Indiana Toll Road, two lawsuits were filed Wednesday to block the deal.

State Budget Director Charles Schalliol signed the 75-year lease agreement with Macquarie-Cintra, an Australian-Spanish consortium, at 9 a.m. Less than two hours later, lawsuits were filed in St. Joseph and Brown counties.

A group of seven citizens and the Indianapolis-based Citizens Action Coalition of Indiana filed the St. Joseph County lawsuit, arguing that Gov. Mitch Daniels' effort to lease the Toll Road to a private firm was unconstitutional.

A lawsuit filed by Bill Stant in Brown County also questioned the constitutionality of the lease. Stant is running for secretary of state under the Green Party.

Both lawsuits argue that the Indiana Constitution says any proceeds from the Toll Road lease must be used to pay down state debt. * * * State officials have said the Toll Road deal is a lease -- not a sale.

The lawsuits were filed in time to take advantage of a 15-day window that allows challenges to the law that authorizes the Toll Road plan. * * *

Arend Abel, the Indianapolis attorney representing the group, said he's confident the deal to lease the Toll Road, and the law that allows it, will be overturned. "We've researched this, and we feel confident about this moving forward," Abel said. "We think we've done our homework."

In Brown County, Stant said he filed his lawsuit because he's against an I-69 extension. He said his lawsuit was not politically motivated even though he's running for secretary of state. "I'm just a citizen standing up for my rights," said Stant, who said attorneys have donated their services to help his court challenge. Stant said he thinks the legal challenges to the Toll Road lease could go all the way to the Indiana Supreme Court. * * *

Both lawsuits come as the state works to transfer control of the Toll Road to Macquarie-Cintra on June 30. [Budget director] Schalliol said he informed the consortium Wednesday that the lease had been challenged in court.
He acknowledged that any delay caused by court action could keep the current lease agreement from being finalized.

"Come June 30th, if (the lawsuits are) not resolved, we'll have to face some serious questions," Schalliol said. "But it's our belief and intent that this will be resolved by then.

"We're confident we will prevail in these lawsuits."

A Question: The General Assembly here has set a 15-day "window" for suits to be filed challenging this law.

Hypothetically, does this mean that a law that may be unconsitutional is unchallengeable if such a time limit is set by the General Assembly, precluding the Courts from weighing a later-filed challenge? Has the General Assembly found a way around the separation of powers?

[Updated] The ILB has obtained a copy of the 16-page complaint, in Bonney et al v. Indiana Finance Authority et al, as filed in St. Joesph County April 12, 2006. Access it here.

(I've not posted the exhibit to the complaint, the 111-page Indiana Toll Road Concession and Lease Agreement.)

Posted by Marcia Oddi on Thursday, April 13, 2006
Posted to Indiana Law

Wednesday, April 12, 2006

Law - U.S. Supreme Court Votes to Allow Citation to Unpublished Opinions in Federal Courts

Law.com is reporting:

The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts. Currently, four federal circuits ban the citation of unpublished opinions outright, while six others discourage it.
Here are some quotes from the story, by Tony Mauro of Legal Times:
The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide. In some circuits these dispositions have no precedential value and cannot be cited.

"Unpublished" is a misnomer, since most of these opinions are available now on legal databases. But some federal judges have argued that if this category of opinions can be cited and used as precedent, they will take more time to decide and write, sharply increasing the backlog of cases. Many sentencing appeals, for example, are resolved by unpublished opinions. The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it.

Under the new rule, circuits will still be able to give varying precedential weight to unpublished opinions, but they can no longer keep lawyers from citing them -- in the same way lawyers cite rulings from other circuits or other authorities, such as law review articles. * * *

The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The high court adopted that amendment in the rule change it promulgated Wednesday.

Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges. Though the propriety of an essentially secret judicial process has been debated for years, the catalyst for change came in 2000, when the late 8th Circuit Judge Richard Arnold ruled in a routine case that stripping unpublished opinions of precedential value was unconstitutional because it gave judges a power not authorized by Article III of the Constitution.

The ILB has had numerous entries over the past several years on the use of not-for-publication opinions by the our state Court of Appeals. (Ironically one was earlier this afternoon.)

The difference is that in the federal court system, "unpublished" decisions are in fact readily accessible online, but as Mauro's story points out, "The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it."

At the Indiana state court level, Appellate Rule 65 allows Court of Appeals judges to designate opinions as not-for-publication if they meet the Rule's criteria. Rule 65(D) provides:

a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
In addition, the Court does not publish the opinions on its website and they are not posted by the commercial legal services. The only way to obtain a not-for-publication opinion is from the Clerk of the Courts -- if you know its name.

It became easier to know the names last fall when the Clerk agreed to provide its list of NFP decisions to the ILB at the end of each week. The first such list was posted August 19, 2005. (Of course, this list is also available via the commercial services.) The lists show that over 70% of the Court of Appeals opinions are unpublished.

Here is a more detailed ILB entry on this issue from July 13, 2005. It concludes:

In Indiana, as noted earlier, opinions designated by the Court of Appeals panel as "not-for-publication" are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?
Finally, this ILB entry from Oct. 21, 2005, includes, among other things, quotes from a 1997 article in which Judge Staton discusses the pros and cons of the NFP issue, ending with:
The debate and controversy will likely continue. For now, the rule remains in Indiana that the court of appeals may issue written but unpublished, memorandum decisions to decide routine cases where precedent has already been established.

Posted by Marcia Oddi on Wednesday, April 12, 2006
Posted to General Law Related | Ind. App.Ct. Decisions

Ind. Courts - Supreme Court to hear case in Richmond

Via a release from the Supreme Court:

The Indiana Supreme Court will hold oral argument at Indiana University-East, in Richmond, Ind. at 2 p.m. on Monday, April 17, 2005, Chief Justice Randall T. Shepard announced today.

The case is Norman Thompson v. State of Indiana. In this case, the State charged Mr. Thompson with carrying a handgun without a license. Mr. Thompson argued that the evidence of the handgun should be kept out of court and the Marion Superior Court judge agreed. However, the Indiana Court of Appeals overturned the trial judge's decision. Now, Mr. Thompson has asked the Indiana Supreme Court to review the case and reinstate the trial judge's original decision. The attorney for Mr. Thompson is Stephen Gerald Gray. Cynthia Ploughe will represent the State of Indiana.

“The Supreme Court was very grateful that Wayne Superior Judge Tom Snow invited us to come to Richmond. My colleagues and I feel it is important for Hoosiers to get a first hand look at how our courts work,” said Chief Justice Shepard.

The argument will take place in the Vivian Auditorium in Whitewater Hall, 2325 Chester Boulevard in Richmond and last about an hour and each side will have twenty minutes to argue its sides of the case.

The public and the news media are invited to attend. The case will also be webcast live over the Internet. To view it, go [here].

(That must mean they are taking along the Supreme Court camera.)

BTW, the Court of Appeals opinion is not available online because it was a Not-for-Publication decision. The NFP list for 12/2/05 shows that on 11/29/05 the Court of Appeals reversed and remanded the decision of the trial court, in an opinion by Judge Friedlander, with Judge Sullivan dissenting. However, this opinion was designated as "not for publication" under Appellate Rule 65(D) on the basis that it did not meet the criteria of 65(A):

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

Posted by Marcia Oddi on Wednesday, April 12, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals posts three today

In ABN Amro Mortgage Group, Inc. and/or Michael & Bunny Braughton v. Residential Services, LLC, a 16-page opinion, Judge Barnes writes:

ABN AMRO Mortgage Group, Inc. (“ABN”) and Michael and Bunny Braughton appeal the trial court’s entry of summary judgment in favor of American Residential Services, LLC (“American”). * * *

Because American does not possess a valid judgment lien against the Braughtons’ property, the trial court erred in granting American’s motion for summary judgment. We reverse and remand for further proceedings consistent with this opinion.

In Denise Moore v. State of Indiana, a 7-page opinion, Judge Baker writes:
Today we are faced with the tragic death of a child that was at least partially the result of the negligence of an Indiana Family and Social Services Administration (IFSSA) employee. And although the circumstances are unfortunate, negligence is not a crime in this state. Appellant-defendant Denise Moore appeals her conviction for Obstruction of Justice,1 a class D felony. Moore raises three issues, one of which we find dispositive: whether this prosecution was brought outside of the statute of limitations. Finding that the alleged offense was completed five years and three months before the State brought charges, we reverse the judgment of the trial court. * * *

This case represents a tragic failure in the system that ought to have protected A.G. and K.G. from being placed in an abusive home. And while Moore was undoubtedly negligent in her handling of their case, that negligence does not amount to an obstruction of justice. Accordingly, we find that the State filed these charges outside of the statute of limitations. And even if the charges had been filed in a timely fashion, the evidence was insufficient to convict Moore of obstruction of justice.

Mary Beth Schneider of the Indianapolis Star (who apparently picked up a paper copy of the opinion this morning from the Clerk's office prior to the online posting) has a brief story here.

In Corbin Smyth v. Stephen Carter, et al., an 11-page opinion, Senior Judge Hoffman writes:

The following issues are dispositive: I. Whether the trial court properly dismissed Smyth’s claim that the State’s retention of interest pursuant to the Indiana Unclaimed Property Act constitutes an unconstitutional taking of private property without just compensation in violation of Article I, § 21 of the Indiana Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. II. Whether the trial court properly dismissed Smyth’s claim that Indiana Unclaimed Property Act requires the State to pay him the value of his stock on the date the stock was delivered to the Attorney General. * * *

In summary, the retention of interest by the State pursuant to Ind. Code 32-34-1-29 does not constitute an unconstitutional taking. Furthermore, the payment of the net proceeds of the sale of the Topps stock was proper under the Act. The trial court did not err in dismissing Smyth’s complaint.

Posted by Marcia Oddi on Wednesday, April 12, 2006
Posted to Ind. App.Ct. Decisions

Law- "Perverted Justice" in Darke County Ohio

The Richmond Paladium-Item has a fascinating story today by Don Fasnacht about "Perverted Justice." It begins:

GREENVILLE, Ohio -- Tactics used in a sting operation aimed at Internet sex predators are raising questions about the ethics of one of America's major television networks -- NBC.

During the weekend of March 24-26, 17 men were arrested after they came to a local address anticipating a sexual encounter with someone between the ages of 13 and 15.

Three organizations took an active part in luring the men to Greenville -- the Darke County Sheriff's Office, NBC and Perverted Justice, a West Coast group dedicated to getting those locked up who troll the Internet for underage sex.

NBC planned to use the outcome of the sting operation as fodder for its Dateline series. NBC paid the expenses and set up some rules.

The Washington Post Sunday reported that NBC paid Perverted Justice a sum in the low six figures for its role in the Ohio sting.

In a Sunday story, that newspaper cited "news media observers" saying "the sting crossed some ethical boundaries that could place the network in an awkward legal position."

Locally, media experts are also asking questions.

"It's unusual that a media company would pay for the news," Ball State University journalism professor Mark Popovich said. It's a practice known as "checkbook journalism."

"The problem's compounded if the people they were paying were deputized," Popovich said.

The Darke County Sheriff's Department had deputized the three people from Perverted Justice who were the ones to impersonate minors on the Internet. It was done to make sure there weren't any questions about the validity of the subsequent arrests.

Well, it turns out this story has been around for a while, without the "ethics twist". Here is an earlier Pal-Item story, from March 28, reporting that: "Seventeen men came to Greenville last weekend thinking they were going to have sexual encounters with juveniles. All 17 are now under arrest and face felony charges for attempted unlawful sexual contact with a minor." All 17 are named in a side-bar.

Here is the Sunday Washington Post story mentioned in the Pal-Item story. Some quotes:

"Dateline" and Perverted Justice have staged stings in Fairfax County, Long Island, N.Y., and Riverside, Calif. During the Fairfax operation last summer, the men lured to the house included a rabbi who worked in Potomac, a schoolteacher from Prince George's County and a physician from the Eastern Shore.

In each of those segments, Perverted Justice received no compensation from NBC, nor were any of the group's members deputized.

But NBC's relationship with the group changed before "Dateline" began taping an installment of the series last month in rural Darke County, Ohio. After the first three "Dateline" stings each drew more than 8 million viewers, Perverted Justice hired an agent to negotiate with the network.

NBC sources said Perverted Justice received compensation in the low six figures for its role in the Ohio sting. The group's founder, Xavier Von Erck, did not dispute that description but declined to provide specifics.

To meet local statutes involving evidence-gathering, three Perverted Justice members who engaged in Internet chats with alleged pedophiles were deputized by Darke County's sheriff, said Richard M. Howell, the county's prosecuting attorney. Technically, deputizing the volunteers made them law enforcement officers during the sting, Howell said.

Mainstream news organizations typically do not pay sources for their cooperation because such payments might unduly influence the source's actions or information. Dateline's tactics on other stories have been questioned recently. On Friday, NASCAR officials accused the news magazine program of trying to "manufacture the news" by bringing a group of Muslim men to Martinsville Speedway in Virginia to see how they would be treated by NASCAR fans.

Posted by Marcia Oddi on Wednesday, April 12, 2006
Posted to General Law Related

Ind. Courts - Courts failing poor youths, according to study

"Courts failing poor youths: Inadequate counsel seen as Indiana's key flaw" is the headline to a lengthy story by Tim Evans on the front-page of today's Indianapolis Star. It begins:

Poor children in Indiana's juvenile courts don't get adequate legal representation and are more likely to be incarcerated than wealthier peers, according to a report that calls the state's public defender system "seriously flawed." * * *

"If this were happening in any other country, Amnesty International and our government would be there condemning it," said Larry A. Landis, executive director of the Indiana Public Defender Council, "but we do it every day."

The report, to be released today, said:

  • Nearly half of the 26,000 youths in juvenile cases are not represented by counsel, with the rate as high as 80 percent in some counties.

  • Courts fail to adequately explain the consequences of not having an attorney.

  • The appointment of public defenders occurs too late in the process to give defenders time to represent their clients adequately.

  • Many public defenders have excessive caseloads and inadequate resources to provide "zealous advocacy."

  • Schools and child welfare agencies clog courts with children better served through other community programs.
"The most disturbing finding . . . is that it has become a tolerated, if not accepted, practice . . . that youth go unrepresented by counsel, even during some of the most critical proceedings that affect their liberty interests," the authors wrote in "Indiana -- An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings." * * *

Boone Circuit Judge Steve David, president of the Indiana Council of Juvenile and Family Court Judges, said Indiana must do better to protect the rights of children. "There is no quick fix to these problems," he said. "Certainly more money is needed, but money itself . . . is not necessarily going to solve some of the problems."

Landis, of the state public defender council, said problems cited in the report stem from the larger issue of inadequate funding for all public defender services in the state. He said Indiana ranks 48th in per capita funding for public defenders.

The problem has lingered in juvenile courts because they fly under the public radar and few cases are appealed, which Landis said is a critical component of ensuring high-quality representation. That is compounded because the law allows juvenile judges to act as disciplinarian parents rather than neutral referees.

A side-bar sets out some of the Report's recommendations:
• State laws should prohibit children from waiving counsel or, at least, require children to consult with counsel before doing so.

• Juvenile courts should ensure that judges thoroughly inform and educate children about their rights, that no child goes unrepresented at any critical stage of proceedings and that indigent counsel be independent of the judiciary.

• Caseloads and resources at the county level should be manageable enough to allow defenders to properly investigate and prepare cases from arrest through appeal.

• Attorneys representing children in the juvenile justice system should have adequate physical resources, litigation support services and access to experts.

• Public defense and bar organizations should increase opportunities for juvenile defense attorneys to participate in meaningful and intensive training on relevant issues facing children and youths in the juvenile delinquency system.

• Public defense and bar organizations should create a statewide juvenile defender office to bring together resources and expertise from throughout the state, continue the process of evaluating the delivery of legal services to Indiana's children, and implement specific policies and programs as appropriate.

AP reporter Ken Kusmer also has a story today on the study, published in the Evansville Courier& Press. Some quotes:
The report is the latest black eye for the state's juvenile justice system.

The Department of Correction in February settled civil rights complaints involving imprisoned youth with the U.S. Justice Department. That came after the Indiana State Bar Association issued a report in October saying the system must pay greater attention to children with mental illness if it wants to reduce costs and the number of delinquents who get in trouble again.

The latest report, whose collaborators included programs of the Indiana Juvenile Justice Task Force and the Covington, Ky.-based Children's Law Center, resulted from site visits and court observations in 11 Indiana counties selected to present a representative sample. A team of 14 investigators included public defenders, law professors and other attorneys from Indiana and across the nation.

The investigators found that despite the constitutional right to legal counsel, nearly half of the youth studied had waived that right and in some places the waiver rate was as high as 80 percent. The study did not reveal which counties were included.

The report itself, Indiana: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, is available on the National Juvenile Defender Center site. Here is a direct link to the 83-page report (it takes a few moments to load). Chapter 1, starting on page 21 of the pdf document, begins with: "Structure of Indiana’s Court System and Juvenile Court Jurisdiction."

Posted by Marcia Oddi on Wednesday, April 12, 2006
Posted to Indiana Courts

Tuesday, April 11, 2006

Ind. Decisions - More on: Court says activity fee amounts to tuition. Shouldn't the same view apply to book rentals?

It must be some kind of news cycle that caused there to be a number of editorials so far this week on the Evansville school fees decision that was issued by the Supreme Court the end of March. Earlier today I posted this entry, including an editorial from the Evansville Courier& Press.

Rep. Ryan Dvorak took note today of a South Bend Tribune editorial, titled "Textbook rental amounts to tuition, too: Court should have chance to rule rental fees unconstitutional," that begins:

So just what should an Indiana Supreme Court justice be expected to do for his public service pay? Answer the hard questions? Or just the easy ones?

It seems to us that the court took the easy way out with its ruling on Nagy v. Evansville-Vanderburgh County School Corp. The justices settled the specific matter regarding the constitutionality of student services fees. But they punted the question of textbook rental fees back to the Indiana General Assembly -- even though legislators long have ducked the state's duty to fully fund textbooks for public school students.

Now I have come across another editorial, this one from the Marion Chronicle Tribune headed "Textbook rental amounts to tuition, too: Court should have chance to rule rental fees unconstitutional."

Posted by Marcia Oddi on Tuesday, April 11, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Bids received for "21st Century Case Management System for all Indiana trial court and clerks"

Updating this April 6th ILB entry listing the names of the 14 companies submitting proposals, apparently several of them included statements indicating that all or part of their proposal contained proprietary/confidential information without indicating by what authority this assertion was made.

As a result, the Court posted a statement on the JTAC webpage, dated April 5th, requiring that each vendor submit an "executed (1) Request for Confidentiality or an executed (2) Waiver of Confidentiality [by] no later than 4:00 p.m., April 10, 2006." In the event of the former:

If you request that any portion(s) of your response to the PNCO be treated as confidential, you must indicate with specificity which portion(s) you are requesting remain confidential and identify (for each portion) the statute or administrative rule which would authorize the Division to classify the portion as confidential.

Posted by Marcia Oddi on Tuesday, April 11, 2006
Posted to Indiana Courts

Ind. Gov't. - South Bend Council executive session to violate Open Door Law?

Advance Indiana has an interesting entry today that begins:

The South Bend Common Council will take up a proposed ordinance to amend the city's human rights code to bar discrimination on the basis of sexual orientation or gender identity in a closed door meeting at tonight's council meeting--a blatant violation of Indiana's Public Meetings Open Door Law. The executive session, which was reported on in the South Bend Tribune last Saturday, apparently has raised no concerns among the local media or the statewide Indiana Press Association, which normally can be counted on to scream from the rooftops on these matters.

Posted by Marcia Oddi on Tuesday, April 11, 2006
Posted to Indiana Government

Ind. Decisions - Court says activity fee amounts to tuition. Shouldn't the same view apply to book rentals?

"The Issue: Court says activity fee amounts to tuition. Our View: Shouldn't the same view apply to book rentals?" was the headline to an editorial yesterday in the Evansville Courier& Press. The decision referenced is, of course, Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation (see initial ILB entry on the 3/30/06 ruling here; for everything, type "Nagy" in the search box). Some quotes from today's editorial:

The Indiana Supreme Court has ruled that the $20 student fee imposed by the Evansville-Vanderburgh School Corp. during a time of financial crisis violated the state constitution.

No surprise there. The Indiana Court of Appeals held earlier that when the activity fee is mixed with other school money, it amounts to tuition payments used to fund education, and therefore violates the constitution. (The fee is no longer collected, but a question remains whether the EVSC will be required to refund payments that parents made.)

Note that the Indiana Constitution says that a public education is to be provided to all children in the state at no charge. That means that the responsibility for funding public education is to be spread to all taxpayers, and not put only on parents and children.

What is bothersome to us, then, is why it is legal for Indiana to charge parents a rental fee for textbooks - materials vital to the delivery of a public education. Indeed, Indiana is one of the few states that levy an extra charge to parents for schoolbooks.

In a 1974 case, the Indiana Supreme Court said that charging students for textbooks does not amount to tuition. However, last year Indiana Court of Appeals Judge Patrick D. Sullivan, in the school fee case, wrote that the 1974 schoolbook ruling was "dubious at best."

The majority on the Indiana Supreme Court in the fee case disagrees with him. The Supremes said in the activity fee case that the view of their colleagues on the Appeals Court "sweeps a little too broadly" in regard to textbooks.

It's a good judicial debate on textbooks, but it's also an issue that, when viewed by the average citizen, looks a whole lot like a charge required of parents for their children to participate in the public school classroom.

The textbook rental question needs a case of its own, or a new, but costly, determination by the Indiana Legislature. We're betting the court case will come first.

Also yesterday, the Indiana Daily Student had a story on the opinion. (Interestingly, all the major papers in the state, except for the Evansville Courier& Press, passed the story by when the decision was released the end of March, going with a brief AP report instead.)

Posted by Marcia Oddi on Tuesday, April 11, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Six today from the Court of Appeals

In Kelly Lawson v. State of Indiana, a 7-page opinion, Judge Mathias writes:

Kelly Lawson’s (“Lawson”) parole was revoked after he pled guilty to theft and resisting law enforcement. Thereafter, Lawson filed a writ of habeas corpus in the Laporte Superior Court arguing that he was entitled to immediate release because the parole board did not hold his parole revocation hearing within sixty days of his sentencing as required by Indiana Code section 11-13-3-10. Lawson’s writ was denied and he appeals raising several issues which we consolidate and restate as: whether the parole board erred when it revoked Lawson’s parole. Concluding that Lawson was not incarcerated due solely to an alleged violation of parole and that the parole board was required to revoke his parole pursuant to Indiana Code section 11-13-3-10(c), we affirm.
In Ford Motor Co., et al v. Marilyn Rushford, a 12-page opinion, Judge Sharpnack writes:
Ford Motor Company (“Ford”) and Eby Ford Lincoln Mercury a/k/a Eby Ford Sales, Inc. (“Eby”) appeal the trial court’s denial of their collective motion for summary judgment. Ford and Eby raise three issues, which we consolidate and restate as whether the trial court erred by denying their motion for summary judgment. We affirm in part, reverse in part, and remand. * * *

The “circumstances” of this case include the facts that Rushford and her husband bought a vehicle from Eby, the vehicle contained air bag warnings on the sun visor and in the owner’s manual, Rushford told the salesman at Eby that she did not drive, the salesman did not tell her that there was an air bag warning in the owner’s manual, and Rushford did not read the owner’s manual.

The parties dispute whether it was reasonable for Eby to not advise Rushford of the warning in the owner’s manual based on Eby’s knowledge that Rushford did not drive.

In Scott A. Chatham v. State of Indiana, a 9-page opiion, Judge Sharpnack writes:
Scott A. Chatham appeals his conviction for sexual battery as a class D felony.1 Chatham raises one issue, which we restate as whether the evidence is sufficient to sustain his conviction. We reverse and remand.
In Nicholas Hite v. Vanderburgh Co. Office of Family & Children, a 17-page opinion, Judge Sharpnack writes:
Nicholas Hite (“Father”) appeals the trial court’s termination of his parental rights. Father raises two issues, which we revise and restate as whether the trial court’s order terminating Father’s parental rights is clearly erroneous because Father did not receive notice of the CHINS petition. We affirm.
Tom Williams v. State of Indiana - petition on rehearing, clarification

In M.C. Welding & Machining Co. Inc. v. Joseph Kotwa, a 15-page opinion, Judge Sharpnack writes:

M.C. Welding and Machining Company, Inc., (“M.C. Welding”) appeals the trial court’s judgment for Joseph Kotwa. M.C. Welding raises two issues, which we restate as: I. Whether the trial court had subject matter jurisdiction because Kotwa failed to exhaust his administrative remedies with the Indiana Civil Rights Commission; and II. Whether the evidence is sufficient to sustain the judgment on Kotwa’s retaliatory discharge claim. * * *

While the trial court may not have had subject matter jurisdiction over the discrimination claims, it was “not ousted of subject matter jurisdiction” over the retaliatory discharge claim. Austin Lakes, 648 N.E.2d at 646. Consequently, M.C. Welding’s argument fails. The trial court had jurisdiction over Kotwa’s retaliatory discharge claim. * * *

In summary, we conclude that the trial court had jurisdiction over Kotwa’s retaliatory discharge claim and that the evidence was sufficient to sustain the claim. M.C. Welding argues that the jury’s verdict should not stand because “it is impossible to determine if the judgment is based on the retaliatory discharge claim or the claims for which subject matter jurisdiction was lacking” and that the verdict is uncertain and ambiguous. However, such an assertion goes against the well-settled principle that “a general verdict will be sustained if the evidence is sufficient to sustain any theory of liability.” PSI Energy, Inc., 829 N.E.2d at 950. Because the evidence is sufficient to sustain the retaliatory discharge claim, the general verdict will be sustained.

Posted by Marcia Oddi on Tuesday, April 11, 2006
Posted to Ind. App.Ct. Decisions

Law - Ohio Governor may lose law license

"Taft may lose law license: Supreme Court complaint linked to unreported outings" is the headline to this story in the Cincinnati Enquirer. Some quotes:

COLUMBUS - A complaint that could result in Gov. Bob Taft being disbarred as a lawyer was filed Monday by the Ohio Supreme Court's disciplinary counsel. Or the misconduct charge could lead to a public reprimand for the Cincinnati Republican.

Taft became the first Ohio governor convicted of a crime when he pleaded no contest in August to four misdemeanor charges for not disclosing 52 gifts, mostly golf outings, on his 2001-04 financial-disclosure statements. He was fined the maximum $4,000 and agreed to repay $5,700 to people who gave him the gifts.

"Improper conduct on the part of an attorney in government service is more likely to harm the entire system of government in terms of public trust," Disciplinary Counsel Jonathan Coughlan wrote in his complaint.

Posted by Marcia Oddi on Tuesday, April 11, 2006
Posted to General Law Related

Ind. Courts - Still more on Terre Haute federal courts

Updating this ILB entry from Saturday, the AP has a story this morning that begins:

TERRE HAUTE, Ind. -- City leaders are working to find a new building to keep a U.S. District Court office and other federal agencies from leaving the community.

Federal officials announced plans last year to close the court office on Jan. 1, but reversed that decision to allow the city time to find a new location.
The downtown federal building, owned by the U.S. Postal Service, is to be turned over in 2008 to Indiana State University as the new site for its College of Business.

Posted by Marcia Oddi on Tuesday, April 11, 2006
Posted to Indiana Courts

Environment - Largest ethanol refinery east of the Mississippi?

"Largest ethanol refinery east of the Mississippi? Dunkirk might land an ethanol plant equal to one being called the biggest in the eastern U.S." is the headline to this Seth Slabaugh story in the Muncie Star-Press today. Some quotes:

DUNKIRK -- The potential ethanol refinery that The Andersons Inc. is seeking a permit for would be capable of producing up to 110 million gallons of the fuel a year, a company spokesman said Monday.

"We have filed an application for an air permit, but I can't tell you the size at this point," said Gary Smith, treasurer and vice president of finance for the Maumee, Ohio-based agribusiness. "My sense is, if the resources are strong enough, it would be 110 million gallons."

For more, see this Feb. 16th ILB entry.

Posted by Marcia Oddi on Tuesday, April 11, 2006
Posted to Environment | Indiana economic development

Monday, April 10, 2006

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

Updating this March 28th ILB entry about disputes between the winning lawyers in the U.S. Supreme Court wine shipping case, Granholm v. Heald, is a story today by Tony Mauro in Legal Times. Some quotes:

A fee dispute broke out among lawyers earlier this year over how much money the winning team, which included Kirkland & Ellis’ Kenneth Starr and former Stanford Law School Dean Kathleen Sullivan, should receive from the state of Michigan, which lost the case. At stake: more than $1.5 million in fees. * * *

The wine dispute, fueled by the growth of small wineries and Internet sales, was an uphill challenge to the entrenched system of alcohol sales and regulation that has been in place in states since the end of Prohibition. In 1998, Indiana University School of Law professor James Tanford and Indianapolis lawyer Robert Epstein, a former wine critic, devised a strategy to challenge the bans by filing cases in federal circuits nationwide.

Their hope for a split among the circuits that would propel the issue to the high court came to fruition with a 6th Circuit ruling in 2003 that struck down Michigan’s ban and a 2nd Circuit decision six months later that upheld New York’s. The New York case had been filed separately by the Institute for Justice on behalf of Virginia wine maker Juanita Swedenburg, who wanted to sell her wines to fans in New York.

When Michigan appealed to the Supreme Court, the wineries’ legal team grew to include Starr, the former solicitor general. Starr had already worked on the issue on behalf of the Coalition for Free Trade, a group representing California wineries.

But disagreements soon broke out, according to filings in the fee dispute. Even though Starr had undertaken what Kirkland described as “the Herculean effort” of coordinating the litigation strategy, Tanford produced his own brief for the Court, which Kirkland found inadequate. “Mr. Tanford’s unilateral draft came as a shock to the legal team,” Kirkland told the Michigan judge. After “significant persuasion,” Tanford relented and agreed that another draft written by Kirkland lawyers and Kathleen Sullivan, who had also joined the team, would be the one to go to the Court. * * *

The biggest dispute among the lawyers was yet to come — over who should present oral argument to the Court. Tanford said in his brief that as the original lawyer for the Michigan plaintiffs, he planned to argue the case. But he agreed to participate in a “beauty contest” in which he and other contenders would mock-argue the case before clients and other lawyers. In addition to Tanford, Starr, and Sullivan, the Institute for Justice’s Clint Bolick also participated.

Bolick said last week that the Coalition for Free Trade, Starr’s client, undertook a “ruthless effort to get rid of Tanford and me as advocates. It was the most perverse instance of Supreme Court gamesmanship I’ve ever seen.” The beauty contest, he says, was “completely bogus.”

Bolick adds, oddly enough, that it was Sullivan, not Starr, who was the “preordained beneficiary” of the pressure. But it was not Sullivan who elbowed the others aside, he says. The California winery owners, Bolick says, wanted Sullivan — a former protégé of liberal Harvard Law School professor Laurence Tribe — not Starr, to argue for political reasons. Sullivan could not be reached for comment. * * *

It was only after the victory that disagreements surfaced again, in contentious discussions between Tanford and Kirkland over how much to ask for from the state of Michigan. Under federal law, prevailing parties in certain suits can recover legal fees from government agencies. With little notice to Kirkland, Tanford filed a motion on his own seeking $1.2 million for all the attorneys involved, including only $65,812.50 for Starr and the rest of the Kirkland team. He asked for $418,480 for himself and $304,940 for Epstein.

And there is much more.

Posted by Marcia Oddi on Monday, April 10, 2006
Posted to General Law Related

Ind. Law - More on the demise of the Indiana Register

The lead article in this week's edition of Indiana Legislative Insight (4/10/06, Vol. 18, No. 18, paid subscription only), begins:

At the end of June, the Indiana Register will cease to exist as you have known it for the past three decades. Beginning in the next fiscal year, it won’t be – to steal an overused advertising phrase – your father’s Register any more.

As a result of a 2005 change in the law, the Legislative Services Agency will be required to publish the Indiana Register “in electronic form only.” While the 2005 law also required LSA to distribute a printed copy of the Register to each federal depository library in Indiana, the requirement for that printed copy was deleted courtesy of legislation that passed this year.

The Indiana Law Blog has taken a close look at what the changes to the Register may mean, and, with their permission, we’re leaning heavily on that coverage here, and expanding upon it as well.

The Register is the legally mandated method for keeping Hoosiers apprised of proposed and final changes to state regulations. The publication – which is the state’s official legal record – includes notices of intent to adopt rules, proposed rules, and final rules; non-rule policy documents; agency bulletins; gubernatorial executive orders; and Attorney General official opinions. * * *

As the Indiana Law Blog points out, the Register is currently “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.” The paper version has been phased out for most subscribers in favor of a CD-ROM version that duplicates the .pdf version that has been available on-line.

According to the ILB’s original reporting, the Register will no longer be available on CD-ROM via subscription, but only via accessIndiana – but we understand that those plans have changed since (and perhaps as a result of) the ILB report.

The new Register will no longer be a paged publication, but rather will consist of individual documents – notices, proposed rules, executive orders, etc., will be posted as individual components. The Register also “will no longer be ‘published’ monthly. There will in fact be no fixed publication dates.”

As I wrote in the March 31, 2006 ILB entry to which the Indiana Legislative Insight (ILI) article refers:
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).
That impression is strengthened after reading more of the ILI article, including information the ILI obtained via its own inquiries to the Legislative Services Agency late last week. For instance, according to ILI it remains unclear how often information, now available on a fixed, first-of-of-the-month publication schedule, will be posted once the Indiana Register publication format is abandoned on July 1st:
The legislature has been promised that all documents would be published at least as fast as they would have been published under the hard-copy Register program, and LSA will surpass the old standard easily. But that does not mean that it will change immediately to a daily posting of documents.

Indeed, LSA has not yet officially determined what the interval will be for officially posting documents (the “publication” dates). Current programming is premised on the thought that the Agency may “publish” on a daily basis – possible from a technological standpoint – but officials have discussed other options, e.g. publishing every second Friday, or every Wednesday at noon.

In my opinion, the frequency of publication needs to be decided now by LSA, and publicly announced, and then not changed again without at least 6-months' advance notice. The issue is not so much how often documents are to be posted, but a dependable and reliable posting schedule.

To explain it graphicly, this 2-page chart of the Indiana environmental rulemaking process shows how inextricably tied it is to publication of various documents in the Indiana Register and opportunities for submission of public comments and public hearings that are to occur at various times such as "no less than 30 days" or "21 days" thereafter.

The ILI article also hits on the issues raised by the Indiana Law Blog about dropping pagination and volumes:

Because there will no longer be any paginated monthly issues or annual volumes, citation will apparently be by URL – which is likely to become extremely unwieldy – and line numbers may also be added by LSA for more specific cites.

As one über-user of the Register points out to us, a URL is based on what folder a document is stored in on the server – and these frequently change, even when one assumes that they are in place for eternity. A shift in URLs over the past year by the U.S. Court of Appeals for the Seventh Circuit, for example, caused considerable confusion – and some long-lasting problems – for the Hoosier legal community.

“Dropping pagination and volumes and instead posting individual documents on the internet ‘as they come in’ seems incredibly short-sighted,” suggests the Indiana Law Blog. “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?” Expect the folks at LSA to devote a good bit of attention to the pagination/citation issue over the next six weeks.

The Law Blog also questions whether eliminating the paper publication entirely – even to libraries – “and relying entirely upon the internet (or more specifically, the website of the general assembly) [raises] concerns about the security and authenticity of the documents – again this is the law of the State we are talking about.”

Later this week the Indiana Law Blog will look at the disappointing performance of the LSA and General Assembly in fulfilling their role as custodians of the Indiana Code -- the statute law of the State.

Posted by Marcia Oddi on Monday, April 10, 2006
Posted to Administrative Law | Indiana Government | Indiana Law

Ind. Courts - Judge Sharp to speak at Civil War Round Table

The Bremen Enquirer reports, in a story by Lyn Ward that begins:

BREMEN - On Tuesday, April 11, the Civil War Round Table will hear from U.S. District Court Judge Allen Sharp who researched a 135-year-old case and how it relates to modern day.

“Since this decision affects our freedoms even now, it is a very important legal event,” said Civil War buff Lowell Roberts who has been with the Round Table for eight years.

“An Echo of the War: The Aftermath of the Ex parte Milligan Case” published in 2003 is only one of Sharp's historical writings.

Lambdin P. Milligan was a lawyer, farmer and railroad entrepreneur from Huntington, Ind. who openly took the side of the South with regard to slavery and the Civil War.

“Milligan made a speech in Fort Wayne to perhaps as many as a thousand people, advocating willful and, if necessary, violent resistance to the draft. Milligan was soon arrested in Huntington, taken on a special train to Indianapolis, and tried before a military commission of 12 Union army officers,” summarized Sharp. Milligan was subsequently found guilty in late 1864 and sentenced to death.

The question became do military commissions hare authority over civilians?

In 1866, the United States Supreme Court said no. Milligan was released from prison and returned home to a hero's welcome. The Court ruled that Indiana was not a war zone and civilian citizens could not be tried before a military commission.

Subsequently, Milligan filed his own lawsuit seeking damages naming as defendants all of those who were involved in his experience before the military commission. The late Chief Justice William Rehnquist labeled it the first great civil-rights case.

Posted by Marcia Oddi on Monday, April 10, 2006
Posted to Indiana Courts

Ind. Decisions - Two from Court of Appeals today

In Connie S. Wedel v. American Electric Power Service Corporation and Ohio Valley Coal Company, Inc., an 8-page opinion on rehearing, Judge Bailey writes:

On January 30, 2006, AEP filed a Petition for Rehearing arguing that we had raised several issues sua sponte, in violation of its procedural due process rights. AEP contends, for example, that we sua sponte: (1) declined “to apply the law of the case established in Wedel II to enforce the 8 year, 90 day deadline in the parties’ Agreement as against Beshear’s June 22, 1978, June 20, 1983 and September 14, 1983 elections;”2 (2) raised the rule against perpetuities issue; (3) rejected AEP’s standing to raise the perpetuities issue; (4) found Beshear’s life as a relevant life in being for purposes of the rule against perpetuities; and (5) overruled portions of Wedel II not raised by the parties. However, our opinion did not raise or address any issue sua sponte. In the original appeal, for example, AEP requested that we apply the law-of-the-case doctrine to find the June 22, 1978, June 20, 1983, and September 14, 1983 elections untimely because they were not made within eight years and ninety days of the 1970 Agreement. * * *

We grant AEP’s petition for rehearing for the sole purpose of clarifying the statute of limitations issue and affirm our original opinion in all other respects.

In State of Indiana v. Michael Keller, a 25-page opinion, Judge Robb concludes:
In light of the totality of the circumstances surrounding Keller’s interrogation, we cannot say the State has met its burden of establishing that Keller’s waiver was based on his knowledge and understanding of his constitutional rights. However, the good-faith Miranda error that occurred prior to Keller’s first statement was sufficiently corrected to permit the use of his second statement. Lastly, we do not approve of the misuse of the knock and talk method of investigation to gain initial entry into the hotel room Keller was occupying, but we uphold the trial court’s ruling that the officer’s subsequent consensual search was reasonable. We therefore affirm the suppression of Keller’s first statement to law enforcement, as well as the denial of Keller’s motions to suppress his second statement and evidence encountered in the search of the hotel room. Affirmed.

Posted by Marcia Oddi on Monday, April 10, 2006
Posted to Ind. App.Ct. Decisions

Environment - 30% of water in state streams is too dirty to fish and/or swim in waterways on list tripled since '02

The Indianapolis Star today has a lengthy, front-page story by Tammy Webber headlined "Troubled Waters." It begins:

Almost 1,600 Indiana streams and lakes are too polluted for fishing or swimming, according to a new report representing the most comprehensive attempt yet to assess the health of the state's waterways.

Some are fouled with bacteria from sewer overflows, manure runoff and failing septic systems. Some cannot support aquatic life at all because too much sediment and fertilizer have washed into them. And others are contaminated with mercury and PCBs, prompting health officials to advise against eating too many fish caught in the waters.

Thirty percent, or more than 9,500 miles, of the state's 31,844 miles of streams are classified as too polluted for swimming, fishing or both because of pollutants such as bacteria, fertilizer, chemicals, mercury and sediment.
Lakes fare better -- 93 of 1,504 are similarly classified. The Indiana Department of Natural Resources submitted the report March 31 to the U.S. Environmental Protection Agency.

Although the state's list of polluted waterways has more than tripled since 2002 -- the list is produced every two years -- Indiana's waters aren't necessarily getting dirtier. The state simply is doing a more thorough job of assessing them, as required by the federal Clean Water Act, said Jody Arthur, a senior environmental manager at the Indiana Department of Environmental Management.

But the sheer size of the list underscores the need to reduce pollution that largely has gone unregulated, including runoff from developments and farms, and pollution in even some of the smallest waterways, experts said.

Posted by Marcia Oddi on Monday, April 10, 2006
Posted to Environment

Ind. Gov't. - "A tiny ad placed in Indy is a whisper in northern Indiana"

"A tiny ad placed in Indy is a whisper in northern Indiana" is the title to an editorial today in the Munster (NW Indiana) Times. It begins:

Hoosiers have until Thursday to file complaints on the proposed $3.8 billion lease of the Indiana Toll Road.

Gov. Mitch Daniels' administration fulfilled its legal obligation to tell the public by publishing notices in two Indianapolis newspapers March 29.

But in terms of fulfilling its moral obligation to notify the public, those legal notices published in Indianapolis were mere whispers.

"That should be a statewide notice to all newspapers and radio," said state Rep. Bob Kuzman, D-Crown Point. "This is a major, major decision that affects the entire state of Indiana for a long time, and people should know about it."

The bare minimum the state should have done was notify people in the seven counties the Toll Road traverses.

State Public Finance Director Ryan Kitchell said it's not his job to invite a lawsuit.

Posted by Marcia Oddi on Monday, April 10, 2006
Posted to Indiana Government

Ind. Gov't. - "Town's future hangs in the ballot "

"Town's future hangs in the ballot: Greenville to abide by vote on zoning" is the headline to a story today by Ben Zion Hershberg in the Louisville Courier Journal. Some quotes from a lengthy and interesting story:

Last November the Greenville Town Council enacted a comprehensive land-use plan, establishing preservation of the community's small-town atmosphere as an important goal.

A month later, the council rescinded the plan.

And last week, at the council's request, residents voted on whether they want planning and zoning in the community.

Those ballots will be counted at tonight's Town Council meeting and officials have agreed to abide by the results.

The conflict in this western Floyd County town of about 600, reflects continuing countywide disputes about how, or whether, development should be regulated.

It also reflects national divisions, said Eric Kelly, a Ball State University professor who consults on planning and zoning issues.

"People these days particularly are resistant to additional government," he said.

Many Greenville residents and officials believe the results of what so far has been a heated but theoretical debate could quickly become concrete. Large developments are planned and under way — developments that could alter Greenville's identity.

Even David Moore, a member of the Town Council who voted against the comprehensive plan, thinks that's a risk.

Before long, he said, "Greenville is going to be a little old town in the middle of housing developments." * * *

A comprehensive plan and a zoning ordinance would establish controls over new development, Moore said, adding that he sees some good in that. But he said he voted against the plan because in talking with constituents he concluded most opposed it, explaining that they are "tired of government interference, and this was their chance to speak up on it."

"They own their land," he said, "and they want to be able to do what they want on it."

Residents also are concerned about the cost of a planning and zoning system, Moore said, even if permit fees would help defray the expenses.

If the vote goes against planning and zoning, Moore said, he will introduce an ordinance dissolving the Plan Commission, which wrote the comprehensive plan, and ending any further work on planning and zoning.

If the vote is in favor of planning and zoning, Moore said, he expects the council to again enact the repealed comprehensive land-use plan. It would include provisions for a half-mile fringe area around the town's boundaries over which Greenville would exert planning and zoning authority.

Posted by Marcia Oddi on Monday, April 10, 2006
Posted to Indiana Government

Ind. Gov't. - DNR head featured

"Natural Resources director off to flying startchief tackling tough issues" is the headline to a story by Lesley Stedman Weidenbener in today's Louisville Courier Journal. Some quotes from a lengthy story:

INDIANAPOLIS — Thirty-three-year-old Kyle Hupfer has spent just over a year as the director of the Indiana Department of Natural Resources, but he's already having a long-term impact on many regions of the state.

From his first days on the job, when he unceremoniously forced 10 top-level officials to resign, to his recent efforts to ban deer hunting on high-fenced property, Hupfer has been a man unafraid of controversy and ready to tackle the big issues.

The department has a controversial new program to harvest more timber from state forests and has designated the Harrison-Crawford State Forest as a place where researchers will monitor logging's effect on the endangered Indiana bat.

He's using prisoners to do more work in state parks, drawing criticism from some key Democrats. He instituted a new fee structure and centralized the agency's management to balance its books. And he's privatizing the operations of many state park functions, even proposing that a company build, own and manage an inn at Indiana Dunes State Park on Lake Michigan.

Under Hupfer, the department made one of its most significant purchases in decades -- an 8,000-acre parcel near Linton known as Goose Pond. Part of the land already is open for hunting and recreation, but the agency also is working on trails, observation towers and other amenities. * * *

Hupfer now is working on efforts to gain control of seven water wells at Charlestown. The state already owns them but a private company, Aqua Indiana, holds the rights to the water.

The company has expressed an interest in selling its rights, and Hupfer wants the state to buy them. But Clark County officials are concerned the state simply wants to make money off the water, including selling some to Louisville, something Hupfer denies.

"I think this will come to a head in the next 30 days," Hupfer said last week. "Water is potentially a barrier to economic development in Southern Indiana. This is important."

Posted by Marcia Oddi on Monday, April 10, 2006
Posted to Environment | Indiana Government

Sunday, April 09, 2006

Ind. Courts - "Scott judge will appoint special prosecutor to see if allegation against prosecutor merits charge"

"Special judge to study case: Scott judge will appoint special prosecutor to see if allegation against prosecutor merits charge" was the headline to a story by Aubrey Woods Friday in the Seymour Daily Tribune. Some quotes:

BROWNSTOWN — A Scott County judge has assumed jurisdiction over a case stemming from a March 2 incident between the Jackson County prosecutor and a former deputy prosecutor.

That incident between Prosecutor Stephen Pierson and Seymour attorney Mark Risser occurred in the Jackson County Courthouse, according to Risser’s complaint.

Risser filed the complaint the following day with the Jackson County Sheriff’s Department and said Pierson, who fired Risser in June 2004, verbally threatened him with bodily harm, his right hand clenched into a fist, as two of Risser’s clients stood nearby. * * *

Jackson Circuit Judge Bill Vance said Friday that Sheriff Jerry Hounshel asked him to appoint a special prosecutor to determine if it is appropriate to have criminal charges filed against Pierson.

The code of judicial conduct, however, does not allow Vance to participate in the selection of a special prosecutor.

Vance also said Friday that state statute requires that the judges of four courts from outside the county participate in a random drawing, and the judge selected would then consider appointing a special prosecutor.

The four courts in this case are Bartholomew Circuit Court, Bartholomew Superior Court 2, Scott Superior Court and Jennings Circuit Court.

Jackson County Clerk Sarah Benter conducted that drawing earlier this week, and Scott Superior Court Nicholas L. South was selected.

For background, see this 3/11/06 Tribune story headlined "Attorney wants charge against prosecutor: Confrontation outside courtroom spurs filing of criminal complaint."

Posted by Marcia Oddi on Sunday, April 09, 2006
Posted to Indiana Courts

Ind. Courts - Judicial mandate in Jackson County

Updating this ILB entry from March 23 ("Jackson judges will issue mandate") are these additional stories and an editorial from the Seymour Daily Tribune.

"Financial woes not their problem?"
is the headline to the editorial from 3/27/06 that begins:

Excuse us, but did we hear that correctly? Jackson County’s financial problems aren’t the problems of Jackson Circuit and Superior courts?

That’s what Jackson Superior Judge Bruce Markel told Jackson County Board of Commissioners at its meeting last week when he and Jackson Circuit Judge Bill Vance threatened to mandate or order that insurance coverage and costs remain the same for their employees while costs and/or deductibles increase for most other county employees.

The county’s financial problems aren’t their problems?

This story from 4/1/06 is headlined "Judges mandate insurance costs: Order covers courts, probation office, drug and alcohol program." Some quotes:
BROWNSTOWN — Insurance costs will remain the same for employees in Jackson County’s two courts, probation department and drug and alcohol program while increasing for others.

That’s a result of a mandate issued Friday by the county’s two judges, Jackson Circuit Judge Bill Vance and Jackson Superior Judge Bruce Markel, delivering on a threat made last week during a Jackson County Board of Commissioners meeting. * * *

Changes to the county’s health insurance were made by Jackson County Council last month 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 toward meeting that directive, 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 4/5/06 coverage is headlined "Order awaits panel: Mandate for insurance sent to high court." Some quotes:
BROWNSTOWN — A judicial mandate issued Friday by Jackson County’s judges to maintain group health insurance benefits for their employees has yet to make it to the Indiana Supreme Court.

“The clerk could have it, but I haven’t seen it yet,” Tom Carusillo said. Carusillo, the court’s director of trial court services, said once the case reaches his desk, a summary will be sent to the five members of the supreme court who will then select a special judge.

The special judge will hear the case and issue their findings, which would be reviewed by the court. * * *

[Judges] Vance and Markel contend the decision to change health insurance benefits is essentially making their employees take a pay cut because they have not received a pay increase in two years and pay was already inadequate.

They further contended that the changes cold lead to the loss of knowledgeable, competent and qualified employees with years of experience, and that those employees are needed to maintain the integrity of the court.

Posted by Marcia Oddi on Sunday, April 09, 2006
Posted to Indiana Courts

Saturday, April 08, 2006

Law - The Changing Face of Real Estate Sales

The Wall Street Journal had two stories this week, on Wednesday and Thursday, on the changing face of real estate sales nation-wide. The two stories have been republished in the Pittsburgh Post-Gazette.

"Google, Craigslist expand into real estate" is the headline to the first, lengthy story. It begins (emphasis added):

Craigslist.com and Google.com, two Web sites that have fundamentally altered the way consumers buy a broad range of products, are emerging as places to shop for residential real estate, a development that in the long term could weaken Realtors' hold on home selling.

Listings of real estate for sale on Craigslist, a popular Web site featuring free classified ads, rose to 335,126 in March, more than triple the level of a year earlier. Google Inc., meanwhile, is testing a tool to help users sort through listings of homes for sale. Several more specialized sites launched in the past year -- including Trulia.com, Oodle.com and Propsmart.com -- offer free access to substantial numbers of listings.

While their real-estate ventures are still relatively small, sites like Google and Craigslist have begun reshaping the advertising world as they offer a potent alternative to ad spending on traditional media such as newspapers and TV. Craigslist in particular has become a popular place to post classified listings for rental apartments, child care, jobs, furniture and personals. With household brand names and huge numbers of users -- Google had 89 million visitors in February, according to research firm NetRatings Inc. -- Google and Craigslist have the potential to draw large numbers of home-sale listings.

The proliferation of real-estate sites comes as brokers are under pressure from several directions. As home sales slow, an increasing number of discount brokers are vying for customers. In addition, the U.S. Justice Department and the Federal Trade Commission are investigating industry practices that they say deter competition. * * *

The Web-site companies say they don't aim to revolutionize real-estate brokerage and indeed are working to cooperate with brokers in many cases. But the growth of the sites may embolden more consumers to try selling their homes themselves and, when they do use agents, to reduce their reliance on them. Abdullah Yavas, a real-estate professor at Pennsylvania State University, says these sites may encourage an "unbundling" of agents' services, with consumers paying for only the services they want, rather than a whole package. For instance, a consumer might list a home on Craigslist and arrange showings, but still hire an agent -- for a lower commission -- to help with negotiations or guide the paper work.

The second story is headlined "Real-estate brokers step up rebates as market cools." Some quotes:
As the real-estate market continues to cool, a growing number of brokers are doing what was until recently unthinkable. They are giving most of their commissions to buyers.

This novel pitch is catching on in some of the priciest real-estate markets in the country. In February, Seattle-based Redfin launched a service that offers to rebate two-thirds of the commission it receives for representing a home buyer. Redfin currently operates only in the Seattle area but plans to expand to San Francisco in May and to Los Angeles, San Diego, Boston and Washington later this year.

Meanwhile, BuySide Realty Inc., a new company based in Chicago, is expected to announce Wednesday the launch of a service offering home buyers rebates of 75 percent of the commissions it earns as a limited-service broker. The closely held company will initially operate throughout Illinois, Florida and California and aims to cover 39 states by the end of 2008.

People selling homes typically pay commissions of 5 percent to 6 percent of the price, which is split between brokers representing the buyer and seller. On a $300,000 home with a 3 percent cut for the broker representing the buyer, BuySide would earn $9,000 and pay 75 percent of that, or $6,750, as a rebate to the buyer.

These new rebaters join a long list of entrepreneurs who over the years have tried to reinvent the residential real-estate business, which generates more than $60 billion a year in commissions. * * *

One of the biggest problems for rebaters is persuading consumers that the offers are legitimate. "People often think it's too good to be true," says Daniel Ruben Odio-Paez, a real-estate agent who works in the Washington, D.C., area and operates a Web site, RebateReps.com, that connects buyers with agents willing to provide rebates. BuySide and Redfin hope to build up nationally known brands that would give rebates more credibility. * * *

The premise of BuySide and other rebaters is that many consumers nowadays find the homes they want to buy online and should be able to share in the commission paid to the agent that helps them complete the transaction. BuySide customers will view homes on their own rather than being driven around by agents. The BuySide agents, to be paid salaries rather than commissions, will be available to answer questions and help guide the paperwork by telephone and email.

For background on a new Indiana law that may restrict Hoosiers from availing themselves of many of these new options, see this ILB entry (and its links) from March 30th headed "Ind. Law - Yet again on: Home sellers lose with this new law."

Posted by Marcia Oddi on Saturday, April 08, 2006
Posted to General Law Related

Environment - US EPA fines Reilly $88,468

"EPA fines Reilly $88,468: Officials not told right away about chemical releases" is the headline to a story today in the Indianapolis Star by Tammy Webber. Some quotes:

An Indianapolis chemical company has been fined $88,468 for failing to immediately notify federal and state officials after releasing hazardous chemicals in late 2003, the U.S. Environmental Protection Agency said Friday. * * *

Leaks must be reported to the National Response Center and state and local authorities as soon as they're discovered so local emergency responders can protect people living or working in the area, Richard Karl, director of the EPA's Region 5 Superfund division, said in a written statement.

Posted by Marcia Oddi on Saturday, April 08, 2006
Posted to Environment

Ind. Courts - Judge Menges v. Kokomo Council on drug court funding

"Judge Menges doesn’t take no for an answer: Judge threatened not to start Drug Court if council didn’t agree to hire an administrator" is the headline to a story by Lisa Fipps in the Kokomo Perspective that begins:

Howard County Superior Court I Judge Bill Menges put the debating skills he honed during all of his years as a lawyer to work when he went before the County Council for approval to hire a Drug Court administrator.

The judge told the council the benefits of having a Drug Court and that he truly needed to hire one employee by July 1 and would need a second employee most likely to start on Jan. 1, 2007. Because roles and duties would be shifting slightly, he also wanted to change the titles and increase the salaries of two current employees.

He was originally told no by councilman James Papacek.

“I don’t doubt a thing the judge is saying,” Papacek said. However, he noted that the county had to spend every penny of the Rainy Day Fund and deny employees’ raises yet again, so he felt like the county could not afford to hire a Drug Court administrator.

“In all good consciousness, I can’t put additional people in the budget at this time,” he said.

Menges didn’t take no for an answer.

Posted by Marcia Oddi on Saturday, April 08, 2006
Posted to Indiana Courts

Ind. Law - "Secret payments to city lawyers"

What is it with big cities and water utilities. It seems like if the city owns it, it wants to privatize it (as did Indianapolis), and if it doesn't own it, it wants to buy it (Fort Wayne).

Today the Fort Wayne Journal Gazette has an editorial headed "Secret payments to city lawyers." Some quotes:

Has Mayor Graham Richard’s long legal battle to take over a private water utility been worth it? City residents have no way of knowing, because the Richard administration wrongly and outrageously refuses to disclose how much the city or City Utilities has paid in legal fees in its efforts to take over Aqua Indiana.

The fees were not included in a list of consultant payments the council had previously requested and received from the Richard administration. After being asked about the exclusion, city officials sent an accounting of the fees to individual City Council members last month – accompanied by a letter from City Controller Pat Roller declaring that the information was confidential and was not to be released. Later, City Attorney Tim Manges sent council members a memo reiterating that the information is private. * * *

Manges claims that this information is exempt from Indiana’s open records law because “certain portions of the invoices requested may constitute attorney work product” and because of attorney-client confidentiality. The law, however, requires that if portions of a record are entitled to remain secret, the remainder of the record must be disclosed. And attorney-client privilege is not a reasonable – or legal – excuse for refusing to account for publicly spent money. After all, it is the public that is the client for attorneys retained by the city.

Apparently, Manges doesn’t see it that way. He said it is the City Council that is the client, and the council may decide to release the information, which members are expected to discuss at an April 18 meeting. While Manges points to the council to make the decision, some council members said they would not release the information now because Manges directed them not to. Smith said he will wait for Manges to make his case at the April 18 meeting. * * *

Government officials, of course, are not supposed to pick and choose if and when public information is made public. Delays are unacceptable. This case was argued last month before the Indiana Supreme Court. Citizens have a right to know yesterday how much the city paid to its attorneys – not next week or next month or next year or whenever city officials decide it won’t hurt their case.

Karen Davis, the state’s public access counselor, said she could not yet determine whether the information should be available publicly because she had not yet reviewed the city’s position. But she said that her office has reviewed other cases involving attorney fees in the past and that in general, the amount of money, the billable hours and the names of the law firms who represented government agencies must be made public.

In addition to being terrible public policy, this refusal to release public information is horrid political judgment. These attorney fees will eventually be made public. In the meantime, the mayor and his staff needlessly subject themselves to suspicion and criticism for refusing to tell the public how much the public has spent on attorney fees.

This is an abhorrent abuse of the public trust. Public money has been paid. Citizens are entitled to know how much, to whom and for what. Period. No debate, no excuses, no waiting.

Posted by Marcia Oddi on Saturday, April 08, 2006
Posted to Indiana Law

Ind. Courts - More on Terre Haute federal courts

The Terre Haute Tribune-Star reports, in a story by Sue Loughlin:

Local officials hope they have another opportunity to keep federal courts and related offices in Terre Haute, based on a letter sent by the General Services Administration to Mayor Kevin Burke this week.

“The federal agencies have requested that the new office location continue to be within the city limits of Terre Haute,” states a letter written by Paul Rodriguez, GSA realty specialist.

The courts are currently housed in the federal building at Seventh and Cherry streets, but that lease will expire Oct. 31, 2008.

GSA is trying to locate space in the Terre Haute central business district, but if it doesn’t, it will consider other properties within city limits, the letter said.

In March, GSA published a notice saying it wants to lease about 12,500 to 15,440 square feet of space to house the U.S. District Court, U.S. Bankruptcy Court, Probation Office, U.S. Marshal Service and U.S. Attorney. * * *

Andrew Conner, executive director of Downtown Terre Haute Inc., has been in touch with GSA and has informed local developers and real estate agents about the opportunity.

“It’s not been a very open process so far. I’m glad GSA is opening it up a little,” he said.

GSA representatives placed a notice in the March 9 Tribune-Star seeking proposals, but the deadline to receive those proposals was March 17.

Conner said GSA didn’t contact him, the mayor, Terre Haute Chamber of Commerce or others who could help them find a suitable facility.

“They weren’t making a serious effort to find good space,” Conner said. “They may have been sincere, but they were not doing it the way they should if they wanted the best site submissions.”

GSA spokesman Neil Omansky said the agency has done a market survey and did receive some proposals in the central business district.

“As a public courtesy, we are still accepting proposals” and the deadline has been extended, Omansky said. * * *

GSA said in the March 9 notice it is considering both existing building space and new construction, and the anticipated lease term is for five years.

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, a U.S. District court representative said last month.

“The court feels it’s important to do what we can to maintain a federal judicial presence in Terre Haute,” Laura Briggs, clerk of the U.S. District Court for the Southern District of Indiana, said in March.

However, the court faces some budget constraints. The administrative arm of the judiciary has set a cap on rents, based on current rates, she said.

Posted by Marcia Oddi on Saturday, April 08, 2006
Posted to Indiana Courts

Friday, April 07, 2006

Ind. Decisions - Transfer list for week ending April 7, 2006

Here is the Indiana Supreme Court's transfer list for the week ending April 7, 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, April 07, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending April 7, 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 April 7, 2006.

There are 13 Court of Appeals cases listed this week.

Posted by Marcia Oddi on Friday, April 07, 2006
Posted to NFP Lists

Not law, but very irritating! [Updated]

First good coach IU women's basketball has ever had, while Purdue has snared one good women's coach after another, and now this!!!

Versyp Resigns as Indiana Coach

BLOOMINGTON, Ind. - Indiana head women's basketball coach Sharon Versyp has resigned from her position with the Hoosiers to accept a similar position at Purdue University.

"We appreciate Sharon's efforts at Indiana and wish her well in her future endeavors," IU Athletics Director Rick Greenspan said.

Versyp led the Hoosiers to a 19-14 record overall and a 9-7 mark in the Big Ten Conference in her only season and guided the team to its first post-season appearance, the Women's National Invitation Tournament (WNIT), since 2001-02.

IU will immediately embark upon a national search for Versyp's successor.

Incredible!!!

[Updated 4/8/06]
The story gets worse. The Indianapolis Star reports today, in a story headlined "Versyp's decision to leave stuns her Hoosiers players: With coach away on a cruise, Greenspan breaks news to team," that:
IU athletic director Rick Greenspan told the players of Versyp's decision shortly after 7 a.m. Friday.

"We all heard rumors, but were shocked," said Kimberly Roberson, a freshman from Cathedral High School. "We also were a little hurt because we weren't told personally by her."

Whitney Thomas, a freshman from Bloomington North, said she enjoyed playing for Versyp, who was unable to meet with the players because she was on a cruise scheduled months ago. * * *

Roberson and Thomas said the team asked Greenspan to seek a new coach with qualities like those of Versyp. The only difference, Thomas said, is they want a coach who will stay.

Posted by Marcia Oddi on Friday, April 07, 2006
Posted to General News

Ind. Decisions - Court of Appeals issues one today

In Marvin Reffett v. State of Indiana, a 5-page opinion, Judge Robb writes:

Marvin Reffett pled guilty to operating a vehicle after a lifetime suspension as a Class C felony, operating while intoxicated (“OWI”) as a Class D felony, and to being an habitual substance offender. The trial court sentenced Reffett to an enhanced sentence of three years for his OWI conviction and an enhanced sentence of eight years for his operating a vehicle after a lifetime suspension conviction. These sentences were to be served concurrently. The trial court sentenced Reffett to five years with two years suspended to probation for being an habitual substance offender. This sentence was to be served consecutively with his other sentences for an aggregate executed sentence of eleven years. Reffett now appeals his sentence. We reverse and remand.

Reffett argues that his sentence is inappropriate. However, we find the following issue, which we raise sua sponte, to be dispositive: whether the sentence imposed by the trial court is authorized by statute. * * *

Here, the trial court considered Reffett’s habitual substance offender finding to be a separate crime and imposed a separate sentence for that finding, rather than enhancing the sentence for Reffett’s substance offense conviction. Pursuant to Greer, this was erroneous.

In addition, where a criminal defendant receives an enhanced sentence under the habitual offender statute, such sentence may not be suspended. * * * Therefore, the trial court also erred where it suspended two years of the five-year habitual substance offender enhancement it imposed. Because of the errors in the trial court’s sentencing of Reffett, we are compelled to reverse the sentence and remand this case for re-sentencing in accordance with this opinion.

Conclusion. The trial court improperly sentenced Reffett because it imposed a separate sentence upon the habitual substance offender finding and suspended part of the enhancement. Reffett’s sentence is therefore reversed, and we remand the case to the trial court for re-sentencing in accordance with this opinion.

Posted by Marcia Oddi on Friday, April 07, 2006
Posted to Ind. App.Ct. Decisions

Courts - More today on Illinois Supreme Court politics

This ILB entry yesterday linked to stories on the resignation of an Illinois Supreme Court justice and the selection of her successor. It quoted a Chicago Tribune story that began:

Justice Mary Ann McMorrow, the first woman to serve on the Illinois Supreme Court, announced Wednesday she will step down from the panel, clearing the way for the appointment of Appellate Judge Anne M. Burke, wife of Chicago Ald. Edward Burke.
Today the Tribune follows up, with a story headlined "Politics a means to end on court: Justices say party ties that helped them get on bench don't lead to biased rulings." It begins:
Nearly 16 years ago, two men with deep ties to Cook County politics used support from the county's powerful Democratic Party organization to ascend to the highest court in the state.

Today, Charles Freeman, a longtime friend of ex-Mayor Harold Washington, still sits on the Illinois Supreme Court. And the building that houses the court in Chicago is named in honor of the other man, Michael Bilandic, a former Chicago mayor himself.

The selection this week of Anne Burke, wife of powerful Chicago Ald. Ed Burke (14th), to the state's highest court has drawn new public attention to the long-standing role of politics in the state's judicial system.

Many of the justices who have served on the state Supreme Court once stood, hat in hand, before political party leaders as they sought selection for a county judgeship that became a steppingstone. Freeman and Bilandic, Appellate Court judges in 1990, sought the backing of Cook County Democratic Party leaders when they successfully ran for the Supreme Court.

Freeman defeated Mary Ann McMorrow in the Democratic primary in 1990. Two years later, McMorrow got the backing of the Democratic Party organization and won a seat on the high court. McMorrow, the first woman to serve on the Supreme Court, announced Wednesday that she was stepping down and had recommended Burke as her replacement.

"The idea that we get our judges from Mt. Sinai is just not the case," said Abner Mikva, a former federal judge and congressman who acknowledges politics and knowing then-President Jimmy Carter played a role in his selection to the federal bench. "They've all come through some political process at some point. But what matters most is what you do once you get there."

[More] Also, don't miss this Tribune editorial today, titled "The Springfield Supremes."

Posted by Marcia Oddi on Friday, April 07, 2006
Posted to Courts in general

Ind. Gov't. - More on attorney for Lake Station city clerk

On March 5 the ILB quoted from a Munster (NW Indiana) Times story headlined "Is attorney waste of taxpayer dollars?" The story began:

The Lake Station City Council put a request to provide a lawyer for the clerk-treasurer on hold recently.
Today the Gary Post-Tribune reports, via a story by Karen Snelling, that:
Newly appointed City Clerk-Treasurer Martha Kroledge is threatening to sue the Lake Station City Council for violating her right to have a lawyer.

Kroledge asked the council for a $12,000 appropriation to retain Highland Attorney Anthony DeBonis.

DeBonis, who served as the council’s attorney between 2002 and 2004, would be paid $175 a hour under Kroledge’s proposed appropriation ordinance.

But the ordinance was removed from the council’s agenda without any discussion Thursday night.

Councilman Keith Soderquist asked that the measure be taken off the agenda.

Soderquist said later that the city has a ordinance to restrict attorney fees to $100 an hour.

Kroledge paid DeBonis herself so he would attend the meeting and answer any questions posed by the council.

But no questions were asked.

After the meeting, DeBonis said under state law, the clerk-treasurer has the right to the attorney she chooses on terms, including hourly pay, that she consider appropriate. * * *

Kroledge said she wants the same amount of money the council is paying its attorney.

The council has $12,000 budgeted this year to pay Michael Deppe $100 a hour.

“All I’m asking is exactly what the council pays so I can have an attorney at least as good as Deppe,” Kroledge said.

She had directed DeBonis to pursue whatever legal action is necessary to make the council appropriate the funds she requested.

Posted by Marcia Oddi on Friday, April 07, 2006
Posted to Indiana Government

Thursday, April 06, 2006

Environment - First EPA head Bill Ruckelshaus to speak at IU Bloomington

IU-Bloomington has this release today, reading in part:

BLOOMINGTON, Ind. -- William Ruckelshaus, the first head of the Environmental Protection Agency, will speak on April 19 at Indiana University Bloomington in honor of the 35th anniversary of EPA.

Ruckelshaus will speak about "Environmental Protection in the Face of Population and Economic Growth." The lecture will begin at 1 p.m. at the Wells-Metz Theatre, 275 N. Jordan Ave. Indiana Gov. Mitch Daniels is expected to introduce Ruckelshaus. The lecture is being sponsored by the School of Public and Environmental Affairs and Cummins Inc. The event is free and open to the public. * * *

Ruckelshaus' lecture will be followed by a symposium at 2:15 p.m. at the Wells-Metz Theatre to discuss "Critical Issues in Environmental Policy." The symposium will include Ruckelshaus as well as:

  • Dr. Bernard Goldstein, professor and former dean of the University of Pittsburgh Graduate School of Public Health, a former officer with the U.S. Public Health Service and assistant administrator for research and development at EPA.
  • Marcus Peacock, current deputy administrator at EPA.
  • Paul Portney, dean of the Eller College of Management at Arizona University and former president of Resources for the Future.
The symposium will be moderated by A. James Barnes, a former dean of SPEA and former deputy administrator at EPA. He presently serves as a professor at SPEA.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Environment

Ind. Courts - Bids received for "21st Century Case Management System for all Indiana trial court and clerks"

Chief Justice Randall T. Shepard and Associate Justice Frank Sullivan, Jr. have issued a "Case Management System PNCO Update." The deadline for submitting proposals was 4 p.m., Friday, March 31. Fourteen proposals were received:

For background on the project, here is a list of ILB entries.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Indiana Courts

Law - California appeals court upholds "big box" ordinance

The San Francisco Chronicle is reporting:

Cities can outlaw big-box superstores in order to prevent the collapse of local businesses and resulting urban blight, a state appeals court ruled Wednesday in a case that sets a statewide precedent for ordinances aimed at retail giant Wal-Mart.

Upholding a 2004 ordinance in the city of Turlock (Stanislaus County) that was backed by neighborhood supermarkets and labor unions, the Court of Appeal in Fresno said the city legally used its power to "control and organize development within its boundaries.''

The court also rejected Wal-Mart's argument that the city had failed to study the environmental effect of banning huge one-stop stores, which included a proliferation of smaller outlets, accompanied by increased traffic and pollution, according to the company. The court said those impacts were speculative and could be addressed if such stores were ever proposed.

The ruling, the first by a California appellate court on the issue, was delivered against a backdrop of legal and political conflict over Wal-Mart's efforts to establish a California network of discount supercenters -- stores that exceed 100,000 square feet and contain full-size groceries.

Local businesses fear ruinous competition from the world's largest retailer. Unions have been struggling for years, without success, to gain a foothold at Wal-Mart, and worry that the new stores would displace union-represented businesses or pressure them to cut wages.

From the Modesto Bee:
The Wal-Mart corporation sued Turlock soon after the City Council passed the ordinance with a 5-0 vote in 2004. Council members said then that the 225,000-square-foot-supercenter the Wal-Mart corporation wanted to build in the city would cause substantial traffic congestion and resulting environmental harm.

Wal-Mart lost in Stanislaus County Superior Court in 2004 and took the case to the 5th Circuit Court of Appeal in Fresno, which ruled against the corporation Wednesday. * * *

The Wal-Mart corporation sued Turlock soon after the City Council passed the ordinance with a 5-0 vote in 2004. Council members said then that the 225,000-square-foot-supercenter the Wal-Mart corporation wanted to build in the city would cause substantial traffic congestion and resulting environmental harm.

Wal-Mart lost in Stanislaus County Superior Court in 2004 and took the case to the 5th Circuit Court of Appeal in Fresno, which ruled against the corporation Wednesday.

Here is the appeals court opinion, Wal-Mart v. Turlock. [Thanks to How Appealing for the links.]

One issue pointed to
in the latter part of the Modesto Bee story is the matter of the legal fees the City of Turlock has incurred in defending its ordinance from Wal-Mart. Wal-Mart has brought suits in both state and federal court and this matter has been in litigation for several years. Some quotes on that point:
City Attorney Burton said the city has spent more than $300,000 defending the lawsuit and a similar one Wal-Mart filed in federal court that is going through the system.

Barring help from the Legislature, the bill for fighting the lawsuit will fall to taxpayers because public entities are not allowed to recoup lawyers' fees from lawsuits, Burton said.

"We get nothing. It's the taxpayers who have to pay," he said. "It doesn't seem fair when you have the largest retail corporation in the world … this is nothing to them."

But, Mayor Andre said, "The money has been well-spent if we can avoid spending $7 million to fix a traffic problem. I'm always reminded of the huge cost — how Modesto is spending millions of dollars to widen Pelandale (Avenue)." * * *

Councilman Kurt Vander Weide recently voted against the city spending more money defending the Wal-Mart lawsuits.

Here are links to other ILB "big box" entries.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to General Law Related

Ind. Decisions - Insurers applaud the decision by the Indiana Supreme Court to deny transfer on a case filed against the Indiana Compensation Rating Bureau (ICRB).

Insurance Journal reports that:

The Insurance Institute of Indiana and the National Association of Mutual Insurance Companies applauded the decision by the Indiana Supreme Court to deny transfer on a case filed against the Indiana Compensation Rating Bureau (ICRB).

According to the insurance trade groups, in July 2005 the Indiana Court of Appeals found in favor of the ICRB in the case of State Ex Rel. Employers Protective Insurance Company (A/K/A EPIC) v. Indiana Department of Insurance and the Indiana Compensation Rating Bureau. [Access it here]

The ICRB is a quasi-governmental entity with membership comprised solely of insurance companies writing workers compensation insurance in Indiana. The primary function of the organization is to file annually new minimum workers compensation premiums and rates with the Department of Insurance. The rates are advisory and insurance companies are free to set their own rates.

In the initial trial court case filed by EPIC in 2004, the insurance company asserted it should be considered a "person aggrieved" and therefore entitled to a hearing before the ICRB's Dispute Resolution Committee regarding the 2004 workers compensation minimum premiums and rates, set by the ICRB. In addition, EPIC claimed the ICRB amended its bylaws in an illegal manner.

Both the trial court and the Indiana Court of Appeals found that a "person aggrieved" as it relates to the ICRB, is meant to be an insured with a dispute against an insurance company or the ICRB and that EPIC is not the "person aggrieved" that the legislature intended when crafting the law. By denying transfer of the case, the Indiana Supreme Court effectively ended EPIC's assault on the ICRB.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Columnist James J. Kilpatrick features Indiana case [Updated]

An opinion piece by national columnist James J. Kilpatrick today reports on an Indiana case that I am not familiar with:

Justice never will be perfectly administered. Two cases that illustrate the truism are now pending in the [US] Supreme Court on petitions for review. They merit a sigh of regret.

The cases are Dawson v. Newman from Indiana and Buttrick v. United States from New Hampshire. The odds are 1,000-to-1 that the high court will reject both petitions without a public murmur of reflection, but even the lost causes are not without interest. In both cases, as I read them, defendants were wrongly treated because constables blundered.

In 1990 Lance Dawson pleaded guilty to certain unstated criminal charges. The charges could not have been very serious, for they resulted only in probation and a suspended sentence of six years in prison. In 1992 his probation officer filed a notice of probation violation, but nothing much happened and Dawson remained free to get on with his life.

Then, in 2000, the state unaccountably hauled Dawson back into court, this time before Judge Thomas Newman in the Superior Court of Madison County. In June 2000 he revoked Dawson's probation and reinstated the suspended sentence. Dawson went to prison. Thirteen months later the Indiana Court of Appeals unanimously reversed that decision: There had been a "complete failure" to prove probation violations. Dawson must be freed. [Note from ILB: Read that 2001 Court of Appeals opinion here.]

Judge Newman obediently ordered Dawson's immediate release. Someone in the judge's office faxed a copy of the court's opinion to the state Department of Corrections. Nothing happened. Dawson wasn't freed. He protested. Still nothing happened. Dawson was routinely shipped from an overcrowded prison in Indiana to an available prison in Kentucky. Fourteen months passed -- 14 months! At last he got out. Naturally he sued everyone in sight. Judge Newman pleaded immunity to suit. The other defendants said nobody ever ordered them to do anything. Now the Supreme Court will decide if the succession of blunders merits review. * * *

My guess is that neither Lance Dawson nor Dustin Buttrick will be granted a hearing before the Supremes, but at a quiet time on the Hill I wish them luck.

[Update] Thanks to Doug Masson who has sent me a link to the 7th Circuit opinion in Dawson v. Newman (8/18/05). Doug has also sent along this comment:
After skimming that opinion, I'm a bit confused by the fuss made by the columnist. The 7th Circuit approved dismissal of the judge on grounds of judicial immunity which is kind of a no brainer. It reversed the dismissal of the county clerk and the Dept. of Correction and those suits are still pending at the district level. The petition for certiorari is apparently only as to the dismissal of the judge (http://www.supremecourtus.gov/docket/05-1147.htm).

Maybe there is an angle of which I'm unaware, but judicial immunity doesn't really seem worth making a fuss over. The real potential for liability lies with the Clerk who may have messed up the paperwork and with the DOC who may not have acted appropriately when he protested his further incarceration.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Indiana Decisions

Ind. Courts - "New clerk may cost Martin County"

The Washington IN Times-Herald has an interesting story today, headlined "New clerk may cost Martin County," by Laura Thigpen. Some quotes (I've highlighted some portions) from the beginning of the lengthy story:

SHOALS — Martin County Circuit Court Judge Joe Howell asked the county council Tuesday for two more full-time and two part-time workers he said he needs at least until the end of the year.

While the judge and his staff are more than willing to work with the new county clerk and his staff, it’s just a reality the courthouse newcomers have no experience with the job, Howell said. That’s bad enough for the county and its taxpayers, particularly with an election coming up in May, for which the clerk’s office is responsible. Absentee voting starts Monday, and the new clerk, John Hunt, told him the election is Hunt’s priority, Howell explained.

But with an untrained and inexperienced staff, Hunt has also not been able to keep up with the second, equally important job of the county clerk’s office — processing court records in and through and back out of the office. In Indiana counties, the clerk serves both as the clerk of the county, running and managing local, state and national elections, but also as clerk of the circuit court, meaning they answer directly to Howell, who’s responsible for the records and documents flowing in and out. They also collect and distribute child support, another important task, the judge said.

“With the recent change in the clerk’s office, I met with the deputies and the clerk, and they readily admit they have no experience,” Howell told the seven-member council. “But since March 24, there has been nothing happening in the clerk’s office related to the court’s work.”

All court papers enter the system through either the court itself or through the clerk’s office, and all such documents leave through the clerk’s office. But since Linda Nolan, acting clerk of the county until noon on March 24, and her experienced staff quit their jobs that Friday, court records aren’t being filed, processed or documented, and Howell said court payments also aren’t being entered in a computer system that seemingly baffles the new clerk and his employees.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues one today

In James R. Johnson v. State of Indiana, a 13-page opinion, Judge Barnes writes:

James Johnson challenges his thirty-year sentence for child molesting, a Class A felony, a $5000.00 fine, and an order requiring him to pay restitution for the victim’s counseling. We affirm and remand. * * *

In this case, the trial court’s sentencing order with regard to restitution is unclear, and we are not able to determine whether that portion of the sentence is in keeping with the requirements of the restitution statute. The State, too, reaches this conclusion and concedes that the restitution order “requires clarification.” Because we are unable to determine whether the restitution provision is improper and results in fundamental error, we remand this portion of Johnson’s sentence to the trial court for clarification.

Conclusion. We conclude that any possible violation of Johnson’s rights under the Fifth Amendment to the United States Constitution and Article I, Section 13 of the Indiana Constitution during his sentencing hearing was harmless. We further conclude that the trial court did not abuse its discretion by sentencing Johnson to what was a presumptive thirty-year sentence on a Class A felony and that the $5000.00 fine imposed on him was appropriate. We remand to the trial court for clarification of the restitution portion of Johnson’s sentence. We affirm and remand.

Affirmed and remanded for clarification.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - "State suspends Griffith attorney indefinitely"

"State suspends Griffith attorney indefinitely" is the headline to a story today in the Munster (NW Indiana) Times by Patrick Guinane. Some quotes:

INDIANAPOLIS | The state has suspended the law license of former Hebron Town Council President Michael Haughee for failing to cooperate in a disciplinary investigation.

The nature of the investigation was not immediately clear, although at least one complaint against Haughee was filed by a former law client, The Times has learned.

Haughee, a candidate for state Senate four years ago, did not return a message left at his Griffith law office. An Indiana attorney since 1981, Haughee's law license was suspended for three months in 2003.

The Indiana Supreme Court Disciplinary Commission has not made public many details about its current investigation of Haughee.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Indiana Courts

Environment - "Six swine CAFO permits sought"

"Six swine CAFO permits sought: 'We're facing an onslaught,' a Randolph County CAFO opponent says" is the headline to a story today by Seth Slabaugh in the Muncie Star-Press. The report begins:

WINCHESTER -- A grassroots organization that unsuccessfully tried to stop a Dutch dairy CAFO from locating in Randolph County is now fighting plans to construct at least six swine CAFOs (concentrated animal feeding operations) in the county.

"We're now facing an onslaught," Wendy Carpenter, chairwoman of Environmentally Concerned Citizens of Randolph County (ECCRC), told about 150 people who attended a meeting at the county fairgrounds Tuesday night. "We need your help."

Under Indiana law, a swine CAFO means a facility that confines and feeds at least 2,500 swine, each weighing 55 pounds or more.

In the past three weeks, the Indiana Department of Environmental Management has received permit applications for four swine CAFOs in Randolph County, including two from North Carolina-based Maxwell Foods/Goldsboro Hog Farm, the 10th largest pork producer in the United States. IDEM received a fifth swine CAFO application for Randolph County in January and a sixth one on Dec. 30.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Environment

Ind. Decisions "Child-molesting conviction reversed "

An AP story today, published here in the Louisville Courier Journal under the headline "Child-molesting conviction reversed - Court: Judge wrong to deny cross-examination of victim," reports on Tuesday's opinion (see ILB entry here) by Judge Baker in Duane M. Redding v. State of Indiana. Some quotes:

INDIANAPOLIS -- The Indiana Court of Appeals has ordered a new trial for a man convicted of child molesting because a judge denied his request to cross-examine the victim and a witness.

The three-judge panel voted unanimously to overturn Duane M. Redding's 2005 conviction on Tuesday. The panel ruled that Madison Circuit Judge Frederick Spencer had violated Redding's Sixth Amendment rights.

Redding, 43, was charged in September 2003 after a girl encountered him at a restaurant and told family members he had molested her two or three years earlier, when she was about 6 years old.

Redding's attorney argued that the girl had confused him with someone else and sought to cross-examine her and a doctor to show that she had been molested previously.

After questioning the girl outside the jury's hearing, Spencer found that she had not confused the two men. * * *

The Court of Appeals ruled that the judge should have let Redding cross-examine the doctor and the child about the prior molestation because showing that someone else could have caused the girl's injuries was key to his defense.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Ind. App.Ct. Decisions

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

A week ago the ILB had the story from the Indiana point-of-view. Today, here is the story, as reported in the Chicago Tribune. The headline: "Cities divided over a curb: Hammond has the go-ahead to build a traffic barrier, but Calumet City seethes at the perceived slight that some say is about race." Some quotes:

It will only be an 8-inch-high concrete curb, but it has divided residents in Calumet City and Hammond like a brick wall.

And after months of public debate, hearings and a last-minute court battle, construction started Wednesday on the curb that will stretch about a half-mile along State Line Road and block vehicular traffic in the less-affluent Calumet City from reaching a residential neighborhood in Hammond.

To construct the 6-inch-wide curb, Hammond is knocking down trees lining the picturesque avenue and installing an underground drainage system. Though Hammond officials have pitched the $630,000 barricade as a way to make its neighborhoods safer, the project has pitted two mayors, other public officials and dozens of residents against each other. A community deciding to insulate itself typically breeds tension, experts say.

A battle over a barricade that separated a street in Evanston from Chicago lasted for years and wound up in court. Racism was alleged in Beverly when the neighborhood planned cul-de-sacs to cut off traffic. * * *

Along the state line between Indiana and Illinois, some residents see the curb as an attempt to keep a wealthier community that is 72 percent white separate from its neighbor that is 53 percent black and 11 percent Hispanic, according to U.S. Census figures.

Those who support the barrier say their integrity is being attacked because they want to block out heavy traffic. * * *

Calumet City went to court to try and stop the project this week. Lawyers argued the road has existed for decades and the only thing that has changed is the racial composition of the region.

Hammond Mayor Thomas McDermott said he resents that people see racial undertones in the project.

"It's a quality of life issue," McDermott said. "A lot has been made of race. It has nothing to do with that. It has to do with traffic." * * *

At a court hearing Tuesday about the curb, Hammond officials said they did not conduct formal simulations of how traffic would flow with the curb. Hammond's engineers determined the project's impact on traffic volume, they said.

After the hearing, [Calcmet City Mayor] Markiewicz Qualkinbush said she has suggested alternatives to slow down traffic, but that McDermott isn't listening.

In court Tuesday, when Calumet City's request to halt construction was denied, Markiewicz Qualkinbush and McDermott barely looked at each other.

The ILB saw no mention in the Chicago Tribune story of what court, in which state. However, this Munster (NW Indiana) Times story from Tuesday reports:
According to a federal lawsuit and statements from the city's mayor and attorney Monday, Calumet City officials believe public safety will be harmed by the project because it will create circuitous routes for emergency vehicles.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Indiana Law

Courts - Illinois' first, but NOT only, female Supreme Court justice resigns [Corrected]

The Chicago Tribune reports today, in a lengthy story, that:

Justice Mary Ann McMorrow, the first woman to serve on the Illinois Supreme Court, announced Wednesday she will step down from the panel, clearing the way for the appointment of Appellate Judge Anne M. Burke, wife of Chicago Ald. Edward Burke.

McMorrow recommended to her colleagues as her successor one of the state courts' most highly recognizable jurists, a judge well-known for her work on behalf of children in Illinois and nationwide.

Noting the importance of earning the "positions of trust" that judges hold, McMorrow predicted in a written statement that Burke would "serve with distinction" as the newest member of the high court.

The recommendation by McMorrow and subsequent appointment by the full court mean Burke will take over the panel's open Cook County seat this summer and will have the right to serve until the panel's next election in 2008. Burke could run for a 10-year term of office at that time.

McMorrow's selection of Burke highlights the political process used to select jurists in Illinois. Ald. Burke was among the key members of the Cook County Democratic Central Committee who chose McMorrow as their candidate in the 1992 Democratic primary. Fourteen years later, the alderman's wife was handpicked by McMorrow to succeed her.

Judge Burke's appointment raised some concerns about political clout in the selection process, by which McMorrow got to select her replacement and the full court then discussed it, and approved it, behind closed doors.

Here is coverage from the Chicago Sun-Times, including photos and links to a number of related stories.

[Corrected at 1:00 p.m.] Thanks to an alert reader who happens to be a member of the Indiana judiciary, I am able to quickly correct this morning's error. There are currently TWO women serving as justices of the Illinois Supreme Court.

As the above-entry reports, Justice McMurrow has announced her resignation, to be replaced by Appellate Justice Anne Burke. But Supreme Court Justice Rita B. Garman continues to serve.

Posted by Marcia Oddi on Thursday, April 06, 2006
Posted to Courts in general

Wednesday, April 05, 2006

Courts - More on judges retention vote in Pennsylvania - pay raise question goes to Supreme Court

From the Dec. 28, 2005 ILB:

Here is the background: The Pennsylvania judicial retention vote in November turned on a "midnight pay raise" passed by the Pennsylvania legislature that included raises for the judges. The result was one Supreme Court justice being turned out of office last month via the 10-year "yes or no" retention ballot. After viewing those election results, the Pennsylvania General Assembly retreated last month and repealed the pay raise. There was speculation that a judge might sue and sure enough, * * * several judges filed suit to restore their pay hikes.
Yesterday, the case was argued before the Penn. Supreme Court. Here are quotes from a report from The Legal Intelligencer:
The wake of last year’s pay raise affair washed over Philadelphia today in the form of a two-and-half-hour oral argument session before the Pennsylvania Supreme Court involving three closely related cases.

Among the issues the justices will have to consider: whether a non-severability clause in a piece of legislation trumps a constitutional provision against diminution of judicial salaries, or vice versa; and whether a 1986 precedent allowing for unvouchered expenses by state legislators should be overruled.

All three appeals argued yesterday involve assertions that the manner in which last year’s two pay raise-related pieces of legislation were passed -- Act 44, which created the pay raise, and Act 72, which repealed it -- violated the state Constitution.

Stilp v. Commonwealth involves claims by a Dauphin County political activist that the passage of Act 44 violated, among other provisions, Article III Section 1’s “original purpose” clause.

The consolidated appeals in Brown v. Commonwealth and Herron v. Commonwealth stem from allegations by a number of common pleas judges that the repeal of their pay raises via Act 72 violated Article V Section 16(a), which allows for a decrease of the salaries of the state’s jurists only if the salaries of all other “salaried officers of the commonwealth” are likewise diminished. Such was not the case with Act 72, the judges have argued.

Chief Justice Ralph J. Cappy, who lobbied in Harrisburg for the pay raises on behalf of the state's judiciary and had vowed to recuse himself in any related actions, was not in the court’s City Hall hearing room yesterday morning.

From the Philadelphia Daily News:
t's unclear when the court will rule on the matter. A separate case challenging the pay raise is pending in federal court in Harrisburg.

Today's arguments - the first time the top court has heard legal challenges to a pay raise in two decades - come a month before the May primaries and could serve to keep the pay issue front and center until then. Voters in November knocked a sitting Supreme Court justice off the bench as a result of the populist uprising over the issue.

In July, the legislature passed a pay raise bill that raised base salaries for lawmakers by 16 percent, while also increasing pay for top administration officials and judges. After four months of intense public criticism, the legislature reversed itself and repealed the raises for everyone.

In a separate case that was also heard by the court today, a group of local judges asked justices to reinstate their raises.

They argued that a provision in the state constitution bars the salary of judges from decreasing unless all other "salaried officers" of the state receive similar cuts.

From yesterday's Morning Call, an editorial:
Today will be an interesting one for Harrisburg. The state Supreme Court will hear arguments on a series of cases stemming from the General Assembly's ill-fated pay grab last year. Meanwhile, U.S. District Court for the Middle District of Pennsylvania still has to hear arguments as to whether the state Supreme Court justices should be prevented from acting on these cases.

There's a lot at stake for average Pennsylvanians in the hearings, even though state lawmakers repealed the the pay raise affecting themselves and the state's judges in November. There are issues from both the state constitution and U.S. Constitution. There are questions regarding the integrity and fairness of the state Supreme Court. There is the question whether the public deserves to know how decisions are made regarding the spending of their tax dollars — before those tax dollars are spent.

This morning, the state Supreme Court has scheduled arguments on four cases that challenge both the constitutionality of the pay raise and its repeal. Citizen activist Gene Stilp has sued the state, Gov. Ed Rendell, state Treasurer Bob Casey Jr. and two legislative leaders, charging that they enacted the pay raise in violation of several provisions in the state constitution. This includes the fact that the action was taken at 2 a.m. July 7 without public notifice or debate. An opposing case filed by some judges who lost their pay raises maintains the repeal violated constitutional provisions protecting judicial salaries.

Meanwhile, in federal court, Common Cause of Pennsylvania has a petition asking that the Supreme Court be prevented from taking any action. Common Cause has some good arguments, not the least of which is that Supreme Court Chief Justice Ralph Cappy played a key role in the pay raise negotiations, and that the justices had a financial stake in the pay grab. The citizens' lobby argues that the justices ''actual pecuniary interest'' in deciding these cases violates Pennsylvania citizens' due process rights under the Fifth and 14th amendments to the U.S. Constitution.

Several months ago, Chief Justice Cappy recused himself from participating in any of the cases. He has admitted to being part of secret negotiations on the pay raise and called criticism of it ''knee-jerk,'' but significant political ramifications still linger from the pay-grab. The justices, who must be retained by voters every 10 years, saw one of their colleagues, Russell Nigro, kicked off the bench in November's election. The pay raise and the court's previous decisions to let lawmakers take more immediately as ''unvouchered expenses'' are issues that could haunt all of them.

Some local color from the Philadelphia Inquirer:
So unwieldy has the issue become that at one point yesterday Justice Michael Eakin described it as a "morass and quagmire."

It was standing room only at yesterday's hearing as journalists, lawyers and clerks crowded the Supreme Court courtroom in Philadelphia City Hall.

G. Terry Madonna, a political analyst at Franklin and Marshall College, said he could not remember a decision so eagerly anticipated by the public, which will have this issue on its mind when it votes for House and Senate candidates in next month's primary election.

"There is no question that the Supreme Court is under a microscope here," he said. "People are paying attention to this in a way that they don't normally for a case before the Supreme Court."

Before the court are a series of complex issues dealing with arcane constitutional provisions and the rules of lawmaking.

The court's decision could have broad ramifications in how a bill becomes a law in the future. * * *

The original bill dealt with the salary of the governor. Legislators took the measure, cut its original language, inserted the sweeping pay-raise provisions, and "slapped a new title on it," she said.

"How can we explain to a member of the public... that the legislative process is open and deliberative?"

Eakin wasn't necessarily convinced.

"Things aren't unconstitutional because people don't have confidence," he said. "They are unconstitutional because they violate the constitution."

John Krill, a lawyer representing Senate President Pro Tempore Robert Jubelirer (R., Blair) defended how the pay-raise legislation was handled.

The bill's original subject was the same in the end, Krill said, equating it to a beam of light. Sometimes, it's sharply focused; other times it's diffused. But it is still the same beam of light, he told the justices.

Whether the bill changed enough from its original purpose to render it unconstitutional "is the $64,000 question," Justice Max Baer said.

From the Patriot-News:
PHILADELPHIA - The controversial state officials' pay raise was repealed, but its legacy is still taking shape.

The issue has spawned at least five lawsuits, and the state Supreme Court heard two hours of argument in three of the cases yesterday.

Philadelphia Common Pleas Judge John W. Herron and a separate group of seven judges filed lawsuits that aim to reinstate pay raises for more than 1,000 judges, including the high-court justices.

The third lawsuit, by Harrisburg political activist Gene Stilp, challenges the constitutionality of how the law was passed and the legality of allowing lawmakers to collect the raises immediately as "unvouchered expenses" despite a constitutional ban on midterm raises. * * *

In a crowded courtroom, Stilp, joined by attorneys for state Treasurer Robert P. Casey Jr., called the since-repealed bill a "poster child" for legislative practices that violate the spirit, if not the letter, of the Pennsylvania Constitution.

"Things have gone terribly wrong with the legislative process," said Sally Ulrich, Casey's attorney. "We are re-experiencing a crisis in public confidence that we saw over 100 years ago" when current safeguards designed to block stealth legislation and encourage public input were added.

Thanks to How Appealing, based in Philadelphia, from which the ILB obtained links to all these stories, about an issue that has implications beyond Pennsylvania.

Roll Call's Louis Jacobson has a lengthy column today (subscription required) titled "Voter Anger Imperils Incumbents Up and Down the Pa. Ballot." A quote, parts of which may sound familiar to Hoosiers, other parts of which may indicate a less passive electorate in the Keystone State:

To many voters, the pay raise was a reminder of how their Legislature adheres to an old-school brand of politics in which arrogant powerbrokers feel unconstrained by public demands. Demonstrations sprang up and, bolstered by talk radio and Web logs, blossomed into a grass-roots movement.

"Once this thing started to get attention, it took off like a runaway train," said Bill Green, a Pittsburgh-based Republican consultant. Eventually, record numbers of candidates would file to run for the Legislature. In the face of mounting voter anger, more than two dozen legislators decided to retire. Some thought it would be preferable to fighting a bloody re-election campaign (and some stood to collect a generous, untaxed pension).

The column continues: "The first blood came unexpectedly: in a judicial retention election last November."

Posted by Marcia Oddi on Wednesday, April 05, 2006
Posted to Courts in general

Ind. Law - Alabama Governor signs law expanding deadly force to protect home

The Columbus Georgia Ledger-Enquirer reports :

MONTGOMERY, Ala. - Gov. Bob Riley signed legislation Tuesday that puts Alabama among a growing number of states giving new legal protection to people who kill intruders in their homes, businesses and vehicles.

"With this new law, the decision of crime victims who choose to protect themselves and their families won't be second-guessed," Riley said at a bill-signing ceremony.

The legislation's sponsor, Sen. Larry Means, D-Attalla, is a lifetime member of the National Rifle Association. He said he patterned the legislation after a law the NRA got Florida to enact in 2005.

Indiana, South Dakota, and Mississippi recently enacted similar laws. The Georgia Legislature has passed a law that is awaiting the governor's signature, according to the NRA.

Posted by Marcia Oddi on Wednesday, April 05, 2006
Posted to Indiana Law

Environment - US EPA Region V Administrator Skinner resigns

Chicago Business reports:

(Crain’s) — Thomas V. Skinner, regional administrator of the U.S. Environmental Protection Agency’s Region V office in Chicago during most of the Bush administration, resigned today effective April 15.

Mr. Skinner, 44, has been a top environmental regulator in Illinois since 1999, earning a reputation as even-handed and personally likable by people on both sides of pollution issues.

“Tom Skinner was fair and did the best job he could in light of a Bush administration that’s had a distressing set of unfortunate environmental policies,” says Howard Learner, executive director of the Environmental Law and Policy Center of the Midwest, a leading environmental activist. “I liked the guy.

Mr. Skinner will become a partner at Mayer Brown Rowe & Maw later this month.

Posted by Marcia Oddi on Wednesday, April 05, 2006
Posted to Environment

Ind. Law - More from the new issue of the Indiana Lawyer

My issue of the Indiana Lawyer arrived in the mail this afternoon. Two items (not available online to nonsubscribers) caught my eye.

On. page 1, a story by Abigail Johnson titled "Judicial system tweaking: Indiana's appellate judge selection, retention system may still face scrutiny." It begins with an interview with Rep. Ralph Foley, R-Martinsville, who introduced a bill (HB 1419) in the just concluded session in an effort to change the way Indiana appellate judges are selected and retained.

Recommended reading, in my view, to go along with this week's Indiana Lawyer story, would be two articles I have authored recently that have been published in Res Gestae.

On p. 8, a story by Ron Browning titled "RSS does the searching for you." Among those quoted are local lawyers Stephen Terrell and myself.

Posted by Marcia Oddi on Wednesday, April 05, 2006
Posted to Indiana Law

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

In USA v. Phillippi, Michael (SD Ind., John Daniel Tinder, Judge), a 6-page opinion, Circuit Judge Manion concludes:

Here, we would have no ground for disturbing the district court’s decision to admit the government’s evidence, even if the government had wanted to introduce the second information only because it believed that two adjurations about the felony penalty were better than one. See Gonzalez v. DeTella, 127 F.3d 619, 621 (7th Cir. 1997) (noting that “no rule of law . . . limits the prosecutor to one piece of evidence in support of each element of the offense”). But there is further justification for the decision. The government argues, persuasively, that inclusion of both informations was not merely duplicative but actually necessary because of “deficiencies” in both proceedings that left either vulnerable to the claim that Phillippi did not understand the penalties he faced. In the Vigo County proceedings, the presiding judge read him the charges and the possible penalties, and asked him if he understood them, but he did not answer. Though the judge followed up with another question about the charges, he did not again probe Phillippi’s understanding of the penalty. In the Tippecanoe County proceedings, Phillippi was shown an audiovideotape that explained the charges and penalties. He confirmed in colloquy with the presiding magistrate judge that he was able to hear the videotape and that he had no questions about his rights, but he was never specifically questioned about the applicable penalties.

We perceive no abuse of discretion in the district court’s admission of this evidence, and therefore we AFFIRM the judgment of conviction.

Posted by Marcia Oddi on Wednesday, April 05, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "National firm opens Indianapolis office"

"National firm opens Indianapolis office" is the headline to this story by Ron Browning in the new Indiana Lawyer, out today. It begins:

The nation's largest employment and labor law firm now has a presence in Indiana.

Littler Mendelson opened its newest office – its 33rd in America – Monday at 450 E. 96th St. in Indianapolis.

To head the office, Littler plucked veteran attorney Todd M. Nierman from Baker & Daniels, where he'd been for 20 years.

Posted by Marcia Oddi on Wednesday, April 05, 2006
Posted to Indiana Law

Law - More on: How paint companies lost a multi-billion dollar lead paint suit

Updating this ILB entry from Sunday is this AP story today headlined "State's Contract With Outside Attorneys Unconstitutional, Say Lead Paint Industry Lawyers." Some quotes:

Former makers of lead paint went before the Rhode Island Supreme Court on Monday to prevent the state from honoring a contract with its private lawyers that is potentially worth tens of millions of dollars. * * *

The attorney general's office hired two private law firms to press the suit, which it filed in 1999. It agreed to pay the outside lawyers more than 16 percent of whatever the state received if it won the case.

On Monday, a lawyer for the industry told justices the contract was unconstitutional because it gave outside lawyers a financial interest in the outcome of the case. Attorney John Tarantino said defendants have the right to know that lawyers representing the government do not stand to gain financially from the case.

He said the attorney general's office would not be able to give bonuses to its staff after a major victory and that outside law firms should be barred from receiving a similar reward.

Assistant Attorney General Neil Kelly argued that the attorney general's office, with limited resources, must depend on outside help in such a massive lawsuit. He said if the state was not allowed to strike such deals with private law firms, it would be hamstrung if it wanted to sue an industry with deep pockets.

Posted by Marcia Oddi on Wednesday, April 05, 2006
Posted to General Law Related

Ind. Law - Madison County officials can’t talk about Mallard Lake landfill

An interesting story by Stephen Dick in the Anderson Herald Bulletin today. Some quotes:

When the Madison County commissioners took a hit about being silent on the Mallard Lake landfill in The Herald Bulletin on March 26, they wanted to explain to the newspaper why they haven’t spoke out for or against the project.

The reason is simple, said Paul Wilson and John Richwine (Pat Dillon wasn’t present at the meeting): Saying something could influence a decision the county’s board of zoning appeals made years ago and they can’t do that.

“It’s kept the commissioners from having personal opinions,” said the commissioners’ attorney Jim Wilson, who said state statute prevents the commissioners from interfering with an appellate board, in this case the BZA, even though both groups fall under the umbrella of the county.

“We can’t talk about their business,” said Paul Wilson.

“The (Killbuck Concerned Citizens Association) has tied our hands,” said Richwine. “We can’t make our opinions public. We’re not even at liberty to do that.”

What Richwine was referring to was a lawsuit brought by the KCCA, the Anderson Community School Corp. and Steve Wilkinson against the BZA’s decision to grant JM Corp. a permit to construct a landfill at County Roads 300 East and 300 North.

Here is the earlier Herald Bulletin story referenced above.

Here is a Nov. 17, 2004 ILB entry on the Mallard Lake dispute.

Posted by Marcia Oddi on Wednesday, April 05, 2006
Posted to Environment | Indiana Law

Tuesday, April 04, 2006

Law - Update on: Federal judge strikes down Illinois law on video games; Bayh backs federal legislation; Michigan injunction; earlier Indianapolis effort

Updating this ILB entry from Dec. 3, 2004, reporting that a federal judge in Michigan had enjoined a Michigan ban on video games from taking effect, the same judge last Friday ruled the law unconstitutional. (See also these ILB entries from Dec. 14 and Dec. 30, 2006.)

The Detroit Free-Press story reports:

A federal judge in Detroit struck down a state law banning the sale or dissemination of ultra-violent video games to minors, bringing joy to the hearts of gamers and disappointment to those who believe the games are bad for children. * * *

U.S. District Judge George Steeh ruled Friday that the law, which was to take effect last Dec. 1, violates the free speech provisions of the U.S. Constitution and was so vague that it would have forced retailers and store owners to decide which games were to be banned.

Gov. Jennifer Granholm was disappointed by the ruling.

"We ... will be reviewing the judge's order and discussing legal options, including an appeal at the Attorney General's Office," Heidi Watson, a Granholm spokeswoman, said Monday. "But we will continue our efforts to protect kids from violent video games by working with retailers." * * *

The law would have imposed civil and criminal penalties for anyone who disseminates ultra-violent video games to those younger than 17. It said a game is ultra-violent if it repetitively depicts extreme violence, such as rape, dismemberment, mutilation or torture.

Last November, Steeh stopped the law from taking effect by issuing a temporary injunction. On Friday, he made that injunction permanent, saying a growing number of judges have concluded that video games are protected free speech. The state failed to support its claim with substantial evidence that the games cause aggressive thoughts or behavior, he said.

Similar laws have been struck down or put on hold in California, Illinois, Washington state, Indianapolis and St. Louis County, Missouri.

The video gaming industry was thrilled with the decision and plans to return to court to win reimbursement of its legal fees, which could exceed $100,000.

Here is a copy of the ruling in Entertainment Software Ass'n. v. Granholm, posted via the How Appealing website.

Posted by Marcia Oddi on Tuesday, April 04, 2006
Posted to General Law Related

Ind. Gov't. - Voting machine errors disturbing for league of women voters

The Evansville Courier& Press reported yesterday:

At the annual League of Women Voters State Council meeting Saturday, many voters were visibly disturbed as they learned of the possibility of voting machine errors.

Eugene Spafford, professor of computer science at Purdue University and director of the Center for Education and Research in Information Assurance and Security, spoke to the group about voting machine security. His comments were not reassuring.

"The way that voting machines are tested and used does not provide safeguards against accidents, fraud or misuse," said Spafford.

"The testing and standards are designed by voting machine companies who have put a lot of money into marketing their products. Until we have technical standards designed by people not associated with the companies, we risk the possibility of all sorts of errors." * * *

Spafford said he encourages voters to write to their state representatives and ask them to introduce and pass legislation that would require a paper audit. Indiana is not one of the 26 states that require paper ballots in addition to electronic votes.

Posted by Marcia Oddi on Tuesday, April 04, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Hall Render Killian Heath & Lyman has opened offices in Milwaukee

The Business Journal of Milwaukee reports:

The usual legal scenario in Milwaukee is that a handful of the city's powerhouse law firms continually seek to expand their corporate practices beyond Wisconsin.

Outside law firms rarely view the Milwaukee area as fertile ground for their growing practices -- except in the health care field.

In the past two years, Chicago's Gardner Carton & Douglas and Indianapolis-based Hall Render Killian Heath & Lyman have opened offices in Milwaukee by enticing established health care lawyers to join their firms. * * *

Short of acquiring or merging with a Milwaukee firm, the only other way to establish a foothold in Milwaukee was for Gardner Carton and Hall Render to recruit entire practice groups to join their firms, said Rick Bliss, managing partner at Godfrey & Kahn, Milwaukee, which has some health care clients in Madison and the Fox Valley.

"The addition of the two firms changes the dynamic of the health care arena," said Bliss. * * *

Hall Render Killian Heath & Lyman is based in Indianapolis with regional offices in Louisville, Ky., and Troy, Mich. According to Modern Health Care magazine's annual survey of the largest health care firms in the nation, Hall Render's 115-attorney firm is the third largest.

Health care emphasis
While Gardner Carton lawyers are split among several corporate law practice groups, Hall Render's 115 lawyers are all dedicated to health care, said Bill Thompson, the firm's Indianapolis-based managing partner and president.

"We moved into Milwaukee because we found a core group of lawyers who shared our vision of building a national health care practice," Thompson said.

Soon after Hall Render opened its Milwaukee office in May 2005, five partners at von Briesen & Roper jumped to the new firm. * * *

Hall Render now has 12 attorneys working at its Milwaukee office. All of the von Briesen health care clients moved to Hall Render with its former lawyers. Seidenstricker would not identify the clients.

The 40-year-old Hall Render's largest national client is Ascension Health, St. Louis, a nonprofit hospital system that includes Columbia St. Mary's in Milwaukee. The firm also represents the Wisconsin Hospital Association, based in Fitchburg.

Partners in the Milwaukee offices of Gardner Carton and Hall Render expect to add more attorneys to their practice as they get better established and begin competing for new clients.

Posted by Marcia Oddi on Tuesday, April 04, 2006
Posted to Indiana Law

Environment - work on the Williamsburg Natural Pork Production operation will begin

The Richmond Palladium-Item reports:


Dirt will start moving later this month at Centerville and Randolph County Line roads near Williamsburg as Natural Pork Production II prepares to build its 11,200-sow breeding facility.

NPPII recently purchased 150 acres from Sara Davis and received its permits for the confined animal feeding operation from the Indiana Department of Environmental Management. * * *

It was August 2005 the Wayne County Board of Zoning Appeals unanimously agreed to approve the proposal by NPPII to create the facility that will produce just shy of 5,000 piglets a week. The piglets are then shipped to other facilities, some in other states, to be raised. * * *

The county's approval of the CAFO didn't come without some objections from neighboring landowners. Concerns raised included possible water and odor pollution caused by having that many animals in one place and the amount of waste they'll produce.

Now that NPPII has gotten approval from IDEM, Steve Higinbotham, Wayne County Planning and Zoning director, said the company will apply to the county for its building permits. He said the county will monitor the construction of the facility just like it would any other new project.

A side-bar gives more information:
The new confined animal feeding operation is owned by Natural Pork Production II, based in Harlan, Iowa. NPPII has sites in Iowa, Minnesota, Ohio, Texas and Crawfordsville and Colfax, Ind.

Construction plans include several barns. The sows are housed in enclosed barns at all times.

The land at Centerville and Randolph County Line roads was owned by Sara Davis and has housed a swine operation since 1967. Davis sold NPPII about 150 acres, 40 of which will be used in the construction of new barns. Most of the barns on the property will be demolished. An additional 700 acres owned by Davis will be used for manure management.

The property has a manure lagoon. However, NPPII is not going to use the lagoon for manure storage. Instead, manure, up to more than a year's worth at a time, can be stored in pits under the barns until it can be mechanically injected into the ground, not sprayed on top of it, to reduce odor. The current lagoon will be dredged and used for storm water runoff.

The proposed CAFO would be a farrow-to-wean operation and would have about 11,200 producing sows and no more than 15,000 adult swine on the property at one time. It will produce about 4,800 piglets a week. Those piglets are trucked to other facilities to be raised.

It would have 35 full-time employees with a pay range of $10-$15 per hour. The project cost is estimated between $15 and $18 million.

Posted by Marcia Oddi on Tuesday, April 04, 2006
Posted to Environment

Ind. Courts - Renovations to the LaGrange County Circuit Courtroom

WLKI reports:

(LAGRANGE) - Renovations to the LaGrange County Circuit Courtroom will cost at least $149,000. LaGrange County commissioners tentatively approved the awarding of the project yesterday to D & S Builders. They were the only bidder.

Posted by Marcia Oddi on Tuesday, April 04, 2006
Posted to Indiana Courts

Ind. Decisions - Two from Court of Appeals today

In Phillip Cain v. State of Indiana, a 6-page opinion, Judge Sullivan writes:

Appellant, Phillip Cain, following a jury trial, was convicted of operating a motor vehicle after having his driving privileges suspended, a Class D felony. He was sentenced to two years in jail, and his driver’s license was suspended for life. Upon appeal, Cain claims that although he was driving while his license was suspended, his was an “extreme emergency” situation as provided for under Indiana Code § 9-30-10-18, and his conviction was therefore in error.
In Duane M. Redding v. State of Indiana, an 8-page opinion, Judge Baker writes:
Appellant-defendant Duane M. Redding appeals his conviction for Child Molesting,1 a class A felony. Specifically, Redding argues that the trial court improperly excluded evidence of a prior molestation of the victim. Finding that Redding’s Sixth Amendment right to cross-examine the witnesses was violated, we reverse the judgment of the trial court and remand for a new trial.

Posted by Marcia Oddi on Tuesday, April 04, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on Randolph County Courthouse

Joy Leiker has a story today in the Muncie Star-Press headlined "Randolph courthouse to stand -- empty?" Some quotes:


WINCHESTER -- Two weeks ago the Randolph County commissioners agreed to save the 129-year-old courthouse from demolition. But that doesn't mean they all intend for it to be used as a long-term home for county business.

Commissioners Drew Wright and Ron Chalfant told The Star Press they don't consider the existing courthouse building, on the downtown square, a viable option for permanent courthouse space. The two men -- who previously favored demolition and construction of a new courthouse -- flipped their votes recently, bowing to public pressure to save the building, but said they haven't changed their minds.

Wright said his vote to save the building didn't mean he was going to agree to spend money on its upkeep or renovation.

"I don't see it as being a courthouse," he said of the long-term plan.

Wright and Chalfant both want to move county employees out of the building, perhaps to the former Winchester Wal-Mart store.

"We're going to move to get the tenant (county employees) in that courthouse moved out into a building that satisfies the requirements of the county offices," Chalfant said. "We don't meet ADA access in that old building. We do have a lift, but it's not that good. To come up to today's standards, we need to get out of that building and get in this Wal-Mart building."

Posted by Marcia Oddi on Tuesday, April 04, 2006
Posted to Indiana Courts

Ind. Law - Much more on Regions Bank Building in downtown Indy damaged by storm

The Indianapolis Star this morning has much more coverage on the damage caused by Sunday night's storm to the Regent's tower and the Star's own building.

"Lawyer took stairs to flee fierce winds and danger"
is the headline to this brief story by Tim Evans about Sommer and Barnard partner Jonathan Polak, who was in the building when the storm hit.

"Surveying the damage"
is the headline to this story by Erika D. Smith, Daniel Lee and Norm Heikens. Some quotes:

From a debris-caked sidewalk, Mike Cook cocked his head skyward Monday, inspecting the damage to One Indiana Square. It didn't look good.

The attorney for Wooden & McLaughlin LLP occupies the northwest corner office on the 17th floor of the high-rise office building. He had left important files from two cases spread out in his office. Now they might be among the shards of glass, papers and fabric littering the sidewalk at his feet. Other lawyers in the 80-person firm were in a similar situation, trying to work from home. * * *

Crisp said Colliers and other firms are offering conference rooms, computers and telephones to tenants until they can move back into One Indiana Square. The Indianapolis Bar Association also is seeking temporary office space for its members.

Jon R. Pactor, of the one-man firm Jon Pactor Attorney at Law, said he doesn't want to give up his longtime office at One Indiana Square. But he might have to if the building stays shut for more than one week.

Still, Pactor knows he is not as bad off as a lot of lawyers and accountants who call the high-rise building home. "If all that's going to happen to me is that I'm inconvenienced, I'd count myself lucky," he said.

On Monday morning, partners from the law firm Tabbert Hahn Earnest and Weddle were just trying to find out whether their offices were damaged on the 19th floor. "Candidly, as I speak, I don't know," said partner Lante Earnest. * * *

At The Indianapolis Star, 307 N. Pennsylvania St., facilities manager Karen Smeltzer said nearly 100 windows must be replaced after being broken by flying debris.

A temporary roof has been built over fourth-floor executive offices where sections of the roof were ripped away. And facilities personnel are investigating extensive water damage to the news paper's-library.

Don't miss this photo, captioned "A bookcase in the Krieg DeVault law firm nearly 30 stories up at One Indiana Square now faces the elements not far from an opening torn wide by Sunday night's storm." The printed Star also has a photo of the publisher's office, with a gaping hole in the ceiling, showing the sky.

Posted by Marcia Oddi on Tuesday, April 04, 2006
Posted to Indiana Law

Monday, April 03, 2006

Ind. Law - Feature on IU Law-Bloomington Prof. Dawn Johnsen

The Indianapolis Monthly has a long feature story on IU Law-Bloomington professor Dawn Johnson. Some quotes:

She has been a civil-rights lawyer, a legal adviser to the White House and, through it all, an eloquent crusader for reproductive rights. Now a popular law professor in mostly pro-life Indiana, Dawn Johnsen is reemerging as a national voice in the abortion debate. Haven’t heard of her? You will. * * *

Talking about abortion on CSPAN surely isn’t what Johnsen had in mind when she took a teaching job at Indiana University eight years ago. But the fact is, her expertise and experience have made her an indispensable source on the issue. After five years as legal director at the National Abortion and Reproductive Rights Action League (NARAL) and then four years in the Office of Legal Counsel under Janet Reno, she came to Bloomington in 1998 to teach constitutional law to aspiring lawyers. And yet here she is, far from IU’s quiet limestone campus, back in the televised trenches of America’s ongoing abortion war while her sons and husband admire dinosaur bones at the Smithsonian. * * *

“I love Bloomington,” Johnsen says. “I love teaching.” She’s been in Indiana for the past eight years, and it doesn’t look like there’s much not to love. The attractive, cultured college town. A job relaying a passion—constitutional law—to a new generation of young minds. The flexibility to go on trips to speak, to publish, to linger over breakfast for two hours on a weekday morning. Moreover, IU loves her back.

She is exactly the type of professor law schools like to keep around: a graduate of one of the best law schools in the country, with a practical background in and out of court plus rare insights into the inner workings of a presidential administration. Johnsen contacted the school in the spring of 1997; she was teaching by August the next year. (She gave birth to her second son, Eric, in January 1999.)

A regular speaker on academic and legal panels, Johnsen’s work on both presidential power and reproductive rights continually garners national attention, especially of late, with her major specialties at the forefront of political debate. She’s an IU-based expert whose words and ideas are splashed all over the pages of newspapers, and a competent debater on national television.

“These organizations can go anywhere in the country to solicit experts,” says Lauren Robel, dean of the IU School of Law. “That they come here, to her, is really less a feather in our cap than in Dawn’s.” Johnsen enjoys a reputation as a professor whose seminars fill up fast, and whose Washington-insider connections bring some of the most noted legal minds in the field to campus.

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Law

Ind. Law - Bloomington midwife's story makes the NY Times

"Prosecution of Midwife Casts Light on Home Births" is the title of a story in today's NY Times by law reporter Adam Liptak. The story, datelined Bloomington, Ind., begins with a description of a birth, then continues:

According to Indiana law, though, the midwife who assisted Ms. Hendrix-Petry, Mary Helen Ayres, committed a felony punishable by up to eight years in prison. Ms. Ayres was, according to the state, practicing medicine and midwifery without a license.

Doctors, legislators and prosecutors in Indiana and in the nine other states with laws prohibiting midwifery by people other than doctors and nurses say home births supervised by midwives present grave and unacceptable medical risks. Nurse-midwives in Indiana are permitted to deliver babies at home, but most work in hospitals.

Midwives see it differently. They say the ability of women to choose to give birth at home is under assault from a medical establishment dominated by men who, for reasons of money and status, resent a centuries-old tradition that long ago anticipated the concerns of modern feminism.

Chloe Hendrix-Petry's birth has not given rise to criminal charges, but a prosecution against another midwife, Jennifer Williams, is pending in Shelbyville, Ind. It was prompted by the death of a baby named Oliver Meredith that Ms. Williams delivered in June. But she is not charged with causing or contributing to Oliver's death.

Instead, to hear the county prosecutor tell it, the case against Ms. Williams is not unlike one against a trucker caught driving without a license.

"He may be doing an awfully fine job of driving his truck," the prosecutor, R. Kent Apsley, a trim, intense and direct man, said in his office in the basement of the Shelby County courthouse. "But the state requires him to go through training, have his license and be subject to review." * * *

Peggy Welch, a Democratic state representative in Bloomington, has introduced legislation in Indiana to recognize and regulate lay midwives. She said the issue boiled down to choice and safety.

"It is not illegal to have a home birth," Ms. Welch said, noting that about 1,000 Indiana families had their children at home each year. "But doctors and nurses are choosing not to do home births."

The current law, Ms. Welch said, drives midwives underground. "I don't want to have a midwife hesitate to take a woman to the hospital because she is afraid she will be arrested," she said.

Rep. Welch's bill, HB 1237, apparently was never scheduled for a hearing in the House committee - see the action list here.

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Law

Ind. Law - US News law school rankings out

The US NEWS Top Law Schools rankings are out. Access them here.

IU-Bloomington is 37; IU-Indianapolis is 77.

Last year the rankings were 36 and 95.

Check here for a list of many more ILB entries on law school rankings than you probably want to read.

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Law

Ind. Law - Indiana Districts Give Congressional Incumbents a Big Advantage

"Districts Give Congressional Incumbents a Big Advantage" is the title to this NPR story this morning:

Morning Edition, April 3, 2006 · Polls show voters want Democrats to take over Congress. But with districts drawn to keep incumbents in place, that probably won't happen. One example of why change is unlikely to happen is in Indiana.

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - More on Regions Bank Building in downtown Indy damaged by storm

The IU Law School's IndyLaw.net has posted this: "[T]he Indianapolis Bar Association President, the Honorable Cynthia Ayers, sent out this email to IBA members."

Due to weekend storm damage, the Regions Bank building downtown is closed today and for an indefinite period of time, affecting more than a dozen Indianapolis law firms, as well as the Indiana State Bar Association. If you have available office space the attorneys from these displaced law firms can use, please contact the Indianapolis Bar Association at iba@indybar.org or (317) 269-2000. The IBA will act as a clearinghouse for that information.

In addition, the IBA has office and work space available at its office at 107 N. Pennsylvania St., Suite 200. If you are in need of work space, please contact us at iba@indybar.org or (317) 269-2000.

Marion County courts also have informed the IBA that affected firms in the Regions Bank building will be accommodated by the courts due to the storm.

In true Hoosier fashion, we know our members will do their best to help their colleagues in need. Please watch for additional e-mail updates regarding the impact of the weekend storms. Thank you.

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Law

Environment - Group appealing IDEM permit

The Monticello Herald Journal's Doug Howard reports:

Over a hundred people crammed into a corner of the Monticello-Union Township Public Library Thursday night to discuss what could be done to slow the expansion of the Twin Lakes Regional Sewer District into sections of White and Carroll counties.

A key concern expressed by residents of both counties centers around a permit issued by the Indiana Department of Environmental Management that would allow the district to build a new treatment plant near Rattlesnake Creek.
The creek begins east of Monticello and flows through White and Carroll counties before emptying into the Wabash River.

The ad hoc group is asking IDEM to re-evaluate the plant’s plans on the grounds that the discharge might adversely impact both the wildlife and people who live downstream.

One of those concerned citizens, Pat Robertson, Yeoman, said she has contacted IDEM and learned that an appeal to stay the permit could be made in the form of a petition.

By the end of the hour-long meeting, over 120 people had put their signatures to the petition, which Robertson said she hopes to return to IDEM by the first of next week — the closing of a 15-day response period given by IDEM.

“It’s got to be for environmental reasons,” Robertson told the crowd. “We can’t just say we don’t want it, and we can’t just say it’s too expensive.”

While members of the Twin Lakes Regional Sewer District Board of Trustees were not present at the meeting, State Rep. Don Lehe (R-Brookston) and State Rep. Rich McClain (R-Logansport) were.

Lehe explained that they were present to hear public concerns on the matter of the so-called Phase III expansion and relay them to a state-level legislative study committee this summer. * * *

Beth Kinder, Monticello, said the group is hoping to hold another public meeting, with times and dates to be announced.

Those interested in learning more about the petition or who did not receive an IDEM packet regarding the appeal process, are asked to contact Kinder at 574-583-6940.

“We may not win, but I’m not going to sit here and take it without letting them know what I have to say about it,” Robertson said.

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Environment

Ind. Courts - Indiana Law Blog faces dilemma

Twice in my nearly four years of publishing the ILB, I have gotten requests from someone named in an ILB entry to remove the entry. Both involved reports of legal proceedings.

The first was a woman who had taken a civil rights issue to the 7th Circuit, where she lost. The ILB published a brief item on the case, along with two others the same day.

The second
involved a criminal case appealed to the Indiana Court of Appeals, which affirmed the conviction in a not-for-publication decision. The ILB posts each week the PDF table of NFP opinions, with the case names, but nothing more.

There is no doubt this is public information. Because of the Internet, however, the information is more readily accessible. A search for either of these individual's names via google will turn up, somewhere in the results, an Indiana Law Blog entry about their case.

Neither individual is a reader of the ILB. Both individuals have apparently been in situations where someone has typed their name in a search engine and the ILB entry has come up.

In the first case (the civil rights suit), the individual called me on the phone maybe two years ago and asked that I remove the reference. I thought about it and then did so, although as I noted to her, it is still available via the 7th Circuit site and would be in the Google cache for a long while.

Last month she called to tell me I had lied, her name was still there. I didn't find it using search box on my site, but did find it later using google. I suspect that when I moved the ILB to a new sever some time back, I may have somehow revived her entry when I was trying to get the right things in the right folders. So I've now tracked it down and removed it again, although for now it still shows up in the Google cache.

In the second case (the conviction) I received an email in January asking that I remove the information on her froom the internet. I searched my site and didn't find her name. I searched the Court of Appeals site for cases and didn't find her name.

Finally, I used Google and her name turned up -- as an entry in the PDF NFP tables I post each week. I figured there was nothing I could do about that. This is, after all, public information, and all the entry on the table reports is that the Court affirmed the lower court. [More: Her name also shows up now in a March 2006 transfer list table - transfer denied.]

Today, I received, one after another, three emails from this person, profane and threatening. Suggestions?

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Courts

Ind. Courts - "DeKalb prosecutor race brings rematch"

"DeKalb prosecutor race brings rematch: Republican caucus opponents square off again" is the headline to a story today by Angela Mapes in the Fort Wayne Journal Gazette. It begins:

If the Republican primary contest for DeKalb County prosecutor has a familiar feel to it, that’s because it’s almost the same race that took place a few months ago.

ClaraMary Winebrenner defeated Gregory Kenner and Carolyn Foley to replace former prosecutor Monte Brown at a Republican precinct caucus Dec. 27.

Kenner will take on Winebrenner again in the May 2 Republican primary election – this time, with Foley on his team. He has announced that if elected, he’ll appoint Foley as his chief deputy.

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Courts

Ind. Gov't. - Three trials in the Camm murder case have cost Floyd County taxpayers about $1.8 million

Ben Zion Hershberg of the Louisville Courier Journal writes today:

The three trials in the Camm murder case have cost Floyd County taxpayers about $1.8million — and the meter is still running.

Floyd County Auditor Teresa Plaiss said she expects the overall cost of David Camm's two trials, along with the trial of co-defendant Charles Boney, to reach at least $2 million.

And that doesn't include the cost of any appeals or additional trials, if the appeals succeed.

The cost of the second Camm trial — roughly $1 million — amounts to 10 percent or so of the county's general fund budget. It could wind up affecting several major projects, including a jail expansion.

Larry Landis, executive director of the state Public Defender Council, said the appeals could add $200,000.

"There is no way a county ... can budget and plan for a catastrophe like the Camm case," he said. * * *

"Anytime there is a murder case in a small county, and they bring in national experts, it's a tremendous strain on a county budget," said David Bottorff, executive director of the Association of Indiana Counties. * * *

Landis said some of the county's costs can be reimbursed from the state Public Defense Fund, but the fund covers no more than 40 percent of the costs billed to the county public defender's office, Landis said. And with only $10million available statewide, it's unlikely that there will be enough to repay the $230,000 for which Floyd County is eligible.

He and others were unsuccessful this year in urging the General Assembly to pick up a greater share of the court costs borne by county governments — an issue that almost certainly will come up again.

"For a small county," Landis said, "this is an extraordinary burden."

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Courts | Indiana Government

Ind. Law - Regions Bank Building in downtown Indy damaged by storm [Updated]

The Regions Bank Building (also known as One Indiana Square and the Indiana National Bank building), at Penn. and Illinois, was hit by a tornado last night.

The building is the home of several Indianapolis law firms, and the Indiana State Bar Association.

Here is the early report on the damage from the Indianapolis Star (which also suffered some damage). Don't miss this photo from the Star story.

In an interview with Mayor Peterson this morning, the mayor said the building had received serious damages, with entire offices, including the walls, blown out and scattered over the surrounding downtown area. The building is closed today.

Law firms located at One Indiana Square include Krieg DeVault and Sommer Barnard.

[More] WRTV 6 has good coverage this morning, including this photo. The caption: "Windows were shattered in between 10 to 15 stories of the Regions Bank building in downtown Indianapolis." The station also has video labeled "skyscraper damage" where bystanders comment about "the whole side of the building in the street, computers, everything."

[Updated] Well, I had an appointment downtown near the Circle at 9:00 am and it was a real hassle getting there from the near northside. I finally came in from the south-east and parked on Virginia Avenue south of Washington. Leaving, it turned out Delaware was closed so I had to go down to South Street and up on College.

The Star has an updated story on the web, which lists the closed streets. It reports re the One Indiana Square tower:

Police communications supervisor Jean Slaughter says the area may not be cleared in time for this evening's commute, either. Shards of glass were scattered more than a block from the tower.

Mayor Bart Peterson said the office tower would be closed today while further inspections were conducted. * * *

Officials are waiting for a plan from an engineer and expect the building will remain closed for at least a couple days, Deputy Mayor Steve Campbell said.

Campbell toured the building Sunday night. While the hanging glass, metal and debris poses a hazard to traffic and pedestrians, Campbell said the building appears to be structurally sound.

"You open a door to the office and you're looking outside," Campbell said. "It's going to be a long while for some of those floors to be ready to be occupied again."

Posted by Marcia Oddi on Monday, April 03, 2006
Posted to Indiana Law

Sunday, April 02, 2006

Ind. Law - The new "Do Not Fax" law

Here is the new Indiana "Do Not Fax" law, HEA 1280, which hopefully will be as successful as the Indiana "Do Not Call" law. Here is the Digest:

Unsolicited facsimile advertisements. Provides that the transmission of an unsolicited advertisement by telephone facsimile machine is a deceptive act. Authorizes the attorney general to recover civil penalties up to $1,500 for the transmission of an unsolicited advertisement by telephone facsimile machine. Defines "telephone facsimile machine" and "unsolicited advertisement". Deposits the civil penalties in the consumer protection division telephone solicitation fund.
But don't turn your faxes back on just yet, the new law does not go into effect until January 1, 2007.

Posted by Marcia Oddi on Sunday, April 02, 2006
Posted to Indiana Law

Not law but interesting - NCAA Leadership Isn't Matching the Talent of Its Women Players

Yesterday's Men's Final Four games were a disappointment. Tonight Women's games should prove a lot more exciting, despite the inept NCAA. Here is a great article in today's Washington Post by columnist Sally Jenkins, headlined "NCAA Leadership Isn't Matching the Talent of Its Players." Some quotes from an article that deserves reading in full, if you are a sports fan:

Get the biddies out of women's basketball. The game has come too far, too fast, to be held back now by a bunch of blue hairs. Yet as the Final Four gets underway, the unfortunate fact is that the players running the floor are light years ahead of the archaic people who are running the sport. * * *

The first thing the NCAA needs to do is hire an entirely new set of officials. The same amateurish, slow-footed crews show up every year and make the same incoherent calls. They allow post players to maul each other at one end of the floor, and then whistle a hand-check on the other end. In the region final between Tennessee and Carolina, the crew couldn't even keep track of the possession arrow on jump balls. Hatchell found herself imploring the refs, "Please don't penalize us for our athleticism."

The second thing the NCAA needs to do is fire the entire women's tournament selection committee and start fresh. For far too long the committee has been dominated by aging gym teachers and administrative hacks whose qualifications are questionable at best, and who seem more concerned with status than fairness. * * *

Until the more calcified members of the committee are shown the door, real change may be impossible. Good luck in prying them out of their seats. A major problem coaches have with the committee is that no one is sure how the members got their places on it. The process is secretive, and, one suspects, highly politicized too. "It's a mystery to us," Coale says.

A quick look at the committee makeup provokes the question, who are these people? The committee chair is American University Athletic Director Joni Comstock -- a former volleyball coach. Then there is Duke associate athletic director Jaclyn Silar -- a former field hockey coach. Other members include Cindy Hartmann, an associate athletic director from the University of Dayton; Tina Cheatham, an associate commissioner of the Southland Conference; and Sandra Booker, an assistant athletic director for academics from Bethune-Cookman.

Compare that with the makeup of the men's NCAA committee. "Look at the difference in backgrounds and responsibilities," says Coale, "and you see some subtleties."

Actually, what you see is a laughable difference in quality. The men's committee is populated entirely by top-tier athletic directors and commissioners, all of them with deep basketball knowledge and business experience. * * *

The good news is that the blue-haired bureaucrats haven't prevented the players from expanding their games. With every Final Four, the quality of play continues to improve exponentially. Women are getting off the floor and up around the rim. Now it's time to find some officials and administrators who want to go there with them.

Posted by Marcia Oddi on Sunday, April 02, 2006
Posted to General News

Law - How paint companies lost a multi-billion dollar lead paint suit

This Feb. 24 ILB entry included this quote from the AP:

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

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

Today the NY Times has the "story behind the story," a multi-page report by Julie Creswell. A few quotes:
ON a frigid night in January, lawyers for four of the nation's largest paint manufacturers gathered in a rented office space in downtown Providence, R.I., to strategize on how to counter contentions that their clients were to blame for the state's decades-old lead-contamination problem. * * *

In the end, the defense team agreed not to call a single witness, confident the jury would conclude that their clients did nothing wrong. After all, for almost two decades, paint makers had fought off many lawsuits that contended their products had contaminated homes across the country with lead. And not once in all those years had the industry lost — or even settled — a large suit like this. An earlier trial in Rhode Island ended in a hung jury.

But four weeks after the paint companies' lawyers decided not to mount a defense in this case, six jurors filed into Rhode Island Superior Court and declared that three of the four companies on trial — Sherwin-Williams, NL Industries and Millennium Holdings — were indeed liable for Rhode Island's lead-paint problem.

It was a surprising and devastating verdict for the industry, and the reaction was swift and severe. The stocks of the paint companies tumbled, wiping out billions of dollars in market value that afternoon. Investors worried that the clean-up costs in Rhode Island alone could total billions of dollars, and that the industry would now face a tidal wave of torts like those that have swept across the tobacco, asbestos and pharmaceutical industries.

The damages could range from zero, depending upon appeals, to potentially boundless "if additional states hop on the lawsuit bandwagon," wrote Ivy L. Zelman, a research analyst at Credit Suisse, in a report in which she announced that she was suspending her rating on Sherwin-Williams' stock.

The jury's decision was particularly shocking because none of the paint makers had sold a drop of lead-based residential paint — in Rhode Island or anywhere else in the United States — for nearly 30 years. There is also no proof that their paint was actually used on a wall in the state. Lastly, as the incidences of lead blood poisoning in children has dropped sharply, some people wonder if Rhode Island even has a lead-poisoning problem anymore.

So how did the paint companies lose this case?

Three defense lawyers interviewed for this article said that this was one of the most bizarre lawsuits and trials of their careers. They blame what they call Rhode Island's quirky public nuisance laws. They also contend that the judge overseeing the case had severely limited their ability to gather evidence and present a defense, and say that he may have given erroneous instructions to the jury. (All of this territory will no doubt be mined for likely appeals.)

But behind the scenes, several other factors may have played a role: the courtroom-strategy battles among the defense lawyers, for instance, and their hubris from never having lost a lawsuit before. Three of the six jurors interviewed for this article, for example, said they had been surprised and disappointed that the defense did not offer any witnesses to rebut the state's central allegation: that simply by having been in the business of making lead-based paint, companies contributed to what is now a pervasive public nuisance. "They could have brought their own witnesses up there," the jury's foreman, Gerald Lenau, said. "The fact is, the person you hear last does leave a lasting impression, but maybe they couldn't dispute anything." * * *

As painful and expensive as the case's outcome could be for the paint companies, it also raises issues that go far beyond that industry. In particular, should state officials be allowed to essentially outsource public-health and public-nuisance cases to private legal firms that will try the cases free but take a piece of any recoveries made? Seven years ago, Sheldon Whitehouse, then Rhode Island's attorney general, agreed to those terms. * * *

An even larger issue raised in this case is whether the nation's product-liability laws, which have set boundaries under which manufacturers can be held liable for defective products, could now be undermined by state public nuisance laws, a set of broad statutes with vague boundaries and limits.

Posted by Marcia Oddi on Sunday, April 02, 2006
Posted to Environment | General Law Related

Saturday, April 01, 2006

Ind. Decisions - "Court upholds tuition without charge"

"Court upholds tuition without charge" is the headline to an editorial today in the Fort Wayne Journal Gazette, on the Supreme Court's decision Thursday in Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation. Some quotes:

This week’s ruling by the Indiana Supreme Court should prompt legislators to begin looking for ways to increase support for the state’s public schools. The court sent a message that it is unconstitutional to charge parents for services that are clearly essential to learning.

In a 4-1 opinion, the court ruled that Evansville-Vanderburgh School Corp. violated the state constitution by charging a $20 activity fee to offset a budget deficit. The fee was deposited in the district’s general fund and used to pay for nurses; media specialists; alternative education; elementary school counselors; and music, drama, speech and debate programs.

“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,” Justice Robert D. Rucker wrote in the majority opinion. * * *

“Unlike constitutions in a number of other states, the framers of Indiana’s constitution were careful not to provide for a free school system,” Rucker wrote. “This is a subtle distinction, but a significant one that we believe the framers made intentionally. A free public school system implies a level of educational subsidization that the framers at least did not endorse and at most rejected outright.”

A stricter interpretation would have been a welcome one for parents. As funding for Indiana public schools has shrunk, they have been asked to pay more and more for textbooks. The textbook bill for a single Fort Wayne Community Schools student can easily exceed $150, for example.

Still, the unequivocal rejection of the Evansville activity fee should squelch any further efforts to charge families for programs and services that are clearly a part of a classroom education.

It should also serve as notice to lawmakers that schools have run out of options. Adequate support for schools must be provided if Indiana is to provide the first-class education its students deserve.

See these earlier ILB entries from 3/30/06 and 3/31/06.

Posted by Marcia Oddi on Saturday, April 01, 2006
Posted to Ind. Sup.Ct. Decisions