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Wednesday, May 31, 2006

Law - "Gay marriage looms as 'battle of our times'"

"Gay marriage looms as 'battle of our times'" is the headline to a lenghty article in the June 1st Christian Science Monitor. It begins:

The battle over same-sex marriage is shaping into something more than deep societal tradition vs. civil rights. It is becoming a conflict of equality vs. religious liberty.

Posted by Marcia Oddi on Wednesday, May 31, 2006
Posted to General Law Related

Ind. Gov't. - Senate democrats reject retirement benefits

The Indianapolis Star's Mary Beth Schneider reports in a story just posted:

Indiana Senate Democrats said today they will not accept the current generous health care benefits for lawmakers, and will push for legislation that would provide health care insurance for all Hoosiers.

"Our caucus firmly believes that senators should receive no benefits greater than what other state employees receive," Senate Minority Leader Richard D. Young Jr., D-Milltown, wrote in a letter to the Senate secretary.

Senate Democrats held a news conference this morning to announce their support for universal health care coverage, saying there is a health care crisis that is not being addressed by the federal government. But they gave few details of how to pay for such coverage, saying only it would take a shift in existing resources.

Deanna Martin of the AP has filed a similar report:
INDIANAPOLIS (AP) -- Democrats returning to the Senate have agreed not to accept state health care retirement benefits, their leaders said Wednesday.

Senate Minority Leader Richard Young, D-Milltown, made the request in a letter dated May 25 to the secretary of the Indiana Senate.

"Our caucus firmly believes that senators should receive no benefits greater than what other state employees receive," Young wrote.

Under the plan offered since 2002, state lawmakers who served a day more than six years and then retired or were not re-elected were allowed to receive lifetime state health insurance for themselves and their families. Premiums were locked in, even if health care costs rose.

Most state employees are required to pay the full cost of their state health insurance upon retirement.

Mike Smith of the AP, in a column earlier this week, asked:
There's no doubt that taxpayer-subsidized health care retirement benefits for lawmakers have been a major campaign issue in some legislative races over the past two years.

But should it remain one as Republicans and Democrats head toward November fighting for control of the narrowly divided House, now that chamber leaders from both parties have pledged not to restore the perk if either wields the gavel after the election?

My thoughts. Well, yes ...!

The law authorizing the plan is still in effect.

Speaker Bosma "suspended" the law authorizing special health care benefits for legislators, their families, and staff, insofar as House members elected or reelected at the upcoming November 2006 election are concerned, but it still covers those eligible who retire before, or are defeated in, the November 2006 election.

I've seen no recent comprehensive list, but a May 14, 2005 Indianapolis Star story by Kevin Cocoran ends with a list of the then 22 former legislators receiving taxpayer-subsidized health insurance (presumably there are more now), with their ages and current occupations.

The majority of the former Representatives listed as receiving the benefit are in their 40s and 50s, including former Representatives Mark Kruzan (mayor of Bloomington), John Gregg (attorney), Michael Smith (casino lobbyist).

Bob Garton in the Senate finally made some grudging changes to the Senate plan, but did not go even as far as the House.

Will the necessary changes be made if the health care issue is put on the back burner? And what about the 4:1 taxpayer funded legislative pension plan?

(See this May 24th ILB entry for more.)

Posted by Marcia Oddi on Wednesday, May 31, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

"ACLU of Indiana sues over Indianapolis sex offender ban " [Updated]

"ACLU of Indiana sues over Indianapolis sex offender ban" is the headline to an AP story filed today by Ken Kusmer. Some quotes:

INDIANAPOLIS (AP) -- Six sexual offenders including convicted child molesters and rapists sued the city Wednesday to block a new ordinance that bans them from coming within 1,000 feet of parks, pools, playgrounds and other sites when children are present.

The six, including a college student who has joint custody of his 7-year-old son and has completed probation for child exploitation, are represented by the American Civil Liberties Union of Indiana, which filed the complaint seeking class-action status in U.S. District Court in Indianapolis.

The six allege the new ordinance is unconstitutionally vague, violates their rights to vote and attend church, and prevents them from freely traveling on streets and highways that may pass within 1,000 feet of the affected sites. They are seeking temporary and permanent injunctions barring the city from enforcing the new law.

"It is virtually impossible to travel through the streets and interstate highways in Marion County without passing within 1,000 feet of a playground open to the public, recreation center, bathing beach, swimming pool or wading pool, sports field or facility," the complaint said. "Moreover, there is no way for a person to know if he or she is passing within 1,000 feet."

The ordinance cleared the City-County Council by a 25-2 vote on May 15 and took effect immediately. It carries fines of up to $2,500 for violations.

For background, start with this May 16th ILB entry.

[Updated June 1, 2006]
Richard D. Walton of the Indianapolis Star has this story today.

The story includes a side-bar of "recent cases invlving the ACLU of Indiana."

Posted by Marcia Oddi on Wednesday, May 31, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides two Indiana cases today [Updated]

In Lax, Kenneth R. v. City South Bend (ND Ind., Robert L. Miller, Jr., Chief Judge), a 3-page opinion, Circuit Judge Posner concludes:

But once the case has moved beyond the pleading stage, the plaintiff cannot ward off an adverse judgment by asserting hypothetical facts. He needs evidence. Well, Lax had evidence—his affidavit. The affidavit was vague, and the district judge could have asked for more detail, but did not. What the judge could not properly do was equate vagueness to an absence of evidence, especially when the plaintiff, by indicating what he hoped to prove, made clear that the vagueness of his affidavit was not an acknowledgment that the officer had not used excessive force. The district judge thus erred in granting summary judgment for the officer, though in all other respects the decision is correct. AFFIRMED IN PART,REVERSED IN PART, AND REMANDED.
In Lambert, Michael Allen v. Davis, C. (SD Ind., Larry J. McKinney, Chief Judge), a 19-page opinion (with Judge Ripple's dissent beginning on p. 9), Circuit Judge Evans concludes:
As we have observed, “Nothing in the Constitution entitles state defendants to obtain a federal benefit from errors of state law.” In re Page, 170 F.3d 659, 662 (on reh’g, 179 F.3d 1024 (1999)). And, at most, that’s what Lambert points to. Accordingly, we AFFIRM the district court’s judgment and DENY Lambert’s requests for leave to file a successive petition for a writ of habeas corpus. We also vacate the stay of execution entered on June 17, 2005.

RIPPLE, Circuit Judge, dissenting.

At this stage of the proceeding, the prime question before us is whether the district court was correct in ruling that Mr. Lambert’s petition was a successive petition. Having characterized the petition as successive, the district court dismissed the action because the petitioner had not obtained permission from this court to file such a petition.

In my view, the district court erred in this determination. It should have permitted the petition to be filed and decided the matter in due course. I would therefore reverse the judgment of the district court and remand this case for proceedings consistent with this opinion.

[Update] A reader has pointed me to this noteworthy footnote on p. 7 that I missed:
Our dissenting colleague, in a bit of overheated hyperbole, accuses us of a “willingness to tolerate even the most egregious forms of discrimination at the hands of a state.” But the Supreme Court of Indiana didn’t decline to grant relief to Mr. Lambert (to use the dissent’s examples) because of his race or religion. It applied—free of discrimination—state law. That our dissenting colleague is more comfortable with the view expressed by the dissenters in Indiana is not a reason why we are free to jettison the view of that court’s majority.
Re the reference, see pp. 16-17 of the dissent.

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

Courts - Kentucky judge suspended for temper

The Cincinnati Enquirer reports today:

NEWPORT - Campbell County's only Family Court judge has been suspended for a month for losing his temper on the bench.

Judge Michael "Mickey" Foellger was suspended for 30 days without pay beginning last Friday under a Judicial Conduct Commission order made public Tuesday.

"It's embarrassing," said Foellger, who waived formal disciplinary proceedings and agreed to the commission's findings. "I'm guilty. I've lost my temper. I've been inappropriately loud and all the things (the commission) says. My approach is loud and in your face. I have berated many persons, many more than I should." * * *

The order states that Foellger has a lack of patience with defendants, lawyers and court workers "by shouting and by using inappropriate, demeaning, sarcastic, insulting and abusive language." The outbursts were persistent and pervasive, the order states, but there was no indication of bias or prejudice shown in Foellger's rulings.

He has been on the bench for 15 years and is up for re-election in November. He is a former prosecutor and was president of the Northern Kentucky Bar Association in 1991.

Posted by Marcia Oddi on Wednesday, May 31, 2006
Posted to Courts in general

Ind. Decisions - "Bondsman loses lawsuit against Hammond"

Fortunately, the Munster (NW Indiana) Times has a story today about a Court of Appeals decision yesterday, Herbert Smith v. City of Hammond, that I had trouble following and listed without a summary yesterday.

Unfortunately, the Times story is also very confusing, including perhaps confusing the Court of Appeals and the trial court.

The story, by Joe Carlson, is headlined "Bondsman loses lawsuit against Hammond: Man may face sanctions for 'hopeless litigation'". Some quotes:

Gary bail bondsman Herb Smith was dealt yet another legal setback Tuesday in his long-running fight to change the bail laws in Indiana.

Not only did the Lake Superior Court [sic.] reject Smith's numerous arguments on appeal, but they ordered a lower court to consider formal sanctions against him for persisting in what one court called "this hopeless litigation."

The story continues:
In the latest action, Smith had sued Hammond City Court Judge Jeffrey Harkin, saying the judge's across-the-board mandate for 10 percent cash bail violated the state constitution, among other allegations.

As a bondsman, Smith stands to lose income if the courts refuse to accept bail bonds, as Harkin does. But he can't sue the judge for a loss of income because of it, Lake Superior Court Judge Gerald Svetanoff wrote in Tuesday's opinion.

Perhaps both the trial judge and Chief Judge Kirsch wrote an opinion on the same day? I'm still confused.

Posted by Marcia Oddi on Wednesday, May 31, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Governor Daniels imposes additional steps in FSSA contract review process

The Fort Wayne Journal Gazette has a story today by Niki Kelly reporting that, in response to a letter from AFSCME Council 62 – a state employees union, about "the attempt to privatize the Family and Social Services Administration’s eligibility operation", Daniels has written that:

because of the gravity of the contract, he has added an extra step to the normal procurement decision process, which is usually handled by the agency seeking the contract and the Department of Administration.

In this case, the governor has established an interagency team to review the two bids and recommend whether to move ahead with negotiations with either company.

The team members include deputy chief of staff Earl Goode; Department of Administration Commissioner Carrie Henderson; Nate Feltman, chief of staff and general counsel for the Indiana Economic Development Corp.; Karl Browning in the Office of Technology; State Budget Director Chuck Schalliol; and Debra Minot, director of the State Personnel Department.

According to the letter, the proposals must “likely” meet six criteria, including: reducing unacceptably high rates or error and waste in the welfare system; saving Hoosier taxpayer’s money and ensuring that every state employee receives an offer either from the vendor at current wage rates and similar benefits or to stay with the state.

The team has already met twice and will visit county welfare offices soon to review responses to the bids.

Posted by Marcia Oddi on Wednesday, May 31, 2006
Posted to Indiana Government

Ind. Courts - Impact of Evansville paper's stories on Warrick County public records

Monday and Tuesday of this week, the Evansville Courier& Press published reporter Bryan Corbin's two-part series on Warrick County court records.

Today there are results, reported in two stories today by reporter Corbin, plus a C&P editorial.

"Warrick alters court filings: Corne says change will make records more accessible, protect confidentiality" is the headline to this story. Some quotes:

After two high-profile criminal cases where public records were not promptly released, Warrick County's [Prosecutor Todd Corne] said he is changing the way the court documents are filed.

Starting this week, when the Warrick County prosecutor's office brings criminal charges, it will file two versions of the probable-cause affidavit -the document that provides legal basis for an arrest. One version, on green paper, will contain any confidential information, such as Social Security numbers or juvenile victims' names, and will not be seen by the public. The other version, on white paper, will be available to the public at the court office, but the confidential information will be marked out or "redacted."

Interestingly, Prosecutor Corne appears to be blaming the media for not asking for the change earlier:
Corne is changing the way his office files such paperwork after news organizations expressed concern that the Warrick County courts were not releasing probable-cause affidavits, which are public records.

A new legal requirement imposed by the Indiana Supreme Court, known as Administrative Rule 9, requires prosecutors to delete confidential information from the public versions of probable-cause affidavits.

Corne said that when Rule 9 took effect in January 2005, his office continued to file affidavits as it always had - without providing separate, public versions. He said he had anticipated there would be a need to change that method.

"We thought it would occur in the first month or so, that we would be contacted by the media," Corne said.

But Corne didn't receive any media requests for affidavits until two high-profile cases of the last two weeks, he said.

"The fact that it has taken a year and a half, there was not any desire to not make the information public or hinder the media," the prosecutor said. "We've been waiting for someone to contact us to see . . . how to respond to it."

More from the story:
In a related development, the unusual format of Warrick County's probable-cause affidavits is being changed, Corne said. They will start to resemble those filed in Vanderburgh and other counties.

Rather than a written summary of the facts of the case, probable cause affidavits in Warrick County contained handwritten statements from witnesses, supplemental reports, photographs and other investigatory records.

Providing the judge a stack of documents worked well until recently, Corne said, because the legal process of "discovery" - sharing all evidence with the defense - was achieved at the outset.

"When Rule 9 came into effect, it altered the landscape," Corne said, since all those documents now had to be screened for confidential information before they could be made public.

The prosecutor said his changes will make public records accessible while still keeping personal information confidential under Rule 9.

The second story today by reporter Corbin is based on the contents of the filings in the child porn case, denial of access to which had occasioned the public records request. A quote:
Warrick County prosecutors formally charged Kilgore on April 10, almost a year after the alleged incident in April 2005. But the probable-cause affidavit - a public record spelling out the allegations - was not made public until Tuesday. The Evansville Courier & Press had filed a Freedom of Information Act request on May 19.
Some quotes from today's Evansville Courier& Press editorial:
The Warrick County justice system has been caught off guard, apparently snoozing away long after other Indiana counties had modernized the way they make information about alleged crimes available to the public.

A state rule that went into effect in January 2005 prohibits the release of some personal information, such as Social Security numbers. While other Indiana counties were preparing to modify their procedures for releasing probable-cause affidavits by that deadline, Warrick County officials, apparently, were not. And for more than a year, it did not seem to matter. That may be a backhanded compliment to Warrick County and its small number of serious crimes that for so many months, no requests from the public were submitted.

But that all changed earlier this month when the Evansville Courier & Press and an Evansville television station each asked to see probable-cause affidavits in separate criminal cases. The requests caught Warrick County ill- prepared to provide the information in a timely manner. As Courier & Press staff writer Bryan Corbin reported in a two-part series on Monday and Tuesday, the newspaper filed a request two weeks ago to see information about the specifics of the case involving Shawn Kil-gore, a computer network administrator from Boonville who was arrested on child-pornography charges. That information was provided Tuesday.

Simply stated, this is a public- access issue. Under Indiana law, government offices are required to make certain documents available to the public. If the government drags its feet in handing over such information, it is, at the least, a violation of the spirit of that law. In the case requested by the Courier & Press, it appears to be not a matter of intentional delay but of benign neglect.

Warrick officials said they were slowed by Administrative Rule 9 and its requirement to keep personal information out of the record made available to the public. But other counties haven't been slowed to a snail's pace; instead, they prepared two probable-cause affidavits - one for the public, without the information; and another for the court record that does include the information.

Posted by Marcia Oddi on Wednesday, May 31, 2006
Posted to Indiana Courts

Ind. Law - More on: Cases from Indiana and Kentucky of citizens suing to recoup gambling losses

Updating yesterday's ILB entry about the two pending lawsuits -- today there is only one.

"Cherry Master bettor loses courtroom gamble"
is the headline to this story by Kara Hull in today's Fort Wayne Journal Gazette. Some quotes:

ALBION – A Wolcottville woman’s attempt to recoup $6,000 she said she lost gambling at a Kendallville business was denied by a Noble County judge Tuesday.

Nettie Hart, 69, filed a small-claims lawsuit in Noble County in March against Mike Bowers, the owner of bait and tackle store Sportsman’s Paradise, 629 W. North St. in Kendallville.

In her complaint, Hart said she never won the 80 percent payback the video gambling machines, known as Cherry Masters, advertised. The store keeps several of the illegal machines in a back room. * * *

Noble Superior II Judge Michael Kramer said in his decision during a court hearing Tuesday the advertisement on the machines didn’t serve as a contract, and the business wasn’t liable for her losses.

Kramer attempted to use a state gambling-debts-and-losses statute to recoup the money Hart lost 180 days before she filed the March lawsuit, but couldn’t award her anything because Hart said Tuesday she couldn’t remember how much she had lost during that time.

It was “quite a bit,” she said, and probably more than the $6,000 she was hoping to get back.

The statute, which was last used in a decision in the late 1800s, could have allowed Kramer to award Hart a portion of what she lost gambling, he said.

“I can’t enter a judgment just for ‘quite a bit,’ ” Kramer said before making a ruling Tuesday in favor of Sportsman’s Paradise. * * *

The Noble County Prosecutor’s Office can file charges against businesses like Sportsman’s Paradise for having the illegal gambling machines.

Kendallville Police Chief Rob Wiley – who just recently found out about the machines in the bait shop – said his department hasn’t cited the business because they rely on the state excise police to handle Cherry Masters.

Saying Tuesday that finding the machines aren’t a “priority” for his officers, Wiley said he would have to talk with the prosecutor about how best to enforce the law when it comes to cracking down on the gambling devices.

The department hasn’t had any “significant reports” or complaints about machines in the city, he said.

The statute referenced by Judge Kramer is now codified at IC 34-16-1. (Unfortuately, the online version of the Indiana Code gives no information about when the law originally was enacted.)

Posted by Marcia Oddi on Wednesday, May 31, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Law

Tuesday, May 30, 2006

Ind. Decisions - "U.S. Supreme Court won't hear case on sex offender visitation"

"U.S. Supreme Court won't hear case on sex offender visitation" is the headline to this AP story published this afternoon in the Fort Wayne News-Sentinel. Some quotes:

The U.S. Supreme Court on Tuesday said it would not consider a constitutional challenge to a state policy that sharply restricts minors' visits to imprisoned sex offenders who victimized children.

The American Civil Liberties Union-Indiana, suing initially on behalf of a female inmate, had filed a class-action lawsuit challenging the constitutionality of the policy.

The Indiana Department of Correction imposed the policy in 2001, stating that inmates with a record of sex offenses involving children "shall not be permitted to receive visits from minors." The agency amended the rule a year later to allow some visits under certain conditions, including one that the intended visitor had not been a victim of the offender.

The DOC justified the restrictions by arguing that sex offenders are at high risk of repeating the crime and often know their victims. * * *

The ACLU-Indiana took the case to the U.S. Supreme Court after the Indiana Supreme Court, without ruling in the case, announced last November it would let stand an Indiana Court of Appeals decision upholding the policy. On appeal, the lead plaintiff became a male inmate who had been part of the class.

For background in this case, Jane Doe v. J. David Donahue, see this ILB entry from March 4th, 2006. This is the case where, on Nov. 21, 2005, as recorded in this ILB entry, the Supreme Court, after hearing oral arguments on Nov. 10th, 2005, issued an opinion vacating its prior grant of transfer as "improvidently granted" and reinstating the Court of Appeals opinion.

Here is a list of most, if not all, the ILB entries on this case.

Posted by Marcia Oddi on Tuesday, May 30, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Toll road ruling to be appealed

Tom Coyne of the AP reports this evening:

SOUTH BEND, Ind. (AP) -- A group seeking to block the state from leasing the Indiana Toll Road to a foreign company plans to appeal a judge's ruling that it must post a $1.9 billion bond to keep its lawsuit alive.

Plaintiff Steve Bonney said lawyers who worked through the three-day weekend hope to file the appeal to the Indiana Supreme Court by Friday.

"It's just a matter of decisions on what that appeal is going to look like," he said Tuesday.

St. Joseph Superior Court Judge Michael Scopelitis ruled Friday that the case was a public lawsuit. He said those suing the state must post a $1.9 billion bond within 10 days if they want to continue to challenge the plan to lease the highway across northern Indiana to a private Spanish-Australian partnership for an upfront payment of $3.8 billion.

The plaintiffs would not have to post the bond while the appeal is before the Supreme Court. * * *

Dave Menzer, a member of the Citizens Action Coalition - another of the plaintiffs - said the lawyers will challenge Scopelitis' decision that the case is a public lawsuit. If the Supreme Court overturns that ruling, the challengers would not have to file a bond.

See these earlier ILB entries from May 27th, May 26th (2), and May 26th (1).

The Indianapolis Star ran an editorial today that ended:

They could appeal to the Indiana Supreme Court, but success there appears unlikely and pursuing further legal action at this point would take on even more of an air of nuisance than true concern for the public good. Indiana finally has an opportunity to move forward. It's time to join the caravan.
The Richmond Palladium-Item ran an editorial Sunday that opined:
[I]t was a victory for representative government and a setback to those who would seek to derail democratic processes by way of judicial fiat.
Doug Masson of Masson's Blog had an entry this weekend on the Pal-Item editorial. Readers may also appreciate, or not, the comments that accompany Doug's entry.

Posted by Marcia Oddi on Tuesday, May 30, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Greene County Circuit Court Judge David K. Johnson to resign June 30th

The Greene County Daily World reports:

Greene County Circuit Court Judge David K. Johnson, a nearly 30-year veteran of the local judicial bench, has resigned effective June 30.

Judge Johnson confirmed for The Daily World that he forwarded a letter to Indiana Gov. Mitch Daniel's office on Friday asking him to accept the resignation.

Johnson, who has served as Circuit Court Judge since Sept. 5, 1976, also said he has been in conversation with the governor's office since February about his resignation and a possible appointment in the near future that will involve a state agency.

“I'm hopeful to get a part-time job, but it's not a 100 percent yet, so I'm not going to talk about that. When it becomes a sure thing, then I'll be glad to talk about it,” Johnson stated. “This is something we've been mulling over for some time.”

Johnson said the timing of his resignation seemed right for him.

“For me personally, with this possible opportunity, it was something I was not looking for, but it came my way and I thought this would be a good time to resign,” the veteran judge said.

Posted by Marcia Oddi on Tuesday, May 30, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides 6 today

Richard G. Tormoehlen v. State of Indiana - affirmed

In American Family Ins. Co. a/s/o Alice Griepenstroh v. Ford Motor Co., a 13-page opinion (concurrance starts on p. 10), Judge Crone writes:

American Family Insurance Company (“American Family”), as subrogee of its insured, Alice Griepenstroh, appeals the trial court’s grant of a motion for change of venue filed by Ford Motor Company (“Ford”). We reverse and remand. * * *

In summary, we conclude that Marion County is a preferred venue pursuant to Trial Rule 75(A)(10) and that the trial court abused its discretion in granting Ford’s motion for change of venue. We therefore reverse and remand for further proceedings.

FRIEDLANDER, J., concurs.
MAY, J., concurs with opinion.

Because our opinion reaches the only result our Trial Rules permit, I concur. Nevertheless, I write separately to note my concerns about the possible implications of this result and to suggest modification of Trial Rule 75(A)(10).

Larry King v. State of Indiana - sentencing, affirmed,

In In Re A Transfer of Structured Settlement Payment Rights by Roger L. Dunn, a 14-page opinion, Judge Robb concludes:

The transfer to Rapid of Dunn’s structured settlement payment rights that he received in settlement of his workers’ compensation claim is barred by 820 ILCS section 305/21. The trial court’s order denying approval of the transfer of Dunn’s structured settlement payment rights to Rapid is therefore affirmed.

Herbert Smith v. City of Hammond - affirmed

In Lannell Chambers, Sr. v. State of Indiana, a 14-page opinion, Judge Robb concludes:

The trial court abused its discretion when it granted the State a continuance pursuant to Criminal Rule 4(D) because the State did not show that there was evidence that it needed that could not then be had and that it made a reasonable effort to procure this evidence. Chambers is entitled to a discharge under Criminal Rule 4(B) because the State did not bring him to trial within seventy days after he filed his motion for a speedy trial. Thus, the trial court erred in denying Chambers’ motion to dismiss. Chambers’ convictions are therefore reversed, and we remand the case to the trial court to discharge Chambers.

Posted by Marcia Oddi on Tuesday, May 30, 2006
Posted to Ind. App.Ct. Decisions

Courts - Even more on fall-out from Kentucky fen-phen case

Andrew Wolfson of the Louisville Courier Journal has more stories today on the fall-out from Kentucky's fen-phen case. (See earlier stories via this ILB entry from yesterday.)

"Lawyer defends his fee: Mills says most of case's millions are already gone"
is the headline to the lead story, that begins:

Lexington lawyer Melbourne Mills Jr. said he knows his $23.6 million fee from Kentucky's fen-phen case sounds like a lot of money. But he said he has gone through most of it, and couldn't pay it back to former clients even if ordered to do so by a judge.

"If 10 years ago somebody had told me it is easier to make money than to keep it, I wouldn't have believed them," said Mills, a 75-year-old attorney known in Lexington for his TV ads that urge prospective clients to "call the man."

First, there were the "very significant taxes," Mills said, then the $2 million he said he had to pay to a former partner who alleged he had been cheated out of fen-phen fees on his partnership draw.

Next, there were the substantial bonuses he agreed to pay out of his fee -- $800,000 to his office administrator and $100,000 each to six employees, including his office cook.

Mills had to pay $125,000 to a paralegal to settle a sexual harassment suit in which she accused him of walking around his office in his underwear and allegedly trying to grab her and take her to bed with him, according to court records.

Finally, there was the Jan. 12 verdict from a Fayette Circuit Court jury, which found that Mills should pay $900,000 to a former assistant who said she suggested the fen-phen case and that Mills reneged on a promise to reward her with a huge bonus if he ever "obtained a big payday."

A judge has since reversed the judgment on the grounds that oral contracts are not binding for more than a year. That ruling has been appealed.

Here is a second Wolfson story today, this one about Lexington attorney Shirley A. Cunningham Jr., that begins:
When Shirley A. Cunningham Jr. announced in 2001 that he was giving $1 million of his fee from Kentucky's fen-phen case to endow a professor's chair at Florida A & M University's fledgling law school, officials at the historically black school were ecstatic.

But there was a catch. Cunningham, a 51-year-old Lexington lawyer, insisted on himself filling the chair that bore his name, at $125,000 a year in salary and benefits. Then, a school audit last spring found he hadn't done any work.

Cunningham's triumph turned into a major embarrassment, with no less than Gov. Jeb Bush denouncing the deal. "This arrangement stinks," President Bush's brother said after it was exposed last June by the St. Petersburg Times.

And things could get worse for Cunningham.

According to court documents obtained by The Courier-Journal, a federal grand jury is investigating his no-show at the law school in Orlando, and he is under investigation by both the FBI and the Florida Department of Financial Services. (The state had matched Cunningham's gift with $750,000.)

A third Wolfson story today is about Cincinnati lawyer Stan Chelsey, headlined "Wealth mounts for 'prince of torts'". Some quotes:
CINCINNATI — Dubbed the "master of disaster" and "prince of torts," he has represented tens of thousands of victims of airplane crashes, defective products, hotel fires and toxic spills.

By his own count, he has racked up more than $7 billion for his clients.

Forbes magazine once credited him with helping turn the plaintiffs bar "from a rag tag army of ambulance chasers into a force that strikes fear into the hearts of even the biggest, most powerful corporate defendants."

But Stan Chesley, one of the world's leading and most knowledgeable class-action lawyers, says he had no idea that his co-counsels in the $200 million Kentucky fen-phen settlement five years ago were deceiving their clients.

Chesley, of Cincinnati, collected a $20.5 million fee to negotiate the settlement and claims he had no legal duty to the 440 plaintiffs, because he was hired by their lawyers.

"I was not a lawyer for those people," he said in an interview earlier this year. The plaintiffs eventually received only one-third of the settlement.

Chesley, 70, declined to respond to a reporter's questions about the case, or his career.

The fourth and final story by Wolfson today is about Lexington lawyer Willaim J. Gallion. Headed "Fen-phen case fees poured into racehorses," the story begins:
William J. Gallion was a successful lawyer in Lexington long before the 2001 Kentucky fen-phen settlement made him an extremely rich one.

He has defended the University of Kentucky Medical Center in malpractice cases for at least 25 years, according to the university, which has paid his firm more than $1.2million in fees this fiscal year.

"My experience with Bill Gallion is that he is a very good lawyer," said plaintiff's lawyer Joe Savage, a former president of the Kentucky Bar Association who has litigated more than 10 cases against him.

But after money from the fen-phen case began to be disbursed, Gallion's former law firm sued him for allegedly diverting fees from that and other cases from the firm.

"He misrepresented to me the amount of the attorneys' fees and how they were divided," partner Michael Baker claimed in an interview, adding that Gallion, who left the firm to start his own, agreed to settle for a confidential sum and insisted that the case be sealed.

Gallion, who received $21.8million in the fen-phen settlement, declined to respond to any of more than three dozen questions submitted to him by registered mail.

But according to other media reports, Gallion has poured a portion of his settlement fees into thoroughbred racehorses.

Posted by Marcia Oddi on Tuesday, May 30, 2006
Posted to Courts in general

Ind. Decisions - "Fit to foster but not adopt?"

"Fit to foster but not adopt? Gay couples see double standard in parental rights debate," is the headline to this story in the Indianapolis Star today, by Tim Evans. It begins:

Kim Brennan and Becki Hamilton quietly cared for three foster children before their adoption of one thrust them into the debate over gay adoption in Indiana.

The Morgan County couple's legal fight is headed to the Indiana Supreme Court and has prompted a legislator to call for a law banning gays and lesbians from adopting.

But the fact that the gay couple are foster parents, licensed by the Department of Child Services to care for troubled children, hasn't generated the same level of controversy.

Gay-rights advocates see a troubling double standard: If they are OK to take care of children from families torn apart by drugs, crime, abuse or other tragic circumstances, why aren't gays seen as fit to adopt?

For background, see this list of ILB entries.

Posted by Marcia Oddi on Tuesday, May 30, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Cases from Indiana and Kentucky of citizens suing to recoup gambling losses

The Fort Wayne Journal Gazette reports today, in a story by Kara Hull, that Nettie Hart of Kendallvile is suing to recoup loses on Cherry Masters machines:

She wasn’t there for bait or new tackle. She was there to use the video gambling machines, commonly known as Cherry Masters.

But after three years of playing in a back room at Sportsman’s Paradise, 629 W. North St. in Kendallville, Hart claims she never won and gambled herself into a financial hole that she said forced her to do something.

The 69-year-old Wolcottville resident filed a small-claims lawsuit in Noble County in March against store owner Mike Bowers – who taught Hart how to play the game – to recoup $6,000 she says she lost on the machines. * * *

Neither Bowers nor his LaGrange attorney Natalie R. Dickey could be reached for comment Monday.

Dickey filed a motion May 10 to dismiss the case, contending that finding in favor of Hart would “condone and encourage illegal gambling.” She also claims that Bowers doesn’t own the Cherry Master machines and therefore could not be sued for Hart’s loss.

It was unclear Friday who owns the machines if Bowers doesn’t.

Noble County Superior Court II Judge Michael Kramer, who is handling the case, has not ruled on the motion. A hearing is scheduled for today.

Hart is representing herself in the matter, she said, because she couldn’t find a lawyer who would take the case.

The Cherry Master machines are illegal and have been the source of statewide controversy for several years. Excise police have stepped up enforcement on Cherry Masters where alcohol is served since Gov. Mitch Daniels took office in January 2005.

"Kentuckian battles Caesars over his gambling losses: Suit claims casino let him bet drunk" is the headline to this story by Grace Schneider today in the Louisville Courier Journal. Some quotes from the lengthy story:
A developer from Corbin, Ky., who said he has lost at least $500,000 over the years at the Caesars Indiana casino has gone to court to prevent the riverboat from getting even more of his money.

His claim: That he was drunk when he accepted $75,000 in credit from the casino and then lost it all in a single night.

"They kept serving me till I was totally intoxicated," Jimmy L. Vance said in an interview. "In fact, I don't remember losing all the money."

The legal maneuvering began last October when the casino, which is in Harrison County, Ind., near Louisville, sued Vance for failing to repay the $75,000. Last month Vance fired back, taking an approach that may be unprecedented in Indiana.

In his countersuit filed in Harrison Circuit Court, Vance, 64, maintains that he was visibly drunk and was "induced" by Caesars employees to take several credit advances during a night of gambling. Therefore, his suit claims, the casino is responsible for his losses.

For its part, Caesars wants much more than the $75,000 Vance lost. It's seeking treble damages -- $225,000 -- plus 18 percent interest, court costs and legal fees. The casino's lawyers also have asked a judge to dismiss Vance's counterclaim.

"Vance is certainly not the first unsuccessful gambler to want his money back," Caesars' lawyer Gregory Taylor wrote. * * *

Indiana regulators couldn't recall receiving any formal complaints involving drunken gamblers and credit matters. But "we might need to address a void," depending on the outcome of Vance's case, said Ernest Yelton, executive director of the Indiana Gaming Commission.

Hoosier casinos are prohibited from providing free drinks to gamblers, unless they receive a state permit to do so during a special event.

Vance said in the interview that he paid for his drinks -- bourbon "with a splash of water." But the question, he said, is whether the casino should let him arrange for credit and continue gambling after he had too much to drink.

Posted by Marcia Oddi on Tuesday, May 30, 2006
Posted to Indiana Law

Ind. Courts - More on "Court sits on porn records"

Yesterday the Evansville Courier& Press published the first of Bryan Corbin's two-part series on Warrick County court records - see ILB entry here.

Today is part two. Some quotes:

Warrick County's long delay in releasing public information about a Boonville, Ind., man accused in a child pornography case has been complicated by the unusual way the paperwork is filed in court, officials say.

In Indiana, when a person is criminally charged, county prosecutors file a public record called a probable-cause affidavit. Usually it's the investigating officer's sworn statement: a chronological description of what occurred, who was questioned and what was said - written in narrative form. A judge reviews that and decides whether to issue a new warrant or continue to detain a person already arrested.

But in Warrick County, Prosecutor Todd Corne said he inherited a different system when he was elected. Police officers and detectives write a brief narrative. To that cover sheet is attached witness statements, property records, chain-of-custody

A new legal requirement called Administrative Rule 9 means the prosecutor must omit certain confidential information, such as Social Security numbers and juvenile victims' names. Under the chronological narrative format most counties use, it's fairly simple to remove the confidential information and provide a second, public version of the affidavit.

But with Warrick County's unconventional system of attaching every document to a cover sheet and letting the judge review the entire stack, the process of releasing public records is time-consuming. In the case of a Boonville man, Shawn Kilgore, who was charged April 10 with child exploitation, possession of child pornography and voyeurism, the prosecutor said he had to go back and meticulously cleanse every page of the attachments. But after Kilgore's defense attorney had issues with it, the judge sent it back to the prosecutor on Friday, court staff said. The public document still has not been made public, two weeks after the media requested it. * * *

In other counties when prosecutors file charges, they typically do not file every document and piece of evidence for the judge to read. That information is provided later to defense attorneys in a document-exchange process called "discovery."

Instead, for the judge to find probable cause (legal basis for an arrest), the officer's chronological narrative usually suffices. An officer swears on his oath about the evidence he has gathered, and that document becomes a public record, accessible by anyone. * * *

With its unconventional system of attaching exhibits and witness statements to the charges, Warrick County ironically disclosed more information publicly prior to Administrative Rule 9 than did other counties, Corne said. "That has always worked really well for us, up until the time Administrative Rule 9 went into effect," Corne said.

But once Warrick County officials began treating the entire document as confidential under Rule 9, the access to public information was diminished.

While it would be simple to delete confidential information from an affidavit in a theft or drug-possession case, Corne said, the process is more complicated in the Kilgore case and that of Elaine Newton, the former chief deputy county treasurer accused of theft of public funds. One is a complex computer crimes case, one a financial crimes case. Both sets of records were extremely detailed. Both required prosecutors to meticulously comb through and remove confidential information before they can be made public, Corne said. The Kilgore affidavit alone is approximately 30 pages long. * * *

In light of concerns raised last week by the news media over delays in providing public information, Corne said, police officers and investigators in Warrick County likely will have to adapt to a new method of preparing probable-cause affidavits. They will have to write out a more detailed narrative summarizing the case thoroughly, rather than submitting attachments as legal basis for an arrest, he suggested.

"They will need to make some effort to make sure the case report thoroughly covers the investigation," the prosecutor said.

Posted by Marcia Oddi on Tuesday, May 30, 2006
Posted to Indiana Courts

Monday, May 29, 2006

Courts - "Enron Case A Grueling Trial for Its Lawyers"

"Enron Case A Grueling Trial for Its Lawyers: With No Key Evidence, Skill Was at a Premium" is the headline to a front-page story today in the Washington Post. Here is a snippet from the lengthy story:

The trial, the capstone of the government's efforts to hold corporate executives accountable for fraud that occurred while they were in charge, required both sides to be at the top of their games. In a case that featured no smoking-gun documents or "gotcha" moments, the skill of the advocates on both sides took on special importance, said experts who followed the trial.

The single-minded pursuit of Lay and Skilling ended in success for the Justice Department's Enron Task Force. But the four-year drive was not without conflicts over strategy and personal style for lawyers on both sides of the monumental effort, one of the most complicated corporate cases in history.

The government team stayed on course largely under the guidance of task force director and Chicago prosecutor Sean M. Berkowitz, a marathon runner who turned 39 two days after the verdict. Colleagues call Berkowitz unflappable, and he behaved true to form, even when government projection specialists stumbled and failed to find documents quickly as he cross-examined Skilling. Berkowitz parceled out key witnesses to members of his team without considering his own ego.

He was the man who also made peace among squabbling colleagues and delivered the final -- and, according to jurors, the convincing -- rebuttal argument in a smooth baritone, snapping his fingers for emphasis. Paraphrasing a line from the Jack Nicholson character in the film "A Few Good Men," Berkowitz told the jury that Lay and Skilling resorted to falsehoods because "Enron couldn't handle the truth."

Berkowitz, who pokes fun at his bald spot and rides motorcycles in his spare time, overrode the occasional interpersonal conflicts over resources and speaking roles among the team of nine lawyers, 15 agents, five paralegals and six others. He pushed -- despite opposing views -- to strike a plea deal only weeks before the trial with former Enron accounting chief Richard A. Causey. That helped slash more than a half-dozen witnesses from the case and also deprived Skilling and Lay of a scapegoat to blame if things started to go sour.

The government victory was by no means a sure bet. Skilling's lead defender, Daniel M. Petrocelli, an entertainment lawyer from Century City, Calif., appearing in his first criminal trial, outtalked everyone else on his side of the courtroom, including highly touted and far more experienced advocates hired by Lay, according to lawyers who watched the trial. Petrocelli, 52, emerged as a clear leader of Skilling's defense as he marshaled help from more than a dozen junior lawyers, three law partners and a team of paralegals and support staff, including Skilling's wife Rebecca Carter, his younger brother Mark and his longtime assistant Sherri Sera. A separate unit of three document specialists set up an aluminum table bearing laptop computers directly outside the courtroom and often raced in with papers and opposition research to help the lawyers in the middle of the action.

Surprisingly to Houston's legal community and trial watchers who had mostly underestimated him, Petrocelli's command of the facts equaled his theatrical style, as he rattled off arcane measurements of financial risk and accounting rules without glancing at notes. He left the eight-women, four-men jury smiling -- and left a series of government witnesses withering under his strong-armed attack. Juror Doug Baggett said that during much of the case, he felt like a "Ping-Pong ball," as his opinions vacillated back and forth after incisive questions by the defense team.

Posted by Marcia Oddi on Monday, May 29, 2006
Posted to Courts in general

Ind. Courts - "Report for 2005 highlights state's large-sum verdicts"

"Report for 2005 highlights state's large-sum verdicts" is the headline to a story by Bob Kasarda in today's Munster (NW Indiana) Times. Some quotes:

It was another banner year for attorney Kenneth J. Allen.

Allen has again been recognized as tops in the state when it comes to million-dollar jury verdicts, according to the 2005 Year in Review of The Indiana Jury Verdict Reporter.

Allen won two verdicts last year exceeding $1 million, which gives him a total of nine over the past five years.

Other local attorneys to make the million-dollar list are Jon Schmoll, of Merrillville, and David Holub and David Jensen, of Hammond.

Attorney Gregory Sarkisian, of Portage, Kristin Hill and Barry Sherman, of Hammond, and Terrence Rubino and Steven Sersic, of Dyer, had victories of their own, which placed them on The Gold List of 17 attorneys statewide who won multiple auto negligence verdicts of $100,000 or more. * * *

While the report's million-dollar verdicts and Gold List attract attention from the public, Editor Shannon Ragland said the $180 book is targeted primarily for use by attorneys and insurance companies.

Both groups use the statistics in the book when negotiating settlements, which is how the vast majority of civil cases are resolved, he said. The book provides details on various types of jury verdicts.

"How do you know what it is supposed to settle for?" he asked.

Ragland publishes the same types of statistics in Kentucky, Alabama and Tennessee, in addition to a version for federal verdicts.

Posted by Marcia Oddi on Monday, May 29, 2006
Posted to Indiana Courts

Courts - Saga of alleged corruption in Kentucky fen-phen case continued

Andrew Wolfson of the Louisville Courier Journal has another story today on "Kentucky's massive fen-phen case." (See a list of earlier ILB entries here.) Some quotes from a very long report:

Her heart seriously damaged by the diet drug fen-phen, Connie Centers was supposed to collect $2.6 million, after attorney's fees, from a $200 million settlement in 2001 with the drug's manufacturer.

Instead, Centers says in court papers, one of her attorneys first told her she would get $1 million. When she balked, he raised it to $1.5 million.

She ultimately collected $1.8 million -- $800,911 less than the $2.625 million she should have netted, according to court records.

Like hundreds of other plaintiffs in Kentucky's massive fen-phen case, Centers, of Lawrenceburg, said she was never told the amount she was allotted, nor the total amount of the settlement.

For concealing those amounts -- and overpaying themselves -- a judge previously found that the three Lexington attorneys who represented the fen-phen plaintiffs breached their duty to their clients. Special Judge William Wehr said the lawyers passed out money from the settlement "like it was theirs to do with as they wish."

Court documents recently obtained by The Courier-Journal detail how the attorneys -- Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. -- exploited the settlement, client by client.

"Attorneys who settle their clients' cases for one amount and withhold settlement funds beyond their fees and expenses have engaged in fraud, pure and simple," said Angela Ford, who represents more than 400 of the original 440 Kentucky fen-phen plaintiffs in a lawsuit that is pending in Boone Circuit Court.

Ford's clients contend that up to $64.4 million was misappropriated from the settlement and have asked Wehr to force the lawyers to surrender all or some of their fees.

Wehr has not ruled on that motion, and his decision likely will be delayed by the attorneys' expected appeal of his ruling that they breached their duties, which made them liable for damages.

Cunningham and Gallion did not respond to requests for interviews, but Mills, who reaped a $23.6 million fee in the fen-phen case, said in a recent interview that he expects to be sanctioned by the Kentucky Supreme Court for failing to advise clients about terms of the settlement.

"There are several places I could have done better," he said.

But Mills contends that the figure listed in court records as the "settlement amount" for each client represented what would have been kept by the drug's manufacturer, American Home Products, if that plaintiff had refused to settle and insisted on going to trial.

"The purpose wasn't to pay each that amount," Mills said. Asked how much each plaintiff deserved to be compensated, he responded, "The amount he agreed to take."

In interviews and court papers, however, plaintiffs said they didn't know how much was on the table and thus settled for less than they were allotted by their own lawyers. * * *

Authorities on legal ethics say the three lawyers violated Kentucky's rules of professional conduct by concealing the settlement amounts and by taking excessive fees.

Hofstra Law School professor Monroe Freedman suggested the attorneys also may have broken the law. "It looks like embezzlement, let alone being unethical," Freedman said. * * *

Supreme Court Justice Donald Wintersheimer, based in Covington, said the burgeoning scandal is "an embarrassment to the profession." The high court enforces the ethics code for lawyers.

Joseph Bamberger, the judge who presided over the class-action lawsuit filed in 1998 in Boone Circuit Court, resigned in February rather than face possible removal from office by the Judicial Conduct Commission, which publicly reprimanded him.

The commission said the judge "shocked the conscience" by approving millions of dollars more in fees to lawyers and their aides than their clients.

The payments included more than $2 million to a close friend of the judge, Mark Modlin, who served as the attorneys' trial consultant.

Posted by Marcia Oddi on Monday, May 29, 2006
Posted to Courts in general

Ind. Courts - "Court sits on porn records"

"Court sits on porn records" is part one of a two-part series by Bryan Corbin in today's Evansville Courier&Press. The focus is the Indiana Supreme Court's Administrative Rule 9, which makes personal information confidential in public court records. The provisions central to the story are reproduced here on the C&P site. From today's story:

More than a month ago, a Boonville, Ind., man who is a computer network administrator for a seminary was arrested on child-pornography charges.

But the public still can't find out the specifics of the crimes Shawn Kilgore is accused of committing. Two weeks after the Evansville Courier & Press requested information about his alleged crimes, Warrick County court officials still had not released the probable-cause affidavit - the police report justifying arrest - in Kilgore's case, even though such affidavits are a matter of public record.

Warrick County officials say they are struggling to comply with the request while following a new Indiana Supreme Court rule that took effect in January 2005. Known as Administrative Rule 9, it requires courts to keep certain personal information - such as Social Security numbers and juvenile victims' names - confidential while still making the rest of the document available to the public.

But a top state court administrator and the director of a state prosecutors' group both say Warrick County officials could have created two versions of the affidavit at the outset when charges were filed n one confidential and one not. That is what a different rule, Trial Rule 5(G), requires them to do.

"It should be accessible, and if there was information in the affidavit that should not be disclosed, then there should be two versions," said Lilia Judson, executive director of the Division of State Court Administration.

Prosecutors in Vanderburgh and other counties easily comply with Rule 9 by printing two versions of each probable-cause affidavit with every criminal charge they file. The public version, on white paper, has the confidential information removed. The confidential version, printed on light green paper, remains in the court's file and can't be seen by the public. "That's an easy way to handle it so clerks can easily distinguish what to give out and what not to," Judson said.

In Vanderburgh County courts, affidavits usually are available immediately upon request. * * *

Warrick County Prosecutor Todd Corne suggested Thursday that the county adopt a system similar to that in Vanderburgh and other counties.

Corne said he inherited the Warrick County system when he was elected prosecutor, and up until the last two weeks, no news organizations had requested affidavits from his office in the year and a half since Rule 9 took effect. "It's something that's always been done in Warrick County and has been continued since I took office," he said of the procedure. * * *

Corne emphasized that he wants to provide the records and there is no intent to conceal information from the public and news media. But after the charges were filed, he had to go back and meticulously delete information, and then have it approved by the judge.

"We're not in a position to drop what we're doing, take apart a probable-cause affidavit and review it in significant detail for what needs to be redacted," he said. In the Kilgore case, that process has taken more than two weeks. In the meantime, the public is left in the dark about the nature of the allegations against Kilgore. "Now, we have had a couple of instances come up where it's apparent that the way we are doing it is, at the minimum, cumbersome," Corne said. By contrast, when defendants in other counties are charged with similar crimes, the public records of their cases become available almost immediately.

Judson said the Indiana Supreme Court adopted Administrative Rule 9 to protect the identity of victims, witnesses and confidential informants and also to protect personal information such as Social Security numbers from identity theft. It also was to pave the way for court records (minus confidential information) to be posted online eventually, she said.

Posted by Marcia Oddi on Monday, May 29, 2006
Posted to Indiana Courts

Ind. Courts - Cameras in Courtroom: Montgomery Circuit Court will be one of eight test sites

The Lafayette Journal and Courier has this story today about the cameras in the courtroom project, announced May 9th. Some quotes from the story by Joe Gerrety:

CRAWFORDSVILLE -- Montgomery Circuit Court will be one of eight test sites when the Indiana Supreme Court begins an 18-month experiment July 1, allowing news media cameras and recording devices in courtrooms.

Crawfordsville attorney William Goebel can't imagine he'd ever advise a client to agree to allow the electronic media coverage -- especially during a jury trial. The stakes are already so high in a criminal case, and the presence of cameras would only heighten the stress, he said.

"I think people will start grandstanding," Goebel said. "I think it would change the whole dynamic." * * *

Goebel and some other Crawfordsville attorneys said their decision about allowing electronic media inside the courtroom ultimately would depend in their clients' wishes.

"It would be totally their decision," said Sarah Dicks, one of four public defenders assigned to Montgomery Circuit Court. "I can't say that I would encourage my clients -- probably just the opposite."

Dicks has three concerns: cameras distracting jurors from listening to testimony; cameras distracting attorneys from focusing on their work; and "sound bite" coverage of court proceedings by the news media giving the public a misleading or incomplete view of what happened in court.

"It can make the public critical of a jury decision when they've only seen a fraction of the case," Dicks said. * * *

Under the Supreme Court's order, media cameras and recording devices would be allowed inside the courtroom on a restricted basis and only in response to a written request. The judge and all parties in the case would have to agree to their presence.

The experiment was allowed in response to repeated requests by the Indiana Broadcasters Association and the Hoosier State Press Association.

Montgomery County prosecutor Joe Buser said his decision on media access will be made on a case-by-case basis, with his primary consideration being the potential impact on his witnesses.

He said he probably would not agreed to cameras if prosecution witnesses are fearful of repercussions from their testimony.

"I don't want to ever make the witness's responsibility any greater than it already is," Buser said.

But not all attorneys are opposed to the idea of cameras in the courtroom.

"I'm firm believer in the open door law. This, to me, is kind of an extension of that," said Crawfordsville attorney Harry Siamas, who primarily practices civil law.

"The best government is transparent. There's no reason for the judicial branch's proceedings to be cloaked in secrecy," with a few exceptions, Siamas said. * * *

Siamas said he expects the experiment to be successful, particularly in Montgomery County, where it will be supervised by Judge Thomas Milligan. With 31 years on the bench, Milligan is likely the most experienced full-time trial lawyer in Indiana.

"From my point of view, it ought to be a fairly simple thing to organize," Milligan said.

Because of the hard line the Indiana Supreme Court has taken on the camera issue in the past, Milligan was a little surprised by its decision to try the 18-month pilot project.

"Traditionally, I've always thought of it as an unnecessary distraction," Milligan said. "But I consider myself open-minded enough to give it a trial." * * *

Two criminal cases that could go to trial later this year might spark media requests for in-court access.

One involves Bradford D. Corey, 49, who is charged with Class A felony dealing methamphetamine, accused of operating one of the largest meth-making operations Indiana State Police has ever raided.

The other involves Nicholas Toscano, 22, charged with Class A felony battery in the alleged beating death of a 1-year-old boy.

Lawyers in both cases said they likely would not encourage their clients to allow recording during the trial but would leave the decision to their clients if it becomes an issue.

Posted by Marcia Oddi on Monday, May 29, 2006
Posted to Indiana Courts

Sunday, May 28, 2006

Law - More on presidential signing statements

Charlie Savage of the Boston Globe has another important feature on presidential signing statements today.

An April 30th ILB entry, which I titled "My latest Res Gestae article coincides with important Boston Globe feature today," linked to another Savage feature headlined "Bush challenges hundreds of laws: President cites powers of his office." Some quotes from today's article:

WASHINGTON -- The office of Vice President Dick Cheney routinely reviews pieces of legislation before they reach the president's desk, searching for provisions that Cheney believes would infringe on presidential power, according to former White House and Justice Department officials.

The officials said Cheney's legal adviser and chief of staff, David Addington , is the Bush a dministration's leading architect of the ``signing statements" the president has appended to more than 750 laws. The statements assert the president's right to ignore the laws because they conflict with his interpretation of the Constitution.

The Bush-Cheney administration has used such statements to claim for itself the option of bypassing a ban on torture, oversight provisions in the USA Patriot Act, and numerous requirements that they provide certain information to Congress, among other laws.

Previous vice presidents have had neither the authority nor the interest in reviewing legislation. But Cheney has used his power over the administration's legal team to promote an expansive theory of presidential authority. Using signing statements, the administration has challenged more laws than all previous administrations combined. * * *

The use of signing statements was rare until the 1980s, when President Ronald W. Reagan began issuing them more frequently. His successors continued the practice. George H. W. Bush used signing statements to challenge 232 laws over four years, and Bill Clinton challenged 140 over eight years, according to Christopher Kelley , a political science professor at Miami University of Ohio.

But in frequency and aggression, the current President Bush has gone far beyond his predecessors.

All previous presidents combined challenged fewer than 600 laws, Kelley's data show, compared with the more than 750 Bush has challenged in five years. Bush is also the first president since the 1800s who has never vetoed a bill, giving Congress no chance to override his judgments.

Douglas Kmiec , who as head of the Office of Legal Counsel helped develop the Reagan administration's strategy of issuing signing statements more frequently, said he disapproves of the ``provocative" and sometimes ``disingenuous" manner in which the Bush administration is using them.

Kmiec said the Reagan team's goal was to leave a record of the president's understanding of new laws only in cases where an important statute was ambiguous. Kmiec rejected the idea of using signing statements to contradict the clear intent of Congress, as Bush has done. Presidents should either tolerate provisions of bills they don't like, or they should veto the bill, he said.

``Following a model of restraint, [the Reagan-era Office of Legal Counsel] took it seriously that we were to construe statutes to avoid constitutional problems, not to invent them," said Kmiec, who is now a Pepperdine University law professor.

By contrast, Bush has used the signing statements to waive his obligation to follow the new laws. In addition to the torture ban and oversight provisions of the Patriot Act, the laws Bush has claimed the authority to disobey include restrictions against US troops engaging in combat in Colombia, whistle-blower protections for government employees, and safeguards against political interference in taxpayer-funded research. * * *

Despite legal scholars' skepticism about the expansive theory of presidential power Cheney has long promoted, Bush's legal team has used the theory to target every law that regulates the military or the executive branch.

Kmiec, one of the only scholars who has testified that Bush might have the authority to set aside the warrant law, said he thinks the administration's use of signing statements has gone too far, needlessly antagonizing Congress. Arlen Specter , Republican of Pennsylvania and Senate Judiciary Committee chairman, recently announced hearings into the matter.

"The president is not well served by the lawyers who have been advising him," said Kmiec.

Posted by Marcia Oddi on Sunday, May 28, 2006
Posted to General Law Related

Law - "Unforeseeable, That’s What You Are . . ."

"Unforeseeable, That’s What You Are . . ." is the heading to this entry posted Friday in the Wall Street Journal's freely accessible Law Blog. I loved it, and the song, with its new lyrics, has been going through my head ever since. All this, and Palsgraf too.

Posted by Marcia Oddi on Sunday, May 28, 2006
Posted to General Law Related

Ind. Gov't. - Privatization of municipal water utilities questioned

Indiana is never mentioned in this story in today's Chicago Tribune. But its subject - privatization of municipal water utilities - has been an issue in Indianapolis, Fort Wayne, and Lawrence, to name a few affected Indiana municipalities.

Some quotes from the story:

For many towns across the country, it once seemed like a good idea to have municipal water utilities in the hands of private companies.

Now, bristling against skyrocketing rates, spotty service and foreign ownership, a number of towns across Illinois and the U.S. are waging fierce battles to regain control of their drinking water. A host of them are fighting a German conglomerate that has snapped up more than 1,800 American water utilities.

The battle is intensifying in Illinois, where the German company RWE and subsidiary Illinois American Water own the water supplies for more than 1 million people in 125 areas of the state.

Responding to complaints, American Water held meetings last week in Homer Glen, Orland Park and Bolingbrook hoping to mollify angry customers. Instead, they tapped into a deep vein of frustration.

"Everything we hear is double-talk," said Debbie Litoborski of Homer Glen, who is fighting the company over an $800 water bill. "Should we call Germany to get the answers we need?"

In most of the country, including Chicago and many suburbs, water service remains a public utility. About 15 percent of America's water business, however, is in private ownership. Those ranks have tripled in the last decade as cash-strapped cities seek ways to upgrade aging water systems by turning to private firms.

Posted by Marcia Oddi on Sunday, May 28, 2006
Posted to Indiana Government

Courts - Top Kentucky judge urged Governor Fletcher to speed up law's start

The Louisville Courier Journal reports today, in a lengthy story by Andrew Wolfson that begins:

Kentucky Chief Justice Joseph Lambert urged Gov. Ernie Fletcher to speed up the start of a law that could penalize a campaign opponent of Lambert's wife, a family court judge seeking re-election.

In a letter to Fletcher last month, Lambert said the measure, which prohibits retired judges who return to the bench from collecting both their pay and their pension, needed to take effect this year.

When the General Assembly passed the "anti-double dipping" provision as part of the judicial budget this year, it delayed its effective date so it wouldn't apply to three retired judges running in November.

But at the chief justice's request, Fletcher used his line-item veto authority to strike the language delaying the start of the law.

As a result, retired judges running for office this year -- including Debra Lambert's opponent, former District Judge Walter Maguire -- would, if elected, have their salary cut so their combined paycheck and pension don't exceed the salary for the position.

In Maguire's case, when his pension is deducted from the $121,344 family court judgeship, he would be working for a salary of about $30,000, he said.

Maguire, who retired in June 2005 after 23 years on the district bench, said he still intends to run. But he contends the chief justice had "misused the power of his position for the obvious purpose of discouraging somebody from running against his wife."

Posted by Marcia Oddi on Sunday, May 28, 2006
Posted to Courts in general

Ind. Decisions - Supreme Court grants transfer in Tanoos case

According to a Terre Haute Tribune-Star story by Sue Loughlin dated Friday:

The Indiana Supreme Court has thrown out a Court of Appeals decision and will rule on the merits of a defamation lawsuit filed by Jay Kelley against Dan Tanoos.

It’s “wonderful news,” said Bryan Babb, an attorney with the Indianapolis law firm of Bose, McKinney and Evans, which is representing Tanoos in the case.

Now, the Supreme Court will decide the case, Babb said. It will rule “whether to affirm the trial court decision or reverse it” and send it back for trial.

Tanoos, superintendent of Vigo County schools, and legal counsel had petitioned for a transfer to the Supreme Court, and the high court agreed to the transfer Thursday.

Tanoos is asking the Supreme Court to reverse the Court of Appeals decision and reinstate an original trial court order throwing out the defamation suit.

Tanoos said he’s pleased by the decision but had no further comment. Kelley said he hadn’t heard about the latest ruling and had no comment. Kelley’s attorney, John Price, could not immediately be reached for comment late Friday afternoon.

Kelley filed the lawsuit in December 2002, alleging Tanoos falsely accused him of the Jan. 17, 2001 shooting in which Tanoos was grazed in the head by a bullet. He also alleged that Tanoos tried to get him fired from his job at Gibault Inc. Kelley no longer works at Gibault.

The lawsuit names Tanoos individually, but not in his capacity as superintendent.

Last August, the Indiana Court of Appeals ruled Kelley’s lawsuit should go to trial, overturning a decision by Vigo Superior Court Division 3 Judge David Bolk. Bolk had granted a summary judgment in Tanoos’ favor.

Babb suggested Friday “there is a historical 85 percent chance that the [Supreme] Court will reverse the Court of Appeals and reinstate the trial court’s order, dismissing this defamation action.”

Here is a link to an ILB entry from Jan. 7, 206, quoting from an earlier story by the same reporter on the Court of Appeals opinion on rehearing, affirming its earlier ruling.

Oddly, the Supreme Court's transfer grant is not on its transfer list "for the week ending May 26, 2006." But a docket inquiry confirms that in: Case Number: 84 S 01 - 0605 - CV - 00195; KELLEY, PAUL JOSEPH "JAY", III -V- TANOOS, DANIEL T., this entry was made:

5/25/06 APPELLEE'S PETITION FOR TRANSFER IS HEREBY GRANTED.
RANDALL T. SHEPARD, CHIEF JUSTICE KM

Posted by Marcia Oddi on Sunday, May 28, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - No, no, don't sell the Hoosier lottery!

This ILB entry from Wed., May 24th, titled "First the toll road, next the lottery? Is nothing sacred?" covered plans in Illinois to sell the state lottery, and quotes from a Munster (NW Indiana) Times indicating that the possibility has at least been considered in Indiana.

Today the Times has an editorial on the subject. Some quotes:

It's not at the top of Daniels' to-do list, but it's a possibility.

"Gov. Daniels is always looking for innovative ways to deliver public services while keeping taxes down," Daniels spokeswoman Jane Jankowski said.

Selling or leasing the Hoosier Lottery, particularly at the pace at which the Indiana Toll Road lease was executed, is inadvisable at best.

The Hoosier Lottery generates nearly $200 million a year after expenses -- about one-third of the amount realized by its Illinois counterpart.

Blagojevich's plan is to spend $4 billion of the amount squeezed from the Illinois Lottery over the next four years and use the interest from the remaining $6 billion to create an annuity for the schools.

Would that model work for Indiana?

More to the point, what's the point?

Selling or franchising the lottery is different from the deal to squeeze money out of the Indiana Toll Road to fund immediate infrastructure needs that otherwise wouldn't be met. That sense of urgency doesn't exist with the lottery proceeds.

If a private company can run the Hoosier Lottery, pay Indiana and make money, why can't Indiana make better use of it and get more money?

Posted by Marcia Oddi on Sunday, May 28, 2006
Posted to Indiana Government

Ind. Courts - "Do the crime … do only half the time"

"Do the crime … do only half the time" is the headline to an excellent, comprehenasive story today by Niki Kelly in the Fort Wayne Journal Gazette about Indiana's good-time credit system. It needs to be read in full. It begins:

INDIANAPOLIS – Allen Superior Judge Fran Gull has seen the tears and confusion in a crime victim’s eyes as the former prosecutor tried to explain Indiana’s sentencing system.

How a 20-year sentence is almost automatically 10 years with “good-time” credit and three to four more years will likely be shaved off through credits earned for counseling or educational coursework.

“They are furious,” Gull said. “They become really irritated and say we don’t have truth in sentencing because 20 years doesn’t really mean 20 years.”

But Indiana’s good-time credit system is an effective tool in getting more than 23,000 inmates to behave behind bars.

That’s because the Indiana Department of Correction can take away credit for misconduct, something the agency does somewhat often. But examples have been reported where people unfamiliar with the credit system could be left thinking an inmate was somehow released early.

I was about to alert Professor Doug Berman of Sentencing Law Blog to the story, but I see that he has already blogged it, here.

Posted by Marcia Oddi on Sunday, May 28, 2006
Posted to Indiana Courts

Ind. Decisions - "Judicial red tape liberating to felon"

Charles Wilson of the AP has a story published today in several papers, including here in the Fort Wayne Journal Gazette, headlined "Judicial red tape liberating to felon." Some quotes:

INDIANAPOLIS – A man convicted as a habitual offender must be released from prison because a document the prosecutor used to prove a previous conviction was unsigned, the Indiana Court of Appeals ruled.

The court ordered 37-year-old Bilal Abdullah’s release in a ruling Thursday.

Indianapolis police arrested Abdullah in November 2004 after a brief pursuit when officers found a loaded handgun in a gym bag he was carrying.

Adbullah was charged with resisting arrest and unlawful possession of a firearm by a serious violent felon. Prosecutors also asked a judge to increase his sentence because his criminal history showed him to be a habitual offender.

The Marion Superior Court judge sentenced Abdullah to 20 years in prison based largely on his habitual status, and concurrent one-year sentences for resisting arrest.

On appeal, Addullah – formerly known as Montez Humphrey – argued that the evidence used to prove his 1993 conviction for robbery was insufficient because the trial judge had not signed a final conviction abstract.

The appeals court panel agreed, ruling 3-0 that Indiana trial rules require such documents to be signed by the trial judge, and vacated his convictions for unlawful firearms possession and habitual offender status.

Further, because Abdullah already has served his time on the other counts, the court said he should be released from prison.

Judge Nancy H. Vaidik wrote that the prosecutor could have used other, readily available documents to prove Abdullah’s previous conviction, but did not.

“The unfortunate fact is that he did make this choice, and standing alone, an unsigned abstract fails to represent the trial courts final judgment and, therefore, is insufficient to prove a prior conviction for purposes of proving Abdullahs statuses as a serious violent felon and a habitual offender,” Vaidik wrote in the ruling.

The decision is Bilal Abdullah v. State of Indiana. Access the ILB summary here (third case). The trial judge was Steven J. Rubick, Commissioner.

Posted by Marcia Oddi on Sunday, May 28, 2006
Posted to Ind. App.Ct. Decisions

Saturday, May 27, 2006

Law - Kentucky doctor fights back against serial-plaintiff

Andrew Wolfson of the Louisville Courier Journal reports today:

Four times, Dr. Frank Bonnarens was sued for malpractice, and four times, the lawsuits were dismissed.

So after a fifth suit was filed and later dropped, the Louisville orthopedic surgeon fought back -- filing his own suit against the moonlighting state government attorney who had sued him in the fifth case.

"I just felt I needed to say this was wrong," Bonnarens said.

Earlier this month, a Jefferson Circuit Court jury unanimously found that attorney Walter Bedford Jr. sued Bonnarens for the sole purpose of harassing him into paying a settlement.

The jury ordered Bedford to pay Bonnarens $450,000, including $200,000 in punitive damages.

Bonnarens, 48, said he thinks the May 11 verdict will make lawyers "think twice before they file a frivolous lawsuit."

The judgment is the second of its kind in six years returned against a plaintiff's lawyer in Kentucky. Bedford was defended by the attorney who was the subject of the previous verdict, Fred Radolovich. A jury in June 2000 ordered Radolovich to pay $72,000 for negligently suing a Louisville neurosurgeon. * * *

Louisville lawyer William McMurry, who usually represents plaintiffs in medical malpractice cases, said he agreed to represent Bonnarens for free in part "to overcome the bias and prejudice" that lawyers like Bedford have created "against legitimate plaintiffs."

Posted by Marcia Oddi on Saturday, May 27, 2006
Posted to General Law Related

Ind. Courts - More on: Grand jury looks into Clark court's finances

Updating yesterday's report (see ILB entry here), Harold J. Adams of the Louisville Courier Journal reports today:

A grand jury investigating financial irregularities in the accounts of Clark Superior Court I said yesterday it found enough evidence to indict the court's former chief of staff Jerald "Jerry" Lemmons.

But the grand jury, sitting in Clark Circuit Court, decided not to charge Lemmons, 81, because he is terminally ill and has promised to replace the missing money and pay the cost of the state investigation.

The panel also "found no credible evidence" that Lemmons' boss, Judge Jerome F. Jacobi, "had advance knowledge of or participated in the … misappropriation of funds and theft."

Special Prosecutor Stanley Levco said, "I think this is an appropriate resolution to this situation."

Posted by Marcia Oddi on Saturday, May 27, 2006
Posted to Indiana Courts

Ind. Law - "Virginia McCarty blazed a trail for female attorneys"

The Indianapolis Star reports today, in a story by Rob Schneider headed "Virginia McCarty blazed a trail for female attorneys":

Virginia Dill McCarty, the first female gubernatorial candidate in Indiana and the first woman in the nation to be appointed to a full term as U.S attorney, has died. * * *

After earning her law degree, McCarty found that, as a woman, getting a job practicing law could be daunting.

Former congressman Andy Jacobs of Indianapolis recalled when McCarty applied at one of the city's large law firms, she was offered work as a legal secretary.

"As time went along, ability and talent will eventually emerge and come to the attention of others," Beatty said. "It certainly did in her case."

Jacobs described McCarty as a pioneer. "She was a giant on whose shoulders a lot of successful women are standing now."

McCarty was born in Plainfield on Dec. 15, 1924 and graduated first in her class at Plainfield High School in 1942. She attended Indiana University in Bloomington and was graduated as Phi Beta Kappa in 1946.

After completing her Bloomington studies, she married Mendel O. McCarty and moved to Indianapolis. Her husband, who died in March 1973, was a banker and real estate agent.

For a time, she worked as a librarian for a law firm and went to law school at night. In 1950, she was first in her class at the Indiana University School of Law.

Her public service and political involvement included a stint as a deputy and assistant to Indiana Attorney General John J. Dillon from 1964 to 1967. She also served as chief counsel to Marion County Prosecutor James F. Kelley in 1975 and 1976.

McCarty's first statewide race took place in 1976, when she challenged then Attorney General Theodore L. Sendak. She lost in a tight race, getting 49 percent of the vote to Sendak's 51 percent.

Soon after, she was appointed by President Jimmy Carter as the U.S. Attorney for the Southern District of Indiana. She served in that post from 1977 to 1981.

"She absolutely loved that job," Beatty said. "She liked being the boss."
McCarty set her sights even higher but lost a bid to become governor in the Democratic primary in 1984 to then state Sen. Wayne Townsend.

Posted by Marcia Oddi on Saturday, May 27, 2006
Posted to Indiana Law

Ind. Decisions - More on toll road ruling

Other than the AP's Tom Coyne's reports on the South Bend trial, the only other Indiana report I've seen on the outcome of the suit is this story in the Indianapolis Star by Staci Hupp.

Odd, given the importance of the suit.

Hupp reports/editorializes:

His 83-page ruling never used the term "frivolous," but a Superior Court judge left little doubt Friday that he considered the bulk of a constitutional challenge of the state's pending $3.8 billion lease of the Indiana Toll Road without merit. * * *

His ruling ... left most of the plaintiffs' case in tatters, including a key claim that money from the Toll Road lease should be directed to the state's general fund rather than future highway projects.

For that provision of the state constitution to kick in, the judge said, three tests must be met: The state must have a "public debt," the Toll Road must belong to the state, and the state must get money from the "sale" of the Toll Road.

Scopelitis said none of those applies in this instance because the Indiana Finance Authority, not the state, owns the Toll Road. The authority -- and any of its debts -- are independent of the state that created it, the judge wrote.

The judge also dismissed arguments that the Toll Road agreement is a sale rather than a lease, pointing to language in the state's contract that expressly spells out that the deal is a lease. He also expressed amazement at claims made by the plaintiffs' economist that the state could generate more than $11 billion in 75 years if it imposed the same toll increases that private operators supposedly plan to.

"The assumption is unrealistic in the sense that it ignores the historical performance of the public operation of the Toll Road over the past 50 years," Scopelitis wrote, referring to the road's money-losing record.

The plaintiffs, who sued in April, also argued that provisions in Articles 10 and 11 of the Indiana Constitution were designed to prevent "precisely the sort of 'public/private' partnership involved in this case."

But the judge pointed out that state agencies often approve agreements in which private operations pay to operate for-profit enterprises using state resources. Scopelitis cited Hoosier Hills Marina at Patoka Lake, among several examples.

Perhaps I am naïve, but I see this case, not as "frivolous," but rather as an important test of whether the General Assembly may craft statutes that effectively preclude or bypass judicial review.

Posted by Marcia Oddi on Saturday, May 27, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Slowing the FSSA privatization train

"Slowing the privatization train" is the headline to an excellent editorial this morning in the Fort Wayne Journal Gazette:

The speeding freight train that was to deliver the Family and Social Services Administration’s entire eligibility operation to a private contractor by July 5 seems to have hit the uphill side.

Dogged by reports of the past problems of vendors bidding on the project and questions about FSSA Secretary Mitch Roob’s past relationship to one of the companies, agency officials have rightly decided to take their time in naming a vendor.

“This is such a big contract, we want to make sure we do it exactly right,” FSSA spokesman Dennis Rosebrough said.

Shouldn’t that go without saying? With the well-being of hundreds of thousands of poor Hoosiers and $1 billion in state money on the line, patience is not so much a virtue as a necessity.

Rosebrough also insisted that the well-publicized problems of agency suitors Accenture LLP and IBM, and Roob’s status as a former executive at ACS, one of IBM’s bidding partners, played no part in the decision to slow down the process.

If Accenture’s misadventure in Texas didn’t give FSSA officials pause, it should have.

Texas legislators threatened to fire Accenture and bar the company from other contracts after serious problems developed in its benefit-eligibility system. Accenture has also lost contracts in other states. And ACS lost part of a Georgia contract two years ago because of problems processing claims.

One part of doing a contract exactly right is seeking meaningful public comment well before it’s signed. The original schedule set a public hearing one day after the contract was to be finalized and five days before it was to be signed – all over the July Fourth holiday.

Another part is making a serious attempt to learn from the mistakes of others, and there are plenty of mistakes to be studied. Agency officials should try to find out what went wrong in Texas – and what if anything went right. FSSA’s existing contracts should be carefully evaluated to determine how they affected clients.

Some FSSA caseworkers fear that moving to an automated system and severing the close ties between clients and their caseworkers will effectively shut many elderly, mentally ill and troubled clients who depend on their caseworkers out of the system.

Their superiors need to listen to them.

The agency has no business delegating its most important function – determining who is eligible for food stamps, Temporary Assistance to Needy Families, Medicaid and other programs – to a for-profit company. But if the privatization train has already left the station, the needs of the people the agency serves should be the priority.

And the only way to do that is to take the time to understand those needs.

Posted by Marcia Oddi on Saturday, May 27, 2006
Posted to Indiana Government

Friday, May 26, 2006

Ind. Decisions - More on: Plaintiffs in toll road suit must post $1.9 billion bond

The AP reporter Tom Coyne's story today about the toll road decision has been recast yet again, possibiliy attributable, at least in part, to the length of the opinion - 83 pages - and the time required to digest it fully. See earlier versions of the story here, or simply scroll down four entries.

The 4:55 pm version exhibits a new spin:

Gov. Mitch Daniels won a key victory Friday in his plan to lease the Indiana Toll Road to foreign investors, but his Major Moves plan could still face a bumpy road.

St. Joseph Superior Court Judge Michael Scopelitis ruled plaintiffs challenging the constitutionality of the lease must post a $1.9 billion bond within 10 days if they want to move ahead with most aspects of their lawsuit.

Attorney Arend J. Abel said the group - seven individuals and the Citizens Action Coalition of Indiana - could not come up with that kind of money but was considering an appeal.

In declaring the challenge a public lawsuit, Scopelitis left open the possibility of continued legal challenges, saying the plaintiffs could proceed with their claims pertaining to Interstate 69. But he said the toll road lease is not in jeopardy.

"The I-69 provisions of the act have nothing to do with the operation of the Indiana Toll Road. The attack on those provisions does not in any way jeopardize the validity or enforcement of the lease ...," Scopelitis wrote. * * *

Scopelitis dismissed plaintiffs' arguments that the lease was not a good deal for the state. "Whether or not the lease is a 'good deal' is irrelevant," he wrote. * * *

Dave Menzer, a member of the Citizens Action Coalition, appealed to the public to donate money to keep the lawsuit alive.

"We've gotten a great amount of support from folks in and out of Indiana, but this is obviously going to cost a lot, to take some resources to fund an appeal. But we are certainly looking at that."

Scopelitis did allow the plaintiffs to challenge two parts of the lease law: one that prohibits a section of the federally approved I-69 from running through Perry Township in southern Indianapolis without future legislative approval, and another that bans tolls on I-69 between Martinsville and Indianapolis.

Under Indiana law, public lawsuits are defined as challenges to the construction, financing or leasing of public improvements by a municipal corporation. One of the issues in the case was whether the finance authority is a municipal corporation.

Scopelitis said it was, noting the finance authority undertakes many of the same tasks cities and towns do, such as issuing bonds for public works projects. The lease, he said, constitutes a "public improvement."

Scopelitis said he based the $1.9 billion bond on the current net value of the toll road.

An observation. For the first time in my memory, a trial court decision was posted today on the Supreme Court's website. On the front page of the website. Within minutes of its release. To me, this means that the Court is publicly cognizant of the importance of this case . . . Which brings me back to the wording of Rule 56A, which provides in part:
In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals 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.
[More] Lafayette attorney and blogger Doug Masson has sent this note:
Marcia, I think it gets to the Supreme Court even more easily than you mentioned in your post: Per IC 34-13-5-7(d):
(d) Either plaintiff or defendant may appeal an order to post or deny bond to the Indiana supreme court within ten (10) days by notice of appeal and a statement of error in the same manner as is provided in a petition for mandate or prohibition. The supreme court may:
(1) stay the lower court order pending its own decision;
(2) set a bond to be filed by the plaintiff;
(3) modify the order of the lower court; or
(4) enter its order as a final order in a case.
(e) If no bond is filed as provided in this section:
(1) the public lawsuit shall be dismissed; and
(2) no court has further jurisdiction of the public lawsuit or any other public lawsuit involving any issue that was or could have been raised.

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending May 26, 2006

Here is the Indiana Supreme Court's transfer list for the week ending May 26, 2006.

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, May 26, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending May 26, 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 May 26, 2006.

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to NFP Lists

Ind. Law - Virginia Dill McCarty dies

Attorney Virginia Dill McCarty has died at age 81.

Here is the ILB entry on Ms. McCarty from Feb. 27, 2006:

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

Here are a few quotes:

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

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

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

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

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

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

Here is a brief posting from the online Indianapolis Star site.

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to Indiana Law

Ind. Decisions - Plaintiffs in toll road suit must post $1.9 billion bond

Tom Coyne of the AP reports:

SOUTH BEND, Ind. (AP) -- The plan to lease the Indiana Toll Road to foreign investors cleared a major roadblock Friday.

A judge ruled that a legal challenge of the state's plan to lease the toll road to private investors for 75 years is a public lawsuit and ruled the plaintiffs must post a $1.9 billion bond within 10 days to proceed. The amount is half of the $3.8 billion a foreign company wants to pay up front to lease the road. * * *

With Scopelitis' ruling, the seven plaintiffs, along with the Citizens Action Coalition of Indiana, suing to block the deal will have to post the bond to keep the challenge alive.

Here is a copy of the 83-page opinion.

I expect that an effort will be made to immediately appeal the trial judge's ruling on the bond to the Supreme Court, under Rule 56A, which provides in part:
In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals 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.
[More at 1:15 pm] Coyne's story has been updated:
A judge ruled Friday that a group suing to stop the state from leasing the Indiana Toll Road to foreign investors must post a $1.9 billion bond to proceed, except in two areas of the challenge.

St. Joseph Superior Court Judge Michael Scopelitis said the plaintiffs can proceed with the portions of the lawsuit that challenge whether the law creating the 75-year toll road lease was special legislation because it gave particular consideration to Perry Township south of Indianapolis and Interstate 69 from Martinsville to Indianapolis.

Arend Abel, an attorney representing the plaintiffs, said the ruling was mixed, and that he needed time to study the ruling before he could comment further.

Scopelitis' ruling that two parts of the lawsuit can proceed without the bond jeopardizes the lease, which has been signed. A stipulation in the lease lets the Spanish-Austrailian investors back out if litigation was pending when the deal closes June 30.

[More at 1:42 pm] Tom Coyne's story has been updated again:
"Whether or not the lease is a 'good deal' is irrelevant," St. Joseph Superior Court Judge Michael Scopelitis wrote in the 83-page ruling, which certified the case as a public lawsuit.

But Scopelitis left open the possibility of continued legal challenges, saying the plaintiffs could proceed with the portions of their lawsuit pertaining to Interstate 69. * * *

The road ahead could still be rocky, however. Scopelitis said the plaintiffs could challenge the part of the lease law that prohibits a section of the federally approved I-69 from running through Perry Township in southern Indianapolis without future legislative approval and another portion that bans tolls from being charged on I-69 between Martinsville and Indianapolis.

A stipulation in the lease, which has been signed, lets the investors back out if litigation is pending when the deal is scheduled to close June 30.

Lawyers earlier this month argued before Scopelitis over exactly what the Legislature meant by including a semicolon in its definition of a "municipal corporation."

The question was key to deciding whether the case is a public lawsuit.

Under Indiana law, public lawsuits are defined as challenges to the construction, financing or leasing of public improvements by a municipal corporation. One of the issues in the case was whether the finance authority is a municipal corporation.

Lawyers for the plaintiffs argued that the IFA is not a municipal corporation, meaning it cannot be protected by the public lawsuit statute. They also argued that the statute deals only with the creation or acquisition of public works, not their disposition.

Lawyers for the state said the IFA is unquestionably a municipal corporation because it is a public corporate body created by state law. They argued that the law was designed to keep harassing litigation from obstructing and delaying projects and called the toll road lawsuit a "harassing and meritless lawsuit."

Scopelitis said the IFA is a municipal corporation, noting it undertakes many of the same tasks cities and towns do, such as issuing bonds for public works projects. The lease, he said, constitutes a "public improvement."

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals decides seven today

Joseph E. Wilson v. State of Indiana

State Farm Insurance, Ann Pryor and Tyler Wypych v. Marla G. Freeman and Chase M. Freeman

William L. White v. State of Indiana

Kevin Scott Varner v. State of Indiana

William Emmons v. State of Indiana

Donald E. Banks II v. State of Indiana

Nancy Beard v. P.R. Dominguez, Jr., M.D.

DETAILS LATER, or go here for decisions

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Grand jury looks into Clark court's finances

Harold J. Adams of the Louisville Courier Journal reports:

A special grand jury heard evidence yesterday in a case involving alleged financial irregularities in the accounts of Clark Superior Court I, headed by Judge Jerry Jacobi.

Special prosecutor Stan Levco of Vanderburgh County told jurors during the selection process that they would be looking at "financial improprieties and Judge Jacobi's chief of staff," Jerry Lemmons.

Lemmons, 81, resigned in February, citing health reasons, amid an Indiana State Board of Accounts audit of the court's finances, which he controlled.

He said after his resignation that the audit found court funds had been used to pay his wife's cell phone bill; for a friend's political campaign materials; and for a private group that raised money to support Jacobi's Teen Court program.

Lemmons said he repaid the county $1,100 for the cell phone bill and that several hundred dollars was repaid for the campaign materials.

Levco said after the grand jury's session that Jacobi was one of eight or 10 witnesses who testified. He said the six-member jury would likely finish its work this morning and issue a report.

Levco said Lemmons, who he confirmed is the only possible target of the grand jury, was too ill to appear.

Jacobi lost his bid for re-election in the May 2 Democratic primary to Jeffersonville City Court Judge Vicki Carmichael.

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to Indiana Courts

Law - Kentucky Governor Fletcher's billing records sought

The AP reports today, in a story in the Louisville Courier Journal:

FRANKFORT, Ky. — A state lawmaker asked a judge yesterday to force the Fletcher administration to turn over billing records from outside lawyers it hired in defending the ongoing state personnel investigation.

State government so far has spent more than $2 million on private lawyers involved in defending the case, said Jim Deckard, Gov. Ernie Fletcher's general counsel.

But Sen. Ernesto Scorsone, D-Lexington, said administration officials have released billing statements with certain details blocked out.

"Taxpayers are being asked to pay over $2 million for these private law firms to help out the governor and he's throwing roadblocks at the taxpayers trying to find out how this money is being spent," Scorsone said following the hearing.

Deckard said releasing the unedited bills would infringe on the rights between lawyers and their clients to have confidential discussions. A Franklin County special grand jury has been investigating allegations that administration officials based personnel decisions on politics rather than merit. Fletcher was charged with misdemeanors earlier this month for allegedly rewarding political supporters with state jobs after he took office in 2003.

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to General Law Related

Ind. Gov't. - Lake County prepared to settle with Arthur Andersen

This ILB entry from Dec. 9th, 2005 begins:

The ILB had a long entry Nov. 30th titled "Marion County Judge Zore orders Lake County to pay Arthur Andersen $2.4 million." Today the Gary Post-Tribune reports that the Andersen ruling will be appealed.
Today, six months later, the Munster (NW Indiana) Times reports, in a story by Bill Dolan:
CROWN POINT | Lake County officials are preparing to pay Chicago accounting firm Arthur Andersen LLP $2.49 million to settle a dispute regarding the county's 2002 property-tax reassessment system.

The County Council, which is county government's fiscal body, has placed the matter on the agenda for its June 13 meeting.

Council President Will Smith said Thursday that the county was prepared in December to appeal a ruling to pay Andersen but -- after further analysis by the county's lawyers -- decided to resolve the dispute without further litigation.

"It was far cheaper for us than to go through the other process," Smith said.

Marion Superior Court Judge Gerald Zore ruled last fall the county owes Andersen for four months of work it did preparing for the 2002 Lake County reassessment.

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

The state signed a contract with Arthur Andersen in January 2002 to perform field inspections of all 247,000 property parcels in the county, despite county officials' objections Andersen was too costly.

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

Andersen claimed it didn't violate any Indiana laws and completed millions of dollars of work for the state and county during those four months.

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to Indiana Government

Ind. Courts - St. Joseph Superior Court Judge William H. Albright will retire from the bench Sept. 30

The South Bend Tribune's Marti Goodlad Heline reports today:

SOUTH BEND -- St. Joseph Superior Court Judge William H. Albright will retire from the bench Sept. 30.

Albright, who will turn 65 in July, will be leaving just three months shy of serving 23 years on the bench.

Albright said he was retiring now because the timing is right. He had heart surgery and some health issues last year and his wife, Carol, is retiring soon after 30 years in the financial aid office at the University of Notre Dame.

The judge said he submitted his resignation a few days ago to Gov. Mitch Daniels and Indiana Chief Justice Randall Shepard. * * *

The Indiana Supreme Court will convene the county's Judicial Nominating Commission this summer to take applications to be nominated for Albright's replacement. The new judge will be appointed by Daniels.

The last time the commission met was in 2004 to select nominees for the vacancy created with the retirement of Judge William C. Whitman, who now serves as a senior judge. Judge David Chapleau was appointed Whitman's replacement.

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to Indiana Courts

Ind. Courts - Funding St. Joe County court building

The South Bend Tribune's James Wensits writes today:

The county commissioners can't say they don't have the money to build a new criminal courts building sought by county judges.

They do.

They might not have it in cash on hand for the building, which is estimated to cost somewhere between $23 million and $28 million but, according to the county auditor's office, they do have nearly $32 million in bonding power that is available to them.

It's just that if they took the bond route, they wouldn't have very much money available for anything else.

"It would take everything we have," said County Commissioner Mark Dobson, R-District 1, adding his hope that the project can be looked at in the context of the entire county budget and all county needs.

A resolution signed by all 10 county judges and presented to the commissioners in April asked that county officials "with all due haste" authorize, fund and construct a criminal courts facility in proximity to the county jail.

The resolution also asked that the facility be designed to meet "anticipated needs for accessibility, security and parking, and contain sufficient space for courtrooms, jury rooms and offices to house the criminal courts and all ancillary services."

There are currently 16 county "judicial officers," 10 judges and six magistrates.

What's needed to match the growing court caseload, according to Circuit Judge Michael Gotsch, are a total of 20 to 24 judicial officers.

Given current space limitations, there is no courtroom space available for the needed new judges. * * *

[Dobson] said, county officials are contemplating the possible leveraging of an expected multimillion dollar payment from the state as part of the Toll Road lease proceeds.

Out of a payment of $40 million, the county would get a little over half, with the rest going to South Bend, Mishawaka and other taxing units.

The idea would be to invest the county's share of the lease money. Interest from that investment could then be used to pay off bonds issued to meet road needs.

Such a bond issue would also count against the county's debt limit, according to Lentz.

Dobson said that issuing bonds to pay for a new courts building would mean that "the county's ability to address equally important things would be gone."

Among those equally important things, Dobson said, would be a proposed county emergency communications center, a family justice center, a long-sought work-release center and the means of addressing the county's failed road system.

Posted by Marcia Oddi on Friday, May 26, 2006
Posted to Indiana Courts

Thursday, May 25, 2006

Ind. Decisions - A number of briefs are available in legislative prayer case

In addition to the Appellant's brief, a number of amicus briefs have now been filed in the case of Hinrichs, Anthony v. Bosma, Brian. Access them all here, via the 7th Circuit website.

Appellees' brief is not due until June 10th.

For background, see this ILB entry from May 12th, 2006.

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

Courts - When jurors have a say

Steve Chapman of the Chicago Tribune has a column today titled "When jurors have a say: Some courts are letting them actively participate in trials." Some quotes:

Lately, some courts have tried a novel idea: letting jurors actively participate instead of serving as courtroom ornamentation. Recently, the federal courts in the 7th Circuit, encompassing Illinois, Indiana and Wisconsin, conducted an experiment in which members of the jury sitting in civil trials were allowed to submit questions for anyone testifying. From all the evidence, justice was well served. * * *

[A]llowing jurors to ask questions is a revival of an old practice that was eliminated only as lawyers became more important and the adversarial system became more rigid. As it happens, there is nothing about it that conflicts with the functioning or purpose of a trial.

Some states have already made the change. Arizona, for example, embraced it in criminal as well as civil trials as part of a 1995 package of reforms, which included such no-brainers as letting jurors take notes and consult them during deliberations. Indiana, Colorado and Florida are among the other pioneers. But this was the first time the innovation had been tried extensively in the federal system.

The presiding judge would typically inform the panelists of this option at the beginning of the trial and then invite questions when the lawyers were done with each witness. Every question had to be given in writing to the judge, who would then confer with the attorneys and decide if it was permissible. If so, the judge would read it to the witness. The lawyers could then ask follow-up questions.

The change held out the promise of making things better for the jurors--who, after all, make the greatest sacrifices but often get the least consideration. Letting them ask questions is a way of sustaining their interest and maximizing their comprehension. Denying them the option, by contrast, is an invitation to passivity and boredom.

Still, jurors exist for the benefit of the trial system, not the other way around. So the value of this innovation rests on whether it improves the processes of justice.

On that point, U.S. District Judge Matthew Kennelly has a strong opinion. "When I was in private practice, I was against it," he says. The initial reaction among lawyers is negative, in his view, because "you like to do things the way you've always done them." But his experience as a judge, he says, "has been completely positive. I intend to use it in every civil case that I have."

The benefit for jurors, he thinks, is that it lets them clarify points they didn't understand. But it also helps attorneys: "It gives them an insight into the jury that they wouldn't get." They can then tweak their presentations to address points they may have overlooked. It's a bit like letting theater directors have a glimpse of the reviews before the show opens.

Posted by Marcia Oddi on Thursday, May 25, 2006
Posted to Courts in general

Ind. Gov't. - Garton and Borst victims of religious zealots? Or were they simply out of touch?

Sheila Suess Kennedy, whose writings I often admire, had a column Tuesday in the Indianapolis Star that concluded:

For better or worse, however, political and civic life requires compromise. Thoughtful conservatives, libertarians and liberals can generally find some common ground that makes governing possible. They understand that no one gets his own way all the time, and that an acceptable middle ground is no small achievement in a society as diverse as ours. Zealots, however, find compromise not just distasteful, but evil. They don't acknowledge the ambiguities; they not only don't see shades of gray or moral complexity, they believe that people who do are the "real" enemy.

This dynamic plays out on both sides of the political spectrum, but in Indiana it has been most notable in the Republican primaries of recent years, where moderately conservative lawmakers have been defeated by people campaigning on the proposition that moderation itself is evil.

State Senate President Pro Tempore Bob Garton and former state Sen. Larry Borst were not defeated by opponents debating the nuances of policy. They were victims of holy wars.

And even undergraduates understand that holy wars will ultimately victimize us all.

Whoa! Jan Davis of Franklin responded this morning in a letter to the editor:
Let me see if I've got this straight: Professor Sheila Kennedy ("Uneasy about ambiguity," May 23) believes that Sen. Bob Garton was a victim of "zealots waging a holy war." The voters in Needham Township, Johnson County, are farmers, businesspersons, educators, homemakers and underemployed former factory workers, hardly zealots.

We deal with ambiguity, moral and economic, every day: will it rain, will the State of Indiana balance the budget, will the local municipality raise taxes for athletic complexes while our students languish academically, will the state legislature ever come up with decent major medical plan for the uninsured and stop the hemorrhage of Medicaid dollars?

Sen. Garton is a victim of his own actions. When he gave himself and his family lifetime health-care benefits, using my tax dollars, while failing to produce an equal plan for his constituents he lost my respect. When the senator blew off my suggestion that he model fiscal restraint, he lost my vote.

It is naïve, offensive and remarkable when a university educator speaks for tolerance and respect for diversity while hurling inflammatory salvos at voters she clearly does not respect. Professor Kennedy, you keep on believing that we downstate folks are ignorant "right-wing" extremists, if the thought explains your world. However, I don't want Sen. Garton to be similarly confused. The primary election was not a holy war, but I was mad as hell.

Posted by Marcia Oddi on Thursday, May 25, 2006
Posted to Indiana Government | Legislative Benefits

Ind. Gov't. - More on: Nondisclosure agreement reportedly bars public from seeing settlement

Tuesday this ILB entry reported on a Crawfordsville settlement agreement (Per the AP "The city has settled with the mayor's former administrative assistant over her allegations that she was fired after spurning his sexual advances) where the terms were protected by a non-disclosure agreement.

Yesterday, the terms of the settlement were disclosed, according to this report from The Paper of Montgomery County:

The terms of the settlement in the tort claim brought against the city of Crawfordsville, Mayor John Zumer and city council members by former employee Summar Keesee were disclosed Wednesday.

While Zumer is out of town, he did say that he would release a statement on the matter.

Under terms of the settlement, Keesee will receive $20,000.

A separate supplemental agreement was also signed by Zumer and Keesee. This involved mediation through the Equal Employment Opportunity Commission, Zumer, Keesee and their attorneys.

According to the settlement with the city, the agreement does not constitute an admission by Zumer or the city of any wrongdoing as alleged by Keesee. Further, Zumer agreed that there shall be no discrimination or retaliation of any kind against Keesee as a result of filing this charge.

Zumer agreed to respond in a neutral manner to any reference checks made on Keesee by providing only her dates of employment and positions held to prospective employers.

In turn, Keesee agreed in writing to keep the terms and provisions of the settlement confidential.

Keesee was asked this morning if she believed it was fair that the city could talk about the settlement but she can’t. "I am not going to talk about that," Keesee said.

Maria J. Flora of the Crawfordsville Journal Review wrote this more comprehensive story today:
A former administrative assistant was awarded $20,000 in a sexual harassment claim involving Crawfordsville’s mayor, according to information released Wednesday.

Crawfordsville’s insurance carrier will pay $12,500, with the city paying a $7,500 deductible, attorney David Peebles confirmed Wednesday.

Summar Keesee, 29, is responsible for taxes and her attorney fee, according to the agreement. Under the settlement, she waived her right to file a lawsuit.

“This agreement shall not in any way be construed as an admission of the City or its agents of any improper or unlawful conduct whatsoever against Keesee or any other person and the City and Zumer specifically disclaim any liability to Keesee or any other person,” the settlement reads.

Keesee worked for Zumer from Jan. 2004, when he took office, until he fired her in December, 2005. She earned $25,000 a year.

In February she filed notice of a tort claim, a step that must be taken before filing a sexual harassment suit against a public official. She claimed Zumer harassed her and wrongfully terminated her employment.

An Equal Employment Opportunity Commission mediator facilitated the settlement Monday among Zumer, Keesee, their attorneys and insurance company representatives.

Terms of the settlement prohibited Keesee from discussing the amount received or any other details. Her attorney, Bruce Petit, of Carmel and Peebles also said Monday the settlement required non-disclosure and were brief in their comments.

Peebles, the city’s attorney, released a copy of the settlement Wednesday after the Journal Review requested it under the Indiana Access to Public Records Act. The written request noted the Indiana Court of Appeals recently sided with the Knightstown Banner in its quest for public records written by an insurance carrier’s attorney.

Zumer was out of town Wednesday at a meeting of the Indiana Association of Cities and Towns. Peebles said Zumer will release a formal statement this afternoon. The statement is expected to address the deductible billed to the city. [emphasis added]

Posted by Marcia Oddi on Thursday, May 25, 2006
Posted to Indiana Government

Ind. Decisions - 7th Circuit issues one Indiana ruling

In Backwater, Inc. v. Penn-America Ins (ND Ind., Paul R. Cherry, Magistrate Judge.), a 5-page opinion, Circuit Judge Evans concludes:

The undisputed facts show that Penn-American had reason to suspect insurance fraud, so there was no bad faith. The jury agreed that coverage was properly denied, and the Finkes identify no plain error in the way the trial was conducted. The judgment is AFFIRMED.

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

Ind. Decisions - Court of Appeals decides three today

In Nakea R. Ables v. State of Indiana, an 8-page opinion, Judge Sharpnack rules that the trial court did not abuse its discretion in sentencing defendant.

In John T. Bridgeforth, et al v. Joy L. Thornton, et al, a 25-page opinion, Judge Vaidik begins with this case summary:

The present case reaches this Court as a result of an ongoing and lamentable feud within the congregation of Greater St. Mark Missionary Baptist Church. To date, this dispute regarding control of the church’s Board of Trustees has wreaked havoc on this congregation for nearly two-and-a-half years, leaving its membership fractionalized and continuously jeopardizing its day-to-day operations. The Appellants, who were temporarily reinstated as the duly elected Trustees of the church under the trial court’s judgment, argue that the court lacked the jurisdictional authority to concurrently order that a new election be held forthwith to determine whether the congregation, indeed, wished to remove them from office. They further argue that the trial court erred by denying their claim for damages under the Indiana Crime Victim’s Relief Act. Finding that the trial court properly exercised its jurisdiction and that the Trustees failed to prove their case under the Crime Victim’s Relief Act, we affirm the holding of the trial court.
In Bilal Abdullah v. State of Indiana, an 8-page opinion, Judge Vaidik begins with this case summary:
Bilal Abdullah appeals his conviction on one count of unlawful possession of a firearm by a serious violent felon and his habitual offender enhancement. Among other things, Abdullah contends that the trial court erred when it relied on an abstract of judgment lacking a judicial signature as support for its findings that Abdullah is a serious violent felon and a habitual offender. We agree with Abdullah on this point, and we hold that where an abstract of judgment is the only evidence before the court introduced to show that an offender has a prior conviction for purposes of proving his statuses as a serious violent felon and as a habitual offender, Indiana Trial Rule 58 requires that the abstract be signed by the judge who ordered the conviction. Finding this issue dispositive, we vacate Abdullah’s conviction for unlawful possession of a firearm by a serious violent felon and the trial court’s finding that he is a habitual offender. * * * Reversed.

Posted by Marcia Oddi on Thursday, May 25, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Toll Road company would bar the public and the media from speech [Updated]

The Gary Post-Tribune has an interesting story today by Steve Walsh headlined "Toll Road speech crashes." Some quotes:

The first public appearance of an official with the newly leased Indiana Toll Road ended in a public relations pileup, as Skyway CEO Fernando Redondo pulled out of a scheduled address to the Northwest Indiana Forum.

The decision came after a round of calls by local media after the forum announced Wednesday it would bar the public and the media from the event.

“It was pretty apparent there was a concern there,” Northwest Indiana Forum President Vince Galbiati said. “We didn’t want to put them in a position to out-and-out say they wouldn’t come so we took them off the hook.”

Prior to Wednesday, the business group promoted Redondo’s appearance and sent invitations to drum up interest in the spring meeting of the business group, scheduled for this afternoon at the Radisson Hotel at Star Plaza in Merrillville.

Galbiati said the forum volunteered Wednesday morning to close the meeting as a compromise after listening to some of the company’s concerns over a lawsuit brought by residents over the state’s lease agreement.

The plan quickly backfired, and by late afternoon, the Chicago Skyway announced Redondo would not attend.

“While you want to respect the litigation, you also don’t want to move forward under a veil of secrecy,” said Avis LaVelle, spokeswoman for Skyway Concessions, which operates the Chicago Skyway and is set to take over operation of the Indiana Toll Road. The two roads will remain separate but Redondo is expected to control both operations. The company is about to open an office in Indiana, LaVelle said.

Among the people who had planned to attend today’s meeting was Post-Tribune Publisher/Editor Murdoch Davis, who was poised to reject the invitation after learning the meeting had been closed to the public.

“I don’t quarrel with the Forum’s right to hold private meetings,” Davis said. “But the notion that an official from a company involved in the privatization of the Toll Road and Skyway can come to the region and talk about it, at a function to which members of the public and business community were invited, and then want what he says to be kept private, well, that’s not only counter to how good public policy is made, it’s not practical.” * * *

The July 1 takeover of the Indiana Toll Road is contingent on clearing away a lawsuit filed in South Bend by the Citizens Action Coalition and a group of residents who have charged the public-private partnership violates the state constitution.

[Update] The AP has now picked up the story:
Skyway Concession Company CEO Fernando Redondo was scheduled to be the keynote speaker at the Northwest Indiana Forum. He requested the meeting be closed to the public and media, saying he could not speak in front of reporters because of pending litigation over the toll road, said Vince Galbiati, Forum executive director.

"It's a very sensitive issue, for all that, to have any public present with this much money involved and this much national attention," Galbiati said.

Attorneys for the state, the Australian-Spanish consortium and the group challenging the constitutionality of the $3.8 billion, 75-year lease are awaiting a ruling by St. Joseph Superior Judge Michael Scopelitis. Both sides have said they will appeal if he rules against them. * * *

The Forum does not usually open its meetings to the media and public. But officials invited them this week because they wanted them to hear from Redondo because of the importance of the toll road lease to economic development in northern Indiana, Galbiati said. But after the Forum said reporters and the public would not be allowed, Redondo still canceled his appearance.

"While you want to respect the litigation, you also don't want to move forward under a veil of secrecy," said Avis LaVelle, Skyway Concessions spokeswoman.

Skyway Concessions is separate from Statewide Mobility Partners, which wants to lease the Indiana Toll Road. Redondo is expected to control both operations.

Posted by Marcia Oddi on Thursday, May 25, 2006
Posted to Indiana Government

Ind. Decisions - For the second time in less than a year, a judge on Wednesday blocked the city's attempt to swallow a neighbor [Updated]

"Strike two for Carmel: For the second time in less than a year, a judge on Wednesday blocked the city's attempt to swallow a neighbor." is the lead to this lengthy story by Lesley Rogers Barrett in today's Indianapolis Star. More quotes:

The decision halts Carmel's plan to annex an 8.3-square-mile chunk of southwest Clay Township -- and could affect a similar push by Fishers.

Forced annexation throughout Hamilton County could be stymied, said Michael Shaver, an annexation expert with consulting firm Wabash Scientific who testified for Carmel during a three-day trial earlier this year.

"Nobody's going to want to go before a judge in Hamilton County and plead a case for annexation," Shaver said. "This effectively shuts down annexation."

Geist homeowners who are fighting a takeover bid by Fishers agreed. "When I went to the courthouse and got a copy of the judgment, flipped to the back and saw he ruled for southwest Clay, it was immediate elation," said Tom Britt, an organizer of the Geist anti-annexation group.

Carmel officials vowed to appeal the ruling by Hamilton Superior Court Judge William Hughes. * * *

Hughes ruled that Carmel officials failed to show how the city would spend money to provide services to the residents in southwest Clay Township. He also ruled that annexation would cause a "significant financial impact on the landowners," who would see a 21.4 percent increase in property taxes when they switched from township tax rolls to Carmel's.

The land, an expanse of horse farms, large estates and gated communities west of Carmel, would have added $1.4 billion in assessed property value. * * *

Three of the southwest Clay residents who took over the remonstrance in court had a news conference Wednesday afternoon, including Bob Thomas, owner of Capitol City Ford, stockbroker Jack Holton and Chuck Cavalier, a retired Eli Lilly and Co. executive. * * *

In October, Hughes ruled that Carmel had not shown how it could afford to annex Home Place, a 1.6-square-mile community just east of southwest Clay.

The earlier Home Place decision is available here; for background on Home Place see these Oct. 4th and Oct. 5th, 2005 ILB entries.

The ILB is attempting to obtain a copy of yesterday's ruling by Judge Hughes.

[Updated] Here is a copy of Wednesday's opinion by Judge Hughes in Certain SW Clay Twp. Annexation Territory Landowners v. City of Carmel. (This is a 1.3 MB file.)

Posted by Marcia Oddi on Thursday, May 25, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Behrman trial will stay in Morgan Co."

Sarah Core of the Indiana Daily Student reports:

A Morgan County judge has denied a request in the Behrman case for a change of venue, leaving the Sept. 18 trial in the county where IU student Jill Behrman's body was found three years ago.

Superior Court Judge Christopher Burnham ruled Monday that the trial will not be moved to Indianapolis because of the negative influence of local media coverage on the case, as the defense for John R. Myers II, the Elletsville man indicted for killing Jill Behrman, argued.

Defense attorney Patrick Baker told the court that the publicity surrounding the disappearance and murder of Jill Behrman over the past six years had made it impossible for Myers to receive a fair trial in Morgan County. * * *

Burnham disagreed with the defense attorney, stating that a change of venue would do nothing to reduce the amount of media coverage for the case, but only shift it "to a new venue," the ruling said.

Though Baker originally had requested a venue far away from the Bloomington area in his petition, he later asked for the location to be in Marion County. * * *

Marilyn Behrman, an IU employee and the mother of Jill, said she was glad that the trial would be staying in Martinsville.

"The attorney was trying to make Martinsville and Bloomington (seem like) the same community, and that's not the case," Marilyn Behrman said. Moving the case to Indianapolis, she said, would "probably hurt more than it helps."

She and her husband had feared that if the case was moved further away from the Bloomington area, it would cause undue stress for not only the investigation, but also for all of the witnesses in the trial. More than 90 people were interviewed by the grand jury in the months leading up to Myers indictment.

The next hurdle will be July 5, when the Bloomington The Herald-Times takes its repeated requests for the release of public records related to the Behrman case to court.

The hearing will determine whether Behrman's autopsy report should be released to the public.

More on the Bloomington The Herald-Times public access efforts may be found in these ILB entries from March 2nd and March 10th, 2006.

Posted by Marcia Oddi on Thursday, May 25, 2006
Posted to Ind. Trial Ct. Decisions

Wednesday, May 24, 2006

Courts - No public access to Cincinnati multiple listings service

The Cincinnati Business Courier reports this afternoon:

A bid by a group of local real estate agents to open up Cincinnati's multiple listings service to the public was quashed Wednesday.

The MLS Web site, which lists homes for sale in Greater Cincinnati and southeastern Indiana, is operated by the Cincinnati Area Board of Realtors. The listings had been open to the public until 2004, when the organization restricted it.

A panel of judges of the Ohio First District Court of Appeals let stand a May 2005 decision by Hamilton County Common Pleas Judge David Davis to dismiss the Realtors' suit, according to published reports. The judges found the Board of Realtors was not violating its constitution by restricting access to the site.

The multiple listings service operated by the Northern Kentucky Association of Realtors, at www.nkar.com, is open to the public.

So is MIBOR, the site of the Metropolitan Indianapolis Board of REALTORS®, at least in part.

Posted by Marcia Oddi on Wednesday, May 24, 2006
Posted to Courts in general

Ind. Decisions - Court of Appeals decides four today

Matthew Jon Earlywine v. State of Indiana - conviction for intimindation, affirmed.

In In the Matter of the Paternity of K.T.P., an 11-page opinion, Judge Sullivan concludes:

Having concluded that K.T.P.’s medical expenses incurred on and after July 31, 2003 do not qualify as “birthing expenses” under Indiana Code § 31-14-17-1, we affirm the trial court’s order denying the State’s claim against Atchison for reimbursement of half of the $14,758.44 in medical expenses paid by Medicaid for K.T.P.
In Cracker Barrel Old Country Store v. Town of Plainfield, a 13-page opinion, Judge Baker writes:
Appellant-defendant Cracker Barrel Old Country Store, Inc. (Cracker Barrel) appeals the trial court’s grant of summary judgment entered in favor of the appellee-plaintiff Town of Plainfield (Plainfield), which determined that Cracker Barrel’s pole sign must be removed from its premises. Specifically, Cracker Barrel argues that the trial court erroneously determined that its sign lost its status as a legally established nonconforming structure in accordance with Plainfield’s zoning ordinance (the Ordinance) when it had performed maintenance on the sign. Concluding that the trial court properly determined that Cracker Barrel lost its status as a nonconforming use under the Ordinance when it removed its sign from the pole, we affirm the entry of summary judgment for Plainfield.
Walker L. Whatley v. State of Indiana - revocation of probation, affirmed

Posted by Marcia Oddi on Wednesday, May 24, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today (Butchie is back!)

In Robert Trimble v. State of Indiana, a 3-page ruling, Justice Boehm adresses the peition for rehearing:

Trimble was convicted after a bench trial of cruelty to an animal, a Class B misdemeanor, and harboring a non-immunized dog, a Class C infraction. The Court of Appeals reversed, finding that the State’s evidence was gathered in violation of the federal and Indiana constitutions. Trimble v. State, 816 N.E.2d 83, 86 (Ind. Ct. App. 2004). Because of this disposition, the Court of Appeals did not address two other issues Trimble raised on appeal. We granted transfer and affirmed the trial court’s finding that the evidence was not obtained in violation of Trimble’s constitutional rights and was therefore admissible. Trimble v. State, 842 N.E.2d 798, 804 (Ind. 2006). Trimble seeks rehearing. He correctly points out that neither the Court of Appeals nor this Court has addressed his other two issues. * * *

[After briefly dealing with the two issues, Boehm concludes]

Trimble’s Petition for Rehearing is granted. The judgment of the trial court is affirmed.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

For background, see this list of ILB entries.

Posted by Marcia Oddi on Wednesday, May 24, 2006
Posted to Ind. Sup.Ct. Decisions

First the toll road, next the lottery? Is nothing sacred? [Updated]

The Chicago Tribune reports today:

Democratic Gov. Rod Blagojevich on Tuesday proposed selling or leasing the state lottery to fund school reforms, a plan Republicans said would squander a dependable source of cash just to boost his re-election campaign.

Blagojevich's proposal, which would have to be approved by the legislature in the fall, counts on a $10 billion windfall from shedding the three-decade-old Illinois Lottery.

Some $4 billion of that would be spent over the next four years for classroom programs, school construction, expanded preschool and full-day kindergarten, merit pay for teachers and new textbooks. That money would also be used to help failing students and schools.

Another $6 billion would be invested. The income from those investments would bring in $650 million each year through 2024, making up for the loss of the money the lottery now brings in for schools, Blagojevich said.

"Gov's $10 billion jackpot for schools" is the headline to the Sun-Times coverage. Some quotes:
[Q]uestions were immediately raised about the wisdom of leasing the lottery, and whether the plan truly solved a decades-old problem of inadequate state funding for schools.

A sale or lease could generate $10 billion. But only $4 billion of that would amount to new dollars for schools -- and that money would be gone after four years. The other $6 billion would go into a trust expected to generate about $650 million annually through 2025 to replace the money schools get from the lottery now.

In addition, the governor hopes to pump in another $2 billion from other sources over the four years for a total of $6 billion in new funding.

"What happens after year four?" said Bindu Batchu of A+ Illinois, a school finance reform group. "We need to sustain an investment in education. We can't rely on one- time sources."

Dawn Clark Netsch, the 1994 Democratic gubernatorial candidate who made school finance reform her campaign centerpiece, was leery of giving up valuable state assets.

"I'm concerned about this idea that we're going to sell or lease most of our major state assets," Netsch said. "It seems we're continuing to push the responsibility for funding our services off into the future and taking away assets we may need in the future."

[Updated almost immediately] Patrick Guinane of the Munster (NW Indiana) Times reports today:
In Indiana, Daniels has considered privatizing the Hoosier Lottery and even mentioned the idea to The Times editorial board earlier this year.

The concept does not, however, appear to be near the top of his agenda.

Daniels was headed to Washington, D.C., Tuesday to testify this morning about his pending privatization of the Toll Road and was unavailable to comment on the Blagojevich plan.

"Gov. Daniels is always looking for innovative ways to deliver public services while keeping taxes down," said spokeswoman Jane Jankowski. "We have looked at this idea but do not have plans to pursue it for the present time."

After expenses, including prizes, advertising and vendor payments, the Hoosier Lottery generates nearly $200 million a year, or less than a third of annual bounty Illinois schools see from that state's lottery. The Hoosier Lottery, which includes all scratch-off games, turned a profit of $189 million last year, down from $199 million the previous year.

State Sen. Vic Heinold, R-Kouts, said he doesn't see how a Hoosier Lottery could bring a bring a benefit anywhere near the 'home run" Daniels delivered on the Toll Road lease.

"I'd sure have to see the number," he said. "If it's just a quick fix, I don't see it happening."

Heinold said no one from the administration has briefed Senate Republicans on lottery privatization, so it's unlikely such a plan is percolating.

Democrats, who overwhelmingly opposed the Toll Road lease, bristled at auctioning the Hoosier Lottery.

"Basically, I'm opposed to any privatization because you have to understand that people are getting in it to make money," said State Rep. Vernon Smith, D-Gary. Private operators often seek profits by cutting services or gouging customers, he said.

State Sen. Karen Tallian, D-Ogden Dunes, said privatization is no more palatable coming from Blagojevich, a fellow Democrat.

"It's like mortgaging your house to go to the grocery store," she said. "You need to come up with a solution that will continually finance education needs. The whole thing is a silly idea. The Toll Road (lease) was a silly idea. All that money is going to be gone and we're still going to have transportation needs."

Daniels argues that building new roads now will attract employers and bolster Indiana's economic future. Lawmakers did put $500 million in a trust fund to generate investment income for transportation spending beyond 2016.

Blagojevich wants to spend $4 billion from an Illinois Lottery auction over the next four years and use the remaining $6 billion to provide schools an annual annuity of $650 million through 2025.

Posted by Marcia Oddi on Wednesday, May 24, 2006
Posted to General News

Ind. Gov't. - More on: House Republicans vow to end health care perk, permanently

Niki Kelly of the Fort Wayne Journal Gazette has a story today headed "Political foes vow to scrap job perk: Would eliminate their subsidized health plan." She writes:

INDIANAPOLIS – Republican incumbents and challengers seeking to retain control of the Indiana House pledged Tuesday to permanently end a taxpayer-subsidized health care perk should they be elected this fall.

House Speaker Brian Bosma already this year announced administrative changes to the system so that legislators elected this fall would no longer be eligible for the perk. Those retiring or defeated, however, can still enroll.

Under the benefit, lawmakers who retire with six years and one day of service can lock in for life the current employee percentage of contribution for monthly health insurance premiums, with the state picking up the rest. Depending on what plan lawmakers elect, their premiums can range from very little to up to 25 percent of the cost.

Under Bosma’s policy change, future House retirees can continue to participate in the state’s group health program, but all premiums would be the retiree’s sole responsibility. And if House members are eligible for Medicare, the federal program must be the primary provider.

This is the same as other state employees who pay the full premiums upon retirement.

The only problem is that if Bosma doesn’t retain his position as speaker, the new House leader could put the old program back in place with the stroke of a pen.

That is why Bosma and those seeking to come back or join the House next year all signed a pledge Tuesday to support legislation to permanently dismantle the program. * * *

Bosma also said the entire House benefits package is under review – including the lucrative pension match in which the state puts in $4 for every $1 legislators invest.

He said he sees that differently because it was done in the open with full debate – as opposed to the secretive health care plan that was cobbled together over several sessions in multiple bills.

Bosma noted the pension plan essentially equates to between a $2,500 and $7,000 increase in legislative pay for part-time members whose annual salary is $11,600 a year.

“A 4-1 match is unheard of,” said Rep. Marlin Stutzman, R-Howe, who understands it was a way to give legislators a salary increase that has been unpopular. But that doesn’t make it right.

“We should say ‘this is what a legislator makes’ without all the back-door benefits,” Stutzman said. “This is our way to take the issue to the public and say we are committed to reform.”

House Democratic Leader Rep. Pat Bauer, of South Bend, said after the news conference that he would not reinstate the program if the Democrats gain control and he is speaker next year.

He also would examine whether the perk should be taken away from already-retired members. * * *

The Indiana Democratic Party attacked Bosma’s pledge as disingenuous because bills to legislatively end the perk were introduced by Republican members in both the 2005 and 2006 sessions but Bosma sent them to a procedural committee to die.

Then again, the perk was put in place by then-Democratic House Speaker John Gregg and then-Republican Senate President Pro Tem Robert Garton.

The GOP pledge would not affect the Senate, where they downgraded the perk this year but refused to end it – a decision that likely cost Garton his seat in the primary election. Some senators interested in his leadership post are including an end to the program in their platform. [emphasis added]

A May 14, 2005 Indianapolis Star story by Kevin Cocoran is no longer freely available, but is quoted in this January 23, 2006 ILB entry. This story ends with a list of the then 22 former legislators receiving taxpayer-subsidized health insurance (presumably there are more now), with their ages and current occupations. The majority of the former Representatives listed as receiving the benefit are in their 40s and 50s, including former Representatives Mark Kruzan (mayor of Bloomington), John Gregg (attorney), Michael Smith (casino lobbyist).

Mary Beth Schneider of the Indianapolis Star has a story today headed "GOP: Ax health benefit," expanding on her posting yesterday to the online Star. Some quotes:

Tuesday, Bosma said that ban needed to be put into law.

Later, House Minority Leader B. Patrick Bauer, D-South Bend, agreed, saying the benefit would not return if Democrats regain the majority. "It's dead and will remain dead," Bauer said.

Republicans, though, hope that being out front on this issue -- and other pledges they say they will roll out before the Nov. 7 general election -- could help them keep a slim 52-48 majority in the House. Eliminating the benefit is the first in a five-month-long series of pledges aimed at convincing a restless electorate that Republicans can remain in charge -- and still initiate change.

From Lesley Stedman Weidenbener's report in the Louisville Courier Journal:
In 2004 several Republican legislative challengers -- including Rep. Billy Bright of North Vernon -- campaigned against the perk, criticizing incumbents for voting for it.

Republicans took control of the House that year after Bright and others won their races. And earlier this year Bosma acted to end the program for all House members elected in this year's general election and beyond. House members who lost or retired this year will still get the benefit. * * *

Bright, who also talked about the pension benefit during his 2004 campaign, said he believes the General Assembly ought to do away with such perks and instead establish an easy-to-understand salary structure that is transparent to voters.

"That pension benefit was just a way for legislators to get a pay increase without voting for a pay raise," Bright said.

Currently, Hoosier lawmakers earn base pay of $11,600. But they also receive mileage and year-round payments meant to reimburse them for lodging, meals and other expenses.

Posted by Marcia Oddi on Wednesday, May 24, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Tuesday, May 23, 2006

Ind. Decisions - Supreme Court issues two more decisions today

In Re Estate of Gary Hammar, Lewis v. Hammar

Midtown Chiropractic v. Illinois Farmers Insurance Co., a 3-2 opinion

DETAILS TO FOLLOW

Posted by Marcia Oddi on Tuesday, May 23, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - House Republicans vow to end health care perk, permanently

Mary Beth Schneider reports for the Indianapolis Star this afternoon:

Republicans trying to keep the majority in the Indiana House today pledged to seek to permanently eliminate the controversial lifetime health insurance package for state representatives.

House Speaker Brian Bosma, R-Indianapolis, along with incumbent state representatives and GOP candidates, signed a pledge on the Statehouse steps -- the first of a five-month series of campaign pledges -- promising to introduce legislation that would get rid of the perk for the House, though not for the Senate.

Public anger over that issue helped lead to the defeat of Senate President Pro Tempore Robert D. Garton, R-Columbus, in the May 2 primary election.
Bosma said the Senate leadership is "in flux" and will need to make their own decisions about the issue. But House Republicans, he said, are committed to support the permanent elimination of the generous insurance package.

Bosma had revoked the lifetime insurance plan for representatives and their families, in effect since 2002, during this year's legislative session, but unless a law is passed making that change permanent a future speaker could reinstate the plan.

That last paragraph is a little misleading. Bosma revoked the lifetime plan, effective for legislators retiring after the Nov. 2005 election. He did not revoke it retroactively -- i.e. for those already receiving the health care perk. Presumably, repealing the underlying authorization statute would do that, but nothing is certain here.

[More] Mike Smith of the AP has a longer story, giving the history of the plan and reporting:

House Minority Leader Patrick Bauer, D-South Bend, also promised not to bring back the benefit if his party wins a majority and he becomes speaker again. He also said the possibility of any future speaker restoring it should be prohibited by law.

Posted by Marcia Oddi on Tuesday, May 23, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Gov't. - Nondisclosure agreement reportedly bars public from seeing settlement

The AP reported this morning:

CRAWFORDSVILLE, Ind. -- The city has settled with the mayor's former administrative assistant over her allegations that she was fired after spurning his sexual advances. * * *

"The case is resolved," said Keesee's attorney, Bruce Petit. "There is a nondisclosure required in the settlement, so we really can't say more than we've resolved it to a mutual satisfaction."

Zumer said he was working with the city's attorney on a public statement about the settlement. He denied the allegations in February when Keesee filed a notice warning the city she intended to sue over her dismissal.

Gary Welsh of Advance Indiana picked up on it here, saying:
Excuse me, nondisclosure or not, this settlement is a matter of public record. Taxpayers money has been used to defend and settle this charge, and the taxpayers have every right to see the terms of that settlement agreement. I don't see an exclusion in Indiana's Access to Public Records law which covers settlement agreements in litigation against a governmental body.
Then Doug Masson of Masson's Blog wrote about it here, noting the recent Court of Appeals decision in Knightstown Banner, LLC v. Town of Knightstown, et al.

Here is the ILB Dec. 13, 2005 summary of the Knightstown decision. And this ILB entry, from Dec. 14th, contains several reviews on the decision. It ends with the ILB asking:

As pointed out in the last two paragraphs of this Nov. 11, 2005 ILB entry, many settlements involving governmental units in Indiana currently are not made available to the public. Will the Knightstown ruling have legs?
The Nov. 11, 2005 entry referenced contains examples of other municipal settlements withheld from the public.

Posted by Marcia Oddi on Tuesday, May 23, 2006
Posted to Ind. App.Ct. Decisions | Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals decides on today

In Walker L. Whatley v. State of Indiana, a 7-page opinion, Judge Robb writes:

Walker Whatley appeals the revocation of his probation. We affirm. * * *

The trial court did not err in taking judicial notice of the probable cause affidavit, and the State presented sufficient evidence to support the trial court’s revocation of Whatley’s probation. The order revoking Whatley’s probation is therefore affirmed.

Posted by Marcia Oddi on Tuesday, May 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from the Supreme Court

In State of Indiana v. Heath A. Spillers, a 14-page opinion (with concurring opinion beginning on p. 11), Justice Rucker writes:

Heath Spillers was charged with dealing in cocaine as a Class A felony. The trial court granted Spillers’ motion to suppress and on review the Court of Appeals reversed. We granted transfer to address the application of the rule declaring that an informant’s “declarations against penal interest” are sufficient to establish the informant’s credibility for the issuance of a search warrant. * * *

Although we have ultimately concluded that the warrant on which the police relied to search Spillers’ home was not supported by probable cause, we cannot say that the executing officers’ reliance on the issuing judge’s determination of probable cause was entirely unreasonable. Indeed our conclusion that Craib’s statements were not declarations made against his penal interest was reached only after examining more carefully existing case law on the subject. It is true that officers are required “to have a reasonable knowledge of what the law prohibits.” Id. But that does not mean that officers are required to engage in extensive legal research and analysis before obtaining search warrants. We conclude that the officers in this case relied on the search warrant in objective good faith. Accordingly, we reverse the trial court’s grant of Spillers’ motion to suppress the evidence found in his home.

Conclusion. The judgment of the trial court is reversed.

Shepard, C.J., and Sullivan, J., concur.
Boehm, J., concurs in result with separate opinion in which Dickson, J., concurs.

In my view, Craib’s statements that Spillers was his supplier had sufficient indicia of reliability to satisfy the probable cause requirement for issuance of a warrant. I therefore agree that the trial court’s order granting Spillers’ motion to suppress evidence should be reversed, but disagree that resort to the Leon good faith rule is necessary to achieve that result.

Posted by Marcia Oddi on Tuesday, May 23, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Star editorializes today on need for redress for consumer victims of concrete price fixing

Following up on J.D. Wall's story in the Saturday Indianapolis Star (see ILB entry here) titled "Concrete price-fix case vexes helpless consumers: State has no law offering recourse for homeowners," the Star today has an editorial headed "Time to take concrete action." The Star's position: "Indiana needs to join those states that permit legal redress for indirect victims of price gouging."

Posted by Marcia Oddi on Tuesday, May 23, 2006
Posted to Indiana Law

Ind. Courts - "Daniels names Munster resident as court judge "

"Daniels names Munster resident as court judge" is the headline to a story today by John Byrne in the Gary Post-Tribune. Some quotes:

A former Lake County juvenile public defender and deputy prosecutor has been appointed to fill the vacancy left in a Gary courtroom after the death of one of Lake County’s most colorful and controversial judges.

Gov. Mitch Daniels announced Monday he had chosen Elizabeth Tavitas from among three finalists to replace the late James Danikolas in Lake Superior Court Civil Division Room III. Danikolas died from a heart attack in December at age 69.

Tavitas, 44, of Munster, has served as referee in the Lake County Superior Juvenile Division since 1998, presiding over cases involving paternity, custody, parenting time, child support, protective orders, guardianships, adoptions and termination of parental rights, according to a press release from the governor’s office. * * *

Daniels selected Tavitas over Lake County magistrates Christina Miller and Nanette Raduenz, the other two finalists submitted to him by a selection committee headed by state Supreme Court Justice Robert D. Rucker.

“The nominating commission in Lake County sent me three terrific candidates, all of whom could and would serve well,” Daniels said in the release. Beth Tavitas was especially outstanding. She has spent the bulk of her career with children’s issues paramount.” * * *

She will replace a judge who was a lightning rod for controversy before his death last December at age 69.

Just a week before he succumbed to a heart attack, Danikolas was suspended from the bench by the state Supreme Court for 60 days for wrongly firing a magistrate. He was nonetheless remembered by colleagues as an eminently approachable judge, with a keen legal mind.

"Tavitas to head Gary family court" is the headline to Bill Dolan's coverage of the story in the Munster (NW Indiana) Times. The story explains:
The court, dealing mainly in family law matters, is one of a dozen in Lake County in which judges are appointed and retained without the involvement of the Democratic and Republican parties.

The Lake Superior Court Judicial Nominating Commission, a panel of five lawyers and four lay members, recruited and interviewed 20 applicants before choosing Tavitas, Circuit Court Referee Christina J. Miller and Superior Court Referee Nanette Raduenz as the three finalists for the post.

More than half of the count's judiciary are women and are members of the county's black and Hispanic minority communities.

Posted by Marcia Oddi on Tuesday, May 23, 2006
Posted to Indiana Courts

Monday, May 22, 2006

Law - More on: Obtaining a license to practice law in California is hard

This Feb. 21st ILB entry quoted from the LA Times:

Kathleen Sullivan, former dean of Stanford Law School and a former Harvard Law School professor, is considered such a legal superstar that news of her flunking the California bar last year made the front page of the Wall Street Journal. Sullivan remains a full law professor at Stanford and is associated with a private law firm. Although Sullivan is licensed to practice law in New York and Massachusetts, the California Supreme Court last month removed her from litigation over a $500-million licensing dispute because she was not a member of the state bar.

The constitutional scholar, who has argued several times before the U.S. Supreme Court, wasn't eager to talk about the setback, declining to say how much she studied for the bar or how close she came to passing. "That is all past," Sullivan said.

She took a special bar exam for lawyers licensed elsewhere that is shorter than the regular test. Only 28% achieved passing scores.

This time, Sullivan is not taking any chances. She said she has immersed herself in study for the test today.

"I am eating, drinking and sleeping the bar," said the scholar, who is frequently cited as a potential U.S. Supreme Court nominee.

Well, the announcement today is -- She passed this time! For more, see this entry from the WSJ Blog.

Posted by Marcia Oddi on Monday, May 22, 2006
Posted to General Law Related

Ind. Courts - Yet more on the toll road statute challenge

The ILB has now received both the plainiffs' and defendant's post-hearing briefs in the toll road case, Steve Bonney et al v. Indiana Finance Authority et al, currently pending before Judge Scopelitus in St. Joeseph County.

Here is the plainitffs' brief (same as posted yesterday) and here is the just acquired defendants' brief.

Posted by Marcia Oddi on Monday, May 22, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues one today

In Andrew D. Purcell v. Southern Hills Investments, LLC, a 25-page opinion (with a "concurring in result" opinion beinning on p. 25), Judge Riley writes:

Appellant-Defendant, Andrew D. Purcell (Purcell), appeals the trial court’s Findings of Fact and Conclusions of Law in favor of Appellee-Plaintiff, Southern Hills Investments, LLC (Southern Hills), with regard to Southern Hills’ Complaint against Purcell alleging a breach of fiduciary duty and self-dealing. * * *

Based on the foregoing, we find that the trial court properly concluded that (1) Purcell breached his common law fiduciary duty to Southern Hills; (2) Purcell’s actions on behalf of VillageNet constituted willful or reckless misconduct pursuant to Ind. Code § 23-18-4-2; (3) Southern Hills can maintain a direct action, rather than a derivative action, against Purcell; and (4) the damages awarded to Southern Hills do not need to be offset. Affirmed.

BARNES, J., concurs.
SHARPNACK, J., concurring in result with separate opinion.

Posted by Marcia Oddi on Monday, May 22, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: "To fee, or not to fee: State hopes to clarify kindergarten question"

"Kindergarten rule boggles schools" is the headline to this story today in the Gary Post-Tribune. Some quotes:

A recent decision rendered by Indiana Supreme Court Justice Robert Rucker is stirring up some old feelings about the ethics of fee-based public education. [The decision is Nagy, et al. v. Evansville-Vanderburgh School Corporation, available here.]

It’s also stirring up confusion over whether full-day kindergarten falls into the realm of optional programs for which schools can charge — or if it is standard curriculum for which fees are prohibited, according to the Rucker’s interpretation of the Indiana Constitution.

One family recently sued the Evansville-Vanderburgh school district for charging students in kindergarten through grade 12 a $20 school services fee. Rucker ruled that violated a constitutional clause guaranteeing public schooling without charge.

Chesterton activist Marjory Crawford is enthused that Rucker’s ruling set a judicial precedent in Indiana on school fees. * * *

Indiana Department of Education attorney Kevin McDowell feels charging kindergarten fees is unconstitutional as well. He sent a memo to all schools saying that as he interpreted Rucker’s ruling, no schools could charge for full-day kindergarten.

That led many Hoosier districts, including Hanover in Cedar Lake, to scrap full-day programs for next year.

Conflict of views

Hanover Superintendent Michael Livovich is frustrated. After his district voted to end the program, Superintendent Suellen Reed sent out a letter saying McDowell’s opinion didn’t mean that schools should change their fee programs.

“We need some more direction from the state. What we should do is unclear,” said Livovich, adding that the district would be willing to reverse its decision. “We just need her to tell us whether it’s legal to charge or not.” * * *

Unless legislators or Reed better define what’s to be included in free and public education, there won’t be a resolution — without more court battles.

Of course Gov. Mitch Daniels’ plans for state-defined full-day kindergarten could make the issue moot, but right now that plan remains a dream.

Bearce said McDowell’s memo targeted kindergarten because the state received so many inquiries about whether there could be fees for it.

There is much more to this story, but read it today, as the Gary paper does not archive.

See this May 13th ILB entry, also mentioning both the IDE attorney's May 1 memo and the later, contradictory, letter from Dr. Reed. The May 13th ILB entry points out that although the attorney opinion is posted on the DOE website, Dr. Reed's later letter is not posted.

That remains the case today.

Posted by Marcia Oddi on Monday, May 22, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Four vendors listed as finalists in statewide automated case management project

From the announcement on the Court website:

The Indiana Supreme Court's Division of State Court Administration announced today that four vendors seeking to provide Indiana trial courts and clerks with a 21st Century Case Management System (CMS) have been recommended to the court as finalists. The vendors are:

* Computer Systems, Inc.
* Maximus – Justice Solutions Division
* Sustain Technologies, Inc.
* Tyler Technologies, Inc.

For background, see this list of ILB entries.

Posted by Marcia Oddi on Monday, May 22, 2006
Posted to Indiana Courts

Courts - "Kansas Justice's Lunchtime Chat Leads to Ethics Probe"

"Kansas Justice's Lunchtime Chat Leads to Ethics Probe" is the headline to an AP story today. Some quotes:

A lunchtime conversation about school-funding legislation has led to an unprecedented ethics investigation of a Kansas Supreme Court justice.

Justice Lawton Nuss had lunch with two state lawmakers at a Mexican restaurant in March as legislators were debating proposals to satisfy court mandates to increase school funding.

Nuss and his lunch companions, Senate President Steve Morris and Sen. Pete Brungardt, have all said that Nuss brought a spreadsheet with him, comparing numbers for various school finance alternatives, seeking to clarify those numbers. The court and the two lawmakers said the topic was discussed for about five minutes.

Nuss removed himself from the school finance lawsuit April 20 after the court's chief justice learned of the conversation.

Nuss has until June 1 to respond to a complaint accusing him of violating the code of judicial conduct. It is the first ethics complaint against a justice in the 32-year history of the state Commission on Judicial Qualifications. * * *

Kansas Attorney General Phill Kline has also opened an inquiry, on a complaint brought by another senator. And a special state House committee is expected to look into whether the conversation influenced the Legislature's recent approval of a three-year, $541 million school finance plan.

"If certain individuals are getting insider information, then the rest of us are working under a handicap," said Rep. Arlen Siegfreid, a committee member.

Prohibitions against discussing litigation are a universal part of codes of judicial conduct.

Bill Dressel, president of the National Judicial College in Reno, Nev., said trial judges are probably more alert to the prohibition because they work alone. Appeals courts are more collegial because decisions are made by the group.

"Sometimes it just doesn't become second nature to them," he said.

Here is an April 23rd ILB entry on the Kansas story.

In addition, see this April 29th ILB entry, titled "Allegations in yet a third state of collusion between Justices and Legislators."

Posted by Marcia Oddi on Monday, May 22, 2006
Posted to Courts in general

Ind. Gov't. - Two Indiana communities look at technology

Auburn. From a brief editorial in the Fort Wayne Journal Gazette today:

Auburn officials plan a public meeting this week to consider vastly increasing its fiber-optic network citywide and beyond to offer high-speed Internet, video and telephone service. City officials are right to at least discuss providing this service to their constituents.

The move to consider the service represents more progressive thinking by city officials, who already operate a successful and affordable public electric utility. A unit of the electric utility, Auburn Essential Services, oversees the data network, which currently serves only a handful of businesses along with city and county government offices.

The city will have a public hearing Thursday to receive input on the options, and members of the City Council and Board of Public Works will attend. Under one option, the city could extend the network to all of the city’s main businesses at a cost of about $3.7 million, which the utility could bear without borrowing.

The more expansive plan is to extent the service to all of the areas served by the electric utility, a project that would cost $18.6 million and require a bond issue of about $13 million.

Chesterton.From a brief story by Paulene Poparad in Friday's Chesterton Tribune:
Meeting Thursday, the Chesterton Advisory Plan Commission agreed to consider member Mike Bannon’s proposal that the town require all document submissions related to a planned-unit development or PUD to be supplied by the petitioner on CD disks.

Originals of the PUD documents also would be required in written form, but the CDs “would be a way for us to start getting things electronically,” said Bannon. “I don’t need all that paper. We don’t need to kill all these trees. CDs don’t take up that much space,” he explained.

Town planner and Plan Commission member Steve Yagelski said Chesterton currently requires engineering plans to be submitted in disk form as well as hard-copy. He questioned how as a PUD ordinance is amended during its consideration, as often takes place, the most current version of the CD would be identified. Member Fred Owens said a system could be devised.

Commission vice-president Jeff Trout, subbing for absent president George Stone, said he routinely throws away obsolete zoning paperwork. He noted the construction and engineering fields are going to the CD format allowing Trout, who owns a glass company, the ability to scan and print out only the few pages he needs out of much larger documents.

“The rest of the world wouldn’t be doing it if it cost more and took longer,” said Trout of electronic filing. Bannon said he believes it will save the town both staff time and money.

On his recommendation the proposal unanimously was tabled to give members more time to review it and staff the opportunity to consider how to implement it. Bannon said PUDs are a first step and electronic filing with the town can be expanded into other areas as any initial problems are worked out.

“I don’t understand the reticence for at least starting on this process,” he told the commission. “We need to get ahead of the curve.”

Posted by Marcia Oddi on Monday, May 22, 2006
Posted to Indiana Government

Sunday, May 21, 2006

Law - Best law firm website?

Perhaps it is this one, Dreher Law Firm in San Diego.

Posted by Marcia Oddi on Sunday, May 21, 2006
Posted to General Law Related

Ind. Courts - Still more on the toll road statute challenge

Yesterday in this ILB entry, we said that we hoped to obtain copies of the post-hearing briefs in the toll road case -- Steve Bonney et al v. Indiana Finance Authority et al -- pending before Judge Scopelitus in St. Joeseph County.

A reader has forwarded a copy of the plaintiffs' 60-page post-hearing brief. Thanks to you! Access the brief here.

Posted by Marcia Oddi on Sunday, May 21, 2006
Posted to Indiana Courts

Two Kentucky law blogs added to ILB blog list

The ILB has added two Kentucky law blogs to the list of links in the right-hand column, directly below the list of Indiana law blogs. They are the Kentucky Law Blog and the Kentucky Divorce and Family Law Blog.

Take a look at the entry in the Kentucky Divorce Blog titled "Nature or Nurture: Should Genetic Test Results Be Admissible To Rebut The Presumption Of Paternity?" (unfortunately, there does not seem to be a way to link to it directly).

The Indiana Law Blog has long wanted to add links to good law blogs in all the states bordering Indiana. We try to cover interesting or important law news from not only Louisville, but Cincinnati, Chicago, etc. However, other than Kentucky, we have not run across law blogs that meet our criteria. Suggestions would be welcome.

Posted by Marcia Oddi on Sunday, May 21, 2006
Posted to About the Indiana Law Blog

Ind. Courts - More on: Star editorial urges judge to throw out toll road suit

A little more tempered than the Indianapolis Star editorial featured in this ILB entry from May 18th, the Munster (NW Indiana) Times today has an editorial with the sub-head "Let's hope the suit against the Indiana Toll Road lease doesn't succeed. Let's not kill the goose laying these golden eggs." After detailing the road projects planned over the next decade for NW Indiana using the new funding, the editorial concludes:

The critical factor in bringing this highway and RDA spending spree is the $3.8 million lease of the Indiana Toll Road.

The controversial lease is being challenged in St. Joseph Superior Court in South Bend. It's a high-stakes battle.

Let's hope the suit against the Indiana Toll Road lease doesn't succeed. Let's not kill the goose laying these golden eggs.

Posted by Marcia Oddi on Sunday, May 21, 2006
Posted to Indiana Courts

Saturday, May 20, 2006

Ind. Law - "Concrete price-fix case vexes helpless consumers"

Indianapolis Star business writer J.D. Wall has an excellent article today on the impact of the concrete price-fixing scandal on local consumers. The lengthy story is headlined "Concrete price-fix case vexes helpless consumers: State has no law offering recourse for homeowners." Some quotes:

If Greg Johns didn't live in Indiana, he might be suing ready-mixed concrete firms for spiking the price of his patio and driveway by illegally fixing prices.

But because Indiana's legislature has not passed a law like those in more than 25 other states, Johns, a Brownsburg resident, has done nothing. He has no legal option to see whether he was gouged or to recover any damages.

Johns, who spent $2,450 on a driveway and patio in 2003 and 2004, is in the same situation as the state of Indiana, the city of Indianapolis, Indianapolis International Airport and countless businesses and individuals.

All of them purchased concrete from July 2000 to May 25, 2004, when federal investigators say Indianapolis-area concrete firms colluded to fix prices for nearly all buyers of ready-mixed concrete.

Five of the largest local firms have been snared in the federal price-fixing investigation. Irving Materials, Shelby Materials, Builder's Concrete & Supply and Carmel Concrete Products have admitted guilt. Beaver Gravel was indicted but has denied guilt.

But because Johns, the state and the city all bought concrete through construction contractors -- not directly from concrete firms -- they are disqualified from suing the concrete firms, according to a 1977 decision by the U.S. Supreme Court.

"It was pretty easy for me to see that I probably paid an inflated price, indirectly," said Johns. Irving Materials provided the concrete for Johns' patio through a contractor, Cornerstone Concrete Services. Johns said he would sue Irving Materials if he could. * * *

The Supreme Court's ruling, known as the Illinois Brick decision, said federal law only allows direct purchasers -- such as construction contractors -- to recover damages. But the ruling did permit states to pass their own laws, in effect repealing the Illinois Brick decision.

Indiana hasn't done so. And when Rex Joseph, attorney for the Indianapolis airport, learned that, he was upset. "I wanted to do everything we could" to recover damages, Joseph said. He would not divulge how much concrete the airport had purchased during those four years.

To date, more than half of the 50 states have passed Illinois Brick repealer laws in various forms, according to the American Antitrust Institute.

It appears that Indiana legislators have never considered such a move. Bob Garton, the longtime leader of the Indiana Senate, remembers no such proposal. Neither does Rep. Pat Bauer, the House Democrat leader from South Bend.

I've underlined the phrase above because the "how" in allowing consumers to recover damages is problematic. The Star story continues:
"It would seem, however, that if you got cheated you ought to have a right to recourse in a court of law," [Rep.]Bauer said.

Most folks in the American legal community agree. Where they do not agree, however, is how many pounds of flesh customers should be able to exact from their price-fixing suppliers.

Currently, federal law allows direct customers to recover triple damages from their suppliers in a price-fixing case. That's what 27 Indiana construction contractors are seeking in a lawsuit they are pressing against Indianapolis-area concrete firms.

Indianapolis attorney Irwin Levin and his law firm, Cohen & Malad, are leading the suit, along with Houston attorney Stephen Susman. The suit is pending in federal court in Indianapolis against the five firms that have been named in the federal probe and two others that have not: American Concrete and Prairie Material Sales.

What defendants fear is that the Illinois Brick repealer laws could make them pay triple damages twice: first to direct purchasers like the construction contractors and second to end customers like Greg Johns.

"You can't get double recovery," said Dan Kelley, an [Ice Miller] attorney representing Irving Materials in the civil lawsuits against it. Kelley said an Illinois Brick repealer statute "creates a mess" of litigation and the possibility for individuals and business far removed from the price fixing to claim some sort of damage.

"Defendants are unhappy. There's the very real possibility of paying treble damages to direct purchasers and then turn around and pay treble damages to indirect purchasers," said Stephen Calkins, a law professor at Wayne State University and the former general counsel of the Federal Trade Commission.

But that argument is misleading, said Robert Lande, a law professor and cartels expert at the University of Baltimore. Past price-fixing lawsuits have almost all settled for amounts roughly equal to the amount of gouging.

In addition, he said, economists have developed sophisticated models to determine how much the various customers were gouged. In that way, Lande said, a judge could determine how much money to award construction contractors and how much to award end customers with new patios.

"No settlement has ever come out to be more than three times damages," Lande said. If companies guilty of price-fixing made the laws, he said, "no one would have an incentive to sue."

Here is an edited version of Illinois Brick Co. v. Illinois, 431 US 720 (1977).

This is the stuff of law journal articles. Here, for instance, is one from the St. John's Law Review that begins:

Few questions in antitrust law have proven to be as challenging as whether "indirect purchasers" should be authorized to seek damages for antitrust violations. Despite the seemingly unqualified language of section 4 of the Clayton Act, which creates a treble damage private right of action for "any person" injured in her business or property by virtue of an antitrust violation, indirect purchasers have been barred from seeking damages in federal court since the Supreme Court's 1977 decision in Illinois Brick Co. v. Illinois. At the same time, many such indirect purchasers, often consumers, have been authorized to seek the very relief barred in federal court under analogous but more expansive state antitrust laws. The Supreme Court specifically endorsed this dual-remedial scheme when, in California v. ARC America Corp., it rejected arguments that Illinois Brick effectively preempted broader state antitrust remedies.
And here is a 2002 article from the Antitrust Institute marking the 25th anniversary of "the Supreme Court’s famous Illinois Brick decision."

Posted by Marcia Oddi on Saturday, May 20, 2006
Posted to Indiana Law

Ind. Decisions - Appeals court rules for medical waste plant

"Appeals court rules for medical waste plant" is the headline to a story today by Andy Grimm in the Gary Post-Tribune. Some quotes:

GARY — The state Court of Appeals on Friday overruled a local judge’s ruling that would have shut down a controversial medical waste processing plant in the city.

In an opinion drafted by Judge Terry Crone, the appeals court ruled that approval from Lake County officials was not needed when Midwest Medical Solutions opened a plant to process medical trash at a site near Interstate 65 and 15th Avenue. The plant is the first of its kind in the state, and has drawn protests from activists and a coalition of churches.

The 3-0 decision by the court overrules Lake County Superior Court Judge Robert Pete’s 2005 opinion that the state should not have granted a permit for the plant in 2000 because county officials had not determined the local need for a facility.

“The judges did what was right,” Midwest owner Russ Karlins said. “We had an administrative law court ruling in our favor earlier, and the issues have been clear-cut the whole time.” * * *

Midwest won a stay to continue its operation even after Pete ordered the plant to shut down a year ago, and Karlins said they have continued to upgrade machinery at the plant during the lawsuit. “We’re here to stay,” he said. “We’re not going anywhere.”

A coalition of churches has protested the plant and plans by Abrade Technologies to open a similar facility in East Chicago, claiming the owners have targeted the two cities because the residents are mostly poor minorities less likely to resist.

County officials voiced concerns that if the state alone controls the permitting process, Northwest Indiana would become a prime location for medical trash from across the Midwest.

The county Solid Waste Management Board voted unanimously in October to amend county regulations to block medical waste plants from locating in the county.

Read the ILB summary of yesterday's opinion, IDEM and Midwest Medical Solutions v. Lake Co. Solid Waste Management District, here.

Posted by Marcia Oddi on Saturday, May 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on the toll road statute challenge

Final briefs were submitted Friday in the challenge to the constitutionality of the statute permitting the lease/sale of the Indiana Toll Road. Tom Coyne of the AP has this story. Some quotes:

SOUTH BEND, Ind. (AP) -- Lawyers for the state argued Friday that those seeking to block Gov. Mitch Daniels' plan to lease off the Indiana Toll Road to private operators have failed to prove the 75-year deal is unconstitutional.

"Merely raising questions about some elements of some claims is not sufficient. Plaintiffs must prove a likelihood of success on the merits for an entire claim," lawyers for the state argued in briefs filed in St. Joseph Superior Court.

Attorneys for the challengers, though, argued that the provisions in articles 10 and 11 of the Indiana Constitution were designed to prevent "precisely the sort of 'public/private' partnership involved in this case" and urged Judge Michael Scopelitis to allow the case to move forward.

The arguments contained in the briefs filed Friday cover many of the same arguments presented during two days of hearings and other filings since the lawsuit was filed last month.

Scopelitis has not said when he will issue a ruling. He did say he would read the post-hearing briefs over the weekend. He has said if a full hearing is needed it could be held the first week in June. * * *

The biggest question pending before Scopelitis for now is whether the case is a public lawsuit. If he rules it is, the challengers - seven individuals along with the Citizens Action Coalition of Indiana - might have to post a bond of up to the $3.8 billion a Spanish-Australian consortium is to pay for control of the northern Indiana highway.

Attorneys for the challengers contend they should not have to post a bond because the Indiana Finance Authority - the state agency executing the lease - is not covered by the public lawsuit statue. * * *

The challengers also contend the lease calls for the state to treat the lease as a sale, which they contend is illegal.

"Although the transaction is characterized as a 'lease' or 'concession,' it is agreed to be a 'sale' for federal taxation purposes," the plaintiffs say.

But state lawyers argued the "contention that the toll road is being sold is frivolous."

"Possession is being transferred, not ownership, and only temporarily and subject to extensive ongoing restrictions," the state's lawyers wrote.

The ILB will attempt to obtain copies of the briefs, and a copy of Judge Scopelitis' decision, as soon as it is issued.

For background, start with this May 16th ILB entry.

Posted by Marcia Oddi on Saturday, May 20, 2006
Posted to Indiana Courts

Friday, May 19, 2006

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending May 19, 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 May 19, 2006.

Posted by Marcia Oddi on Friday, May 19, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending May 19, 2006

Here is the Indiana Supreme Court's transfer list for the week ending May 19, 2006.

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, May 19, 2006
Posted to Indiana Transfer Lists

Ind. Gov't. - Follow-up on: Lake County printing contracts questioned

Some readers may recall the series of entries late last year on Lake County printing contracts. This Feb. 27th, 2006 ILB entry provided a recap. Today the Gary Post-Tribune, in a story by John Byrne, reports:

CROWN POINT — All bidders for Lake County government contracts are not treated equally.

Companies vying for a bridge reconstruction contract worth hundreds of thousands of dollars recently were given the opportunity to resubmit their proposals to correct slight problems: a missing form for Dyer Construction, a bid turned in late for Ellas Construction of Gary.

Eddie Shonk wishes he had been given the same opportunity.

Shonk, owner of A-1 Union Graphics, lost the county’s 2006 printing contract to a higher bidder, Haywood Graphics of Lafayette, because he failed to sign his name to a document in his bid packet.

Two other Lake County printing firms saw their bids, which were also lower than Haywood’s, rejected for the same reason.

When Shonk turned in his 2006 bid in February without a signature on a contract binding A-1 to complete the work if chosen, county attorney John Dull said the Hammond firm had to be taken out of the running.

Yet the Board of Commissioners said they allowed companies to rebid to rebuild the 171st Avenue bridge over Cedar Creek to be sure they got a proposal for the lowest cost possible.

“The bids were too high before,” Commissioner Gerry Scheub said. “By rebidding this, we saved the county probably $200,000.” * * *

But Shonk points out he, too, could have saved Lake County taxpayers money, had he been given another chance to write his name on the bid contract.

A-1 bid a total of $13,582 less than Haywood for three contracts to prints forms and booklets for various Lake County government offices.

P&H Printing of Whiting bid $22,889 less than Haywood for another contract, but also got rejected for failure to correctly fill out the contract.

Dull acknowledged the county applied a double standard to the two sets of contracts.

“We were inconsistent,” Dull said. “We will try to be consistent in the future.”

Posted by Marcia Oddi on Friday, May 19, 2006
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues two today

In the Matter of Adoption of C.E.N. - adoption, affirmed

In IDEM and Midwest Medical Solutions v. Lake Co. Solid Waste Management District, a 28-page opinion, IDEM granted a permit to Midwest for an infectious waste autoclave, a solid waste processing facility. The county solid waste district objected. In the administrative appeal, the Office of Environmental Adjudication ruled for IDEM and the permitee. The trial court reversed. In this appeal, Judge Crone writes:

Case Summary. The Indiana Department of Environmental Management (“IDEM”) and Midwest Medical Solutions, LLC (“Midwest”), appeal the trial court’s reversal of a judgment of the Office of Environmental Adjudication (“OEA”) in favor of IDEM and Midwest and adverse to the Lake County Solid Waste Management District (the “District”). We reverse.

Issues. IDEM and Midwest raise three issues:

I. Whether the trial court erred in reversing the OEA’s judgment and concluding that IDEM must wait on a local waste management district to decide whether there is a “local” need for a waste processing facility before IDEM can issue a facility permit;

II. Whether the trial court erred in ordering Midwest to appear before the District and submit materials to demonstrate that a “local need” exists for its permitted and operating medical waste processing facility; and

III. Whether the trial court erred in determining that Midwest had not demonstrated a “local need” for a solid waste facility when this fact-based issue was never before the OEA.

* * *

I. Must IDEM Wait for the District’s Determination of Need? * * * A plain reading of these sections reveals no requirement that IDEM either solicit a district’s local determination of need or suspend review of an application upon a district’s request to perform its own determination of needs. * * * To adopt the District’s viewpoint to the contrary would be to rewrite the sections, as well as to render meaningless both the “or regional need” language of Indiana Code Chapter 13-20-12 and the relatively newly enacted Indiana Code Section 13-21-3-14(a)(5). This is not to say that a district’s voice is meaningless in the permitting process. Rather, districts may play an advisory role if they so choose. * * * To endorse the District’s interpretation would be to create a veto-type power in local districts over regional matters and/or to leave no method for resolving conflicting need determinations among neighboring districts. Indefinite delays could result. The District’s construction would also be inconsistent with the interpretation utilized by IDEM, the entity that regularly administers the permit process. * * * In concluding that a statewide permitting scheme exists and that IDEM is the ultimate decision-maker regarding local and regional need, we do not leave districts without any purpose. Rather, each district makes local solid waste general policy by adopting a solid waste management plan and by serving an advisory role in permitting. * * *

II. Must Midwest Appear Before the District and Submit Materials Demonstrating Local Need? * * * As should be clear from our resolution of Issue I, supra, Midwest will not be forced to appear before the District to demonstrate need. * * *

III. Did the Trial Court Err in Determining That There Was No Local Need Demonstrated? * * * Having already concluded in Issue I that reversal of the trial court’s order is required, we need not address Issue III at length. However, for clarity’s sake, we note that since IDEM’s determination was supported, the trial court’s order usurped IDEM’s power by reweighing evidence. See Boone County, 803 N.E.2d at 271; see also Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994) (landfill case wherein Court noted IDEM’s broad power to grant or deny permits “even where it is unclear that there exist any rational means for reaching a decision.”). We also agree that in failing to raise earlier the issue of whether Midwest demonstrated a need, the District waived the issue. See Save the Valley, Inc. v. Ind.-Ky Elec. Corp., 820 N.E.2d 677, 679 n.3 (Ind. Ct. App. 2005) (explaining that an argument not made before the OEA deprives opposing party of opportunity to defend and thus waives the argument), reh’g granted on other grounds by 824 N.E.2d 776; see also Turner v. Stuck, 778 N.E.2d 429, 432 (Ind. Ct. App. 2002) (discussing judicial estoppel). Reversed.

Posted by Marcia Oddi on Friday, May 19, 2006
Posted to Administrative Law | Environment | Ind. App.Ct. Decisions

Law - Nation's leading class-action securities law firm, Milberg Weiss Bershad & Schulman, and two of its partners, indicted

"U.S. Indictment for Big Law Firm in Class Actions" is the headline of a front-page story today in the NY Times. The story begins:

The nation's leading class-action securities law firm, Milberg Weiss Bershad & Schulman, and two of its partners were charged yesterday with making more than $11 million in secret payments to three individuals who served as plaintiffs in more than 150 lawsuits.

The indictment is the first instance of a law firm with national reach facing criminal charges, and it could prove to be a fatal blow for the firm. The lawsuits cited in the indictment spanned two decades, occurring as recently as 2005, and generated some $216 million in legal fees for the firm.

Its lucrative business made Milberg Weiss a target for political critics who saw the firm as a symbol of a national litigation industry that had gone out of control. These critics said that many of the firm's lawsuits against corporations were frivolous, raising the cost of doing business.

The critics contended that investors, for the most part, saw only pennies on the dollar from any recoveries won by the firm. In the 1990's, Congress raised the legal hurdle for such lawsuits in large part in response to Milberg Weiss. Even so, the firm continued to thrive.

Posted by Marcia Oddi on Friday, May 19, 2006
Posted to General Law Related

Thursday, May 18, 2006

Law - Kentucky Supreme Court decides pardon question

The Kentucky Supreme Court ruled today that the Governor indeed can preemptively pardon his appointees, thereby protecting them from indictment. (You can find earlier ILB entries by typing "Fletcher" in the search box.)

Here is the initial Louisville Courier Journal story. Some quotes:

FRANKFORT, Ky. — The Kentucky Supreme Court ruled Thursday that the special grand jury investigating Fletcher administration hiring practices cannot indict people covered by the broad pardon the governor issued last August.

The decision does not affect last week’s indictment of Gov. Ernie Fletcher because he specifically excluded himself from his pardon.

But the ruling means the grand jury can return no more indictments of anyone other than Fletcher for alleged violations of the state merit system law before or on the Aug. 29 date of the pardon. * * *

In the Supreme Court's ruling, each of the six justices sitting in the case wrote an opinion. And on the main question of whether the grand jury can return indictments against persons covered by the pardon, the vote was 4-2 with Johnstone joined in the majority by Special Justice Ronald Green and Justices William Graves and Will T. Scott.

Justices who dissented were William Cooper and Donald Wintersheimer.

In his 53-page opinion, Cooper agreed with the arguments made by the Attorney General’s office that a governor must not be allowed to use his pardon power to thwart an investigation into corruption of his administration.

“Dead kings of England would rise from their graves ... if they knew that one (though only one) jurisdiction of the Anglo-Saxon legal tradition has finally espoused their cause and rolled back hundreds of years of anti-corruption jurisprudence, including the hard-won independence of the grand jury,” Cooper wrote. “And history will not forget nor fondly remember the day that the Supreme Court of Kentucky put its imprimatur on a governor’s scheme to cover up alleged wrongdoing within his administration by granting a blanket pardon to all persons under investigation by a sitting grand jury.” * * *

When Fletcher appealed case to the Supreme Court, two justices disqualified themselves -- John Roach, who had previously served as Fletcher’s general counsel, and Chief Justice Joseph Lambert, whose former assistant Jim Deckard is currently Fletcher’s general counsel.

That gave Fletcher the opportunity to appoint two special justices to hear his case.

Fletcher appointed Green, a Lexington lawyer, and Jeffrey Burdette, a circuit judge from Rockcastle County. Both Green and Burdette had previously contributed to political campaigns of Fletcher. Burdette gave $1,500 to Fletcher’s 2003 campaign for governor. Green gave $2,800 to Fletcher’s previous congressional campaigns.

After the Attorney General’s office asked that the two be removed because they had been Fletcher supporters, Burdette stepped aside. Burdette said his past contributions could be perceived as a possible conflict. But Green remained, saying he did not give to Fletcher’s campaign for governor and was not involved in state contracts held by his law firm.

As a result, the case was heard by six justices as opposed to the normal seven.

Here is the 112-page ruling.

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to General Law Related

Ind. Gov't. - Why can't we do this in Indiana?

The Ohio Channel ("A Serivce of Ohio's Public Broadcasting Stations") has the most incredibly cool governmental site I have seen!

Take a look! You can watch live video streams of the Ohio House, Senate, and Supreme Court.

Better still, there are archives. REAL ARCHIVES. The Ohio leadership presumably doesn't have the concerns the Indiana legislative leadership has expressed about providing an accessible record of its work to the public.

The Senate video archive goes back to 1997. For every day the Senate has been in session from 1997 forward, you can view the entire session day, or select portions, because the broadcast is indexed! Here is an example of the index of part of one day:

November 12, 1997 : Segment #1
11:00 Am Convene Session/Invocation Rev. Dorothea Maloney
11:02 Am Journal of Previous Day
11:02 Am SR #2383
Resolution Sage Regger, Drake
11:08 Am Reports
11:14 Am SB #98 [Sub] [Amend]
Third Consideration Johnson
11:17 Am SB #116 [Sub] [Amend]
Third Consideration
11:18 Am SCR #10
Third Consideration Dix
Here is Tuesday, May 24, 2004 in the Ohio Senate -- take a look at how simple it is to watch.

In the future, the site will also have podcasts.

(BTW - Each Senate day opens with a prayer -- the ones I've watched are nonsectarian and would have received Judge Hamilton's blessing.)

[Thanks to the Kentucky Law Blog for pointing out the Ohio site.]

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Indiana Government

Ind. Courts - Is closure of federal courthouses in Terre Haute and Lafayette in the works?

Lafayette attorney and blogger Doug Masson has posted this notice from the Tippecanoe County Bar Association:

[T]here are efforts being made by the Administrative Office of the United States to close the federal courthouses in Terre Haute and Lafayette. This means the loss of the U.S. District Court, the U.S. Bankruptcy Court, the U.S. Probation office, and Judge Kanne’s chambers. The rationale for the proposed closing is, in large part, the rental cost the courts must pay to the General Services Office for the use of the building, e.g., one federal agency paying another. . . .

If closed, federal cases and bankruptcies would need to be filed and handled in Hammond or possibly South Bend. This would be devastating not only to lawyers in Tippecanoe and surrounding counties, but also to the public at large. The necessity of travel to Hammond or South Bend would cause a significant loss of business for the local attorneys and greatly increased costs for our clients.

Closure of the Terre Haute court has been in the works for some time, the building was sold to, if I recall coreectly, the post office.

But these ILB entries from April 8th and April 11th indicated that city officials in Terre Haute had hopes of finding a new location for the court.

This is the first word I've heard of Lafayette.

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Indiana Courts

Ind. Decisions - Yet another decision posted by Supreme Court today

(Fortunately, Michael Ausbrook developed RSS links for the Court site, as the ILB has generally checked the site only once a day, in the morning, when Court of Appeals decisions are posted all at once -- as Supreme Court opinions have been in the past...)

In Scott S. Holder v. State of Indiana, a 13-page opinion Justice Dickson writes:

In this interlocutory appeal, the defendant, Scott S. Holder, challenges the trial court's denial of his motion to suppress evidence of a methamphetamine laboratory, finished metham-phetamine product, and reagents and precursors of the drug found in his home and on his person on January 14, 2003. He was charged with four counts related to the manufacture and possession of the drug and paraphernalia, one count of maintaining a common nuisance, and one count of neglect of a dependent. The Court of Appeals reversed. Holder v. State, 824 N.E.2d 364 (Ind. Ct. App. 2005). We granted transfer, Holder v. State, 831 N.E.2d 745 (Ind. 2005), and we now affirm the trial court's denial of the defendant's motion to suppress. * * *

We conclude that evidence supports the trial court's denial of the defendant's motion to suppress based upon his claimed violation of Art. 1, § 11.

Having previously granted transfer, we affirm the trial court's denial of the defendant's motion to suppress evidence of the methamphetamine manufacturing operation conducted in his home. The police conduct did not violate the illegal search and seizure provisions contained in either the Fourth Amendment to the United States Constitution or Art. 1, § 11, of the Indiana Constitution.

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court posts a second ruling today

In Northern Indiana Public Service Company v. John S. Bloom, a 17-page opinion (with Justice Dickson's concurring opinion beginning on p. 16), Justice Boehm writes:

We hold that self-insurers are statutorily liable to pay damages caused by the negligence of permissive users of their vehicles up to the minimum amounts required by the Financial Responsibility Act. We further hold that a self-insured employer who furnishes its vehicle for use by an employee has a duty to inform its employee of the limits of the employer’s statutory obligation to third parties and the employee’s potential exposure for negligent operation of the vehicle. We conclude that failure to perform this duty imposes an obligation to indemnify and defend the employee against liability arising out of the employee’s permissive use of the employer’s vehicle, and precludes the employer from asserting indemnity or subrogation rights against the employee. * * *

Conclusion. The order of the trial court that is the subject of this interlocutory appeal is vacated. This case is remanded for further proceedings consistent with this opinion.

Shepard, C.J., Sullivan and Rucker, J.J. concur.
Dickson, Justice, concurring.

I agree with the Court's conclusion that the present language of the Indiana Financial Re-sponsibility Act does not "make a self-insurer a quasi-insurance carrier and require it to indemnify a permissive user," slip opin. at 9, and that permissive users are not the "insureds" of self-insurers, slip opin. at 12. As a result of today's opinion, it is reasonable to anticipate that self-insured employers providing vehicles for use by an employee or an employee's designee will likely issue advisements including warnings of the minimum coverage limits provided by self-insured employers and the risks of a permissive user's personal liability to indemnify or reimburse any liability payments made by the self-insurer to persons injured by the negligence of the permissive user. Thus understood and applied, however, the statute may present substantial issues that invite legislative attention, or, if none, common law response.

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Court intervention sought in election equipment dispute"

Mike Smith of the AP reports today:

INDIANAPOLIS - An election-equipment provider wants a judge to disqualify Secretary of State Todd Rokita from overseeing proceedings to determine whether it broke state law by selling or installing uncertified voting equipment in numerous Indiana counties.

Rokita had scheduled a hearing Wednesday involving Indianapolis-based MicroVote General Corp., but it was canceled after the company filed a petition in Marion Superior Court asking a judge to intervene.

The petition, filed Friday, says Rokita has made public and private statements that show he is biased in the dispute and should not be allowed to act as an administrative law judge. It also says transcripts from a meeting by the Indiana Election Commission should be disallowed as evidence in the inquiry because they were unreliable and the meeting did not meet legal requirements.

Rokita has been investigating MicroVote and Omaha, Neb.-based Election Systems and Software for possible violations of state election law. He says state law allows him to be the ultimate judge in such administrative cases. * * *

The petition seeking judicial review claims that Rokita should be disqualified from the proceedings because he had made frequent public comments concerning MicroVote, including "how to hurt companies through their pocketbooks." It said Rokita made disparaging remarks about the company to a county clerk, and had indicated before proceedings were finished that he intended to rule against MicroVote.

The petition also said that the Election Commission transcripts were "almost impossible to follow, in that persons spoke over each other without designation of which person was speaking," and that some sections were inaudible. It said the meeting was not conducted according to state law because MicroVote was not represented by an attorney or given a chance to offer testimony.

"It was not really a formal hearing," said John Price, an attorney for MicroVote. "It was more like an informal meeting in which a bunch of people talked to each other."

Price said that no laws were broken because all of the MicroVote equipment in question had been certified before the election. To violate the law, he said, uncertified equipment would have to be used, and it was not.

"MicroVote had an almost flawless election in 47 counties with certified equipment," he said. "Where there is no harm, there is no foul."

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Indiana Government

Ind. Decisions - Court of Appeals decides three today [Updated]

In Jermaine Coleman v. State of Indiana, a 16-page opinion (Judge Vaidik's concurrance in result begins on p. 12), Judge Riley writes:

STATEMENT OF THE CASE. Appellant-Defendant, Jermaine Coleman (Coleman), appeals from the trial court’s denial of his Motion to Suppress. We reverse.

ISSUE. Coleman raises one issue on appeal, which we restate as: Whether, under the Fourth Amendment to the United States’ Constitution and Article I, Section 11 of the Indiana Constitution, the police officers legally obtained evidence in a stop and search of Coleman. * * *

Thus, we conclude that predominately unsubstantiated tips like the one here either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. See id. at 119. Accordingly, in such cases where the record shows that the police officers acted in a hurried fashion and did not take the time to carefully substantiate a tip, we find the exclusionary rule especially appropriate. * * *

DARDEN, J., concur.
VAIDIK, J., concurring in result with separate opinion. [which begins]

I respectfully disagree with the majority’s conclusion that the police officers lacked reasonable suspicion to stop Coleman based on the confidential informant’s tip. But because the cocaine found in Coleman’s car was the result of an invalid search, I agree with the majority that the cocaine from Coleman’s car must be suppressed.

In John S. Paniaguas, et al. v. Endor, Inc., et al., an 11-page opinion, Judge Darden concludes:
Because Appellants failed to state a breach of contract claim upon which relief can be granted, the trial court did not err by granting Aldon’s motion to dismiss.
The Munster (NW Indiana) Times 5/19/06 story on this ruling reports:
CROWN POINT | The Indiana Court of Appeals has upheld the dismissal of a suburban Lake County developer from a lawsuit by two Crown Point families over the quality of home construction. * * *

The two families bought homes from Aldon Cos., a suburban Lake County firm, in the 1990s in Fieldstone Crossings, a subdivision near 93rd Avenue and Buchanan Street on the city's north side. In 2002, Aldon sold the land to Endor Inc., a Crete-based developer.

The two families argue the value of their homes are being hurt by inferior workmanship and materials used in the newer homes.

The appeals court sided with Aldon, ruling Aldon didn't have a duty to ensure a new developer would build houses in the subdivision that would be to the two families' liking.

S.D. v. State of Indiana - delinquency determination, affirmed

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides property tax case today

In Wayne County Property Tax Assessment Board of Appeals v. United Ancient Order of Druids-Grove #29, an 8-page opinion, Justice Boehm writes:

We hold that Indiana Tax Court Rule 3 and the provisions of the Administrative Orders and Procedures Act (“AOPA”) governing the timing for filing the agency record in appeals of property tax assessments do not conflict. AOPA provides that filing of the record to permit judicial review of an agency action is timely if, among other things, the court allows an extension of the time provided by AOPA. We conclude that a filing in compliance with Tax Court Rule 3 is within “further time allowed by the court” as AOPA contemplates. * * *

Conclusion. The order of the Tax Court is affirmed. This case is remanded for resolution on the merits.

This discussion of court rules vs administrative rules is interesting:
The Taxation Section of the Indiana Bar Association, as amicus curiae, argues that Rule 3(E) is “other law,” allowing additional time to file the record. This contention proceeds from the generally valid premise that rules of this Court have the force and effect of law and are binding upon courts and parties. This Court is empowered to adopt rules of procedure for all Indiana courts, including the Tax Court. See I.C. § 34-8-1-3 (“The supreme court has authority to adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana”). Although rules of court may be “law” for many purposes, the definitions section of AOPA, Indiana Code section 4-21.5-1-7, defines “law” as “the federal or state constitution, any federal or state statute, a rule of an agency, or a federal regulation.” Rules of a court, including Rule 3(E), are not any of these, so we do not agree that the “other law” provision accomplishes what the amicus argues.

Although we do not find the “other law” provision to encompass court rules, we also do not believe that by its statutory definition of “other law,” the General Assembly intended to preclude a court promulgated rule from providing time in addition to that afforded by AOPA. AOPA provides a set of default procedural rules applicable to judicial review of a wide variety of administrative actions. AOPA’s provision for “other law” in section 13 recognizes that there may be a need to tailor the default rules to meet the need of a particular administrative agency. Similarly, the statute expressly authorizes the reviewing court to extend its time limits. A filing is timely if within the “further time allowed by the court.” We see no reason why “further time” could not be “allowed” by rule applicable to categories of cases, given that it can be done by order in individual cases. [some citations omitted]

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Ind. Sup.Ct. Decisions

Law - Illinois "Gov's 'clout-busting' lawyer muzzled "

A fascinating story today in the Chicago Sun-Times. Some quotes:

At his first press conference as governor, Rod Blagojevich announced he was bringing in a clout-busting lawyer to help take politics out of state hiring.

But now the governor doesn't want her talking about what she did.

His lawyers are keeping attorney Mary Lee Leahy from answering questions about whether 17 state employees were bounced in 2004 because of their political ties.

Blagojevich insisted in federal court filings that politics "was not considered in any way" in the layoffs. Administration officials said they simply saved taxpayers money by eliminating 190 jobs in the Illinois Department of Transportation.

Here is the fascinating part, which is found at the very end of today's story:
Blagojevich trumpeted Leahy's role with his administration in January 2003. A press release described her as "renowned for her work specializing in ethics and personnel issues" and said she was under contract "to revise state hiring rules and to find unnecessary and unqualified personnel."

Leahy was the lead attorney in the historic Rutan decision of the early 1990s that clamped down on state patronage. The decision established a small percentage of state jobs in which politics can factor into hiring decisions -- especially for high-level administrative posts -- but made most jobs immune from political influence.

The caption to a photo accompanying the story reads:
Gov. Blagojevich is accompanied by Lt. Gov. Pat Quinn and lawyer Mary Lee Leahy at the state Capitol on his first full day in office, Jan. 14, 2003. Leahy was hired to help take politics out of state hiring, but she was gone by the end of 2003.
More from the story:
During an April 20 deposition made public this week, Leahy was repeatedly barred from talking about her job.

"It's our view that those questions violate . . . the attorney-client privilege," said Matthew Devine, a lawyer for the Chicago firm of Jenner & Block, which the administration hired to defend Transportation Secretary Timothy Martin and two of Martin's employees, Michael R. Stout and Scott Doubet.

Attorneys for the laid-off workers say the administration is muzzling Leahy because it broke rules designed to make sure politics is not a factor in the overwhelming majority of state jobs. The federal government has been investigating state hiring since last fall, when a wave of subpoenas hit the administration.

Reached Wednesday, Leahy said she could not discuss the matter until a judge ruled on the workers' motion to compel her to answer their questions. The state had not filed a response to the motion as of Wednesday night, and attempts to reach lawyers at Jenner & Block were unsuccessful.

For more on Rutan v. Republican Party of Ill., 497 U.S. 62 (1990), see the 7th Circuit opinion from Nov. 24th, 2004 summarized in this ILB entry from the same date (3rd item). Some quotes from the 2004 opinion:
Plaintiff Thomas Hall has brought this suit on the basic premise (with which few would disagree in the abstract) that political patronage is not yet dead in Illinois. * * *

It is well established that hiring, firing, or transferring government employees based on political motivation violates the First Amendment, with certain exceptions for policy making positions and for employees having a confidential relationship with a superior. See Rutan v. Republican Party of Ill., 497 U.S. 62, 65, 71 n.5 (1990); Elrod v. Burns, 427 U.S. 347, 367, 375 (1976).

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to General Law Related

Ind. Law - Stories today from Lake County

The Munster (NW Indiana) Times has four law-related stories today of interest. My favorite first, headlined "Suit irks local officials: County ponders evicting rent-free Bar Association if agreement can't be reached." The story by Bill Dolan begins:

CROWN POINT | Lake County officials, stung by what they consider ingratitude, are having second thoughts about whether to let a group of lawyers remain as rent-free guests on public property.

"I've always had concerns about this," County Commissioner Frances DuPey, D-Hammond, said at Wednesday's Board of Commissioners meeting, where officials discussed a lawsuit filed against the county by Vernita Cole, executive director of the Lake County Bar Association.

"We give (the bar association) free rent, and we take all of the responsibility," she said.

The bar, a professional association of more than 700 lawyers that provides a lawyer referral service to the public, has offices in the County Government Center.

Cole, who works in the bar's office here, claims she injured her legs after falling while on an exterior stairway two years ago. She filed suit last month in order to collect up to $300,000 from her employers and county commissioners.

Commissioners take a dim view of the lawsuit, as does County Attorney John Dull, who is defending the county.

"I'm confident we are going to win this, but it costs (money) to defend these kinds of things," Dull said Wednesday.

He and commissioners discussed having Bar Association employees sign an agreement saying they won't sue the county over such incidents.

County Commissioner Gerry Scheub, D-Schererville, said, "The bar association has to hold us harmless. Otherwise, we have a problem with them remaining here."

"Local attorney takes Winfield plan post" is the headline to this story. A quote:
WINFIELD | A local attorney has been named the new part-time zoning administrator/planner for the town of Winfield. * * *

Town Councilman Bill Teach said his biggest concern -- and the most obvious -- is that Ryscamp has no formal education in the field of zoning, building and planning.

"He has no practical experience," Teach said. "He's taken a job in a town that's growing like crazy with contractors knocking on the door. I'm worried that we may have put him in over his head."

Teach was the lone vote against the appointment.

"Hobart mayor pushes new home for court" is the headline to this story. Some quotes:
HOBART | Hobart Mayor Linda Buzinec has been trying to find new home for city court for nearly a decade. "It's very much a necessity," Buzinec said. * * *

Now, city officials are discussing moving the court to the current site of the Hobart Middle School, 705 E. 4th St., as part of a new government complex proposed for the property.

"Who pays the legal tab? M'ville officials can't seem to agree" is the headline to this story about the continuing dispute between the Merrillville Town Council and Clerk-Treasurer Rose Ann Antich "about which side is responsible for payment of a legal bill." Some quotes from the story by Deborah Laverty:
The Town Council and Antich have been at odds since last month when Antich first presented to the Town Council a $4,468 bill from legal service provided to her office by Gunning.

Antich, who late last year replaced former Clerk-Treasurer John Petalas, said she hired Gunning as her legal counsel to set up policies and procedures in her office.

Both sides seem to agree that Antich is entitled to her own legal counsel but not on who should pay for it.

"The town shall pay the bill. They don't have a choice," is Gunning' interpretation.

Gunning during the meeting explained at length why the clerk-treasurer is entitled under state law to have separate legal counsel primarily due to any potential conflict of interest between her and the Town Council

And he said Bower's comment during the meeting about not agreeing with his legal opinion demonstrates his point.

"When the town attorney said he disagreed that is a classic conflict of interest and a reason why she needs her own attorney," he said.

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - New Albany lawsuit seeks new council districts

"Lawsuit seeks new council districts: New Albany plaintiffs cite population rules" is the headline to a story today by Ben Zion Hershberg in the Louisville Courier Journal. Some quotes:

Twenty residents have sued New Albany and its City Council for failing to reconfigure the six council districts to have equal numbers of residents.

The lawsuit says state and federal laws require such districts to be about equal in population. It also says the districts should have been redrawn by 2002 based on the U.S. Census in 2000. * * *

Based on 2002 figures, the lawsuit says, the biggest disparity is between the 2nd District, with 7,481 registered voters, and the 1st, with 3,993. The number of voters registered in the other districts range from 5,030 to 4,230.

The suit was filed Tuesday in U.S. District Court in New Albany. * * *

Stephen Beardsley, the lawyer who filed the suit, said he was first approached by one of the plaintiffs in the fall. He said the legal issues are clear-cut, and he hopes the court can have a fair redistricting plan in place by the fall, well before next year's city elections.

"I'm not aware of any agenda" the clients might have, Beardsley said, other than following voting law. Council members "have a duty here and they failed to do it," he said. * * *

Luis Fuentes-Rowher, who teaches election law at the Indiana University School of Law in Bloomington, said that the lawsuit raises a legal issue and that he would be surprised if a judge doesn't order redistricting.

But it is unusual for such a lawsuit to be filed so long after the last census and to cite statistics for registered voters rather than population, Fuentes-Rowher said.

As for allegations that the suit is politically motivated, Fuentes-Rowher said that "these cases are so politically charged, they are called Trojan horse cases," because there always is a hidden agenda.

But that doesn't change the fundamental legal issue, he said.

This issue sounded familiar to me so I did a little research. Check out this ILB entry from August 12, 2004 (dealing with county commissioner rather than city council districts), which begins:
Is the election of county commissioners in Washington County, Indiana illegal? That was the question posed in a federal suit filed in May by a resident of Salem, Indiana (located in Washington County). Access the May 9th Indiana Law Blog entry here. According to an Indianapolis Star story published at the time: "Mead cites an Indiana law that required all counties to perform redistricting in 2001. The suit claims that Washington County has not done so and that the populations of its districts are not equal. The commissioners said redistricting is not required for Washington County."

The answer, according to a ruling by federal district court Judge David F. Hamilton, Angela Mead v. Washington County Commissioners, issued 8/2/04, is that the election is valid.

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Indiana Law

Ind. Courts - Star editorial urges judge to throw out toll road suit

The lead editorial today in the Indianapolis Star concludes:

Daniels has repeatedly called his Major Moves initiative the "biggest roads and jobs plan in the state's history." He may well be right.

Unfortunately, however, the lease of the Toll Road remains controversial. A St. Joseph County judge is expected to rule soon on whether a lawsuit that is attempting to kill the deal may go forward.

Throwing out the misguided suit would be more than a victory for the governor. It would be a major win for a generation of workers in Indiana who will reap returns from the state's investment.

Presumably the case will be decided on its merits.

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court rules on workers compensation case twelve years later [Updated]

Niki Kelly of the Fort Wayne Journal Gazette has a story today about yesterday's Supreme Court ruling in the case of DePuy, Inc. v. Anthony Farmer (see ILB entry here).

The story is headlined: "Persistent injured employee wins case: DePuy Inc. required to pay claim after 12 years." Some quotes:

Anthony Farmer once promised that he would spend 20 years fighting his worker’s compensation case against DePuy Inc. if he had to.

The estimate wasn’t far off. Nearly 12 years after he was assaulted by a co-worker, the Indiana Supreme Court on Wednesday awarded Farmer the disputed $78,000 worker’s comp claim plus an extra 10 percent.

“I never thought about giving up,” Farmer said. “Thank God it came out the right way.”

Farmer was attacked by fellow employee Wynn Swindel on Sept. 1, 1994, as Farmer – who worked third shift – went to clock out and Swindel arrived for his workday at DePuy Orthopedics in Warsaw.

According to court records, Farmer simply greeted Swindel and brushed his chest with a timecard.

Swindel, who is repeatedly referred to as “grouchy” in court documents, pushed the slim Farmer against a machine, seriously injuring his back. Farmer had to endure multiple spinal infusions and had two spinal discs replaced, ironically with devices made by DePuy. Farmer sued Swindel and received a $3,000 settlement, which was turned over to DePuy in order to move forward with the worker’s compensation action.

But DePuy argued before the Indiana Supreme Court last May that Farmer’s injuries didn’t arise out of his employment because the attack wasn’t related to work. They instead insisted it was the result of “horseplay.”

Wednesday’s 5-0 ruling said a participant in horseplay isn’t entitled to worker’s compensation but an innocent victim of horseplay is.

“Farmer’s injuries were incurred while he was performing services for DePuy (i.e. walking toward the time clock to end his shift), and Swindel’s loss of control and unprovoked attack does not change that,” the decision said. “Accordingly, the incident was within the scope of employment as ordinary courtesies to a fellow employee, and Farmer’s injuries arose out of his employment.”

Farmer’s Warsaw attorney David Kolbe was pleasantly surprised by the decision.

“Oh my gosh. We hit a grand slam,” he said. “We believed we had both the law and the equity on our side, but you never know what the court will say.”

The justices also gave Farmer an additional 10 percent on his award. Five percent was automatic, and the rest was discretionary.

My question: Is this "an extra 10%", or 10% interest compounded annually over 12 years, which would make the total award, by my very rough calculation, nearly $250,000.

[Update at 9:00 am] My speculation is wrong. Niki Kelly was kind enough to just now send this message:

I saw the question you had on the 10 percent. It is not compounded interest - it simply enhances the award one time by 10 percent. According to the ruling the award shall be automatically enhanced 5 percent when the award of the worker's comp board is affirmed on appeal. Then it gives the judge discretion on an extra 5 percent.
And, as her story today reports:
Farmer, 49, said it was never about the money.

“It was the principle of the thing,” he said. “We didn’t ask for anything more than the bills we need to cover. That’s the way the laws are set up. I’m going to be injured the rest of my life and there’s nothing I can do about it.”

Posted by Marcia Oddi on Thursday, May 18, 2006
Posted to Ind. Sup.Ct. Decisions

Wednesday, May 17, 2006

Courts - Take note: Voter backlash continues in Pennsylvania

The backlash over the midnight pay raise in Pennsylvania, which in November led the voters to throw out a Supreme Court justice, apparently continues. The Pennsylvania primary was yesterday. NPR reports:

A huge pay raise pushed through by legislative leaders last year resulted in a big backlash by angry voters: 14 incumbents went down to defeat as of this writing, including the top two Republicans in the state Senate, President Pro Tempore Robert Jubelirer and Majority Leader David Brightbill. Russ Diamond, a leader of the pay-raise opposition, is running for governor in the fall as an Independent.
For background, start with this ILB entry from April 5, 2006. Here is a list of related ILB entries.

Here are some quotes from an opinion piece in a Pittsburgh paper, The Valley Independent:

Pennsylvania lawmakers didn't get exactly what they deserved Tuesday -- that would have required too much tar and too many feathers -- but voters did the next best thing.

They threw the rascals out, at least most of the ones responsible for last summer's 11 to 54 percent pay raise for themselves, judges and other state officials.

The most prominent heads that rolled in Tuesday's primary election belonged to two of the Senate's top Republican leaders. President Pro Tempore Robert Jubelirer, of Altoona, and Majority Leader David Brightbill, of Lebanon County, became the first state legislators in 42 years to lose a primary election while holding major leadership positions.

Although some races are too close to call this morning, it appears 13 other House incumbents went down to defeat as voters displayed their anger over the pay hike and other misdeeds out of Harrisburg. * * *

"We had a dramatic earthquake in Pennsylvania," was Jubelirer's description of Tuesday's results after falling to political rival John Eichelberger, a Blair County commissioner. Jubelirer, 69, had spent the past 32 years as a legislator, but was only able to garner 36 percent of the vote in a three-man race.

Brightbill's defeat was even more stunning as he fell to Mike Folmer, a 50-year-old tire salesman whose political resume included only a brief stint on Lebanon's City Council. The 63-year-old Brightbill had been a lawmaker for 24 years.

This editorial concludes:
Some prominent pay raise backers may have survived Tuesday's purge *** but overall we're very happy with the performance of Pennsylvania's voters.

They finally fought back against a corrupt system that has long been playing them for fools. They've watched for years as lawmakers lined their pockets and padded their pensions without contributing much to the public good. This year, the electorate finally had enough.

While there is much to celebrate this morning, there is still work to do. The price of liberty, as we know, is eternal vigilance, and there will be a new set of leaders in Harrisburg next year for the public to keep its eyes on.

We hope May 16 represents not just a new day in Pennsylvania politics, but the start of a whole new era.

Posted by Marcia Oddi on Wednesday, May 17, 2006
Posted to Courts in general | Indiana Government | Legislative Benefits

Law - Georgia same-sex ruling interesting on several levels

A brief NY Times story today reports:

ATLANTA, May 16 — A state amendment banning same-sex marriage was struck down Tuesday by a judge who upheld the voters' right to limit marriage to heterosexual couples but cited procedural flaws in the wording of the amendment, which was approved by more than three-quarters of voters. * * *

The Georgia amendment defined marriage as between a man and a woman, banned same-sex civil unions and said that same-sex unions performed in other states would not be recognized. The judge, Constance C. Russell of Fulton County Superior Court, ruled that the amendment violated Georgia's single-subject rule, which limits each amendment put before voters to one topic.

"People who believe marriages between men and women should have a unique and privileged place in our society may also believe that same-sex relationships should have some place, although not marriage," the judge wrote. "The single-subject rule protects the right of those people to hold both views and reflect both judgments by their vote."

I'm trying to obtain a copy of the ruling. "One subject" constitutional provisions are designed to prohibit legislative logrolling -- several years ago I authored a lengthly article titled "Enforcing Indiana's Constitutional Requirement that Laws be Limited to One Subject," available here.

The Georgia ruling is also interesting because, to use a cliché, the ink was not yet dry on the state trial judge's ruling when both the Governor of Georgia and members of the legislature were threatening to call a special session if the state Supreme Court did not act. Some quotes from this story in the Atlanta Journal Constitution:

Gov. Sonny Perdue said Wednesday that he will call a special session of the state Legislature on Aug. 9 if the Georgia Supreme Court does not hear an appeal by Aug. 7 of Tuesday's court decision striking down a state constitutional amendment banning same sex marriages.

The governor made the comments in a speech to the Atlanta Press Club on Wednesday.

Earlier in the day, state Attorney General Thurbert Baker said the decision would be appealed and that his office would request an expedited hearing.

Fulton Superior Court Judge Constance Russell ruled Tuesday that the measure to ban gay marriage was presented incorrectly to voters. She did not rule on the merits of allowing gay couples to marry. Instead, she said the measure violates the state Constitution's single-subject rule because it required voters to decide on marriage and civil unions in a single amendment.

"In my opinion, the decision by the Fulton County Superior Court is wrongfully decided," Baker said Wednesday. "I intend to press the Georgia Supreme Court to quickly correct the Superior Court's error and re-instate the language adopted by Georgia voters in 2004." * * *

Also on Wednesday, a key legislative leader called for a special session to re-address gay marriage if the courts don't reinstate the constitutional amendment.

"If unresolved by the end of August — or resolved in opposition to the people's vote — I fully support a special session," said Senate President Pro-tem Eric Johnson (R-Savannah). "Marriage between a man and a woman must be protected."

An August special session would allow a debate a few weeks before the 2006 elections on an issue that spurred social conservative voters to the polls in 2004 to pass the original amendment. Republicans say it will boost their chances of retaining the governor's mansion and the General Assembly if voters are drawn to the polls to vote on the gay marriage ban again.

[More] Here is the trial court's decision, thanks to this Jurist article, which even has links to the briefs.

Posted by Marcia Oddi on Wednesday, May 17, 2006
Posted to General Law Related

Ind. Courts - Don't you just love it?

It used to be that stories in the papers would talk about a piece of legislation, but not give any clue as to the bill number. Or they would report that "a court ruled today" without a clue as to what court, or the name of the ruling. These practices seem to have improved somewhat in recent years.

Still, we had the flurry of stories last week about Speaker Bosma appealing the school prayer ruling, when in actuality he filed his appeal months ago -- last week he (or more properly, his attorneys) simply submitted his brief.

Today the Indianapolis Star has posted on line a brief AP story headlined "Judge seals Valpo teen's mental tests." Some quotes:

VALPARAISO, Ind. -- Two psychological evaluations of a teen accused of attacking fellow students at Valparaiso High School have been stamped confidential by a Porter Superior Court judge. [emphasis added]

The evaluations of James Lewerke, accused in the 2004 attack, are to remain under wraps until the case goes to trial, Porter County Deputy Prosecutor Matthew Frost said.

Indiana Public Access Counselor Karen Davis had no problem with the confidentiality status. Records involving medical or mental health are excluded from public access by the rules governing the state's courts, she said.

What judge? There is more to the story, but nowhere does the story identify the judge. The prosecutor is named. The defendant is named. In this version of the story, from WNDU 16, the defendant is even pictured. But the judge, whose action is the focus of the story, is never identified.

Posted by Marcia Oddi on Wednesday, May 17, 2006
Posted to Indiana Courts

Law - "Justices to Hear Environmental Appeal on EPA Emissions Rule"

"Justices to Hear Environmental Appeal on EPA Emissions Rule" was the headline to a story yesterday in the Washington Post by Charles Lane. His report expands upon a this ILB entry from Monday (final item). Some quotes from the Lane story:

The Supreme Court announced yesterday that it will review a controversial federal court ruling that environmentalists had said would weaken pollution-control requirements for aging power stations across the country.

In a one-line order, the justices said they will hear Environmental Defense's appeal of a June 2005 ruling by the U.S. Court of Appeals for the 4th Circuit, based in Richmond, which said that Duke Energy Corp., a North Carolina utility, could operate refurbished power plants even though their total annual emissions would go up.

The court's decision injects the justices into a half-decade-old battle between environmentalists and the Bush administration, which has sought to ease what it says is an excessive regulatory burden on the nation's utilities. * * *

In the case the court agreed to hear yesterday, Environmental Defense v. Duke Energy Corp. , No. 05-848, the specific question is how to measure utilities' compliance with the Environmental Protection Agency's "new source review" rules, which govern emissions from plants that have been modernized or expanded. * * *

The EPA's position traditionally has been that the Clean Air Act requires modified plants to reduce their total annual emissions, and Environmental Defense says that interpretation is correct.

But the 4th Circuit disagreed and said that plants should only have to show a reduction in their hourly rate of emissions. This was a victory for utilities because they could run their updated plants for many more hours than previously.

The case against Duke Energy was one of many initiated by the EPA across the country in the waning days of the Clinton administration.

The Clinton crackdown was bitterly opposed by utilities, and the Bush administration promised to change EPA enforcement policy.

But the EPA continued to press cases that were already pending when the administration took office in 2001, so the Bush EPA and Environmental Defense had been on the same side of the Duke Energy case until the 4th Circuit's ruling.

After the 4th Circuit ruled, the administration proposed new clean air regulations that incorporated the 4th Circuit's decision and would have applied it across the country.

Then the administration asked the Supreme Court not to intervene in the case. The court's decision to take the case over the administration's objection was a surprise; since the adoption of modern environmental legislation in 1970, the court had agreed to hear just two previous cases in which an environmental group was the petitioner.

Posted by Marcia Oddi on Wednesday, May 17, 2006
Posted to Environment | General Law Related

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

In USA v. Walker, Thomas (SD Ind., Larry J. McKinney, Chief Judge), a 16-page opinion, Judge Sykes writes:

Thomas Walker, an inmate at the United States Penitentiary in Terre Haute, Indiana, pleaded guilty to stabbing four correctional officers with sharpened metal rods. A few days later he had second thoughts and mailed a letter to the district court asking to withdraw one of his guilty pleas. On the day of sentencing, Walker’s attorney filed a motion to withdraw all four pleas, asserting that Walker “felt coerced” to plead guilty because the district court had denied his motion to transfer the case to Indianapolis and he did not think he could get a fair trial in Terre Haute. The district court denied Walker’s motion and sentenced him to 240 months’ imprisonment—30 months longer than the high end of the applicable advisory Sentencing Guidelines range.

Walker argues on appeal that (1) the district court should have permitted him to withdraw his guilty pleas, (2) under Rule 32(h) of the FEDERAL RULES OF CRIMINAL PROCEDURE he was entitled to advance notice before the district court imposed a sentence that departed upward from the advisory Guidelines range, and (3) his sentence was unreasonable.

We affirm. The district court held that Walker had not presented a fair and just reason to withdraw his guilty pleas but had merely changed his mind; this ruling was not an abuse of discretion. Rule 32(h)’s notice requirement—which applies to “departures” from the Guidelines, a concept that our post-Booker1 cases have called “obsolete”—does not apply here, where the district court selected a sentence at variance from the advisory Guidelines range based on the sentencing factors specified in 18 U.S.C. § 3553(a). Finally, Walker’s sentence of 240 months was reasonable and adequately explained by the district court.

Posted by Marcia Oddi on Wednesday, May 17, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues Workers Compensation opinion today

In DePuy, Inc. v. Anthony Farmer, a 14-page opinion, Justice Boehm writes:

An injured worker settled a civil suit against a co-employee for an intentional injury in the workplace. We hold that the settlement reached before worker’s compensation benefits have been resolved does not bar the injured employee from pursuing worker’s compensation for that injury, but if worker’s compensation benefits are awarded, the employer is entitled to subrogation rights to prevent double recovery.
The opinion also provides: "Although the statute is silent on the point, the Court of Appeals has long held that a worker’s compensation award may include interest."

Posted by Marcia Oddi on Wednesday, May 17, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues one today

In Kenneth W. Payton v. Lisa K. Payton, an 8-page opinion, Judge Bailey writes:

Case Summary. Appellant-Respondent Kenneth W. Payton (“Father”) appeals the denial of his motion to correct error, which challenged an order modifying child support for his children with Appellee-Petitioner Lisa K. Payton (“Mother”). We reverse and remand.

Issue. Father presents a single issue for review: whether the trial court abused its discretion by modifying Father’s child support obligation absent consideration of the Social Security disability payments received by Mother on the children’s behalf. * * *

Here, it is apparent that Father received no credit for the Social Security disability payments received by the children. Mother’s unverified child support calculations, which were apparently adopted by the trial court, provide no reduction in the total parental child support obligation and allocate no credit to Father. * * * It is undisputed that the children received substantial Social Security benefits due to Father’s disability, yet the trial court made no findings to indicate that it considered a credit, based upon the particular circumstances of the case, consistent with the Guidelines Commentary.3

On remand, we instruct the trial court to obtain signed child support worksheets from both parties, and to recalculate Father’s child support obligation accordingly. We also direct the trial court to consider, and enter appropriate findings, as to whether or not credit should be given to Father for the Social Security disability benefits paid directly to Mother for the children.
___________
3 The trial court’s comments suggest that the trial court may have believed that Father was employed despite his disability. Nevertheless, there is no evidence of Father’s income from employment, and the trial court did not make any specific finding as to Father’s employment status.

Posted by Marcia Oddi on Wednesday, May 17, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Plan to privatize FSSA claims processing may hit fan, at least temporarily

Tim Evans of the Indianapolis Star reports today that, although the State may be eager to outsource the "applications and eligibility review for state and federal assistance programs operated by the Indiana Family and Social Services Administration," and willing to pay $1 billion for service, the only two companies that appear to be interested may have performance issues in other states. Some quotes from the comprehensive story:

A massive effort to privatize claims processing for a million needy Hoosiers is drawing fire from critics who say the process is moving too fast and the two contenders have spotty track records.

Consortiums headed by IBM and Accenture are seeking the $1 billion contract that could become a contentious issue for the Daniels administration.
The Family and Social Services Administration is expected to announce a private partner within a month. Both contenders have run into problems with similar deals in other states:

Legislators in Texas last month threatened to fire Accenture or ban it from other state contracts following a barrage of complaints.

A partner in the IBM group, Affiliated Computer Services, lost part of a Georgia contract two years ago because of problems processing claims. Texas-based ACS also is the former employer of FSSA Secretary E. Mitchell Roob Jr. [emphasis added]

More from the story:
While FSSA officials initially hoped to select a contractor by mid-May, spokesman Dennis Rosebrough said Tuesday that officials need more time. "It's a big contract -- very complicated -- and we want to make sure we've got it right before we move forward," he said.

Rosebrough said Roob will not be involved in the selection process because of his former ties to ACS.

Privatizing the agency's applications and eligibility review process is intended to improve service to needy Hoosiers, while reducing errors and the expense to taxpayers.

"No one can really argue with the stated reasons for these changes," said Lisa Travis, advocacy and education coordinator for the Indiana Institute for Working Families. "But we are not aware of any other state doing so much, so fast, and there is no cost-benefits analysis that shows there will be a savings to taxpayers or improvements in services."

Travis and others contend the process to award the 10-year contract has limited legislative oversight and few opportunities for client, advocate or service provider input.

A similar effort to privatize welfare functions has run into problems in Texas. State legislators upset about Accenture's handling of a pilot program to manage applications for food stamps, Medicaid and Temporary Aid to Needy Families in two counties have delayed taking the project statewide. * * *

Rosebrough said Roob and other state leaders knew there was a possibility Roob's former employer would be a bidder "because there are only a limited number of companies who provide these services."

Roob has delegated responsibility for the project to James Robertson IV, director of the agency's division of family resources, said Rosebrough.

Once a firm is selected to do the work in Indiana, Rosebrough said, state officials will negotiate final details of the contract, including the cost. The $1 billion estimate is based on the current cost of the work done by state employees.

None of the about 2,600 state employees involved in the work being privatized will lose their jobs, Rosebrough said, but some might be absorbed by the private contractor with pay and benefits at least equal to what they receive from the state.

See also these two related ILB entries from May 14th and May 13th.

Posted by Marcia Oddi on Wednesday, May 17, 2006
Posted to Indiana Government

Tuesday, May 16, 2006

Ind. Courts - Old bell uncovered in Green County Courthouse

The Greene County Daily World reports today, via a story by Nick Schneider. Some quotes:

A large historic bronze bell that has been tucked silently away in the rafters above the attic of the Greene County Courthouse since the mid-1950s may soon have a more public resting place as part of the current renovation project.

The 120-year-old bell is mammoth in size - weighing an estimated 2,000 pounds and measures approximately 48 inches tall and more than 42 inches around, according to Greene County Building Corporation project manager Jim Corey.

Corey said after the bell was noticed during a pre-construction inspection of the building he started to comb through the “fine print” contained in the county's master contract with general contractor Weddle Brothers Construction Company, of Bloomington, to see if there was a provision to move the old bell that was first purchased by the county in 1886.

“The contract says they (Weddle Brothers) will take that old bell out of the bell tower and put it where we (the building corporation and the county commissioners) say,” Corey said Monday afternoon. “It's one of the most beautiful old bells that I've ever seen. It's just a beautiful bell.”

Corey added, “I've told the contractor, ‘let's figure out some way we can get this thing out of here. I want to get this (bell) down so the people of Greene County can have it'. We want that bell out of there so people can see it.”

He then asked the project engineers - Strand Construction Company - to design a simple structure to display the old bell on the ground - possibly located in the northeast corner of the courthouse square.

“I've seen several other communities do this,” he said. “It's a good idea. I'm excited about it because this is just a neat old thing and needs to be preserved and seen by the public. We'll build some kind of way to display it.” * * *

Corey said he learned after viewing the bell that it was purchased from the McShane Bell Foundry in Baltimore, Maryland during the fourth courthouse construction project in Greene County.

He wanted to contact the foundry company to see how much the bell weighed to determine what kind of engineering would have to go into moving it.

Through an computer search, Corey found that the foundry still exists and is now the only large Western-style bell maker in the United States - one of about seven in the world.

The foundry also had a computer database that went back prior to 1886 and confirmed the bell that weighs a ton was sold to Greene County officials 120 years ago.

The bell foundry, founded in 1856 by Henry McShane, who had emigrated from Dundalk, Ireland, in 1847, also offers a service that re-conditions and cleans the old bells. Corey asked for a quote just to see what it might cost to clean-up the historic bell - which has taken on a greenish-colored cast over the years.

Over the years, the county has actually used four different courthouse buildings.

The first courthouse was in built in 1824 at Burlington, a small village on the east bank of the west fork of the White River. Burlington was about three miles north of present-day Bloomfield. The courthouse was a 20 foot by 20 foot, two-room log hewn structure.

The second courthouse, completed in 1825, was located on the northeast side of the intersection of Main and Washington Streets in Bloomfield. The cabin-styled courthouse was changed by the addition of a window in 1833 and repair of the underpinning the following year because hogs were resting underneath the building and disturbing court proceedings.

A third courthouse building was finished in 1838 and, it too, became too small and officials were soon planning for the building a new structure to house the county offices.

In 1885, construction on another county courthouse was started. The commissioners hired prominent architect G.W. (George) Bunting to do the work.

It was Bunting who designed the building that originally housed the old bell. The bell today still is etched with his name along with the names of county commissioners Moses Crockett, Robert McKee and Jno Miller, Jr. as well as county auditor John L. Harrel.

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues one today

In Gary M. Potter v. Richard John Houston, a 15-page opinion, Judge Friedlander writes:

Gary Potter brings this appeal stemming from a series of actions he filed regarding an easement granted in favor of Richard Houston and Houston’s predecessors. Potter raises one issue: Is “timbering” an agricultural use of land? Houston raises one issue on appeal: He requests appellate attorney’s fees based upon Potter’s alleged frivolous appeal that is “a part of a pattern of abusive filings made on behalf of [Potter] constituting bad faith.” We affirm the judgment, and we remand the cause for an award of attorney’s fees to Houston. ***

Potter’s appellate arguments and arguments made in his motion to strike a portion of Houston’s brief are illogical and puerile. Potter has steadfastly ignored unfavorable factual determinations and rulings. The course of the proceedings, including numerous attacks on orders and judgments that can be fairly characterized as collateral, is difficult to sort out. One overarching theme is clear: Potter’s motions and arguments ignore the import of the trial court’s orders and are calculated to cause great expenditure of time and money by Houston in attempting to enjoy the use of the easement. In so doing, Potter has caused a great outlay of resources by Houston, his counsel, multiple trial courts, and this court on review. For all these reasons, we find Potter’s appeal to be frivolous and without merit. See Montgomery v. Trisler, 814 N.E.2d 682 (Ind. Ct. App. 2004). Enough is enough.

Potter’s conduct comes at a cost. He has committed both procedural and substantive bad faith. Accordingly, the cause is remanded for a determination of appellate attorney’s fees to be awarded to Houston. Judgment affirmed, and the cause is remanded for calculation of appellate attorney’s fees to Houston.

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - More on the Indiana Register "changeover"

I attended a meeting at the Indiana Legislative Services Agency (LSA) yesterday where the new online Indiana Register was unveiled. (They are having a duplicate meeting Wednesday at noon.)

The LSA showed an online "dummy" of how the new Register might look. Unfortunately, only a few sample documents were posted, rather than a full-fledged trial site, which I have been promoting.

I remain concerned.

The best of the news is that the LSA has ditched the plan to use URLs as Indiana Register citations. They have replaced these with a non-intuitive document identification number (DIN), but at least this has a basis in dates and document numbers, rather than being tied to the location of a file on the current website, as the LSA initially was proposing.

Of course, none of this would be necessary if the LSA had not decided (for unexplained reasons which they attribute to the General Assembly), to dump the "paged" format of the current Indiana Register. Rather than simply publishing the new electronic, but page-formatted, Register online weekly, or even daily, the LSA continues in their plan to post only individual documents and require users to rely on a google-based system as a finding aid, rather than the structure-based approach we have relied on for 30 years.

I was particularly struck at the meeting by the lack of understanding of, and the resistence to learning more about, the needs of the world outside the Statehouse. My impressions were later confirmed by several other attendees.

I plan to write at length on the matter of the General Assembly's failing stewartship of Indiana's statutes and rules, but not today.

For background, here are links to the ILB's two earlier entries on the Register changes, from March 31, 2006 and April 10, 2006.

In addition
, I submitted written comments to the Indiana Register late last month. I have made them available at this link.

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Indiana Law

Ind. Law - Attorney with Barnes & Thornburg's Chicago office featured

The Chicago Tribune has an interesting story today about Mari Yamamoto Regnier, a partner in Barnes & Thornburg's Chicago office, heading their Japanese Practice Group. Some quotes:

[While attending Indiana University she] got a job as an assistant with the university's East Asian Studies Center and subsequently with an economic development firm dealing with Japanese investment in the Midwest.

In these jobs, she worked with Bob Reynolds, senior partner of a prestigious Indianapolis-based law firm, Barnes & Thornburg, who made her an unusual job offer.

"He told me that the firm had a vision," she said. "Its vision was to grow international business. He said I was the perfect candidate to be Japanese services coordinator. He said he wanted me to attend law school."

"I didn't know what it entailed," said Yamamoto Regnier. "But I realized that I enjoyed working with Japanese business people. And that the law is probably the most difficult area for Japanese business people to comprehend. When they'd locate plants in the U.S., they could understand business and technical aspects, but the law was difficult and complex for them. So I agreed."

Today, Yamamoto Regnier, 45, a partner in Barnes & Thornburg's Chicago office, is head of the firm's Japanese business practice.

[Thanks to Indiana Daily Insight for the link.]

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Indiana Law

Ind. Courts - More on the toll road statute challenge

"Lawyers spar a 2nd day on bond issue in Toll Road suit" is the headline to the Fort Wayne Journal Gazette's publication of this report by the AP's Tom Coyne. It begins:

SOUTH BEND – It will likely be at least next week before a judge rules on whether those challenging Gov. Mitch Daniels’ plan to lease off the Indiana Toll Road to a private operator will have to post a multibillion bond to keep their lawsuit alive.

St. Joseph Superior Court Judge Michael Scopelitis listened Monday to a second day of testimony on whether the plaintiffs can show their case has merit and should be allowed to go to trial.

Both sides indicated Monday they expected to appeal to the state Supreme Court if Scopelitis rules against them in the state’s argument that the challenge should be considered a public lawsuit.

Under Indiana’s public lawsuit statute, those who filed the lawsuit – seven people and the Citizens Action Coalition of Indiana – might have to post as much as a $3.8 billion bond for the legal action to continue in court.

The lawyers for the plaintiffs tried to show Monday that the law is unconstitutional and that the state would not suffer significant economic harm if it doesn’t hand over control of the Toll Road to a Spanish-Australian consortium June 30 as planned. * * *

Scopelitis gave the two sides until the end of Wednesday to submit further evidence in the case and until the end of Friday to submit additional legal arguments. He did not indicate when he would rule. He has said if a trial is needed it could be scheduled for the first week of June.

For earlier ILB entries, begin here.

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Indiana Courts

Ind. Law - New state law may prohibit Martinsville mayor from serving

An AP story today reports:

MARTINSVILLE, Ind. - The city's mayor is looking to overturn his guilty plea to illegally handling election ballots in hopes of being able to continue to serve in elected office.

Shannon Buskirk petitioned for the ruling as a new state law may prohibit people convicted of felonies - or people who have had felony charges against them reduced to a misdemeanor in a plea deal - from serving in elective offices in Indiana.

Buskirk, who was first elected mayor in 1995, and former Martinsville City Council member Erma Scott were charged in January 2000 with felony counts of election fraud based on allegations they handled absentee ballots from seven nursing home residents during the May 1999 primary.

Buskirk was running for mayor, Scott for council, and state law prohibits candidates from handling ballots. In June 2000, both Republicans pleaded guilty to one count each of delivering a ballot, a misdemeanor.

Buskirk's attorney, John Boren, said he encouraged the mayor to file the petition Wednesday in Morgan Circuit Court to prepare for possibly running for another term as mayor. Boren was not sure whether the 2005 law is retroactive to Buskirk's 2000 plea deal. ***

Officials at the Indiana Secretary of State's office and local attorneys say the new law has not been challenged in court, so there is no precedent on whether the law is retroactive.

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Indiana Law

Ind. Decisions - More on: AG asks Supreme Court to hear same-sex adoption question

"High court ruling sought on adoption" is the headline to a story by Dan McFeely today in the Indianapolis Star. (For background, see this ILB entry from yesterday, including links to earlier entries and the Court of Appeals decision.) Some quotes from today's story:

On Monday, Indiana Attorney General Steve Carter asked the state's Supreme Court to decide whether two people who are not married can jointly petition for an adoption. Two trial judges have disagreed on the matter, and the Indiana Court of Appeals split 2-1 in a ruling last month.

Given the various legal opinions, Carter said it is proper for the Supreme Court to get involved.

His decision was welcomed by conservatives such as state Sen. Jeff Drozda, R-Westfield. But for legislators, it does not mean the matter will be placed on hold while the court decides whether to take the case. Drozda said he will move forward with plans to introduce a bill next year to prohibit same-sex couples from adopting.

"Regardless of the final outcome (of the legal battle), it's more important to have public policy set by members of the General Assembly rather than judges," said Drozda. * * *

The April [Court of Appeals] decision involved a Morgan County case in which a judge attempted to overturn the joint adoption of the child in Marion County by Brennan and Hamilton. The women were originally foster parents to the girl.

The judge argued he should have maintained jurisdiction because the child was the subject of a welfare case in his court at the time of the adoption petition. Though the couple also lived in Morgan County, state law allows adoptions to be filed in any county.

Appellate Judges Nancy H. Vaidik and John G. Baker ruled the Marion County court had jurisdiction and properly granted the joint petition for adoption. Judge Edward W. Najam Jr. dissented.

There is nothing in Indiana code that limits the couple's right to adopt, Baker wrote in the majority ruling. But that would change under Drozda's proposed bill.

Drozda will model his new proposal that bans gays from adopting on a Florida law enacted in 1977. That law was upheld in 2004 by the 11th U.S. Circuit Court of Appeals in Atlanta.

Two other Court of Appeals rulings have established precedent in Indiana for co-adoptions by unmarried and gay couples. Those cases involved couples in which a child initially was adopted by one partner, rather than through a joint petition.

Outside Indiana, same-sex couples can jointly adopt in California, Connecticut, Illinois, Massachusetts, New Jersey, New Mexico, New York, Oregon, Vermont and the District of Columbia, according to Human Rights Watch, a national gay rights group.

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Indy City-County Council passes sex-offender ban

The Indianapolis Star reports today, in a story by Brendan O'Shaughnessy:

Child molesters caught near city playgrounds or other gathering places for children will be fined at least $600 under a proposal passed Monday by the City-County Council.

The controversial measure goes into effect immediately and is seen as one of the strictest ordinances of its kind in the nation. Some council members, however, said its toughness could spark a costly legal battle.

The American Civil Liberties Union of Indiana has repeatedly said it would challenge the ordinance, which passed 25-2, because it imposes new punishment for a past crime. * * *

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

A few opponents of the bill said both sides were posturing for political gain.

Here is a list of some of the earlier ILB entries on banning sex-offenders in parks.

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Indiana Law

Environment - "Corn-as-fuel may help farmers, cost consumers"

The Indianapolis Star business writer, John Ketzenberger, provides an economics lesson today in his column, headed "Corn-as-fuel may help farmers, cost consumers." He writes:

Four ethanol plants are being built in the state; another nine are planned to produce the alternative fuel for cars and other vehicles.

But if demand for the fuel continues to drive up the price of corn, it could mean higher prices for everything from bacon to corn chips. ***

Hog farmers start to lose money when corn hits about $2.50 a bushel, Hurt said. They will thin their herds to save money, and that will reduce the supply available for bacon. It won't be long before the price of bacon rises. Since 60 percent of the state's corn now feeds cows, pigs, chickens and other livestock, any increase in the amount used for fuel will upset the balance that helps keep food prices low.

"We could have dramatic inflation for several years on meat, milk and eggs," [Christopher Hurt, a Purdue University agricultural economist] said. * * *

Then the question becomes how to balance the desire for corn as a fuel source versus its use as a food source. Since the state touts every new ethanol pump as an economic development coup, it's clear Hurt is one of the few giving this balance any consideration.

Note: Given the state administration's simultaneous push to blanket the state in CAFO's, including swine CAFO's housing five-figure populations of pigs, this may prove to be an example of burning the corn cob at both ends. (Re CAFOs and particularly swine CAFOs, see this story today in the Muncie Star-Press.)

Posted by Marcia Oddi on Tuesday, May 16, 2006
Posted to Environment | Indiana economic development

Monday, May 15, 2006

Law - Two significant U.S. Supreme Court decisions today; important air review granted

Two cases out of Ohio, DaimlerChrysler Corp. v. Cuno, 04-1704, and Wilkins v. Cuno, 04-1724, involved the issue of the state using tax incentives for economic development. The ILB has had several entries on this challnge.

From an early AP report:

In a victory for business, the Supreme Court on Monday rebuffed the efforts of a group of taxpayers in Toledo, Ohio, to challenge nearly $300 million in tax breaks for DamilerChrysler AG's new Jeep plant.

Chief Justice John Roberts said in the 9-0 decision that the alleged injury to the taxpayers was mere conjecture and that they had no standing to challenge tax or spending decisions "simply by virtue of their status as taxpayers."

DaimlerChrysler called the ruling "a big win for America" and said Congress and the states should seek legislation to reinforce the ability to use tax incentives as a tool to compete for investment and jobs. * * *

Business groups and lawmakers in several states said in friend-of-the-court filings that a ruling against Ohio and DaimlerChrysler would hurt economic development throughout the nation and put U.S. manufacturing at a disadvantage against foreign competitors.

Peter Enrich, an attorney for the taxpayers, said the decision "simply sends us back to the Ohio state courts, where we began six years ago." Enrich, a Northeastern University law professor, said "tax giveaways" similar to Toledo's cost states and municipalities around the country billions of dollars that could be better spent on education and other publicly financed programs.

In an earlier ruling in favor of the taxpayers, the 6th U.S. Circuit Court of Appeals struck down Ohio's tax credit on new equipment, saying the practice hinders interstate commerce because the incentives are available only to businesses that invest in Ohio.

To lure a $1.2 billion Jeep assembly plant to the area, the city of Toledo and two local school districts gave the company a 10-year exemption from property taxes, and the company received additional investment tax credits against the state's corporate franchise tax.

The court disagreed with the taxpayers' argument that their local and state tax burdens were increased by the tax breaks.

"A taxpayer-plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him," the chief justice wrote. "To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment."

A core constitutional concept is that someone filing a lawsuit must allege personal injury that is traceable to the defendant's allegedly unlawful conduct and is likely to be redressed by the requested relief.

The Toledo taxpayers also claimed standing by virtue of being municipal taxpayers, but such an argument is "yet another level of conjecture to their already hypothetical claim of injury," Roberts wrote.

In all, DaimlerChrysler received nearly $300 million in property and investment tax benefits.

The Court also decided a Clean Water Act case, S.D. Warren Co. v. Maine Board of Environmental Protection, but I hope to find a better summary than this one from the AP.

In addition
, the Court today agreed to hear next term Environmental Defense v. Duke Energy Corp., 05-848. Here is a good write-up on the grant from the AP. A quote:
The case involves the Bush administration's attempts in 2002 and 2003 to rewrite the Environmental Protection Agency's "new source review" regulations under 1977 amendments to the Clean Air Act.

Those regulations said that older industrial facilities - such as aging coal-fired power plants, refineries, smelters, and chemical and manufacturing plants - must install state-of-the-art equipment if they expand or modernize in a way that results in significantly more air pollution.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Environment | General Law Related

Ind. Decisions - Court of Appeals issues three today

In Michael O. Rhines v. Norlarco Credit Union, a 13-page opinion, Judge Vaidik writes:

Michael O. Rhines (“Rhines”), pro se, appeals the trial court’s grant of summary judgment in favor of Norlarco Credit Union (“Norlarco”). We conclude that the trial court had subject matter jurisdiction because there was no administrative remedy for Norlarco to pursue and that Rhines’ due process rights were not violated because he had a hearing before his vehicle was repossessed for nonpayment. We also conclude that because Rhines filed a separate lawsuit for alleged violations of the Fair Debt Collection Practices Act and did not make such a counterclaim here, he was not entitled to a hearing in this cause to address any such violations. Finally, we conclude that Rhines was not entitled to have his non-attorney friend act as his advocate at the summary judgment hearing. We therefore affirm the trial court.
Clifford W. Shepard v. Schurz Communications, Inc. d/b/a Mooresville/Decatur Times, and Steven C. Litz, a 13-page opinion by Judge Bailey, deals with three issues: Whether the Decatur Times was properly granted summary judgment pursuant to Indiana’s strategic lawsuit against public participation statute (“anti-SLAPP statute”), Indiana Code 34-7-7; Whether the award of $35,595.00 in attorney fees and $1,318.00 in costs is an abuse of discretion; and whether the Times is entitled to appellate attorney fees.

In Leeper Electric Services v. City of Carmel, a 10-page opinion, Judge Baker writes:

Leeper acknowledges that it recovered for the permanent taking that resulted from Carmel’s moratorium on all building on the property in Leeper I, but it argues that it should now be allowed to seek damages resulting from the temporary taking that allegedly occurred when Carmel refused to rezone the property to permit Leeper to construct hotels thereon. To that end, Leeper contends that the trial court erred in denying its motion to file an amended complaint. In particular, Leeper argues that because the trial court found that its section 1983 claim was premature, its dismissal of that claim was a dismissal without prejudice such that Leeper should now be entitled to pursue that claim. *** The judgment of the trial court is affirmed.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - AG asks Supreme Court to hear same-sex adoption question

From a press release just issued:

Indianapolis, IN – The Indiana attorney general’s office is asking the Indiana Supreme Court to hear the case of Infant Girl W. v. Morgan County Office of Family and Children which presents the issue of whether two people who are not married may jointly petition for adoption. Two trial judges have disagreed on the issue and the appellate court judges split 2-1 in their ruling last month. The attorney general’s office is asking the High Court to vacate the lower court’s decision permitting a joint adoption by an unmarried couple.

“The issue presented in this case concerns whether or not Indiana law has changed to now permit unmarried partners to adopt through a joint petition,” Carter stated. “There has been conflict among trial and appellate judges about whether two people can jointly adopt a child when they are not married. Given such a division thus far among five judges at two different levels of our courts; and given the fact that the state Supreme Court has not yet had the opportunity to interpret the most recent relevant enactment of the legislature, I find it proper to invite the High Court to be heard in this matter.”

The legislature amended the statute addressing adoptions by unmarried couples in 2005.

Carter noted that the Supreme Court may resolve the confusion between the decisions and opinions offered by the lower court judges. If the Supreme Court chooses to hear the case, it will likely extend the resolution of this particular case beyond the next legislative session.

“Such action by the court, though, could provide sound guidance for any later legislative discussion regarding this subject matter,” Carter added.

A list of earlier ILB entries may be found here.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Ind. App.Ct. Decisions

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

Tne Indianapolis Star today has a front-page story by Jason Thomas about the state's plan to lease part of the Indiana Dunes State Park to a private developer for up to 100 years (sound familiar?), to build and run a private hotel.

Having grown up a mile from the Indiana Dunes, and having worked at the State Park while in high school, I am familiar with the planned location. As you approach the Lake on Waverly Road, Johnson's (Porter) Beach is on your left. The new hotel would be on your right, in or near what is now a parking lot, with the beach in front of it.

Some quotes from today's story:

CHESTERTON, Ind. -- A privately owned lodge proposed for Lake Michigan's public shore has triggered a debate over the future of Indiana's scarce beaches.

State officials say such an inn at the Indiana Dunes State Park could boost tourism in an area in Northwest Indiana dominated by rusting steel mills and cargo-laden vessels. [ILB - These facilities dominate much of Indiana's Lake Michigan shoreline, where the majority of the dunes were leveled years ago.]

Environmental groups worry that the state is rushing a project that could forever alter an area known as one of the places the science of ecology developed and for its migratory bird sanctuaries. * * *

"We've decimated so much of our lakefront over the last 100 years," said Susan MiHalo, president of the Save the Dunes Council, a nonprofit group dedicated to preserving Indiana's dunes. "Why do we need something here? Let's leave this for the people, all the people, of the state of Indiana to enjoy.

"I think the other big issue for us is the privatization issue," she continued. "This is public property. Why should one particular developer be able to take advantage of that?" * * *

Opponents say there are ample hotel rooms in Chesterton, the town where the park is located, and nearby Portage. They also contend the state did little research in putting together its proposal for the inn.

"Developers probably looked at that proposal and said, 'Woo-hoo, the candy store is open,' " MiHalo said, adding that the state does not have to do an environmental study because no federal money is being used.

True, the federal NEPA law may not apply. But we have an Indiana "NEPA" law, that applies to "proposed 'major state actions' affecting the environment." These ILB entries from Jan. 25th and Jan. 29th reference the state requirements.

Given the controversy surrounding this DNR proposal, my thought is that a thorough and comprehensive environmental impact statement should be prepared in a timely manner and made widely available.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Environment

Ind. Law - Fort Wayne News-Sentinel editorializes on same-sex adoptions

The Fort Wayne News-Sentinel has a thoughtful editorial today on same-sex adoptions. Some quotes:

No later than next year, Indiana officials will be actively embroiled in the question of gay adoption, what some are calling the second front in the culture war (the first being same-sex marriage, which exploded in the 2004 elections). It would be nice if, in the process, they clarify state law so children are as protected by the process as possible. The law is vague enough – and passions strong enough on both sides – that the main focus will be on which adults have what rights in adoption proceedings. But adoptions are not primarily about the adults – at least they shouldn’t be.

Indiana adoption law specifically permits adoptions by married couples and single adults. It is silent on – neither forbidding nor expressly permitting – adoptions by unmarried couples. Some say that silence is the same as a prohibition – that is the position of Frances Barrow, who has argued the issue for the state; if the legislature had wished to allow adoptions by unmarried couples, it would have said so. But to some, silence is permission. In at least four cases, the Indiana Court of Appeals has upheld the validity of adoptions granted to unmarried couples. That is such an obvious trend that a legislature troubled by unmarried adoptions certainly could have acted by now.

Of course, not many people particularly care about unmarried couples in general – if only heterosexual cohabitaters had been involved in adoptions, it is unlikely the issue would be headed for such a contentious 2007 General Assembly session. It is the fact that same-sex unmarried couples have been trying to adopt that has the culture warriors sharpening their rhetorical swords. * * *

In discussing the issue, legislators should talk at least as much about the children in adoptions as they do about the rights of various groups of adults. The same kinds of safeguards the law has always tried to put in for the benefit of adoptees should still be at the top of the list, and the same sorts of questions need to be asked of those who would adopt. Are they financially able to handle the adoption and emotionally equipped? How stable would the home environment be?

Parts of the discussion will certainly get tricky. Marriage has always been one indicator of stability. But gay people can’t get married – and aren’t likely to be able to anytime soon; that battle in the culture war has already been decided in Indiana. If state law doesn’t care about singles (of any sexual persuasion) adopting, what sense does it make to not allow adoption by unmarried couples?

Some might like the issue to be framed in terms of whether gay couples can be as effective as parents as straight couples. In Indiana, though, the question is likely to be whether gay couples should even have the right to adopt.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Indiana Law

Ind. Courts - Toll Road testimony resumes today

"Toll Road testimony resumes today" is the headline to a story by Patrick Guinane in the Munster (NW Indiana) Times. Some quotes:

Opponents are expected to take the stand today in the court battle over leasing the Indiana Toll Road.

Initial testimony Thursday proved rather painstaking, with attorneys at one point engaging in an extend debate over the placement of a semicolon in state statute. * * *

Lease challengers, led by West Lafayette farmer and activist Steve Bonney, plan to call a retired Notre Dame economist in an effort to show that the lease isn't as a big a financial boon as Gov. Mitch Daniels and other supporters contend.

Bonney also is on the witness list, along with a handful of other Hoosiers who launched the lawsuit last month. Testimony also could come from yet unnamed officials representing local governments owed money by the state.

Lease challengers contend that the deal is unconstitutional because the proceeds won't be used to clear state debt, including money owed to local governments, and a $8 billion shortfall in a pension fund for teachers hired before 1996.

State officials on Thursday testified that such debt has nothing to do with the Toll Road.

First and foremost, South Bend Superior Judge Michael Scopelitis must decide whether to declare the case a public nuisance lawsuit, which could require plaintiffs to post a bond of up to $3.8 billion.

I highlighted the word "nuisance" because that word appears nowhere in the statute, IC 34-13-5: Public Lawsuits for Testing Public Improvements of Municipal Corporations. Its use in the story may be inadvertent, or it may be editorializing.

Earlier reports on the St. Joe lawsuit may be found in these ILB entries from May 11th and May 12th, 2006.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Indiana Courts

Ind. Courts - Another story on cameras in Indiana courtrooms

The South Bend Tribune has a story today by Marti Goodlad Heline, featuring Circuit Judge Michael G. Gotsch, whose:

court is one of eight selected by the Indiana Supreme Court for a pilot project allowing video and still news cameras and audio recorders into courtrooms. * * *

While the judge views the court involvement as "progressive," he also considers it a way "to engage the community in things happening at the courthouse."

"It's a beneficial thing," Gotsch said. "The more people know about their local government, the better off we are in the long term." * * *

Gotsch is unsure what cases he has that will attract media interest since he has only a minimal criminal caseload that includes mostly nonpayment of child support or welfare fraud.

Gotsch suggested a jury trial about an injury accident or a malpractice case would be the most interesting to the public.

His court also handles numerous divorce, collection, tort claims and other civil cases.

"I know there is a 'Divorce Court' TV show," Gotsch said. "But 'Divorce Court' the TV show and 'Divorce Court' that happens in my courtroom bear little resemblance to one another.

"I'm not sure how excited divorcing couples are going to be about consenting to have their case shown on television," the judge said. "I don't think that's going to happen much."

Gotsch expressed concern that what is broadcast is not taken out of context.

"I don't want whatever snippets taken by video to be misleading to the case in total," he said.

To try to avoid that and to come up with a procedure for requesting the use of cameras, their placement and other details, Gotsch plans to confer with a Law-Media Committee formed a few years ago.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Indiana Courts

Ind. Law - Federal prosecutor of internet crimes against children featured

The Munster (NW Indiana) Times today, in a story by Lauri Harvey Keagle, features assistant U.S. attorney Phil Benson. Some quotes:

Benson is an assistant U.S. attorney for the Northern District of Indiana assigned to the Hammond federal courthouse and has built a reputation as being a tough prosecutor when it comes to Internet crimes against children.

"This is the most important area law enforcement needs to look at," Benson said.

Nationally, predators have emerged as an emergency room doctor, a rabbi, a drill sergeant and recently, a national security adviser.

One such case involved Glenn Martikean, 49, of Portage. The former janitor at the Radisson Hotel at Star Plaza in Merrillville traveled to Russia as part of an international child pornography ring. He was charged in 2001 along with three other people in the United States and five in Russia for his involvement with Blue Orchid, a Moscow-based Web site that sold and distributed pornographic videos involving children internationally.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Indiana Law

Ind. Courts - How cameras have worked out in Kentucky courtrooms

John Lucas of the Evansville Courier& Press writes today:

Indiana is getting ready to start an experiment by allowing cameras - still and TV - into courtrooms for the first time. Chief Justice Randall Shepard announced last week that the courtroom of Vanderburgh Superior Judge Wayne Trockman is among eight that will participate in the experiment.

At the end, results will be evaluated to determine whether to discontinue the practice or open it to all courts.

If Kentucky's experience is a guide, there won't be any problems, and Indiana might as well forgo the experiment and get on with it. Cameras have been allowed in Kentucky courtrooms for so long that most people practicing law, sitting on the bench or covering trials don't remember a time they weren't there. Even the Kentucky Administrative Office of the Courts had difficulty coming up with a date for when cameras were first allowed. It is believed to have been in the late 1970s. Court rules governing photography were published in mid-1981.

After recounting reasons given for banning cameras in places where cameras are banned, Lucas continues:
Really I suspect, though, it is more a control issue for the judges. Judges are little demigods who have pretty well absolute control over what happens in their courtrooms.

They can decree what manner of dress is permissible in their courtrooms. They require men to remove their hats and caps. They decree silence. They control access. I think probably the same issue is involved with cameras.

The judge is still in charge, and in Kentucky the rules pretty well limit coverage to one TV camera, one radio hookup and one still photographer. Of course, in the interim, a video tape has become the official court record for circuit level cases in Kentucky, and in many counties TV and radio folks simply plug their equipment into the feed from the court's cameras and audio and aren't even present in the courtroom.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Indiana Courts

Ind. Law - Ice Miller managing partner featured

The Indianapolis Star business sections "Corner Office" column today features Melissa Proffitt Reese, 45, attorney and co-managing partner, Ice Miller. Some quotes:

Her father, John Proffitt, is a lawyer, and her stepmother, Judy Proffitt, is a judge in Hamilton County. Reese was impressed by their "lively" conversations at dinner.

She said her father, who has been an attorney almost 50 years, inspired her to pursue law in order to help those less fortunate. Reese's practice focuses on employee benefits and counseling companies on pension and benefit law.

In 2004, Reese was named Ice Miller's first female managing partner.

Question: What are your duties at Ice Miller?

Answer: As a co-managing partner, I help determine the firm's strategic vision and am responsible for implementing that vision. It's akin to a CEO role for a corporation. It's a combination of dealing with the day-to-day responsibilities of running a business coupled with the development and implementation of the future vision of the firm.

Posted by Marcia Oddi on Monday, May 15, 2006
Posted to Indiana Law

Sunday, May 14, 2006

Ind. Gov't. - Did Governor's office interefere in 2002 NIPSO rate settlement?

The Munster (NW Indiana) Times has a story today by Keith Benman that reports:

The state's largest consumer group wants federal prosecutors to look into what role jailed Democratic operative Peter Manous and the office of late Gov. Frank O'Bannon played in a 2002 NIPSCO rate settlement.

The Citizens Action Coalition says it has provided U.S. Attorney Joseph Van Bokkelen with the results of its own investigation, and it wants the prosecutor to use his legal powers to take the investigation further.

"These people from the governor's office were so proud of this at the time," said Michael Mullett, a lawyer for the CAC. "But when you ask anyone about it today, they know nothing; they say nothing."

In an article in McGraw-Hill's Electric Utility Week in July 2002, the governor's press secretary, Mary Dieter, acknowledged the governor's office took part in the negotiations. Those talks led to a proposed settlement between the Office of Utility Consumer Counselor, NIPSCO and industrial groups in June 2002.

"We really think consumers are getting a very good deal here," she was quoted as telling Electric Utility Week.

In the article, she denied being pressured by NIPSCO and its parent company, Merrillville-based NiSource, to reach a settlement more favorable to the utility.

In September 2002, the Indiana Utility Regulatory Commission's three Democrats voted for the proposed settlement. The commission's lone Republican and its one independent member voted against it.

NIPSCO and the OUCC, the state agency that represents consumers in utility cases, both insist the settlement was a fair one.

"When you have a settlement agreement in any case, you have compromise," said Anthony Swinger, a spokesman for the Office of Utility Consumer Counselor.

"The key is reaching a settlement that treats the consumer fairly. We believe we accomplished that four years ago."

Swinger said there are no prohibitions to the governor's office participating in negotiations by talking with any of the parties to a rate case. * * *

The coalition [the CAC] has long charged the 2002 settlement was a "sweetheart deal." In part, that's because the final refund was far less than even the IURC's staff had called for.

The Utility Week article quoting Mary Dieter is a smoking gun in the eyes of the CAC, which contends the intervention of the governor's office was brought about by Northwest Indiana political figures, including Manous.

Mullett said the group has become only more suspicious of the governor's intervention over time, because after the Electric Utility Week article, no one would talk about it. That continues to be true today.

"The people who were involved in those discussions are no longer with the agency, and there is nothing in our files concerning such discussions, if they did in fact occur," Swinger said two weeks ago when asked by a Times reporter if the governor's office took part in negotiations with the OUCC.

The governor's office did not contact the IURC during negotiations, said Mary Beth Fisher, an IURC spokeswoman. Any such contact, other than for procedural information such as hearing dates, would be improper, she said.

The Indiana Court of Appeals dismissed the CAC's claims of interference by the governor's office in an Oct. 2003 ruling on the CAC's appeal of the rate settlement.

The CAC earlier this year sent a 30-page report and more than 100 pages of exhibits to Van Bokkelen, asking that the U.S. Attorney look into the matter. That report goes beyond the evidence offered to the Court of Appeals. The CAC also sent the report to Indiana Attorney General Steve Carter and Inspector General David Thomas. * * *

Only an investigatory agency with the power to compel testimony, such as the U.S. Attorney, could get to the bottom of how the intervention of the governor's office was arranged, Mullet said.

"We took this as far as we could," Mullett said. "We did as much as we could with the information we had access to."

The story says that the new CAC report "goes beyond the evidence offered to the Court of Appeals." Here is the 14-page 2003 Indiana Court of Appeals opinion by Judge Baker. The Court's discussion of claims of interference from the governor's office begins on p. 12:
IV. Claims of Interference by Governor’s Office.

CAC claims that the final settlement should not have been accepted because “the OUCC’s statutory role had been compromised by the intervention in the latter stages of negotiations by staff and others associated with the Governor’s Office.” Appellant’s Br. p. 41. As proof, CAC offers up the “undisputed testimony,” Appellant’s Br. p. 43, of Chris Williams, CAC’s Executive Director:

[When] the Governor’s Office concludes that, for reasons of policy or politics or both, consumer interests in a particular case must be compromised to reach a settlement that accommodates the interests of a utility and its investors and/or creditors. . . . . In my opinion, such actions on the part of the Governor’s Office in response to entreaties from utilities or their investors and creditors undermine the institutional role of the [OUCC] as the legal representative and primary advocate of utility consumers.
Tr. p. 7917-18. Counsel for CAC conceded at oral argument that the charge of undue influence by the governor’s office rested on this one witness’s opinion.

We acknowledge that administrative hearings, unlike judicial proceedings, are to be conducted “in an informal manner,” without the strictures of our Rules of Evidence. Ind. Code § 4-21.5-3-25. Nevertheless, an administrative agency’s findings “must be based upon the kind of evidence that is substantial and reliable.” Ind. Code § 4-21.5-3-27 (emphasis added). Williams’s opinion that the actions on the part of the governor’s office weaken the OUCC may be taken into account by the IURC in reaching a decision, but a single opinion voiced by an intervening party simply does not provide “substantial and reliable” evidence of the serious charge of meddling in settlement negotiations. Thus, CAC’s argument is little more than an amorphous allegation best left confined to CAC’s fundraising correspondence.

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to Indiana Government

Law - What is left for the U.S. Supreme Court this term?

The AP's Gina Holland has a story today titled "High Court Faces Deadlines on Big Cases." It begins:

WASHINGTON (AP) -- Before ending a historic term, the Supreme Court must resolve some potential blockbuster cases involving the president's wartime powers, capital punishment and political boundaries in Texas. * * *

With a late June deadline looming, the high court has yet to issue opinions in about 35 cases in which justices have heard arguments. * * *

Some headline-grabbing cases are over: a test of Oregon's physician-assisted suicide law, a constitutional challenge to state abortion restrictions and model-reality television star Anna Nicole Smith's fight for a piece of her late husband's estate.

Still to be decided are cases involving President Bush's power to order military trials for suspected foreign terrorists held at the Navy prison at Guantanamo Bay, Cuba, and an appeal that will decide when death row inmates should get a new chance to prove their innocence with DNA and other evidence.

In addition, the justices are delving into politics. At issue in one case is whether the court should throw out all or part of a Texas congressional map promoted by former House Majority Leader Tom DeLay, R-Texas. A free-speech case asks whether states can limit how much money is spent in political campaigns.

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to General Law Related

Law - PRIVACY? WHAT PRIVACY?

"PRIVACY? WHAT PRIVACY? Cameras, cards and all sorts of data-gathering techniques can follow almost your every move." That is the headline to a long story today in the Chicago Tribune that begins:

If you take the "L" to work and use one of the CTA's new smart cards to pay, there is a computer log of your travels.

If you cross a busy Chicago intersection, a camera may snap your picture and send the digitized image to a database.

If you use Google's free e-mail service, the contents of your personal messages are scanned for keywords to generate ads related to what you wrote to friends or family.

We live in a digital fishbowl, an overlooked aspect of the fiery debate that erupted last week with the reports that the National Security Agency is collecting information on America's telephone calls.

Long before outraged members of Congress raised questions about the government violating individual rights, Americans willingly--and often unwittingly--ceded their privacy to a society that functions on, and is addicted to, information.

Wherever we go, we leave a digital trail that permits advertisers, the government and even bad guys to learn about us.

Young people, in particular, who consider the Internet a virtual coffee shop to gather and chat, think little of exposing a bit of themselves with each visit.

"This isn't just about phone calls, it's about your entire life," said Paul Saffo, director of the Institute for the Future, a California-based research center. "We leave a wake of electronic bits behind with every transaction we make."

Privacy can be jeopardized in myriad ways, but nowhere is the strain more dramatic than through the Internet, which has become a vast warehouse of personal information just a mouse-click away.

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to General Law Related

Ind. Courts - Burns becomes Democratic candidate for Cass Circuit bench

The Logansport Pharos-Tribune reports, in a story by Dave Kitchell:

Cass County voters will have one more race to think about this fall, and it involves the highest-paying elected office in the county.

Logansport attorney Leo Burns is announcing today he is running for Cass Circuit Court judge. Burns, 53, a Democrat, is a political newcomer, as was Republican Sheryl Pherson, who won a three-way race for the Republican nomination on the ballot. They both are seeking a seat held by outgoing Judge Julian Ridlen, who is not seeking a third term.

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to Indiana Courts

Ind. Gov't. - "Listen to the freshman"

"Listen to the freshman: Shape up legislature, or the voters will" is the headline to an editorial today in the Indianapolis Star. Some quotes:

Robert Garton, knocked off after 36 years in the state Senate. Larry Borst, ousted after 36 years in the Senate. Mary Kay Budak, evicted after 26 years in the Indiana House.

All lost to relative unknowns in GOP primaries in the past two years. It's clear, in particular with Garton's defeat this month, that voters are sending a loud message to lawmakers: Change is good. Reform is essential. Entrenched legislators who won't listen to the public's concerns can expect defeat.

In contrast to the lifers who haunt the Statehouse, Mike Delph has served in the Senate all of six months, elected to the post in December by precinct committee members after Murray Clark resigned to help guide the state Republican Party.

Yet, Delph, in a My View published today on the page opposite this editorial, is proposing a series of reforms that would dramatically alter how the Senate operates.

A few of the measures have appeal only to hard-line conservatives, a growing wing of the GOP caucus. * * * The strength of Delph's plan, however, lies in several other proposals that should have bipartisan appeal.

The most intriguing is a call to place term limits on committee chairmen and the Senate president pro tempore. * * *

A second measure centers on the outrageously generous lifetime health insurance benefit that senators have provided for themselves. Delph argues that it should be eliminated immediately.

Garton, who with former House Speaker John Gregg put the benefit in place, fiercely defended the perk, a stance that likely cost him the primary vote.

The next Senate leader, as one of his first actions in the post, should wipe out the perk, a step already taken by House Speaker Brian Bosma.

Actually, what Mike Delph writes re the health care plan is much stronger:
The public loses trust when they perceive we feather our own nests in our positions. We should start by admitting that lifetime health benefits for ourselves and loved ones is a bad idea and should be immediately repealed.
Rep. Bosma only halted the operation of the plan in the House while he was Speaker, and only for members retiring in the future. To do more, the law authorizing the plan would have to be repealed. And that is what Senator Delph is proposing.

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Gov't. - Indiana has yet to identify its critical infrastructure

The Fort Wayne Journal Gazette has several stories today on the State's failure to compile a list of its "critical infrastructure."

"Checking the list, if it exists" is the headlie to this story by Dan Stockman. It begins:

If you had to name the physical things that are critical in your life, it would probably take just a few seconds: House for shelter, car for transportation, phones for communication, clothing, water, food and medicine.

Making the same list for the state of Indiana is a little more complicated. But how long should it take?

In the frightening days after the terrorist attacks of Sept. 11, 2001, Congress passed the USA Patriot Act, which called for increased information sharing in the efforts to protect the nation’s critical infrastructure, and devoted $150 million over two years to make it happen.

A year and a half later, in February 2003, the federal government released its national strategy for protecting critical infrastructure and key assets, detailing what needed to be done.

“Like the federal government, states should identify and secure the critical infrastructures and key assets under their control,” the strategy says.

And just in case officials were unsure of what constitutes a critical infrastructure or key assets, the national strategy explains there are 13 types of critical infrastructure – from agriculture to transportation – and three types of key assets, from monuments and icons to industry and technology to commercial centers and anywhere crowds gather, such as sports stadiums. It then devotes a chapter to each type.

But three years after the national strategy was released, Indiana still cannot say what its critical infrastructure and key assets are.

If it exists, it might be secret.

In fact, officials said, they’re still working to figure out what “critical infrastructure” and “key assets” mean.

When The Journal Gazette filed a request under the state Access to Public Records Act to see the list of sites, Indiana Department of Homeland Security officials said it doesn’t yet exist.

“The definition of the phrase ‘critical infrastructure and key resource sites’ has not been created on the state level, and therefore no such list exists at the current time,” wrote Diane Mack, chief of the department’s strategic planning branch.

More on the confusion:
Bernie Beier, director of the Fort Wayne-Allen County Department of Homeland Security, said the federal list includes only sites with national implications, such as interstate pipelines that carry oil and gas across the country. For the entire state, Beier said, there are fewer than 30 sites.

The list compiled by Fort Wayne of critical sites in the city, by contrast, includes more than 100 sites.

Bright said the definition the department is working on is to determine whether sites like those on Fort Wayne’s list are critical to the state, or if it is only sites like those identified by the federal government.

Though the lists made by individual cities and counties will likely be compiled into one statewide list someday, Bright said, there are no plans to create a list of state assets, such as the Statehouse or the State Department of Health, because they are within Marion County.

“(The Statehouse) belongs to the Marion County infrastructure,” she said. “There’s not that many state buildings, so it would fall within whatever jurisdiction it sits in.”

Randy Collins, who handles the critical infrastructure and key assets list for Indianapolis/Marion County, said that’s not exactly true.

The Marion County list originally did not include any state facilities at all, Collins said, but an update in February included them as an addendum.

“On the update, we broke out and noted that we do have some state critical infrastructure but do not consider them part of our jurisdiction,” Collins said.

Finally, on May 9, the Indiana Department of Homeland Security said that whatever information it does have must be kept secret because it would put those sites at risk of attack.

Re the Fort Wayne list:
Fort Wayne’s list of critical infrastructure and key assets that would need protection from terrorist attacks includes more than 100 sites, including government buildings, health care facilities and chemical plants. Many of the sites were redacted from the list for security reasons, but most – even those with the name missing – are obvious, such as the three entries under “Key high-rise structures.” Many sites make the list because of the large crowds they attract, such as Memorial Coliseum, Fort Wayne Children’s Zoo and the Johnny Appleseed Festival. Others, such as postal and shipping sites, make the list because they are critical to the economy.
A second story, also by Dan Stockman, details his paper's efforts to obtain information on the State's list. Some quotes:
The Journal Gazette first asked the Indiana Department of Homeland Security for the list of the state’s critical infrastructure and key assets on Feb. 28, two weeks after the “Indiana Strategy for Homeland Security” – which mandates such a list – was announced.

On April 7 – more than a month later – department officials finally said they were working to release the list, but first had to remove any confidential information. They expected the process would take another week, since the information was in “at least several large 3-ring binders.”

Four days later, the department said no list exists, because “the definition of the phrase ‘critical infrastructure and key resource sites’ has not been created on the state level.”

If such a list did exist, they wrote, it would probably be exempt from the Access to Public Records Act, which says vulnerability assessments and detailed plans of buildings don’t have to be made public. The newspaper did not ask for vulnerability assessments or detailed plans, only a list of sites.

The Journal Gazette then asked what is in the “large 3-ring binders” the agency initially said contained the list, only to be told on April 13 that it was information from the federal government, but that the state was asking the federal Department of Homeland Security whether it could be made public.

On May 9, the state said the federal government was still reviewing the request, but that any information the state has cannot be released because it would make the sites vulnerable to attack.

Open government advocates say that too often, public officials confuse national security – which means a safe populace – with keeping the government safe from informed criticism by the public.

“In wartime we have to have security, but homeland security is a whole new ballgame and I don’t think we have sorted out yet what it means to our way of life,” said Marian Pearcy, president of the Indiana Coalition for Open Government. “It gets to be a bit oppressive when the fear factor enters in.”

When the Des Moines Register wanted to examine Iowa’s list of key assets, it found that while state law made the list public, it was illegal to copy it in any way. That meant the reporter could look at the list, but was not allowed to take notes of what was on it.

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to Indiana Government

Ind. Courts - Evansville Courier&Press editorial on move to allow cameras in trial courtrooms

From an Evansville Courier& Press editorial today:

Indiana's trial courtrooms are every bit as much public meeting halls as are council and legislative chambers. They are rooms where the business of the people is conducted.

And yet, for too long, the people's eyes and ears - cameras and microphones - have been denied access to those rooms.

That's about to change in Indiana. In a historic decision, Indiana Chief Justice Randall Shepard announced on Tuesday that eight judges in the state will lead a pilot project to allow cameras into trial courts on an experimental basis. "We think, in general, the public benefits by knowing more about what happens in its courts," said Shepard, a former Vanderburgh Superior Court judge.

Of course it does, just as it benefits from having accessibility to all proceedings of its government.

Even as numerous other states were opening their doors to cameras, Indiana kept its courtroom doors closed to them for decades, in part for two reasons: distraction and decorum.

The judiciary did not want noisy visual equipment distracting from the proceedings of its courts. But modern camera and video equipment, handled by professionals aware of court concerns, can be operated now in relative silence.

As for decorum, there has been some concern that trial lawyers might play to the cameras. Perhaps, but that is an issue that presiding judges are fully capable of controlling.

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to Indiana Courts

Ind. Gov't. - More on: The Roob-FSSA's business approach

Julie Creek of the Fort Wayne Journal Gazette has an excellent analytical piece today headlined "Losing the ‘human factor’: State focuses on technology in privatizing key welfare duties." Some quotes:

FSSA Secretary Mitch Roob, plucked from the private health care industry by Gov. Mitch Daniels, is spearheading a plan to turn over the state’s entire eligibility process to a private, for-profit corporation. He looks to technology to guide people through the public assistance maze, largely replacing caseworkers. Applicants will connect with call centers or go online to complete assistance forms.

The winning contractor stands to earn up to $1 billion over 10 years.

Advocates for the poor fear that losing the human factor will scare confused and troubled poor people away from the system. And there doesn’t appear to be a Plan B to catch those who fall out of the safety net or to catch everybody if the safety net can’t stand the stress.

The decision to privatize has been widely publicized. But Roob has said little about how an overhauled system will work, citing confidential contract negotiations. A public hearing on the contract is set for June 30, and it is scheduled to be signed July 5. The contractor will take over shortly after that.

In a just world, huge changes in the way our most vulnerable citizens receive the public assistance that keeps them alive deserve a thorough airing in a public forum. With Daniels’ blessing, no legislative oversight and a slam-bam contract-approval process, that’s not likely to happen.

The state is offering financial incentives to the winning contractor for cutting costs and moving people off public assistance rolls. Hoosiers should demand to know how the state plans to safeguard the poor, who must depend on a company whose first priority isn’t likely to be their welfare.

So far, Roob is asking Hoosiers to trust him to make decisions on behalf of Indiana’s weakest citizens, promising that they won’t be denied access to public assistance. That’s a lot of trust. * * *


Governments have a long history of hiring private companies to perform specialized services, but Indiana will be among the first states to privatize the process of determining eligibility for public-assistance programs.

Most of what is known about the privatization plan is contained in a request for proposals issued by FSSA last fall. The RFP, as it’s known in government circles, is a guide for private companies that wish to bid on the project, outlining the agency’s requirements.

FSSA’s highest priorities: updating technology, saving money and bringing down the error rate.

Mindful they were trolling for profit-minded companies, FSSA officials sweetened the pot by specifying that the company stands to earn bonuses for cutting costs and moving people off welfare rolls.

The RFP attracted two proposals, from Accenture LLP, a spin-off of the Arthur Andersen Co., and IBM. FSSA officials are expected to make a decision on the winning company this week and begin negotiating a contract before the June 30 public hearing.

Though outdated technology is a major problem, Roob said the winning contractor will design only a “wraparound” system to supplement the existing computer system. The contract will also require the contractor to open call centers and create an Internet site so clients can apply for aid without going to a welfare office. Clients would also be able to apply for aid at township trustee offices, food banks and other agencies. * * *

Advocates for the poor who see the privatization plan as inevitable are hoping simply that the state will negotiate a contract that protects the clients who depend on their services.

They argue that federal government safeguards will prevent a private company from denying benefits to those who are eligible. They’re more concerned about the kind of technological snafus that caused havoc in Texas last winter when the state went online with a similar program engineered by Accenture, one of Indiana’s suitors. Texas officials were forced to put the program on hold in April until technical glitches and staffing shortages are fixed.

A Texas-style meltdown would be a calamity, and it’s imperative that state officials make sure they have a backup plan, especially considering that there have been problems with Accenture-built systems in other states too.

Most important, Hoosier voters must hold state officials accountable for the lives with which they’ve been entrusted, especially in an era when it’s popular to blame the poor for being poor. Accountability begins when people pay attention.

“My biggest fear is that the public doesn’t understand what’s going on,” said a caseworker who asked not to be identified for fear of getting fired. “Mitch Daniels will look like a savior. He will be seen as having gotten rid of a system the public doesn’t like. All they see is welfare moms. Daniels will look good because he got the big welfare monkey off the state’s back.”

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to Indiana Government

Ind. Gov't. - "Daniels' emphasis on ethics opens the door to scrutiny "

The Louisville Courier Journal's Sunday column by Leslie Stedman Weidenbener is titled "Daniels' emphasis on ethics opens the door to scrutiny." Some quotes:

[W]hat links the two incidents [the FSSA contract and the criminal justice institute firings] is not the seriousness of the violations but that they occurred under a man who defeated former Democrat Gov. Joe Kernan by repeatedly calling his a scandal-laden administration.

Even after Daniels took office, he spent much of his first year -- and already part of his second -- highlighting examples of mismanagement from previous Democratic governors.

He made much of his "new crew" of state officials, whom he said would bring higher ethical standards to all of state government.

So it's no surprise that problems within Daniels' own administration have generated a flurry of news stories. * * *

[J]ust as Daniels held previous governors accountable for problems that occurred during their administrations, he will be held responsible for the mistakes, the scandals, the ethical lapses in his own.

He has dished out years of criticisms about his predecessors. Even his defense of the controversial FSSA contract focused less on the actions of his administration and instead on the state of the massive agency when he took over.

Even last week, as he was discussing the criminal justice institute problems, Daniels said more than once that the first 42 inspector general investigations referred to prosecutors came from problems under previous governors, not under him.

But as Daniels' administration moves through its second year, that will likely be changing. The inspector general undoubtedly will be focusing more and more on allegations inside the current state government regime.

And the governor will have no choice but to live with the resulting publicity. He set himself up for it.

State government is incredibly hard to manage well, as the Governor is finding out.

Posted by Marcia Oddi on Sunday, May 14, 2006
Posted to Indiana Government

Saturday, May 13, 2006

Ind. Gov't. - The Roob-FSSA's business approach

The AP's Ken Kusmer has a very good story today surveying how the FSSA operates under Mitch Roob. Part of the story focuses on the mega-contract the agency is about to award:

Controversy likely will flare again around FSSA once it picks the winner of the largest contract in state history. Two teams of vendors - each vulnerable to criticism - are vying for a deal estimated at $1 billion over 10 years to take over applications for Medicaid, food stamps, welfare and other benefits received by one in six Indiana residents. Critics went to work months ago gathering information on the out-of-state companies leading each team.

FSSA changed the timeline for awarding the contract after The Associated Press reported the agency would not hold a public hearing until after the contract was awarded. The agency now plans a hearing June 30, five days before the deal is due to be awarded. * * *

Roob, in awarding the state's largest contract ever, will choose between two teams of vendors, one led by Bahamas-based Accenture LLP and the other by IBM and Affiliated Computer Systems Inc., or ACS. The two teams submitted their final offers last week.

Accenture leads a similar team of vendors in Texas currently coming under harsh criticism for problems rolling out that state's privatized benefits system. ACS, based in Texas, has had its own problems: It lost part of a Georgia contract two years ago when it ran into problems processing claims for Medicaid and the state's health insurance program for low-income children.

Roob, who has modeled Indiana's program after Texas's, said FSSA has been preparing to outsource benefit applications for more that a year and will phase in the change over at least two years. He also said he has aides closely following developments in Texas. "I think we would be imprudent not to learn from others and not learn from the hiccups that others have had," he said.

(This Nov. 18, 2005 ILB entry quotes from an earlier Kusmer story on the upcoming mega-contract.)

Gary Welsh of Advance Indiana posted earlier today on the AP story and provided some essential background information:

Nowhere in the article does it mention the obvious conflict of interest Roob faces in making a decision on whom to award the biggest contract in the state's history. * * * [Roob worked at ACS.] At ACS, Roob served as Vice President responsible for client relations in the Midwest and developing an integrated response to the Medicare Modernization Act (MMA).
Here are ILB entries from Dec. 8 and Dec. 9, 2004, on the Roob appointment.

And here is a U.S. Department of Health & Human Services biography of E. Mitchell (“Mitch”) Roob, Jr. Indiana Family and Social Services Administration Secretary. It indicates that he came to the Indiana job directly from ACS.

Posted by Marcia Oddi on Saturday, May 13, 2006
Posted to Indiana Government

Ind. Courts - Hagen files for recount in Noble judge race

Kara Hull of the Fort Wayne Journal Gazette reports today:

With certified election results putting him just four votes behind the winner in the race for Noble Superior I Court judge, Albion attorney Steve Hagen filed for a recount Friday.

Hagen, who is asking that results from all precincts be recounted, said he feels obligated to get a second opinion.

He ran against Ligonier attorney Robert Kirsch, who captured 1,420 votes on election night with Hagen receiving 1,415. Hagen received one more vote earlier this week when three provisional ballots the county received were counted. The other two ballots were only for school board races. Another candidate, Hal Hossinger, received 595 votes.

“I’m just doing this to confirm the election results,” Hagen said Friday. “I think I have to. I just owe a responsibility to those who contributed to the campaign, to my family and myself.”

Opponent Kirsch said Friday he would probably ask for a recount, too, if he were in Hagen’s shoes.

“That’s a narrow enough margin that I think the loser in such a contest would probably always request a recount,” he said.

For those interested in recount mechanics in this new era of electronic voting:
The recount will not mean that all ballots cast in the county will be hand counted, said Brian Black, chairman of the Noble County Election Board.

While all absentee and the three provisional ballots cast will likely be counted by hand, the MicroVote machines will still be used to tally all other votes, he said.

The recount, which Myers estimates will take one day to complete, must be done by June 30.

Though erase marks on absentee ballots – which are filled in by pencil – can sometimes fool electronic scanners, forcing election workers to count them by hand, the bigger occurrence this year was voters marking the wrong party listed at the bottom of the card, Black said.

In these cases, Black said, it was clear by the candidates marked that the voter was supporting one party but had filled in the wrong bubble at the bottom of the sheet. The electronic scanners won’t count these ballots, Black said, forcing election workers to count the votes themselves. Black didn’t know how many absentee ballots had to be tallied by hand this year because of this error.

“You don’t foresee change, but you never know,” Black said. “It’s all interpretation. It’ll be interesting to see; I hope we did it right.”

Posted by Marcia Oddi on Saturday, May 13, 2006
Posted to Indiana Courts

Ind. Courts - South Carolina bar hopes to post lawyers' records

The Charleston South Carolina Post & Courier has a story today about publishing attorneys' disciplinary records online. Some quotes:

The S.C. Bar hopes to begin posting the disciplinary records of the state's 11,500 lawyers on the Internet by this summer.

Bar President-elect Bradish J. Waring of Charleston said the move is another in a series of steps to reinforce public confidence in the legal profession. * * *

Last winter, the Bar opted to start posting lawyer disciplinary actions, just as bar organizations do in a dozen other states.

Weekly lawyer disciplines already are electronically posted by the S.C. Supreme Court as they are issued.

But the state Bar wants all lawyer information and all lawyer histories available to the public on a single, easy to navigate site. The disciplinary marks, running from light reprimands to outright disbarment, would cover public actions against "any living lawyer in their lifetime," said Waring, a partner in the firm of Nexsen Pruet in Charleston.

One of the biggest hurdles has been assembling the data. South Carolina has more than 11,500 lawyers and all practicing attorneys in South Carolina must belong to the Bar

Those attorney records go back decades and "are not in the best shape," Waring said.

One issue to be addressed is how long the disciplines will be posted. The current suggestion is for 75 years, Waring said. He thinks a 50-year limit is more practical, given lawyer retirement and mortality.

Posted by Marcia Oddi on Saturday, May 13, 2006
Posted to Indiana Courts

Ind. Decisions - More on: Bosma's attorneys file their brief this week in legislative prayer ruling appeal

In this entry yesterday, I wrote that I hoped to post the brief filed with the 7th Circuit this week on behalf of Brian Bosma by his attorneys, Winston & Strawn, and the Attorney General's office. Here it is, 68-pages.

Posted by Marcia Oddi on Saturday, May 13, 2006
Posted to Ind. (7th Cir.) Decisions

Law - Indicted Kentucky Governor Fletcher hopes to avoid "perp walk"

"Judge wants Fletcher at arraignment: Governor's staff hopes to avoid court 'perp walk'" is the headline to a story today in the Louisville Courier Journal. Some quotes:

FRANKFORT, Ky. -- Gov. Ernie Fletcher should appear personally at his arraignment next month on three misdemeanor charges because of the case's "importance to the public," according to the judge handling the matter.

But Fletcher's staff said it wants to deprive Attorney General Greg Stumbo "the satisfaction of making the governor do a perp walk" by being in court. * * *

Fletcher spokesman Brett Hall said he and Fletcher's general counsel, James Deckard, want Fletcher to avoid making the initial appearance.

"I've talked to Jim Deckard about it and we would prefer that the governor not appear and deprive Greg Stumbo the satisfaction of making the governor do a perp walk. That's unbecoming of the office of the governor. Especially for a measly misdemeanor," Hall said.

Really.

Posted by Marcia Oddi on Saturday, May 13, 2006
Posted to General Law Related

Ind. Decisions - "To fee, or not to fee: State hopes to clarify kindergarten question"

"To fee, or not to fee: State hopes to clarify kindergarten question" is the headline to a story today by Patrick Guinane in the Munster (NW Indiana) Times.

A May 7th ILB entry includes this quote from a memo from the general counsel of the Indiana Department of Education on the effect of the Supreme Court's decision in Nagy, et al. v. Evansville-Vanderburgh School Corporation on full-day kindergarten:

The Indiana Department of Education has received a number of inquiries regarding the effect of the Nagy decision on full-day kindergarten. Under Nagy, a publicly funded school cannot assess a tuition charge for attendance in a full-day kindergarten. This became effective as of March 30, 2006, the date the Supreme Court issued its decision.
Now, according to the Times story, State Superintendent Reed has issued a "claficiation." Some quotes from the story:
Finicky 5-year-olds might relate with Indiana's education brain trust, which, for the second time in as many weeks, has changed its mind on whether schools can charge tuition for full-day kindergarten.

Munster schools will continue to offer the program next year, after receiving a letter this week from Suellen Reed, Indiana's superintendent of public instruction.

Just last week, a state memo, in bold letters, told districts that a recent court case means schools "cannot charge tuition for students attending either half-day or full-day kindergarten."

Reed now blames the media for reporting that "went beyond our intent," adding "it was never our intent to cause any (school) corporation to change plans it may have had."

The Lafayette Journal & Courier has a story today by Joe Gerrety that reports:
Both Tippecanoe County and West Lafayette schools will offer parent-supported full-day kindergarten this fall, the superintendents announced Friday. * * *

[West Lafayette superintendent Iran Floyd] said a legal opinion from the school corporation's attorney, Robert Reiling, cleared the way for continuing parent-supported full-day kindergarten.

Reiling said he, along with legal counsel for several other Indiana school corporations around the state, disagrees with a recent opinion from Kevin McDowell, general counsel for the Indiana Department of Education.

McDowell issued a memorandum May 1 stating that "a public school cannot charge tuition for students attending either half-day or full-day kindergarten."

The opinion was in response to a March 30 Indiana Supreme Court ruling that a student services fee charged by the Evansville-Vanderburgh School Corp. violated the state constitution.

"There's nothing in the Supreme Court ruling that would prohibit a school corporation from assessing fees for a full-day kindergarten program, in light of the fact that the state only provides funding for a half day," Reiling said.

Reiling said he believes McDowell's opinion is "overreaching."

Suellen Reed's letter is not mentioned in the story. The State Department of Education is still posting the May 1 memo in a news release as the latest word on the subject.

Posted by Marcia Oddi on Saturday, May 13, 2006
Posted to Ind. Sup.Ct. Decisions

Friday, May 12, 2006

Ind. Decisions - Bosma's attorneys file their brief this week in legislative prayer ruling appeal

There have been several reports yesterday and today announcing that Speaker Brian Bosma has appealed or is going to appeal U.S. District Judge David Hamilton's decision in Hinricks v. Bosma.

Well, yes, Speaker Bosma has filed an appeal with the 7th Circuit re the Nov. 30, 2005 federal district court ruling in Hinrichs, et al. v. Bosma. But the appeal (05-4781) was docketed Dec. 30, 2005, NOT this week.

In addition, on Jan. 30, 2006 Bosma filed an emergency motion to stay the district court decision pending the appeal. The motion was denied in this 7th Circuit opinion issued March 1, 2006. See this March 2 ILB entry, including the statement:

The appeal continues, the only issue decided yesterday was whether Judge Hamilton's ruling would be put on hold while the appeal is pending. The three-judge panel yesterday ruled "no", by a 2-1 vote.
Then on March 3, 2006, attorney Thomas M. Fisher filed a motion to withdraw as counsel for the Appellant Brian Bosma. A docket entry dated March 24, 2006 indicates that "Winston and Strawn LLP is now counsel of record for the appellant."

On March 28, 2006 an order was issued granting a motion for extension of time to file appellant's (Bosma's) brief, which is now due May 10, 2006. Appellees' briefs are due June 12, 2006. Oral argument has not yet been scheduled.

So Bosma did not appeal the case this week, his attorneys timely filed his brief by the May 10th deadline set by the court.

See this March 5, 2006 ILB entry for the background behind the move to Winston & Strawn.

Here is a list of all ILB entries on the Hinricks v. Bosma case.

The newly filed brief is not yet available from the 7th Circuit website. When it is, the ILB will provide a link. It could be interesting to see what the new counsels' strategy will be.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending May 12, 2006

Here is the Indiana Supreme Court's transfer list for the week ending May 12, 2006.

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, May 12, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending May 12, 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 May 12, 2006.

There are 43 Court of Appeals cases listed this week.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to NFP Lists

Law - Delaware bars public records access to out-of-staters

The NY Times has a story today that begins:

PHILADELPHIA, May 11 — A panel of federal appeals court judges will rule on the constitutionality of Delaware's Freedom of Information Act, which denies nonresidents access to public records in the state, the legal home of many major corporations.

The three-judge panel of the United States Court of Appeals for the Third Circuit held a hearing here on Thursday in the case.

Ten other states — including two in the Third Circuit, New Jersey and Pennsylvania — have laws similar to the one in Delaware.

From the Delaware News Journal:
PHILADELPHIA -- Delaware's reasons for refusing to allow out-of-state residents access to its public documents appeared to mystify a panel of 3rd U.S. Circuit Court of Appeals judges Thursday.

In court papers, Delaware officials have argued that the residency restriction on the state's Freedom of Information Act or FOIA, helps "define the political community and strengthen the bond between citizens and their government officials."

"What does that even mean?" asked Circuit Judge Maryanne Trump Barry.

Deputy Attorney General W. Michael Tupman attempted to answer, but the cross-examination left him stammering.

The arguments came during Delaware's appeal of a ruling last year by U.S. District Judge Joseph J. Farnan Jr., who found the restriction was unconstitutional.

The case is considered to be potentially precedent-setting, and Barry noted that there was little case law on the subject to guide the judges.

Delaware officials have said 11 other states have similar FOIA restrictions.

[Thanks to How Appealing for the links.]

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals decides five today

Paternity of N.R.R.L. - dismissal of paternity action, affirmed

Kenneth R. Shannon v. Sandra J. Shannon - division of marital estate, affirmed

In Glyn Walker v. Employers Insurance of Wausau, a 14-page opinion (with a dissent by Judge Baker beginning on p. 13), Judge Najam writes:

Glyn Walker appeals from the trial court’s grant of summary judgment in favor of Employers Insurance of Wausau (“Wausau”) in this action to recover under a policy issued to Walker’s employer, KTL, Inc. (“KTL”). Walker presents a single issue for our review, namely, whether the trial court erred when it concluded that there is no genuine issue of material fact precluding summary judgment in favor of Wausau. We reverse and remand for further proceedings. * * *

Conclusion. The trial court erred when it found that Wausau’s admission did not preclude summary judgment because the policy defenses referenced in the admission are not equivalent to policy exclusions. Thus, the trial court erred when it granted summary judgment in favor of Wausau based on policy exclusions. Although the trial court’s grant of summary judgment was not based on whether the UIM provision applied, we considered that issue because we must affirm the grant of summary judgment if it can be sustained on any theory or basis available in the record. We conclude that summary judgment also cannot be affirmed by applying the UIM provision. We further conclude that whether Walker is legally entitled to recover under the UIM provision is an issue for the finder of fact and, therefore, not properly resolved on summary judgment. Thus, we reverse the trial court’s grant of summary judgment in favor of Wausau and remand for further proceedings. Reversed and remanded.

BAILEY, J., concurs.
BAKER, J., dissents with separate opinion.

I must respectfully dissent because the result reached by the majority is the ultimate example of elevating form over substance.

The fact is that Walker is suing Wausau on a contract—an insurance policy—but does not want to be bound by its terms. The policy clearly states that it does not apply to “[a]ny obligation for which the ‘insured’ or the ‘insured’s’ insurer may be held liable under any workers’ [sic] compensation . . . law or any similar law.” Appellant’s App. p. 47. There is no dispute but that Walker was operating the tractor-trailer in the course of his employment, which means that worker’s compensation applies, and this incident is excluded under the clear terms of the policy. Therefore, the insurance company would be entitled to summary judgment on this basis but for a technicality—it responded too late to the requests for admission, which were then deemed admitted.

Without the admission that none of the defenses listed in the policy apply to Walker’s claim, Walker would have no case. Walker could not possibly win this case in a trial on the merits, and I cannot condone this type of “gotcha” litigation. I would therefore find that the trial court erred in denying Wausau’s motion for leave to withdraw the admission, but affirm its grant of summary judgment on the basis that the policy prevents recovery where worker’s compensation applies.

In J.S. v. Center for Behavioral Health, a 20-page opinion, Judge Sharpnack concludes:
Although the trial court’s conclusion that J.S. is dangerous is not supported by clear and convincing evidence, we affirm the trial court’s conclusion that J.S. is gravely disabled. Further, the trial court’s forced medication order meets the guidelines set out by the Indiana Supreme Court in M.P., 510 N.E.2d at 647-648. Thus, the trial court’s order for commitment and forced medication are reasonable and supported by clear and convincing evidence. For the foregoing reasons, we affirm the trial court’s order granting commitment and forced medication.
In Charter One Mortgage Corporation v. Kyle Condra, on behalf of himself and others similarly situated, an 18-page opinion with a long list of counsel on p. 1, Judge Bailey writes:
Case Summary. Appellant-Defendant Charter One Mortgage Corporation (“Charter One”) appeals the trial court’s denial of its motion to dismiss the class action complaint filed by Appellees-Plaintiffs Kyle Condra and “others similarly situated” (collectively referred to as “Condra”). We affirm.

Issue. Charter One raises one issue that we restate as whether the Indiana Supreme Court’s original jurisdiction over the unauthorized practice of law, which derives from Article 7, Section 4 of the Indiana Constitution, is preempted by a regulation promulgated under the National Bank Act that permits national banks to charge incidental fees for legal services provided by non-lawyers in the preparation of real estate loan documents. * * *

For the foregoing reasons, we conclude that the Indiana Supreme Court’s jurisdiction and authority to define and prohibit the unauthorized practice of law by preventing banks from charging document preparation fees for legal instruments prepared by non-attorneys is not preempted by the National Bank Act or 12 C.F.R. § 7.4002.13 Accordingly, we affirm the trial court’s denial of Charter One’s motion to dismiss Condra’s complaint.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Ind. App.Ct. Decisions

Environment - "Septic Tanks Hold Surprises, Some Odious, for New Exurbanites"

The Washington Post yesterday had a lengthy and useful report yesterday, giving the scoop on septic tanks, complete with graphics.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Environment

Ind. Gov't. - Governor recommends justice institute director be fired

The AP is reporting here, in a story that begins:

Gov. Mitch Daniels called for the firing of the Indiana Criminal Justice Institute director after an ethics investigation found funding irregularities including a family friend receiving a grant without the approval of the agency board.

Daniels recommended that the institute's board dismiss Executive Director Heather Bolejack and Deputy Director Katalina Gullans, the governor's general counsel, Mark Massa, said Friday.

Daniels made the decision immediately Thursday after being briefed by Inspector General David Thomas on his ethics investigation, Massa said in a statement.

"At a minimum, evidence suggests unacceptable misconduct and poor judgment. Whether any actions are more serious is a matter for prosecutors to decide," Massa said. * * *

The news comes as a television station reported that the state suspended payments on the $417,000 grant agreement signed last year by Bolejack.

The institute had already paid $80,000 to McKenna Consulting on an agreement signed last fall to start a program called Saving Kids of Incarcerated Parents, Indianapolis television station WISH reported. A $110,000 payment to McKenna was intercepted and contract operations were suspended, the report said.

WISH reported that it checked with several state and private agencies, including the Department of Correction, and that none of them knew of any activities by Saving Kids of Incarcerated Parents.

See the earlier ILB report from April 26, 2006.

[More] Here is the report just posted on the Indianapolis Star website. A quote:

Bolejack, who has led the agency since April 2005, is the first appointee by Gov. Mitch Daniels to be removed, even temporarily, from her job.

Bolejack is an attorney who joined the Daniels administration from the Indianapolis firm of Ice Miller, where she had worked with Daniels' chief of staff, Harry Gonso.

When Daniels appointed her to the state post, which pays $86,716 annually, he called her "an outstanding young woman who is willing to interrupt a flourishing professional career to answer the call to public service."

The institute is the state's planning and research agency for numerous areas, including criminal justice, juvenile justice, traffic safety and victim services, and administers more than $60 million in federal funds.

Under Daniels, the focus of the agency largely has been on finding ways to stop the spread of methamphetamine abuse.

In addition to her salary, Bolejack received $3,369 in reimbursements for travel expenses to regional and national conferences in Washington, Boston, Minneapolis and Hawaii, on topics such as methamphetamine and grants management, according to records from the state auditor's office. She also received a $100 reimbursement for ethics training.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Indiana Government

Ind. Gov't. - Still more on: Porter County seeks input on master plan; Floyd County report

Porter County. Updating Wednesday's ILB entry on the reaction to the Porter County zoning proposal at the first of three meetings, here is a report from Matthew Van Dusen of the Munster (NW Indiana) Times on the second meeting:

VALPARAISO | The farmers and developers ripped into Porter County's proposed development rules Tuesday. On Thursday, the horse people got into the mix.

And after two nights of a three-night hearing on the Unified Development Ordinance, it became clear that the document will need to undergo major revisions -- particularly in sections involving livestock -- before it is passed.

"It seems like every topic we talk about tonight, you've said, 'I've got to look at it,'" said Tim Chesna, the president of the Porter County Builders Association, to Plan Commission Executive Director Bob Thompson.

Thompson began the night by noting that current codes, originally written in the 1950s and revised several times, are so out of date they mention a telegraph office. If the Plan Commission and county commissioners approve the 442-page document, it will replace the subdivision and zoning codes.

But many people objected to the proposed rules that horses will have to be kept at least 30 feet from the property line in residential areas and that in the "residential septic" zoning district only five horses will be allowed per lot.

Jim Lambert, who owns 660 acres and 13 horses in Pleasant Township, said the number of horses allowed on a property should be based on the type of operation -- for example, a stable -- rather than acreage.

Many builders and developers in the audience said the ordinance is overly restrictive and questioned rules about building on slopes and requirements that developments be landscaped and plants be "free from disease and pests."

Here is the report of the always excellent Vicki Urbanik of the Chestertion Tribune on the first (Tuesday) meeting - I urge you to read the entire lengthy story; here is how it begins:
A new wave of debate over how Porter County should grow got underway in earnest on Tuesday, when more than 50 people came out to give their views on the massive new document known as the Unified Development Ordinance.

In the works for nearly two years, the UDO completely rewrites the county’s zoning and subdivision ordinances, which haven’t been fully updated since 1983. At this stage, the UDO creates new zoning classifications and districts and the rules for building in each one; a map identifying how unincorporated areas of the county will be zoned isn’t expected to be done until July or so.

The public’s comments Tuesday in general focused on four themes: The lack of publicity about the UDO; the Porter County Builders Association’s view that it was left out of the initial planning; concerns over how the plan would impact farming; and concerns over a new residential zone increasing the required lot size for homes with septics from one to two acres.

The tone at Tuesday’s meeting -- the first of three this week -- at first was a bit combative, as speakers derided the UDO as too complex, unavailable to the public and too restrictive. But as the discussion continued, the tone became more conversational with most speakers asking questions or sharing their own experiences with development issues like drainage or septics.

Floyd County. Ben Zion Hershberg of the Louisville Courier Journal reports today:
The Floyd County Plan Commission last night approved the first new set of zoning rules for the county in 39 years.

The 8-1 vote is a strong recommendation to the Floyd County Board of Commissioners that it adopt the 198-page ordinance and zoning maps. * * *

Lawyer Greg Fifer, who often represents developers, said after the hearing that he will turn to the courts because the process of adopting the ordinance was flawed.

A new zoning ordinance "is exactly what needs to be done," he said, but the moratorium on new subdivisions, along with last night's vote, may undercut the value of some of his clients' land because they won't be able to develop it as they expected.

In contrast, Callie Potts, who lives in western Floyd County, was thrilled with the vote and said she hopes the Board of Commissioners will act just as quickly.

Under the present zoning ordinance, Potts said, it's impossible for anyone in the county to predict what will be built next to them. That's because the old ordinance established only one zoning district for the entire county, and development plans are approved on a case-by-case basis.

But the new ordinance "lays out a guideline," she said, for what can be built in any part of the county that's not part of an incorporated town.

Among the ordinance's features:

Twelve zoning classifications that range from residential/agricultural -- allowing only one house per two acres -- to districts for office buildings and factories.

Standards for signs, noise and lighting.

Provisions allowing Planned Unit Developments, a type of rezoning that allows developers great flexibility in their designs in return for providing more details than usually required to the Plan Commission.

Standards for sexually oriented businesses that limit where they can be located.

More than 30 amendments recommended by County Planner Don Lopp and others also were adopted. Some of them corrected such issues as typing errors or the clarity of a sentence. Others were more substantive -- one eased the requirements for the amount of open space in certain developments.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Indiana Government

Ind. Gov't. - More open records stories [Updated]

The Fort Wayne Journal Gazette reported yesterday, in a story by Benjamin Lanka that begins:

The Indiana public access counselor ruled this week that the city of Fort Wayne violated the Access to Public Records Act when it denied The Journal Gazette’s request for invoices detailing city legal fees.

Tracy Warner, editorial page editor for The Journal Gazette, sent a letter to the city in early April asking for “all invoices or other record of payments for legal fees related to the city’s attempts to acquire the utility known as Aqua Source.”

The city initially denied the request, stating that it did not have to provide the information. On April 18, the Republican-controlled City Council voted 5-4 along party lines to release the legal information. According to Karen Davis’ letter, the city has since agreed to comply with the full request.

The PAC opinion has not yet been posted, but should be available here shortly.

"West Lafayette Officials Spar Over Document Dispute"
is the headline to a News Channel 18 story that begins:
The dispute started when city attorney Bob Bauman filed a formal complaint against the clerk- treasurer's office.

He alleged the office violated the Access to Public Records Act when someone shredded documents of a city commission. Clerk-Treasurer Judy Rhodes says her assistant destroyed the documents because a commissioner requested they be destroyed. The state's Public Records Counselor found no wrongdoing because she says the clerk is not required by law to maintain records of all city departments.

[Updated 5/13/06] Here is the story via the Lafayette Journal & Courier, headlined "City attorney, clerk treasurer feud over shredded documents."

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Indiana Government

Ind. Law - Another take from the toll road courtroom

Munster (NW Indiana) Times reporter Patrick Guinane was also at the South Bend courthouse yesterday (did he take the South Shore?), and gives his take on the arguments:

SOUTH BEND | Two key questions emerged Thursday as St. Joseph Superior Court Judge Michael Scopelitis heard more than five hours of testimony in a legal challenge to leasing the Indiana Toll Road.

Lawyers for Gov. Mitch Daniels' administration want Scopelitis to invoke a 1998 state law intended to keep "public" lawsuits from stalling things like sewer improvements or school construction.

A public lawsuit label would force the challengers, led by West Lafayette farmer and activist Steve Bonney, to prove a "substantial likelihood of success," or post a bond as high as $3.8 billion -- the bounty a Spanish-Australian consortium has offered for a 75-year Toll Road lease.

"We think it's clear from the statute that that is a public lawsuit," said Michael Wukmer, an attorney with Ice Miler, an Indianapolis firm representing the state.

Lease challengers contend that public lawsuit statute protects only towns, school districts and other municipal corporations. Further, they argue that law only applies to the financing or construction of new assets.

"What it's designed to do is ensure that the courthouse or the school building gets built," said Arend Abel, lead counsel for the plaintiffs. "The Toll Road is already there."

Abel, of the Indianapolis firm of Cohen & Malad, said the public lawsuit law has been tested some 60 times, but never in a case involving the state.

Scopelitis questioned why lawmakers would shield cities and schools but not state government.

"I can't always explain why the Legislature chooses and uses the words that it does," said Wukmer, arguing the law extends to all state entities.

Abel said a semicolon in the statute shows legislators intended the law to apply only to municipal corporations. If the semicolon argument proves central to the decision, it will be a very one very valuable piece of punctuation. * * *

Scopelitis will hear more testimony Monday. The case could end quickly if he declares it a public lawsuit and sets a high bond.

Otherwise, the actual trial likely would begin in June. Scopelitis also suggested he could rule the lease challenge itself a public lawsuit while letting other issues, such as how the proceeds are to be spent, move forward without a bond.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Indiana Law

Ind. Courts - Tippecanoe drug court celebrates certification

The Lafayette Journal & Courier reports today, in a story by Joe Gerrety that begins:

A Tippecanoe County court program that helps criminal offenders overcome drug addiction through intensive supervision is certified to operate for the next three years.

Officials associated with the county's Adult Drug Court celebrated the recent certification by the Indiana Judicial Center with an open house Thursday at Court Services. The certification is good through March 2009.

Mary Kay Hudson, statewide drug court coordinator, said she spent two days reviewing Tippecanoe County's program in March, poring over court files, observing drug court Judge Michael Morrissey during hearings and interviewing people associated with the program.

"One thing that is unique about the program is the participation of a pharmacy representative from Purdue" University, Hudson said.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Indiana Courts

Ind. Law - Indianapolis firm, Hatchett & Hauck LLP , continues to expand

From an annoucement today:

Hatchett & Hauck LLP is pleased to announce that Janet Parsanko, formerly general counsel for the Indiana Department of Natural Resources and a Deputy Attorney General, has joined the firm as an Associate. Also joining the firm is S. Dear Schramm, formerly an environmental manager for a foundry and an electric utility, as a non-attorney Professional.

Hatchett & Hauck LLP is an Indianapolis law firm focusing on environmental issues.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Indiana Law

Ind. Gov't. - Open records law compliance

From an editorial today in the Evansville Courier& Press:

Only days before Mitch Daniels was sworn in as governor of Indiana in 2005, we suggested that his administration get up to speed on Indiana's open meetings and open records laws.

He should have taken the advice.

We were concerned because Daniels was bringing in to the executive branch of state government a number of officials from business and industry. We thought it would be understandable if any number of them were unfamiliar with the Indiana laws that guarantee Hoosiers open access to their public records.

Now, it's looking as if our concern was justified. An Associated Press report tells us that Indiana Department of Transportation Secretary Tom Sharp deleted some e-mails that he was required to retain. That's according to Indiana Public Access Counselor Karen Davis, who has just completed a review of complaints about the Daniels administration and its failure to make certain records available, either at all or in a timely manner. Davis took INDOT and the administration to task and said the law was violated when INDOT failed to provide a timely response to a request for highway feasibility studies.

The editorial continues that who may be asking for the records, or their purpose in doing so, is irrelevant. The editorial concludes:
Nor should the "important work" of this or any state administration ever justify disregard for the state's public access laws. The good works of government must take place under the watchful eye of state sunshine laws. When he was a candidate in 2004, Daniels promised Hoosier voters that he is committed to open government. Based on the public counselor's conclusions, the Daniels administration is still not up to speed.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Indiana Government

Environment - Saving Kentucky's historic tobacco barns

See this story today, with a great photo, in the Louisville Courier Journal. The Washington Post ran a long feature on Maryland's old tobacco barns in early 2004; unfortunately the story is no longer available, but here is the ILB entry.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to Environment

Law - Kentucky Governor Fletcher indicted in merit investigation

When last we blogged about Kentucky's governor, it was an entry from Dec. 28, 2005, with this heading: "Kentucky Governor Fletcher to pick 2 judges in case about himself." Last year the ILB had much coverage of the Kentucky controversy -- of particular interest were the issues relating to the Governor's emails (here is the initial ILB entry on that topic, from Aug. 17, 2005). Governor Fletcher also pardoned staffers prior to their grand jury testimony - see this fascinating report from Nov. 19, 2005. For more, type "Fletcher" in the search box.

Yesterday Governor Fletcher was indicted. Per the Louisville Courier Journal's lengthy story today (the paper also has a number of related stories):

FRANKFORT, Ky. — Gov. Ernie Fletcher was indicted yesterday on three misdemeanor counts alleging that he directed an illegal conspiracy to place his political allies in state jobs at the expense of those who might oppose him.

He is the first Republican governor since 1971 and the first of either party in Kentucky to be indicted. He entered office in 2003 on a pledge to cut "waste, fraud and abuse" in state government.

Posted by Marcia Oddi on Friday, May 12, 2006
Posted to General Law Related

Thursday, May 11, 2006

Ind. Law - More on: Courtroom battle on toll road lease begins today [Re-revised]

Tom Coyne of the AP, who is covering the challenge to the toll road lease in a South Bend court today (see quotes from his story this morning here), reports this evening, in a story headlined "Semicolon could determine fate of the toll road lease":

SOUTH BEND, Ind. (AP) -- The future of the state's plan to lease the Indiana Toll Road to a private investor might hang on grammar and punctuation.

Lawyers for a group trying to block the Indiana Finance Authority from leasing the toll road and the state argued Thursday before St. Joseph Superior Court Judge Michael Scopelitis over exactly what the Legislature meant by including a semicolon in its definition of a "municipal corporation."

The question is key to deciding whether the case is a public lawsuit. If Scopelitis rules the case a public lawsuit, the seven people, along with the Citizens Action Coalition of Indiana, suing to block the deal might have to post a bond - possibly for as much as $3.8 billion - to keep the challenge alive. * * *

The state contends the finance authority is a municipal corporation and therefore must be protected from lawsuits seeking to delay projects. The plaintiffs contend the state finance authority is not a municipal corporation.

That is why the two sides spent much of the hearing arguing over the wording of the state's definition of a municipal corporation.

The definition in question defines municipal corporation as a: "public instrumentality or public corporate body created by state law; including but not limited to cities, towns, townships, counties, school corporations, special taxing districts, conservancy districts, and any other public instrumentality or corporation that has the right to sue and be sued.

"After the words 'conservancy district' there's a comma. Do you think that's limiting?" Scopelitis asked Michael Wukmer, an attorney representing the state.

"I don't think that's limiting at all," he replied.

Scopelitis then told Wukmer that he had looked up the term municipal in the dictionary.

"When I think of the term municipal, I'm thinking of a town, a city or a village. I'm not thinking of an entity with power across the state," the judge said.

Wukmer said he didn't know why the Legislature chose the term "municipal corporation."

But he argued that just as a local agency shouldn't be stopped from completing a $2 million project by a harassing lawsuit, a quasi-state agency shouldn't be stopped from completing a $3.8 billion transaction by such a lawsuit.

"We think it's clear. We don't think there's much debate," he said.

Arend J. Abel, a lawyer representing the plaintiffs, disagreed. He said the Legislature may not have protected the state against such lawsuits because it believed the state has the "wherewithal" to withstand such challenges.

"Here it is anything but clear that the Legislature meant a different meaning," he said.

Abel argued that the municipal corporation definition included in the public lawsuit statute excludes entities such as the finance authority, saying none of the examples given are statewide entities.

"Why is the semicolon there?" Scopelitis asked.

"I don't know why there is a semicolon there," Abel replied. "I don't know why it's a semicolon. It makes no sense for it to be a semicolon."

The two sides also argued over the meaning of the word "local" in the phrase "local public instrumentality or corporation."

Scopelitis did not rule on whether the case is a public lawsuit. Instead, he began hearing testimony from State Budget Director Chuck Schalliol and Ryan Kitchell, the state's public finance director. * * *

More testimony is expected Monday.

The state is pressing Scopelitis to move quickly, saying any pending litigation when the state is scheduled to hand over control of the highway to Statewide Mobility Partners on June 30 could kill the deal. Abel, though, urged Scopelitis to slow the process down, saying it is moving unusually fast.

The "public lawsuit" statute is IC 34-13-5, Public Lawsuits for Testing Public Improvements of Municipal Corporations. The language relating to the posting of a bond is found at IC 34-13-5-7.

As today's story reports: "The state contends the finance authority is a municipal corporation and therefore must be protected from lawsuits seeking to delay projects. The plaintiffs contend the state finance authority is not a municipal corporation."

The public lawsuit law uses the phrase "municipal corporation" but does not define it. However, the term is defined at IC 34-6-2-86 (go to pp. 27-28):

Sec. 86. "Municipal corporation", for purposes of IC 34-13-5, means:
(1) a:
(A) local subdivision of the state; or
(B) public instrumentality or public corporate body created by state law;
including but not limited to cities, towns, townships, counties, school corporations, special taxing districts, conservancy districts, and any other local public instrumentality or corporation that has the right to sue and be sued;
(2) a corporate or other entity that leases a public improvement to a municipal corporation; or
(3) the governing body of a municipal corporation and its members and officers in their official capacity. [emphasis added]
The first defendant named in the lawsuit is the Indiana Finance Authority (IFA). The contention of the defendants is that the IFA is a "municipal corporation." How does the IFA describe itself? The answer is at Section 4 of IC 4-4-11, the Indiana Finance Authority law:
Sec. 4. (a) There is created for the public purposes set forth in section 2.5 of this chapter a body politic and corporate, not a state agency but an independent instrumentality exercising essential public functions, to be known as the Indiana finance authority. The authority is separate and apart from the state in its corporate and sovereign capacity, and though separate from the state, the exercise by the authority of its powers constitutes an essential governmental, public, and corporate function.
(b) The authority shall be composed of the following five (5) members:
(1) The budget director, or the budget director's designee, who shall serve as chairman of the authority.
(2) The treasurer of state, or the treasurer of state's designee.
(3) Three (3) members appointed by the governor, no more than two (2) of whom may be from the same political party.
(c) All members shall be residents of the state.
The IFA is "a body politic and corporate, not a state agency but an independent instrumentality exercising essential public functions." In other words, a quasi-public entity. Certainly not a municipal corporation; that term is never used.

Posted by Marcia Oddi on Thursday, May 11, 2006
Posted to Indiana Law

Ind. Gov't. - Hoosier voting and its many challenges

Geralyn M. Miller, an associate professor of public affairs in the Division of Public & Environmental Affairs at IPFW, who published “Changing the Way America Votes: Election Reform, Incrementalism, and Cutting Deals” in 2004, writes in a guest column today in the Fort Wayne News-Sentinel on her trip to the polls earlier this month. Some quotes:

Voting in this past primary election would have convinced me, had I already not been of the opinion, that we need some meaningful poll-worker training in Indiana that should begin with sensitivity training.

I telephoned the Allen County Election Board prior to voting to make certain that I had the right polling place and even wrote down the address of the location provided to me.

Upon entering my polling place, I was told by the workers that I was not registered. I assured them that I had been told by the election board that this was, indeed, the place at which I was registered to vote. Their response was, “Oh, the election board has been known to be wrong,” at which point the group of workers all chuckled. When I persisted, they succeeded in finding my name among the list of registered voters.

Don't miss reading the entire column!

Posted by Marcia Oddi on Thursday, May 11, 2006
Posted to Indiana Government

Ind. Law - The status of executive orders in Indiana

The General Assembly makes law by enacting statutes; the Supreme Court makes law by writing opinions; the Governor makes law by issuing executive orders. The devil is in the details of the interactions between the three.

For the April 2006 issue of Res Gestae, I wrote a column about executive orders, signing statements and vetos at both the federal and state level. The focus was on what they are, why they are important, and their accessibility. My conclusion was that these important documents are often inaccessible at the Indiana state government level.

For the May 2006 issue of Res Gestae, I have written an in-depth column about the use of executive orders by Indiana governors. Two issues are examined:

(1) Does a governor’s executive order continue in effect when his term is over?

(2) Can the general assembly by passing a statute preempt an area – thereby invalidating an executive order on the same subject?

I was completing the article on May 2nd, the same day the story broke about the contract between a former high-ranking FSSA official and the agency. The first ILB entry on the FSSA issues was May 2, quoting from a Fort Wayne Journal Gazette story headed "State FSSA exec goes from public to private at twice the price."

In an ILB entry the following day, I concluded:

The applicable law here appears to be IC 4-2-6-11, which was amended this year by HEA 1397, SECTION 10 (pp. 13-14). Although the law at subsections (b) and (c) would appear to clearly prohibit this type of arrangement, subsection (e) and a new subsection (g) allow the law to waived by the ethics commission or the appointing authority. Also of interest here is Governor Daniel's Executive Order 05-12.
I was able to obtain copies of the opinion of the FSSA general counsel and two informal opinions of the director of the State Ethics Commission on the validity of the FSSA arrangement and analyzed them in this May 7th ILB entry. Near the end of the entry, I asked: What of Executive Order 05-12, paragraph 8, which appeared to be directly applicable.

I am posting the May Res Gestae column now, rather than waiting until the entire issue arrives in the mail, because the FSSA situation highlights important questions about the staus of executive orders in Indiana law. Here is a quote from the column (footnotes, which are well worth reading, have been deleted here). The entire article may be obtained here.

When Governor Daniels took office in January of 2005, he immediately put in place Executive Order 5-12, “establishing rules of conduct for state officers, employees, and special appointees.”

The relevant statutory provision then in effect, IC 4-2-6-11 , prohibited a former state employee who had had responsibility for any of a list of twelve items, including a contract, an enforcement proceeding, or a public works project, and excluding a legislative matter or administrative policy or rule, from representing a person on that matter for a one-year period, unless the agency involved waived the prohibition as “not in the public interest.”

Also in effect when Daniels took office was Executive Order 04-10, issued by Governor Kernan on April 27, 2004, which placed some limits on senior-level executive branch employees leaving state government for a year from attempting to influence their former agency on behalf of any other person – the “revolving door” prohibition.

Governor Daniels’ order expressly incorporates the terms of Governor Kernan’s prior order. Further, it specifically prohibits both legislative lobbying and executive branch lobbying by former state employees.

In short, Governor Daniels’ Executive Order 5-12 was more stringent that the then-existing statute law set out in IC 4-2-6-11. Was the Governor free to impose stricter requirements on executive branch employees, or did the prior existence of the statute pre-empt the area? [And what of subsequent amendments to the statute?]

The impact of legislative action on the effectiveness of Executive Orders has come up in at least two recent administrative rulings and one law suit filed this year. ***

[After several pages of analysis of the rulings and pending lawsuit, the column concludes]

These two advisory opinions and the pending lawsuit indicate that the legal implications of the interplay between executive orders and statute law have just begun to be explored in Indiana.

Posted by Marcia Oddi on Thursday, May 11, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Courtroom battle on toll road lease begins today

Tom Coyne of the AP reports today:

SOUTH BEND, Ind. (AP) -- A judge plans to hear arguments Thursday over whether those pursuing a lawsuit to block the Daniels administration from leasing the Indiana Toll Road must post a $3.8 billion bond to keep their challenge alive.

The hearing before St. Joseph Superior Court Judge Michael Scopelitis is the latest step in the challenge to Gov. Mitch Daniels' attempt to lease the toll road to a private operator for 75 years. The lease, included in the governor's "Major Moves" plan, would be the nation's largest highway-privatization deal.

The state wants the challenge ruled as a public lawsuit, which could force the plaintiffs to post the multibillion-dollar bond for the amount the state could lose if the project doesn't move ahead as planned.

"A $3.8 billion bond is a suit killer," said Steve Bonney, a West Lafayette farmer who is among those who filed the lawsuit. "There's no way we could get that kind of money. Even 10 percent would be $380 million."

Under Indiana law, public lawsuits are defined as "any action in which the validity, location, wisdom, feasibility, extent or character of construction, financing or leasing of a public improvement by a municipal corporation is questioned directly or indirectly."

The state contends the case meets the standards of a public lawsuit and should be certified as such so it can avoid what it calls a "harassing and meritless lawsuit."

The state contends the lawsuit was filed by a "few disgruntled Indiana residents" unhappy with the state's plan to lease the toll road. The state contends in its April 19 response to the lawsuit that "a handful of protesters must not be permitted to derail or delay the execution of any projects authorized by Major Moves."

"The citizens of Indiana stand to incur billions of dollars in losses and damages," the response says. * * *

Arend J. Abel, an attorney for seven people and the Citizens Action Coalition of Indiana, contends the case is not a public lawsuit because the statute applies only to municipal corporations. He argues that the 157-mile highway across northern Indiana would be leased by a state agency - Indiana Finance Authority - that is not covered by that law.

He also contends the public lawsuit statute applies only to activities by which a municipal corporation acquires a public work.

"It doesn't apply to efforts by a municipal corporation to actually dispose of a public work," he said.

He said there are also claims in the lawsuit that have nothing to do with stopping the lease, such as whether the lessee should be tax exempt.

Abel said if the judge rules it is not a public lawsuit, it would not only mean no bond is necessary but it also would slow down the expedited hearing process the state has sought. Abel doesn't expect an immediate decision from Scopelitis on Thursday.

The hearing Thursday is not expected to get into the main contention of the lawsuit filed by the plaintiffs, which contends that the state Constitution requires that revenue from the sale of any public works, and its annual income, be used to pay off state debt. The Daniels administration contends the toll arrangement isn't a sale - it's a lease.

The state hopes to transfer the highway to the private Australian-Spanish consortium by June 30.

See also this ILB entry from yesterday.

Posted by Marcia Oddi on Thursday, May 11, 2006
Posted to Indiana Law

Ind. Courts - More on the cameras-in-trial-courtrooms pilot project

Some reactions to Tuesday's announcement that the Supreme Court will run an 18-month pilot project allwoing caeras in ten trial courts around the state.

From the Fort Wayne News-Sentinel:

A year and a half ago, Allen Superior Court Judge Nancy Boyer agreed to participate in a pilot program that would test the use of media cameras and audio recording devices inside Indiana’s courtrooms. Currently, those devices are prohibited.

She didn’t hear another word about it until Monday, when an Indiana Supreme Court official told Boyer the program was a go. She is one of nine judges participating, and the only one in Allen County. The change takes effect July 1 and runs through Dec. 31, 2007. * * *

“I thought it had just died on the vine,” Boyer said.

Boyer, an Allen Superior Court judge for 15 years who handles only civil cases, said she was happy to agree to the request but is not without reservations.

“I have some misgivings about it, or questions, I should say,” Boyer said. “Will this have an effect on the proceedings? Will it have an effect on the lawyers, or the jurors or the witnesses? Will they act differently if they know they’re on television?

“Jurors are told that they can only decide on what they see and hear. If some outside influence is changing that, that’s not appropriate.”

The nine judges represent a cross-section of the law. Judge Patricia J. Gifford of Marion Superior Court, for example, only hears criminal cases. At the end of the program, the IBA and HSPA will gather feedback from judges, attorneys, jurors, and members of the media on how it worked. They will then present their findings to the Indiana Supreme Court, which will review whether the changes should become permanent for everybody.

From the Fort Wayne Journal Gazette:
The idea of having cameras in her courtroom concerns Allen Superior Judge Nancy E. Boyer a little bit, but she is willing to try it out. * * *

Although she handles only civil cases, Boyer said other courtrooms tapped for the project handle either all criminal or a mix of civil and criminal cases.

“I think they wanted to get a cross section of cases,” she said.

Perception may lead one to believe that civil courtrooms do not have the drama present so often in criminal cases, but Boyer said there have been a few recent cases that would have been interesting for TV cameras.

She cited a wrongful termination lawsuit against trash hauler National Serv-All, which was settled in 2003, and a product liability complaint against Yamaha as interesting local civil cases.

From the Terre Haute Tribune-Star, a report by Stephanie Salter:
Long an advocate for placing cameras and tape recorders in courtrooms, Vigo Superior Court Judge Michael Eldred was a bit surprised to see local judges excluded from a statewide experiment on installing such devices.

The exclusion was unintentional, said architects of the experimental program, and might still be corrected.

“We hadn’t been advised of any proponents [of cameras]. We did not mean to exclude anybody,” said Dan Byron, an Indianapolis attorney who represents the Indiana Broadcasters Association.

“Nothing is written in stone. It may not be too late,” Byron said.

The broadcasters and the Hoosier State Press Association worked hard to convince Indiana’s state Supreme Court justices to consider modifying current policy to allow still and video cameras and tape recorders in a few of Indiana’s hundreds of courtrooms.

In their planning, the media associations included a list of eight Indiana judges who they believe would be comfortable with recording devices and capable of handling the public scrutiny the equipment brings.

Tuesday, Indiana Chief Justice Randall T. Shepard signed an order to begin an 18-month experiment that would permit electronic and print media outlets to set up at their own expense cameras and recorders in the eight courts.

The next day, Eldred said, he received calls from Wabash Valley broadcasters asking why he had not agreed to be part of the test.

“No judges in Vigo County refused. We were never asked,” Eldred said Wednesday. “The first I knew that the justices had voted was when I read about it in the paper this morning.”

More than a decade ago, Eldred said, the Supreme Court voted exactly opposite of its recent 3-2 decision for cameras.

“Then it was 3 to 2 against, and the issue went away,” he said.

Judge of Superior Court No. 1, Eldred has been on the bench for 25 years. He said photos, video and voice recordings of entire trials help the public gain “a greater appreciation of the gray areas and the ambiguities of the court system.”

Too often, the judge said, people who have not sat in during daily proceedings hear about a verdict or plea agreement and base their opinion of the outcome on fragmentary information. A video or audio record provides dimension and detail a written transcript or news summary cannot.

Dave Remondini, counsel to Chief Justice Shepard, said in a telephone interview Wednesday that he thought the media associations would have included Eldred on their list of judges if they had known about his advocacy of courtroom cameras. While he did not anticipate an expansion of the experimental program, Remondini said, the door was not closed.

Here are links to earlier ILB entries on the announcement: 5/9/06(1), 5/9/06(2), 5/10/06.

Posted by Marcia Oddi on Thursday, May 11, 2006
Posted to Indiana Courts

Law - Jury backgrounds under scrutiny nationwide

"Now in Foreground: Jurors' Backgrounds: Criminal records have triggered mistrials or provided grounds for appeal in some high-profile cases" is the headline to a National Law Journal story today. Some quotes from the lengthy story:

Lack of truthfulness on jury questionnaires is a growing problem that is prompting calls for criminal background checks of jurors.

Jurors' criminal records are being discovered during or after trial, triggering mistrials and providing grounds for appeal across the country. Many in the legal profession -- particularly prosecutors -- are calling for background checks.

In Boston, prosecutors now conduct regular criminal background checks on jurors in homicide cases after fallout from a 2004 murder trial, during which three jurors lied about their criminal records, causing the trial in the murder of a 10-year-old girl to be declared a mistrial. Commonwealth v. Cousin, No. 2002-10867 (Suffolk Co., Mass. Super. Ct.).

In Illinois, where two jurors were caught lying about their criminal pasts in the recent corruption trial of former Governor George Ryan, a federal judge is considering a proposal to allow federal prosecutors to conduct background checks on jurors in certain high-profile cases.

Also in Illinois, another federal judge recently barred prosecutors from conducting background checks of prospective jurors in an upcoming corruption trial involving former high-ranking Chicago city officials. U.S. v. Sorich, No. 05CR644 (N.D. Ill.).

In Ohio, a coalition of defense attorneys recently unsuccessfully sought to stop a county prosecutor's office from checking into jurors' backgrounds. * * *

Prosecutors and defense attorneys alike have noted that there is no law on the books that bans jury background checks.

Some states, such as New Hampshire, Iowa and Indiana, mandate that if background checks are conducted, the information must be shared by both sides. But states such as Virginia and Georgia have granted broader latitude to prosecutors, allowing them to check a juror's background without having to share the information with the defense.

In the 2000 landmark case that granted prosecutors that broad authority, the Virginia Court of Appeals ruled that it isn't unfair for prosecutors to conduct criminal background checks on jurors and withhold the information from the defense.

Posted by Marcia Oddi on Thursday, May 11, 2006
Posted to General Law Related

Ind. Decisions - More on: Gay couple wins adoption appeal

Updated these ILB entries from April 14th and April 13th, re the Court of Appeals' April 13th ruling in In the Matter of Infant Girl W v. Morgan County FCS (3rd item), Tim Evans of the Indianapolis Star reports today:

Attorney General Steve Carter has until Monday to appeal a court ruling that opens the door to simultaneous adoptions by unmarried couples -- including lesbians and gays.

But state Sen. Jeff Drozda doesn't want to leave the decision up to the courts. Drozda said he will introduce legislation in 2007 to bar same-sex couples from adopting, which would over-ride a court decision.

"I think we have an obligation to address and pass something that's much more clear to judges, lawyers and families," the Westfield Republican said.
A three-member panel of the Indiana Court of Appeals ruled April 13 that unmarried couples can jointly adopt children.

Carter is not expected to announce until Monday whether his staff will challenge the ruling, spokeswoman Sarah Rittman said.

Two other Court of Appeals rulings have established precedent in Indiana for co-adoptions by unmarried and gay couples. Those cases involved couples in which a child initially was adopted by one partner, rather than through a joint petition.

Drozda said the lack of clear direction has been cited in court rulings. The result: Some judges approve joint adoptions by unmarried couples, while others deny them. * * *

Drozda will model his new proposal that bans gays from adopting on a Florida law enacted in 1977. That law was upheld in 2004 by the 11th U.S. Circuit Court of Appeals in Atlanta "In my eyes," he said, "that is in the best interest of children and a good public policy decision."

But some adoption and gay rights advocates say the approach is shortsighted. With hundreds of Hoosier children waiting for adoption, advocates say such a law could deny many loving homes with gay couples.

"That certainly doesn't seem to be in the best interest of all the children waiting to be adopted," said Indianapolis attorney Barbara J. Baird, who represented the women in the Morgan County case.

Baird said she is confident the Indiana Supreme Court will uphold the April ruling if it is challenged, a possibility that Drozda and others are not willing to leave to chance. * * *

Bill Blomquist, a political science professor at Indiana University-Purdue University Indianapolis, thinks the adoption issue -- along with abortion and same-sex marriage -- will come into play in the November election campaign.

"I don't doubt for a moment," he said, "that social issues will be a way for the Republican caucus in the legislature to try to hang on to the House." However, Blomquist said the issue won't be as divisive in Indiana as in might be in many other parts of the country because state Democrats are not especially liberal on social issues.

Note: Gary Welsh of the blog Advance Indiana is quoted in a side-bar.

Posted by Marcia Oddi on Thursday, May 11, 2006
Posted to Ind. App.Ct. Decisions

Wednesday, May 10, 2006

Ind. Gov't. - Public Access Counselor chides INDOT, Daniels' office over records inquiries

Mike Smith of the AP reports this afternoon:

INDIANAPOLIS (AP) -- The Indiana Department of Transportation violated state law regarding requests made by the Indiana Democratic Party, and the governor's office has been unreasonable and untimely in responding to separate inquiries, the state public access counselor said.

Access Counselor Karen Davis detailed her conclusions in a letter sent Wednesday to the Democratic Party. The party had questioned whether INDOT and Gov. Mitch Daniels' office were following the open records law regarding requests for e-mails by certain officials and highway feasibility studies. * * *

Davis concluded that INDOT violated the law by failing to provide an initial response to one request within 24 hours, and said it was "troubling" that it took five months to inform the party that e-mails requested of agency Commissioner Tom Sharp were not available because he deletes them.

She said "to the extent that some of the e-mails were required to be retained, and are no longer available," the agency violated the law.

Some of the e-mail from August 2005 was likely to be stored on a server or tapes maintained by the Office of Technology, Davis said, and the agency should investigate that and give them to the party if they exist and are not exempt from the law.

The governor's office ultimately made available records regarding an employment contract with adviser Mark Lubbers, but they should have been produced long before April 12, Davis said. Lubbers no longer works for the office.

"The lapse of nearly five months from the date the request was received until the date the contract and invoices were provided is not reasonable under the APRA (Access to Public Records Act), in my opinion," Davis wrote.

Here is the PAC's 5/10/05 "informal inquiry response".

My first reaction when I read about this Democratic party project last October was that they were just filing public records requests for the heck of it.

Later, when I read that the information requested would be of general interest and that the records obtained would be posted on the party's website, I reconsidered.

Here is "Project Open Government." Much of the information obtained in response to the public records requests is now available from the site. The only item right now that the site states has been obtained but not posted is the FSSA contract -- a note from 11/28/05 states: "The IDP has reviewed all documentation related to Melanie Brizzi's contract, and copies of certain documents have been obtained by the party. They will be uploaded soon."

However, a number of items listed as "completed" on the "Project Open Government" site are only complete in that a response was received indicating that the agency "may have records that are responsive to your request and is in the process of reviewing its files." Most of these responses are from last year. There is no indication of follow-up plans.

Lastly, Mark Lubber's contract is one of the items listed and referenced in the PAC opinion and AP story as finally having been provided by the Governor's office, albeit only last month. However, the contract has not been posted on the site.

Posted by Marcia Oddi on Wednesday, May 10, 2006
Posted to Indiana Government

Ind. Decisions - Court of Appeals decides four today

In Wishard Memorial Hospital v. Jenny Kerr, a 17-page opinion, Judge Barnes writes:

Wishard Memorial Hospital (“Wishard”) appeals the trial court’s denial of its motion to dismiss Jenny Kerr’s complaint, which alleged negligence on Wishard’s part and sought personal injury damages. We affirm.

Issue. The sole issue is whether the trial court properly concluded that Wishard did not employ Kerr at the time of her injury and, therefore, the Worker’s Compensation Act (“the Act”) did not bar her from bringing this cause of action against Wishard.

Facts. Kerr is a registered nurse (“RN”) who was directly employed by CareStaff, Inc., which is a temporary staffing agency for nurses. * * *

On October 1, 2002, Kerr was departing Wishard after completing a shift when she slipped and fell on a freshly waxed floor, resulting in injuries. Kerr applied for and received worker’s compensation benefits from CareStaff’s insurer. She also filed a complaint sounding in negligence against Wishard; the complaint gave no indication that Kerr was an employee of Wishard. Wishard moved to dismiss the complaint for lack of subject matter jurisdiction, alleging that Kerr’s cause of action was barred by the exclusivity provision of the Act because Wishard was Kerr’s employer. Ruling on a paper record, the trial court denied Wishard’s motion to dismiss. The trial court certified this ruling for interlocutory appeal and we have agreed to accept jurisdiction. * * *

Conclusion The trial court did not err in concluding that Kerr was not an employee of Wishard. Therefore, it properly denied Wishard’s motion to dismiss and permitted Kerr’s cause of action to proceed because it is not precluded by the exclusivity provision of the Act. We affirm.

John Henry Ray v. State of Indiana - error in jury instruction found harmless, affirmed

Frank Miller v. State of Indiana - "As discussed in Hawkins, 766 N.E.2d 749 (Ind. Ct. App. 2002), we have previously held that a police officer’s detection of the strong and distinctive odor of marijuana coming from a vehicle establishes probable cause to search the vehicle." Affirmed.

In Arnetia Seals v. State of Indiana, an 11-page opinion, Judge Crone writes:

Arnetia Seals pled guilty to one count of class B felony dealing in cocaine and received an executed sentence of eight years. Seals’s public defender, who has since withdrawn his appearance, filed a brief pursuant to this Court’s decision in Packer v. State, 777 N.E.2d 733 (Ind. Ct. App. 2002), raising several “possible” issues for appeal. We remand for appointment of replacement counsel and rebriefing.

Issue. The issue before us is whether Seals’s brief fulfills the requirements of Packer. * * *

In sum, the public defender’s brief does not fulfill the requirements of Packer. We therefore remand with instructions to appoint replacement counsel for Seals within thirty days of this decision. Counsel will be given ninety days from the date of appointment to review the record on appeal, consult with Seals, and file a new brief on her behalf. Rebriefing will then proceed according to the filing deadlines of Appellate Rule 45(B). We retain jurisdiction of this case.

Posted by Marcia Oddi on Wednesday, May 10, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Porter County seeks input on master plan

Monday the ILB quoted from a Chesterton Tribune story the preceding Friday that began: "Porter County Plan Commission officials will hold three public input sessions next week on the proposed ordinance that completely rewrites the county’s zoning and subdivision rules." The story included a link to the 442-page proposal.

Today the Munster (NW Indiana) Times has a story headlined "Porter County crowd jeers proposed zoning changes: Many concerned about document's complexity." Some quotes from the story by Matthew Van Dusen:

Developers, builders and farmers tore into proposed changes to Porter County's zoning and subdivision rules at a public forum Tuesday night while county Plan Commission officials alternately defended the rules and said they still can be changed.

Speakers at the forum particularly were concerned that they did not know about or could not get a copy of the 442-page Unified Development Ordinance. Many felt overwhelmed by its size and complexity. * * *

The ordinance increases the number of zones in the county, creates special overlay districts where additional rules would apply and, if passed, will lead to a redrawing of the county's zoning map. Plan Commission Attorney Karen Tallian told the crowd that the new rules would still, for example, allow farmers to farm and most other uses would be unchanged.

Many in the crowd focused on the increase in minimum lot size from 1 to 2 acres for lots requiring septic systems. Developer Gary Green, a member of the Porter County Builders Association, said this proposed change "speaks to the credibility" of the group of environmentalists, city officials, farmers and lawyers who drafted the ordinance.

From a side-bar to the story:
What is the Unified Development Ordinance? A 442-page document that combines zoning and subdivision codes, which are currently in separate documents.

Why does it matter? The new rules regulate minimum lot sizes and setbacks and place some restrictions on building. These rules will affect what developers, builders and homeowners can do on their properties.

Will the county be rezoned? Yes. The code has 21 zones, eight of which are new, that the Plan Commission will use to redraw the county's zone maps. The rezoning will not take place until after the zones and their rules are set.

Posted by Marcia Oddi on Wednesday, May 10, 2006
Posted to Indiana Government

Ind. Gov't. - FSSA controversy ends with contractor returning to former state job

"Rhoad reverts to state job, pay: Private contract to double income for same post canceled after inquiry" is the headline to a story today by Niki Kelly (yes, she has three big stories today, so far) in the Fort Wayne Journal Gazette. Kelly's was the initial story on the FSSA contract, published May 2nd (see ILB entry here. Today's story begins:

INDIANAPOLIS – State officials Tuesday canceled an outside contract with a Fort Wayne businessman that stirred controversy last week, choosing instead to put Richard E. Rhoad back on the state payroll at a reduced salary.

A statement from Family and Social Services Administration Secretary Mitch Roob said Rhoad requested the change and “rather than allow his compensation arrangement to cloud our efforts, we’ve agreed to Dick’s request.” * * *

[O]n Tuesday, the governor’s chief of staff, Harry Gonso, said Daniels welcomed the decision and agreed it is appropriate and necessary.

“As the governor has said, sometimes what is legal and within the rules is still not enough. Appearances and public confidence also matter,” Gonso said.

Some quotes from Ken Kusmer's AP report today:
State Democratic Chairman Dan Parker said yesterday an ethics investigation by state Inspector General David Thomas still was needed.

"As far as I've heard, the administration is not accepting any responsibility. It's the 'contract employee' changing his mind," Parker said. "… It's amazing that this administration cannot admit that what it put together was inappropriate. This was flat-out a sweetheart deal." * * *

[FSSA spokesman Dennis] Rosebrough said the extra $80,000 a year covered the cost of the state employee benefits Rhoad no longer received, plus travel expenses.

Rosebrough said Rhoad will keep all of the money he earned during his approximately four months as a private contractor. It was not known how much he was paid.

Mary Beth Schneider of the Indianapolis Star also has a story today. Linda X. McCoy of the Evansville Courier& Press writes:
Family and Social Services Administration Secretary Mitch Roob said the issue was overshadowing more important issues, and that it was never about money.

Roob met Tuesday with the Evansville Courier & Press editorial board and discussed Richard Rhoad's decision and the state's efforts to address those without health insurance.

"Basically, what we concluded and what he concluded was that while technically ethical, while nothing illegal occurred, it was getting in the way of our being able to articulate this message and other messages," Roob said.

Posted by Marcia Oddi on Wednesday, May 10, 2006
Posted to Indiana Government

Ind. Law - Courtroom battle on toll road lease begins tomorrow; feature on attorney Arend Abel

Niki Kelly of the Fort Wayne Journal Gazette has a fascinating story today headlined "Toll Road hearing to settle case type: Billions must be posted if ‘public lawsuit’". Some quotes:

The courtroom battle over Gov. Mitch Daniels’ plan to lease the Indiana Toll Road to a foreign consortium for 75 years gets its start Thursday with an evidentiary hearing in South Bend on several state motions.

Seven Hoosiers and one organization sued April 12, arguing that the law allowing the state to enter into the long-term lease contains several unconstitutional provisions.

But before the sides get to focus on the merits of the case, St. Joseph County Superior Judge Michael P. Scopelitis must decide whether the suit constitutes a “public lawsuit” by law – something the state’s attorneys are advocating.

If so, the judge would have to decide whether the plaintiffs have a substantial issue of law to litigate. Failure to meet that threshold could force the plaintiffs to post a nearly impossible $3.8 billion bond – the amount set to be paid to the state of Indiana after the close of the deal June 30.

The plaintiffs’ Indianapolis attorney, Arend Abel, had asked to limit Thursday’s hearing to only whether the suit is a public lawsuit, saving the issue of any bond for another day. But the judge will take initial evidence on both subjects and could choose to make a preliminary ruling or take the matter under review.

Court documents filed Monday and Tuesday claim the challenge isn’t a public lawsuit because the state law is specific to municipal corporations – such as a city or town – not a state authority such as the Indiana Finance Authority. In fact, not one of the more than five dozen cases decided under the public lawsuit statute involves a state improvement or state agency, the motion said.

Also, in support of the motion to delay the hearing, Abel claims the state has “stonewalled” the plaintiffs in their responses to “interrogatories” – a legal phrase for questions posed to the state. For half of the interrogatories, court records said, the state objected on grounds of privilege and provided no answers at all.

Similarly, Abel has filed a motion to compel State Budget Director Chuck Schalliol and Public Finance Director Ryan Kitchell to release the names and bids of three other groups that bid on the Toll Road lease.

Both men were recently deposed by the plaintiffs and refused to answer the questions based on language in House Bill 1008 that protects the information from the state’s open records law until the closing of the financial transaction.

“We’re not discussing the level of the other bids,” Kitchell said. “We think it’s in the best interest of the taxpayers.”

But Abel argues in court documents that state law doesn’t protect the officials from disclosing the information during the discovery process of a lawsuit. He also claims the information is relevant to the multibillion-dollar bond that has been requested.

The judge did not order the state to disclose the bids during a telephone conference Tuesday.

In yet another motion filed by the plaintiffs, Abel seeks to keep six lawmakers on his witness list that the state wants to bar.

This story follows on Kelly's story from April 25th headed "Daniels wants Toll Road foes to post billions," quoted in this ILB entry.

Kelly also has a story today on Indianapolis attorney Arend Abel:

INDIANAPOLIS – It’s not enough that Indianapolis attorney Arend Abel is taking on the state in two significant lawsuits of interest in northeast Indiana and around the state.

Nature made his job a little harder when ferocious weather struck the high-rise containing his law firm’s offices April 2 – leaving one side of the building hanging in the wind and sending shards of glass from dozens of blown-out windows falling to the ground.

“We were only out of the office for three weeks,” he said gamely, noting he worked from home as well as in temporary space provided.

Those weeks were pretty important, though, because he sued April 12 on behalf of eight plaintiffs seeking to block one of the largest road programs in history – the leasing of the Indiana Toll Road for $3.8 billion in highway construction money.

On top of that, Abel is lead attorney on a suit out of Allen County challenging the ability of the Alcohol and Tobacco Commission to seize illegal gambling machines known as Cherry Masters.

“I’ve had a long-standing interest in the Indiana Constitution,” said Abel, noting he occasionally writes the constitutional law questions for the state bar exam. “I absolutely believe in these cases.”

He will fight for those beliefs this week during a crucial hearing Thursday in St. Joseph County on the Major Moves suit.

He and his Fort Wayne co-counsel – Alan VerPlanck, James P. Fenton and Kathryn A. Brogan – sought to delay the hearing, which Superior Court Judge Michael P. Scopelitis denied Tuesday. * * *

The 45-year-old has been practicing law for 20 years after his graduation from Ball State University and receipt of his law degree from Indiana University. He has been with the law firm Cohen & Malad for nearly three years.

The Hoosier native argued before the U.S. Supreme Court twice during a four-year stint under then Attorney General Pamela Carter – and won both times. He also was a key part of the state’s team in boxer Mike Tyson’s rape appeal. * * *

Over the years, he has been involved in litigation testing the initial riverboat casino law; served as counsel for the Indiana Department of Environmental Management in 1994, defeating a challenge to its regulations governing solid waste facilities that involved Chemical Waste Management and the city of New Haven; and is involved with a current lawsuit against Indiana defibrillator manufacturer Guidant.

He recently thwarted an attempt by state officials to require entities with a charity gaming license to give a certain percentage of their gross revenue to charities other than themselves.

Posted by Marcia Oddi on Wednesday, May 10, 2006
Posted to Indiana Law

Ind. Courts - Even more on: Indiana's cameras-in-the-courtroom pilot project

Today's papers have a number of stories on the announcement by the Supreme Court yesterday of an 18-trial pilot "cameras in the courtroom" project in trial courts across the State. Here is the report of Bryan Corbin, of the Evansville Courier& Press, who first reported on the story yesterday morning. Some quotes:

In front of cameras in a Vanderburgh County courtroom, Indiana's chief justice signed a history-making order Tuesday that opens up Indiana courtrooms to news photographers. * * *

Indiana for decades prohibited photographing trials and court hearings, but after considering the requests of two media organizations, the Indiana Supreme Court voted 3-2 to revise that policy.

"We think in general the public benefits by knowing more about what happens in its courts," Shepard said.

The change means television and still cameras and audio recorders will be allowed to operate inside those eight courtrooms, provided the litigants in the case agree to it beforehand. Flash cameras, distracting spotlights and intrusive camera noise won't be permitted. And photojournalists won't be allowed to film jurors, police informants, undercover agents, minors or victims of sex crimes.

At the end of the 18-month experiment, the Indiana Supreme Court will evaluate whether to allow courtroom cameras on a wider basis. * * *

Shepard said he chose Evansville to unveil the project because it is where he first observed the news media covering courts, while he was a Vanderburgh Superior Court judge in the early 1980s.

He also cited the 1955 murder trial in Evansville of Leslie "Mad Dog" Irvin, a death-penalty case so inundated by prejudicial pretrial publicity that Irvin was granted a new trial by the U.S. Supreme Court. After the Irvin case, cameras were prohibited in Indiana courtrooms.

"Over time, that lesson has been re-examined. The nature of press coverage changes, the equipment changes and the way the public reacts to press coverage has shifted. So there is an unusual historical connection Evansville has to the topic," Shepard said during a courtroom news conference.

Starting July 1, the Supreme Court order will allow one TV camera, one still camera and three audio recorders in the participating courtrooms, as long as each side in the case agrees to it in advance. It will be up to news organizations to work out the logistics of "pool coverage" of the case. Though the order doesn't specifically address the Internet, Shepard said nothing would prevent Web casting trial court proceedings live.

Richard D. Walton of the Indianapolis Star reports:
Most states already allow cameras in their courtrooms, as do the Indiana Supreme and Appeals courts, but the issue isn't without controversy.

Critics argue allowing cameras could intimidate witnesses and cause lawyers and judges to play to the camera. "You're adding a performance element to it," said Bob Hammerle, an Indianapolis criminal defense attorney. "You end up focusing on matters other than what you're there for."

Proponents say cameras would hold lawyers and judges accountable, and be a reality check for citizens whose main source of legal news is Judge Judy.

Under the Indiana program, no jurors, confidential informants, minors or witnesses at sentencing hearings may be photographed. And use of cameras will require the consent of the judge and both parties.

Allowing cameras inside eight of Indiana's roughly 275 trial courtrooms is part of a trend toward opening up government proceedings. In 2002, the Indiana House of Representatives began letting people listen to debates via computer. The chamber upgraded to video in 2005. The Senate joined midsession last year.

Nationally, videocasts of legislative proceedings are becoming commonplace, with at least 27 states having some form of Web or television viewing.

More than 30 states allow cameras in their trial courts. By the mid-1990s, with the advent of Court TV and other such programs, the momentum appeared to be with the movement. Many federal judges, in their own test of whether the ban on cameras in federal courtrooms should be lifted, found that the cameras did not disrupt proceedings and in some cases had a good effect.

For example, lawyers tended to be better prepared. "They didn't want to look foolish or bad under that kind of microscope," said Stephen Key, general counsel for the Hoosier State Press Association.

Then came the O.J. Simpson trial. The circus atmosphere surrounding the 1995 murder trial turned off much of the federal judiciary, who voted against lifting the camera ban. "The O.J. Simpson trial set cameras in the courtroom back probably 10 years," Key said. * * *

Shepard says there are safeguards against abuses, and he isn't all that worried about lawyers posturing for the viewers. "The typical news clip of any story these days is so short, you don't have a lot of time for theatrics," he said.

Courts participating in the program, which also permits tape recordings of trial proceedings, are located in Fort Wayne, South Bend, Muncie, Indianapolis, Evansville and Crawfordsville. Among local jurists involved are Marion Superior Judges Robert R. Altice Jr. and Patricia J. Gifford.

Posted by Marcia Oddi on Wednesday, May 10, 2006
Posted to Indiana Courts

Tuesday, May 09, 2006

Ind. Courts - More on: Indiana's cameras-in-the-courtroom pilot project

As reported here via the ILB early this morning, the Indiana Supreme Court is authorizing a pilot project in the trial courts - here is the just released announcement:

Evansville, Ind.—Chief Justice Randall T. Shepard announced today that the Supreme Court has authorized a pilot project to test the use of still and video news cameras and tape recorders in Indiana's trial courts.

The Supreme Court's decision came in response to a request from the Indiana Broadcasters Association and the Hoosier State Press Association. The 18-month pilot project will involve eight trial judges who have agreed to participate in the project.

“I hope that this experiment will help inform the public about the workings of the judicial system and remove any mystery about what happens in a courtroom. The ultimate success of the project will be determined by how much the public benefits from this greater access afforded the working press,” said Chief Justice Shepard.

Under the terms of the order, news cameras and news radio station recorders will be allowed only in the courts of the eight trial judges who are part of the project. The trial judge and all parties must also agree to allow cameras or recorders into the courtroom.

The project will allow one video camera, one still camera and up to three tape recorders in a courtroom at each time. The news media must agree to “pool” or share the coverage under an arrangement approved by the trial judge.

The judges who are participating in the project are:

* Judge Nancy E. Boyer, Allen Superior Court, Fort Wayne
* Judge Robert R. Aylsworth, Warrick Superior Court, Boonville
* Judge Robert Barnett, Jr., Delaware Circuit Court, Muncie
* Judge Robert R. Altice, Marion Superior Court, Indianapolis
* Judge Patricia J. Gifford, Marion Superior Court, Indianapolis
* Judge Thomas K. Milligan, Montgomery Circuit Court, Crawfordsville
* Judge Michael G. Gotsch, St. Joseph Circuit Court, South Bend
* Judge Wayne Trockman, Vanderburgh Superior Court, Evansville

At the conclusion of the project, the entire effort will be evaluated to determine its future. The project was approved by a 3-2 vote. Chief Justice Shepard, Justice Frank Sullivan, Jr., and Justice Theodore R. Boehm voted in the majority. Justice Brent E. Dickson issued a dissent in which Justice Robert D. Rucker joined.

Here is a link to the 13-page official document, In Re: Pilot Project for Electronic New Coverage in Indiana Trial Courts. It includes the 3-page Order signed by CJ Shepard and Justices Boehm and Sullivan, plus a 2-page Exhibit. This is followed by a 9-page dissent written by Justice Dickson, with Justice Rucker concurring.

Posted by Marcia Oddi on Tuesday, May 09, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues two Indiana opinions

In USA v. Jarrett, Jerry (ND Ind., William C. Lee, Judge), a 17-page opinion, Circuit Judge Evans writes:

Jerry Jarrett is an aggressive and successful criminal defense attorney from northern Indiana. Jarrett, however, has not always limited his services to representing accused clients. On at least two occasions, according to a jury that found him guilty beyond a reasonable doubt, he helped drug dealers launder money produced by their illegal enterprises. And for those activities he came to the attention of federal prosecutors, which eventually led to the jury that heard his case.

After he was tried and convicted for money laundering and illegally structuring financial transactions, Jarrett moved to have his indictment tossed out, claiming he was the victim of a vindictive prosecution. Jarrett argued that the government only came after him because he succeeded in getting state murder charges dismissed against a client who was the target of a highly publicized, joint federal-state investigation. In a lengthy and detailed opinion, the district court (the venerable Judge William C. Lee presiding) found that Jarrett was vindictively prosecuted. Upon that finding, the court vacated the jury verdict and dismissed the charges. The government, hoping to revive the jury’s verdict, appeals. * * *

For all these reasons, the judgment of the district court dismissing the indictment is REVERSED, and the jury’s verdict is ORDERED REINSTATED. Mr. Jarrett will have a full opportunity to challenge any aspect of his trial, or proceedings that occur after remand, by appropriate motion or appeal. The case is thus REMANDED for further proceedings.

In King, Starlett v. Harrington, Brian (SD Ind., Larry J. McKinney, Chief Judge), a 7-page opinion, Circuit Judge Bauer writes:
Starlett King and Jeff Shetterly brought suit against Brian Harrington for injuries sustained in an automobile accident. Based on diversity of citizenship and claimed damages in excess of $75,000, the case was tried in the United States District Court for the Southern District of Indiana. After a two-day trial, the jury rendered a verdict in favor of the defendant. The district court denied plaintiffs’ motion for a new trial, and this appeal followed. We affirm.

Posted by Marcia Oddi on Tuesday, May 09, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues three today

In Timothy W. Young v. State of Indiana, an 8-page opinion, Chief Judge Kirsch writes:

Timothy W. Young appeals his conviction for residential entry, a Class D Felony. He raises one issue, which we restate as whether the trial court abused its discretion when it failed to instruct the jury on Class A Misdemeanor criminal trespass as a lesser included offense of residential entry. We reverse and remand. * * * We reverse and remand for retrial consistent with this holding.
In State of Indiana v. Gerry Harmon, an 8-page opinion, Judge Riley writes:
Appellant-Plaintiff, the State of Indiana (the State), appeals from the trial court’s grant of Appellee-Defendant’s, Gerry Harmon (Harmon), Motion to Suppress. We reverse. * * * Based on the foregoing, we conclude that the trial court erred in suppressing the evidence seized from Harmon’s residence.
In Calvin Bankhead v. Robert Walker, a 12-page opinion, Judge Riley writes:
Calvin Bankhead appeals the trial court’s determination that disciplinary actions taken against him by Appellants-Petitioners, former Gary Fire Chief, Richard Gilliam (Chief Gilliam), and the Gary Fire Civil Service Commission (the Commission), were in good faith. We affirm.

Posted by Marcia Oddi on Tuesday, May 09, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - "Zoning subjectivity"

"Zoning subjectivity" is the title to an editorial today in the Fort Wayne Journal Gazette. Some quotes:

Two rulings from the Fort Wayne Board of Zoning Appeals demonstrate the subjectivity of local zoning regulations. The decisions raise questions about what constitutes an undue hardship and whether affluence has a role in determining whether variances to city zoning and development standards are granted. * * *

In the first case, owners of a home on stately Forest Park Boulevard faced a stop-work order on a $500,000 renovation project because the contractor deviated from development standards by building too close to the property line. The next-door neighbor wrote a letter to the board to complain.

Nonetheless, the board granted a variance from zoning codes and allowed the renovation. In the board’s opinion, the homeowners met the legal standard of “practical difficulties in the use of the property” if the renovations were not allowed as planned. The zoning board did give a stern warning to the contractor to follow the city’s zoning ordinance more carefully in the future.

The second case was that of Jackson Daycare, located in a less affluent part of town. Darryl and Carolyn Jackson, who own the property and run the day care center, were seeking a variance of the city zoning ordinance use provisions. The child-care center property is zoned R1, for residential, and requires someone to live in the house in order to use it as a home daycare center. * * *

Unlike the renovations to the home on Forest Park, the neighbors are supportive of the child-care center. The center serves several families in the neighborhood and is considered by most to be an asset to the neighborhood. Many of the neighbors attended the hearing to show support for the Jacksons and the center. * * *

In both cases, the property owners were in violation of zoning rules, but one was granted a variance and the other, sadly, was not. And that seems rather unfair to both the property owners and the neighborhoods.

For more on the first case, see this April 28th ILB entry.

Posted by Marcia Oddi on Tuesday, May 09, 2006
Posted to Indiana Law

Ind. Courts - "Suspicious Package Shuts Down Indiana Courthouse"

cbs2chicago.com reports:

CROWN POINT, Ind. County government was shut down for several hours Monday in Lake County, Indiana.

Hazmat crews took no chances when a judge didn’t like the looks of package that arrived in the mail.

CBS 2 Northwest Indiana Bureau Chief Pamela Jones reports this is the third time in about a month that hazardous materials workers have been called to the Lake County Government Center.

Officials had been warned a harmful package might arrive from a suspect conjuring up a “dangerous demonstration against the court system.” * * *

The judge whose office received the package says the person who sent it is upset after losing a property rental case in another court. CBS 2 is told the suspect has threatened to send packages with contagious material before.

“When we saw the package and we knew who it was from, we were concerned,” said Judge Nicholas Schiralli.

Posted by Marcia Oddi on Tuesday, May 09, 2006
Posted to Indiana Courts

Ind. Decisions - "Appeals court upholds murderer's 65-year term"

The Indianapolis Star has a brief story today about a Court of Appeals opinion, apparently not-for-publication:

A state appeals court has upheld a 65-year prison sentence for a man convicted of murder in a shooting during a late-night party near Ball State University.

Terrance "Tez" Manley, now 26, pleaded guilty in August 2000 to murder in the Oct. 31, 1999, shooting death of Julian Brown, a 28-year-old Gary resident.

In his appeal, Manley argued that Delaware Circuit Court Judge Robert Barnet Jr. did not consider Manley's "expression of remorse and stated desire to become a productive citizen" before issuing the sentence. * * *

The appeals court ruled Barnet "was not obligated to identify Manley's expression of remorse as a mitigating circumstance."

Posted by Marcia Oddi on Tuesday, May 09, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indiana's cameras-in-the-courtroom pilot project

"Media cameras going to court" is the headline to this story by Bryan Corbin in today's Evansville Courier& Press. Some quotes:

A Vanderburgh County courtroom will make history when it becomes one of the first trial courts in Indiana to allow news media cameras inside to record trials and hearings.

Indiana Chief Justice Randall Shepard is scheduled to announce today that Vanderburgh Superior Court will be among 10 courts statewide to participate in the cameras-in-the-courtroom pilot project.

While other states allow video and still photography in their trial courts, Indiana does not; longstanding Indiana trial rules forbid it. Shepard, an Evansville native, gradually has relaxed that rule in recent years. In 1997, cameras were first allowed inside hearings of the Indiana Supreme Court and Indiana Court of Appeals. Starting in 2001, both courts offered live Webcasts of their hearings.

But as recently as March, the Indiana Supreme Court turned down a request from the CBS news program "48 Hours" to videotape David Camm's sentencing after his murder trial in Warrick Superior Court 2.

Prohibiting photography in trial courts has been rooted in the concern that it might deprive defendants of fair trials, that it would be distracting for jurors and that attorneys might grandstand for the cameras.

But Vanderburgh Superior Court Judge Wayne Trockman, who will preside over the local pilot project, said he was not concerned. "I have a lot of faith in our (local attorneys) that that's not going to occur, and they're going to be professional and not play to the camera; they're going to play to the jury as they're required to do."

When Shepard approached him some time ago about leading one of the pilot projects, Trockman answered that it can be done in a nondisruptive fashion, he said.

The proposed order states the camera cannot show the faces of jurors or of witnesses who are minors, for example, Trockman said. * * *

The pilot project is separate from an effort under way to install closed-circuit cameras in Vanderburgh County Misdemeanor Court, so inmates can be arraigned remotely by video without having to leave the county jail. * * *

Shepard is to announce the news-camera pilot project this afternoon in Vanderburgh Superior Court, where he once presided as a county judge before being appointed to the Indiana Supreme Court in 1985.

Posted by Marcia Oddi on Tuesday, May 09, 2006
Posted to Indiana Courts

Monday, May 08, 2006

Ind. Courts - "Cooper sues Jacobi, Vissing for defamation"

The New Albany News-Tribune reports this afternoon, in a story by Larry Thomas headlined "Cooper sues Jacobi, Vissing for defamation":

Embattled Clark Superior Court No. 1 Judge Jerome F. Jacobi took another hit late Monday afternoon when the husband of his primary election opponent sued him and supporter Jack Vissing for defamation of character.

Jeffersonville attorney Lonnie Cooper claims his “personal and professional reputations have been damaged” by comments Jacobi and Vissing made against him in defense of Jerry Lemmons, Jacobi’s former chief of staff.

Cooper is the husband of Jeffersonville City Court Judge Vicki Carmichael, who beat Jacobi by nearly 1,200 votes in Tuesday’s Democratic Party primary. Jacobi was elected to the bench in 1994 and again in 2000.

Cooper said he filed the suit in Clark Circuit Court at around 4:30 p.m. Monday. He said he tried to arrange the timing of the filing so that it would be almost impossible for news of the action to reach the media until after the election, something he said Carmichael insisted upon. * * *

The law generally protects judges and lawyers from defamation actions, but Cooper’s suit argues that those privileges are not applicable in this case because Jacobi’s and Vissing’s comments were made “with actual malice or reckless disregard as to the truth.”

The state’s Code of Judicial Conduct generally bars judges from commenting on pending criminal investigations and cases.

Posted by Marcia Oddi on Monday, May 08, 2006
Posted to Indiana Courts

Ind. Courts - "Judge, clerk’s staff at odds in Martin County"

"Judge, clerk’s staff at odds in Martin County" is the headline to a story by Laura Thigpen in the Washington Times-Herald. The article begins:

SHOALS — An encounter between officials from the Martin County Clerk’s office and Circuit Court Judge Joe Howell turned heated Thursday, just as a 9 a.m. meeting of the County Council prepared to adjourn.

What started as an attempt by the council to find out just how much progress an inexperienced clerk’s staff had made since the last council meeting dissolved into an argument when Bobbi Nonte, daughter of newly-installed Clerk John Hunt and administrator of the clerk’s office, slammed open the door to the clerk’s office to rejoin the discussion in the commissioners room.

Earlier in the meeting she and Hunt told the council their office was finally getting caught up after taking over in late March and then making it through their first election with few problems. Serving the court and handling elections are the two primary responsibilities of clerks. Another is collecting and distributing child support.

When Nonte entered, however, Howell had just finished informing the council of his fear that the situation in Hunt’s office hadn’t improved since the judge last reported to them just how far behind Hunt’s staff was in processing and filing the business of the court.

“It’s the clerk of the court,” Howell said, responding to Auditor Frances K. “Cookie” Taylor’s remark that the clerk’s job couldn’t be all that important if just anyone could run for the position. “And it’s getting to the point where it’s really pretty serious.” * * *

At least one council member, Lynn Gee, who served for eight years as matron of the Martin County Jail during her husband Joe’s tenure as sheriff, seems to realize how important it is that the court’s business be kept current.

For background, see this 4/6/06 ILB entry quoting from another Thigpen story, headed "New clerk may cost Martin County."

Posted by Marcia Oddi on Monday, May 08, 2006
Posted to Indiana Courts

Courts - Representing oneself in court

"Do-it-yourself defendants: Self-representation may help some gain favorable verdicts" is the headline to an interesting story in the Baltimore Sun. Some quotes:

Socrates and Joan of Arc did it. So did serial murderer Ted Bundy, Black Panther Bobby Seale, Long Island Rail Road murderer Colin Ferguson and, briefly, Zacarias Moussaoui, who was sentenced to life in prison last week for conspiring in the Sept. 11 attacks. They all defended themselves in court, a right that - with certain constitutional safeguards - is guaranteed in this country. * * *

Self-representation is a legal strategy many lawyers decry, saying that the old adage - a man who is his own lawyer has a fool for a client - got it right. But some legal observers take a different view, suggesting defendants might have legitimate reasons for acting as their own lawyers and that such a defense sometimes leads to favorable outcomes.

Erica Hashimoto, a professor at the University of Georgia School of Law, recently set out to determine whether empirical data supported the assumption most lawyers make: that pro se defendants, as they are technically called, are "either mentally ill or stupid."

In the study, which is scheduled to be published in the North Carolina Law Review, Hashimoto found that pro se felony defendants in state courts were as likely as defendants with counsel to win complete acquittal. In addition, they were more likely to be convicted of lesser offenses - misdemeanors rather than felonies, according to Hashimoto's review of data, a sample from the National Archive of Criminal Justice Data that covers the country's 75 largest counties in the even years between 1990 and 1998. * * *

"My conclusion is that the right to self-represent is a good thing," Hashimoto said.

Often, people choose to defend themselves because they have an ideological position they want to air - about taxes or euthanasia, for example - or because they are dissatisfied with their appointed lawyers. * * *

Mossman also found that pro se defendants had some advantages in court. They had a greater opportunity, for instance, to develop a rapport with the jury, or they had access to details that helped them in cross-examinations. Sometimes, in light of their inexperience, judges gave them extra leeway. * * *

The majority of lawyers, however, do not believe such advantages add up to much in the long run. "It's like going into an operating room and having a carpenter or plumber perform surgery," said Jim Wyda, the federal public defender for Maryland. "If you're charged with any serious or complicated criminal offense, it's never a good idea to go into courtroom alone. ... These individuals are almost always suffering from poor mental health."

He has not seen either study but questioned whether it is possible to glean accurate information from newspaper articles about someone's mental state.

Doug Colbert, a criminal law professor at University of Maryland School of Law, also believes that those who represent themselves in criminal cases are often mentally impaired or, at least, deeply idiosyncratic. Even Roy Cohn, the late Manhattan lawyer and power broker who successfully defended himself in court, had something of a persecution complex, he said. Muhammad's former Maryland attorneys put the convicted sniper in a similar category - they alleged he was too mentally ill to represent himself.

But self-representation can be a reasonable choice in some instances, Colbert said. If a lawyer is very closely tied to a local court system, for example, a defendant's lack of faith in his counsel could be legitimate.

A pro se defense can make a political point or lead to an acquittal, Yaroshefsky said, but she also has firsthand knowledge of how it can go wrong.

As if to make the point, the NY Times today has a story by Adam Liptak headlined "Nonlawyer Father Wins His Suit Over Education, and the Bar Is Upset." It begins:
Several years ago, Brian Woods sued the school board in Akron, Ohio, on behalf of his autistic son Daniel. Mr. Woods wanted to make sure that Daniel received an appropriate education, and he won several concessions and about $160,000.

"I soundly defeated a team of lawyers," Mr. Woods, an adjunct professor at Cuyahoga Community College, said yesterday.

When the Cleveland Bar Association got wind of Mr. Woods's victory recently, it also went to court — to sue Mr. Woods.

The bar association said he had engaged in the unauthorized practice of law. It sought a $10,000 fine, lawyers' fees and a promise that he would not continue to assist other parents seeking to represent their own children in court.

The Ohio Supreme Court was not impressed. On April 20, it ordered the bar association to produce evidence by next week in support of its complaint, saying the available facts suggest that Mr. Woods "has not engaged in the unauthorized practice of law."

With that deadline looming and after reports on the controversy in The Plain Dealer in Cleveland, the bar association backed down. Sort of.

In a statement on Wednesday, its president, P. Kelly Tompkins, said the complaint against Mr. Woods "had a legitimate, technical basis." Mr. Woods did, after all, represent someone else in court — his son — without being a lawyer.

The filing of the complaint was nonetheless a mistake, Mr. Tompkins said, withdrawing it and apologizing to the Woods family. The association should not have considered filing the complaint, he said, until after the United States Supreme Court acted in a case it might decide to hear this month.

That case involves two other Ohio parents, Jeff and Sandee Winkelman. In November, the federal appeals court in Cincinnati gave the Winkelmans, who had been representing their autistic son Jacob in a suit against the Parma, Ohio, school district, 30 days to find a lawyer or have their case dismissed. Justice John Paul Stevens issued a stay of that order in December.

Federal courts around the country are divided over the circumstances in which parents who are not lawyers may represent their children in federal court under the Individuals With Disabilities Education Act.

The Indiana Courts website has a "Self Service Legal Center: Helping People Help Themselves." Access it here.

Posted by Marcia Oddi on Monday, May 08, 2006
Posted to Courts in general

Ind. Decisions - 7th Circuit issues Indiana opinion today

In Sallie N. Peeler v. MCI, Inc. (SD Ind., Richard L. Young, Judge), a 4-page opinion argued 1/24/2002 and decided today, the panel of two affirms and remands. The ruling begins:

PER CURIAM. Sallie Peeler filed this action in a state court seeking an injunction against the installation of fiberoptic cable along the Monon Trail, an abandoned railroad right-of-way in which Peeler claims an interest as the owner of an adjacent parcel. After the suit’s removal under the diversity jurisdiction, the district court denied Peeler’s request for a preliminary injunction. Events during the pendency of Peeler’s appeal make it unnecessary to decide whether the district judge erred.

Posted by Marcia Oddi on Monday, May 08, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Porter County seeks input on master plan

The Chesterton Tribune reported Friday:

Porter County Plan Commission officials will hold three public input sessions next week on the proposed ordinance that completely rewrites the county’s zoning and subdivision rules.

Called the Unified Development Ordinance, the proposed document establishes new zoning categories and building standards. Among other provisions, the document also proposes scenic roadway corridors and arterial road corridors.

The document can be viewed online by going to the Porter County Plan Commission’s department web page on the county government’s website at www.porterco.org

The ordinance is expected to be revised based on public input. The public input sessions will be on Tuesday, Thursday and Friday of next week, all beginning at 6:30 p.m. in the County Administration Center. Each session will be devoted to select chapters of the new plan.

The 442-page Porter County Unified Development Ordinance is available here.

Posted by Marcia Oddi on Monday, May 08, 2006
Posted to Indiana Government

Law - More on: "Remaking cities: What price?"

On Sunday, April 30th, the Cincinnati Enquirer had a number of features on eminent domain -- see the ILB entry here.

Yesterday the Enquirer published another set of stories, Part II of its series, under the general heading "Forced to Leave." One nice feature is a table comparing the Ohio and Kentucky law (unfortunately Indiana is not included), under the heading: "Ohio and Kentucky take very different approaches to eminent domain laws - with the Bluegrass state giving property owners far more protection than its Buckeye neighbor."

Posted by Marcia Oddi on Monday, May 08, 2006
Posted to General Law Related

Sunday, May 07, 2006

Ind. Gov't. - Yet more on: State FSSA exec goes from public to private at twice the price

As noted at the end of this ILB entry from May 4th: "The ILB is attempting to obtain from the Ethics Commission copies of its informal opinion on the contract."

I can now report that the FSSA faxed over copies of the documents to the ILB late Friday afternoon.

Before discussing them, some quotes about the contract from Matthew Tully's column in today's Indianapolis Star:

This latest flap involves the agency's former chief financial officer. CFO Richard E. Rhoad quit his $100,000 post earlier this year, but only after he agreed to an outside contract to do the same work for up to $180,000 per year.

I know what you're thinking: Are you kidding?

No, I'm not.

That's why [Dan] Parker, the Democratic chairman, must have been feeling like it was Christmas last week and he was a spoiled 5-year-old kid.

Because as far as press conferences go, this one was as easy as it gets for an opposition party. You don't often hear a tale of a top government executive working out a new outside contract for himself -- for more money -- while he is still a state employee. * * *

[At the press conference, FSSA head Mitch Roob] defended the contract, saying the money is actually the same. First, he said, in addition to Rhoad's former $100,000 salary, Rhoad also received about $80,000 in benefits and travel expenses. Under his new contract, Rhoad receives no benefits and must pay for his own travel and the portion of taxes employers typically cover. * * *

The head-shaking details kept getting worse last week. An FSSA spokesman, for instance, told me that as a contractor, Rhoad is free to take other outside jobs -- with certain conflict-of-interest guidelines. He also gets to use a state-funded office in Indy.

Don't expect this issue to go away.

My first question, when reading the above, was, if, as Roob is quoted, "the money is actually the same" as when Rhoad worked for the state, then why do the contract?

The answer, as far as I can determine from the facts available, is that when Roob offered the FSSA job to Rhoad in early 2005, he said the State would pay Rhoad's travel and living expenses. Rhoad accepted this offer and went to work for the State.

This agreement apparently was unwritten, and it was illegal in that its terms did not comply with laws governing state employment, and it was not processed through the state system.

The Budget Agency at some point picked up on this and said FSSA couldn't pay all these travel and expenses for Rhoad anymore. I can't tell whether Budget has yet required that the past illegal payments, which may have continued for nearly a year, be reimbursed.

So when Roob says that the money is the same, maybe it is, but the initial oral employment agreement was illegal. And to remedy this problem, FSSA and Rhoad entered into what appears to be the ultimate no bid, revolvng door contract.

Here is the fax the ILB received from the FSSA. There are three documents.

This first document, from page 2 through 5 of 9, is a memo from John Davis, FSSA general counsel, dated Nov. 18, 2005. He writes:

Facts: FSSA's CFO lives in the Fort Wayne area. The CFO was recruited specifically by Secretary Roob for the position. The understanding in the recruitment was that the CFO would be able to commute to work from Fort Wayne and FSSA would pay him for his travel and lodging expenses. This arrangement was satisfactory for a period of time, but has now been determined impermissible by the Indiana State Budget Agency.

The issue was then raised as to whether the CFO could have his travel expenses included in his pay. This would make him an extremely high paid State employee.

The final solution reached was to discontinue the CFO's State employment and hire Allied Professional Services, LLC, a corporation run by the former CFO, under contract. In this way FSSA could cover his travel expenses and honor the original employment agreement.

The terms of the agreement with Allied Professional Services, LLC allow more flexibility with respect to the services the CFO previously provided. The contract requires less supervision of the CFO by FSSA and provides FSSA with more services than if the CFO had remained a State employee.

Issue: Will hiring a company run by FSSA's former CFO violate any State ethical laws/policies?

[The memo then sets out the text of IC 4-2-6-9, 4-2-6-10.5, and 4-2-6-11, plus 40 IAC 2-1-9.]

Analysis: The CFO's employment arrangement was originally agreed to before the CFO began work for FSSA. The new contract FSSA would have with the CFO's company would only fulfill FSSA's part of the employment agreement, with respect to the reimbursement of travel expenses.

One ethical implication here which could be raised is conflict of interest. However, upon investigation this does not create a conflict of interest. The CFO has not been a part of the negotiation of this contract and has been screened from all drafting of this contract.

In this situation a distinction exists between when the employment agreement was created and when it needed to be memorialized into contract form so as to honor the original agreement.

The CFO's employment also raises the issue of the 1 year restriction specified in IC 4-2-6-1 1. The current situation does not violate this code section. This is true since the CFO was not involved in the negotiation of the contract between his company and FSSA, and was not in a discretionary position with respect to the outcome of the contract. The CFO while working for FSSA was not in a position to make any licensing decisions over his company. Futhermore, the company the CFO will be working for is his own and therefore his service with them is not the result of a state contractor attempting to influence a state employee with the prospect of a job. In light of the circumstances, the 1 year restriction has clearly not been violated.

Conclusion: The hiring of FSSA's CFO by a company under contract with FSSA, in order to honor the CFO's original employment agreement does not violate any ethical laws or policies. The CFO originally negotiated the agreement before becoming an FSSA employee. The CFO had no discretion over the acceptance or denial of the contract with his company, The contract at issue here was the direct result of the need by FSSA to honor their end of an employment agreement. No conflict of interest is implicated as all negotiation which occurred with respect to this agreement took place before the CFO was originally hired as a State employee.

According to this AP story by Ken Kusmer:
Davis signed and dated his memorandum the day after Rhoad, Davis and Roob signed a contract that would have paid Rhoad's private company up to $2 million over two years for Rhoad and two other employees to provide consulting work _ including the duties of agency CFO.

The $2 million contract never was executed. Instead, FSSA in January awarded Rhoad a three-year contract worth $540,000 to essentially act as the agency's CFO and to supervise the closing of the Fort Wayne State Developmental Center.

"Mitch (Roob) wanted to keep him," agency spokesman Dennis Rosebrough said Thursday. "He said this all along. This whole issue was how can we keep Dick at CFO and abide by the compensation policy that Mitch recruited him at. That's the bottom line."

FSSA reached the $180,000 figure by combining Rhoad's $100,000 FSSA salary with what he would have collected in benefits and travel costs that Rhoad will continue to incur while commuting to the agency's offices in Indianapolis.

Rosebrough said the timing of the $2 million contract signing and the Davis memo was not unusual. Discussions over how to resolve the compensation issue and satisfy ethics requirements were occurring simultaneously, he said. The $2 million contract would have included work developing a new accounting system for FSSA, work that eventually went to other contractors.

Rosebrough also defended the $180,000-per-year contract even though the State Budget Agency found it impermissible for a state employee.

"The State Budget Agency was not debating Mitch's agreement in principle with Dick. They weren't debating whether we should be paying this or not paying this," Rosebrough said.

FSSA also consulted State Ethics Director Mary Lee Comer, who said in an informal opinion that FSSA needed to screen Rhoad from any involvement in the agency's decision to accept his employment contract.

I find the reasoning and conclusion in the Davis memo hard to accept. The memo itself states that Allied Professional Services LLC is a professional corporation run by Rhoads. But FSSA did not enter into a services contract with the corporation in early 2005; it entered into an unwritten employment arrangement with Rhoads to come work for the State that did not comply with the requirements of state law and that could not be honored by the State Budget Agency.

The second document, on pages 6 through 7 of 9, dated Dec. 22, 2005 at 10:50 a.m., is a memo originally from Mary Lee Comer of the State Ethics Commission to Steve Schultz, then Counsel to the Governor, giving an informal opinion. The pertinent part:

It is our understanding that Mr. Rhoad will not be accepting "employment or receiving compensation from an employer." He will, in fact, be self employed and contract with FSSA to provide personal services. In addition, his new employer is FSSA, not an employer who did business with FSSA. Therefore, the post-employment statute does not prohibit Mr. Rhoad from contracting with FSSA to provide services to FSSA after terminating his position as an employee of FSSA.

[The memo sets out the text of 4-2-6-11.]

Thus, in the same paragraph, it is first said that Rhoads will be "self-employed" and then it is said that "his new employer is FSSA."

The third memo, on pages 8 through 9 of 9, dated Dec. 22, 2005 at 11:52 a.m., is also from Judge Comer to Mr. Schultz, and is labeled "supplemental opinion." The relevant part:

Steve and Anne [Murphy of FSSA]: Steve asked us to render a supplemental opinion regarding the application of IC 4-2-6-10.5 (copied below) to Mr. Rhoad's contract with FSSA.

FSSA must screen Mr. Rhoad from any involvement in the agency's decision to accept the terms of his employment contract. In addition, as an employee of FSSA, Mr. Rhoad cannot have a financial interest in a contract with any state agency without complying with the terms of Section 10.5. Since compliance with the terms of Section 10.5 takes time, we suggest that Mr. Rhoad's contract not be executed by FSSA until after his date of termination as an employee of the agency.

[The memo sets out the text of part of IC 4-2-6-10.5.]

Read with care the provisions of IC 4-2-6-10.5(a) and (b), as quoted in Judge Comer's memo. According to this story by Niki Kelly in the Fort Wayne Journal Gazette:
State Ethics Director Mary Lee Comer also said Rhoad’s contract should not be executed by the agency until after his date of termination as a state employee.

It doesn’t appear this caveat was met. Rhoad’s resignation letter was given Jan. 12 but was “effective as of the close of business Friday, January 13, 2006.”

Rhoad entered into the contract with the state as president of Allied on Jan. 13, the same day other state officials also signed off on the contract.

And what about Governor Daniels' Executive Order 05-12, para. 8?
8. No state officer, employee, or special state appointee who leaves state government after January 10, 2005 shall accept employment or receive compensation for one year:
a. as a lobbyist engaged in lobbying the executive or legislative branches of state government in Indiana;
b. from an employer [i.e. Rhoad's corporation] if the former officer, employee, or special state appointee was engaged in the negotiation or administration of one or more contracts with that employer or in a position to make a discretionary decision affecting the outcome of the negotiation or administration of such a contract; or
c. from an employer if the former officer, employee, or special state appointee made a regulatory or licensing decision that directly applied to the employer or to a company that controls, is controlled by, or is under common control with, the employer.
Finally, there is this case, reported in the Indianapolis Star on Feb. 23, 2006, headlined "Ex-state employee suing over work ban."

[More] The ILB did not receive a copy of the FSSA contract, only the three memos. I will try again Monday.

For background, start with this ILB entry from May 3rd and this one from May 4th.

Posted by Marcia Oddi on Sunday, May 07, 2006
Posted to Indiana Government

Ind. Courts - Court judge won't be back

The Elkhart Truth reported Thursday, in a story that begins:

GOSHEN -- City Court Judge Cecelia McGregor isn't coming back to work, her staff said Tuesday. Now they're fighting to keep the court from closing down.

McGregor's been on medical leave since last fall, dealing with complications from multiple sclerosis. The 22-year-judge is applying for disability benefits and won't finish her term, which runs through next year.

"She's a fighter, that lady," said Jan Bolock, second-deputy clerk. "We love her to death and it's just difficult that we don't have her around."

Not only has the staff -- and 40 temporary volunteer judges -- worked hard to keep the office running without the boss, they're openly lobbying to save the court.

City officials will consider closing it later this year -- and sending all cases to county courts -- if they don't find a way to increase revenue.

See this earlier entry from the Nov. 1, 2005 ILB (2nd item).

Posted by Marcia Oddi on Sunday, May 07, 2006
Posted to Indiana Courts

Ind. Gov't. - More on: Senate leader ousted

Updating the ILB entry from May 3rd, a "My View" column in the Sunday Indianapolis Star is written by John Knull, director of Frankilin College's Pulliam School of Journalism. Titled "Because Garton broke trust, he lost votes," Krull writes:

The week before the primary, I assigned my reporting students at Franklin College's Pulliam School of Journalism to do some door-to-door voter canvassing on the Garton-Walker race.

The purpose of the assignment was not scientific. It was an exercise designed to encourage young journalists to overcome the natural human reluctance to approach complete strangers and engage them in serious conversation. I told the students to ask the people they talked to open-ended questions and to try to find out what they really thought and felt. I chose the Garton-Walker contest because the college is right in the heart of that Senate district.

What the students uncovered in that assignment predicted Tuesday's outcome.

Virtually everyone they talked with had heard about Garton's defense of an incredibly generous health care plan for senators and his embrace of a positively voluptuous retirement plan for senators.

The people who planned to vote against him were furious about the health care and retirement packages and were practically organizing their entire week's schedule around plans to get to the polls so they could cast their ballots.

In addition -- and this is the part that spelled real trouble for Garton -- even those who said they supported him were not happy. One elderly Franklin woman who told the students she supported Garton said she could not see supporting Walker, but didn't really believe that Garton represented her. She said that he seemed to care more about protecting his own interests than he did about looking after hers.

Posted by Marcia Oddi on Sunday, May 07, 2006
Posted to Indiana Government | Legislative Benefits

Ind. Decisions - Still more on: "Schools Can No Longer Charge Parents for Full-Day Kindergarten"

A story by Erin Smith in the Lafayette Journal and Courier on Friday updated this May 4h ILB entry. Some quotes from the J&C story:

Tippecanoe School Corp. officials are expected to make plans today to cancel 10 sections of full-day kindergarten after a recent Indiana Supreme Court decision made charging fees for certain programs unconstitutional.

The state Department of Education's legal department issued a warning to school districts who charge for full-day kindergarten programs.

State law requires that kindergarten be offered but does not specify either half- or full-day programs, a memo sent to school districts stated. That means schools cannot charge fees for a student to attend either kindergarten, said Kevin McDowell, the education department's top attorney.

TSC superintendent Richard Wood said the state's interpretation of the ruling leaves little hope that the district can continue to offer parent-supported full-day kindergarten.

"We can't afford to waive the cost of that program," Wood said of the district's tuition-based kindergarten, where parents pay about $200 a month for full-day classes. "We're going to lose the program, reassign those teachers and notify the parents."

Here is the May 1, 2005 memorandum from the general counsel of the Indiana Department of Education on the effect of the Supreme Court's decision in Nagy, et al. v. Evansville-Vanderburgh School Corporation on full-day kindergarten. A quote:
The Indiana Department of Education has received a number of inquiries regarding the effect of the Nagy decision on full-day kindergarten. Under Nagy, a publicly funded school cannot assess a tuition charge for attendance in a full-day kindergarten. This became effective as of March 30, 2006, the date the Supreme Court issued its decision.

Posted by Marcia Oddi on Sunday, May 07, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Tiny ad could cause big trouble for lawyer"

"Tiny ad could cause big trouble for lawyer" is the headling to a story by Bob Kasarda today in the Munster (NW Indiana) Times. Some quotes:

The advertisement for Michael Haughee's law practice is not much bigger than a standard business card and could easily have gone unnoticed by anyone flipping through the program handed out during last month's Unity Dinner for Democrats in Porter County.

Yet the small ad may be enough to fuel some serious problems for the Griffith attorney and former Hebron Town Council member, who was ordered by the Indiana Supreme Court a month ago to temporarily stop practicing law.

Haughee is not supposed to be advertising for new clients while on suspension, according to Charles Kidd, staff attorney for the Indiana Supreme Court Disciplinary Commission.

Haughee could possibly be held in contempt of the Supreme Court if it is determined he violated the court's order, Kidd said.

Haughee said Friday that he had no intention of violating the court's order and was sorry if he offended anyone. He said the advertisement has appeared in the dinner program for years and was placed there again last month without him making a request.

Yet that is not the way it is remembered by Jeffrey Chidester, who said he co-chaired the April 30 dinner and is listed in the program as the master of ceremonies.

Chidester said Haughee called April 25 -- four days after the printing deadline -- specifically asking for the advertisement to appear in the dinner program. The advertisement was a repeat from the year before, he said.

Haughee said he did not request the ad during the call. Rather, he said he called to discuss the number of people in his party and his bill.

Haughee's right to practice law was suspended by the state Supreme Court on April 3 as a result of three disciplinary matters, Kidd said. The cause of the disciplinary matters is confidential, but Kidd said Haughee was suspended for failing to cooperate with the investigation.

See also this April 6, 2006 ILB entry, quoting a Munster (NW Indiana) Times story headed "State suspends Griffith attorney indefinitely."

Posted by Marcia Oddi on Sunday, May 07, 2006
Posted to Indiana Courts

Friday, May 05, 2006

Ind. Decisions - Court of Appeals issues three today

Paternity of P.W.J., Phillip William Gray v. Linda Sue Schachel - child support, age at emancipation, doctrine of laches.

Eusebio Kho, M.D. v. Deborah Pennington, Findling Germano & Pennington, P.C. and Ruby Miller is a 17-page opinion by Judge May, where:

[An earlier] lawsuit alleged the Hospital’s emergency room had negligently treated or released Tracy Merle Lee. Dr. Kho was on-call when Lee was treated and Pennington dismissed Dr. Kho after she determined he was not on duty at that time.

Dr. Kho sued Pennington, her law firm, and Miller (collectively “Pennington”) for malicious prosecution and the trial court granted summary judgment for Pennington. * * *

The trial court properly granted summary judgment for Pennington, as she had probable cause to include Dr. Kho in Miller’s lawsuit and there is no private action available to Dr. Kho for Pennington’s violation of Ind. Code § 34-18-8-7. We therefore affirm.

In Heather Skeffington d/b/a Skeff's Landscaping v. David Bush, Great Oaks Nursery, a 5-page opinion, Judge May writes:
Heather Skeffington d/b/a Skeff’s Landscaping appeals the change of venue granted to David Bush d/b/a Great Oaks Nursery. She argues the trial court abused its discretion because the suit is related to land in Lake County. We reverse. * * *

We find a sufficient nexus between Skeffington’s action and the football fields Bush hydro-seeded for Skeffington’s complaint to alleged claims related to land. See Hagerman, 736 N.E.2d at 821. Because the land is in Lake County, preferred venue lies there. See T.R. 75(A)(2). Accordingly, we hold that the trial court abused its discretion in transferring venue to Porter County. See Hagerman, 736 N.E.2d at 821.

Note: The Court at page 2, footnote 2, provides a link to a hydroseeding fact sheet prepared by the Wyoming Natural Resources Conservation Service. Question: Will this be readily accessible in the future?

Posted by Marcia Oddi on Friday, May 05, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending May 5, 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 May 5, 2006.

There are 28 Court of Appeals cases listed this week.

Posted by Marcia Oddi on Friday, May 05, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending May 5, 2006

Here is the Indiana Supreme Court's transfer list for the week ending May 5, 2006.

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, May 05, 2006
Posted to Indiana Transfer Lists

Thursday, May 04, 2006

Ind. Decisions - Court of Appeals issues one today

In Melissa Jones v. State of Indiana, a 20-page opinion, Judge bailey writes:

Appellant-Respondent Melissa Jones (“Jones”) appeals the judgment of the trial court finding her in contempt of court for refusing to appear at a pre-trial deposition after having been subpoenaed to do so. Jones also challenges the trial court’s imposition of a two-hundred-day “flat” sentence. We affirm. * * *

For the foregoing reasons, we affirm the trial court’s finding of criminal contempt. Because Jones was not afforded a jury trial—or given the chance to waive her right to a jury trial—we note that the trial court improperly sentenced her to a term exceeding one hundred and eighty days. However, inasmuch as the trial court commuted Jones’s sentence to time served and, further, because she only served approximately one hundred and two days of her sentence, we conclude that her sentence was not unreasonable or inappropriate.

Posted by Marcia Oddi on Thursday, May 04, 2006
Posted to Ind. App.Ct. Decisions

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

Confirming last week's story from WISH TV (see ILB entry here), the Indianapolis Star reports today, in a story by Jon Murray:

Parents who were planning to pay to send their children to full-day kindergarten next year may now get it for free -- or possibly not at all.

A recent court decision makes fees for full-day kindergarten in Indiana unconstitutional, according to a memo sent to districts throughout the state by the Indiana Department of Education this week.

Indiana doesn't require children to attend any kindergarten. The state pays only for half-day kindergarten, so full-day programs typically charge parents from $200 to $350 per month. * * *

The Education Department memo stems from a March 30 decision by the Indiana Supreme Court overturning a $20 fee for all students in Evansville-Vanderburgh Schools. That district had intended to use the fee to offset part of a budget deficit, but the court said it amounted to tuition -- which the Indiana Constitution forbids for public schools.

The Education Department's top lawyer wrote in this week's memo that state law requires schools to offer kindergarten but does not specify whether it must be for half- or full-day. That means schools cannot charge fees for a student to attend either kind, Kevin C. McDowell said.

Other common school fees -- such as driver education -- also could be affected by the court decision. The Education Department has not drafted guidelines on other possible issues affected by the ruling.

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 Thursday, May 04, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Even more on: State FSSA exec goes from public to private at twice the price

Niki Kelly reports today on in the Fort Wayne Journal Gazette in the continuing story of the $180,000 per year FSSA contract (see most recent ILB entry here):

INDIANAPOLIS – The Indiana Democratic Party on Wednesday asked Indiana’s government corruption watchdog to investigate a state contract with a Fort Wayne businessman who they claim outsourced his state job to himself to nearly double his pay.

The move came just days after The Journal Gazette reported the agreement between Richard E. Rhoad and the Family and Social Services Administration.

“I believe that this contract may be in violation of at least one state ethics law and possibly a criminal statute that prohibits public servants from profiting from government contracts,” Democratic Party Chairman Dan Parker said in his request to Inspector General David Thomas.

“Moreover, I believe this agreement is in violation of the public trust and the spirit of government.” * * *

Rhoad even signed the contract on his last day as a state employee Jan. 13. * * *

Family and Social Services Administration officials also claimed the Indiana State Ethics Commission rendered a favorable informal advisory opinion on the issue but refused to provide it to The Journal Gazette on Monday.

Late Wednesday – after growing statewide media pressure – officials released the document, which said Rhoad should be screened from any involvement in the agency’s decision to accept the terms of his employment contract.

State Ethics Director Mary Lee Comer also said Rhoad’s contract should not be executed by the agency until after his date of termination as a state employee.

It doesn’t appear this caveat was met. Rhoad’s resignation letter was given Jan. 12 but was “effective as of the close of business Friday, January 13, 2006.”

Rhoad entered into the contract with the state as president of Allied on Jan. 13, the same day other state officials also signed off on the contract.

Several of Comer’s responses were directed to Steve Schultz, Daniels’ former legal counsel.

The Family and Social Services Administration also released an opinion from its ethics officer, John Davis, who said the arrangement where the agency paid for Rhoad’s expenses was “satisfactory for a period of time, but has now been determined impermissible by the Indiana State Budget Agency.”

In several sections of the document, Davis said Rhoad isn’t violating the state’s one-year restriction on contracts or conflict-of-interest law because “the CFO was not involved in the negotiation of the contract between his company and FSSA.”

Also this week, a second contract surfaced that was signed by Rhoad and Roob in November 2005 but was not fully executed by other state officials.

The payment for that contract was to be $2 million over two years.

FSSA spokesman Dennis Rosebrough said that proposed contract was higher because Roob was considering having Rhoad supervise a major accounting system change, which would have required him to hire several employees at his company.

But the eight paragraphs of job duties in both contracts are exactly the same.

Eventually that task was outsourced to another vendor, and Rhoad signed the smaller $540,000 contract instead. * * *

The Rhoad contract is similar to one given last year by Attorney General Steve Carter, who awarded a $1.3 million contract to one of his deputies who bid on and won the job while he was still working for Carter.

According to the Indianapolis Star, that contract was held up when officials under then-Gov. Joe Kernan raised ethical questions. Only when Daniels took office a few months later did Carter receive all the necessary signatures to execute the agreement.

See this March 12, 2005 ILB entry re the Attorney General's contract.

Michelle McNeil of the Indianapolis Star also has a story today on the FSSA contract.

The ILB is attempting to obtain from the Ethics Commission copies of its informal opinion on the contract.

Posted by Marcia Oddi on Thursday, May 04, 2006
Posted to Indiana Government

Ind. Courts - Jacobi loses his seat on Clark bench

Alex Davis of the Louisville Courier Journal reports:

Alleged financial problems in Clark Superior Court 1 played a key role in Tuesday's primary defeat of incumbent Judge Jerome "Jerry" Jacobi, people familiar with the race said yesterday.

Jacobi lost by 1,195 votes -- about 8 percentage points -- to Democratic challenger Vicki Carmichael, according to final results from the county clerk's office. * * *

Carmichael will face Republican attorney Steve Langdon in the November general election. Superior Court 1 handles juvenile cases, along with certain felony drug cases and civil matters. * * *

Carmichael said in an interview after Tuesday's primary that she tried to keep her campaign positive. But she acknowledge that she filed a complaint with the Indiana Commission on Judicial Qualifications alleging that Jacobi tried to use one of his youth-related court programs to lobby for votes.

Jacobi has denied the claim in previous interviews.

Posted by Marcia Oddi on Thursday, May 04, 2006
Posted to Indiana Courts

Wednesday, May 03, 2006

Law - Wisconsin Judge won't throw out suit over release of bill drafts

This is an interesting public records case from Wisconsin. As reported today by the AP in the The Janesville Wisconsin Gazette:

MADISON, Wis. - A judge has refused to throw out the attorney general's lawsuit aimed at classifying bill drafts as public records once lobbyists have seen them.

Attorney General Peg Lautenschlager filed the lawsuit on the state's behalf last fall after state Sen. Dave Zien, R-Eau Claire, and state Rep. Scott Gunderson, R-Waterford, refused to give her a draft of a bill that would let Wisconsin residents carry concealed weapons, even though they had shared it with lobbyists.

The suit accuses the lawmakers of violating the state's open records law. The lawsuit named the state as a plaintiff. Lautenschlager later amended it to add herself as a plaintiff.

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to General Law Related

Ind. Gov't. - Still more on: State FSSA exec goes from public to private at twice the price

The Indianapolis Star's Michele McNeil writes in a brief story posted late this afternoon on the Star website:

The Indiana Democratic Party wants the state's top ethics officer to investigate a no-bid contract that nearly doubled the salary of the chief financial officer of the Family and Social Services Administration.

In January, FSSA awarded a $540,000 three-year contract to Allied Professional Services, whose president is former agency CFO Richard E. Rhoad, of Fort Wayne. That salary was nearly double what Rhoad was making at FSSA to do virtually the same job, according to state Democrats and the contract. The party issued their call after the contract was publicized in media reports.

According to state personnel records, Rhoad worked at FSSA from Jan. 10, 2005 until he resigned on Jan. 14, 2006. The contract was signed on Jan. 13. His salary, while at FSSA, was $100,000.

The expanded story will appear in tomorrow's Star. Earlier ILB entries appear here (3/2/06) and here (earlier today).

[More] The Star and the Louisville Courier Journal also have an AP story, by Ken Kusmer, this afternoon that reports:

INDIANAPOLIS (AP) -- Top Indiana Family and Social Services Administration officials signed a contract to outsource the agency's financial functions for $1 million per year to a company owned by one of its senior executives at the time, The Associated Press has learned. * * *

The $1 million contract came to light Wednesday as the Indiana Democratic Party called for state ethics and criminal investigations into a subsequent FSSA contract that pays a much smaller amount - $180,000 per year - to the senior executive in question, Richard Rhoad of Fort Wayne, who was FSSA's chief financial officer until Jan. 13.

The original contract, which was to run for two years beginning Dec. 1, 2005, had been signed two weeks earlier, on Nov. 17, by Rhoad as president of a private company called Allied Financial Services LLC, by FSSA Secretary Mitch Roob, and by John Davis, FSSA's general counsel.

A copy of that contract obtained by the AP lacked necessary signatures from Charles E. Schalliol, who is Daniels' budget director, and officials in the Department of Administration and the attorney general's office. FSSA spokesman Dennis Rosebrough confirmed the existence of the signed, unexecuted contract.

The earlier contract called for FSSA, the state's largest agency, to pay Rhoad and two other employees of his company a total of as much as $35,000 per month, plus expenses and travel costs, up to a total cost of $2 million over two years.

Rosebrough denied that the contract had been rejected by Schalliol, the attorney general or administration. He said that even though Roob and Davis had signed the contract, FSSA officials had second thoughts about it and decided against taking it to the other agencies for their review. The reconsideration occurred sometime in the two weeks between the signing and the date the contract was to have taken effect, Dec. 1. * * *

Rhoad eventually signed a contract with FSSA to perform his duties, including budget development and administration, as a private contractor earning $180,000 per year for three years, for a total of $540,000 through 2009. That contract, first reported by The Journal Gazette of Fort Wayne on Tuesday, took effect after Rhoad formally left his position as an FSSA employee. * * *

Associated Press Writer Mike Smith in Indianapolis contributed to this report.

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to Indiana Government

Ind. Decisions - Supreme Court issues two

Metropolitan Development Commission of Marion Co. v. Pinnacle Media, LLC - This is a petition for rehearing. The list of amici curiae signatories is very long. The 5-page opinion is written by Justice Sullivan. Some quotes:

Pinnacle Media, LLC, has asked us to reconsider our opinion, ... in which we held that a change in the zoning ordinance of Marion County concerning bill-board location permits was applicable to Pinnacle’s plan to erect 10 billboards in Indian-apolis. We grant rehearing to address the issues raised by Pinnacle and also those raised in an amici curiae brief.

We start by saying that both Pinnacle and amici read our opinion as constituting a dramatic change in land use law. It does not. * * *

The key principle at stake in this case—the principal point debated in the parties’ briefs in the Court of Appeals—is that changes in zoning ordinances are subject to any vested rights in the property. This principle is of constitutional dimension, as our original opinion makes clear, and we reaffirm it here. As noted, Knutson said that a zoning ordinance could not be enacted with retroactive effect depriving a property owner of the right to a building permit in accordance with a zoning ordinance in effect at the time of the ap-plication for the permit. Id. This is certainly so where a property owner has vested rights in the property, but Knutson suggested something more, namely, that the mere filing of a building permit was enough to create vested rights in the first place. We only overruled Knutson’s “suggestion that having a building permit on file creates a vested right that cannot be overcome by a change in zoning law.” Pinnacle Media, LLC, 836 N.E.2d at 428. The fundamental principle that changes in zoning ordinances are subject to any vested rights in the property remains in full force and effect.

Simply put, we held that the Marion County ordinance was in effect 11 months before Pinnacle began construction, and so Pinnacle was subject to it. * * *

[A]lthough both amici and Pinnacle itself seem to contend that our original opinion will make it more difficult to develop Wal-Marts, we can only say that our opinion stands for the proposition that changes in zoning ordinances are subject to any vested rights. To the extent that a Wal-Mart developer—or any other property owner—possesses vested rights in property, those rights will be protected, as the Constitution demands.

Here is a link to the ILB entry on the original, Nov. 4, 2005 Supreme Court ruling. Here is a Jan. 29, 2006 ILB entry quoting from an Indianapolis Star column speculating on whether the Court would grant a petition for rehearing. And here is a Nov. 22, 2005 ILB entry titled "Recent billboard ruling may help Crown Point "big box" position."

In Michelle Ellenwine v. Dawn Fairley, a 14-page unanimous opinion by Justice Sullivan, the court addresses issues "with respect to a child patient who is the vic-tim of medical negligence prior to the child’s sixth birthday who dies prior to the child’s eighth birthday."

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit issues no Indiana opinions today, but

But, this is interesting. Freedom from Religion Foundation v. Elaine Chao, Sec. of Labor. A petition for rehearing in banc, denied. It begins:

FLAUM, Chief Judge, concurring in the denial of rehearing en banc. Along with Judge Easterbrook, my vote to deny the petition for rehearing en banc is not premised upon a conclusion that the taxpayer standing issue as addressed in the panel opinion is free from doubt. Indeed, the position set forth in the dissent is one which could eventually command high court endorsement. However, the obvious tension which has evolved in this area of jurisprudence, as evidenced by the scholarly opinions of Judge Posner and Judge Ripple, can only be resolved by the Supreme Court. In my judgment, the needed consideration of this important issue by that tribunal would be unnecessarily delayed by our further deliberation.

_________

Chief Judge Flaum and Judge Easterbrook have written opinions concurring in the denial of the petition for rehearing en banc. Judge Ripple has written an opinion, which Judge Manion, Judge Kanne, and Judge Sykes have joined, dissenting from the denial of the petition.

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Bench and Media Guide to Interaction" posted on Indiana Courts site

"Bench and Media Guide to Interaction" is really a collection of information and links on a number of topics including: gag orders, cameras in the courtroom, and public access to court records. Take a look.

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to Indiana Courts

Ind. Courts - More on: "Fill-in judge sought in Huntington"

Updating yesterday's brief ILB entry, the Huntington Herald-Press reports today, in a story by Beth Shindle. Some quotes:

As early as the end of this month, the lone candidate for Huntington Circuit Court judge in 2007 could be appointed full-time judge pro tem for the court.

The Huntington County Bar Association met last Wednesday to discuss current Judge Mark McIntosh's two-month absence from the bench and decided to ask the Indiana Supreme Court to appoint a full-time judge pro tem for the Circuit Court - specifically, to appoint Tom Hakes to the position.

"We're not asking Judge McIntosh to be removed, and he's not resigning," said Huntington County Prosecutor John Branham, who is a member of the bar association and spoke for the group. "This originated because several attorneys, those most involved with the Circuit Court process, including me, got together and discussed what are our options, where could we go from here."

Branham was asked to look further into the matter. He said the full-time pro tem position would continue until McIntosh's term is completed - the 72-year-old judge planned to retire on Dec. 31, 2006 - or until he is able to return to the bench.

Hakes, a Huntington attorney, is thus far the only candidate to succeed McIntosh. He is unopposed in today's Republican primary and no Democrat has filed for the office.

If appointed, Hakes would have "all the authority and all the everything" that McIntosh does, Branham said, including the authority to handle sentencings and trials. He would be paid at the same rate as McIntosh, which is currently $110,500 a year. Hakes has already been serving as one of three judges pro tem in McIntosh's absence at a daily pay rate of $25. * * *

"The bar association did this only after Judge McIntosh had been contacted and understood the process and was in complete agreement," Branham said.

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides six today

In Byron Carter v. Property Owners Ins., a 21-page opinion (with Judge Sullivan's "concurring in result" on pp. 20-21), Judge Baker writes:

Appellant-defendant Byron Carter appeals from the trial court’s order granting summary judgment in favor of appellee-plaintiff Property Owners Insurance Company (Property Owners). In particular, Carter contends that the trial court erred in, among other things, concluding that he was an employee, rather than an independent contractor, such that his injury on the job was not covered by Property Owners’ insurance policy issued to Three Star Properties, Inc. (Three Star). Concluding, among other things, that there is an issue of material fact with respect to Carter’s employment status and that Property Owners is not entitled to judgment as a matter of law at this juncture, we reverse the judgment of the trial court and remand for trial. * * *

The “leading factor of control,” Moberly, 757 N.E.2d at 1012, leans toward independent contractor status and presents an issue of material fact. The remaining factors are split between employee status—Carter’s occupation, kind of occupation, method of payment, regular business of employer, and whether the principal is in business—independent contractor status—skill required, length of employment, and belief of parties—and neutral—supplier of equipment and tools. Taken as a whole, therefore, the factors are split fairly evenly and reveal at least one substantial issue of material fact. Under these circumstances, we conclude that the trial court improperly granted summary judgment in favor of Property Owners. We observe that we were necessarily limited to the evidence available in the record on appeal in drawing our conclusions regarding each of the ten factors. To that end, we emphasize that our conclusions herein are drawn solely for the purposes of summary judgment. Because it is likely that additional evidence will be offered at trial regarding Carter’s relationship to Helms and Three Star, the trial court is not bound by our Moberly analysis herein. The judgment of the trial court is reversed and remanded for trial.

MAY, J., concurs.
SULLIVAN, J., concurs in result, with opinion.[which begins]

I concur in the reversal of the summary judgment entered in favor of Property Owners Insurance Company and in the remand for further proceedings as to the factual status of Byron Carter whether as an employee or as an independent contractor of Three Star, Inc.

However, I respectfully dissent from the gratuitous conclusions reached by the majority with respect to the ten-factor analysis drawn from the Restatement of Agency.

Brandon Patterson v. State of Indiana - sentencing, affirmed.

In Bowlers Country Club Inc. v. Royal Links USA, et al, a 10page opinion, Judge Crone concludes:

Given the circumstances presented, we cannot say that the trial court abused its discretion in declining to interfere with the Iowa case. Not only had Frontier already filed its action in Polk County, Bowlers had already filed a motion to dismiss the Iowa action. Presumably, in the Iowa proceeding, Bowlers has raised or is free to raise the same challenges regarding the jurisdiction, the Frontier contract’s forum selection clause, “gotcha race to the courthouse,” unconscionability, three-way agreement, etc., that it has attempted to assert in the present action. Provided that Bowlers follows applicable procedures, it should have an opportunity for full discovery and a complete presentation of its compelling arguments to the Iowa court. By granting the motion to dismiss Bowlers’ complaint, the St. Joseph Superior Court wisely avoided the potential for conflicting results and/or repeated litigation, while simultaneously upholding the valid interests of deference, courtesy, and goodwill. Accordingly, we affirm the trial court’s order dismissing Bowlers’ complaint.

Leslie Howard White v. State of Indiana - appeal of conviction and sentence affirmed.

In Maisha Williams v. Riverside Community Corrections Corp., a 23-page opinion, Judge Vaidik writes:

Maisha Williams appeals from the grant of summary judgment in favor of her former employer, Riverside Community Corrections Corporation. After terminating Williams’ employment, Riverside did not pay her for any accrued sick days or vacation days, and it reduced her hourly wage for her final pay period to the minimum wage rate of $5.15 per hour. Williams filed a claim with the trial court seeking damages under Indiana’s Wage Claims Statute. The parties filed various motions with the trial court, including cross motions for summary judgment on the issues of the reduced hourly wage rate, vacation pay, and sick pay. The trial court found in favor of Riverside on each of these issues, and Williams appealed to this Court. We find, among other things, that Williams was entitled to summary judgment on the matter of the reduction in her hourly wage rate but that the trial court properly awarded summary judgment to Riverside regarding her claims for vacation and sick pay. Accordingly, we affirm in part, reverse in part, and remand the case to the trial court.

In Ronald L. Shanabarger v. State of Indiana, a 16-page opinion (with Judge Sullivan "concurring in opinion" on pp. 15-16), Judge Baker writes:

Appellant-petitioner Ronald L. Shanabarger appeals from the denial of his petition for post-conviction relief, challenging the effectiveness of his trial counsel. Specifically, Shanabarger contends that his trial attorneys were ineffective because they: (1) failed to adequately respond to an instance of juror misconduct; (2) improperly permitted Shanabarger’s sister and brother-in-law to visit him in jail; (3) failed to object to the modification of a tendered instruction that the trial court gave regarding Shanabarger’s confessions; and (4) failed to object to a confession that he made to the police chaplain. Concluding that Shanabarger has failed to establish the ineffectiveness of his trial counsel, we affirm the judgment of the post-conviction court.

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Senate leader ousted [Updated]

"Senate leader ousted" is the headline to a story in the Indianapolis Star today by Michele McNeil. Some quotes:

COLUMBUS, Ind. -- Senate President Pro Tempore Robert D. Garton, one of the most powerful men in the state, has lost the seat he's held for 36 years.

On Tuesday, Columbus accountant Greg Walker, in his first run for public office, upset the longest-serving leader in the Statehouse. * * *

"Senator Garton is one of the longest-serving leaders in the country, and he has used that experience to the benefit of all Hoosiers," said House Speaker Brian C. Bosma, R-Indianapolis. "But in a low-turnout primary, the electorate can really change direction when there's only 15 to 20 percent voting."

Star political columnist Matthew Tully concludes, in a column headlined "Before Garton lost, he lost touch with voters,":
But what weakened him most was his handling of the Senate's lifetime health-care benefit. While House Speaker Brian Bosma killed the benefit in the House, Garton stood by it.

Rarely has a perk inspired more public anger. The perk came to signify much of what is wrong with the Statehouse.

And Garton was the perk's poster child. He wore it like a Scarlet L on his chest.

So he ran ads that sought to convince voters he was just Bob, an average guy looking out for his people.

That message was a loser.

Garton made clear months ago, when he dug in on the health-care issue, that his people were the men and women who sat around him in the Senate's leather chairs.

He won't be sitting in his chair much longer. But at least he still has his lifetime health-care benefit.

[Updated 5/4/06] The Indianapolis Star today has an editorial titled "Out of touch, out of office." A quote: "Garton, especially in his final years, appeared increasingly out of touch with the public and the changing political climate. He slipped into an arrogance that often befalls political leaders after many years in office."

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to Indiana Government | Legislative Benefits

Law - Law school rankings pressure deans

"Law School Deans Feel Heat From Rank" is the headline to a story in The National Law Journal. Some quotes:

Nancy Rapoport was never a fan of law school rankings. Today, that's an understatement.

The former dean of University of Houston Law Center, who resigned last month after her school dropped five places in the U.S. News & World Report rankings, said that the law school's decline served as the final push from the position that she had held since 2000. * * *

The Houston law school fell to 70th this year, compared with 65th last year and 59th the year before. In 2002, the school was ranked 50th.

The popularity of the annual rankings, used by prospective students, employers and job-searching scholars to gauge an institution's credibility, has meant that schools are funneling more resources to boost their placement.

It also means that deans can expect the ranking scorecard increasingly to serve as a measure of their individual job performance, said Jeffrey Stake, a law professor at the Indiana University School of Law-Bloomington.

"It's like firing the head coach," Stake said. "You can't fire the players, so you fire the coach." Stake has written about law school rankings and last year led a symposium at his school attended by judges and legal scholars.

Knee-jerk dismissals by universities in response to their law schools' unsatisfactory rankings may be futile, Stake said. Whether a dean is doing a good job often is not evident for years, he said. Raising funds, a dean's main function, is a slow process, he added, and as most deanships last only five to eight years, the effectiveness of their tenure can take much longer to measure.

"There's very little that they're in control of that will have an effect in the short term," he said.

As readers may recall, Indiana University School of Law-Indianapolis suffered a precipitous fall in rankings in 2005, tumbling from 63rd to 95th! This year IU-Indy is 77th. Here is a list of ILB entires on law school rankings.

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to General Law Related

Ind. Gov't. - More on: State FSSA exec goes from public to private at twice the price

"State social-services official outsources job to himself, boosts salary" is the Louisville Courier Journal headline to a rewrite of yesterday's Fort Wayne Journal Gazette story (see yesterday's ILB entry here).

Here are the details of the financial maneuver:

The solution was to contract the work out to [Richard] Rhoad's one-person company, Allied Professional Services LLC. The deal calls for Allied to "support the financial functions of FSSA" and includes duties such as developing and administering a budget, monthly budget briefings and monthly financial reporting.

The three-year contract running through January is worth $540,000, or $180,000 per year.

On Jan. 13 [2006], Rhoad, as the agency's chief financial officer, entered into the contract with himself as president of Allied.

The net effect is Rhoad continues to be the social-services agency's top financial officer, Roob said. Rhoad works in Indianapolis three or four days a week and the rest of the time in Fort Wayne, where he is overseeing the agency's closure of the Fort Wayne State Developmental Center.

"This was not intended to pay him more money -- it's intended to pay him the expenses he has with us," [FSSA head Mitch] Roob said.

The State Ethics Commission reviewed and approved the contract, Roob said.

The applicable law here appears to be IC 4-2-6-11, which was amended this year by HEA 1397, SECTION 10 (pp. 13-14). Although the law at subsections (b) and (c) would appear to clearly prohibit this type of arrangement, subsection (e) and a new subsection (g) allow the law to waived by the ethics commission or the appointing authority. Also of interest here is Governor Daniel's Executive Order 05-12.

Posted by Marcia Oddi on Wednesday, May 03, 2006
Posted to Indiana Government

Tuesday, May 02, 2006

Ind. Decisions - 7th Circuit issues two Indiana rulings today

In USA v. Kelley, Lamond (ND Ind., James T. Moody, Judge), a 10-page opinion, Circuit Judge Sykes writes:

Following a final revocation hearing, the district court found Lamond Kelley guilty of battery, aggravated assault, and unlawful use of a weapon—all Grade A violations1 of the conditions of his supervised release. These Grade A violations combined with Kelley’s criminal history category of IV to produce an advisory guidelines sentencing range of 24-30 months’ incarceration, U.S.S.G. § 7B1.4(a), which was limited to 24 months by operation of 18 U.S.C. § 3583(e)(3). The district court revoked Kelley’s supervised release and sentenced him to 24 months’ imprisonment. Had the court held Kelley responsible only for the lesser Grade B and C violations that he admitted, his advisory sentencing range would have been 12-18 months.

On appeal, Kelley argues the district court could not have found him guilty of the Grade A violations without the hearsay-laden testimony and police report of the investigating officer. He argues that the court’s consideration of that hearsay—over his timely objection—violated his Sixth Amendment right of confrontation as recently construed in Crawford v. Washington, 541 U.S. 36 (2004), and his more limited due process right of confrontation as applicable to revocation proceedings under Morrissey v. Brewer, 408 U.S. 471 (1972).

We affirm. Supervised release revocation hearings are not criminal prosecutions, so the Sixth Amendment right of confrontation and Crawford do not apply. Kelley’s due process rights were not violated because the hearsay evidence at issue was substantially reliable and its admission did not undermine the fundamental fairness of the revocation hearing.

In Smith, Kathy v. Potter John E. (SD Ind., Sarah Evans Barker, Judge), a 22-page opinion, Circuit Judge Coffey writes:

On November 27, 1998, Kathy Smith was removed from her position as a mail clerk for the United States Postal Service (“USPS” or “Postal Service”) due to “unacceptable misconduct”. Shortly thereafter, Smith filed a grievance with her union, the American Postal Workers Union (“APWU”), claiming that the decision to dismiss her was based on the color of her skin rather than the quality of her work. After a number of adverse decisions and related appeals, Smith and the APWU submitted their dispute to arbitration, which was concluded in favor of the USPS. Not satisfied with this, Smith filed a complaint with the USPS Office of Equal Employment Opportunity (“EEO”) on June 11, 2001, which was denied as untimely. While her appeal of the EEO decision was pending with the Equal Employment Opportunity Commission (“EEOC”),1 Smith filed a complaint in the United States District Court for the Southern District of Indiana under Title VII of the Civil Rights Act of 1964, alleging that her termination from the USPS was a result of sex and/or race discrimination. See 42 U.S.C. §§ 2000e et seq. In response the USPS filed a motion to dismiss, which the district court converted into a motion for summary judgment and granted, holding that Smith had failed to exhaust her administrative remedies. We affirm.

Posted by Marcia Oddi on Tuesday, May 02, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on Hammond v. Calumet City "state line" dispute

Updating this April 6th ILB entry is a story today in the Munster (NW Indiana) Times by Joe Carlson headed: "Calumet City switches State Line strategy: New legal tack is seen as realization of Hammond's stronger legal position in federal court battle." Some quotes:

HAMMOND | Calumet City officials are switching to a less expensive and hopefully more successful legal strategy in their federal case against Hammond over the controversial State Line Road traffic barrier, Calumet City attorney Dennis Gianopolus said.

Calumet City officials are now planning to seek monetary damages against Hammond if U.S. District Judge Philip Simon will not grant their request to stop construction of the barrier that divides the state line between the cities south of 165th Street.

Previously, Calumet City was only seeking a judge's order preventing construction of the barrier, but the judge sided with Hammond in a preliminary ruling last month.

As a result, work is rapidly under way on the $637,000 project and will wrap up soon, even though the judge could theoretically rule against Hammond and force the project to be undone in his final ruling.

Hammond Mayor Thomas McDermott Jr. interpreted the new legal strategy by Calumet City as a realization the judge is not going to prevent the barrier from existing.

"To me, it means that they accept the original ruling that it does not violate the Constitution of the United States to build this curb," McDermott said. "I think they probably decided they've spent enough money on a case they're going to lose."

On the contrary, Gianopolus said, Calumet City is still seeking a permanent order preventing the curb.

But under the amended legal arguments, Calumet City will seek monetary damages from Hammond to fix its side of the road if it cannot convince the judge to undo the project -- a less expensive and more promising legal tactic, Gianopolus said.

Posted by Marcia Oddi on Tuesday, May 02, 2006
Posted to Indiana Law

Enviroment - "Beverly Shores couple challenges state hunter harassment law"

On Oct. 14, 2005 the Munster (NW Indiana) Times ran a story by Bob Kasarda (see ILB entry here, 2nd item) that began:

Beverly Shores residents Frederick and Rosanne Shuger are posing what is said to be the first legal challenge to the state's hunter harassment law. The Shugers filed notice of their intention to appeal their hunter harassment convictions from this past summer.
Today the Munster (NW Indiana) Times has another story by Kasarda on the suit. Some quotes:
The couple targeted a section of the law that prohibits behaviors "that will tend to disturb or otherwise affect the behavior of a game animal."

The wording is unconstitutional in that it is both over broad and vague, according to the challenge filed with Indiana Court of Appeals.

"There is no objective description of what behavior would land you in trouble with the state," said the couple's Chicago attorney, James Morsch. "Are we all to be experts in game animals and what affects their conduct?"

This clause places Indiana's law at the extreme when compared to most other hunter harassment statutes around the country, according to the appeal. If allowed to stand, the law will chill the expression of free speech.

A jury found the Shugers guilty in July of two counts each of hunter harassment for interfering with a town-sanctioned deer kill in 2001. Frederick Shuger was also found guilty of a third and more serious offense of intimidation. * * *

Morsch said there was no evidence the Shugers disturbed a game animal when they honked their car horn, took photographs and allowed their dog to bark while driving along a public roadway. Their intent was to express concern over the safety of hunting in the residential community.

"The statute improperly regulates speech in a public forum without offering a reasonable alternative means for those with anti-hunting views to publicly express their opinions to hunters," according to the appeal.

Porter County Deputy Prosecutor Andrew Bennett said at the time that the hunter harassment law, which prohibits interfering with the legal killing of a game animal, does not hamper anyone's rights to free speech. The Shugers had plenty of opportunity to voice their opinion before the hunt, he said.

Posted by Marcia Oddi on Tuesday, May 02, 2006
Posted to Environment | Ind. App.Ct. Decisions | Indiana Law

Ind. Courts - "Fill-in judge sought in Huntington"

"Fill-in judge sought in Huntington: Bar requests temporary replacement" is the headline to a story today in the Fort Wayne Journal Gazette by Rebecca S. Green. The story begins:

The Huntington County Bar Association is asking the Indiana Supreme Court to appoint an acting full-time judge to fill in for Huntington Circuit Judge Mark McIntosh, who fell ill about two months ago and is still recuperating.

Huntington County Prosecutor John Branham said the decision was made with the knowledge and approval of McIntosh. The request, if granted, allows McIntosh to retain the office but a judge pro-tem will hear cases until McIntosh is well enough to return to the bench or his term ends.

Posted by Marcia Oddi on Tuesday, May 02, 2006
Posted to Indiana Courts

Ind. Gov't. - State FSSA exec goes from public to private at twice the price

"Exec goes from public to private at twice the price" is the headline to a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – On his last day as a state employee, a top Fort Wayne executive at the Family and Social Services Administration signed an outside contract to perform the same job at a much higher rate of pay – $180,000 a year.

Richard E. Rhoad’s compensation is nearly double the governor’s salary, and is $70,000 more than Mitch Roob receives as the head of the agency.

But Roob and State Budget Director Chuck Schalliol defended Rhoad’s unique contract, saying it is sometimes worth extra money to get the right person to do the job and have geographic diversity in staff members.

State officials also sought an opinion from the Indiana State Ethics Commission before signing the contract.

“FSSA handles 5 billion Hoosier dollars. If FSSA is not successful, the administration and state government will not be successful. It is true that wherever we can help FSSA and Mitch Roob be successful I’m inclined to try to help them get their job done” Schalliol said. “Paying $130,000 a year plus benefits is not scandalous. * * *

The situation is rooted in the transition phase after Gov. Mitch Daniels was elected in November 2004 but before he took office.

During that time, Roob admits, he offered Rhoad the position of chief financial officer and promised the state would pay for his Indianapolis housing during the week and travel expenses for trips back and forth to Fort Wayne where his family remained.

Roob said he did so without realizing the promise went against state regulations.

The agency paid some expenses in the first couple months of 2005 and then Rhoad started picking up the tab when it became problematic.

“I didn’t know what the rules were. If anyone is to blame, it’s me,” Roob said. “At some point in time I just gave up trying to fight it, so the contract became more expeditious.

“If anyone has done the wrong thing here it’s me. I didn’t know the state rules before I got to state government. I’d much rather pay him on the state payroll if we could.”

The solution was to hire Rhoad though his personal company – Allied Professional Services LLC, which isn’t listed in the Fort Wayne phone directory nor does it come up in any basic Internet searches.

According to the Secretary of State’s Web site, the company was formed in 1999 and Rhoad is listed as the registered agent. Roob and other Family and Social Services officials admit Rhoad is the only person involved in the company.

The consultant contract with Allied is to “support the financial functions of FSSA” and includes duties such as developing and administering a budget, monthly budget briefings and monthly financial reporting. The net effect, Roob said, is Rhoad continues to be the agency’s top financial officer.

The three-year contract running into January 2009 is worth $540,000, or $180,000 a year.

According to Rhoad’s resignation letter, he quit the state agency at of the close of business Jan. 13, 2006 – the same day he entered into the private agreement as president of Allied. * * *

Although Roob said the Ethics Commission reviewed and approved the contract, there is no formal opinion on the case and the commission isn’t allowed to release informal advisory opinions.

Rosebrough said there was a favorable informal opinion, but declined to release it per Family and Social Services practice.

Dave Thomas, Indiana’s inspector general, said he has heard talk about the contract and even knew Rhoad by name without being told. But he said no one has filed a complaint that would cause him to look into the situation.

The Journal Gazette learned of the contract via a Democratic blog.

The "Democratic blog" referenced is Taking Down Words. Here is their entry, from April 29th.

Posted by Marcia Oddi on Tuesday, May 02, 2006
Posted to Indiana Government

Monday, May 01, 2006

Ind. Law - So you think you are automatically exempt from jury duty because you are old or drive a ferry boat? It is no longer so.

The AP's Mike Smith writes today about a new law this year that slipped below the radar, SEA 232, which, according to its digest:

Eliminates automatic exemptions from jury service. Permits a person called for jury service to receive one deferral for up to one year if the juror selects an alternate date and the deferral is necessary due to hardship, extreme inconvenience, or necessity. Protects a person called for jury service from being subjected to adverse employment actions. Prohibits employers from requiring or requesting employees to use annual vacation or sick leave for jury service. Repeals a provision concerning jury service exemptions in Lake County. Effective July 1, 2006.
From the AP story:
[T]wo months from now, several groups of people will no longer be excused from what many people also believe is a duty one should fulfill when called upon: serving on juries.

With little notice or fanfare, the General Assembly enacted a law this past session that wiped out exemptions that allowed entire categories of people - even ferry boat operators - to automatically avoid jury duty.

Others exempted under the previous state law included residents older than 65, dentists, veterinarians, law enforcement officers, elected or appointed government officials, legislators, military personnel, members of the Indianapolis Public School Board, firefighters and corrections officers.

Ferry boat operators had been exempted since 1881, but if any still exist, they and people in the other categories will lose that status on July 1 when the new law takes effect.

Sen. Beverly Gard, R-Greenfield, had tried to get the exemptions removed in the 2004 and 2005 sessions, but the bills failed to pass. It sailed through this year. * * *

In another effort to broaden the jury pool, the 2003 jury rules require counties to use at least two broad lists to enlist potential jurors. A new one has been created mixing state Department of Revenue tax records with lists of drivers and state ID holders kept by the Bureau of Motor Vehicles.

The move has allowed courts that traditionally relied only on voter registration lists to find more people for jury duty. [Hamilton Superior Court Judge William Hughes] says he is now seeing a much broader group of jurors.

"I'm now seeing 18-year-olds on jury I didn't used to see," he said.

Posted by Marcia Oddi on Monday, May 01, 2006
Posted to Indiana Law

Ind. Decisions - Court of Appeals decides one today [Updated]

In Jane Doe v. Lafayette School Corp., a 17-page opinion, Judge Riley writes:

Doe raises three issues on appeal, which we consolidate and restate as the following two issues: (1) Whether the trial court erred in determining that LSC, as a matter of law, was not negligent in failing to protect Doe from a teacher’s misconduct; and (2) Whether the trial court erred in determining that LSC was not vicariously liable for the criminal conduct of one of its teachers under the doctrine of respondeat superior. * * *

CONCLUSION Based on the foregoing, we conclude that the trial court inappropriately granted summary judgment in favor of LSC as to Doe’s negligence claim; however, we conclude that the trial court properly concluded that LSC was not liable under the doctrine of respondeat superior for Cole’s misconduct. Reversed in part, affirmed in part, and remanded.

[Updated 5/2/06] The Indianapolis Star has a brief item today on this ruling.

Posted by Marcia Oddi on Monday, May 01, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Floyd County to unveil revised zoning ordinance"

"Floyd County to unveil revised zoning ordinance" is the headline to a story by Ben Zion Hershberyg in the Louisville Courier Journal. Some quotes:

A long-awaited revision of Floyd County's 40-year-old zoning ordinance will be unveiled this week, with public meetings on the 198-page document scheduled for Wednesday and next Monday.

The Plan Commission's formal public hearing on the ordinance, and its accompanying zoning maps, is scheduled for May 11. The commission could vote that day to recommend that the Board of Commissioners enact it. * * *

The most important feature of the ordinance is its division of unincorporated Floyd County into 12 districts. It specifies how many houses or apartments can be built per acre in each of the six residential districts and details the kinds of construction, lot widths and yards that must be provided in each of the commercial and industrial districts.

That's a sharp contrast with the current ordinance, which establishes one zone — an agricultural-residential district — for the entire county and requires new development to be approved on a case-by-case basis.

It gives planning and zoning agencies, residents and developers little guidance about what can or can't be located in different parts of the county. And that has led to epic battles between developers and residents over new subdivisions. * * *

Major features of the proposed ordinance include:

- Language allowing developers to use Planned Unit Developments in some areas. That designation gives developers more flexibility than traditional zoning, allowing them to mix different types of construction and lot sizes in return for giving planning agencies more oversight. If the project covers 25 acres or more, the developers must set aside at least 15 percent as open space.

- Standards for developing sexually oriented businesses, which couldn't be within 1,500 feet of a house of worship, school, day-care center or public park, or within 500 feet of another sexually oriented business. The ordinance also imposes many other restrictions on such businesses, which so far haven't located in the county.

- Rules "grandfathering in" development currently located in one of the districts that doesn't fit the new classification.

- Standards for signs, sound and lighting.

Here is a link to the Floyd County Plan Commission and the 200-page draft ordinance.

Posted by Marcia Oddi on Monday, May 01, 2006
Posted to Indiana Government

Ind. Law - "Black-owned law firm has its plate full with array of major city and state projects"

"Black-owned law firm has its plate full with array of major city and state projects" is the headline to a story today by J.K. Wall in the Indianapolis Star. It begins:

iming, they say, is everything. And the timing is good for Coleman Graham & Stevenson. The law firm is just a year old, but it already has doubled its staff while landing work with several high-profile clients.

It is co-counsel with Ice Miller for the state authority that is building Lucas Oil Stadium and an expansion to the Indiana Convention Center. It is doing some legal work for the Indianapolis Airport Authority, the Indiana Department of Transportation, Indianapolis Public Schools and Key Bank.

The principals of the firm all have extensive experience in state government. Oh, and they all happen to be black.

Which makes their timing even better.

Coleman Graham & Stevenson formed amid an explosion of major public projects, all of which come with goals for participation by minority-owned firms. At the same time, Indianapolis Mayor Bart Peterson and Gov. Mitch Daniels both have urged their staffs to do more business with minority-owned firms.

Posted by Marcia Oddi on Monday, May 01, 2006
Posted to Indiana Law