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Friday, June 30, 2006

Law - Texas redistricting case

Tomorrow, for sure, the ILB plans to have a longer entry on the very disappointing U.S. Supreme Court opinion(s) in the Texas redistricting case.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to General Law Related

Ind. Law - More on: Finally, a news story about Indiana's new anti-discount real estate brokers law

The unidentified staffer who runs The Indiana Real Estate News Blog has posted this entry using terms like "patently false" and "preposterous." Oh, and "poorly informed." A snippit:

Following the publication of an article on HEA 1339 in the Louisville Courier-Journal last week, some well-known Indiana bloggers fired off some poorly-informed posts in our direction. We at IAR think that these criticisms are way off the mark, as HEA 1339 was in no way designed to restrict competition and will actually increase consumer protection.
I don't know that "well-known Indiana bloggers" includes the ILB, but the ILB has posted a number of entries on the bill, all listed at the end of this most recent, June 25th ILB entry. Apparently the unidentified IAR staffer/blogger did not review the Federal Trade Commission materials cited.

Who is "off the mark"? Time will tell...

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to Indiana Law

Ind. Courts - Still more on Green County Circuit Court

The Greene County Daily World reports that:

Erik “Chip” Allen was selected this morning as the Republican Party's nominee in the race for Circuit Court Judge on the Nov. 7 General Election ballot.

Allen, who currently serves as Clay County Chief Deputy Prosecutor, was the majority vote choice over a field of three other candidates at a special caucus of Greene County Republican Party precinct committeemen conducted in Bloomfield - four hours before the filing deadline of noon today. * * *

In the general election, Allen will face Democrat Joseph Sullivan, who was picked by his party in a similar caucus meeting on Wednesday night in Linton. * * *

GOP officials are hopeful Gov. Daniels will soon select an interim judge, who will serve until Dec. 31.

On Monday, the Indiana Supreme Court appointed Judith Hayes Dwyer of Washington judge pro tempore for the Greene Circuit Court, effective this Saturday. She will serve until Gov. Daniels makes the appointment of an interim judge.

Hmm, maybe the Governor will appoint an interim judge now that there is a Republican nominee for the fall election ...

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to Indiana Courts

Ind. Decisions - Five Court of Appeals decisions issued yesterday and today

Chris McGehee v. Travis & Tamara Elliot - land purchase agreement, affirmed in part, reversed in part, and remanded.

Ned Johnson v. Gayle M. Johnson - child support, domesticated judgment, affirmed.

In the Matter of the Trust Created Under the Last Will and Testament of Eldo H. Stonecipher, Dated August 26, 1988, Meriam P. Granninger v. National City Bank of Indiana - testamentary trust, affirmed.

Dare Afolabi v. Atlantic Mortgage & Investment Corp. - "We find collateral estoppel to be inapplicable in the case at bar."

Rita Hubbard v. State of Indiana - sexual misconduct statute, affirmed.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In Robert Keene v. Marion County Superior Court, a 3-page opinion, the Court follows its opinion yesterday in Montgomery v. Bd. of Trs. of Purdue Univ., which held that an Indiana governmental employee is not subject to the Indiana Age Discrimination Act. As he did yesterday, Justice Rucker dissented. His dissent yesterday concluded:

So here we have an employee fired because of age but in effect has no remedy, according to today’s opinion, despite both state and federal legislation designed to protect employees fired because of age. Certainly the legislature could not have intended the result reached in this case.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending June 30, 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 June 30, 2006.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending June 30, 2006

Here is the Indiana Supreme Court's transfer list for the week ending June 30, 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, June 30, 2006
Posted to Indiana Transfer Lists

Ind. Courts - Office of Environmental Adjudication moving

Mary L. Davidsen, Director and Chief Environmental Law Judge of the Indiana Office of Environmental Adjudication, writes to say the office is moving this fall. See this memo for details. Currently the office suite and hearing rooms are located at Indiana Government Center North 100 North Senate Avenue, Room N1049.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to Environment | Indiana Courts

Law - Overview of Supreme Court term

Joan Biskupic of USAToday has an interesting overview of the Supreme Court term today. A quote:

Aside from Thursday's landmark ruling that rejected the Bush administration's plan to hold military tribunals for foreign terrorism suspects, the court did little to change the law. The appearance of former Playboy model Anna Nicole Smith at the court in February got nearly as much media attention as the ruling on military tribunals. Reporters from around the globe followed her successful attempt to win a new hearing in her effort to claim part of the inheritance of her late husband, oil tycoon J. Howard Marshall.

Now, things are about to get more intense at the court. The 2006-07 term is shaping up as a blockbuster, as a bench that has been made more conservative by Alito replacing O'Connor plans to address social issues on which O'Connor often was the key vote.

The court already has agreed to hear some cases in areas of the law in which O'Connor helped set legal standards, including abortion rights and affirmative action. O'Connor was a key vote in favor of abortion rights and supported the use of racial preferences to ensure diversity in education. Without her, rules on such matters could change.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to General Law Related

Law - Varied states' insanity defense approaches stand

"Court upholds states' insanity-defense standards" is the headline to a story today in the Christian Science Monitor about the other case decided yesterday by the U.S. Supreme Court. Some quotes:

In a 6-to-3 decision announced Thursday, the US Supreme Court declined an invitation to set a national constitutional standard for those who claim reduced responsibility for a crime because of mental illness.

The decision leaves in place a patchwork of different insanity defense standards from one state to another.

The action came as the high court let stand the murder conviction of an Arizona man who claimed he should not have been found guilty and sentenced to life in prison for the June 2000 shooting death of a Flagstaff police officer.

Lawyers for Eric Clark say the then 17-year-old believed the police officer he killed was an alien from outer space. They say he belongs in a mental hospital rather than a state prison.

The Arizona courts disagreed, rejecting his insanity defense and finding that despite his mental illness, he understood that it was wrong to kill a police officer.

In challenging his conviction, Mr. Clark's lawyers attacked Arizona's insanity-defense statute, saying it violated US constitutional due process safeguards. Specifically, they said Arizona's law prevented them from presenting defense evidence and testimony about the defendant's diminished mental capacity to fully appreciate the nature and quality of his alleged criminal acts.

Under Arizona's insanity statute, the sole test is whether the mental disease or defect is so severe that the defendant did not know his or her criminal acts were wrong.

Lawyers for Arizona and the US solicitor general argued that there was no constitutional bar to Arizona's decision to streamline its insanity law by dropping consideration of a defendant's diminished capacity.

On Thursday, the Supreme Court agreed.

"Arizona's rule serves to preserve the state's chosen standard for recognizing insanity as a defense and to avoid confusion and misunderstanding on the part of jurors," writes Justice David Souter for the majority.

"Not every state will find it worthwhile to make the judgment Arizona has made, and the choices the states do make about dealing with the risks posed by mental-disease and capacity evidence will reflect their varying assessments about the presumption of sanity as expressed in choices of insanity rules," Justice Souter writes.

In a dissent joined by Justices John Paul Stevens and Ruth Bader Ginsburg, Justice Anthony Kennedy says the rule is irrational because it prevents a defendant from fully explaining at trial why he or she could not have committed the crime because he or she suffered from a mental illness and was thus unable to have formed the criminal intent necessary to violate the law.

The opinion is Clark v. Arizona.

[More] Here is an AP report.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to General Law Related

Courts - Kentucky federal magistrate donates kidney to U.S. prosecutor

Andrew Wolfson of the Louisville Courier Journal reports today on the transplant. Some quotes:

A spokesman for the Administrative Office of the U.S. Courts in Washington, Dick Carelli, said he'd never before heard of a federal judge donating an organ to an attorney who appears in his court.

Though kidney transplants are not uncommon -- 16,476 were performed in the U.S. last year -- there is some risk to the donor. About 6 in 10,000 die, and complications can include bleeding, infections and blood clots.

"It is not something that you do lightly," said Dr. Rosemary Ouseph, a kidney transplant doctor at the University of Louisville.

But U.S. District Judge Joseph Hood, the chief judge of the Eastern District of Kentucky, said Wehrman's sacrifice came as no surprise:

"Greg Wehrman is a man of strong principles. He told me if that if your faith doesn't allow you to do this, what kind of faith do you have?"

U.S. District Judge David Bunning said: "Very seldom can you say you had a hand in saving somebody's life, and Judge Wehrman can say that. The court family is very proud of Greg." * * *

Wehrman said he saw Walbourn almost every day at the courthouse, and "I watched him deteriorate -- you could tell by the color of his skin that he was in bad shape. It wasn't unusual to look down at him from the bench and see his eyes closed."

One day in the summer of 2004, the judge recalled, Walbourn asked for permission to carry a beeper in court -- so he could be alerted instantly if a cadaver kidney became available. "I said, 'E.J., if you need a donor, I would be glad to volunteer,' " Wehrman said.

Given that the two knew each other strictly on a professional basis -- Walbourn had been to the judge's house one time, 10 years earlier, to get him to sign a search warrant -- "I thought he was incredibly generous," Walbourn said. "I mean, I never would have approached anybody and said, 'Would you give me your kidney?' " * * *

Diane Wehrman, the judge's wife, had never met Walbourn, but she said she fully supported her husband's decision -- as did his four adult daughters.

"Sure, I was nervous, hoping everything would turn out OK," she said. "But I thought it was wonderful."

Lawyers in Northern Kentucky also have hailed Wehrman for his sacrifice -- and joked about whether he can be impartial to a lawyer whose life he saved.

"I told the judge how impressed I was with what he did," said Covington lawyer Gary Sergent, "but that now I am going to have to advise my clients that his fairness is in question because he and E.J. are now a genetic match."

To avoid even the appearance of a conflict, Walbourn said he stopped appearing before the judge once he agreed to the donation last November. And the two agreed that Walbourn won't appear in his court in the future on any matter requiring the judge's discretion.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to Courts in general

Ind. Courts - "Major parties nominate Superior Court judges"

The Indianapolis Star has a brief item this morning headed "Major parties nominate Superior Court judges":

The Democratic and Republican parties have named candidates to be on the ballot for Superior Court judge positions created this year during the legislative session.

Republicans selected Lisa Borges, chief trial deputy in the Marion County prosecutor's office, and Democrats picked Steven R. Eichholtz, a former judge who once was the presiding judge of Marion County courts.

During the 2006 legislative session, the General Assembly enacted a law to bring political balance to Marion Superior Court by increasing the number of judges to 36 from 32.

Three new Democratic judges and one new Republican judge will be elected over the next two election cycles. Each party nominated nine judicial candidates in the spring primary election. This fall, the number of judges elected will be increased to 20 from 17.

Posted by Marcia Oddi on Friday, June 30, 2006
Posted to Indiana Courts

Thursday, June 29, 2006

About this blog - Technical advisory

If you don't link directly to the Indiana Law Blog (indianalawblog.com), but rather to its IP address, I'm sorry to report that your link(s) will not work after midnight. I have to move to a more reliable server, and the IP address can't go with me.

Posted by Marcia Oddi on Thursday, June 29, 2006
Posted to About the Indiana Law Blog

Ind. Decisions - More decisions today from the Supreme Court, including one on special laws

In Henry Luke Kellems v. State of Indiana, a 5-page opinon, Justice Sullivan writes:

As noted earlier, Kellems was tried and convicted in a bench trial. The trial record, how-ever, does not reflect that Kellems made a personal waiver of his right to a jury trial. The record does indicate that Kellems was initially informed of his right to jury trial and his option to waive that right at a pre-trial hearing held on March 28, 2002. Kellems was asked if he had any questions regarding his rights and he responded negatively.

Kellems’s attorney, Terry White, indicated his client’s desire to waive his jury trial right at a status conference held on May 5, 2003, at which Kellems was present. White informed the trial court that after engaging in lengthy conversation with Kellems, his client had decided to forego a jury trial. The trial judge, however, never questioned Kellems himself regarding the voluntariness of his waiver nor elicited any statement from Kellems of his waiver for the record. * * *

The trial court did not secure a waiver from Kellems personally. Its failure to do so—and to ensure that the waiver was reflected in the record—necessitates granting Kellems a new trial.

Conclusion. Kellems’s Petition for Rehearing is granted. The judgment of the trial court is reversed on the basis of its failure to secure a personal waiver from Kellems to his right to jury trial. The matter is remanded for a new trial.

Travis D. Garrison v. Charles E. Metcalf - procedural issue.

In Alpha Psi Chapter of Pi Kappa Phi Fraternity, Inc. v. Auditor of Monroe County, a 13-page opinion (Sullivan's dissent begins on p. 11), Chief Justice Shepard writes:
The Indiana Constitution prohibits special laws which grant privileges to a few people that are not available to others. The statutory amendment in this case exempted three taxpayers, after the fact, from tax deadlines applicable to everyone else. The trial court was right to uphold the Constitution.

The Alpha Psi Chapter of Pi Kappa Phi Fraternity, Inc., Lamdba Corporation, and Delta Alpha of Alpha Tau Omega, Inc. (hereinafter “taxpayers”) each failed to file timely applications for property tax exemptions for their property in Monroe County.1 Their failure to do so resulted in the assessment of property tax against their real estate in 2000 and 2001, with the tax due and payable in 2001 and 2002 respectively. During its 2003 session, the Indiana General Assembly passed Public Law 256-2003.2 2003 Ind. Acts 2603. Section 44 of the act retroactively provided what amounted to a filing extension that permitted the taxpayers to apply for their 2000 and 2001 property tax exemptions in 2004 and required the county auditor to grant those exemptions.

[the law quoted refers specifically "to property that: (1) is used for a fraternity for students attending Indiana University" and gets even narrower]

In July 2003 one of the taxpayers, Pi Kappa Phi, requested that the Monroe County Auditor refund the taxes paid on its property pursuant to Section 44. Rather than issuing the refund, the Auditor filed for declaratory judgment in the Monroe Circuit Court, naming all three taxpayers and contending that Section 44 was unconstitutional as a special law.3

In December 2004, the Monroe Circuit Court granted the Auditor’s request for a declaratory judgment, and held the relevant section of Public Law 256-2003 unconstitutional under Article IV, Section 22 and Article IV, Section 23 of the Indiana Constitution. The appeal of the order is directly here under Indiana Appellate Rule 4(A)(1)(b) (cases where a statute has been held unconstitutional). Concluding that the trial court was correct under Section 23, we need not analyze the Section 22 questions. * * *

Conclusion. To the drafters of the 1851 Constitution, this was precisely the sort of “special law” that caused so much consternation, consumed so much time, and created so much inequality that it required a constitutional provision to eliminate. We conclude the trial court was correct to uphold the Constitution, and we affirm its judgment.

Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., dissents with separate opinion. [which begins]

My disagreement with my colleagues’ approach to assessing the constitutionality of “special legislation” is of record and I incorporate it by reference rather than prolong the discussion here. See City of South Bend v. Kimsey, 781 N.E.2d 683 (Ind. 2003) (Sullivan, J., dissenting); State v. Hoovler, 668 N.E.2d 1229 (Ind. 1996) (Sullivan, J., concurring in result). Suffice it to say that I believe the Court’s analysis in today’s case violates in several respects the Separation of Functions Clause proscription on the Judiciary “exercis[ing] any of the functions” of the Legislature. Ind. Const. art. III, § 1.

In Danny E. Brown, Jr. v. Ginger Brown, an 8-page opinion, Justice Sullivan writes:
Because of Danny Brown’s disability, his son received a lump-sum distribution of retro-active Social Security disability benefits as well as monthly benefits going forward. Brown seeks credit for the lump-sum payment against an accumulated child support arrearage and credit for the monthly benefits against his future support obligation. Following precedent from this State and others, we hold that a disabled parent is entitled to credit against the parent’s child sup-port obligations for Social Security disability benefits paid to a child, effective as of the date the parent files a petition to modify a support order. The petition may be filed upon application for disability benefits.

Posted by Marcia Oddi on Thursday, June 29, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Three decisions today from the Supreme Court [Updated]

In Michael B. Montgomery v. The Board of Trustees of Purdue University, an 14-page opinion (dissent on p. 14), Justice Boehm writes:

We hold that units of state government with twenty or more employees are subject to the federal Age Discrimination in Employment Act and therefore are not governed by the Indiana Age Discrimination Act. We also hold that there is no private civil damage remedy under the Indiana Age Discrimination Act.

Purdue University employed Michael Montgomery from 1973 until he was terminated in 2002 at the age of 57 or 58. In May 2003, Montgomery sued Purdue’s Board of Trustees (“Purdue”) in Tippecanoe Superior Court alleging that the Indiana Age Discrimination Act (“IADA”) “creates a public policy exception to employment at will” and that Montgomery’s termination was because of his age and therefore in violation of the Act. * * *

We conclude that Purdue is subject to the ADEA and is therefore exempt from the IADA, and also that the IADA does not provide for private civil actions. For these reasons, the trial court properly dismissed Montgomery’s complaint for wrongful dismissal under the IADA for failure to state a claim. The judgment of the trial court is affirmed.

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

I respectfully dissent. Mr. Montgomery is ensnarled in a trap that can best be characterized as a “Catch-22.”1 He was fired from his job because of his age and seeks relief under Indiana’s Age Discrimination Act. The majority says he is entitled to no such relief because his remedy is with the Federal Act. But Kimel teaches that persons like Mr. Montgomery must seek relief under state statutes. Indeed Kimel itself identified Indiana as among a majority of states in which “employees are protected by state age discrimination statutes, and may recover money damages from their state employers . . . .” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000). So here we have an employee fired because of age but in effect has no remedy, according to today’s opinion, despite both state and federal legislation designed to protect employees fired because of age. Certainly the legislature could not have intended the result reached in this case.

In Ryker Painting Co. Inc. v. George E. Nunamaker, a 6-page opinion (dissent on p. 6), Justice Dickson writes:
In this labor wage dispute asserting application of the Indiana Wage Payment Statute, the defendant, David A. Ryker Painting Company, Inc., appeals the trial court's judgment in favor of an employee, the plaintiff, George E. Nunamaker. We reverse.

The plaintiff filed suit against Ryker Painting for punitive damages and attorney fees pur-suant to the Wage Payment Statute after the defendant's alleged failure to pay him at a proper rate in a timely manner for work performed on a painting project for the Tipton Community School Corporation in Tipton, Indiana. After the parties stipulated to all material facts and documentary evidence, the trial court entered a judgment in favor of the plaintiff for $6,289.92, plus attorney fees of $3,000.00. The Court of Appeals reversed, finding the Wage Payment Stat-ute inapplicable because "the legislature could not have intended that a company be required to pay treble damages every time a good faith dispute as to wages arises." David A. Ryker Painting Co., Inc. v. Nunamaker, 818 N.E.2d 989, 992 (Ind. Ct. App. 2004). We granted transfer. * * *

We find that the Wage Payment Statute does not entitle the plaintiff to either liquidated damages or attorney fees. Having previously granted transfer, we now reverse the judgment of the trial court.

Shepard, C.J., and Boehm, and Rucker, JJ., concur.
Sullivan, J., dissents with separate opinion.

I believe that the trial court properly analyzed this case and would affirm its judgment in favor of Nunamaker.

The Court’s analysis, while completely logical, proceeds from what in my view is an in-correct premise: that the Wage Payment Statute places on the employee the burden of proving his or her entitlement to be paid a certain amount under applicable law before an employer faces liability under the Statute. I think legislative intent could not be clearer that the whole purpose of the Statute is that employers must pay their employees the proper amount and pay it in a timely fashion. This purpose cannot be achieved if employers are not required to know what the proper amount is.

I note that the trial court’s and my interpretation of the Statute conforms with that of the Commissioner of the Indiana Department of Labor, appearing as Amicus Curiae here. As the head of the administrative agency responsible for enforcing the Statute, the Commissioner’s in-terpretation is entitled to great weight. LTV Steel v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000).

David Jeffrey Lee v. State of Indiana is an interlocutory appeal of Fourth Amendment issues relating to the admissability of video tapes. Part II relates to challenges under Art. 1, Sec. 11 of the Indiana Constitution. "The trial court denied his motion to suppress the sixteen videotapes Melissa brought to the police station and the 369 tapes the officers subsequently retrieved from the home. On interlocutory appeal, the Court of Appeals affirmed as to the tapes brought to the station and reversed as to the tapes taken from the home." The Court's conclusion, in an opinion by Justice Boehm:
The trial court’s order is affirmed. This case is remanded for resolution on the merits.

Shepard, C.J., and Dickson, and Sullivan, JJ. concur.
Rucker, J., concurs in Part I-A and dissents in Parts I-B and II with separate opinion.

[Update 6/30/06] The decision is reported today in the Munster (NW Indiana) Times:
Highland police didn't violate a photographer's constitutional rights when they seized more than 360 videotapes from his home, the Indiana Supreme Court ruled Thursday.

The court sent the 2003 case against a former Highland photographer -- charged with secretly videotaping his female clients while they changed clothes -- back to Lake County court for resolution.

Posted by Marcia Oddi on Thursday, June 29, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Judge seals records in French Lick casino dispute without hearing

It seems like each story contains just a little bit more information. (See most earlier ILB entries on this issue here.)

The June 28-July 11, 2006 issue of the Indiana Lawyer (not available online) has a front page story by Abigail Johnson headlined "OC judge seals casino complaint." A quote:

Judge Blanton said sealing an entire complaint, rather than only a few confidential records, is unusual. So what are his reasons for granting the temporary seal?

"When all else fails, go to the statute," Judge Blanton said.

He cited Indiana public records statutes, which state that records containing trade secrets or some confidential financial information may be sealed after a hearing.

More from later in the story:
Judge Blanton said the July 31 hearing will be bifurcated -- attorneys for Cook and Lauth will be able to make their arguments alone before the judge, and then the media and the public will be able to present arguments.

The judge said this is the first time he's had a request to seal an entire civil proceeding.

Posted by Marcia Oddi on Thursday, June 29, 2006
Posted to Indiana Courts

Ind. Courts - More on: Franklin County judge's recount finished; dispute continues

Updating Tuesday's entry, the Richmond Palladium-Item story today by Pam Tharp reports:

BROOKVILLE, Ind. -- There won't be a special election in the Franklin County Republican judge's race, but there isn't a final decision either on who won the May 2 primary.

Incumbent Republican Judge Steven Cox defeated Deputy Prosecutor Troy Werner by 20 votes on election night and a three-day recount this month increased Cox's lead by two more votes. The recount commission's results aren't official, though, until a judge accepts them. That hasn't happened yet.

On Wednesday, Senior Judge Robert Reinke of Richmond denied Werner's petition for a special election. The law requires special election petitions to be filed within 14 days of the election or by noon on May 16 this year.

Werner's petition was filed 52 days after the election. Until the recount uncovered numerous problems with the conduct of the election, Werner said he didn't know a special election was needed.

The recount commission found 32 more ballots than there were voter signatures on poll lists, Werner said. Werner has challenged the votes of five precincts because of that issue.

Werner also alleges that the seals placed on each precinct bag for security after the election were missing on more than one of the precinct bags when the Indiana State Police secured them. That could have left them open to tampering, he said.

Indianapolis attorney William Bock III, who represents Cox, said that even if Werner had filed for a special election on time, he didn't allege a deliberate, fraudulent act to qualify his petition.

"Frankly, he doesn't have a good faith, factual basis to file this now. I thought he would realize that he doesn't come within the statute," said Bock, who spoke to the court by speakerphone.

Reinke said the law on special elections is clear.

"An election contest must be filed within 14 days and there's no exception. It's a very difficult thing to try to get around that 14 days. Other cases repeatedly hold up dismissals for that reason. I think the Legislature meant what it said," Reinke said.

Reinke has yet to rule on the 111 individual ballots disputed by the candidates during the recount for a variety of reasons. The recount commission accepted those ballots.

On that issue, Bock argued the recount commission's decision is final, except for issues of law or procedural defects by the commission. Those can be challenged within 30 days of the end of the recount. Factual findings by the commission, such as issues of voter intent, can't be appealed, Bock said.

Posted by Marcia Oddi on Thursday, June 29, 2006
Posted to Indiana Courts

Ind. Courts - One of the finalists in the Court management project has dropped out

One of the four finalists in the JTAC state-wide automated case management project has dropped out. As announced here on the Court website:

06.22.06: The Indiana Supreme Court’s Division of State Court Administration has announced that the public demonstration by Sustain Technologies, Inc. scheduled for Friday June 23 has been cancelled. Sustain Technologies Inc. has decided not to pursue this project.
Sustain was a Colorado-based company. The remaining vendors include Tyler Technologies, Inc. (Texas), Computer Systems, Inc. (CSI) (Fishers), and Maximus – Justice Solutions Division (North Canton, Ohio).

For a list of earlier ILB entries on this project, check here.

Posted by Marcia Oddi on Thursday, June 29, 2006
Posted to Indiana Courts

Ind. Courts - "Law makes more people duty-bound "

The Lafayette Journal and Courier reports today, in a story by Joe Gerrety, on the new law eliminating most exemptions from jury duty. Some quotes:

Question: What do veterinarians, dentists and ferry boat captains have in common in Indiana?

It sounds like a riddle, but people concerned about the justice system in Indiana say the answer -- they all have automatic jury duty exemptions -- is no punch line.

It's an illustration of how antiquated laws have undermined litigants' right to trial by a jury of their peers, said state Sen. Beverly Gard, R-Greenfield, who sponsored legislation eliminating the exemptions. As of next week, a list of seemingly arbitrary automatic exemptions from jury service will be removed.

Senate Bill 232, approved unanimously by the Indiana General Assembly and signed into law by Gov. Mitch Daniels this past winter, takes effect July 1. It eliminates automatic jury exemptions for categories of people, including people over 65, people on active duty in the armed services, government officials, veterinarians, dentists, police officers, firefighters, correction officers and, yes, ferry boat operators. * * *

Judge Les Meade of Tippecanoe Superior Court 5, who served on the jury committee of the Indiana Judicial Conference, which recommended the law change, said it fits well with recent changes in the jury assembly process.

Indiana courts have shifted in recent years away from using voter rolls to select prospective jurors and now rely mostly on driver's license and income taxpayer rolls.

"What we have tried to do in recent years is to make the jury assembly process as broad as possible," Meade said. "We've made real progress in that process."

But the variety of automatic juror exemptions that existed in various sections of the Indiana Code prevented juror pools from being truly representative, Meade said.

The same statute that removes exemptions makes it possible for a prospective juror to seek a one-time deferral, or postponement, of jury duty if the person can demonstrate "hardship, extreme inconvenience or necessity."

Posted by Marcia Oddi on Thursday, June 29, 2006
Posted to Indiana Courts

Wednesday, June 28, 2006

Law - A little more on the Texas redistricting decision

Continue to follow Election Law Blog, How Appealing, and SCOTUSblog if you want to read everything on today's opinion in the Texas redistricting case, LULAC v. Perry.

What does it mean for Indiana? In my opinion, it makes the November election even more important than before, because whichever party wins the Indiana House this year will want to do a mid-decade redistricting to change the House from a closely split body to one whose district makeup guarantees (as far as such a thing can be assured) that the party that wins the House will rule the House for years to come. Whichever party loses the election will argue for the creation of a redistricting commission.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to General Law Related | Indiana Government | Indiana Law

Ind. Decisions - Supreme Court posts four more today

In addition to the case sumarized by the ILB here earlier today, the Supreme Court has now posted four more decisions:

Jason Paul Davidson v. State of Indiana

Niki Kelly reports on this opinion in the Fort Wayne Journal Gazette on 6/30/06, ending with:

The Supreme Court on Wednesday agreed with the original trial court decision, finding that Davidson’s real defense was based on intoxication not volition.

“The General Assembly has declared that intoxication is not a defense … If instead we treat intoxication as raising the question of voluntary conduct, the result would be that all intoxication would be a defense,” the decision said. “All the available legislative history about the origins of these provisions is to the contrary.”

Albert Hardister v. State of Indiana

Dorsey Matthews v. State of Indiana

Joshua Kendall v. State of Indiana

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - State seeks execution third time

Supplementing Mike Smith's AP story yesterday (see ILB entry here) is the story by Niki Kelly of the Fort Wayne Journal Gazette today headlined "State seeks execution third time: High court hears debate on sentencing for killer." Some quotes:

INDIANAPOLIS – Arguments before the Indiana Supreme Court on Tuesday showed that 25 years have done little to dull the feeling surrounding the 1981 shooting death of Gary police officer George Yaros in a bank robbery gone wrong.

State attorneys asked the five justices to allow them to seek the death penalty against convicted killer Zolo Agona Azania for a third time. * * *

Death penalty opponents also turned out for the case, which has been besieged by errors and procedural missteps leading to Azania’s becoming somewhat of a symbol for the cause.

The issue at hand is whether too much time has passed for Azania to get a fair trial on the penalty phase of the case, which long ago was shipped to Allen County because of pretrial publicity.

He was first convicted in 1982. Since then his death penalty sentence has been overturned twice, but his conviction is still intact. The first reversal resulted from ineffective assistance of counsel and a discovery violation by prosecutors. In 2002 his death sentence was reversed again because of a computer glitch in Allen County’s jury system that systematically excluded many potential black jurors.

After the case was sent back for a third sentencing trial, three Allen County judges recused themselves for various reasons and it landed in the hands of Special Judge Steven H. David, of Boone Circuit Court.

In 2005 he barred prosecutors from seeking the death penalty again.

That would mean the maximum sentence available for murder at the time of the crime was 60 years. With good-time credit – which allows an inmate to serve just half his sentence – Azania could be out in five years.

Arthur Perry – arguing for the attorney general’s office – said the court’s decision could have serious implications because defendants could be encouraged to drag cases on in hopes that enough time will pass to preclude certain procedures.

But Justice Frank Sullivan Jr. asked whether there should be some time limit for the state to get its case right.

“Is it fair to ask someone to go through a penalty phase hearing where the penalty of death is on the line?” Sullivan wondered.

Perry conceded facing the death penalty is “uncomfortable” but said Azania can still present a mitigation defense, even if his attorneys have to use transcripts and depositions from now-dead witnesses.

He said the better procedure is to let the sentencing phase go forward, and if Azania receives the death penalty again he can appeal it for a third time to try to prove he was prohibited by time from presenting a proper defense.

“We’re trying to review in advance, review in a vacuum, what may happen or might happen,” Perry said.

Justice Robert D. Rucker, though, pointed out that those in the system know that “death is different” and has a heightened sense of review.

“Shouldn’t he be given the benefit of the doubt in putting on the mitigation evidence he wants?” Rucker asked.

Azania attorney Michael Deutsch – a Chicago lawyer known for his death penalty work – told the justices about many witnesses who are now unavailable.

For instance, he said two eyewitnesses gave conflicting reports about whether Azania – known as the man in the blue suit – went back and executed the fallen officer or went back, picked up the gun and ran away. Both witnesses are deceased.

Deutsch also said that the coroner and many of Azania’s family members are dead and physical evidence is now missing.

“I cannot cross-examine a dead witness,” he said.

Chief Justice Randall T. Shepard sharply rebuked Deutsch at one point when Shepard was trying to ask a question and the animated Deutsch interrupted.

“Pardon me,” Shepard said, bringing the room to silence. “Never mind. I’ll make up my own answer to the question I was going to ask you.”

Deutsch apologized twice and returned to his case, saying it was not fundamentally fair to put Azania through a third penalty phase when most of the delay in the case was the result of mistakes made by the state.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - Columbus Ohio -area Judge Parker grilled on stand

The Cincinnati Enquirer reports today:

COLUMBUS - For years, Mason Municipal Judge George M. Parker has been accused of bullying defendants and witnesses, gathering his own evidence and even showing up at crime scenes.

But for more than four hours Tuesday, Parker was on the defense stand, testifying at the Ohio Supreme Court in an effort to keep his job.

The judge was peppered with questions from a representative of the state's highest court, who was trying to prove that Parker acts unprofessionally.Assistant Disciplinary Counsel Joseph M. Caligiuri told a three-judge panel of the Board of Commissioners on Grievances and Discipline they will find "clear and convincing evidence that the respondent violated the Code of Professional Responsibility."

Caligiuri's office is an enforcement arm of the Supreme Court and brought the complaint in October against Parker.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Courts in general

Law - Bush use of signing statements continues in the news

Charie Savage of the Boston Globe (who grew up, I'm told, in Fort Wayne and was/is "whip smart") has another article today on presidential signing staements. Some quotes:

WASHINGTON -- The Senate Judiciary Committee chairman, Arlen Specter, said yesterday that he is ``seriously considering" filing legislation to give Congress legal standing to sue President Bush over his use of signing statements to reserve the right to bypass laws.

Specter, a Pennsylvania Republican, made his comments after a Judiciary Committee hearing on signing statements, which are official documents that Bush has used to challenge the constitutionality of more than 750 laws when signing legislation .

Bush has issued more signing statements than all previous presidents combined. But he has never vetoed a bill, depriving Congress of any chance to override his judgment. If Congress had the power to sue Bush, Specter said, the Supreme Court could determine whether the president's objections are valid under the Constitution.

``There is a sense that the president has taken the signing statements far beyond the customary purviews," Specter said at the hearing. He added that ``there's a real issue here as to whether the president may, in effect, cherry-pick the provisions he likes, excluding the provisions he doesn't like. . . . The president has the option under the Constitution to veto or not."

But a lawyer for the administration, Deputy Assistant Attorney General Michelle Boardman, testified that Bush has shown Congress respect by using signing statements instead of vetoes when he has concerns about parts of bills.

``Respect for the legislative branch is not shown through [making a] veto," Boardman argued. ``Respect for the legislative branch, when we have a well-crafted bill, the majority of which is constitutional, is shown when the president chooses to construe a particular statement in keeping with the Constitution, as opposed to defeating an entire bill that would serve the nation."

Boardman said the president has the power and responsibility to bypass any statute that conflicts with the Constitution, even in cases ``where the Supreme Court has yet to rule on an issue, but the president has determined that a statutory law violates the Constitution."

The Washington Post reports:
A bipartisan group of senators and scholars denounced President Bush yesterday for using scores of "signing statements" to reserve the right to ignore or reinterpret provisions of measures that he has signed into law.

Bush's statements have challenged, for instance, a congressional ban on torture, a request for data on the administration of the USA Patriot Act and even a legislative demand for suggestions on the digital mapping of coastal resources.

The Senate Judiciary Committee's hearing marked the latest effort by Chairman Arlen Specter (R-Pa.) and panel Democrats to reclaim authority that they say the president has usurped as he has expanded the power of the executive branch. It came on the same day Bush gave a speech pushing for a line-item veto that would allow him to strike spending and tax provisions from legislation without vetoing the bill.

Other presidents have used signing statements to clarify their interpretation of laws, but no president has used such statements instead of ever using the veto authority spelled out in the Constitution, said Harvard University law professor Charles J. Ogletree Jr., who is serving on a new American Bar Association task force examining Bush's signing statements. Bush has never used his veto power in his presidency. * * *

Last year, after months of difficult negotiations, Bush withdrew a veto threat and signed a defense policy bill that included a provision by Sen. John McCain (R-Ariz.) banning cruel, inhumane or degrading treatment of prisoners at U.S. detention centers. But Bush's signing statement on Dec. 30, 2005, reserved the right to waive the torture ban if he concluded that some harsh interrogation techniques could advance anti-terrorism efforts.

This year, after Congress reached a hard-fought agreement to extend the USA Patriot Act, expanding the power of federal law enforcement, the president questioned a provision calling for the administration to furnish Congress with detailed audits on the issuance of secret business-record searches and "national security letters."

"He's crossing his fingers behind his back," [Senator Patrick] Leahy said.

White House officials and their allies tried to reassure lawmakers that they have nothing to fear from such statements.

"There's this notion that the president is committing acts of civil disobedience, and he's not," White House spokesman Tony Snow said.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to General Law Related

Law - U.S. Supreme Court upholds most of Texas' redistricting map

And it did so by a vote of 7-2, meaning redistricting can take place anytime
(and perhaps many times) during a decade, and political redistricting is in. Or perhaps not.

Here is what NPR's Nina Totenberg says.

From the Dallas Morning News:

WASHINGTON — The Supreme Court upheld most of Texas’ contentious congressional redistricting plan today, declaring one San Antonio-based district invalid but handing Republicans a big win overall.

The court said that the Constitution permits state legislatures to redraw district boundaries in the middle of a decade, not just after the U.S. Census is completed every 10 years. And it rejected Democrats’ claims that Texas Republicans went too far to gain partisan advantage from the new map they created in 2003.

For more, follow Prof. Rick Hasen's Election Law Blog. He already has several valuable posts up.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues one

In Howard & Merry Funston v. School Town of Munster, an 8-page opinion (dissent on pp. 7-8), Justice Dickson writes:

Contributory negligence is generally a question of fact requiring trial by jury or court, but summary judgment may be proper where the undisputed facts and resulting inferences establish that the defendant is entitled to judgment as a matter of law. This is such a case. We affirm the trial court's grant of summary judgment.

Howard Funston was injured when he fell from a set of bleachers while watching his son participate in an Amateur Athletic Union (AAU) basketball game at the Munster High School gymnasium. * * *

Under an agreement with the AAU, Munster High School provided six identical five-row portable aluminum bleacher sets. Each set of bleachers had no back support for the top row of seating, and none of the sets were pushed against a wall. For two games, Mr. Funston sat on the lower seats of two of the six separate but identical sets of bleachers, leaning back on the higher rows of the bleachers for support. During the third game of the day, he sat on the top row of a third set of identical bleachers. In an effort to get comfortable, Mr. Funston crossed his legs and leaned back, falling backwards off the bleachers and sustaining injuries. * * *

Finding that the undisputed evidence establishes as a matter of law that Mr. Funston was negligent and that such negligence was a proximate cause of the claimed injuries, we conclude that the trial court was correct to apply the defense of contributory negligence and to grant the school's motion for summary judgment. Judgment affirmed.

Rucker, Justice, dissenting.

Finding that under the facts of this case there is but one factual inference to be reached—namely, that Mr. Funston “was negligent to some degree”—the majority deems summary judgment appropriate. Slip op. at 5. I disagree. Summary judgment is rarely appropriate in negligence actions. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). This is because “negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.” Id. at 387. To declare as an indisputable factual inference that “Mr. Funston was negligent to some degree” without submitting the issue of negligence to a jury deprives Mr. Funston of the opportunity to demonstrate that he was not, in fact, a proximate cause of his injuries.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Jury convicts woman in meth ingredient trial"

Bryan Corbin of the Evansville Courier& Press writes today:

A Princeton, Ind., woman has been convicted in one of the first jury trials for purchasing too much of the active ingredient for methamphetamine, a prosecutor said.

A Gibson County jury deliberated just 15 minutes Monday before finding Jacqueline S. Osborne guilty of two counts of illegal purchase of more than three grams of pseudoephedrine.

The new state law to limit drugstore customers from purchasing large quantities of the cold-and-allergy remedy - and thus curb illegal meth production - took effect less than a year ago.

The law limits customers to buying no more than three grams of pseudoephedrine, or a related drug, ephedrine, within a one-week period. Both decongestants can be converted into methamphetamine, an illegal stimulant.

According to Gibson County Prosecutor Robert Krieg, Osborne was accused of purchasing 4.08 grams of pseudoephedrine between March 4 and 10. Then she allegedly purchased 3.84 more grams between April 2 and 4 - a total of nearly 8 grams, Krieg said.

That's the equivalent of about 266 pills (or more than 11 boxes) of 30mg Sudafed. Nearly 8 grams of pseudoephedrine would cumulatively be enough to produce about one batch of meth,

based on a formula that narcotics detectives use.

Osborne, 42, was not accused of possessing or manufacturing meth. Charged instead with two Class C misdemeanor counts of illegally purchasing pseudoephedrine, Osborne was found guilty. Judge Walter Palmer will sentence her July 5; she faces up to 60 days in jail on each count, and a fine of up to $500.

Krieg said the case is believed to be the first time in Indiana that charges filed under the new illegal-purchase law have gone to a jury trial.

A joint investigation by the Evansville Courier & Press and WEHT-News25 last fall found a loophole in the state law. Pharmacy customers easily could go from store to store, signing the stores' logbooks, and yet cumulatively buy more than the three-gram limit in a week's time, the hidden-camera investigation found.

As a result, narcotics detectives in Evansville and Vanderburgh County said they created their own database of customers' pseudoephedrine purchases and subsequently made arrests locally for violating the new state law.

Krieg said that in Gibson County, police made several meth-related arrests by pursuing customers whom records showed had purchased more than the legal limit of pseudoephedrine.

"While the law is an inconvenience for law-abiding citizens only wishing to purchase allergy medication without the hassle and costs of obtaining a prescription, this law has been a very effective tool that law enforcement can use to make a serious dent in the meth manufacturing trade," Krieg said in a news release.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Battle of wills between Vanderburgh County's judges and highest-ranking elected officials over control of city and county computer services "

The Evansville Courier& Press reports today, in a story by Thomas B. Lannghorne:

A yearlong battle of wills between Vanderburgh County's judges and highest-ranking elected officials over control of city and county computer services is one step closer to ending.

An ordinance passed by the County Commissioners on Tuesday - the City Council will consider an identical measure July 10 - establishes a governing structure for the city and county's joint Internet Technology Department.

The massive $3.4 million enterprise and the power to make decisions about how its 1,500-plus computers, servers and networking equipment are deployed were the subject of negotiations so rocky that they threatened to unravel on several occasions.

The judges and their supporters in other county agencies got some of what they wanted, but they did not receive what they fought for the hardest: a 20-member IT Advisory Council composed of city and county officials and themselves who would have the power to make spending, personnel and IT Department policy decisions.

It would have been the first time anyone other than the County Commissioners and the mayor's office would have held that power.

Instead, the ordinance the County Commissioners passed Tuesday creates a similarly composed 28-member council that can only make recommendations to a chief information officer who will report to them and to the mayor.

The judges had proposed that the CIO be confirmed by 70 percent of the advisory council. When the mayor and County Commissioners rejected that idea, the judges proposed that the advisory council's president be invited to any meetings between the CIO and the mayor's office or County Commissioners. That idea also was rejected.

So adamant were the judges about having decision-making power that Superior Court Judge J. Douglas Knight suggested in March that the judges might create a separate Internet Technology system for Vanderburgh County Courts.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Indiana Courts

Environment - Indiana's new status as Mecca for massive livestock operations

North Judson attorney Marty Lucas of Bigeastern.com had an excellent entry yesterday on "Indiana's new status as Mecca for massive livestock operations."

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Environment

Ind. Courts - Salem attorney peads guilty in drug case

Ben Zion Hershberg of the Louisville Courier Journal reports today:

A Salem lawyer who was arrested in New Albany while buying cocaine has pleaded guilty to possession of a narcotic.

Allen Trent Thompson was charged with drug dealing and possession after his April 2003 arrest. Police said the transaction took place in a State Street parking lot.

But he pleaded guilty in Floyd Superior Court Monday only to possession of a gram of cocaine, a Class D felony. His sentencing hearing is scheduled for Aug. 29. * * *

Thompson could face up to three years in prison on the possession charge.

Mike McDaniel, Thompson's lawyer, said he will attempt at the sentencing hearing to show that his client has made a significant change in his lifestyle since his arrest. He said he hopes the evidence will show his client shouldn't go to jail.

"He's a fine fellow," McDaniel said, adding that Thompson has complied fully with the requirements of a drug-treatment program for lawyers.

"He has been tested every week" for drugs, McDaniel said.

Thompson has maintained his legal practice, and McDaniel said Thompson hopes he will be able to continue it.

"His law license is at issue," McDaniel said.

He said Superior Court Judge Susan Orth can rule at the sentencing hearing that Thompson is guilty only of a misdemeanor. If she does, McDaniel said he hopes the Indiana Supreme Court Disciplinary Commission will allow Thompson to keep his license.

Donald Lundgren, executive secretary of the disciplinary commission, said he is required to file information about lawyers' convictions with the Supreme Court.

The court has discretion to revoke the license of a lawyer who has pleaded guilty to a felony, even if a trial court ultimately sentences him for a misdemeanor.

Lundgren said he couldn't remember a case in which the Supreme Court didn't impose some form of discipline on a lawyer convicted of a felony.

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Indiana Courts

Ind. Gov't. - Feds fine Intelenet, state $8.3M

A story today by Maureen Groppe from the Indianapolis Star Washington Bureau reports:

WASHINGTON -- Indiana and a public-private agency accused of improper conduct in administering an Internet access program for schools and libraries will pay back the federal government $8.3 million.

The Justice Department and U.S. attorney's office announced the civil settlement with the state Tuesday after an investigation of Indiana's "E-Rate" program for fraud and anti-competitive conduct.

From 1998 to 2005, E-Rate provided about $23 million in federal grants for needy Indiana schools and libraries to connect to the Internet. The program is funded through a "universal service" fee imposed on phone companies and passed on to their customers. A public-private agency, the Intelenet Commission, formerly ran the program.

The federal government says Intelenet and the state provided false information to the E-Rate program and otherwise violated the program's requirements by charging inflated prices for services, falsifying invoices, not seeking competitive bids and disregarding the requirement that schools and libraries make co-payments. * * *

A spokeswoman for Gov. Mitch Daniels said she could not immediately comment. Daniels took office after many of the concerns first arose about the program.

Members of Congress have been critical of E-Rate, which began in 1998. A report issued last year by the House Energy and Commerce Committee said the program is "extremely vulnerable to waste, fraud and abuse." The report blamed government mismanagement and "unscrupulous vendors."

The Indianapolis Star revealed last year that Indiana's program was being investigated. The Star reported that Intelenet had set aside $5 million in anticipation of having to pay federal penalties.

For background, see this ILB entry from August 30, 2004, quoting from a Star story headlined "Largely unseen, bureaucrat spent thousands on self," and commenting on the issues raised by quasi-public entities (which, BTW, have increased in number and size in the past 18 months). See also this entry from 4/12/05 headed "Intelenet problems apparently not limited to Indian."

Posted by Marcia Oddi on Wednesday, June 28, 2006
Posted to Indiana Government

Tuesday, June 27, 2006

Ind. Courts - "High court hears arguments in lengthy death penalty case "

Mike Smith of the AP writes today:

INDIANAPOLIS (AP) -- Prosecutors should be prohibited from again seeking the death penalty against a man convicted of killing a Gary police officer in 1981 because the passage of time would hinder his defense, an attorney told the Indiana Supreme Court on Tuesday.

Two previous death sentences against Zolo Agona Azania were overturned, and his attorney, Michael Deutsch, noted that several witnesses who could provide mitigating evidence are dead and some physical evidence is now missing.

The state asked the court to overturn a judge's ruling that bars prosecutors from seeking the death sentence again, saying it would set bad precedent and that there is testimony from court transcripts and depositions the defense could use in a third penalty phase.

Allen County juries sentenced Azania, formerly known as Rufus Averhart, to death twice for killing Gary police Lt. George Yaros during a bank robbery. The state Supreme Court overturned the sentences but upheld the conviction.

Since the most recent reversal, Azania's attorneys have claimed that delays by prosecutors have violated Azania's due process rights.

Boone Circuit Court Judge Steve David agreed, saying in a May 2005 ruling that Azania might have difficulty defending himself because some witnesses have died.

Azania has been in prison for the crime for about 25 years, and the maximum penalty for murder at the time of his original sentence was 60 years or death if certain aggravating factors existed. Killing a police officer in the line of duty is one of those factors. * * *

Justice Frank Sullivan suggested that a due process limit might be needed to determine how many times the state has to get it right in a death penalty case.

The case is State v. Zolo Azania; you can watch the oral argument here.

Posted by Marcia Oddi on Tuesday, June 27, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues four today

In Marriage of Dawn Marie Akers and Okey Akers, III, a 6-page opinion, Judge Vaidik writes:

Dawn Akers (“Wife”) appeals the trial court’s order modifying the custody, child support, and parenting time arrangements between her and Okey Akers, III (“Husband”). We find that the trial court erred in adopting an alleged settlement agreement between the parties because Wife repudiated the agreement before it was presented to the trial court in writing or recited on the trial court record, as required by Indiana Code § 31-15-2-17. We therefore reverse the judgment of the trial court and remand this cause for an evidentiary hearing on Husband’s petition to modify.
Jennifer Ann Page v. Robert Alan Page - child support.

Mattie Rainey v. National Check Bureau - involves a credit card agreement and procedural issues.

R.T.B.H., Inc., d/b/a McAndrews Windows & Glass Co. v. Simon Property Group - "The trial court correctly concluded that, as a matter of law, McAndrews failed to establish the existence of a mechanic’s lien against Simon’s ownership interest in the property."

Posted by Marcia Oddi on Tuesday, June 27, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues three today

In The Money Store Investment Corp. v. Neal A. Summers, et al, a 7-page opinion, Chief Justice Shepard begins:

Junior creditors usually wish they were higher up the priority ladder. Here, the junior creditor took an assignment of the first mortgage holder’s “dragnet” mortgages, seeking to “tack on” her judgment lien and “leapfrog” the second mortgage holder. Understandably, this constitutes a matter of first impression. Our conclusion: this was a nice try, but the original parties to the dragnet mortgages did not intend to secure a subsequent debt owed by the mortgagor to a third party.
In Kyle Neff v. State of Indiana, a 9-page opinion, Chief Justice Shepard writes:
This appeal raises familiar questions regarding the permissibility of aggravators used in sentencing a criminal defendant. It also raises the novel question of whether the appropriate remedy when aggravators are found improper is always remand with opportunity for the State to prove to a jury those aggravators found improper under Blakely. We conclude the Court of Appeals was correct simply to revise Neff’s sentence.
In Nathan Haas v. State of Indiana, an 8-page opinion, hief Justice Shepard writes:
Appellant Nathan Haas challenges his twenty-year sentence for conspiracy to commit burglary, imposed following a guilty plea. He says it violates his Sixth Amendment rights as outlined in Blakely v. Washington. * * *

At the end of the day, certain aggravators that support this sentence may be found only by a jury and those that a judge may find are such that we are unable to say with confidence that a maximum sentence is appropriate. We therefore remand to the trial court to allow the State, at its election, to prove the Blakely aggravators to a jury consistent with our decision today in Neff v. State, No. 12S02-0606-CR-232 (Ind. June 27, 2006); __ N.E.2d __ (Ind 2006). [ILB: The case immediately above.] Should the State decide to waive the opportunity, we direct the trial court to revise Haas’ sentence to twelve years.

Note: The ILB is starting to catch up with its case summaries - for instance, snippets for these Supreme Court cases from last week are now up.

Posted by Marcia Oddi on Tuesday, June 27, 2006
Posted to Ind. Sup.Ct. Decisions

Law - Louisiana Governor Blanco could not suspend suit deadline, court rules

The Baton Rouge Advocate reports:

A Baton Rouge judge has ruled Gov. Kathleen Blanco “exceeded her authority” when she gave Louisianians extra time to file lawsuits after the hurricanes.

In a case involving Fritz, a missing miniature Dachshund from Central, state District Judge Tim Kelley decided the Legislature also acted “improperly” when it retroactively ratified her order suspending the statute of limitations, known in Louisiana as prescription.

“I do not believe the governor had the authority to suspend the laws of the state,” Kelley said, according to a recording of last week’s hearing. “She does have the authority under the terms of the act to suspend the rules and regulations of various agencies of the state. But the courts are not agencies of the state.”

Just how the ruling ultimately might affect hundreds or thousands of otherwise late cases filed during the grace period isn’t clear. Until a higher court weighs in, it applies only to the case in which the decision was made.

But Jeff Nicholson, a lawyer for the plaintiff, said an appeal of the ruling is in the works; a 1st Circuit Court of Appeal decision would apply to all courts in the region. Kelley — predicting a full-blown fight — said the case “is going to be a fun one to go to the Supreme Court.”

At issue is an executive order Blanco signed suspending prescription, which sets a one-year deadline for filing certain civil lawsuits. Her order ran from Aug. 29 through Nov. 25.

The Legislature then retroactively ratified the governor’s orders during the 2005 Extraordinary Session, extending the suspension until Jan. 3.

Blanco based her order on the Louisiana Homeland Security and Emergency Assistance Act. It gives the governor authority to “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules or regulations of any state agency if strict compliance … would in any way prevent, hinder or delay necessary action in coping with the emergency.”

The decision was aimed at giving Louisianians a legal grace period in a time when courts, law firms and other aspects of the legal system were in chaos after hurricanes Katrina and Rita struck last fall.

But in his ruling, Kelley said the Homeland Security Act gives the governor authority to affect state agency rules and regulations “but does not extend to the laws of the state passed by the Legislature.”

“Because the Louisiana Homeland Security Act does not give her the authority to do what she did, she exceeded her authority in suspending the prescriptive laws of the state that previously have been passed by the Legislature,” the judge said. “Had the Legislature intended for the governor to have the authority to suspend the laws of the state, they would have expressly said so. Those executive orders were unconstitutional.”

Kelley’s decision — if upheld — means the grace period wasn’t legal. Any late lawsuits filed during that time could be thrown out for missing the one-year deadline.

The ruling comes in an unlikely case involving the Carmena family, the East Baton Rouge Parish Sheriff’s Office and a missing red and chocolate hound named Fritz.

There is much more to the story. The ILB asks, what about Indiana?

For starters, the Indiana Constitution, Article 1, Section 26: "The operation of the laws shall never be suspended, except by the authority of the General Assembly." So the next step would be look for statutory authorization.

Posted by Marcia Oddi on Tuesday, June 27, 2006
Posted to General Law Related

Ind. Gov't. - The budget of a city is much different than your own home checkbook or even for a person running a business

A story today in the Chicago Tribune is about an Illinois town, but the problem isn't limited to Illinois. Some quotes:

When the longtime treasurer of tiny northwest suburban Lakemoor resigned a year ago, untrained office workers were asked to update village finance reports on a computer they didn't know how to operate.

The result: financial chaos.

"Municipal budgets are horrendous," said Virginia Povidas, a full-time bookkeeper who was elected Lakemoor's village president last year.

She grew so frustrated after being questioned at a recent meeting that she dumped a mound of canceled checks on a table for board members to inspect.

Confusion over multimillion-dollar public budgets is common, especially in small communities with little or no professional staff and part-time elected officials.

In northwest suburban Carpentersville, auditors who examined the village's books over a four-year period ending in 2004 said officials had not accurately accounted for at least $3 million in village funds.

And auditors recently uncovered a similar problem in Antioch, where professionals blamed a $3 million gap in the financial ledger on faulty bookkeeping exacerbated by high staff turnover.

"The budget of a city is much different than your own home checkbook or even for a person running a business," said Dwight Horkheimer, manager of the Leadership Training Institute at the National League of Cities in Washington. "It's a critical subject that all public officials need to be knowledgeable about." * * *

The village, on the border of Lake and McHenry Counties, did fine when it had 700 residents. But the one-time resort town dotted with summer cottages has seen the construction of hundreds of new homes in the last six years, and its population ballooned to an estimated 5,000.

As the village [of Lakemoor] grew, so did the complexity of its finances. Then its longtime treasurer resigned.

While she looked for a replacement, Povidas passed on the bookkeeping responsibilities to two "office girls," clerks whose primary job had been handling utility bill collections.

"They knew how to do utility billing, but they didn't know how to do invoices or get things charged to the proper accounts, and no one knew how to work the computer, so we put everything on paper to back ourselves up," Povidas said.

Village Board members noticed holes in the reports and began hounding Povidas for more information on the $2.5 million budget. "We used to get quarterly reports off the computer that showed us what we were spending and taking in," Trustee Todd Hendrickson said. "Now we're getting handwritten breakdowns and wondering what's going on, but no one can tell us."

The story recalled to me the dispute over the new clerk in Martin County.

Posted by Marcia Oddi on Tuesday, June 27, 2006
Posted to Indiana Government

Ind. Courts - Franklin County judge's recount finished; dispute continues

The Richmond Palladium-Item reports today, in a story by Pam Tharp:

BROOKVILLE, Ind. -- When the Franklin County recount commission finished counting votes Monday, Republican Judge candidate Steven Cox had increased his margin by two votes over opponent Troy Werner. But the winner hadn't been decided.

During the three-day recount, candidates contested 125 items and Werner also asked for a special election. Special Judge Robert Reinke will conduct a hearing at 1:30 p.m. Wednesday in Franklin Circuit Court. At that hearing, Reinke said he expects to deal with the exhibits and the special election motion.

Last week, Werner asked for a special election because in several precincts counted on June 16-17 there were a total of 27 more ballots than signatures on poll lists, Werner said. Werner has challenged the results of five entire precincts and questioned the ability of the recount to determine the actual winner.

Most of the 125 exhibits are disputed ballots, but the list also includes poll lists and missing absentee affidavits, recount chairman Nick Fankhauser said. Cox contested 70 items and Werner contested 55.

On Monday, the third day of counting, the recount commission discovered absentee ballots rolled up in the bottom of a precinct bag, ballots that didn't appear to have been counted on election night, Fankhauser said. When those ballots were counted, Cox gained seven votes and Werner gained six, compared to the precinct's election night totals.

Both candidates lost some votes because the recount commission disallowed some absentee ballots that didn't have clerks' initials, as the law requires.

The recount commission counted the last five precincts Monday, then reviewed poll lists and provisional ballots from the first part of the recount done June 16.

"We realized we didn't pay as much attention to (poll lists) in the beginning as we should have," Fankhauser said. "It is an issue in this particular election."

Posted by Marcia Oddi on Tuesday, June 27, 2006
Posted to Indiana Courts

Ind. Courts - Porter County "Judges use video technology to arraign, sentence miles-away jail defendants."

The Munster (NW Indiana) Times reports today, in a story by Jerry Davich:

VALPARAISO I Porter County Superior Court Judge David Chidester raised his right hand, looked into the television screen inside the downtown courthouse and faced the defendant.

He asked, "How do you wish to plead, guilty or not guilty?"

Anthony Ashby raised his right hand, looked back through another television from inside the Porter County Jail, and answered the judge.

"Guilty, your honor. I was impaired. I drank vodka the night before," said Ashby, arrested May 12 in Kouts on charges of drinking and driving.

"I want to get this over with. I want to deal with it."

Chidester sat inside a tiny conference room on the courthouse's third floor, next to deputy prosecutor Melanie Eggers, and court reporter Becky Stowers.

Ashby, sporting an orange jumpsuit, sat in front of a handful of other inmates inside the county jail, located several miles away.

Unlike many Indiana counties, including Lake County, Porter County has for years been conducting court hearings, arraignments and even on-the-spot sentencing using video and audio feeds between the courthouse and jail.

It has proven to be especially economical with the high price of gas, judges say.

Almost daily, judges in the county division courts can handle routine misdemeanor charges, extradition hearings or probation violations through the video system, while more serious felony charges are handled in person. * * *

Judges say that Mondays are the busiest days for video arraignments, following typically "eventful" weekends, and the days after holidays are even busier.

Soon, every courtroom in the downtown courthouse will be equipped with such video technology, so judges won't have to squeeze into the tiny third-floor conference room.

Instead, they will be able to conduct business directly from their benches, said Chidester, who also regularly travels to the county jail to conduct court hearings.

Posted by Marcia Oddi on Tuesday, June 27, 2006
Posted to Indiana Courts

Monday, June 26, 2006

Ind. Courts - More on Greene County Circuit Court vacancy

The Greene County Daily World reports:

The Indiana Supreme Court has appointed a judge pro tempore for the Greene Circuit Court, who will serve until Gov. Mitch Daniels makes the appointment of an interim judge.

The Honorable Judith Hayes Dwyer, former Daviess Superior Court Judge in Washington, has agreed to fill the vacancy after Greene Circuit Judge David K. Johnson leaves his post on Friday. Her appointment will be effective July 1, but she isn't expected to be in the office until July 5 because the courthouse will be closed July 3 and 4 for the Independence Day holiday.

The appointment of Dwyer came after another former judge - the Honorable Dexter L. Bolin, who formerly served in Vigo County, had accepted the nod from the Supreme Court on June 16, but later notified the court he would be unable to accept the position because of health-related problems. * * *

Dwyer, who has been an attorney since 1963, maintains a private law practice in Washington and is currently serving as Special Senior Judge of the Pike Circuit Court. That appointment came from the Indiana Supreme Court on March 25 and will be effective until Dec. 31. * * *

The deadline for formally filing for a place on the November general election ballot is noon Friday.

The circuit judge selected in the Fall election will serve a six-year term.

The office vacancy was created last month when veteran Greene County Circuit Judge David K. Johnson announced his resignation, effective June 30. After nearly 30 years of serving on the bench, the 59-year-old Johnson accepted an appointment from Gov. Daniels to serve as a member of the Indiana Alcohol and Tobacco Commission.

Posted by Marcia Oddi on Monday, June 26, 2006
Posted to Indiana Courts

Ind. Gov't. - New Floyd County zoning approved

The ILB has posted a number of entires involving Floyd County's proposed new zoning ordinance and now the deed is done.

As Chris Morris reported Saturday for the New Albany Tribune:

It’s taken 39 years, 10 months of meetings and hundreds of hours of work, but Floyd County now has a new planning and zoning ordinance.

The Floyd County Commissioners unanimously approved the plan Saturday morning. However, they agreed to revisit the ordinance in five months to see if any revisions need to be made.

While both sides agreed the ordinance is not perfect, many in the standing-room-only crowd said it is a starting point.

The commissioners agreed.

“This is a historic day for Floyd County,” Commissioner Steve Bush said. “It’s a tool to go along with our comprehensive plan. It’s time to take action.”

“It’s a win-win situation,” said Chuck Freiberger, president of the Floyd County Commissioners. “This will better Floyd County as a whole. The plan is a starting point. It can be changed, but it’s a start.”

The ordinance will now go back to the Plan Commission for final approval. The Plan Commission already approved the document Wednesday, but under state statute, must approve it again.

While the commissioners were singing praises about the new ordinance, many in the room opposed it. Two of the issues mentioned over and over centered around land designation and lack of information about the public meetings which discussed the ordinance.

Darhiana M. Mateo and Ben Zion Hershberg of the Louisville Courier Journal wrote Sunday:
The Floyd County Board of Commissioners unanimously approved a new zoning ordinance yesterday that's expected to substantially affect development.

"It pre-qualifies what they (developers) can have out of the chute," said Paul Riggs, president of the Floyd County Plan Commission, which has worked on the ordinance for months.

With it, Riggs said in an interview last week, residents will know what can be built next to them and developers will know what kinds of subdivisions can be built.

The new ordinance takes effect Thursday. It establishes 12 zoning districts for different types of construction and shows, on a map, which district applies to each part of the county.

Under the 39-year-old zoning ordinance being replaced, the entire county was designated for agricultural and residential use. Subdivision plans had to be considered on a case-by-case basis by county planning agencies.

The new ordinance, which also removes a moratorium on new subdivisions that the board of commissioners had imposed in May, "takes away the mystery" from the planning and zoning process, Riggs said.

But not everyone was pleased.

At yesterday's meeting, many developers and landowners complained that the restrictions imposed by the ordinance will sharply reduce the value of some land by setting too low a limit on the number of homes that can be built on it.

Posted by Marcia Oddi on Monday, June 26, 2006
Posted to Indiana Government

Ind. Decisions - 7 more today from the Court of Appeals

Shawn C. Miller v. Caryn A. (Miller) Sugden - "Concluding that the trial court properly found Father voluntarily underemployed, but erred in its determination of imputed income, we reverse and remand for proceedings consistent with this opinion."

Rima M. Maroney v. State of Indiana
- "Concluding that the trial court erred when it failed to conduct an indigency hearing prior to ordering Maroney to reimburse the Bartholomew County Sheriff for her extradition costs, but that extradition costs may properly be subtracted from Maroney’s bail bond, we reverse and remand for proceedings consistent with this opinion."

In Denise Benjamin v. Peter Benjamin and Saul Ruman, Garnishee Defendant, an opinion by CJ Kirsch: "Prior to Denise’s filing for dissolution, the Indiana Supreme Court Disciplinary Commission filed a complaint against Peter in the fall of 2000. Peter hired Saul Ruman of the Ruman law firm to represent him in that matter. As consideration for representing Peter in the disciplinary action, Ruman agreed to accept an assignment of fees from a number of Peter’s then-pending contingency fee cases." More:

Ruman raises three issues, which we consolidate and restate as: I. Whether Indiana’s Rules of Professional Conduct regarding fee sharing permit Peter, and, by extension, Denise to share in any portion of the fees collected by Ruman on the cases that Peter previously assigned to Ruman. II. Whether Ruman is entitled to set off that portion of fees that Peter owed them for representing him before Peter is entitled to receipt of any sum.

Denise cross-appeals and argues that, although the trial court correctly determined that she was entitled to certain funds from Ruman, its calculation was incorrect, and she is entitled to a greater amount.

We reverse and remand.

J.B. v. State of Indiana - "J.B. challenges the trial court’s order committing him to the Department of Correction (“DOC”) following a probation violation. We affirm."

In Fabian S. White v. State of Indiana, Judge Vaidik concludes:

The trial court properly rejected White’s instruction on criminal recklessness as a lesser-included offense of attempted murder. Furthermore, the trial court did not err in sentencing White to consecutive enhanced sentences. Finally, White’s 115-year sentence is not inappropriate. The judgment of the trial court is affirmed.
Douglas Davis, et al. v. Michael Lecuyer, et al., an opinion by Judge Mathias, deals with two issues certified for interlocutory appeal:
I. What standard of care controls the recreational operation of personal watercraft [jet ski]; and,
II. Is negligent supervision a separate tort in the State of Indiana as to which a person may be liable to a minor in his care? * * *

I. Standard of Care for Recreational Operation of Personal Watercraft * * * For these reasons and more, we believe that the facts before us fit quite comfortably into Indiana’s modified, comparative fault system, as that system has been further refined by the Mark, Gyuriak and Geiersbach cases. Those cases stand for the broad and workable proposition that only organized sporting and recreational activities might potentially be subject to a lower, recklessness standard of care. Moreover, in light of our supreme court’s reliance on Indiana Code section 14-1-1-16 (now section 14-15-3-3) in Clipp, we conclude that the “regulation of personal watercraft” in Indiana Code section 14-15-12-10(a) establishes that a negligence standard should apply to casual jet skiing.

As such, issues of material fact remain as to the apportionment of fault between Doug and Benton, and the trial court properly denied summary judgment on this issue to the Stones.

II. Negligent Supervision as a Separate Tort Action * * * Hence, we find the Stones’ in loco parentis argument unpersuasive. In light of our court’s previous holdings in Johnson and Illinois Farmers, we believe Indiana law recognizes negligent supervision of a minor in one’s care as a separate tort. Issues of material fact remain regarding the Stones’ supervision of Benton, and the trial court properly denied summary judgment to the Stones.

In Gregory A. Harmon v. State of Indiana, a 14-page opinion, Judge Bailey concludes:
The trial court abused its discretion by excluding self-defense evidence in the second phase of Harmon’s bifurcated trial. Such error was not harmless. Retrial would not offend double jeopardy principles. Reversed and remanded for a new trial.

Posted by Marcia Oddi on Monday, June 26, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 23, 2006

Here is the Indiana Supreme Court's transfer list for the week ending June 23, 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 Monday, June 26, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending June 23, 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 June 23, 2006.

Posted by Marcia Oddi on Monday, June 26, 2006
Posted to NFP Lists

Law - Court strikes down Vermont campaign finance law

SCOTUSblog is reporting:

The Supreme Court, in a splintered decision on Monday, struck down limits on campaign donations and campaign spending imposed by the state of Vermont. Justice Stephen G. Breyer announced that as the summary of the ruling in three consolidated cases. ... The cases were Randall v. Sorrell, Vermont Republican Commiitte v. Sorrell and Sorrell v. Randall.
For background, see this entry from 9/27/05 and another from 9/27/05. The Wisconsin Right to Life case mentioned in the January stories was decided on 1/23/06.


Posted by Marcia Oddi on Monday, June 26, 2006
Posted to General Law Related

Ind. Courts - ND Ind. makes changes in judge assignments, effective July 1

A letter from Chief Judge of the ND Indiana, Robert L. Miller, Jr., states in part:

Technology and more uniform use of magistrate judges have permitted the court to change its case assignment method to achieve a more efficient utilization of its complement of active and senior district judges and so expedite the handling of cases and provide more efficient service to the public.

With limited exceptions, each case will be assigned to a local magistrate judge — a magistrate judge assigned to the division in which the case is filed — upon filing. Unless the assigned district judge orders otherwise in a particular case, that magistrate judge will handle all matters other than trials, final pretrial
conferences, and motions for rulings that would bring the case to a close.

At filing, the case also will be assigned to a district judge, without regard to division. That district judge will handle trials and dispositive motions. The district judge to whom the case is assigned will determine the location for trial. The parties may request that videoconferencing be used for any hearing before a judge not located in the division in which the case was filed. [ILB: my emphasis]

More detail can be found in General Order 2006-5, In re assignment of civil cases.

A reader comments:

Here in Fort Wayne, we had gotten quite used to having basically two district judges and a magistrate, who were very well known quantities....Occasionally we were referred to a South Bend judge in the event of a conflict, but that was very rare.....It's a brave new world now....

Posted by Marcia Oddi on Monday, June 26, 2006
Posted to Indiana Courts

Ind. Law - Star lists some new laws taking effect July 1

See today's Indianapolis Star story on laws taking effect July 1 here. The new law impacting discount brokers is not mentioned.

(See yesterday's ILB entry on the law changes re discount brokers, quoting from the Sunday Lesley Stedman Weidenbener LCJ story. Also see coverage by Advance Indiana here, and TDW here.)

Posted by Marcia Oddi on Monday, June 26, 2006
Posted to Indiana Law

Sunday, June 25, 2006

Ind. Courts - Judges featured

Indianapolis federal judge John Tinder is featured today by the Indianapolis Star in "Five Questions for John Tinder." A sample:

What person has influenced you the most in shaping your legal philosophy?

"I'd say Judge Patricia Gifford of Marion County criminal court. She brings such a calm presence into the courtroom. . . . She handles things in a very balanced way. (On Gifford presiding over the Mike Tyson rape trial in 1992): "That case was tried in (little more than) eight days. If that had been tried in California, it would have taken eight months."

Allen County Superior Court judge John Surbeck is featured by the Fort Wayne Journal Gazette in a story by Rebecca S. Green titled "On his bike, judge finds a way to relax." Some quotes:
Surbeck seems most proud of Allen County’s Re-Entry Court program, paid for by a federal grant and geared toward preventing recidivism for local offenders. He oversees the court-supervised program that helps transition offenders on early release from prison back into the community, providing mentoring, counseling, and help finding work.

“At the same time that came up, I was getting frustrated because I was doing everything I could do and seeing the same people over and over,” he said.

Surbeck served part time as a public defender in his life prior to the bench. He represented one generation of individuals and as a judge was seeing their children and grandchildren appear before him.

“It was time to do something,” he said.

The program, now about five years old, has reduced the rate of offenders committing other crimes to about 34 percent in Allen County, compared with nearly 60 percent nationwide, he said.

With the Re-Entry project, the judge said he is coming to the conclusion that, instead of using the penitentiary as a default, only the most seriously violent should be sent there. The rest should be closely monitored by the community.

“The (Department of Correction) does bad things to people,” he said, adding that while prison officials are doing their jobs, it is an expensive and isolating process for the community and the offenders.

Posted by Marcia Oddi on Sunday, June 25, 2006
Posted to Indiana Courts

Courts - Chicago federal judges are receiving home security systems

The Chicago Tribune , in a lengthy story today, reports:

Most federal judges in Chicago are receiving home security systems as the U.S. Marshals Service seeks to better protect the judiciary following last year's slayings of the husband and mother of U.S. District Judge Joan Lefkow, officials said.

The systems are part of broader security improvements for judges here, leaders of the Marshals Service said. Many of the improvements are being paid for with federal funds provided in the wake of the Lefkow tragedy.

Federal and local agencies are sharing information on those who surface as a security concern for judges, and they have increased efforts to investigate possible threats that emerge from judges' daily work at the Dirksen U.S. Courthouse.

Officials said they hope the changes will answer some of the complaints from critics of the marshals after the killings, including some judges. Lefkow's husband and mother were shot in the Lefkows' North Side home in February 2005 by Bart Ross, a litigant enraged at the judge. Lefkow had dismissed the medical malpractice suit Ross filed after cancer of the jaw left him disfigured. Nine days after the slayings, Ross killed himself, confessing to the murders in a suicide note.

Of the $12 million provided last year by Congress nationally for judicial security, more than 10 percent came to Chicago, said Michael J. Prout, chief deputy U.S. marshal in Chicago. "Almost all" of Chicago's 65 federal judges have said they want a home security system, and they are being installed now. Systems have been offered across the country to 2,200 judges, Prout said.

"We are on target to make sure that everybody that wants them has them by the end of September," Prout said.

The funds are being spent more than a year after Lefkow--who has not blamed marshals for what happened to her family--traveled to Washington to plead for more protection for the judiciary.

Posted by Marcia Oddi on Sunday, June 25, 2006
Posted to Courts in general

Ind. Gov't. - Lease of Toll Road to take effect Wednesday - What does it mean?

Martin DeAgostino of the South Bend Tribune has a good story today offering "a brief primer on the Indiana Toll Road lease." He provides answers to a number of questions, inlcuding:

Q. Who gets what from the deal?

A. Indiana gets a cash payment of $3.8 billion the day the deal closes. (By wire, in separate funds transfers that cannot exceed the U.S. Federal Reserve System's limit of $999 million each.) And Cintra-Macquarie gets all tolls and concession revenues for the next 75 years.

Those have been estimated at $120 billion, not adjusted for inflation.

Posted by Marcia Oddi on Sunday, June 25, 2006
Posted to Indiana Government

Ind. Courts - A little more on: Judge seals records in French Lick casino dispute without hearing

Lesley Stedman Weidenbener of the Louisville Courier Journal writes today in a story headlined "Casino squabble not likely to play out like Trump fiasco," about the secret legal dispute betwwen the two partners in the French Lick casino project. A few quotes:

INDIANAPOLIS -- The mysterious squabble between the current partners developing a casino in French Lick might seem reminiscent of the situation just last year involving Trump Hotels & Casino Resorts. * * *

Eventually, Trump declared bankruptcy and a new executive director of the commission, Ernie Yelton, could never get the company to fully commit to the project; therefore, the state never signed the contract for the casino.

That's when the state restarted the bidding process. This time, though, only one bidder emerged -- one offered by the partnership of Bloomington-based Cook Group and Indianapolis-based Lauth Property Group.

Everybody seemed thrilled about the marriage. * * *

But it's clear now that things haven't gone swimmingly.

Yelton acknowledged this month that the companies were in mediation over a dispute about control of the project.

According to the commission's secretary, Evansville lawyer Donald Vowels, the companies had an agreement that called for Lauth to transfer 25 percent of its interest in the project to Cook if the financing wasn't in place by April 15. Yelton said a small part of the financing was finished after that date.

Now, each of the companies has filed a lawsuit against the other. But because Orange County Circuit Judge Larry Blanton has sealed the documents -- after a request from the companies -- no one is sure quite what the legal dispute entails.

Posted by Marcia Oddi on Sunday, June 25, 2006
Posted to Indiana Courts

Ind. Law - Some of the new laws taking effect July 1

Niki Kelly of the Fort Wayne Journal Gazette writes today about some of the new laws taking effect July 1, including custodial parent's responsibilities if moving (see also this June 21st entry) , removal of most exceptions from serving jury duty, aggressive driving, sex offenders, and lifetime gun licenses.

Posted by Marcia Oddi on Sunday, June 25, 2006
Posted to Indiana Law

Ind. Law - Finally, a news story about Indiana's new anti-discount real estate brokers law

Lesley Stedman Weidenbener writes today in the Louisville Courier Journal:

INDIANAPOLIS — A new state law will require Indiana real estate agents to provide a list of services that may seem like the basics to those who've bought and sold a home:

Answering questions, handling offers and counter-offers, and assisting with the transaction paperwork.

But critics of the law, which will take effect Saturday, say it will squeeze out an emerging choice for home sellers in some areas — one that lets clients choose and pay only for the real estate services they want.

The so-called "a la carte brokers," more common in larger cities than in smaller towns or rural areas, offer a menu of services for sellers who want to handle part but not all of the transaction themselves.

For example, a broker might charge $500 to put a home on the privately run Multiple Listing Service, which makes it readily available to thousands of real estate agents across the state and country. But the homeowner would handle showings, offers and financial details by themselves or with the help of an attorney.

The new law, pushed by the Indiana Association of Realtors, will require that broker to provide other services as well.

An agent "shouldn't just be able to charge a fee and do nothing," said Karl Berron, legislative director for the association.

But Angie Hicks, founder of Angie's List, an information service for homeowner services that expanded last week into the Louisville metro area, said the law removes competition from the real estate services market and means some sellers will have to pay for services they don't want.

In a traditional transaction, sellers pay commissions that total 6 to 7 percent of the selling price — half to their own agents and half to the buyer's agent. By using discounted services, those sellers can save thousands of dollars.

"It's really a law that's reducing consumer choice," Hicks said. "The majority of people still use traditional real estate agents. But for people who have bought and sold houses often and are equipped to handle parts of the sale, this law would be eliminating choices."

What about other states? The story continues:
The Indiana law is not unique. Legislators in at least 10 states — including Illinois — have enacted minimum service laws, according to the Consumer Federation of America, which opposes them.

And they are under consideration in others, despite antitrust objections from the U.S. Department of Justice.

Kentucky legislators rejected a minimum-services law.

More from the story:
In Central Indiana, though, discount broker HomeYeah is closing up shop because its California-based owners don't want to work in the state's new anti-competitive atmosphere, said the company's local agent, John Slimak.

HomeYeah offered a $499 Multiple Listing Service listing to sellers in addition to more expensive packages that provided additional services.

Slimak has now started a new Indianapolis business — HomeChoice — that will offer complete real estate services. He plans to charge a 1 percent commission but provide full services.

He said that's unfortunate for many of his customers, who he said have saved thousands of dollars with the multiple-listing package, for which Slimak also went to the closing and handled the title work.

"It's a shame," he said. "People who were savvy home buyers and sellers could get their deals done faster and quicker without buying full services."

The story also quotes Karl Berron, legislative director for the Indiana Association of Realtors as stating the law doesn't prohibit real estate agents from providing discounted services.

Interesting. I guess we will have a better idea of what the state Real Estate Commission thinks the law means with respect to discount brokers after it goes into effect next week ...

This story today is the first news story the ILB has seen about the new law and. ironically, it is in the Indiana edition of an out-of-state paper. This spring, immediately after the session concluded, the ILB had a number of entries on this new law. Here is a quote from an ILB posting on March 19th of this year, commenting on a letter to the editor that commendably is still available from the Indianapolis Star website:

If the letter writer's analysis is correct, this means that real estate agents have now become a "protected species" in Indiana, rather than the "endangered species" predicted in this March 6th ILB entry that began:
NPR's Morning Edition had a story last Friday, March 3rd, about how "the Internet is putting pressure on the fees that [real estate] agents have become accustomed to." It speculated whether real estate agents would soon go the way of travel agents. And stock brokers.
In other words, no discount real estate brokers in Indiana.
This was followed by several more ILB entries on HEA 1339, includng this interesting one from March 22, and this one from March 24th. See also a March 30th entry, and this one from April 8th titled "The Changing Face of Real Estate Sales."

Posted by Marcia Oddi on Sunday, June 25, 2006
Posted to Indiana Law

Saturday, June 24, 2006

Ind. Courts - Grant County courthouse damaged by storm

The Marion Chronicle-Tribune's Barry William Walsh reported yesterday on the impact of a storm Thursday afternoon:

Marion Deputy Police Chief Cliff Sessoms heard the severe weather sirens sound shortly before 2 p.m. and went up to the second floor of City Hall to watch the storm.

What he saw was part of the Grant County Courthouse roof torn off by high winds.

"I was standing right outside of the mayor's office, and all of a sudden the top of the roof just blew right off," Sessoms said about 4 p.m. "It kind of just lifted it up, twisted it and pushed it off."

By 2:30 p.m., the courthouse lawn was roped off by yellow caution tape, and all of the employees had been sent home for the day.

Near the northeast corner of the courthouse square lay large twisted piece of rusting metal that had once been part of the roof. Across Adams Street, sheriff's deputies used yellow caution tape to cordon off the area around the Iroquois Building, which also had portions blown off by the storm.

"Part of the sheet-metal roofing blew off, but the wood and rubber moulding are still on," Grant County Administrator Angela Banter said. "However, there are huge holes and leakage."

Around 4 p.m., Banter said the county's judges had decided not to open the courthouse today. She also said an Indianapolis engineering firm was coming to assess the damage to the courthouse. Based on their findings, a decision will be made as to when the courthouse is safe to reopen, Banter said. * * *

Another concern created by the damage to the courthouse roof is the court records stored in the courthouse attic.

"If it does not continue to rain, we won't have any more problems," Banter said. "(A roofing company) is trying to a lay a tarp now to see if they can secure it in terms of additional rain we may receive."

Banter said some of the records stored on the courthouse's fourth floor were damaged by Thursday afternoon's rain. "There was a small amount of damage, but they can be recovered," Banter said. * * *

The storm not only affected the court records and employees at the courthouse, but also people who had business at the courthouse, such as Marion resident Mike Reed.

"I was on my way down to get a marriage license," Reed, 58, said. "I don't know what I'm going to do about that now. I'm getting married Saturday."

Posted by Marcia Oddi on Saturday, June 24, 2006
Posted to Indiana Courts

Ind. Courts - No candidates yet for Greene Circuit Judge

The Greene County Daily Citizen reported yesterday, in a story by Nick Schneider:

No candidates have been selected yet to run for Greene Circuit Judge on the November 7 general election ballot from either political party with the deadline to file just eight days away.

Both the Democrat and Republican Party caucuses scheduled this week to slate candidates for the vacancy created when current Circuit Judge David K. Johnson resigned - effective June 30 - have had to be rescheduled in order to comply with state election regulations, The Daily World has learned.

Johnson resigned to accept an appointment from Indiana Gov. Mitch Daniels to the Indiana Alcohol and Tobacco Commission.

Posted by Marcia Oddi on Saturday, June 24, 2006
Posted to Indiana Courts

Not law but interesting - Reports from Moscow by former Chesterton town councilman

Several years ago, as the Chesterton Tribune reports, "John Kosmatka abruptly resigned his seat on the Chesterton Town Council, left his home in what he has called the nicest place in the world to live, and decamped to Moscow to accept a position with the Department of State at the U.S. Embassy. It would be a momentous career change for any person but for a man eligible to join AARP it’s a breathtaking one."

Yesterday the Tribune published Kosmatka's fascinating two-year report from Moscow. Here is a sample:

White lines marking the road lanes are only “suggested” lanes. A two lane road quickly becomes three lanes and drivers often use sidewalks. Consequently, city runners have all been run over or choose to run in parks. As for my personal running course, I begin near the stadium of the ‘76 Olympics. I run along the Riverbank to the Kremlin and back again for a seven mile adventure.
Here is his initial report, published Jan. 27, 2005.

Posted by Marcia Oddi on Saturday, June 24, 2006
Posted to General News

Ind. Law - "No knock" searches v. Indiana's "castle" law

The Fort Wayne Journal Gazette had an interesting editorial Wed., Une 21st that began:

It seems likely that the U.S. Supreme Court’s decision allowing the justice system to use evidence seized in illegal “no knock” searches will get someone killed someday – and it could easily be a police officer.

A ruling that appears to encourage police to force their way into a home without announcing themselves is on a collision course with Indiana’s recently amended “castle” law, which allows residents to use lethal force to prevent someone from entering their home.

Posted by Marcia Oddi on Saturday, June 24, 2006
Posted to Indiana Law

Ind. Decisions - Followup on toll road rulimg

From the Fort Wayne Journal Gazette editorial today:

Indiana and Texas – traveling at dramatically different rates of speed on toll-road privatization – chose different routes this week. Which state made the better choice might not be known for many years, but it’s clear that Texas spent more time studying the road map.

In January, just a day after Gov. Mitch Daniels unveiled the “astounding sum” offered by the top bidder for the Indiana Toll Road, the Harris County (Texas) Board of Commissioners authorized a $1 million study of options for its own 83-mile toll road system. While that study was under way, Indiana lawmakers argued over how to spend $3.8 billion and approved the governor’s Major Moves plan. Objections from Democratic legislators and a lawsuit filed by lease opponents presented only minor roadblocks.

Tuesday, with results of the Texas study in hand, the Harris County commissioners voted unanimously to continue operating their toll road system instead of selling or leasing it to private investors. The investment consultant’s report advised that the county could increase profits by imitating a private firm’s practices.

“Now we can erect a sign on the toll roads: ‘Not for sale, not for lease,’ ” said Commissioner Steve Radack.

The study concluded that the Harris County Toll Road Authority would have to give up most of its control over rate increases to secure the best price for a sale or lease. JP Morgan and Popular Securities advised the county officials that they could have gotten as much as $20 billion for the Houston-area toll road system.

The same day Texas officials chose the exit ramp for privatization, the Indiana Supreme Court accelerated Daniels’ plan by rejecting legal arguments raised by opponents of the Indiana Toll Road lease. By upholding a ruling that says the plaintiffs must post a $1.9 billion bond to proceed, the court effectively killed the lawsuit. The state is now set to collect $3.8 billion from Cintra-Macquarie, the Spanish-Australian consortium that will run the Toll Road for the next 75 years.

The “astounding sum” will, indeed, present a major boost for the state’s long-delayed road-building and improvement efforts. Hoosiers can expect to see benefits soon – particularly given the interest Republican lawmakers have in proving to voters their Major Moves support was warranted.

But the deal’s success can’t be fairly judged before Nov. 7, or even in the 10 years it will take to spend the lease proceeds. The real test will come in the decades ahead. Will the private operator maintain the Toll Road without continual legal pressure by the state? Will the communities bordering the Toll Road face court battles each time they propose new roads or improvements to roads that might draw drivers away from the toll booths? Will northern Indiana residents ultimately bear the full cost of the deal in the form of toll increases?

The Harris County decision offers an interesting view of the road not taken. We’ll keep watching.

The Chicago Tribune reported yesterday:
Gov. Rod Blagojevich said Thursday that he has no intention of selling or leasing the 274-mile Illinois Tollway to private investors, contending the state is doing "great things" by expanding open-road tolling and electronic toll collection.

The decision by the Democratic governor takes away a potential re-election issue that threatened to mobilize voters in the Republican-rich suburbs who would face uncertainty over toll increases and have little say over where the proceeds from a sale or lease would be spent.

Blagojevich said in April that he was open to considering the concept of transferring the toll roads to private operators. At that time, state Sen. Jeff Schoenberg (D-Evanston) was making plans for hearings about the practicality of a lease or sale.

Schoenberg had suggested using the proceeds to reduce the state's huge public pension liabilities and generate federal matching funds for transportation projects.

But on Thursday, Blagojevich appeared to close the door on the idea.

"I like the fact that we're doing great things with the tollway. We've made it easier for motorists to go to and from places much sooner than later," Blagojevich told the Tribune. "And, we're in charge."

Blagojevich cited the expansion of the I-PASS electronic toll collection system and the effort to make the Illinois Tollway the first in the nation with open-road tolling systemwide. He said political concerns in a re-election year were not a motivation for his decision.

"I have no interest in giving up the tollway when we're doing so many good things," he said. "I have no interest in turning it over to private investors."

The possibility of a tollway lease or sale was fueled by Mayor Richard Daley's $1.8 billion lease of the Chicago Skyway and Indiana's pending lease of the Indiana Toll Road for $3.8 billion. Potential revenue from the sale or lease of the Illinois Tollway has been estimated to be at least $15 billion.

The Fort Wayne News- Sentinel editorialized yesterday, in a piece titled "Major Moves ahead: In many ways, the great lease debate is just starting, here and in the rest of the nation":
The Indiana Supreme Court, in throwing out objections to Gov. Mitch Daniels’ lease of the Indiana Toll Road, has confirmed our belief that the 75-year, $3.8 billion agreement is a good deal for the state and Hoosier taxpayers. But it also demonstrates why such deals should be considered one at a time, with healthy debate and legislative input. The governor should not have, as he originally sought, carte blanche to lease state assets whenever he feels like it.

Opponents to this one lease raised numerous constitutional questions, so who knows how many more there might be in the limitless permutations possible in future lease proposals?

The most serious question addressed by the court was whether a state law meant to keep harassing or frivolous lawsuits from stopping public projects applied to the lease deal. The court ruled that it did, meaning that those challenging the deal would have to put up a bond equal to half its worth – or $1.9 billion – to proceed. That requirement has essentially stopped the opposition, its leaders say. The court’s decision hinged a great deal on language interpretation and legislative intent. The lawsuit law refers to “municipal corporations,” opponents said, which the Indiana Finance Authority, through which the toll-road deal is being made, is not. But the legislature clearly intended such entities as the IFA to be covered in the definition of municipal corporations, the court said. That makes a great deal of sense. Why would the state want to protect city and county public projects from frivolous lawsuits but not its own projects?

The great lease debate does not end with this court decision. In many ways, it is just getting started, both in Indiana and nationwide. * * *

The political ramifications are obvious. On paper, leasing the toll road seems like a brilliant political move. Ordinarily, politicians have to propose projects that are immediately costly in the form of tax increases but the benefits of which are somewhere in the future. With this deal, Daniels gets to spread lots of money around immediately. The possible effects of an Australian-Spanish consortium controlling the road are far in the future.

Posted by Marcia Oddi on Saturday, June 24, 2006
Posted to Ind. Sup.Ct. Decisions

Friday, June 23, 2006

Courts- "Three Las Vegas Judges Face High Court Review"

Following up on its earlier 3-part investigation of the judiciary in Las Vegas (start with this ILB entry from 6/19/06), the LA Times story today begins:

LAS VEGAS — The Nevada Supreme Court has asked three Las Vegas judges to respond to reports that they have engaged in conflicts of interest, favoritism and other questionable practices.

Based on the responses of those senior judges and a review of the allegations, first detailed in the Los Angeles Times, the state Supreme Court will decide whether to take action, Chief Justice Robert E. Rose said.

In an interview, Rose also called for beefing up the state agency responsible for investigating judges, and for making it easier to remove senior judges from cases.

The Times articles, published this month, detailed what appeared to be widespread conflicts of interest, favoritism and violations of judicial canons by Las Vegas judges.

The reports focused on eight current or former district court judges and a sitting federal judge. The Supreme Court's inquiry is the first known step toward investigating the allegations.

News media and political commentators in Las Vegas have condemned the behavior described in the reports, and numerous Nevada lawyers praised the disclosures as a step toward reform.

At least two efforts are underway to change state laws governing the way Nevada's judges are chosen and to restrict campaign fundraising by judges. Similar efforts in previous years have been rebuffed by voters or the Legislature.

Beyond the Supreme Court's inquiry, officials charged with investigating possible judicial wrongdoing either have not responded to the reports or have spoken out in defense of the state's judges. Some have said The Times articles were unfair.

The Supreme Court said it was limiting its inquiry to the three senior judges because the high court appointed and directly oversaw them.

The job of investigating district court judges would fall to the Nevada Commission on Judicial Discipline. That group's executive director, David F. Sarnowski, said he was prohibited by law from disclosing if a complaint had been lodged against a judge or if an investigation was underway.

If a complaint were to result in a hearing, "even then the material is not publicly accessible," Sarnowski said.

Similarly, the chief judge of the U.S. 9th Circuit Court of Appeals in San Francisco would decide whether to investigate any complaint against U.S. District Judge James C. Mahan of Las Vegas, another jurist cited in The Times articles. That process is also confidential.

Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Courts in general

Ind. Decisions - Court of Appeals posts seven decisions, dated from June 21st through June 23rd

Jolene G. Eye v. Glenn Lee Eye

Lori Basham and Kentucky Farm Bureau Ins. Co. v. Craig Penick

Marian L. Dewart, et al v. Steven E. Haab, et al

Brian Samuels v. State of Indiana

Press-A-Dent Inc. v. Danny D. Weigel

Miami Sand & Gravel, LLC v. John & Georgia Nance

Alain V. Scuro v. State of Indiana


Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts 6 cases decided earlier this week

Just posted on the Supreme Court website are six decisions, with dates from Wednesday and Thurday:

In Claudette Cain v. Roger Griffin, a 12-page opinion, Justice Sullivan writes:

Claudette Cain sued Roger and Lucy Griffin’s insurance company after a dispute arose over payments due Cain for injuries she suffered when she was injured in a fall at the Griffins’ restaurant. Cain contends she is a “third-party beneficiary” of the Griffins’ insurance policy and that she is entitled to maintain a claim for “bad faith” against the insurance company in addition to her claim for benefits under the policy. Applicable contract law permits Cain’s third-party beneficiary claim to go forward but she has no bad-faith claim against the insurance company under applicable tort law. * * *

We hold that Cain, as a third-party beneficiary to the medical payments coverage of the insurance contract between Auto-Owners and the Griffins may sue Auto-Owners directly to en-force the contract. However, because Auto-Owners does not owe to Cain a duty of good-faith dealing, Cain may not proceed on a tort claim against Auto-Owners for failure to deal in good faith.

In K.S. v. State of Indiana, an 8-page opinion, Chief Justice Shepard begins:
Like the rest of the nation’s courts, Indiana trial courts possess two kinds of “jurisdiction.” Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. Personal jurisdiction requires that appropriate process be effected over the parties.

Where these two exist, a court’s decision may be set aside for legal error only through direct appeal and not through collateral attack. Other phrases recently common to Indiana practice, like “jurisdiction over a particular case,” confuse actual jurisdiction with legal error, and we will be better off ceasing such characterizations.

In Sue Kozlowski v. Dordija Dordieski, et al, a 4-page opinion, Chief Justice Shepard writes:
A remonstrator to a real estate development sought judicial relief. She prevailed in the Court of Appeals, which remanded for further proceedings. She then sought injunctive relief in a different court, which granted summary judgment against her on grounds that it “lacked subject matter jurisdiction.” Actually, the second court did have subject matter jurisdiction, but was right to grant judgment because the same matter was pending in the court where the first action had been heard. * * *

We hereby affirm the trial court’s order granting the Commission summary judgment and direct any further proceedings involving substantially similar parties, subject matter, and remedies sought to occur in Lake Superior Court Room Five.

In Dutchmen Manufacturing Inc. v. Chad and Don Reynolds, a 12-page opinion, Justice Boehm states the holding of the case:
We hold that tort liability of a tenant who leaves a dangerous item on the leased premises at the expiration of a lease is not extinguished by reason of the expiration of the lease. We also hold that a provision in a lease to a successor tenant that the item is acquired “as is” does not of itself bar a tort claim asserted by a non-contracting party.
In Robert Cavens, M.C. v. Tim Zaberdac, a 12-page opinion, Justice Dickson begins:
The primary appellate issue in this medical malpractice case is whether the trial court erred by prohibiting the physician from asserting the patient's conduct prior to the alleged mal-practice as a contributory negligence defense. We affirm the judgment of the trial court.
In John Cantrell v. Sonya A. Morris, a 23-page opinion, Justice Boehm writes:
We respond to a question certified from the United States District Court for the Northern District of Indiana as follows: 1) we do not resolve whether Article I, Section 9 of the Indiana Constitution imposes any restrictions on government officials in dealing with political activity or affiliation of public employees; 2) to the extent that tort doctrines give a civil damage remedy to a public employee terminated for political activity or affiliation in violation of Article I, Section 9 of the Indiana Constitution, any such wrongful discharge claim is governed by the Indiana Tort Claims Act (ITCA); and 3) the Indiana Constitution does not of itself give rise to any such claim, and does not prevent the ITCA from applying to such a claim. * * *

In summary, we expressly decline to address whether termination of a public employee may give rise to a violation of the Indiana Constitution. If a violation of Section 9 can supply the invasion of a right necessary for a wrongful discharge claim, the civil damages remedy against the government for a wrongful discharge is limited by the ITCA, and the individual official is entitled to immunity and indemnity to the extent provided by the ITCA.

Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - How to pay for new St. Joe court building?

The South Bend Tribune has this editorial titled "A courtroom dilemma":

St. Joseph County should proceed cautiously before deciding to construct a new criminal courts building.

Local judges are worried that burgeoning caseloads and a shortage of judges could eventually wreak havoc with the court system in St. Joseph County. Estimates by the Indiana Supreme Court indicate that from four to eight new judges or magistrates will eventually be needed in St. Joseph County to keep up with criminal justice demands.

The Board of Commissioners is worried that the judges may mandate construction of the new courtrooms. We agree that a mandate is not the right answer.

New courtrooms may indeed be needed, but any decision to increase capacity should include input from the commissioners as well as the St. Joseph County Council.

Judges estimate a new, free-standing criminal courts building constructed near the jail would cost between $23 million and $28 million. If those estimates hold true, a significant portion of the county's bonding power could be tied up, leaving little money available for other projects. Stretching the county that thin financially is not a good idea, especially considering laws recently passed by the Indiana General Assembly.

A provision passed late in the last session caps property tax bills at 2 percent of gross assessed value. The law will apply to homes and apartments in 2008 and then broaden to include all commercial, industrial and personal property by 2010.

The bottom line is that local governmental units may have less money for some projects, and that could impact the county's plans.

Additional judges and new courtrooms may indeed be needed, but we do not believe the judges should reshuffle the list of important county projects, making the courtroom project the top priority. The proposed Family Justice Center, for example, seems more important to us. And what about other projects, such as a county emergency communications center and long-sought-after work release center? They are important, too.

When the county decided to construct a new jail, there were plans to renovate the old jail into high-security courtrooms. St. Joseph Superior Court Chief Judge John Marnocha has questioned whether the old jail could be adequately converted to courtrooms. County officials initially thought renovating the jail would be the most cost-effective solution. But there may be another solution.

Superior Court judges are not the only judges feeling the pinch of a burgeoning workload. St. Joseph Probate Judge Peter Nemeth also is feeling the heat. With only one magistrate and a part-time judge to help him, Nemeth's court is struggling to keep pace with a workload that typically should be handled by several judges.

Nemeth's building is relatively new and adding on would be easier than building an entirely new building. There's also the room to do it in the greenspace that surrounds the Frederick Juvenile Justice Center. Nemeth proposes adding four courtrooms to the existing Probate Court, which is part of the JJC. Two of the courtrooms would be used by any additional staff hired by the county to help with the caseload. The other two courtrooms could be used in the short term for Superior Court until a more long-lasting solution is found.

That may be the best answer right now.

Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Indiana Courts

Ind. Gov't. - Louisiana Governor Blanco vetoes bill giving lifetime health and life insurance benefits to lawmakers

Baton Rouge's paper, The Advocate, reports today:

After a firestorm of criticism, Gov. Kathleen Blanco vetoed a bill Thursday that would have given lifetime health and life insurance benefits to lawmakers forced out of office by term limits.

“It doesn’t make sound public policy,” Blanco said in a prepared statement that announced the veto.

The measure, House Bill 1028, won final approval Sunday, the day before the nearly three-month session ended. It got little notice for most of the gathering but, once the details reached the public, critics quickly mounted a campaign urging Blanco to veto it.

The Governor’s Office received about 900 telephone calls and 350 e-mails on the bill in the past few days, said Roderick Hawkins, a spokesman for the governor.

Blanco alluded to the critics in her announcement.

“I heard them loud and clear,” she said. “This bill had a very short life- span, and I’m pleased to have pulled the plug.” * * *

Under the measure, lawmakers with at least 10 years of experience and already taking part in the state insurance system would have 75 percent of their health and life insurance premiums paid for by taxpayers. * * *

Sen. Jody Amedee, D-Gonzales, who was one of the two “no” votes in the Senate, said he was pleased by the veto.

“I don’t think it is fair that legislators can work a part-time job for 10 years and then get … health insurance for the rest of their lives,” Amedee said. “I didn’t like the bill.”

Hm. I wonder where the Louisiana legislators got the idea ...

Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Indiana Government | Legislative Benefits

Ind. Gov't. - "Huge lottery payout - for lawyers"

The Indianapolis Star reports today, in a story by Diana Penner:

A dispute over a winning scratch-off ticket that would have cost the Hoosier Lottery $5 to resolve in 1997 instead will cost the agency more than $1 million.

The lottery has agreed to a proposed settlement to end the nearly decade-long fight, which evolved into a class-action lawsuit.

Here's what happened: Tom H. Smith, Indianapolis, bought a $2 "instant win" ticket in 1996, which yielded a $5 prize. He didn't instantly redeem it, though. And when he tried to collect months later, he was told he was too late.

Smith appealed to lottery headquarters, saying he had no way of knowing the game had ended. That didn't work, so he sued.

The lottery already has ponied up more than $450,000 to pay lawyers to fight the suit and now is agreeing to set up a $600,000 pot to resolve the entire matter, once and for all. * * *

Under the terms of the proposed settlement, which still must be formally approved by a judge, Smith will get $15,000 from the $600,000 fund.

There is much more to the story, including this Court of Appeals decision: George Frankl and Tom H. Smith v. State Lottery Commission of Indiana (8/5/04 IndCtApp).

Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Indiana Government

Ind. Gov't. - State workers' Internet access cut: some disciplined for viewing porn

Elisabeth J. Beardsley of the Louisville Courier Journal reports today:

The Indiana state government began restricting state workers' Internet access yesterday and some employees have been fired or disciplined after evidence was found that child pornography was viewed from work computers.

The move came a day after the state of Kentucky, in an unrelated move, expanded its filtering efforts to ban blogs, entertainment and shopping sites.

"Child pornography — you see those two words and you think, `Oh my God,' which is what we all thought," said Chris Cotterill, general counsel for the Indiana Office of Technology. "Child pornography is disgusting and it was taken very seriously."

A "handful" of employees were fired and several others were disciplined after the technology agency reported them to their human-resources departments for viewing child porn, Cotterill said. The agency also notified the state police, he said.

Gov. Mitch Daniels supports the decision to install a filtering system, which replaces what had been the employees' unfettered Internet access, said Daniels spokeswoman Jane Jankowski.

"He wants to assure that there's appropriate use of state resources and so he is fully on board" with the Office of Technology plan, she said.

David Larson, executive director of the Indiana State Employees Association, said the group agrees with the state's efforts to crack down on pornography and is not intervening with any employees who were disciplined or fired. * * *

As a first step yesterday, the state banned employees' access to pornography sites, and the next step will be to ban terrorism and hate sites, he said.

Further review might result in other restrictions, he said.

"If people are listening to Internet radio at work or watching videos that are unrelated to their job, that costs the state money and our intent is to block that," Cotterill said.

Indiana has not yet banned blogs, he said.

Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Indiana Government

Ind. Courts - Still more details on: Judge seals records in French Lick casino dispute without hearing

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:

INDIANAPOLIS -- A legal feud between the partners in the Orange County casino project apparently has expanded with the filing of a second suit.

A subsidiary of Indianapolis-based Lauth Property Group has filed a lawsuit against Bloomington businessman Bill Cook, its partner in the French Lick project. The filing comes after the casino subsidiary of Cook Group filed a suit against Lauth earlier this month.

Both companies have remained mum about their conflict, and Orange County Circuit Judge Larry Blanton has sealed the lawsuits, blocking their content from the public.

Blanton has scheduled a July 31 hearing to consider whether the suits should remain sealed.

The Courier-Journal plans to ask Blanton to make the documents public. The Times-Mail of Bedford and The Herald Times of Bloomington have reported they also plan to ask the judge to unseal the suits.

Re "Orange County Circuit Judge Larry Blanton has sealed the lawsuits, blocking their content from the public," it appears that the Orange County judge has not only has sealed the complaint and the injunction request, but also the court docket itself! This means that even the existence of the lawsuit would have remained secret except for the persistence of LCJ reporter Grace Schneider, resulting in the initial June 20th LCJ story.

Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit ruled on two more Indiana cases yesterday

From Porco, Christopher v. Trustess IU (SD Ind., David F. Hamilton, Judge), an 11-page opinion:

ROVNER, Circuit Judge. Like many state universities, Indiana University charges nonresident students higher tuition than their Indiana resident counterparts. Christopher Porco was born and raised in Michigan, but he attended law school in Indiana. Shortly after he finished his first year at Indiana University School of Law, Porco petitioned for reclassification as an Indiana resident for purposes of tuition. The University denied Porco’s petition, and he thereafter filed suit against the Trustees of Indiana University, the Standing Committee on Residence, the Chair of the Standing Committee on Residence, and the Associate Registrar (collectively, “the University”), all in their official capacities. Porco alleged that the University’s system for classifying resident and nonresident students violated the Privileges and Immunities, Equal Protection, and Due Process Clauses of the United States Constitution. He demanded a preliminary injunction to prevent the defendants from collecting nonresident tuition from him under the University’s classification system, which he sought to have declared unconstitutional. The defendants moved to dismiss Porco’s suit for lack of standing, and moved in the alternative for summary judgment. The district court dismissed the suit in part and granted the defendants’ motion for summary judgment as to the remainder. Porco appeals, but we dismiss his appeal as moot for the reasons stated herein.
From Badelle, Robert E. v. Correll (SD Ind., Larry J. McKinney, Chief Judge), a 26-page opinion:
SYKES, Circuit Judge. Almost thirty years ago, Robert Kannapel Sr. was shot and killed while working at an Indianapolis gas station. Robert Badelle was convicted of the murder by an Indiana jury in 1979 and sentenced to sixty years’ imprisonment. Badelle’s conviction and sentence were affirmed on direct appeal. Badelle v. State, 449 N.E.2d 1055 (Ind. 1983) (Badelle I).

Four years after the final disposition of his direct appeal, Badelle commenced an action for postconviction relief in state court. For reasons not entirely clear from the record, this petition apparently remained pending for twelve years without substantial action by the Indiana court.1 An evidentiary hearing was finally convened in the fall of 1999; it lasted four days and 44 witnesses testified. The postconviction court denied relief, and the denial was upheld on appeal. Badelle v. State, 754 N.E.2d 510 (Ind. App. 2001) (Badelle II). The Indiana Supreme Court declined review.

Badelle then filed a petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254 alleging numerous errors in the state court proceedings. The district court denied relief, and this court granted in part Badelle’s request for a certificate of appealability. See 28 U.S.C. § 2253. Badelle argues on appeal that he is entitled to habeas relief because the prosecution withheld evidence contrary to Brady v. Maryland, 373 U.S. 83 (1963), and because his counsel was ineffective for failing to investigate and present the testimony of additional witnesses and for not sufficiently objecting to the admissibility of eyewitness identifications. We affirm.

1 The Indiana Court of Appeals noted without elaboration that the original petition for postconviction relief was filed on June 15, 1987, and that “subsequent petitions or amendments” were filed in 1987, 1989, 1996, and, finally, on May 27, 1999. Badelle v. State, 754 N.E.2d 510, 519 (Ind. App. 2001).

Kevin Corcoran reports in today's Indianapolis Star:
An Indianapolis man some people claim was wrongly convicted of killing a gas station manager nearly 30 years ago isn't entitled to a new trial, a federal appeals court in Chicago ruled Thursday.

The three-judge panel unanimously rejected Robert Earl Badelle's claim that he should go free, even though prosecutors had deprived him of a fair trial by withholding evidence.

That evidence included testimony that Badelle was miles away at the Drake Motel on the city's Eastside at the time of the killing. "Standing alone, we cannot say this information would have changed the outcome of Badelle's trial," Circuit Judge Diane S. Sykes wrote.

Badelle's appellate attorney, Sarah Nagy, had been optimistic her client would be released from an Indiana prison since last July, when the 7th U.S. Circuit Court of Appeals held brief oral arguments on the case that appeared favorable to her client.

But the Court of Appeals ruled Thursday that prior state court rulings upholding Badelle's conviction were not "so erroneous as to be objectively unreasonable."

Nagy said Thursday that she intends to appeal Badelle's case "out of principle" to the U.S. Supreme Court, which accepts only a tiny percentage of all cases.

Posted by Marcia Oddi on Friday, June 23, 2006
Posted to Ind. (7th Cir.) Decisions

Thursday, June 22, 2006

Ind. Gov't. - Kokomo Council not happy about mayor's legal bills

The Kokomo Perspective reports today, in a story by Paul Allor:

The bill is due for high-school student Ryan Nees' lawyer, and Kokomo Common Council members aren't happy about it.

Most councilmen have made clear they feel Kokomo Mayor Matt McKillip should not have fought Nees' lawsuit, and lay the blame - and the expense - at his feet.

“This is something that should not have been pursued,” said Councilman Greg Goodnight. “I think it was a loser to begin with.”

In fact, council members last week debated whether to pay the attorney's fee out of the attorney's fees line item, or whether to instead take it from the mayor's office.

The city owes $11,096 to William Groth, who represented Nees in a lawsuit against the city.

Last year Nees, a student at Western High School, asked for a copy of the city's electronic newsletter subscription list. The city said Nees could inspect the list, but could not have a copy. The Indiana public access counselor investigated the matter, and said Nees was in the right. But the city ignored her non-binding recommendation, leading Nees to sue.

For background, check this ILB entry from April 19th.

Posted by Marcia Oddi on Thursday, June 22, 2006
Posted to Indiana Government

Courts - Miami County judicial system may expand

The Miami County Life reports today, in a story by Sherry Loshnowsky:

Local officials have initiated the process to create a third trial court in Miami County.

Superior Court Judge Dan Banina and Circuit Court Judge Rosemary Higgins-Burke told the Miami County Commissioners Monday that the two county courts are swamped with cases for various reasons. Presenting statistics from a weighted caseload study of the courts over the last ten years, Banina said the two courts have averaged the work of about three courts over the past five years.

Higgins-Burke attributed much of the problem to the number of small claims and civil cases being heard from the Miami Correctional Facility.

"They take up an enormous amount of time, partly because the inmates don't know anything about what they're doing, but some do know what they're doing because they've done it so many times," she said. "But it drives the complication of the cases up."

"We were told (by the state) we'd have another court (when the Miami Correctional Facility was built)," Commissioner Craig Boyer said. "I think we need to bring that to mind."

The commissioners voted to have the county attorney draft a resolution of support for the judges to pursue the matter. Banina and Higgins-Burke plan to approach the Miami County Council next to explore funding. The county would have to foot the bill for the staff for a third court, including a reporter and an administrator, but the judge would be paid for by the state.

Banina said it would take an act of the state legislature to create a third court, and said he wants Miami County to be on the state's court agenda in August to discuss it.

"I know a lot of counties try for years to get (approved for another court) and they renew their application every year," Banina said.

He added that Miami County is listed in the top 13 counties in Indiana that need an additional court, and that implementation would be January 2008 at the earliest if the county were approved immediately.

Posted by Marcia Oddi on Thursday, June 22, 2006
Posted to Indiana Courts

Law - "Redistricting Ruling Imminent: Supreme Court's Decision Could Be Felt Far Beyond Texas"

"Redistricting Ruling Imminent: Supreme Court's Decision Could Be Felt Far Beyond Texas" is the headline to this freely available story in today's Wall St. Journal. The story begins:

WASHINGTON -- Republican Texas lawmakers didn't like the electoral map that a federal court adopted after the 2000 census, so they redrew it -- and gained six seats in the state's delegation to the U.S. House of Representatives.

As early as today, the U.S. Supreme Court could say whether that mid-decade redistricting, which former Rep. Tom DeLay orchestrated to solidify control of the House, is constitutional. If the answer is yes, the implications could be felt far beyond Texas as Democrats and Republicans rush to embrace the technique of strategically reallocating voters among congressional districts after each election.

"If the Supreme Court decides that it's legal, not doing it would constitute a unilateral surrender," says Howard Wolfson, a former executive director of the Democratic Congressional Campaign Committee. "Democrats see the necessity of fighting fire with fire."

At the same time, Republicans could themselves export the tactic to other states they control. In Georgia, Republicans already have used mid-decade redistricting to dilute Democratic strength in the university town of Athens.

"If we win, it will affirm there's no ban on mid-decade redistricting and there's no serious constraint against partisan gerrymanders," says Michael Carvin, a Republican lawyer involved in the Texas case. But while Democrats have "made noises" about retaliating in their states, he says they will run into a problem peculiar to their own membership: Squeezing more Democratic-leaning districts from a map would almost certainly require splitting minority voters into multiple districts, undercutting their strength as a voting bloc. "They would really have to violate the Voting Rights Act to change the map," Mr. Carvin says.

Of course, Republicans can't be sure of a win at the Supreme Court. The court could rule the DeLay map unconstitutional on one-person, one-vote grounds, forcing a remapping in Texas that would almost certainly benefit Democrats.

Even if the court finds no constitutional bar to the DeLay map, it could strike it down for violating the Voting Rights Act. At oral arguments, Justice Anthony Kennedy -- who is emerging as the court's new swing vote -- seemed sympathetic to arguments that the DeLay plan had diminished Hispanic voting strength in South Texas.

Posted by Marcia Oddi on Thursday, June 22, 2006
Posted to General Law Related

Law - Cincinnati judge orders Planned Parenthood to turn over records

The Cinncinati Enquirer reports today:

A judge ordered the Cincinnati Planned Parenthood Clinic on Wednesday to turn over all records for abortion patients under 18 to the lawyers for the family of a teen who had an abortion at the clinic.

Hamilton County Common Pleas Judge Patrick Dinkelacker's decision is believed to be only the second time a Planned Parenthood clinic has been ordered to make records available, and the first time during a civil case.

Attorney Brian Hurley, who represents the family, said the information is needed to determine whether the abortion given to his client without parental consent is an isolated issue or a pattern of activity. He said the patients' names will be blacked out on their records.

Planned Parenthood Southwest Ohio Region will appeal, said Becki Brenner, the clinic's president and CEO. That likely means the documents won't be released until the appeals process is complete.

Appeals could take years.

Even if the order is upheld, that doesn't mean the floodgates will open and medical records will be readily available, experts say.

"We're very concerned about the exposure of private medical information," Brenner said. "Anyone that has private medical information should be fearful." Medical information should not be subject to review by outside parties, she added.

Dinkelacker wrote in his order that the plaintiff's needs outweighed the patients' rights to privacy.

Joy Pritts, director of the Center of Medical Record Rights and Privacy at Georgetown University's Health Policy Institute, said medical records are often sought in lawsuits.

In malpractice cases, she said, attorneys seek records of patients with similar treatment or conditions to show pattern of conduct. "Sometimes they get them, but oftentimes don't," Pritts said.

It's disturbing, Pritts said.

"The patients here have nothing to do with the lawsuit and it's their identity that is at risk," Pritts said. She pointed out even with the names blacked out it's difficult to block identifiable information.

American Civil Liberties Union attorney Scott Greenwood called the ruling outrageous. "This is clearly an overbroad discovery order," he said.

Posted by Marcia Oddi on Thursday, June 22, 2006
Posted to General Law Related

Ind. Gov't. - "Key concepts to dictate land use through 2025"

"Key concepts to dictate land use through 2025" is the headline to a story today by Howard Greninger in the Terre Haute Tribune-Star. Some quotes:

Land use decisions through 2025 would be tied to five key concepts under a proposed Terre Haute/Vigo County comprehensive plan.

Concepts include the growth pattern in the county; how the land use impacts the development and stabilization of neighborhoods; what transportation is available and development of corridor plans; how land use impacts economic development; and how zoning impacts the physical appearance in the county.

“Whether we are considering one lot or 200 acres for development, we would like decisions to be held accountable to these five core issues,” said Jeremy Weir, director of the Vigo County Plan Commission.

Land use is important, since the county has lost nearly 30 square miles of farmland to urban development in the past 10 years, while the population has not substantially grown, Weir said Wednesday afternoon.

“Focusing growth to reduce farmland loss and preserving key environmental features is critical,” Weir said.

Agricultural zoning can be separated into agricultural uses and zoning can improve buffering between agricultural and non-agricultural areas, Weir said.

During a workshop Wednesday evening, Weir presented the comprehensive plan to the Vigo County Plan Commission. * * *

One of the key concepts of the plan focuses on how zoning impacts the physical appearance in the county. That includes expanding architectural standards for historic districts and other special areas such as Terre Haute’s downtown, Weir said.

Physical appearance, Weir said, also includes visual issues, such as enforcing sign regulations, and increasing the distance for land buffers and increasing landscape standards on fencing and mounding.

Posted by Marcia Oddi on Thursday, June 22, 2006
Posted to Indiana Government

Ind. Courts - More details on: Judge seals records in French Lick casino dispute without hearing

WKYT 27 Kentucky Television has this report. Some quotes:

PAOLI, Ind. -- The details of a dispute over the new Orange County casino remain secret as an Indianapolis real estate developer has countersued its partner in the $300 million project.

A judge ruled that court records in the lawsuits will remain sealed until at least the end of next month, when he will hold a hearing on whether the records should be made public.

Orange Circuit Judge Larry Blanton on Tuesday scheduled the hearing for July 31.

Lauth Property Group Inc. also Tuesday filed its lawsuit against Bloomington businessman William Cook, whose company, Cook Group Inc., this month sued Lauth.

Blanton on June 8 granted Cook Group's motion to seal the records.

The companies have not commented on the lawsuit, but Ernest Yelton, executive director of the Indiana Gaming Commission, said that the dispute was over control of the casino.

State law that allows certain information _ including records containing trade secrets and confidential financial information _ to be sealed.

Blanton said he interpreted the law to say that he was not required to conduct a hearing before sealing the file.

"My understanding is I can close records and then have a hearing," he said. "On the 31st, we will talk about that. Anyone who wants to file a brief can do so."

The Courier-Journal of Louisville, Ky., and The Herald-Times of Bloomington are asking the judge to unseal the lawsuits and documents filed with them.

Yelton said Monday the lawsuit should not delay the $300 million casino's scheduled November opening in French Lick, about 50 miles south of Bloomington.

Stephen Key, general counsel of the Hoosier State Press Association, said he doubted the judge could seal documents in a lawsuit without an apparent need to do so.

"I'm kind of at a loss (to say) why that would be given the treatment to seal the entire record," Key said. "Obviously with the magnitude of the (casino) project, there would be great interest" in the community about the dispute.

Blanton said the July 31 hearing could not be held sooner because the lawyers are from Chicago and Indianapolis and because William Cook is out of the country.

Posted by Marcia Oddi on Thursday, June 22, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - News travels slow in Wayne County

"Local attorney wins state civil case" was the title of a story published yesterday in the Richmond Palladium-Item. Reporter Rebecca Helmes writes:

A local attorney recently found out he won a case he argued before the Indiana Supreme Court last June.

The court ruled in favor of former Richmond Common Councilman Steve Rabe's clients when it cleared up ambiguity about when particular court documents should be filed.

Public Defender Clay Miller said it's rare that local attorneys argue before the Supreme Court.

"In my nearly six years of practice, I am not aware of any other local attorney having even taken a civil matter before the Supreme Court, let alone win," Miller said.

The decision? It is Wayne County Property Tax Assessment Board of Appeals v. United Ancient Order of Druids-Grove #29, issued May 18th.

See the ILB summary of the decision in this 5/18/06 entry.

Posted by Marcia Oddi on Thursday, June 22, 2006
Posted to Ind. Sup.Ct. Decisions

Wednesday, June 21, 2006

Law - "Hiring Scandals Shine Light on Some States"

"Hiring Scandals Shine Light on Some States" is the headline to an AP story in the Washington Post today. The ILB has had many entries on the Illinois (both Chicago and state) and Kentucky scandals. Here are some quotes:

CHICAGO -- To the victor go the political spoils _ and then the investigations start. Illinois' governor, a Democrat who ran as a reformer and whose predecessor was convicted of graft, now finds his own administration's hiring practices under investigation.

Kentucky's first Republican governor since 1971 has been indicted on misdemeanor charges that his administration illegally hired and fired people on the basis of their political allegiances.

And in Maryland, a legislative committee is investigating whether the Republican administration there bounced Democrats out of state jobs.

It all raises questions about whether civil service laws, consent decrees and three decades of court rulings against patronage hiring are really working, or if the temptations and pressures to hand out jobs to friends and supporters are just too great. * * *

"This idea of politics of rewarding your friends and punishing your enemies is something we actually ran against," [Ky. Lt.Gov.] Pence said.

The courts have tried to stop that kind of political quid pro quo, and Illinois is the source of three of four major U.S. Supreme Court cases that restrict the use of party loyalty to decide who gets government jobs and contracts. * * *

But federal prosecutors say illegal patronage is still alive and well _ especially in Illinois _ and they are cracking down. * * *

Under Illinois civil service laws and a 1990 U.S. Supreme Court ruling in an Illinois case known as Rutan, certain nonpolitical jobs are supposed to be filled without regard to politics. [Ill. Gov.] Blagojevich has not been charged and has denied any wrongdoing. * * *

Court decisions limiting political patronage have routinely include exceptions for high-level and sensitive posts where loyalty to an administration is needed.

In Chicago, a city built on the ruthless use of patronage, former city officials are on trial in an alleged scheme in which political connections _ or what Chicagoans call clout _ were used to decide who got put on the city payroll.

That would be a violation of the so-called Shakman Decree, a 1983 consent decree that says only about 1,000 of the city's 37,000 jobs can be filled based on party loyalty.

Michael Shakman, the attorney who won consent decree, said he believes most politicians don't practice illegal patronage. As for the others, he said it is just a matter of time before they get caught because an illegal patronage system requires lots of people to be involved to make it work.

"You can't expect to be able to violate the law on a continuing basis on a large scale," he said.

Posted by Marcia Oddi on Wednesday, June 21, 2006
Posted to General Law Related

Ind. Decisions - 7th Circuit issues three Indiana decisions [Updated]

In all the excitement yesterday over the toll road decision here, the ILB neglected to see that the 7th Circuit issued three opinions yesterday, all involving civil cases out of Indiana.

In Bourne, Andrew v. Gilman, Marty (David F. Hamilton, Judge), a 12-page opinion, KANNE, Circuit Judge, writes:

When Ball State student Andrew Bourne rushed onto a football field with a crowd that tore down a goalpost, the post fell on his back and rendered him paraplegic. He and his parents sued Gilman Gear, manufacturer of the post, in diversity under Indiana law arguing that the post was defective and unreasonably dangerous because (1) it was foreseeable that fans will tear down goalposts, (2) the average fan would not understand the extent of the risk, and (3) there are alternative designs that would reduce that risk. The district court granted summary judgment for Gilman Gear because the risk was obvious. We affirm. * * *

Because the district court’s conclusion that Indiana law does not require manufacturers to protect consumers and users from themselves is fundamentally correct, and because any jury’s application of the B"<"PL formula based on this record would be mere speculation, we AFFIRM the judgment of the district court.

In Mills, Brenda v. City of Evansville (ND Ind., John Daniel Tinder, Judge), a 5-page opinion, EASTERBROOK, Circuit Judge, writes:
“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, No. 04-473 (U.S. May 30, 2006), slip op. 9. That principle resolves this appeal. * * *

If a chief of police can’t fire or demote sergeants whose views imply less than enthusiastic support, what can he do to ensure faithful implementation? The answer must be a lateral transfer; that’s how Evansville proceeded with Mills. * * *

Chief Gulledge was entitled to insist that his subordinates not play the “Yes, Minister” game and undermine his directions. The power of transfer is essential if the top of the bureaucracy is to see its decisions through.

In Marloules, Christine v. Jumbo, Inc. (ND Ind., Andrew P. Rodovich, Magistrate Judge), an 11-page opinion, ROVNER, Circuit Judge, writes:
Ordinarily we count on gravity to keep heavy items in place; and so when flour barrels, armchairs, and truck wheels become airborne we assume first that something has gone wrong. Such events, lawyers say, speak for themselves, or in Latin, “res ipsa loquitur,” and the blame for any resulting injury can be imputed to the person who had control of the item before it became a dangerous projectile. Christine Maroules asks the court to adopt this view to delegate to the owner of Jumbo, Inc. trucking company and Jumbo’s driver, James E. Windsor (together, “Jumbo”), blame for injuries she sustained when a wheel broke free from the truck upon which it was mounted, flew through the air, and crashed through the front passenger side of her car. Because she has failed to demonstrate the elements necessary for res ipsa loquitur to apply, however, we affirm the decision of the district court granting summary judgment to Jumbo. * * *

As Maroules argues, “[o]nce the plaintiff presents evidence to bring herself within the operation of res ipsa loquitur, the inference of negligence is to be weighed by a jury and summary judgment is not proper.” (Maroules Reply Br. at 8). As explained above, however, Maroules, has not presented sufficient evidence to bring herself within the operation of the res ipsa loquitur doctrine. Consequently, summary judgment must be granted for Jumbo, and the judgment of the district court is AFFIRMED.

[Updated 6/22/06] Here is brief coverage of the Evansville Police Dept. story, via the Evansville Courier& Press

Posted by Marcia Oddi on Wednesday, June 21, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Casino court records should not be sealed"

From the Bloomington Herald-Times editorial today, titled "Casino court records should not be sealed: Legislature has established that such documents are public, and case has not been made otherwise":

The decision by Orange Circuit Judge Larry Blanton to seal the court files in the civil dispute between the companies involved in building a casino in the French Lick-West Baden area is mystifying.

The first lawsuit was filed early this month by Bloomington-based Cook Group Inc. against Lauth Resorts and Casinos LLC. The two businesses have joined forces to do what looks to be a magnificent, region-rejuvenating development project.

This week, Lauth sued Cook. Court documents in both cases have been sealed by the judge.

These records should not be sealed.

Court records in Indiana generally are open to the public for inspection. At times, judges seal files, as in the criminal case involving the death of Jill Behrman. The judge in that case has said release of documents in that file could jeopardize finding out who killed Jill, and could keep the defendant from getting a fair trial.

We still believe Indiana state law requires one specific record in that case to be made public, but that's another case altogether.

In the casino case, we see no justification for sealing the court filings. Just what public interest is served?

There is obvious public interest in construction of a casino in Orange County. It's been the object of heated community interest for more than a decade, and was the focus of a county referendum in November 2003.

Thousands of jobs and the hopes of economic revival for an entire part of the state are at stake. Public roads and services will be affected. There are major tax implications for the region and the state.

Perhaps a case could be made that a particular document, if it included a trade secret or confidential financial information for example, should be kept from public view. But the Indiana General Assembly has established the presumption that court records are public matters, and the general facts of this dispute should be as well.

The beginning of the law governing access to public records states in part:

"… (I)t is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record … ."
Judges are government officials.

Courts are government offices.

Court documents are public records. They should not be sealed without good reason, and in this case, no good reason has been produced, nor is anywhere to be seen.

Posted by Marcia Oddi on Wednesday, June 21, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - More on the toll road and the ruling

From The Bond Buyer, The Daily Newpaper of Public Finance, today's report:

CHICAGO — Indiana now plans to close its $3.85 billion lease agreement for the Indiana Toll Road next Wednesday, after the state Supreme Court yesterday affirmed a lower court ruling that plaintiffs challenging the constitutionality of the precedent-setting transaction would have to post a $1.9 billion bond to proceed with their lawsuit.

The state yesterday said it would collect the concession payment next week from Statewide Mobility Partners, a joint venture of Australia’s Macquarie Infrastructure Group and Spain’s Cintra Concesiones de Infraestructuras de Transporte SA. The joint venture, which named a separate concessionaire to operate the toll road, won the bidding for the agreement to operate the toll road for 75 years.

The state also plans to release the details of the unsuccessful bids that were submitted in the process early this year. The state will use a portion of the proceeds from the sale, about $220 million, to defease and retire debt issued by the Indiana Department of Transportation. * * *

The plaintiffs in the case were disappointed but “not surprised,” said Dave Menzer, campaign organizer for the Citizens Action Coalition. He suggested the outcome of the case and the lease agreement will reverberate across the country, and private leasing of public assets will become a larger debate in national and state politics.

“The American public is not pushing for privatizing roads,” Menzer said. The move is being pushed by private entities, including banks and private consortiums “at the public’s expense,” he said. * * *

The court also rejected the plaintiffs’ arguments that the state should pay down debt of the IFA and municipalities in the state with the proceeds from the lease. The court wrote that IFA debt and the debt of local municipalities do not constitute “public debt” as the plaintiffs had argued, saying that the Indiana Constitution requires that the proceeds from the sale of a public asset be used to pay down public debt.

In a “lay sense of the term,” both IFA and municipal debt may be considered public debt. However, neither is prohibited from issuing debt under the constitution, so that “a requirement to retire debt seems of little use unless there is also a prohibition against issuing new debt, and only the state itself is prohibited from issuing new debt,” the court wrote.

In addition, the court found it “inconceivable” that the constitutional framers “would wish to require that a sale of a state asset would trigger a duty to repay a debt of a unit of local government.”

The court also cited previous rulings that demonstrate the creation of entities such as the IFA to issue bonds to finance projects with revenue from those projects backing the debt.

“The general credit of the State is not on the line to discharge these revenue bonds, and a creditor could not levy on the State House … to recover its principal or interest,” the court said, citing previous case law.

“For that reason, the courts of this state and most others have consistently held that debt of these authorities is not debt of the State,” and therefore not subject to the requirement to be repaid using the proceeds from the lease, the court wrote.

The court also rejected the argument that the state should levy property taxes on the land that will be leased, the 157-mile toll road, because it will be operated by a private entity. The state legislature has the discretion to grant tax-exempt status, the court said.

7th Circuit Judge Richard Posner opined yesterday about privatizing highways in the Becker-Posner Blog. A quote:
The monopoly issue raises the question: what exactly was Indiana selling when it leased the toll road for $3.8 billion? The higher the tolls and the greater the lessee's freedom to raise the tolls in the future, the higher the price that the state can command for the lease. If the lease placed no limitations on tolls, the state would be selling an unregulated monopoly. If the lease could constrain the lessee to charge tolls just equal to the cost of operating the toll road (including maintenance, repairs, snow removal, lighting, and the collection of the tolls), the market price of the lease would be significantly lower. To the extent that the state wants to maximize its take from the lease, it will be creating allocative inefficiency by conferring monopoly power on the lessee.

It is difficult to determine whether the $3.8 billion price tag for the Indiana Toll Road is closer to the competitive or the monopoly price level. On the one hand, the lessee cannot raise tolls until 2010 or 2016 (depending on the type of vehicle), and increases after that are capped. On the other hand, the tolls were raised significantly just before the lease, and allowing the operator in 2010 to begin raising toll rates annually by the increase in GDP may confer windfall gains, since the cost of operating the toll road may not increase at so great a rate. One would have to know a great deal more about the economics of operating a highway than I do to figure out whether the terms of the lease confer monopoly power on the lessee.

I do not regard the monopoly concern as a strong objection to the leasing of the toll road, however. The reason is that most, maybe all, taxes have monopoly-like effects, in the sense of driving a wedge between cost and price. Suppose the lease price would have been only $2 billion had the state imposed more stringent limitations on toll increases. Then the state would have $1.8 billion less in revenue and would presumably make up the difference by increasing tax rates or imposing additional taxes, and these measures would have allocative effects similar to those of higher tolls charged by the lessee of the toll road. If the monopoly issue is therefore considered a wash, the principal effect of the lease will be the positive one of reducing the quality-adjusted cost of operating the toll road and the lease is clearly a good idea. * * *

Against all this it will be argued--it is an argument emphasized by opponents of leasing the Indiana Toll Road--that privatization, at least when it takes the form of a sale or long-term lease of government property for a lump sum, beggars the future by depriving government of an income-producing asset. The argument, at least in its simplest form, is unsound, because the state is not disposing of an asset but merely changing its form: from a highway to cash. The subtler form of the argument is that, given the truncated horizons of elected officials, the state will not invest the cash wisely for the long term, but will squander it on short-term projects. This is a danger--how great a one I do not know. It would be an interesting study to trace the uses to which privatizing governments here and abroad have put the proceeds of sales of public assets.

His colleague Becker writes:
When dynamic competition is effective, a public enterprise, like a toll road or the postal system, should be sold without any restrictions on future pricing, unlike what happened in the sale of the Indiana toll road. I do not go so far as to claim that dynamic competition always arises in a powerful way to compete against privatized roads or other privatized infrastructure that have no restrictions on pricing. But I do believe it is far more common and effective than in textbook discussions of competition and entry. If that is the case, it would then pay to privatize most of the public infrastructure of roads, communication, mail delivery, electric power generation, and the like, with few controls over the prices that can be charged to consumers. That would create some pockets of persistent monopoly profits, but it would take politics out of rate setting. It would also stimulate the development of different ways to compete against what appears to be an unassailable monopoly enterprise.

Posted by Marcia Oddi on Wednesday, June 21, 2006
Posted to Ind. Sup.Ct. Decisions | Indiana Government

Ind. Gov't. - Harris County Texas won't sell or lease toll roads

A well-timed story in today's Houston Chronicle reports:

Rejecting the temptation of a multibillion-dollar windfall, the Harris County Commissioners Court voted unanimously Tuesday to continue running the county's lucrative toll road system rather than selling or leasing it to a private firm.

"Now we can erect a sign on the toll roads: 'Not for sale, not for lease,' " said Commissioner Steve Radack, who had agreed to studying privatization even though he opposed the concept.

The action means the system, which comprises 83 miles on the Hardy, Sam Houston and Westpark toll roads, will continue to be operated by the Harris County Toll Road Authority.

The county could have gotten as much as $20 billion if it sold the system and ceded all or nearly all control over tolls, reported JP Morgan and Popular Securities, which studied that option for the county.

The Commissioners Court decided to keep the system public after an official from First Southwest, an investment consulting company, advised them that the county could imitate a private firm's practices in seeking to increase profits.

A private firm would rely on toll hikes and schedule such hikes years in advance so bond companies could project the system's revenues, said Michael Bartolotta, vice chairman of First Southwest.

The toll road system had $373 million in revenues in fiscal year 2006, and revenue is projected to increase by 11 percent annually because of the area's rising population. * * *

[T]he privatization studies concluded that the county would have to cede most control over future toll hikes to get the best price for the toll road.

The county most likely would have netted $5 billion to $12 billion after paying off bonds, the JP Morgan-Popular Securities study said.

The county could have made $7.5 billion-$10 billion on a 50-year lease and $10 billion-$13 billion on a 99-year lease, concluded Goldman Sachs and Loop Capital, which studied the leasing option.

Citigroup-Siebert Brandford Shank & Co., which studied keeping the system county-run, concluded it could continue to be profitable for the county, especially if the county better leveraged its steady stream of revenues for future expansion. * * *

Private firms and investment banks now run a number of toll roads worldwide. The Spanish toll company Cintra paid $3.1 billion (Canadian) in 1999 for the right to run a 42-mile toll road in Toronto. The Cintra-Macquarie Consortium last year paid $1.83 billion to lease operating rights to the eight-mile Chicago Skyway for 99 years. And a Cintra-led consortium is negotiating to develop a segment of the Trans-Texas Corridor, a proposed system of toll roads, pipelines and railroads.

An article in Slate, published March 29, 2006, includes this:
What's in it for the foreign companies? Huge potential profits. Gigantic, steady profits. Toll roads are an incredible asset class. They're often monopolies. They can support debt, since they provide a recurring guaranteed revenue stream that is likely to rise over time, as more people take to the roads and tolls increase. According to Cintra, the Indiana Toll Road generated $96 million in revenues in 2005, and Cintra expects a 12.5 percent internal rate of return on its investment. The heavy lifting has already been done: The state or federal governments have acquired the land and rights of way, built the roads and maintained them for years, and enacted toll increases. All the private companies have to do is deliver cash upfront, maintain the roads, and collect the windfall. The buyers can also increase their profits by making toll roads run more efficiently with technology. After assuming control of the Chicago Skyway, the Cintra-Macquarie consortium installed electronic toll equipment on some lanes. And by refinancing nimbly, companies can cash out. Last year—just seven months into its 99-year lease—Cintra announced that it had recovered 44 percent of its initial investment in the Chicago road through refinancing.

Posted by Marcia Oddi on Wednesday, June 21, 2006
Posted to Indiana Government

Ind. Decisions - Papers report today on yesterday's Supreme Court toll road ruling

Lesley Stedman Weidenbener reports in the Louisville Courier Journal:

In a 4-0 decision, the Indiana Supreme Court said the Citizens Action Coalition and seven individuals trying to stop the lease would have to post a $1.9 billion bond to proceed with their lawsuit. * * *

The court did not prevent the suit from proceeding. But it found that a state law meant to prevent frivolous or harassing lawsuits from stopping public projects applied to the lease deal.

By imposing that "public lawsuit" designation, the court determined that the plaintiffs would have to post the bond to continue unless they showed they had a chance to prevail.

In an opinion written by Justice Ted Boehm, the court said the opponents failed to prove that any of their three constitutional claims had merit.

That means the state and Cintra-Macquarie -- a Spanish-Australian partnership that bid $3.8 billion to operate the road and collect the tolls -- can close the deal next week, said Mark Massa, the general counsel to Gov. Mitch Daniels, who sought the lease. * * *

Opponents of the deal had argued that the law authorizing the lease was unconstitutional special legislation because it offered more money to those counties along the toll road than others elsewhere in the state.

But the ruling said the court should not interfere with the legislature's constitutionally granted power to appropriate state money and that the lease proceeds provide benefits statewide, not just in one area.

Also, opponents had argued that the Indiana Constitution requires the state to spend the proceeds to pay off the "public debt," not on new projects.

But the court said that argument also was without merit, ruling that "there is no longer any such public debt" to retire. The court said the provision applied only to debt from projects that led to the current version of the Indiana Constitution.

Because of constitutional restrictions, Indiana issues bonds only through quasi-public or independent agencies.

The Supreme Court did not rule on other parts of the lawsuit that challenge whether provisions applying solely to the construction and tolling of a proposed extension of Interstate 69 violate the constitutional ban on special legislation.

The St. Joseph County trial court had ruled that those provisions weren't subject to the bond and therefore could proceed regardless of the decision about the lease.

But yesterday Bonney said the opponents might not proceed with those parts of the suit because the original goal was to have the entire law declared unconstitutional.

Niki Kelly of the Fort Wayne Journal Gazette reports:
The Indiana Supreme Court on Tuesday found no “substantial” constitutional issues regarding the lease of the Indiana Toll Road, a ruling that clears the way for a foreign consortium to control the road for the next 75 years.

The legislature passed a law in March authorizing the state to enter into a public-private partnership, and Gov. Mitch Daniels is set to close that $3.8 billion deal June 28. The proceeds will be used to pay for hundreds of state road projects over the next decade.

Seven Hoosiers and a non-profit group had challenged the plan on constitutional grounds, but the court handed down a 4-0 decision Tuesday that gutted the plaintiffs’ entire case.

The Supreme Court’s fifth justice withdrew from the case previously with no public explanation.

Here is the Indianapolis Star coverage, written by Tammy Webber. Today's Star also has a brief editorial titled "Roadblock's gone, future is brighter."

For a voice raised in dissent, see Dan Carpenter's column today in the Star, headlined "Taking it private takes a toll." Some quotes:

It seems like such a sturdy, wholesome, democratic term, "public lawsuit." Common citizens taking on city hall, and more power to 'em.

Turns out, though, that you don't want your public lawsuit to be classified as a "public lawsuit," because it can put you in a very public place, i.e., the street. * * *

Citing a 1998 statute that was written to protect local school and government construction projects from nuisance suits, Scopelitis and the high court told the dissenters theirs is a public lawsuit with little likelihood of success and therefore is a removable barrier to civic improvement.

Now, many self-styled conservatives who have climbed aboard Gov. Mitch Daniels' Major Moves Express are applauding this rather startling denial of common redress. Many are the same old-fashioned patriots who condemned the U.S. Supreme Court's expansion of eminent domain powers in the celebrated Kelo v. City of New London case in Connecticut.

The inconsistencies don't stop there. When the Colts wanted land, various small-government politicians found themselves suddenly thinking bigger. And when public schools found themselves in the crosshairs of the tax-phobic Statehouse, a remonstrance process was enacted that allows a handful of malcontents to stop a new school in its tracks.

Meanwhile, the law that stops the little guy from challenging a 75-year relinquishment of Indiana's largest piece of infrastructure remains on the books, oiled for selective use.

There are loads of problems with the Toll Road boondoggle and Major Moves -- legal, constitutional and political. So far, the third category has trumped the first two -- the extraordinary concession of power to the governor by the legislature; the blatant special treatment of certain sensitive parts of the state; the crazy rush put on the whole process, as if study by lawmakers and even deliberations by the high court could not be allowed to inconvenience a foreign business proffering a check.

As with so much privatization in general and Daniels' version in particular, Major Moves is faith-based. We're being asked to trust these guys to work out the details of prison contracts, welfare outsourcing, charter schools and carefree highways as they go along.

Take I-69, for instance. By sticking with the most expensive, most destructive route for the extension from Indianapolis to Evansville (so much for new thinking), Daniels obligated more than half the $3.85 billion from Major Moves to this single project. Then he offered the taxpayers the fantasy of making it a toll road -- again, leased to a private operator. Then he and his legislative allies backed away from tolls between Indianapolis and Martinsville, and promised to change the Perry Township connection, because I-69 is so hated in those areas he could not otherwise have gotten the votes to eke out Major Moves.

At least the public has spoken there. That voice is still being raised, and will be, even as our inactivist judges decree they are too public to be heard.

Posted by Marcia Oddi on Wednesday, June 21, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "New law zeroes in on moving, custody"

A story by Bryan Corbin in the Evansville Courier& Press this week reports that:

Beginning July 1, divorced parents who have custody of their children won't be able to pull up stakes and leave town legally, without notifying their ex-spouses first.

A new state law that takes effect that day requires custodial or noncustodial parents who relocate to first give 90 days notice to the other parent and to the court. If they don't, then the judge could change custody arrangements.

The new law is described as an attempt to make Indiana's system more fair to noncustodial and custodial parents alike.

"You could put notice on the doorstep on the way out of town, and you would have satisfied the old statute. It was not a good way to give notice to the other parent of relocation," said Jeffrey Bercovitz, director of juvenile and family law at the Indiana Judicial Center.

The new law also requires the moving parent to provide a specific reason for the move and a proposal for revised custody and parenting time. If the other parent opposes it, then he or she would have 60 days to object and request a restraining order to prevent the child from being relocated.

If one parent objects, the judge would hold a hearing. Potentially the judge could modify the custody, parenting time, child support or grandparent visitation, the law says.

Significantly, the new law puts the burden of proof on the relocating parent to show that the move is in the child's best interest. If that burden is met, then it is up to the nonrelocating parent to demonstrate why the child-relocation proposal shouldn't be granted. If no objection is filed, then the child can relocate. * * *

Until now, Indiana required just 10 days notice if one divorced or single parent was relocating - and only for moves out of state or of more than 100 miles or more.

That led to scenarios where custodial parents could abruptly move and re-enroll their child in a distant school district. By the time the noncustodial parent found out and objected in court, the judge might find it too disruptive to force the child to move again.

"The reality is, with a 10-day notice, the child is already gone; it's already accomplished," said Judge Robert Aylsworth of Warrick Superior Court 2. "It's very difficult to undo once it's already done."

The old law allowed parents who moved to take unfair advantage of congested court calendars using 11th-hour notices, Vonderahe said. "That's exactly an issue that the current statute unexpectedly created, and the revised statute should stop that," he said.

A sidebar leads to quotes from the new law.

The new law is SEA 40, now cited as PL 50-2006. The relocation provisions are found beginning on p. 2, where a new chapter on relocation, IC 31-17-2.2, is added to the Indiana Code. Here is the digest to the entire bill:

Relocation issues in family law matters. Requires an individual who has or is seeking custody of or parenting time with a child and who intends to relocate to: (1) provide notification by registered or certified mail not later than 90 days before the individual intends to move to an individual who has or is seeking custody of, parenting time with, or grandparent visitation with the child; and (2) provide specific information in the notice unless providing the information would create a significant risk of substantial harm to the individual or the child. Provides that a court may consider the intent to relocate a child in an initial custody hearing. Provides that: (1) not later than 60 days after a nonrelocating parent receives the notice, the nonrelocating parent may file a motion with the court to prevent the relocation of a child; (2) if the nonrelocating parent fails to file a motion with the court, the individual may relocate; (3) upon request of either party, the court shall hold a full evidentiary hearing; and (4) the relocating individual has the burden of proof that the relocation is made in good faith and for a legitimate purpose. Establishes: (1) additional factors the court may consider in determining whether to modify the custody, parenting time, grandparent visitation, or child support orders in actions concerning relocation; and (2) factors the court may consider in granting or denying a petition to prevent relocation of a child. Requires a grandparent seeking visitation rights to file a petition in a circuit, superior, or probate court. (Current law requires a grandparent to file in a circuit or superior court.) Repeals provisions concerning notice of the relocation of a child in child custody matters. (The introduced version of this bill was prepared by the child custody and support advisory committee.)

Posted by Marcia Oddi on Wednesday, June 21, 2006
Posted to Indiana Law

Tuesday, June 20, 2006

Ind. Courts - Still more on: Judge seals records in French Lick casino dispute without hearing [Updated]

This is the third ILB entry of the day about the Orange County judge placing an entire lawsuit under seal, so that reporters had difficulty even in finding out a suit had been filed.

Grace Schneider of the Louisville Courier Journal, who broke the story this morning (see ILB entry here), reports this afternoon that the judge has now scheduled a hearing on whether the records should remain under seal, setting it for 6 weeks from now!

Some quotes from the story:

A judge in Orange County, Ind., has scheduled a hearing for 10 a.m. July 31 to consider whether a lawsuit involving the partners in the French Lick casino project should be sealed.

Documents in the suit by Orange County Holdings LLC, a company formed by the Bloomington-based medical device manufacturer Cook Group Inc., have been kept under seal at the request of Cook lawyers since it was filed.

The defendant in the lawsuit is Lauth Property Group, the other partner in the $382 million casino project.

On June 8 Orange County Circuit Judge Larry Blanton granted the plaintiffs' motion to keep both the lawsuit and a request for an injunction under seal.

However, state law requires a hearing to be held before a lawsuit is sealed. After being questioned Monday by The Courier-Journal about his June 8 decision, Blanton agreed to hold a hearing on the matter.

[Updated 6/21/06] Today's updated Louisville Courier Journal story includes:
Stephen Key, general counsel for the Hoosier State Press Association, said Blanton's decision to hold a hearing is a positive step in complying with the state's public-access laws. But delaying the proceeding for more than a month "doesn't quite meet with the spirit of the law," he added.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Decisions - Court of Appeals issues three today

In Anthony D. Shouse v. State of Indiana, an 18-page opinion, Judge Vaidik's summary reads:

Anthony Shouse (“Shouse”) appeals his convictions for auto theft and two counts of resisting law enforcement arising from his actions in stealing a truck and then leading several law enforcement agencies on a 100-mile-per-hour chase. Shouse is not entitled to a new trial based on the deputy prosecutor’s conduct toward an attorney of a defense witness, which resulted in the witness invoking the Fifth Amendment and refusing to testify at trial. Any error is harmless because of the overwhelming evidence of Shouse’s guilt. Shouse was not entitled to an instruction on conversion as a lesser-included offense of auto theft because there is no serious evidentiary dispute that Shouse acted with intent to deprive the victim of the truck’s value or use. Shouse’s two convictions for resisting law enforcement do not violate federal double jeopardy principles because one conviction is for fleeing and the other is for forcibly resisting or interfering, which are different species of resisting law enforcement. Although the trial court erred in refusing to instruct the jury during the habitual offender phase of trial that it is the judge of both the law and the facts, the error is not reversible. Finally, in light of the nature of the offenses and Shouse’s extensive criminal history, his eight and one-half year sentence is not inappropriate. We therefore affirm the trial court in all respects.
Tina Marie Dewbrew v. Herbert A. Dewbrew is a 24-page opinion (dissent beginning on p. 18) in which the majority of the panel, in an opinion Judge Riley, finds that the trial court erred in its refusal to set aside a property settlement and custody agreement, and reverses and remands, with instructions. Judge Vaidik dissents.

In First Student, Inc. & Sharon Byrd v. Estate of Matthew Scott Meece, by Le Ann Pearl as Personal Representative, a 16-page opinion, Judge Sullivan writes:

Appellants-Defendants, First Student, Inc. and Sharon Byrd, challenge the trial court’s denial of their motion for partial summary judgment in the wrongful death claim filed against them by Le Ann Pearl as the personal representative of the Estate of Matthew Scott Meece. * * *

Regardless of its caption, the minor’s compromise action filed in the Decatur Circuit Court was for our purposes a “paternity” action which was filed within the applicable time limits of the intestacy statutes, i.e. within eleven months after Meece’s death. As such, M.P. may properly be considered as a dependent child in the wrongful death action, and the trial court correctly denied the Defendants’ motion for partial summary judgment. The judgment of the trial court is affirmed.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court also issues another opinion today

In Gregory Charles Hall v. State of Indiana, a 9-page opinion, Justice Rucker writes:

A petitioner who pursues a claim for post-conviction relief challenging a plea of guilty on the ground that he was not advised of his Boykin rights is not entitled to relief solely because the guilty plea record is lost and cannot be reconstructed. Rather, the petitioner has the burden of demonstrating by a preponderance of the evidence that he is entitled to relief. * * *

Hall contends the post-conviction court erred in denying his petition for relief because there is no record that he was advised of certain constitutional rights as required by Boykin v. Alabama, 395 U.S. 238 (1969). In Boykin, the United States Supreme Court held that it was reversible error for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary. Id. at 242. More particularly, Boykin requires that the record must show, or there must be an allegation and evidence which show, that the defendant was informed of, and waived, three specific federal constitutional rights: the privilege against compulsory self-incrimination, right to trial by jury, and the right to confront one’s accusers. Id. at 243. The Court made clear, “[w]e cannot presume a waiver of these three important federal rights from a silent record.” Id.

Here however we are faced not with a silent record, but a missing record, an issue this Court addressed in Zimmerman v. State, 436 N.E.2d 1087 (Ind. 1982). * * *

A petitioner cannot obtain post-conviction relief on the ground of the lack of Boykin advisements simply by proving that the guilty plea record is lost and cannot be reconstructed. Rather, as with any claim, the petitioner has the burden of demonstrating by a preponderance of the evidence that he is entitled to post-conviction relief. Because the petitioner here failed to carry his burden, we affirm the judgment of the post-conviction court. Judgment affirmed.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Judge seals records in French Lick casino dispute without hearing

Supplementing the Grace Schneider report earlier today in the Louisville Courier Journal about a judge in Orange County summarily sealing all the records in a French Lick casino dispute, which I quoted in this ILB entry, the ILB has been authorized by Ed Feigenbaum's Indiana Insight to reprint this entry from his June 22nd gaming newsletter:

As we exclusively told you in our last issue, there were some financing concerns and other issues relating to certain internal partnership commitments that may not have been met between the two major partners in the Orange County casino percolating to the surface – and potentially affecting the respective ownership shares of the two key entities.
□ With respect to the financing matter, Indiana Gaming Commission members were told at their June 7 meeting that while the Blue Sky Casino partnership secured $270 million in financing via the bond route in a timely manner, the partnership did not meet the May 1 Commission-imposed deadline for securing an additional $30 million line of credit via a revolving loan required by the state. Blue Sky has apparently since closed on the $30 million revolver end of the transaction, but commissioners may decide to fine the entity at the September Commission meeting for failing to adhere to the original deadline.

□ The Indiana Gaming Commission was informed publicly at the same meeting earlier this month that the dispute between Blue Sky partners Lauth Property Group, Inc. and Cook Group, Inc. and their respective subsidiaries will be resolved via arbitration. Commission Secretary Don Vowels, the panel’s former chair, revealed that an agreement between the two partners required Lauth to transfer 25% of its interest in Blue Sky to Cook if financing for the project was not finalized by April 15.

□ “At this point in time there has been no determination as to whether there has been any change in ownership,” Commission Executive Director Ernie Yelton informed commissioners. “That’s still under debate.” “All I know is there are some allegations that the agreement between the two entities – not an agreement with the state of Indiana or the Gaming Commission – there’s a dispute as to how that would apply to control of the project, and I know that has not been resolved,” Yelton tells Mike Smith of the Associated Press. “One reason it was not put on the agenda is there has been no impact whatsoever on this project. None at all, so if that would ever occur, then obviously everyone would be informed and people would appear to answer questions.” The Cook Group’s Steve Ferguson declines to elaborate on the details, telling Lesley Stedman Weidenbener of the Louisville Courier-Journal “that the parties had decided not to discuss the matter in public,” as she writes.

□ Commission member Vowels, who chaired the panel during much of the earlier proceedings involving the original Orange County operating agent award to Trump Springs Valley, questioned why the Commission and its staff were not scrutinizing Blue Sky in the same manner it did Trump, citing the missed financing deadlines and the untidy quarrel between the respective partners. Executive Director Yelton explained that the Trump and Blue Sky circumstances were different: Trump had filed for bankruptcy protection, he observed, and was unwilling or unable to provide the State of Indiana with a firm commitment to complete the Orange County project, while “We have seen nothing that has impacted this project at all,” even with the financing delay and dispute between the partners.

This is a matter of enormous local, and indeed, state-wide interest. I'm told that reporters were even unable to confirm last week that a suit had been filed.

Although the ILB has had a number of entires about "secret dockets" in other states, apparently we do have some in Indiana also.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Decisions - Press reports on toll road decision

Tom Coyne of the AP reports at 10:46 a.m.:

The Indiana Supreme Court on Tuesday ruled 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.

The high court rejected arguments by the plaintiffs that the law allowing the lease for an upfront payment of $3.8 billion is unconstitutional. The court, in upholding a lower court ruling, said "no substantial issue is raised by the plaintiffs' three contentions" that the law allowing the lease is unconstitutional.

The 4-0 ruling means the group trying to stop the lease must post the bond to continue with the case - an amount plaintiff Steve Bonney has said is more than the group can raise.

The high court, which heard oral arguments in one week ago, also rejected claims by the plaintiffs that the law amounted to special legislation because it gives more funding to counties the toll road crosses than to other counties. It said the appropriation of funds is a legislative function "unusually unsuitable to judicial review."

"The Major Moves legislation that includes allocation of lease proceeds for construction projects throughout the state does not become special legislation because it also makes lump sum allocations to seven Indiana counties," the decision reads.

The ruling upholds a May 26 decision by St. Joseph Superior Court Judge Michael Scopelitis that 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. * * *

The state sought an expedited hearing and decision because the private Spanish-Australian partnership that has agreed to lease the toll road for 75 years can pull out if litigation is pending June 30, when the deal is scheduled to close.

The early Indianapolis Star coverage is based substantially of the AP story.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Timeline for petition for rehearing in the toll road case

Here is the timeline for any petition for rehearing in Bonney v. IFA:









6/20/06 ****** ABOVE ENTRY MAILED ******

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Supreme Court affirms, 4-0, the trial court in toll road case

In today's 19-page opinion in Bonney v. IFA, written by Justice Boehm, the Court concludes that "the General Assembly intended the [public lawsuit] statute to apply to lawsuits such as this. We also conclude that no substantial issue is raised by the plaintiffs' three contentions that HEA 1008 violates the Indiana Constitution. ... Accordingly, we affirm the order of the trial court."

Re application of the public lawsuit statute:

It reflects the General Assembly's recognition that the mere pendency of a lawsuit can frustrate a project even if the claims are eventually found to be without merit. The statute acknowledges that litigation can be deployed to delay and sometimes even defeat public projects, and can be driven by a variety of motivations, some of which may have little to do with the merits of the project from the perspective of the general public. * * *

The plaintiffs contend that their case is not a public lawsuit because the IFA is ot a municipal corporation and also because only challenges to the acquisition, not disposition, of public improvements constitue public lawsuits. For the reasons explained below, we disagree with both contentions. Accordingly, we affirm the trial court's certification of the complaint as a public lawsuit.

The Court then goes on to find that the IFA "is clearly a 'municipal corporation'" within the public lawsuit statute's definition."

Re "special legislation," the Court states:

The General Assembly’s decision to build a road in one part of the state or provide addi-tional funding because the Toll Road runs through a given county does not make the law special legislation. The threshold question is whether a law is special or general. Kimsey, 781 N.E.2d at 692. If it is “special,” the next issue is whether a general law “can be made applicable.” Id. A general law cannot “be made applicable” where the law’s objective is to support a given project.

Major Moves legislation that includes allocation of lease proceeds for construction projects throughout the state does not become special legisla-tion because it also makes lump sum allocations to seven Indiana counties. To the extent Article IV of the Indiana Constitution places any constraints on individual projects contained within a larger statewide statute, they are imposed by the single-subject requirement of Article IV, Sec-tion 19, not the special legislation provision found in Article IV, Section 23. And plaintiffs correctly do not challenge HEA 1008 under Section 19. Provisions for raising public funds and directing their use are properly contained in the same bill. [citations omitted]

The determination to fund one project and not another does not violate Article IV, Section 23 for a more fundamental reason. Article X, Section 3 of the Indiana Constitution provides the General Assembly with the power to make appropriations by law. Virtually every appropriation is to some extent arbitrary because there is no principled basis for a court to evaluate the de-cision of the General Assembly to allocate funds to one purpose over another. For that reason appropriation of funds is a central legislative function unusually unsuitable to judicial review as a matter of separation of powers.

Re the "debt" question:
We agree with the defendants that the “public debt” subject to Section 2 is only debt of the State itself. Because there is no longer any such debt to retire, Section 2 presents no constitutional barrier to HEA 1008. The plaintiffs point to debt of local units of government and debt of public instrumentalities such as IFA that they contend is required to be retired before any pro-ceeds of the lease can be applied to the purposes specified by HEA 1008. Both are forms of “public debt” in some lay sense of the term, but neither is an obligation of the State, and therefore neither is “public debt” as that term is used in Section 2. * * *

Beginning with the Toll Road Commission, several of the entities that now compose IFA had issued bonds to finance specific projects whose revenues were the source of payment of principal and interest on the bonds. This method of financing public projects was initially challenged on the ground that it amounted to the incurring of state debt in violation of Article X, Section 5. This contention was rejected as to several of the predecessors of IFA including the Toll Road Commission. [citations omitted]

Most of these entities have now been consolidated into the IFA. It is now well settled, and the plaintiffs agree, that debt secured by revenue from the projects the bonds finance (tolls, lease rentals, port fees, etc.) does not violate the Indiana constitutional ban on debt of “the State.” The general credit of the State is not on the line to discharge these revenue bonds, and a creditor could not levy on the State House or a state park to recover its principal or interest. Ennis, 108 N.E.2d at 697. For that reason, the courts of this state and most others have consistently held that the debt of these authorities is not debt of the State. It follows, therefore, that Section 2 im-poses no requirement that the proceeds of the lease, or any sale of any public work, be applied to discharge these obligations. Again, this is not merely a textual point. In practical terms, there is no reason why the debt of IFA should be required to be retired because, unlike the State of Indi-ana, IFA could immediately reissue debt if it chose to do so. Lawyers and investment bankers would profit from such a rule, but it is hard to see who else would.

In summary, logic, the constitutional debates and judicial precedent all lead to the conclusion that Article X, Section 2 of the Indiana Constitution requires neither debt of units of local government nor debt of IFA or similar entities to be retired with the proceeds of a sale or lease of public works because neither is “public debt” as that term is used in Section 2. * * *

Conclusion. The order of the trial court is affirmed.

Shepard, C.J., and Sullivan and Rucker, JJ., concur.
Dickson, J., not participating.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court affirms, 4-0, the trial court in toll road case

From the docket in the toll road case, BONNEY, STEVE ET AL.-V- INDIANA FINANCE AUTHORITY, ET AL:

6/20/06 2006 TERM
6/20/06 ****** ABOVE ENTRY MAILED ******
The 19-page decision should be available by 10:30 a.m. Check back here.

In addition, the Supreme Court will issue an order this morning regarding
how long a party has to file a petition for rehearing in this case.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Sup.Ct. Decisions

Law - More on yesterday's U.S. Supreme Court decision in "confrontation clause" case

Here is Linda Greenhouse's story today on yesterday's dual decision on the 6th Amendment's confrontation clause. The story begins:

A crime victim's emergency call to 911 can be introduced as evidence at trial even if the victim is not present for cross-examination, the Supreme Court ruled unanimously on Monday.

At the same time the court held that prosecutors cannot make similar use of the transcript of a police interview that was conducted principally for the purpose of investigating a crime rather than responding to a developing emergency.

The court addressed the two situations in light of the Confrontation Clause in the Sixth Amendment, which guarantees a criminal defendant the right "to be confronted with the witnesses against him."

The court has interpreted this guarantee to bar the use of "testimonial statements" by witnesses who do not appear in court. The question in the two cases, which the court answered in a single opinion by Justice Antonin Scalia, turned on whether a 911 call on the one hand, or a statement given to the police at a crime scene on the other, qualified as "testimonial."

A call for help to 911 is not inherently "testimonial" because the caller is not acting as a witness, Justice Scalia said. "No 'witness' goes into court to proclaim an emergency and seek help," he explained.

On the other hand, statements given to police officers who are investigating the scene of a crime, if similar to statements that might be made in court, qualify as testimonial and generally may not be admitted, he said, at least to the extent that they are "neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation."

Justice Clarence Thomas dissented from that part of the opinion. Both the statements at issue were "nontestimonial and admissible," he said. He added that in excluding the statement to the police, the court "extends the Confrontation Clause far beyond the abuses it was intended to prevent."

It was something of a surprise that the court decided the two cases in a single opinion. They were appeals from separate courts and had been argued separately in March.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Franklin Co. judge recount continues

The Richmond Pal-Item story today begins:

BROOKVILLE, Ind. -- It's not quite reached the proportions of the 2000 Florida recounts yet, but the Franklin County recount of the Republican judge's race will enter its third day on Monday.

After two long days of counting, the Franklin County Recount Commission was unable to finish counting ballots Saturday. Monday will be the soonest the three recount members, Jeff Cargill, David Murrell and Nick Fankhauser, could all get together again.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Indiana Courts

Ind. Courts - Judge seals records in French Lick casino dispute without hearing

Grace Schneider of the Louisville Courier Journal reports today:

The two companies that joined forces to build Indiana's 11th casino -- under construction in French Lick -- are embroiled in a lawsuit that has been sealed by a judge in Orange County.

The lawsuit and a request for an injunction were filed by Cook Group Inc., a Bloomington medical-device manufacturer, against Lauth Resorts and Casinos LLC, its partner in the project.

Details about the case couldn't be learned yesterday because Orange County Circuit Judge Larry Blanton agreed to seal the documents.

State law requires a hearing before a judge seals a lawsuit. After being questioned by The Courier-Journal about his decision, Blanton said he would set a date today for a hearing on the matter. * * *

A one-page order, signed by Blanton on June 8, granted the request from Orange County Holdings LLC, a company formed by Cook Group, to file the lawsuit and the related request for injunctive relief under seal.

The law, however, requires a court to first hold a public hearing before granting a request to seal a court record so that the parties or members of the public can testify and submit written briefs.

A decision to seal all or part of the record must be based on findings that the public interest will be secured by sealing the record or that disseminating the information could be harmful to the public interest, according to the law.

Blanton declined to say during a brief interview whether a hearing on the matter had been held. But in a subsequent interview he said he would hold a hearing and cited a trial rule for his authority to keep the documents under seal until then.

The judge also held a brief conference call with Reed Osland, a Chicago lawyer representing Cook, and an Indianapolis firm acting on behalf of Lauth to notify them of questions raised by the newspaper and of his plans to hold a hearing.

Stephen Key, executive director of the Hoosier State Press Association, said he doubts Blanton can seal documents in a civil suit where there's no apparent need to do so.

"I'm kind of at a loss (to say) why that would be given the treatment to seal the entire record," Key said when told of the situation. "Obviously with the magnitude of the (casino) project, there would be great interest" in the community about the dispute.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Ind. Trial Ct. Decisions

Environment - More on yesterday's wetlands decision

Here are some quotes from Linda Greenhouse's front-page coverage in today's NY Times:

The Supreme Court on Monday came close to rolling back one of the country's fundamental environmental laws, issuing a fractured decision that, while likely to preserve vigorous federal enforcement of the law, the Clean Water Act, is also likely to lead to new regulatory battles, increased litigation by property owners and a push for new legislation.

With four justices on one side arguing for a sharp restriction in the definition of wetlands that are subject to federal jurisdiction, and four justices on the other arguing for retaining the broad definition that the Army Corps of Engineers has used for decades, Justice Anthony M. Kennedy controlled the outcome in a solitary opinion.

Justice Kennedy said that to come within federal protection under a proper interpretation of the Clean Water Act, a wetland needs to have a "significant nexus" to a body of water that is actually navigable.

He then made clear, in his 30-page opinion, that whether such a relationship existed in any specific case was largely a technical and scientific judgment on which courts should defer to the federal regulators. The four parcels of land at issue in the case, all in Michigan, were likely to meet the definition, he said.

Environmental advocacy groups reacted to the decision, which sends the cases back to an appeals court, as if they had dodged a bullet, which in many respects they had. An opinion for four justices, written by Justice Antonin Scalia, would have stripped protection from many areas that federal regulators have treated as wetlands under the 1972 law.

Justice Scalia's opinion, joined by Chief Justice John G. Roberts Jr. and by Justices Clarence Thomas and Samuel A. Alito Jr., said the Army Corps of Engineers had stretched its authority under the Clean Water Act "beyond parody" by regulating land that contained nothing but storm sewers, drainage ditches and "dry arroyos in the middle of the desert."

He said the agency had trampled on state authority by exercising a "scope of discretion that would befit a local zoning board."

The only wetlands properly subject to federal jurisdiction, Justice Scalia said, are those "with a continuous surface connection" to actual waterways, "so that there is no clear demarcation between 'waters' and wetlands."

The waters to which the wetlands must be adjacent, he continued, are only those that are "relatively permanent, standing or flowing." These are the only bodies of water that come within the statute's reference to "the waters of the United States," he said.

On the other side was Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Accusing the Scalia group of "antagonism to environmentalism," Justice Stevens said the Scalia opinion "needlessly jeopardizes the quality of our waters."

Further, Justice Stevens said, the Scalia group "disregards the deference it owes the executive" as well as "its own obligation to interpret laws rather than to make them."

This, of course, was a sly reference to the slogan often heard in connection with conservative nominations to the federal courts. In effect, Justice Stevens was accusing the Scalia group of judicial activism.

Here is an interesting observation from the end of the Greenhouse piece:
Given the structure of the principal opinions, including their relative length and tone, it is possible that Justice Stevens had initially controlled the case and, on the assumption that he had five votes on his side, had assigned it to Justice Kennedy, who then strayed somewhat from the more categorical view of the Stevens four. Although he speaks only for himself, his opinion reads like a majority opinion, while Justice Scalia's opinion reads like a dissent.
[More] Here is Charles Lane's coverage in the Washington Post. A quote:
The Supreme Court ruled yesterday that new limits could be placed on the federal government's power to enforce the 34-year-old Clean Water Act, but a set of opinions handed down by the justices did little to define what those limits might be.

The splintered decision was the clearest sign yet that the court's long-standing ideological divisions have not disappeared with the addition of two conservative justices. It also underscored that, perhaps more than ever, forming a majority in significant cases depends on winning the vote of a single justice -- moderate conservative Anthony M. Kennedy. * * *

The net effect of the most important Clean Water Act case to reach the court in recent years was thus neither the outright rollback of federal wetlands regulation that property rights advocates have long sought nor the reaffirmation of the Clean Water Act that environmental organizations had desired.

Instead, unless Congress amends the law or federal regulators change their rules, the likely outcome is more litigation in lower courts, with property owners, U.S. agencies and federal judges trying to figure out how to satisfy the standards sketched in Kennedy's solo opinion.

Posted by Marcia Oddi on Tuesday, June 20, 2006
Posted to Environment | General Law Related

Monday, June 19, 2006

Courts - "Judge conservatively, lest ye not be a judge"

The May-June issue of Mother Jones has an article titled "The Bible Bench - The message from fundamentalists to state jurists is clear: Judge conservatively, lest ye not be a judge." It is written by "Margaret Ebrahim, formerly of 60 Minutes II and the Center for Public Integrity, [who] is an investigative reporter for the Associated Press."

The article (much of which will, to regular readers, recall earlier ILB entries) begins in 2003 with Iowa District Judge Jeffrey Neary, who "terminated a civil union and settled property disputes between [two] women."

“I was just trying to settle a dispute between two people,” Neary says. But he made his decision just days before the Massachusetts Supreme Court upheld the legality of same-sex marriage in that state. Conservative Christians were ready for a fight.

In late summer 2004, Neary began preparing his race for retention. Because voters simply mark yes or no for one candidate, he hadn’t planned on running much of a campaign—Iowa judges typically win retention races with more than 75 percent of the vote. But the protests against him revived. * * *

Neary squeaked by with an embarrassing 59 percent of the vote, despite the fact that he had launched a fundraising committee that raised nearly $28,000—a huge sum for an Iowa judicial race—and bought newspaper and television ads attesting to his character. The experience has made Neary think twice before ruling on controversial cases. “When I write opinions, I will cover myself, so people know why I decided the way I did,” he says. “I will think a little bit about timing. I will sit on decisions around retention time. Yes, this experience has curtailed the third branch of government.”

Other judges share his concern, the highest profile being retired Supreme Court Justice Sandra Day O’Connor. In an unusually stark speech given at Georgetown University in early March, she asserted that “attacks on the Judiciary by some Republican leaders pose a direct threat to our constitutional freedom.” While not referring to him by name, O’Connor singled out former House GOP leader Tom DeLay for taking aim at the Supreme Court last year after its ruling in the Terry Schiavo case during a televised rally of conservative Christians called Justice Sunday. She expressed dismay over increasing physical assaults on judges as well as calls for “reforms” such as impeachments. “I am against judicial reforms driven by nakedly partisan reasoning,” she said. “The courts do have the power to make presidents, the Congress, or governors really, really angry. But if we don’t make them mad some of the time, we probably aren’t doing our jobs as judges…. We must be ever-vigilant against those who would strong-arm the Judiciary into adopting their preferred policies.”

That is just the beginning -- the article later gets into the politics of the "announce" clause. Some quotes:
Greg Wersal, a conservative lawyer ... in 1998 was running for the Minnesota Supreme Court for a second time. He didn’t have a chance against the incumbent, he felt, if he couldn’t tell voters his stance on pertinent legal issues. But the code of judicial ethics in Minnesota, as elsewhere, barred candidates from compromising their impartiality by discussing their views on disputed legal or political matters. This “announce clause,” as it is known, was developed by the ABA in 1972 and is in use by nine states to help maintain judicial impartiality and public faith in the courts. Twenty-five other states have imposed a “commit clause,” also developed by the ABA in 1990, which gives candidates more leeway to discuss the issues, as long as they don’t commit to a specific position. And 40 states prohibit making any “pledges or promises” about future judicial actions. (On the federal level, only judicial nominees who are sitting judges may not comment on pending cases and face a general requirement of impartiality.) * * *

In the midst of his 1998 campaign, Wersal filed suit against the Minnesota Board of Judicial Standards, charging that the announce clause violated his right to free speech. His suit caught the eye of the GOP, which joined his effort, and when the case went to the U.S. Supreme Court, it retained James Bopp Jr., a Terre Haute, Indiana, lawyer with a long conservative pedigree. The case of Republican Party of Minnesota v. White (named for Suzanne White, then head of the Board of Judicial Standards) was decided by the Supreme Court in 2002—and the decision went to Wersal.

During an interview in his office, Bopp said he believes that all judicial candidates, whether they’re appointed or elected, have a right to talk about controversial issues and cases as long as they don’t promise to rule a certain way on a specific case. But such a distinction hardly provides true protection against politicizing the courts; a candidate doesn’t need to name Roe v. Wade to indicate hostility to abortion rights. Bopp’s victory stunned the liberal judicial establishment.

Much later in the article:
Resistance in other states is likewise encountering conservative ire. By Bopp’s count, at least 40 states are defying the White precedent by instructing judicial candidates not to respond to surveys or answer questions on hot-button issues. He has sued six states total and has so far prevailed in three: Alaska, North Dakota, and Kentucky; the Indiana and North Carolina cases are pending.
A side-bar begins:
Conservatives around the country are pressing judicial candidates to answer questions about their personal religious practices and views on abortion, gay marriage, school prayer, and other controversies likely to come before their courts. But in Congress last fall, when Democrats attempted to probe Supreme Court nominees’ stances on these same issues, the GOP cried foul. No one, they said, should apply a single-issue “litmus test” to discern a nominee’s qualifications for the court. Should we count on seeing these indignant senators and conservative leaders push the GOP to stop holding state judges to a different standard?
Also on the Mother Earth website is an interview with Nebraska Judge Neary. From the intro:
In recent years, a handful of states have flirted with implementing a merit-based system for their judges. However, the Christian right has fought against the measures every step of the way, praising contested elections as the way to keep judges responsible to the "will of the people." Yet proponents of merit selection find an irony in this: Why is it necessary to pit candidates against each other, encourage influence-peddling, and engage in mud-slinging to select a judge? As the website of the nonpartisan American Judicature Society notes, "Not only does merit selection ensure that only the most qualified candidates become judges, but... retention elections provide a mechanism whereby those judges who are failing to live up to their responsibilities to the citizens can be removed from the bench."

At a time when religious conservatives are stepping up efforts against both individual judges and the way justice is delivered in this country, MotherJones.com spoke with Neary about the right's attack on the judiciary, the task of judges, and the merits of merit selection.

The long and very interesting interview ends with this:
MJ: How should a judge, given this political climate, handle potentially unpopular or controversial decisions?

JN: Every time we make a decision, somebody's unhappy. Obviously, that goes without saying. This is my rule of thumb: Don't deviate or change from the way that you've always done things. Whatever you decide, explain yourself well and in-depth and don't be afraid to be lengthy if you have to. From judges' perspectives the best thing they can do is communicate things. I would encourage a judge not to give in to the temptation to let the outside pressures dictate how you handle a case.

Posted by Marcia Oddi on Monday, June 19, 2006
Posted to Courts in general

Courts - Still more on: Las Vegas judiciary subject of in-depth LA Times examination

Last Monday, June 12 the ILB quoted from an LA Times 3-part series on the sorry state of the Las Vegas judiciary plus, later that same day, quotes from a Las Vegas columnist lamenting: "I'm embarrassed. For the local judicial system. For the valley's media. And for Southern Nevada. It took an out-of-state newspaper, the Los Angeles Times, to publish one of the most devastating pieces about Las Vegas that we have seen in many years."

Today, a column in the Las Vegas Review-Journal, headlined "Unflattering series on judges unlikely to alter system, but could change players." A few of the quotes that are interesting even if one doesn't know any of the players:

Hardest hit of all are U.S. District Judge James Mahan and popular -- a bit too popular for propriety's sake, some would argue -- civil receiver George Swarts. Every lawyer I've interviewed recently has said essentially the same thing about both men. Mahan is one of the best judges they've ever observed, and Swarts is a very capable receiver who has been a human vacuum cleaner, sucking up cash and fees at a staggering pace.

Readers of the series will surely be disturbed, but they will be left to wonder whether any system of judicial selection is trouble-proof. And that's precisely my point to ponder.

Although local judges are elected in Nevada, and of necessity raise funds from the lawyers and citizens who come before them, the process of appointing judges is rife with political juice and pitfalls aplenty. In the case of federal Judge Mahan, his appointment is for life.

The truth that academics and neophytes hate to admit is that politics is an inseparable part of the justice system. Favoritism is real. Judges commonly genuflect to the wealthy, give deference to high-profile attorneys and rule on close calls for allies and supporters over critics.

Posted by Marcia Oddi on Monday, June 19, 2006
Posted to Courts in general

Ind. Decisions - Evansville attorney disturbed by Supreme Court decision

Last Thursday the Supreme Court issued two related decisions, in Armstrong v. State and Nelson v. State. (Access ILB entry here.)

Today the Princeton Daily Clarion, in an interesting a story by German Lopez, reports:

The decision handed down by the Indiana Supreme Court on Thursday upholding a judge's ruling in the state's case against Michael Armstrong may set a bad precedent for individual liberties, said Evansville defense attorney Ivan Arnaez.

Arnaez, who represents Armstrong and argued the case before the court, said Sunday night that if allowed to stand, the court's decision has long-range implications for anyone accused of a crime and he reiterated his intentions to file an appeal to the U.S. Supreme Court.

“This is a very disturbing decision,” he said. “If you have a bad enough case and people want to change case law to get a conviction, they can do so, according to this decision.”

Arnaez said the decision basically changed existing case law and applied it retroactively to Armstrong in order to get a conviction in the case.

“The law was still there on the books (at the time of the incident),” he said. “Even if the law was wrong, it still protected Armstrong until it was changed. It's almost the same as rewriting the statute. And it could mean an unpopular person can be taken care of retroactively.”

More from the story:
On Thursday, the state's highest court upheld Gibson County Judge Earl Penrod's decision not to dismiss a felony charge against Armstrong in connection to the 2003 death of Craig Mobley.

Armstrong was charged in 2003 in Gibson Superior Court with a felony charge of failure to stop after an accident resulting in death.

Armstrong, was driving his Ford Expedition along CR400W in Gibson County when Mobley apparently jumped from the vehicle while it was in motion, according to court records.

Arnaez argued that the charge did not apply to his client because Armstrong's vehicle never struck Mobley, and asked Judge Penrod to dismiss the charge.

Penrod denied the motion, but certified a request by Arnaez to have the Indiana Court of Appeals interpret the statute phrase “involved in an accident.”

The Court of Appeals agreed with Penrod's view that being involved in an accident doesn't require that a vehicle hit another person or object, but just that a vehicle be involved in the accident. But the appellate court stopped short of applying the new interpretation to Armstrong's case retroactively, and ordered the case dismissed.

Gibson County Prosecutor Rob Krieg asked the Indiana Attorney General's office to take the case to the Indiana Supreme Court, and the court agreed to vacate the appellate court's decision in April 2005.

In the Thursday ruling, the high court held that a driver of a vehicle who leaves the scene of an accident resulting in injury or death may be held criminally responsible even if the driver's vehicle didn't strike the injured or deceased party.

And, the court ruled that the charge against Armstrong could go to trial because no due process rights were violated.

Arnaez said he does not dispute that what Armstrong may have done was morally unethical, but maintains that it was not against the law.

“What happened (in the incident) was not premeditated by Armstrong,” he said. “His passenger just decided to jump out. Anyone in that situation couldn't be expected to see things very clearly. Everyone agrees he probably should have stopped, but he wasn't bound to by law.” * * *

Following the Indiana Supreme Court's decision, Armstrong's case is set to return to Gibson Superior Court for a July 25 hearing, but Arnaez said at that time he will inform the court that he intends to file a petition for the U.S. Supreme Court to hear questions in the case.

“We will file a federal question asking whether a law can be applied retroactively to convict someone,” he said. “If they grant the petition that means the court merely agrees to hear arguments. But if they say they want to hear (arguments) it may be a good sign it could reverse the decision of the Indiana Supreme Court.

Posted by Marcia Oddi on Monday, June 19, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - U.S Supreme Court decides Indiana "confrontation clause" case today

Under the title Davis v. Washington, the Supreme Court today handed down an opinion covering both that case and Hammon v. Indiana, dealing with hearsay and the confrontation clause. Here is an early AP report:

The Supreme Court ruled Monday that statements made by crime victims to 911 operators or police during emergencies can be used in court even if those victims do not testify at trial.

In a pair of cases, the justices gave a nod to the difficulties of prosecuting domestic violence cases.

By a 9-0 vote, justices ruled that a Washington man's right to confront his accuser was not violated because he could not cross-examine his ex-girlfriend, who claimed in a 911 call that he had assaulted her.

In another case, out of Indiana, the justices ruled 8-1 that a police officer had crossed the line - from dealing with an emergency to conducting an investigation - when he questioned a woman about what her husband had done to her well after she had been assaulted.

By affirming the Washington man's conviction and reversing the Indiana man's, however, the justices opened the door for prosecutors and police to gather evidence to show that batterers intimidated their victims into silence and "forfeited" their rights to confront their accusers in court. * * *

Justice Clarence Thomas was the lone dissenter in the Indiana case, writing that he believed the officer's testimony about what the woman had told him was admissible in court. But Thomas said he does not believe the majority's definition of when an emergency ends and an investigation begins is workable.

The cases involved Adrian Davis of Washington and Hershel Hammon of Peru, Ind., who had argued their rights were violated because their accusers did not testify under oath and were not subjected to cross-examination at their trials.

Lawyers on all sides of the cases - as well as the Bush administration - wanted the justices to clarify a 2004 high court decision [ILB: that would be another Washington case, Crawford v. Washington]that barred prosecutors' use of statements from victims or witnesses if a defendant did not have a chance to question them in court.

At Davis' trial, a judge allowed the tape of Michelle McCottry's February 2001 emergency call to be admitted into evidence but barred police testimony about what McCottry had said to officers. She disappeared before trial and did not testify despite a subpoena.

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

Thomas, in his dissent, said the police officer's questions could have been posed to determine whether Amy Hammon remained in danger, not solely to gather evidence to charge her husband with a crime.

Indiana Attorney General Steve Carter said in a statement that he was disappointed with the ruling, but expressed hope that it will eventually permit prosecutors to use during trial many crime-scene statements made to emergency responders.

"In sum, we have a minor setback, but hopefully long-term win in the battle for justice against criminals who use fear against their victims," Carter said.

For background, see these 3/13/06 and 3/21/06 ILB entries.

Here is what SCOTUSblog says about the two decisions:

In the second of three rulings on argued cases, the Court took two differing positions on whether statements that amount to "excited utterances," made out of court, may be admitted as evidence in a trial, under the 2004 decision in Crawford v. Washington. The Court allowed as evidence the recording of a "911" call, finding that was not "testimonial." But it ruled that a statement made by a victim to a police officer at a crime scene was "testimonial" and could not be admitted at trial. Out of court statements that are deemed to be "testimonial" may not be admitted when the person who made the statements is not available to be cross-examined at the trial. (Justice Scalia's opinion is available here; Justice Thomas's concurring opinion is available here.) The cases are Davis v. Washington (05-5224) and Hammon v. Indiana (05-5705).
Here is how Justice Scalia's majority opinion concludes:
We have determined that, absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Amy Hammon’s affidavit. The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious.
* * *
We affirm the judgment of the Supreme Court of Washington in No. 05–5224. We reverse the judgment of the Supreme Court of Indiana in No. 05–5705, and remand the case to that Court for proceedings not inconsistent with this opinion.
Here is the 5-0 Indiana Supreme Court opinion from 6/16/05.

Posted by Marcia Oddi on Monday, June 19, 2006
Posted to Ind. Sup.Ct. Decisions

Environment - U.S. Supreme Court wetlands decision today muddies waters

The Supreme Court ruled today in favor of John Rapanos, in Rapanos v. U.S., by a vote of 5-4. Rapanos' suits have been in the courts for years.

Gina Holland of the AP writes:

Justices were so fractured that the main opinion by Justice Antonin Scalia only had the votes of four justices.

Roberts, one of those four, said that the result was confusing and that "lower courts and regulated entities will now have to feel their way on a case-by-case basis."

The court voided rulings against Keith Carabell and John Rapanos, who wanted to fill wetlands they owned near Lake St. Clair in Macomb County, Michigan. Carabell wanted to build condos on wetlands his late wife owned about a mile from the lake. Rapanos wanted to put a shopping mall on his property, which is about 20 miles from the lake. * * *

Instead of ruling in the property owners' favor, as they requested, justices said lower courts must reconsider whether ditches and drains near wetlands are waterways.

The court's four most conservative members wanted a more sweeping ruling, clearing the way for development of land unless it was directly connected to waterways.

The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment.

In the middle was Justice Anthony M. Kennedy.

In a sign of the division, justices spent nearly half an hour explaining their votes from the bench Monday. After Scalia announced the decision, Kennedy and Justice John Paul Stevens both took turns detailing their positions.

Kennedy wrote his own opinion to explain why he was not joining the main opinion. "Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular," he said. Scalia's opinion, Kennedy said, "seems unduly dismissive of the interests asserted by the United States in these cases."

Scalia had said the Corps of Engineers misinterpreted the term "waters of the United States."

"In applying the definition to `ephemeral streams,' `wet meadows,' storm sewers and culverts, ... man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term `waters of the United States' beyond parody," he wrote.

The cases are Rapanos v. United States, 04-1034, Carabell v. Army Corps of Engineers, 04-1384.

Posted by Marcia Oddi on Monday, June 19, 2006
Posted to Environment | General Law Related

Ind. Decisions - 7th Circuit issues one Indiana decision last week

But it was 86-pages. in Gaffney, Michael P. v. Riverboat Services of Indiana v. Showboat Marina Casino (ND Ind., Andrew P. Rodovich, Magistrate Judge), decided 6/16/06, Circuit Judge Ripple writes:

The plaintiffs, who are licensed merchant marine officers,1 brought this whistleblower action under 46 U.S.C. § 2114 against Showboat Marina Casino Partnership, Showboat, Inc., Showboat Indiana, Inc., Showboat Mardi Gras Casino and M/V Showboat (collectively “Showboat”), Riverboat Services, Inc. and Riverboat Services of Indiana, Inc. (collectively “Riverboat”), and Robert Heitmeier and Thomas Gourguechon in their individual capacities. See Pub.L. No. 98-557, § 13(a), 98 Stat. 2863 (1984) (current version at 46 U.S.C. § 2114 (2002)).2 The plaintiffs claim that they were discharged in retaliation for engaging in statutorily protected correspondence with the United States Coast Guard (“Coast Guard”) about a change in hiring guidelines on the vessel on which they were employed, the M/V Showboat. After a bench trial on the plaintiffs’ claims against Riverboat and the individual defendants, the United States District Court for the Northern District of Indiana entered judgment in favor of all but two plaintiffs and awarded back pay, expenses and punitive damages. Those defendants now appeal, contending that the district court erred in holding that the plaintiffs established the requisite causation between their correspondence with the Coast Guard and their subsequent terminations. * * * For the reasons set forth in the following opinion, we affirm in part and reverse in part the judgment of the district court.

Posted by Marcia Oddi on Monday, June 19, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues one today

In Evansville Outdoor Advertising, Inc. v. Princeton City Plan Commission and Princeton City Council, a 12-page opinion on rehearing, Judge Barnes writes:

The Princeton Plan Commission (“the Commission”) petitions for rehearing following our memorandum decision in Evansville Outdoor Advertising, Inc. v. Princeton Plan Commission, et al., 26A05-0506-CV-306 (Ind. Ct. App. March 10, 2006). The Commission argues and EOA concurs that Section 6.29 of the Princeton Code (“the Code”) does not apply to this case, and therefore the trial court had subject matter jurisdiction over a complaint for declaratory judgment filed by Evansville Outdoor Advertising (“EOA”). Based on the specific language of our 2002 memorandum decision concerning the same proposed billboard, we grant the Commission’s petition for rehearing, vacate our original opinion, and affirm the trial court’s judgment in favor of the Commission.

Posted by Marcia Oddi on Monday, June 19, 2006
Posted to Ind. App.Ct. Decisions

Enviroment - Stories today

New blog. James Bruggers, environmental reporter for the Louisville Courier Journal, whose stories have been cited frequently by the ILB, has just started a blog of his own, Watchdog Earth, via the LCJ. Access it here.

Pipeline to cut through Morgan County. The Martinsville Reporter-Times reported Saturday, in a story by Ron Hawkins:

The path of the proposed Rockies Express Pipeline through Morgan County would cut through the site of a major proposed housing development, possible Interstate 69 construction and across at least three creeks and rivers.

The partnerships behind the pipeline will conduct open houses at 6 p.m. June 28 at the Franklin Comfort Inn, 2122 Holiday Lane, and June 29 at the Plainfield Hampton Inn, 2244 Hadley Road. No formal presentation will be given, but maps of the pipeline’s route will be on display. * * *

The proposed pipeline is a 1,663-mile pipeline system that would transport natural gas from Colorado and Wyoming to markets in the Midwest and eastern United States. The project is expected to cost $4 billion. The western portion from Colorado to Missouri is scheduled for completion by December 2007.

“We’re having an open house to get people comfortable with what we’re doing,” Kinder spokesman Rick Rainey said.

The pipeline is being built because the Rocky Mountain region is the fastest-growing source of natural gas and to provide a more reliable, secure pipeline, Rainey said. The partners are hoping to receive federal approval of the eastern portion by February 2008 and start construction early in the spring of 2008. The targeted operational date is December 2008 for portions of the project and June 2009 for the entire pipeline, according to the partners’ Web site.

State approvals also are required, but representatives of the Indiana Department of Environmental Management and Department of Natural Resources say there are no permits on file either under the group partnership or under the names of the individual companies.

In northern Morgan County, Rockies Express would cut across McCracken Creek, White Lick Creek, the west fork of the White River and possibly wetlands.

The pipeline would cross Ind. 37, which is slated to become Interstate 69. INDOT representatives have said they plan for that construction to begin in 2008.

The pipeline also would cut through the planned $500 million Stonebridge Club development in Green and Harrison townships. * * *

The temporary right-of-ways required during construction will be 125 feet wide and the permanent right-of-ways will be 50 feet when the work is done, according to company representatives.

Posted by Marcia Oddi on Monday, June 19, 2006
Posted to Environment

Sunday, June 18, 2006

Ind. Decisions - Still more on: While the Supreme Court considers its decision in the toll road case . . .

A Fort Wayne News-Sentinel editorial Thursday (see ILB entry here) ended with this:

Yes, the consortium has the option of backing out of the deal if litigation is still pending on June 30. But if this deal is as good as everybody keeps saying it is, the company will not be in a hurry to opt out. If it does, maybe we should have second thoughts, too.
So is June 30th not the "drop-dead date"? The ILB took a look at the Lease Agreement, p. 22:
Section 2.2 Closing. (a) The closing of the transaction shall take place on June 30, 2006 or such other date agreed to in writing by the IFA and the Concessionaire.
Section 2.4 sets out the conditions that must have been met before the Concessionaire is obligated to complete the agreement. One is:
(vi) the IFA shall have delivered to the concessionaire (A) a legal opinion of counsel to the IFA, in substantially the form attached hereto in Schedule 2.4(a) ...".

(d) Termination. This Agreement may be terminated at any time prior to the Closing ... (ii) by either the IFA or Concesionaire, upon notice to the other party, if (A) any governmental authority of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting this Transaction, and such order, decree, ruling or other action has become final and nonappealable; ... or (B) the Closing shall not have occurred as of 11:59 PM on June 30, 2006.

I take this to mean there is no "drop dead" date. The parties may close after June 30th if they so agree.

Re the opinion letter that IFA counsel must deliver to Concessionaire before closing -- the form does not seem to be available, but presumably one of the items is that there is no outstanding litigation. And of course if litigation "restraining, enjoining or otherwise prohibiting this Transaction" has become final and nonappealable before the June 30th date, Concessionaire can walk away form the deal.

So, back to the News-Sentinel editorial, which says "if this deal is as good as everybody keeps saying it is, the company will not be in a hurry to opt out." If that is the case, how hard should it be for the parties to agree to move the closing date from June 30 date to, say, July 30th?

It seems somehow unseemly that the executive and legislative branches of government have passed a law and negotiated an unprecedented deal that places before the judicial branch of government important questions that may well impact the future course of the State, without adequate time to fully consider the implications thereof.

Posted by Marcia Oddi on Sunday, June 18, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - Illinois chief justice doesn't just get mad, he sues

"Chief justice doesn't just get mad, he sues" is the headline to this very long story today in the Chicago Tribune. Some quotes:

A politician might have written a righteous letter to the editor. A different judge may have ignored the matter altogether.

But when Illinois Supreme Court Justice Bob Thomas objected to a series of critical newspaper columns, the pugnacious jurist and former Chicago Bear sued the people who published them.

Now, elevated to chief justice and head of the state's judicial branch, Thomas is waging an unapologetic legal battle that raises some hot questions about political criticism and press freedom--while also fueling an intramural drama of keen interest in the state's legal circles.

The lawsuit alleges that the Kane County Chronicle defamed Thomas and cast him in a false light in articles published three years ago.

It could go to trial in September, offering the rare sight of a top jurist sitting on the other side of the bar, acting as a plaintiff before judges who are at least nominally responsible to the Supreme Court. * * *

Thomas' suit has spurred a legal battle over whether judges have the right to keep secret their closed-door conversations with colleagues. On the other side, it has raised questions about the confidentiality of journalists' sources.

"One side is promoting the judicial deliberation privilege while attempting to burst the reporter privilege," said Don Craven, legal counsel for the Illinois Press Association. "And while the newspaper is trying to protect the reporter privilege, they're also trying to get around the judicial privilege.

"It's a case of my privilege is bigger than your privilege," Craven said.

Justice's lawsuit rare

Although it is rare for judges to sue for defamation, there have been notable exceptions around the country. In Illinois in 1992, a jury sided with the Belleville News-Democrat after a judge complained about the facts in an editorial.

And last year, a former Downstate candidate for the Illinois Supreme Court filed a defamation suit against business groups for what he says were misrepresentations of his record in campaign material.

Presiding over a case involving one's colleague or boss is difficult in any case, lawyers say.

"Judges don't forget who the head of the court system is," Craven said. "Cases don't get decided in a vacuum."

No doubt, the Thomas lawsuit has touched a host of players in the judiciary. This year, other justices on the Supreme Court have fought the newspaper's efforts to find out what they know about the case.

The entire Kane County bench and its 2nd District Appellate Court declined to get involved, so the case has fallen to judges based in Cook County. Observers point out that, in Illinois' rough-and-tumble judicial world, just about every jurist in the state has some connection to the players in this case.

The journalist who penned the columns isn't backing down.

"I stand by what I wrote," says longtime columnist Bill Page. "I wouldn't write something like that if I didn't have sources for that information." * * *

The conflict started in 2003, as the state court system was dealing with a high-profile disciplinary case involving a Kane County prosecutor.

State's Atty. Meg Gorecki was accused of leaving messages on a telephone answering machine suggesting that a political contribution would help an applicant secure a county job.

Ultimately, the matter headed to the justices of the Supreme Court for a decision on whether she would have to give up her law license for a time.

Around that time Page wrote columns that were critical of Thomas, a Republican whose Supreme Court district includes Kane County. According to court documents, Page wrote on May 20, 2003, that many Republicans believed Thomas was "not impartial when it came to Gorecki."

Page wrote on Nov. 25, 2003, that Thomas originally pushed for tougher sanctions against Gorecki, but that he ultimately agreed to a four-month suspension of her law license. Thomas did this, Page wrote in that column, to gain the backing of some high-profile Gorecki supporters for a judicial candidate he favored. The lawsuit complains that Page termed the move a "little political shimmy-shammy." * * *

Thomas says if some of the things Page wrote about him were true, he could be subject to a criminal felony charge of official misconduct.

"It was a total fabrication, a total lie," Thomas says of what Page wrote. "More important than that, he was accusing me of a crime and of betraying my oath. I was just incensed."

Posted by Marcia Oddi on Sunday, June 18, 2006
Posted to Courts in general

Law - Kentucky lawyer's debt deal in turmoil

Andrew Wolfson of the Louisville Courier Journal reports today:

Louisville lawyer Ron Sheffer, whose law firm with offices from Paducah to Lexington collapsed under a $16.6 million mountain of debt, would pay most of his creditors less than 2 cents on the dollar under a proposed bankruptcy settlement.

Sheffer, 67, has been blocked from discharging his debts because a federal bankruptcy judge ruled that he fraudulently diverted assets to his wife.

Federal regulators oppose the proposed $394,583 settlement because they say it would allow Sheffer to "purchase" a discharge -- in effect buying his way out of trouble. Under the proposed deal, Sheffer would pay more to the creditor that won the fraud ruling than to other creditors.

The U.S. Bankruptcy Trustee, a division of the Justice Department charged with protecting the bankruptcy system and investigating fraud and abuse, says allowing Sheffer to settle his case would violate public policy and bankruptcy law, which is designed to protect "honest" debtors.

Sheffer's lawyer and creditors that support the deal say it is the fairest and least expensive way to resolve the extraordinary case, one of only a few bankruptcies in Western Kentucky that has been blocked by a fraud finding.

They also note that Sheffer could retire, leaving creditors with no wages to garnish if he is barred from discharging his debts through bankruptcy.

"If there is no discharge, it becomes a Wild West free-for-all," said Harry Mathison, attorney for Ohio Valley National Bank of Henderson, which won the fraud ruling but now supports the settlement. "This is the best way to resolve what can only be characterized as a mess."

Sheffer's lawyer, J. Baxter Schilling, said the proposed deal was reached through court-ordered mediation, and until the bankruptcy court has an opportunity to hear all arguments, it would be inappropriate for him or Sheffer to comment beyond what they've said in court papers.

But former bankruptcy judge Merritt Deitz Jr., who has no role in the case, predicted the settlement won't be approved because it favors some creditors over others.

Posted by Marcia Oddi on Sunday, June 18, 2006
Posted to General Law Related

Courts - Kentucky Justice's footnote may influence merit system case

The Louisville Courier Journal reports today that:

A footnote that Kentucky Chief Justice Joseph Lambert included in an unrelated case could have implications for the charges against Gov. Ernie Fletcher in the state hiring investigation.

Lambert stated in the footnote that "there is a strong argument in favor of barring criminal charges" against a governor for official acts because of the constitution's impeachment provision.

Fletcher, although he has been indicted, has not been impeached. * * *

Fletcher's lawyers have attempted to block Attorney General Greg Stumbo and his staff from prosecuting the case against the governor, but have not challenged the constitutionality of the indictment. * * *

Lambert included the footnote in the majority opinion he wrote in which the Supreme Court rejected a lawsuit by state workers against the state government.

The employees claimed they weren't adequately paid in 2002 when the General Assembly adjourned without passing a budget.

In the footnote, Lambert noted that the chief executive immunity issue is "unsettled" but pointed out "the federal and state constitutions allow for their impeachment."

Lambert went on to note that, under the constitutions, only after impeachment and conviction would a governor or president be subject to indictment, trial and punishment. * * *

A prominent former judge questioned Friday why Lambert would attach that item about a governor's criminal liability to a case about a lawsuit brought by state workers who thought they hadn't been adequately paid by the General Assembly.

"I don't know why he would find it necessary to put that footnote there," retired Chief Justice John Palmore told the Lexington Herald-Leader.

Palmore said immunity for a governor until impeachment is "a new idea to me."

Posted by Marcia Oddi on Sunday, June 18, 2006
Posted to Courts in general

Ind. Gov't. - Indy Star turns spotlight on two potential FSSA contractors

The featured front-page story in the Sunday Indianapolis Star, reported by Tim Evans, is headlined: "State urged to re-examine welfare privatization plan in light of gaffes by suitors." (For more, start with this ILB entry from yesterday.) Some quotes from the long story:

Two companies that are vying to help manage welfare claims for 1 million Hoosiers have faced complaints elsewhere, including long hold times on the phone, gross overpayments and denial of aid to qualified applicants.

At least one state, Texas, has suspended plans to take a pilot welfare program statewide with one of the companies, Accenture. The other company, ACS, also has faced complaints and once employed Mitch Roob, who now leads Indiana's Family and Social Services Administration. * * *

Daniels will have to decide whether problems ACS and Accenture have had are relevant to the Indiana project. The most common complaints involve cost overruns, missed deadlines and poor service.

The goal of the Indiana project is to cut costs while improving service to needy Hoosiers. Officials have not provided estimates on how much they hope to save through privatizing work now done by about 2,500 state workers at an annual cost of $200 million.

A growing number of people -- including FSSA clients, elected officials and advocates for the poor -- are urging Indiana officials to move cautiously.

"This would be a good time to take a break and step back to make sure you are getting what you want," said Jennifer Noyes, a pro-privatization researcher with the Institute for Research on Poverty at the University of Wisconsin, who is monitoring the Indiana project.

That warning from Noyes, who helped lead Wisconsin's nationally recognized welfare reform project in the 1990s, has nothing to do with Accenture or ACS. Her concerns are about the length of the proposed contract and the level of responsibility being transferred to a private contractor "without testing your theory of change."

Noyes added that the state's request for proposals, which was developed by consulting firms working in conjunction with agency officials, is not as good as it could have been.

"When I got done reading the state's Request for Proposals, I had a lot of questions and difficulty understanding the intended outcomes and expectations," she said.

A clear explanation of what the state wants to accomplish, and how that should be done, is essential to a successful project, Noyes said.

"Can you privatize that much work? Absolutely. But is it easy? No. It is a lot of work, and people tend to woefully underestimate what it takes to oversee a contract."

Posted by Marcia Oddi on Sunday, June 18, 2006
Posted to Indiana Government

Ind. Courts - Judge embraces new tools; problem-solving alternative courts

"Judge embraces new tools" is the heading to a story today by Joe Gerrety in the Lafayette Journal and Courier. Some quotes:

Forensic Diversion is a three-year court program that combines intensive monitoring, frequent drug screens, mental health and drug treatment, and career and life skills counseling to nonviolent felony drug offenders who otherwise would face prison sentences.

In addition to Forensic Diversion, [Judge Don Johnson, of Tippecanoe Superior Court 1] in recent years has taken a leadership role in creating a re-entry program for Indiana Department of Correction inmates who return to Tippecanoe County, a cocaine and methamphetamine program being supervised by Judge Thomas Busch, and a misdemeanor mental health diversion program.

Johnson said the changing nature of criminal behavior in his 15 years on the bench has necessitated a different approach.

"Meth and cocaine have had a tremendous effect on the criminal justice system," Johnson said. "The courts need to come up with creative alternatives, and the idea is to get the right people behind bars."

The so-called "problem-solving courts" have involved a collaboration of efforts from the prosecutor's office, the public defender's office, mental health advocacy groups, mental health and drug treatment programs, Community Corrections, the local police drug task force and even Purdue University pharmacy experts and Lafayette Transitional Housing. * * *

Chief deputy prosecutor John Meyers, one of the early driving forces behind the Forensic Diversion concept, said it was difficult to get Johnson interested in the details of the program early on.

"He's a big-picture guy," Meyers said. But about six months into the planning, Meyers said, Johnson began taking a hands-on approach. Now, two years after its creation, the program has Johnson's handprints all over it.

Earlier this week, Johnson was handing Forensic Diversion clients free copies of Nickel and Dimed, a book by Barbara Ehrenreich that chronicles her experience trying to get by while working full-time at low-wage jobs. It's been adopted locally as this summer's One Great Read.

"People all over the community are going to be reading it," Johnson told the clients, many of whom are working low-wage jobs while they work on their addiction issues. "You're a part of the community, so I want you to read it."

Meyers, who has practiced criminal law in Indiana for 33 years, called problem-solving courts "one of the most important developments in the criminal justice system in my time."

"Judge Johnson has been the pivotal person in the evolution of these courts in this community," he said.

The story includes a valuable side-bar showing the problem-solving court programs underway in Tippecanoe County:
Adult courts

Drug Court: Created by Judge Gregory Donat and currently supervised by Judge Michael Morrissey, the 18-month program combines frequent drug screens, treatment, court monitoring and counseling for nonviolent addicts.

Forensic Diversion: Supervised by Judge Don Johnson, the program -- geared toward felony offenders with co-occurring mental health and addiction problems -- takes up to three years and combines frequent drug screens, treatment, court monitoring and counseling in lieu of a prison sentence.

Cocaine-Methamphetamine Program: An offshoot of Forensic Diversion supervised by Judge Thomas Busch, the program is geared toward criminal defendants with cocaine or methamphetamine addictions who have fully suspendable sentences or are eligible to serve their sentences in Community Corrections. It uses a combination of therapeutic and court interventions to move offenders to more stable lifestyles.

Re-entry Program: Supervised by Judge Don Johnson and expected to be under way by July 1, the program will work with the Indiana Department of Correction to monitor state inmates who will be released from prison up to two years early through a sentence modification. Offenders will be monitored and provided with self-improvement programs and job skills and family values training. Mental health and addiction issues also will be addressed.

Juvenile courts

Drug Treatment Court: The program, supervised by juvenile court Judge Loretta Rush, deals with juvenile addictions through frequent court appearances, drug screens and treatment focused on the entire family.

Truancy Court: Supervised by Rush, the program deals with children who have violated their school attendance policy and have been referred for prosecution. Repeat violators and their parents are brought before Rush to determine sanctions and services. The program has been operating since late fall.

Posted by Marcia Oddi on Sunday, June 18, 2006
Posted to Indiana Courts

Ind. Decisions - More on: While the Supreme Court considers its decision in the toll road case . . .

"High court steps into Toll Road minefield" is the heading to an excellent, and very long, editorial today in the Fort Wayne Journal Gazette. Here are some quotes, starting from about half-way into the editorial:

Although legal paperwork made much of the question of whether the suit fit the “public lawsuit” definition, Fort Wayne lawyer James Fenton – and, through their questions, the justices – focused mostly on the issues of the state’s debt and special legislation.

Fenton argued that the framers of the Constitution were fiscally conservative. In modern-day terms, Fenton explained that if the state took out a second mortgage, the Constitution’s framers would want the government to use the money to pay off its maxed-out credit cards, not to go on an expensive vacation.

The $40 million that the state gave to each of the seven Toll Road counties – regardless of need and population – fell in the vacation category, he argued. The only restriction is the money be spent on economic development, a loosely defined term that could apply to a broad range of spending. That is in addition to the millions of dollars in state highway projects the Major Moves legislation will pay for in each county, plus more millions for local roads and streets.

One of the state government’s attorneys, Solicitor General Thomas Fisher, countered that language regarding paying off the public debt referred to the red ink that was flooding the state when the Constitution was adopted in 1851, largely due to heavy borrowing to build canals. That debt has long been paid, he argued.

The debate over “state debt” vs. “public debt” may seem arcane and far from the point, but it offers interesting insight to the need for lawmakers and judges to define words precisely. Ironically, there was no discussion Tuesday about whether the lease legally constitutes a “sale” as described in the state Constitution, and yet that issue could be a deciding factor.

Discussion of special legislation may be more to the point of whether the Supreme Court allows the lawsuit to continue or blocks it. Fenton argued that the $40 million doled out to each of the Toll Road counties was just the type of special favor the constitutional ban on special legislation was meant to prohibit. Government attorneys argued that every county in the state benefits from the lease and that each Toll Road county receiving the identical $40 million was, in fact, proof it was not special legislation.

The issue is one near to the court in the wake of its controversial 2003 decision that clamped down on the General Assembly’s habit of singling out specific cities and counties in laws. The South Bend v. Kimsey case – repeatedly referred to as “Kimsey” in Tuesday’s hearing – was a groundbreaking ruling. In it, the court ruled that lawmakers cannot treat certain cities and counties differently from others unless those places have certain characteristics that merit different treatment.

Justice Frank Sullivan was the lone dissenter in the Kimsey case, but it was he who pressed the issue the hardest in last week’s hearing. Sullivan and Justice Theodore Boehm, who wrote the Kimsey decision, were the most inquisitive, while Shepard and Justice Robert Rucker had fewer questions for the attorneys.

The Kimsey decision angered many lawmakers, but that will pale to how legislative supporters of the Toll Road lease will react if the Supreme Court rules in favor of those who brought the suit. Yet the court must determine whether the plaintiffs’ arguments have merit and whether the impossibly high bond applies in this case. Regardless of whether the governor and a slim majority of the legislature want the lease, it will be up to the court to determine whether the law passes constitutional muster.

How the court rules – possibly within the next 12 days – will be of immense importance to Hoosiers. Because both sides filed detailed briefs with the court, Tuesday’s hearing will not be the only factor – and may not be the deciding factor – that will determine how the justices rule.

In any event, last week, some of the state’s best legal minds presented opposing views regarding key legal issues that will ultimately determine whether the state can or cannot proceed with the history-making Toll Road lease.

Thanks to the court’s openness, Hoosiers can see and hear for themselves the articulate legal positions on an issue that will affect all Hoosiers.

The oral argument is available online via the Court's website. The legal documents in the case, from the original compliant filed with the St. Joeseph County trial court in mid-April, to the complete set of briefs filed with the Supreme Court this month, are available via the ILB.

In a side-bar, the Journal Gazette sets out many of the laws and constitutional provisions at issue:

Do plaintiffs have to post a $1.9 billion bond for the case to proceed:

Indiana Code, 34-13-5-7: If … the court determines that the plaintiff cannot establish facts that would entitle the plaintiff to a temporary injunction, the court shall set the amount of bond to be filed by the plaintiff in an amount found by the judge to cover all damage and costs that may accrue to the defendants by reason of the pendency of the public lawsuit in the event the defendant prevails.

What is a “public lawsuit”:

IC 34-6-2-124 Sec. 124. (a) “Public lawsuit” … means: 1) 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, including but not limited to suits for declaratory judgments or injunctions to declare invalid or to enjoin the construction, financing, or leasing; and 2) any action to declare invalid or enjoin the creation, organization, or formation of any municipal corporation. …

Is the Indiana Finance Authority, which operates the Toll Road, a “municipal corporation”:

IC 34-6-2-86 Sec. 86. “Municipal corporation” … 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.

Should Toll Road revenues go to pay debt instead of highway and other projects:

Indiana Constitution, Article 10, Section 2. All the revenues derived from the sale of any of the public works belonging to the State, and from the net annual income thereof, and any surplus that may, at any time, remain in the Treasury, derived from taxation for general State purposes, after the payment of the ordinary expenses of the government, and of the interest on bonds of the State, other than Bank bonds; shall be annually applied, under the direction of the General Assembly, to the payment of the principal of the Public Debt.

Is Major Moves “special legislation”:

Article 4, Section 22. The General Assembly shall not pass local or special laws. ...

Article 4, Section 23. In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.

Posted by Marcia Oddi on Sunday, June 18, 2006
Posted to Ind. Sup.Ct. Decisions

Saturday, June 17, 2006

Ind. Decisions - While the Supreme Court considers its decision in the toll road case . . .

"Court shouldn’t let itself be rushed" opined the Fort Wayne News-Sentinel in an editorial brief Thursday:

We think the 75-year lease of the Indiana Toll Road to a Spanish-Australian consortium for $3.8 billion is a good idea. We think it took courage for Gov. Mitch Daniels to propose it and a lot of political savvy to get it through the General Assembly. Many of the criticisms about the deal seem unfounded.

But the Indiana Supreme Court should not let itself be rushed through its consideration of the deal’s constitutionality because of the June 30 deadline for the state to close the deal, and the state should stop trying to put pressure on the court for a quick decision. The lease is a complicated document that was creatively designed and sold to the legislature, and it will affect all Hoosiers for a long time to come. The court’s job is to run all those details by the state constitution, and no one should want it to do a shoddy job.

Yes, the consortium has the option of backing out of the deal if litigation is still pending on June 30. But if this deal is as good as everybody keeps saying it is, the company will not be in a hurry to opt out. If it does, maybe we should have second thoughts, too.

Discussion of the possible outcome of the case opened Indiana Week in Review last evening. There was talk of a 2-2 split, but the consensus seemed to be that the Court would decide all the issues, paying special attention to questions concerning special legislation and legislative log-rolling.* (I'll rewatch the program Sunday at noon when it re-airs to check my observations. The show will also be available online beginning Monday.)

How much stock to put in the pundits' observations? Here is the ILB entry from Jan. 23, 2006, reporting that the talking heads on that week's edition of Indiana Week in Review had dismissed the importance of the legislative "health-care for life" issue, when the issue was already on many radar screens.

(Interestingly, on this Friday's show, former House speaker John Gregg sat in for regular demo party representative Ann Delaney. As the same Jan. 23, 2006 ILB entry reports, it was Gregg, along with Pro tem Bob Garton and LSA Director Phil Sachtleben, who conceived the taxpayer-funded life-time supplement for "retired" legislators, their families and staff several years back and all are now eligible to benefit from the plan, for life.)
*Legislative log-logging was the subject of my 29-page 2001 Res Gestae article, "Enforcing Indiana's Constitutional Requirement that Laws be Limited to One Subject," 44 Res Gestae 9. The article began with a quote from Logrolling: how bad laws get passed, the lead editorial in the Indianapolis Star, Sunday, January 7, 2001:

For years now, Indiana lawmakers have blithely ignored a section of the Indiana Constitution that bluntly mandates that every bill passed into law be “confined to one subject.”

Despite this admonition lawmakers passed a bill in 1991 that combined hold-your-nose legislative redistricting with the school funding formula, a bill that absolutely had to be passed. That’s how Indiana got such heavily gerrymandered districts that favor Democrats in the House and Republicans in the Senate.

In 1993, lawmakers again used the budget and school funding formula to pass a riverboat gambling that would never have passed on its own merits. And in 1995, Republican lawmakers rammed through a repeal of the state’s prevailing wage law by stuffing it into a bill cutting auto excise taxes. It was a hard-to-swallow sandwich for many lawmakers, but they didn’t have much choice. Who wants to vote against a tax cut?

The constitutionality of these efforts has often been challenged in lawsuits, but the Indiana Supreme Court has been reluctant to strike down laws solely because they originated in multi-subject bills.

. . . [L]ogrolling has reached such outrageous levels that lawmakers might as well just stuff everything they do into one giant bill each session and send the entire mess to the governor in a wheelbarrow with a take-it-or-leave-it note.

Then on to the article itself:
Legislative logrolling involves combining together into one bill several unrelated proposals, in order to accumulate the requisite number of votes for the combined measure to pass. This practice may occur during the initial drafting of the bill, or at any point after introduction. A subset of logrolling involves the addition of an unrelated rider to an essential piece of legislation, such as a budget or appropriations bill, generally in the last days of a legislative session, so that it may “ride” to approval.
The primary and universally recognized purpose of the one-subject rule is to prevent log-rolling in the enactment of laws — the practice of several minorities combining their several proposals as different provisions of a single bill and thus consolidating their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal of each minority could have obtained majority approval separately.

Another stated purpose of the provision is to prevent “riders” from being attached to bills that are popular and so certain of adoption that the rider will secure adoption not on its own merits, but on the merits of the measure to which it is attached. This stratagem seems to be but a variation of log-rolling.2

A law containing more than one subject would appear to be prohibited by the Indiana Constitution. But the last time the Supreme Court of Indiana used the one subject matter limitation to invalidate a law was thirty years ago, in 1971. Although a number of legislative acts have been challenged on the same basis since 1971, including those described above in the Indianapolis Star editorial, none has been held by the Court to violate the one subject matter prohibition.

The direction the Court has taken in recent years is one of reluctance to intervene in the activities of a co-equal branch of government. But is judicial deference the proper response? This paper attempts to answer that question by first examining the genesis of the current constitutional requirement. Although the one subject limitation contained in Article 4, section 19 has been a part of the Indiana Constitution since 1851, there have been three different versions of Article 4, section 19 during that period. Interpretations of Article 4, section 19 by the Indiana Supreme Court led to two constitutional amendments to that provision in the twentieth century, in 1960 and in 1974.

Next, this paper examines the Court’s decisions interpreting the 1851 and 1960 versions of the one subject matter limitation. These versions required that an act shall contain but one subject, “which shall be expressed in its title.” The “title-body” test the Court applied in many of its holdings involved a parsing of the title of the act to determine whether it was broad enough to encompass all the provisions of the act itself.

Third, this paper examines the Court’s decisions since 1974. Although the requirement that the subject of the act be expressed in its title no longer exists in the current version of Article 4, section 19, this paper finds that initially the post-1974 Court holdings continued to rely on the title-body reasoning of earlier decisions. More recently, the Court has adopted the position that the one subject matter limitation is one that the General Assembly itself must police.

Finally, this paper looks at the ramifications of the current Court’s “hands-off” position, concluding that this position of judicial deference to a co-equal branch of government may unfavorably impact both the executive branch and the judiciary itself.

Posted by Marcia Oddi on Saturday, June 17, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Judge dismisses suit by fans over Michelin boycott

AP Sports writer Steve Herman reports:

A federal judge dismissed a class-action lawsuit against Formula One, French tiremaker Michelin and the Indianapolis Motor Speedway by fans upset with the boycott of the U.S. Grand Prix by seven race teams last year.

U.S. District Judge Sarah Evans Barker ruled the fans had no basis to sue and likened their claim for damages to fans suing because of a "blown call" by officials in other sports. A lawyer for the plaintiffs said Friday the decision would be appealed to the 7th U.S. Circuit Court of Appeals in Chicago.

"It's to be assumed that the Michelin teams made the decision they believed to be in their best competitive and professional interests, and in doing so, they owed no legal duty to let the preferences of the spectators trump their own good judgment," Barker wrote in a 12-page ruling signed Thursday. * * *

Indianapolis attorney Henry J. Price said an appeal would be filed next week in Chicago.

"We are very disappointed, of course," he said. "We believe ... they did not comply with their contract and did not comply with their advertising and did not comply with their contract under the ticket and therefore we were entitled to recover for breach of contract.

"There are fact questions inherent in that that should have been left for resolution by the jury," Price said. * * *

[Judge Barker] said the teams' nonparticipation could be compared with star football players being suspended from bowl games or NBA players being benched, even though fans bought tickets expecting to see them.

"The power to make those decisions is the implicit - perhaps even explicit - risk that sports fans assume when they buy a ticket of admission to a sporting event," Barker wrote.

Price called Barker's comparison "erroneous" and that a blown call or the fact a star doesn't play is a nonmaterial breach.

"A more apt comparison would be if the Yankees showed up with three players on the diamond rather than nine ... or if the Pacers showed up with one player on the court rather than five. That's a material breach. It's not something that could be anticipated by the sports fan," he said.

The ILB expects to post a copy of the 12-page here, shortly.

Posted by Marcia Oddi on Saturday, June 17, 2006
Posted to Ind Fed D.Ct. Decisions

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

"FSSA outsourcing plan to get more review" is the headline to an AP story by Mike Smith that reports:

INDIANAPOLIS (AP) -- Gov. Mitch Daniels has given a review team more time to consider plans by the state's social services agency to outsource the application process for food stamps and other welfare benefits, his office announced Friday.

The Family and Social Services Administration has been considering plans to award a contract to a private vendor to handle the application process for food stamps, Medicaid and other government safety-net programs. Two groups of companies have participated in the bidding for the contract, estimated to be worth about $1 billion over 10 years.

FSSA had previously been looking at a timetable of completing negotiations with a winning vendor later this month.

Daniels appointed an interagency team in mid-May to review the welfare delivery system and the two responses that FSSA received to its request for proposals to privatize the application process. The governor originally asked the group to conclude its review by mid-June, but now has given it more time. * * *

Earl Goode, Daniels' deputy chief of staff and chairman of the interagency review team, said it has analyzed enough information to agree that Indiana must modernize its welfare system and that broad solutions proposed by FSSA were sound. But he said the team has not yet concluded how to accomplish that.

Goode said the team has identified some questions and tactical issues it wants to examine further before it makes a recommendation to Daniels about a specific agreement with a vendor to handle the eligibility process. He said the team would continue its efforts until it has either negotiated a proposed agreement for Daniels' review or prepared an alternative recommendation.

The two teams of vendors, one led by IBM and the other by Bermuda-based Accenture LLP, were to have submitted their final responses to FSSA by May 9. The IBM team includes Affiliated Computer Services Inc. of Dallas, which employed Roob as a vice president before he joined the Daniels administration last year.

For background, start with this June 3rd ILB entry.

Posted by Marcia Oddi on Saturday, June 17, 2006
Posted to Indiana Government

Friday, June 16, 2006

Ind. Courts - Recount in Franklin County Republican judge's race

WRBI Country 103.9, serving southeastern Indiana, is reporting:

A recount in the Franklin County Republican judge's race has been set for 8 a.m. Friday, but a controversy has developed over whether there's been undue influence in selecting recount commission members.

Incumbent Republican Judge Steven Cox defeated Deputy Prosecutor Troy Werner by 20 votes in the May 2 primary.

Werner asked for a hand recount of the ballots in all 24 precincts. The recount will be held at St. Michael’s School. Werner posted a $135 bond Tuesday, making the total $375. His watcher will be Jean Leising. Steve Cox has appointed James Cox as his observer. The recount commission members are Jeff Cargill, Democrat David Merl and Nick Fankhouse of Union County. Yesterday’s status hearing was brief and no witnesses were allowed to be called. The judge ordered that neither candidate can contact any commission members.

[Update 6/17/06] Here is more from today's Richmond Palladium-Item. It begins:

BROOKVILLE, Ind. -- The Franklin County Recount Commission was to resume counting ballots in the Republican judge's race at 6:30 a.m. today.

The three-man commission began work at 8 a.m. Friday, but by 4 p.m. only four of the county's 24 precincts had been hand counted. The commission planned to work until 10 p.m. Friday, then ballot bags and election equipment were to be loaded onto and locked inside an Indiana State Police trailer and taken home by a trooper for security.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to Indiana Courts

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

Updating this May 13th entry on the confusion resulting from the Supreme Court's decision in Nagy, et al. v. Evansville-Vanderburgh School Corporation and its possible impact on full-day kindergarten, the Indianapolis Star today has a story by Staci Hupp reporting:

State education officials think they have a way to protect Indiana schools from lawsuits so they can continue offering full-day kindergarten for a fee.

The Indiana Board of Education has changed state policy to declare that full-day kindergarten goes beyond basic educational requirements. That means charging a fee would not violate a recent state Supreme Court ruling that schools can't charge for programs considered part of a free public education.

"It's saying that school corporations can continue with their previous practices," said Michael Pettibone, a State Board of Education member who is superintendent of Adams Central schools in Monroe. "This resolution is saying . . . 'If your community supports it, we're all for it.' "

The change is the result of a Supreme Court ruling in March on school fees. That decision overturned a $20 fee at Evansville-Vanderburgh Schools that was intended to offset a school budget deficit.

But the attorney to Suellen Reed, the state superintendent of public instruction, warned superintendents last month that the high court's ruling could also apply to paid full-day kindergarten programs and leave schools vulnerable to lawsuits. So far, no one has sued.

The Supreme Court decision put in jeopardy thousands of dollars a year that school administrators count on from full-day kindergarten fees. It also nearly cut access for thousands of families to popular full-day kindergarten programs, which supporters say give children a critical head start in school.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to Ind. Sup.Ct. Decisions

Law - IU Law Prof. Tanford takes wine shipping issues to California

Here are some quotes from a story yesterday in the San Franscisco Chronicle:

California residents may be able to order wine from retail stores around the country if several lawsuits filed in the state are successful. * * *

According to J. Alexander Tanford, a law professor at Indiana University, parties in the Los Angeles case have already presented a judge with alternative proposals for dealing with the issue.

"I gather that the California attorney general has already conceded that California's law is unconstitutional under Granholm (the May 2005 Supreme Court decision on direct shipping) because it allows in-state retailers to ship but not out of state," Tanford said. "As usual, the fight is over what to do about it."

Unlike the other California complaints, the case filed in Los Angeles challenges laws preventing citizens in other states from sending wine into California.

Tanford said he and Indianapolis attorney Robert Epstein, who together filed the suit in Michigan that led to the Supreme Court's ruling, are continuing to look at wine shipping laws that states have enacted in their most recent legislative sessions. Some have created yearly production limits on eligibility for direct sales -- limits that typically happen to be just a bit higher than the capacity of the largest in-state winery, Tanford says.

Some states have also limited shipping of wine to on-site purchases. Tanford pointed out that the only wineries "on-site" in a given state will be local wineries.

"There are 20 other states with case limits, production limits, on-site sales limits, or ridiculously high fees for situations that will have the practical effect of continuing to keep most out-of-state wineries out of the market," said Tanford. "We are looking through the laws of those states, and there will be litigation in some of them," he said.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to General Law Related

Ind. Decisions - More on: Bystanders can sue police over chases

The Fort Wayne News-Sentinel has an editorial today on the Supreme Court's rulings earlier this week (see ILB entries here and here) that bystanders can sue over police chases. It begins:

Police have to be able to pursue fleeing suspects; otherwise they aren’t doing their jobs, and public safety will not be served. But they are obligated to do it with care, lest they needlessly endanger those they are sworn to protect.

That’s the commonsense result of a decision Wednesday by the Indiana Supreme Court, which ruled unanimously that bystanders injured in high-speed chases can sue police for damages and need show only that police were negligent. Justices said public safety officers have “a duty of driving with reasonable care” when chasing suspects or responding to crime reports.

The ruling was based on two cases. In one from Indianapolis, a driver fleeing police hit the car of Richard Garman, who has had medical bills exceeding $300,000 and whose fiancée was killed in the crash. In the other case, from Gary, it was actually the police officer in the chase who hit a bystander.

It has been difficult for Indiana police to know what their liability is, since there has been conflict between state law and court rulings. There are also contradictory state laws. One confers immunity on the law enforcement community. But another says emergency vehicles must be operated with “due regard” for people’s safety.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending June 16, 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 June 16, 2006.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending June 16, 2006

Here is the Indiana Supreme Court's transfer list for the week ending June 16, 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, June 16, 2006
Posted to Indiana Transfer Lists

Ind. Courts - Jury duty no shows had explaining to do

The Munster (NW Indiana) Times reports today, in a story by Ruthann Robinson, that begins:

CROWN POINT | Some got off with a warning; others had to fork over cash.

A three-judge tribunal heard excuses Thursday of why some Lake County residents called for jury duty in the capital murder trial of Darryl Jeter didn't appear as summoned.

One by one, they walked up to the bench and told Senior Lake Criminal Court Judge Salvador Vasquez, Judge Thomas P. Stefaniak Jr. and Chief Lake Superior Court Judge John J. Pera why they didn't show up for the May trial.

Out of 24 people told to come to court for Thursday's hearing, five failed to appear. Court Administrator Martin Goldman will mail out a second notice with a return receipt for those five to appear on Aug. 2. The rules state a person can't be found in contempt of court on such an issue unless the judge can prove the person was served notice.

If those five don't report on Aug. 2 as told, they face up to three days in jail and a $100 fine.

Of the 24 who talked to the judges Thursday, six were fined $50, to be paid by June 23. Their names will be put back into the pool and they could be called again for jury duty within the year. Five more were told their names would be put back into the pool, but they weren't fined.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides seven today

In State of Indiana, ex rel. Willard Library v. Evansville-Vanderburgh Public Library, a 16-page opinion (J. Sullivan concurrance starts on p. 13), Judge Baker writes:

Willard Library (Willard) appeals from the trial court’s order granting appellant-defendant Evansville-Vanderburgh Public Library’s (EVPL) motion to dismiss Willard’s complaint. In particular, Willard argues that the trial court erred in interpreting Indiana Code section 36-12-7-8 to mean that EVPL has the authority to calculate the amount of tax necessary to support Willard’s budget. Additionally, Willard argues that even if EVPL has such authority, its action in fixing Willard’s budget, tax rate, and tax levy was arbitrary, capricious, unreasonable, and contrary to Indiana law because it failed to publish and hold a public hearing on the budget it intended to pass. Concluding that the legislature did not intend EVPL’s authority to levy the tax to be a purely ministerial function, and finding no other error, we affirm the judgment of the trial court. * * *

MAY, J., concurs.
SULLIVAN, J., concurs with opinion. * * * In summary, it is my conclusion that EVPL does not have the discretionary authority to alter the budget submitted; neither is it required to approve whatever budget is proposed by Willard. It must, however, fix a tax levy rate thereby requiring Willard to conform its budget to the funds available from tax and other sources.

In Marshall & Ilsley Trust Company, N.A., Trustee, Robert G. Woodward, Jr., Life Insurance Trust No. 1 v. Robert G. Woodward, Sr., a 16-page opinion, Judge May concludes:
We agree with the trial court’s conclusion Woodward is entitled to an accounting. Trustee’s legitimate cost and privacy concerns,18 however, persuade us to limit the right of an accounting to those remote contingent beneficiaries who are named in the trust document. Woodward is named as a contingent beneficiary in the Trust document and qualifies as remainder beneficiary under the statute. He is therefore entitled to an accounting of the Trust. Affirmed.
Wilcox Lumber v. The Andersons Inc. - damages issue, affirmed.

Maurice D. Fuller v. Christopher Meloy, et al. - appeal of the trial court’s denial of additional credit time toward sentences, affirmed.

In State of Indiana v. Patrick Litchfield and Susan May Litchfield, an 8-page opinion, CJ Kirsch writes:

Following remand, the State appeals the trial court’s grant of Patrick and Susan May Litchfield’s motion to suppress evidence, which effectively precluded the Litchfields’ prosecution for possession of marijuana as a Class D felony, and maintaining a common nuisance, a Class D felony. The State raises the following issue: whether the trial court erred in finding that the State did not have an articulable individualized suspicion of criminal activity prior to seizing and searching the Litchfields’ trash. * * *

Like an anonymous tip, the information relied on in the present case—that the Litchfields had received shipments from Worm’s Way—required corroboration of criminal activity by a police officer’s own observation. Worm’s Way is a garden supply company that sells tools and materials that can be used to grow all kinds of crops—legal and illegal. [my emphasis] While the ISP listed the steps it took to make its list of potential growers more reliable, the State failed to assert that any of these steps were taken in connection with the Litchfields’ property. The police did not observe the Litchfield home for excessive air conditioning or ventilation, did not observe whether window coverings hid excessive lighting, did not investigate the Litchfields’ utility usage, and did not investigate the Litchfields’ criminal histories.

While we appreciate the hard work of the ISP in creating a list of potential growers, and understand the difficulty that law enforcement faces in ferreting out marijuana growers, we must agree with the Litchfields that here, where the list served only as an anonymous tip, the police did not have articulable individualized suspicion to seize and search the Litchfields’ trash. Finding no evidence to lead us to a conclusion opposite that of the trial court, we affirm.

In Title Services, LLC v. Martha Womacks as Marion County Auditor, a 10-page opinion, Judge May writes:
Title Services, LLC appeals the dismissal for lack of subject matter jurisdiction of its action against Martha Womacks as Auditor of Marion County (“the Auditor”). Title Services raises two related issues, which we consolidate and restate as whether Title Services was required to exhaust administrative remedies under Ind. Code ch. 6-1.1-15 before filing suit in Marion Superior Court for the refund of overpaid property taxes. * * *

Because the legislature has provided an exclusive administrative remedy for challenges to property tax assessments and that administrative remedy is adequate, the trial court properly concluded it lacked subject matter jurisdiction. We affirm.

In Janet S. Logan v. Robert E. Royer, a 10-page opinion (concurring starts on p. 8), Judge May writes:
Janet Logan appeals summary judgment in favor of her brother Robert Royer in her petition to contest the will of their father, Carl Royer (“Father”). She raises three issues, one of which we find dispositive: Whether the trial court abused its discretion by altering the time limit for Logan’s response to Royer’s motion for summary judgment. We reverse and remand.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov. - Public or private records? Wayne County’s Economic Development Corporation (EDC)

E. Thomas Kemp of Kemplog has just posted an interesting entry about a dispute in Wayne County about whether the records of its economic development commission are public or private. The state Public Access Counselor says they are public. The County says she is wrong. Here is the Richmond Pal-Item story. And here is a quote:

But Indiana Public Access Counselor Karen Davis said the EDC is a public agency since it has been required to file an annual audit by the State Board of Accounts.

"If the state board of accounts has made that determination then they are subject to the open door law and open records law," she said.

The board of accounts in a letter dated March 8, said that based on "information presented, your organization is subject to a complete organization-wide audit performed in accordance with guidelines issued by our department."

The informal opinion has not yet been posted, but should be availble here within a few days.

Deja vu? A similar issue arose in Gary last year - see this ILB entry. The informal opinion from 3/31/05 is available here.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to Indiana Government

Law - Kentucky Supreme Court rules in a same-sex adoption case

Andrew Wolfson of the Louisville Courier Journal has a story today headlined "Lesbian loses in custody case: Couple split after both had cared for child." The facts are:

[Brenda] Fawbush, then a bartender, and [Teresa] Davis, a social worker, met about 11 years ago and decided two years later they wanted to raise a child together, according to court records.

When their attempts to conceive through artificial insemination failed, they decided to adopt, but only one could sign the adoption papers under Kentucky law.

Although Davis signed the papers, the couple paid for the adoption from a joint account and agreed they would both be her parents. They lived together as a two-parent family; the girl called Davis "Mommy" and Fawbush "Nina" -- for mother.

More from the story:
But the lesbian couple underwent a bitter split three years ago. Davis, who had adopted the girl because of legal questions about whether gay couples can jointly adopt in Kentucky, took her and wouldn't let Fawbush see her.

Fawbush sued for visitation and custody rights, claiming she had served as the girl's parent. But yesterday the Kentucky Supreme Court unanimously sided with Davis, delivering a blow to the rights of joint caregivers, including gay parents.

The 7-0 decision written by Chief Justice Joseph Lambert held that Fawbush did not qualify as the child's "de facto custodian" because she was not the primary caregiver, despite "participating substantially in the support and rearing of a child for a significant period of time."

Fawbush's Louisville lawyer, Bryan Gatewood, said the court had "missed a great opportunity to affirm that children should be raised by both parents who love them."

Diana Skaggs of the Kentucky Divorce Law Journal has much more about this case and will also post the opinion shortly.

Posted by Marcia Oddi on Friday, June 16, 2006
Posted to General Law Related

Thursday, June 15, 2006

Ind. Decisions - This completes the set of briefs in the toll road case

This complete the set of briefs. The ILB is pleased to be able to post the second amicus brief, that of the Indiana Association of Cities and Towns (IACT), in the toll road suit, Bonney v. IFA. This makes a total of five briefs -- access the others via this ILB entry (Prof. Tanford brief), here are the entires containing appellees' briefs, and here is the entry linking to the appellants' brief.

A sample from the IACT brief. The IACT brief argues at pp. 8 and 9 that in the interests of "finality" "governments must be able to move on with their projects and programs in an expedited fashion because indeed, once the public has spoken, actions must be undertaken promptly to save the general public money and implement governmental policies." It states that it is "common for appointed municipal bodies created by statute to take action after hearing from municipal residents, just as the IFA, also a creature of statute, took action after a public hearing in the instant situation." The brief also cites the doctrine of laches as playing a part here.

The brief continues: "The notion that every legislative action can be subject to scrutiny by individual citizens with the wherewithal to finance a lawsuit is inconsistent with the premises on which our system of government is founded." Instead, the ultimate remedy is the ballot box. "If the Appellants in this case believe that Major Moves is unwise or is otherwise flawed, their opportunity for redress is in the next legislative and gubernatorial elections, not by asking our judiciary to substitute its judgment for that of the legislature."


Prior ILB entries on the toll road issue. Click here for a list of all previous ILB entries referencing the toll road.

Washington Post story. Here is a link to yesterday's Post story, headlined "Strapped States Try New Route, Lease Toll Roads to Foreign Firms." Here is how the article concludes:

The proposal stirred up one of the biggest fights the Indiana legislature had ever seen, with rallies and expensive media campaigns on both sides, and the governor unable to change minds at jammed town hall meetings in communities along the toll road where opposition was most fierce.

"Never in my legislative career will I ever again be faced with a [bill] quite like this," said the chief sponsor, state Rep. Randy Borror (R) of Fort Wayne, who walked the statehouse with thick notebooks filled with figures showing how much transportation money each legislator's district would get from the plan.

The winning bidders were Macquarie Infrastructure Group of Sydney, the same firm that controls the Dulles Greenway, and Cintra Concesiones de Infrastructures de Transporte S.A. of Madrid. Under the lease, the companies got the right to raise tolls -- which have not been increased in two decades -- for cars and trucks right away, and eventually to keep pace annually with inflation. The 103-page lease spells out the companies' responsibilities in meticulous detail, including clearing snow and road kill within specified times, and granting state police the right to patrol.

Steve Allen, Macquarie's chief executive, said the company, which operates toll roads in nine countries, has an incentive to improve the highways to attract more drivers. Since it took over the Chicago Skyway, he said, the company has built electronic toll booths sooner than required and made lane changes that reduce backups.

Indiana legislators were not reassured. Daniels and his allies made big compromises: extra money for each county along the toll road, a postponement of higher rates for cars until electronic tolls are installed, job-training money for economically depressed Gary. Even so, the plan passed the state House by one vote.

Three months after the legislation squeaked through, feelings remain raw.

"The whole thing stinks," said state Rep. B. Patrick Bauer, the House Democratic leader. The two companies, he said, "got a heck of an unbelievable deal. We got a bad deal."

Daniels's approval ratings have plummeted, from about 50 percent early last winter to 37 percent in the most recent polls. Borror said the issue "complicates the election" for state legislators in November.

"There are going to be a lot of states that fail at this," Borror said, "because they underestimate the amount of work it takes to get this bill passed." Even so, Daniels said, "I don't believe we'll ever [again] be able to do any one thing that will be as transformative and positive for the future of this state."

A shortened version of the Post story appears in today's Sidney Morning Herald.

Posted by Marcia Oddi on Thursday, June 15, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues two today

In Michael C. Armstrong v. State of Indiana, an 8-page opinion, Justice Rucker writes:

We hold today that a driver of a vehicle who leaves the scene of an accident resulting in injury or death may be held criminally responsible even if the driver’s vehicle did not strike the injured or deceased party. * * *

Considering the wording of the statute along with this Court’s assessment of the statute’s predecessor, Armstrong had fair warning that his conduct—failing to stop after an accident resulting in death—was criminal. Therefore the Due Process Clause of the Fifth Amendment does not bar Armstrong’s prosecution for this offense. We affirm the judgment of the trial court.

In Alfred G. Nelson v. State of Indiana, a 3-page opinion, Justice Rucker writes:

[Nelson's] argument was premised upon Honeycutt v. State, 760 N.E.2d 648 (Ind. Ct. App. 2001), a case in which a panel of the Court of Appeals declared that “the legislature limits the scope of [Indiana Code section 9-26-1-1] to incidents involving a vehicle striking something that causes injury to someone, or a vehicle striking a person and causing injury.” Id. at 651. Because there was no evidence that the victim in that case had been struck by the defendant’s vehicle, the court reversed the defendant’s conviction, declaring that Indiana Code section 9-26-1-1 did not apply. The Court of Appeals in this case declined to follow Honeycutt. Instead the court relied upon Armstrong v. State, 818 N.E.2d 93 (Ind. Ct. App. 2004), in which a different panel of the Court of Appeals also declined to follow Honeycutt. * * *

In an opinion handed down today, we adopted that portion of Armstrong interpreting Indiana Code section 9-26-1-1. Armstrong v. State, No. 26S05-0606-CR-212, slip op. at 5, ___N.E.2d___, ___, (Ind. June 15, 2006). In doing so we “disapprove the contrary interpretation of the statute announced in Honeycutt.” Id. However, we disagreed with our colleagues [on the Court of Appeals] on the question of retroactivity. We held instead that “the central question to be asked in deciding whether retroactive application of a judicial decision violates due process is whether the defendant had fair warning that his conduct was criminal at the time he engaged in it.” Id., slip op. at 7. Based on the wording of the statute along with this Court’s assessment of the statute’s predecessor we concluded that, “Armstrong had fair warning that his conduct—failing to stop after an accident resulting in death—was criminal.” Id., slip op. at 8. We reach the same conclusion here. The Due Process Clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, did not bar Nelson’s prosecution for this offense. We now grant transfer and affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, June 15, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals decides one today

Scott D. Wells v. State of Indiana looks to be an interesting case if you live in Bloomington. The Opinion is 28 pages long and includes a dissent beginning on p. 26. Judge Barnes introduces the case thusly:

The following facts reflect the evidence in a light most favorable to the convictions. In 2002, Wells was a Bloomington city councilman. Bud and Amy Bernitt, as well as their acquaintance, Indiana State Police Sergeant J.D. Maxwell, also were involved in local politics, but at the other end of the political spectrum from Wells. On September 27, 2002, Bud called Sergeant Maxwell at his home to inform him that he believed Wells was driving a vehicle while intoxicated. Bud reported that he had seen Wells leave the Crazy Horse bar in Bloomington, then drive erratically to the corner of Sixth and Dunn Streets, where Wells exited his car and urinated in the street.
The summary and issues in the case:
Scott Wells appeals his convictions for Class C misdemeanor operating a vehicle while intoxicated (“OWI”) and Class B misdemeanor disorderly conduct. We affirm.

We restate and reorder the issues before us as: I. whether the jury venire represented a fair cross-section of the community of Monroe County; II. whether the trial court properly denied Wells’s motion for a continuance; III. whether the State committed prosecutorial misconduct during closing argument; IV. whether the statutes defining the offense of OWI are void for vagueness; and V. whether Wells’s disorderly conduct conviction violates his right to free speech under Article 1, Section 9 of the Indiana Constitution.

[Update at 3:50 p.m.] A reader has sent this note re today's opinion:
He was a Monroe County Council member, not a Bloomingotn City Council member. I don't think Wells even lives in the city. I am both shocked and stunned that the appeals court made that error - I thought it was common knowledge.

Posted by Marcia Oddi on Thursday, June 15, 2006
Posted to Ind. App.Ct. Decisions

Law - Google Launches Government Search Site

A story in today's Washington Post reports that Google:

plans to announce a new online product aimed at being a one-stop shop for searching federal government Web sites. The launch of Google U.S. Government Search, http://usgov.google.com , targets federal employees who often need to search across several government agencies.

The site is also designed to help citizens navigate convoluted pages of government-speak and tailors news feeds to their interests. Users can customize the layout of their page to remain updated on government-related news from official and commercial sources, including the White House, Department of Defense, The Washington Post and CNN. Google is also working with agencies to increase the frequency of news updates to keep content current. * * *

The government search site joins similar engines that target the same audience. The five-year-old FirstGov.gov, a government-sponsored site powered by Microsoft Corp.'s MSN, is geared to help citizens locate federal, state and local information without sifting through individual agency sites.

Other similar search engines include http://govspot.com , http://searchgov.com and http://govengine.com .

Gough said he expects Google's product to "complement" FirstGov without directly competing with it.

Posted by Marcia Oddi on Thursday, June 15, 2006
Posted to General Law Related

Ind. Decisions - Bystanders can sue police over chases

Kevin Corcoran writes today in the Indianapolis Star on two of yesterday's ruling from the Indiana Supreme Court:

The Indiana Supreme Court removed all doubt Wednesday: Bystanders injured in high-speed police pursuits can sue police for damages.

In a unanimous decision, the high court's rulings in cases from Indianapolis and Gary rejected claims by government attorneys that law enforcement immunity prohibits nearly all personal-injury lawsuits arising from police chases.

Government attorneys had asserted that before plaintiffs could sue, they had to show police had broken the law or acted with criminal intent when engaging in pursuits or responding to crime reports.

The court reiterated that plaintiffs only need to show police were negligent. Justices said public safety officers owe "a duty of driving with reasonable care" when chasing suspects or responding to crime reports.

Justice Brent Dickson, writing for the court, said bystanders have been able to sue since 1993 as a result of another lawsuit involving the Indianapolis Police Department. He also wrote that a Supreme Court case seven years ago did not reverse that ruling, as government attorneys argued.

Attorneys for the government had said conflicts between state law and court rulings had created an atmosphere of uncertainty surrounding chase lawsuits.
Under state law, government workers cannot be held liable for losses resulting from activities related to their jobs. But the Supreme Court reiterated Wednesday that police negligence opens the door to lawsuits.
he justices upheld Marion Superior Court Judge David J. Dreyer's decision last year to reject claims by attorneys for Indianapolis that officers involved in a 50-second chase in 1999 were not liable for a bystander's injuries because the law prohibited chase-related lawsuits. * * *

The outcome of the Indianapolis court case now hinges on whether the evidence shows police were negligent. City and police officials had hoped the court would dismiss the personal-injury lawsuit, which was filed by Richard Garman, 28, a former Indianapolis resident. A driver fleeing police hit Garman's car during a chase that reached 80 mph.

The Indianapolis case is City of Indianapolis and Indianapolis Police Department v. Richard Garman, the Gary case is Jeffrey Patrick, City of Gary & City of Gary Police Department v. Richard Miresso. Access yesterday's ILB entry here.

See earlier ILB entries on these decisions here (8/25/05) and here (2/19/06).

Posted by Marcia Oddi on Thursday, June 15, 2006
Posted to Ind. Sup.Ct. Decisions

Wednesday, June 14, 2006

Ind. Law - Part II of: Should the General Assembly make the law available to the citizens of the State?

[Note: Access Part I here.]

Making the Online Versions the "Official Versions" is a Very Bad Idea

I have been told that the LSA plans to make the online versions of the Indiana Register, Indiana Administrative Code, and the Indiana Code, the "official versions" of the Indiana rules and statutes.

Out-of-Date? Given the current state of the LSA's online efforts, that news is frightening indeed. As I wrote in this entry last week:

The printed version of the IAC, when it was available, came out annually. The online version of the IAC is updated monthly and thus is always current.

Or at least it has been in the past. Today I was reviewing some water rules and discovered that the rules I was looking at, in 327 IAC 8, do not include amendments that I know took effect May 23, 2006.

Then I looked back to the main page and read that the entire online IAC was last updated "April 26th, 2006"! [Note: Today (6/13/06) which I looked again to check to see if this was still true, I could find no "last updated" information, which is of course even worse.]

When a number of us at the LSA meeting last month, run by Phil Sachtleben, executive director of the Legislative Services Agency, complained about the cutbacks the General Assembly was making in the services it has traditionally provided to the public involving access to the statute law and rules, and how those changes were damaging the historical record, he said: "Aren't there private publishers doing this?"

The clear implication was -- this is not our responsibility. Sachtleben, BTW, is reportedly leaving the LSA for a lobbying job with Ball State shortly.

Retention Issues. With printed sets of rules and statutes, librarians (and knowledgable attorneys) retain the old volumes when new editions or replacement volumes come out. Why do this? Because how else will you know, in 6 months or 50 years, what the repealed or prior version of a rule or statute was?

This is important with environmental permits, which incorporate by reference the rules and statutes in existance at the time they were issued. This is important with insurance policies. This is absolutely essential when you are reading caselaw and need to know what the statute referenced said at the time of the decision, or when you are reading a case construing a section of the Indiana Constitution and need a copy of the version of that constitutional section then in effect.

All this history is lost when each year the LSA takes down the last year's version of the Indiana Code and all you have to look at is the current online version. Where do you go to look for the old version? And where will you go in 6 months, or 50 years?

At the two public meetings LSA director Phil Sachtleben held on the changes being made to the Indiana Register, people tried to explain these concerns. He said that the Register change was saving a lot of money and that it was not the responsibility of the legislature to make sure these items remained available. Weren't there private publishers we could go to, he asked. Again.

When asked "What do we do when we need to find a replaced version of a rule," Sachtleben responded, "You look at its history line and go and pull the old version off the shelf." The response was "That is easy for you to say, you live in the LSA where you still have printed volumes you can access."

Error-ridden? At the second meeting, which I could not attend, I hear that people told him they didn't trust the online versions. The told him to look at online at IC 34-8, the rules of civil procedure, and he would see what the "official law" looked like, that it was full of printing codes, which caused concern to people relying on it. Here is an example:

&DNM.IC 34-8
&DNM.IC 34-8-1
Chapter 1. Authority of Courts to Adopt Rules of Procedure
&DNM.IC 34-8-1-1
Purpose of chapter
IC 34-8-1-1 Sec. 1. The purpose of this chapter is to enable the supreme court to:
(1) simplify and abbreviate the pleadings and proceedings;
(2) expedite the decision of causes;
(3) remedy abuses and imperfections that exist in the practice;
(4) abolish unnecessary forms and technicalities in pleading and practice; and
(5) abolish fictions and unnecessary process and proceedings.
&HST.As added by P.L.1-1998, SEC.3.&EHST.
Sachtleben reportedly was astonished. But a month later, the errors remain.

As is evident from the example of the printing codes, little care goes into the public online version of the Code. The LSA staff has its own online system for bill drafting and research. On the public system, items appear and disappear, links are broken, links lead to nothing (try looking at the Journals).

Note: One thing that it done well is the public bill system, allowing users to access legislation as it goes through the session, along with committee reports, etc. I have nothing but praise for this part of the system. It is good, I think, because it is intensively used during the session by people who know who to talk to if they run into problems. (Although even here I have suggestions - like why should it be necessary to continually reference tables going back and forth between enrolled act and public law numbers?)

Indiana Code and IAC have no expanatory materials. A printed copy of the Indiana Code tells you right up front the date it is current through. Plus it has introductory material telling you, for example in the case of the Code, that the headnotes are not to be considered part of the law. The online version of the Indiana Code does not contain any of the preliminary, explanatory material the printed publication did. It does not say "These documents are current through ___." It does not explain the significant of headnotes and history lines.

This can confuse even the most sophisticated user. Take a look at this ILB entry commenting on a Court of Appeals opinion from earlier this year, where the judge's opinion interprets a headnote in "the official version of I.C. § 24-4.5-7-409 on www.in.gov."

What to do? Many things could be done to provide better service to the public users of the Indiana Code. One big one would be to keep it current. There seems no reason why the language of the online Indiana Code could not be revised as the new laws take effect each year. Laws taking effect July 1 should be incorporated into the online Indiana Code on that date (and the prior version preserved). At a minimum, immediately after the end of each session, notations should be posted preceding each section amended or repealed, indicating that a change has been made and referencing the enrolled act. The same for totally new material.

Further, it would be a simple thing to maintain the replaced version of the Indiana Code online each year. This should be done now, going back as far as LSA has files for, which should be quite a number of years. In addition, the Acts of Indiana should be posted online. All the Acts.

Security should be an issue, particularly with the unsettling talk of making the online version the "official" version. With a printed volume of the Acts of Indiana, or the Indiana Code, what is on a page will stay the same, forever. You do not have to worry that a page in the Acts of 1941 has been changed, inadvertently or intentionally. You can not say the same about the current online documents. It is hard to see how a court could take judicial notice of such material.

Making the Law Available and Accessible to the Citizens of Indiana. At some point over the past decade, the General Assembly and its staff agency moved into the position that it was not their responsibility to maintain the laws of the State and to make those laws available and accessible to Indiana's citizens. At one time, this responsibility was understood.

For example, I have reread an article I wrote for Res Gestae in 1969, when I headed the staff of the Statute Revision Commission, the group responsible for producing the Indiana Code of 1971, the first official codification in Indiana since 1852. A quote:

The Indiana statutes are in such poor order that the only possible way to find something in the Acts is by first finding it in the privately published, unofficial compilation of the Indiana statutes and checking the cros-references back to the Acts. In practical effect, then, the Indiana General Assembly has placed itself and the Indiana bench and bar in the position of having become completely dependent upon a private publishing company for the only usable source of the Indiana statute law. * * * [T]he Legislature does have the duty to keep the statute law in order and to make it available and accessible to the persons who desire to use it.
What do I suggest?

For starts, an immediate moratorium on eliminating the serial, paginated Indiana Register. Next, creation of a committee to look at where we are in Indiana, and where we should be, with respect to making the state's laws and rules available to its citizens.

Posted by Marcia Oddi on Wednesday, June 14, 2006
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues four rulings today

Chad Henry v. State of Indiana - Chad Henry appeals the denial of his petition for post-conviction relief. We affirm.

Ricky McKenney, Jr. v. State of Indiana - Did the trial court err in ordering McKenney to pay restitution in the amount of $22,505? We affirm.

David Pannell v. Charles A. Penfold - Whether the trial court erred in determining that IC 11-11-5-5 does not require Pannell’s record to be expunged. Affirmed.

In James F. Ruble v. State of Indiana, a 9-page opinion, Judge darden writes:

STATEMENT OF THE CASE. James F. Ruble appeals the sentence imposed by the trial court after his plea of guilty to the offense of operating a vehicle after a lifetime suspension, a class C felony. We reverse and remand.

ISSUE. Whether the trial court erred in not placing Ruble in a forensic diversion program. * * *

[W]e must reverse and remand for entry of a sentencing order that complies with the requirements of the statute.

Posted by Marcia Oddi on Wednesday, June 14, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues five decisions today

In Jeffrey Patrick, City of Gary & City of Gary Police Department v. Richard Miresso, a 5-page opinion, Justice Dickson writes:

In accordance with our decision in Quakenbush v. Lackey, 622 N.E.2d 1284 (Ind. 1993), we hold that a governmental unit and its police officer are not immune from liability for injuries caused by the officer's negligent operation of a police vehicle while pursuing a fleeing suspect. * * *

In addition, we observe that the immunity provisions set out in § 34-13-3-3 of the ITCA have been amended eleven times since Quakenbush was handed down in 1993,6 but without any change that would alter the outcome in Quakenbush. The continued viability of this precedent is thus further supported by the doctrine of legislative acquiescence. [emphasis supplied]

In City of Indianapolis and Indianapolis Police Department v. Richard Garman, a 3-page opinion, Justice Dickson writes:
In accord with our decision today in Patrick v. Miresso, ___ N.E.2d ___ (Ind. 2006), we affirm the denial of summary judgment and hold that a governmental unit is not immune from liability for injuries caused by its police officer's negligent operation of a police vehicle while pursuing a fleeing suspect. * * *

In our decision today in Patrick, we discuss King and Benton, concluding that these deci-sions do not impair or undermine our decision in Quakenbush, and we emphasize the legisla-ture's acquiescence to Quakenbush. In Patrick, we reassert the viability of the holding in Quakenbush that the Tort Claims Act "'enforcement of . . . a law' immunity does not shield gov-ernmental entities and personnel from liability resulting from a breach of the statutory duty to operate emergency vehicles 'with due regard for the safety of all persons.'" Patrick, ___ N.E.2d at ___, slip op. at 5 (quoting Ind. Code § 9-21-1-8(d)(1)).

In Roger D. Childress v. State of Indiana and Gary L. Carroll v. State of Indiana, a 12-page ruling involving plea agreements (including a 1-page concurring opinion), the Court, in an opinion by Justice Rucker, rules that:
Of course a defendant must persuade the appellate court that his or her sentence has met this inappropriateness standard of review. But to say that a defendant has acquiesced in his or her sentence or has implicitly agreed that the sentence is appropriate undermines in our view the scope of authority set forth in Article VII, Section 4 of the Indiana Constitution. We thus disapprove of language in Gist, Mann, and their progeny providing otherwise. See n.2.
Jerry Reyes v. State of Indiana - we proceed to address Reyes’ inappropriateness claim in light of our decision today in Childress.

In David Weiss v. State of Indiana, a 5-page opinion, Justice Rucker writes:

The underlying rationale for the [appeals] court’s holding is that by entering into such agreements the defendant either acquiesced in or implicitly agreed to the sentence imposed. In an opinion handed down today we disagreed with this proposition and held instead that Indiana Appellate Rule 7(B)
articulates a standard of review designed as guidance for appellate courts. . . . Of course a defendant must persuade the appellate court that his or her sentence has met this inappropriateness standard of review. But to say that a defendant has acquiesced in his or her sentence or has implicitly agreed that the sentence is appropriate undermines in our view the scope of authority set forth in Article VII, Section 4 of the Indiana Constitution. We thus disapprove of language in Gist, Mann, and their progeny providing otherwise.
Childress v. State, No. 61S01-0510-CR-484, ___N.E.2d___, ___, slip op. at 9 (Ind. June 14, 2006). Accordingly, we proceed to address Weiss’ inappropriateness claim.

Posted by Marcia Oddi on Wednesday, June 14, 2006
Posted to Indiana Decisions

Ind. Law - Part I of: Should the General Assembly make the law available to the citizens of the State?

[Note: Access Part II here.]


Under the rubric of "saving money," the General Assembly and its staff have systematically, over the past half-dozen years, dismantled systems for publishing and preserving the laws and rules of the State that have been in place for well over 30 years, some for more than 150 years.

Printed copies of the Indiana Code, the Acts of Indiana, the Indiana Administrative Code, and the Indiana Register have not been available to most libraries or the general public now for a number of years.

Meanwhile, the General Assembly has set up a complete printing plant, along with a book bindery, inhouse. This printing plant is now used to produce, not only printed copies of bills and the House and Senate Journals, as has been done inhouse since the late 1990s, but also printed and bound volumes of the laws and rules, with distribution limited mainly to members of the General Assembly and its staff.

The beginnings of these changes may be traced to SEA 506 and HEA 1196 from the 2002 session. A provision tucked away in the House bill gave the House speaker, Senate president pro tempore and Legislative Council power to tap a special fund to pay for retired lawmakers' and retired legislative aides' health benefits.

SECTION 1 of SEA 506 would have created the special fund:

(a) Any unused appropriations made for the purpose of printing or distributing legislative bills, the Indiana Code, the Indiana Administrative Code, the Indiana Register, the Acts of Indiana, or other legislative documents shall be transferred by the executive director of the legislative services agency to the fund established under this section. The council or its personnel subcommittee may transfer other unused appropriations to the fund.

(b) There is established a fund for the purposes of subsection (a). Money in the fund at the end of the state fiscal year does not revert to the state general fund but remains available for expenditure as provided by law. Interest earned by the fund shall remain in the fund.

The savings to fund the the legislative health care benefits were to come from the changes proposed by SECTION 2 of the SEA -- it provided that the following documents were to be distributed, by electronic format only, to state and local government officials, public libraries and educational institutions, and the general public -- the Indiana Code, the Indiana Administrative Code, the annual session laws [the Acts of Indiana], and the Indiana Register. The General Assembly was excluded from the electronic-only distribution requirement.

SEA 506 did not become law because Gov. O'Bannon vetoed it. (See this 1/6/06 ILB entry for more information.)

After the veto the General Assembly apparently decided to get around the lack of a dediciated fund by drawing money to finance their lifetime health benefits directly from the general fund. As for SECTION 2, the printing "savings" -- over the past few years the legislature has proceeded to eliminate the printed versions of the named publications, except for their own use.

The most recent example: Elimination of the Indiana Register

In 2005 the General Assembly enacted HEA 1135, amending the then-existing IC 4-22-8-2, which had provided:

Sec. 2. The publisher shall publish a serial publication with the name Indiana Register at least six (6) times each year.
to read instead (new language is in boldface):
Sec. 2. (a) The publisher shall publish a serial publication with the name Indiana Register at least six (6) times each year.

(b) Notwithstanding any law, after June 30, 2006, the publisher shall publish the Indiana Register in electronic form only. However, the publisher shall distribute a printed copy of the Indiana Register to each federal depository library in Indiana.

(c) The publisher may meet the requirement to publish the Indiana Register electronically by permanently publishing a copy of the Indiana Register on the Internet.

This year (2006) the General Assembly changed this section again, via SEA 379, to eliminate, effective July 1, 2006, any requirement that printed copies be distributed to depository libraries.

Parallel changes also were made in 2005 and 2006 regarding the publication of the Indiana Administrative Code.

With these remaining restrictions gone, the Legislative Services Agency (LSA) announced that "Under HEA 1135 (P.L.215-2005), after July 1, 2006, the Indiana Register will be published only on the Internet and on a more frequent basis."

But the LSA in fact has gone much further, by announcing that it is eliminating, despite the still-remaining requirement of the law that the "publisher shall publish a serial publication with the name Indiana Register," any pretext of a serial, or a paginated, publication.

In response, the ILB has published several entries pointing to the fact that, after nearly 30 years, the June 1, 2006 issue of the Indiana Register is to be the last paginated issue of that document. From now on, the LSA will simply post documents online (including proposed and final rulemaking documents, agency notices, etc.) as they are submitted by agencies such as the Department of Environmental Management, the Department of Insurance, the Department of Revenue, etc. Even now, details remain sketchy and uncertain, but the LSA is plunging ahead. [For previous ILB entries on this topic, check these: first entry, second, third, fourth, fifth.]

This is an enormous step backward for the State of Indiana and its citizens. A concerned law librarian has furnished me with the result of her recent survey of the status of administrative register publishing for the 50 states and the District of Columbia. Currently:

The law librarian concludes:
Since the federal government and all states except two still publish a hardcopy or electronic register in a volume/page citable format [ILB: which is what I consider "serial" to mean], I strongly feel that Indiana should continue the time-tested method in current use. An electronic register that could be downloaded as a full document published either monthly, weekly or every two weeks could substitute for the paper copies.
No one that I have contacted is totally opposed to an online-only version of the Indiana Register, so long as it remains in a paginated publication format. What concerns everyone who uses the rules in a hands-on manner, however, is this sudden swerving off in a direction different both from Indiana's past and from the systematized methodologies followed by practically every other state, plus the federal government.

[Much more coming later today in Part II.]

Posted by Marcia Oddi on Wednesday, June 14, 2006
Posted to Indiana Law

Law - More on: Dad sues to prevent son's circumcision

Updating this ILB entry from Feb. 18, 2006, the Chicago Tribune reports today, in a story that begins:

In a case that has drawn the attention of anti-circumcision groups nationwide, doctors testified Tuesday that there is no medical justification for removing the foreskin of an 8-year-old Northbrook boy.

Dr. M. David Gibbons, a pediatric urologist from Washington, D.C., said he saw nothing in the boy's medical records to warrant circumcision, an operation that could cause serious complications, he said.

But the boy's pediatrician, Dr. Arnold Goldstein of Highland Park, said circumcision is the "best and easiest way" to prevent problems in the future.

The boy's mother insists, on the advice of Goldstein and two other doctors, that the operation is necessary to prevent recurring bouts of inflammation, called balonitis. His father, a building manager from Arlington Heights, is suing to block the operation, calling it an "unnecessary amputation" that could cause his son irreparable physical and emotional harm. * * *

In his opening statement, David Llewellyn, one of the father's attorneys, told Kaplan that routine circumcision became popular in the 1870s in a "misguided attempt to punish and deter masturbation." But doctors now know it is rarely medically necessary, he said, and its risks outweigh its benefits.

Llewellyn, an Atlanta attorney who specializes in circumcision cases, said the boy's penis is normal. Surgically removing the boy's foreskin, he said, would cause pain and discomfort for a significant period of time and would be sexually and possibly psychologically damaging.

The hearing is expected to continue Wednesday with a pediatric urologist testifying on behalf of the mother.

Posted by Marcia Oddi on Wednesday, June 14, 2006
Posted to General Law Related

Ind. Decisions - More on: Coverage of the oral arguments in the toll road case

Niki Kelly of the Fort Wayne Journal Gazette has good coverage today of the oral arguments yesterday in the toll road case. Some quotes:

One of the more interesting legal tangents that arose Tuesday was whether the General Assembly’s decision to give the counties along the Toll Road – including Steuben and LaGrange – $40 million each from the proceeds of the lease equals unconstitutional special legislation.

The Indiana Constitution requires laws to be of a general nature, and the Supreme Court has struck down statutes passed by the legislature that treat one part of the state differently than another.

Justice Frank Sullivan Jr. asked what evidence is available to explain the money given to various counties, saying he believed the precedent on special legislation requires such a justification.

Michael Wukmer – arguing on behalf of the state – tried to differentiate between creating a law that is specific to one county versus making decisions on how to appropriate money.

But Sullivan countered, saying the legislation says to non-Toll Road counties, “you are going to be treated fundamentally different.”

Fort Wayne attorney James Fenton – who represents the seven citizens and one non-profit group challenging the law that authorizes the lease – said there were no reasons given as to why these counties deserved more money, such as road usage data.

“It looks like it was legislative log-rolling to get the bill through,” he said, referring to lawmakers putting popular concepts in a bill to secure votes.

Justice Sullivan was formerly, under Governor Bayh, the state budget director, a position now held by Charles Schalliol.

The story continues:

The other major constitutional question is whether the state is required to use surplus revenue from the lease of the Indiana Toll Road to pay off public debt before reinvesting it into a highway building program.

Fenton specifically said the framers of Indiana’s Constitution, “barred future legislators from ignoring existing debt and instead spending their windfall on other things.”

He estimated the state owes $2.5 billion on bonds that have been taken out over the years for various public improvements.

It is in the discretion of the remaining four justices whether to rule on those items – which are the basis of the legal challenge – or focus their decision on the narrower question of whether the case should be considered a public lawsuit.

St. Joseph Superior Judge Michael Scopelitis found on May 26 that the case does constitute a public lawsuit and required the plaintiffs to post a $1.9 billion bond for the case to continue – a virtual impossibility for the group of Hoosier citizens.

They appealed and Fenton argued his clients have shown substantial constitutional issues that should allow the challenge to proceed in a normal fashion without the bond.

That is the only matter he wants them to rule on.

Meanwhile, Wukmer asked the justices to affirm the earlier judges’ opinion and quickly decide all possible issues in the case, removing any legal hurdles to the 75-year lease of the Indiana Toll Road.

Reporter Kelly reiterates some important points near the end of the story:
Chief Justice Randall T. Shepard said the panel will respond as “promptly as we can.”

Fenton noted that the emergency exists because the state structured the law in such a way to limit challengers from fully litigating the issues.

“This case has moved way too fast for a $3.8 billion issue to be resolved this rapidly,” he said.

Only four justices will consider the matter after Justice Brent E. Dickson removed himself from the case. The plaintiffs in the case filed a request to halt the Supreme Court proceedings and instead send the case to the Indiana Court of Appeals.

The lawsuit had skipped the appeals court process and went directly to the Indiana Supreme Court at the request of the state.

But now a 2-2 tie is possible at the Supreme Court level – which would automatically affirm the original order of the St. Joseph Superior Court.

The Indiana Supreme Court denied the request Tuesday morning.

The "debt" question. If you listened to the oral argument, you heard much mention of the use of the word "debt" in the Indiana Constitution: references to "public debt", "state debt", and "municipal debt." In that regard, I was pleased last evening when a reader sent me a copy of the amicus brief filed by IU Law Prof. James Tanford, which I have posted here. The argument in the brief is 7-pages long, and can be summarized as:
“Public Debt” and “State Debt” are not the same things in the Indiana Constitution. State Debt cannot be used for public works, and income from public works must be used to pay down the principle of the Public Debt. The Major Moves legislation is unconstitutional in that it seeks to use income from public works for something other than the retirement of public debt while there is outstanding public debt.

Moreover, the imposition of a $1.8 billion dollar bond deprives all plaintiffs of access to courts and the due course of law, as it is patently obvious that no citizens of the State can challenge the constitutionality of this legislation if the bond is allowed to stand. * * *

Stant does not contest the lease of the Toll Road, or any one of the dozens of
construction projects that might flow from it, and therefore raises different issues than were raised in Bonney v. IFA. Stant is only objecting to the use to which the Legislature and the officers of the State intend to put the proceeds. As long as there is any outstanding Public Debt which has been created and assumed for the construction of Public Works of the State, income from those Public Works must be used first to retire the principle of such Public Debt. By its erroneous decision that Bonney is a public lawsuit against a municipal corporation and its imposition of a $1.8 billion bond, the lower court threatens to deprive both Plaintiffs of due course of law in violation of the Indiana Constitution, and renders a potentially unconstitutional act of the government immune from judicial review.

One brief missing. By my count, the ILB has now posted online all the briefs in the toll road case except for the one filed on behalf of the Association of Cities and Towns. I'm hoping a reader will email me a copy of that brief.

[More] Lesley Stedman Weidenbener of the Louisville Courier Journal has this story this morning. Some quotes:

[Fort Wayne attorney James] Fenton spent little time yesterday discussing whether the lawsuit is public. Instead, he focused on persuading the justices that the lease opponents had a credible case, even though he said they'd had little time to develop their arguments.

The law approving the deal forced opponents to file their suit almost immediately and then — because the deal is to close this month — led the courts to set an expedited schedule.

Fenton said the state "scheduled this deal in such a way to make it impossible for my clients — citizens and taxpayers of this state — to have time to fully litigate the issues."

The opponents' suit argues that an obscure provision of the Indiana Constitution bars the state from selling or leasing one of its assets without using the proceeds to pay down debt.

Fenton told the justices yesterday that the constitution therefore bars the state from spending the $3.8 billion on new road projects. Instead, he said, the state would have to use the money to eliminate debt it has incurred for past projects.

He quoted Daniels' 2005 State of the State Address, in which the governor said the state was in financial distress. He used data from the Indiana Finance Authority to show that the quasi-public agency was carrying $2.5 billion in debt for the state and a state auditor's report showing $3.85 billion in long-term debt from bonds.

"Those are our credit-card statements," Fenton said. "And we take the governor at his word that these credit cards are maxed out."

He told the justices that the framers of the Indiana Constitution were the "ultimate fiscal conservatives" and intended for the state to use its available cash to pay off debts.

But Thomas Fisher, an attorney representing the Indiana Finance Authority, which is handling the toll-road lease, argued that the framers of the constitution meant only for the state to be forced to repay the debt from its failed canal project.

That disastrous project led to the 1851 Constitution that the justices will be interpreting. Fisher said the constitution forbids the state from taking on new debt, and therefore its requirement that the sale of assets be used to pay down debt obviously referred to the canal project.

Today the state issues bonds only through quasi-public agencies, including the Indiana Finance Authority.


Posted by Marcia Oddi on Wednesday, June 14, 2006
Posted to Ind. Sup.Ct. Decisions

Tuesday, June 13, 2006

Courts - Divorce cases of Florida big shots hidden on secret Broward docket

"Court cases involving two Broward judges' divorces are among more than 100 cases hidden on a secret docket." That is the sub-headline to a lengthy story today in the Miami Herald. Some quotes:

Any divorce that lands in court goes on the public record -- except the divorces of some judges, elected officials and other big shots, whose cases are hidden on a secret docket in Broward courts.

Take the 2003 divorce case of Circuit Judge Thomas M. Lynch IV, or the 2001 divorce of County Judge Ginger Lerner-Wren. Public records don't show that either judge got divorced, much less what's in the files.

The same goes for the 2002 divorce of Miriam Oliphant, Broward's supervisor of elections until she was removed from the post. Or, for that matter, the 2001 divorce of North Broward Hospital District Chairman Paul Sallarulo.

Those files are among more than 100 civil cases since 2001 that have not been on any public records in Broward. The Miami Herald got a list of the files Monday under court order, after the newspaper sued for the release of case numbers and party names. However, the cases themselves remain off the public record, and no further information about them is available at this time.

The use of a secret docket in the first place goes against the basic tenet that courts should be open to the public. But the high-profile names on the docket further raise the question of whether some people get special treatment and are spared the indignity of having the details of their divorces open to all eyes.

This is not the first time the ILB has had entries on availability of divorce records. This entry from 1/5/06 covered accessibility of financial information in divorce records, in both Indiana and New Hampshire. With respect to secret dockets, here are entries re Connecticut, Seattle, and more Florida.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Courts in general

Ind. Decisions - Coverage of the oral arguments in the toll road case

Mike Smith of the AP has the early coverage of the oral arguments today before the Supreme Court in the toll road case. Watch the one-hour argument yourself, here, via RealAudio. A quote from Smith's story:

Four of five justices heard Tuesday's oral arguments because Justice Brent Dickson removed himself from the case on Monday without stating a reason.

Opponents of the lease, which include seven individuals and the consumer watchdog group Citizens Action Coalition, want the justices to overturn a May 26 ruling by St. Joseph Superior Court Judge Michael Scopelitis. He indicated that he did not believe the plaintiffs had much of a case against the lease and ordered them to post a $1.9 billion bond to proceed.

Dickson's absence means a 2-2 ruling will be possible and would leave the lower court decision intact. The plaintiffs earlier asked the high court to transfer the case to the Court of Appeals so a majority opinion would be guaranteed, but the remaining justices rejected the request.

The high court agreed earlier to the state's request that the case skip the appeals court level and go directly to the justices.

If the deal goes through, the state plans to use the $3.8 billion to help pay for numerous highway and other construction projects, and the private companies would operate the toll road and collect its revenue for 75 years.

Challengers claim that the toll lease, the cornerstone of Gov. Mitch Daniels' "Major Moves" highway plan, violates a state constitutional provision that requires proceeds from the sale of public works to be used to pay down public debt. The provision was included in a revised 1851 constitution after the state incurred huge debt in disastrous infrastructure schemes earlier that decade.

James Fenton, an attorney for the plaintiffs, said the state has much public debt the lease proceeds should go toward paying. He said the framers of the 1851 constitution "were ultimate fiscal conservatives," and that the provision still exists and should be followed.

"What is unconstitutional is to dispose a huge public asset and not pay off public debt," he said.

He also argued that the "Major Moves" law was unconstitutional special legislation because it steered part of the lease proceeds disproportionately to the seven toll road counties. He said that amounted to legislative logrolling - or attaching special provisions to an unpopular or controversial bill to help win votes.

Justice Robert Rucker questioned whether it was simply a legislative appropriations decision, and he noted that Fenton had acknowledged that all 92 counties would get money from the "Major Moves" plan.

The plaintiffs also argue that Scopelitis should not have ruled the challenge a "public lawsuit," requiring the bond.

Under Indiana law, public lawsuits are defined as challenges to the construction, financing or leasing of public improvements by a municipal corporation.

Scopelitis said the state's finance authority was a municipal corporation, noting that 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."

Michael Wukmer, an attorney for the Finance Authority, said the toll lease would result in money for needed road improvements and Scopelitis' ruling should be upheld.

"It will, in fact, benefit the entire state of Indiana," he said. "The IFA is here seeking finality so the deal can close."

He said there were valid reasons the law steered extra money to the toll road counties, including helping local governments cover costs of traffic that may be diverted to local roads because of the toll lease.

Justice Frank Sullivan replied, "We don't know all the reasons the Legislature appropriated (extra) money to those counties."

My impression from watching the arguments, and particularly the questioning by the justices, is that the court was looking for ways to navigate through the minefields this case presents in terms of future precedent. Questions such as Chief Justice Shepard's, asking whether if the IFA authority was a "municipal corporation," was not INDOT also a municipal corporation, and indeed wasn't every state agency, thereby subjecting all of administrative review to the public lawsuit statute?

Here is a brief story by Theodore Kim posted on the Indianapolis Star website.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Trinity Homes, LLC v. Frank Y. Fang, a 6-page opinion (including a 1-page dissent) issued today, Justice Boehm writes:

Property taxes assessed on a single tract of land which is later subdivided into individual lots, are due and payable with respect to the lots even if the lots were not assessed individually. * * *

The judgment of the trial court is reversed. This case is remanded with instruction to enter judgment for Trinity.

Shepard, C.J., and Dickson, and Sullivan, J.J. concur.
Rucker, J., dissents with separate opinion. [that begins]

I agree that the Home Purchase Agreement is not ambiguous. But precisely because it is not ambiguous the homeowner here should prevail. Therefore I respectfully dissent.

This case involves a rather straightforward application of the rules of contract construction. The majority declares, “Property taxes assessed on a single tract of land which is later subdivided into individual lots, are due and payable with respect to the lots even if the lots were not assessed individually.” Slip op. at 1. The majority cites no authority for this proposition, and I can find none. However, even assuming this proposition is true as a general rule,1 the Agreement before us says something quite different.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals decides four today

Darlene Saunders v. State of Indiana - appeal of conviction for aggravated battery, affirmed.

Joshua P. Stanley v. State of Indiana - habitual offender issue, dismissed without prejudice.

Ronald W. Meisler, et al v. Gull Oil, et al - re oil lease, affirmed.

Kenneth R. Myers v. State of Indiana - re restitution after theft of funds from estate - affirmed in part, reversed in part, and remanded for a modification of the restitution order. Plus a dissent.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court denies emergency request to vacate filed yesterday in toll road case [Updated]

Yesterday evening the ILB reported that, as a result of a faxed note to the parties yesterday morning indicating that Justice Dickson was recusing himself in the case, appellants filed an emergency request to vacate the transfer of the case to the Supreme Court.

Today the Supreme Court has denied the motion, as indicated via the case docket. Here is the entry:




6/13/06 ****** ABOVE ENTRY MAILED ******

[Updated] Niki Kelly has a story about the recusal today in the Fort Wayne Journal Gazette; and the AP's Mike Smith now has a story posted here on the Louisville Courier Journal site.

The ILB posted: (1) the fax announcing the recusal, (2) the appellant's motion, and (3) an analysis of the implications, yesterday.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Nappanee City Court Judge David Widmoyer will be stepping down

The Elkhart Truth reports:

NAPPANEE -- Longtime City Court Judge David Widmoyer will be stepping down from the bench later this year.

Widmoyer, who has served in that position since 1980, has resigned, effective Sept. 1.

In the time remaining until then, Widmoyer plans to help the court with its transition to new leadership. State law says a new city judge must be appointed by Gov. Mitch Daniels. * * *

"The judge's retirement ends one of the longest-running community involvements, by a citizen, in the history of Nappanee," said Mayor Larry Thompson.

"Dave Widmoyer and his wife Donna -- from the B&B Restaurant to the court bench -- have been a driving force to the success of Nappanee and its future."

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Indiana Courts

Ind. Courts - Tavitas takes oath as Lake County judge

The Gary Post-Tribune reports today, in a story by Andy Grimm:

GARY — It was a family affair Monday as veteran Lake County attorney Elizabeth Tavitas was sworn in as a family court judge Monday.

Several dozen relatives and colleagues looked on as Superior Court Judge John Pera administered the oath of office to the Munster resident at the courthouse in Gary.

Tavitas’ eldest son, Nathan, has pleaded before his mother for 23 years, and the third-year law student said Lake County families will be well-served by his mother.

“I haven’t won an argument in 15 years,” said Nathan, the oldest of Tavitas’ three children with husband Tony. “I don’t see that changing for her now.”

Elizabeth Tavitas said she was humbled when Gov. Mitch Daniels appointed her to replace Judge James Danikolas, who died in December. His term continues through 2010, and Tavitas said she hopes to be retained in the appointed post. * * *

Tavitas’ courtroom is one of two domestic relations courts in the county and will handle divorce proceedings, child custody and protective orders.

The courthouse in downtown Gary is familiar territory for Tavitas, who began her Lake County legal career more than 15 years ago with a juvenile court hearing on the second floor.

“My first case was here,” said Tavitas, who was then a deputy prosecutor.

Tavitas worked in private practice, then became a juvenile defender and family court referee.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Indiana Courts

Ind. Courts - More on: Marion County juvenile justice under Star review

The Indianapolis Star's final story on Marion County juvenile justice appeared today, headlined "Who's watching? Lack of oversight created conditions for chaotic system." A side-bar offers "Seven solutions to reform juvenile justice." The list:

Marion County officials are attempting to reform operations at the troubled juvenile detention center. But much work remains. Here are suggestions for improving the center and the juvenile court:

Keep children out of court

• Reduce the overuse of harsh discipline by schools: Indianapolis Public Schools has ended its decades-old policy of sending students to juvenile detention for fighting. Other districts in Marion County also need to find less-punitive alternatives in dealing with minor offenses.

• Expand community mental health care: Families turn to the juvenile justice system in desperation to find help for their children. Providing better access to mental health services outside the courts would reduce the number of children in the system and improve their care.

Strive for fairness

• Make juvenile court records available to the public: Sunshine is the best way to bring checks and balances to the juvenile justice system. Records of juvenile cases, sans the names of the children involved, should be a part of the public record.

• Add judges: Marion County Superior Court decided last month to continue placing juvenile court under the control of one judge. The strain of growing caseloads makes that system no longer workable. It's time to spread out the workload and expand the number of people making decisions by adding more judges.

• Limit the waiver of counsel: Legislators this year failed to pass the mandatory lawyer consolation proposal in Senate Bill 357. They should approve a new version of the legislation next year.

Improve juvenile detention

• Adopt the Missouri model: Since that state replaced its large reformatories with small, community-based therapeutic treatment centers and group homes in the 1970s, only 8 percent of convicted juveniles return to the system within three years. At $55 per day per juvenile, the model also is more cost-effective than the status quo.

• Add teeth to the state's oversight of county-run detention centers: State inspectors should have the authority to shut down juvenile jails that are unsafe, filthy and overcrowded.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Indiana Courts

Courts - Kentucky judicial candidate rules challenged

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

A candidate for the Kentucky Supreme Court wants a federal court to throw out the state's judicial election rules because he says they prohibit him from offering his views on gay marriage, when life begins and other hot-button topics.

The candidate, Marcus Carey, whose Web site says he promotes "conservative values," also wants to strike down rules that bar judicial candidates from disclosing their party affiliation and from announcing endorsements by elected officials. Carey is the former chairman of the 4th Congressional District Republican Party.

"Voters want to know who we are and what we stand for before we are elected to the bench," Carey said. * * *

If Carey's suit is successful, it would end nonpartisan judicial elections in Kentucky, said Steve Wolnitzek, chairman of the Judicial Conduct Commission, who is one of the defendants. All but two of Kentucky 265 judgeships are up for election this year.

Wolnitzek said Carey's lawsuit -- and others like it -- raise legitimate questions about judicial candidates' free-speech rights. But Wolnitzek said he fears that that if Carey prevails there could be so much partisanship and mudslinging that "when you are finished, nobody would have any respect for the judges who are elected." * * *

Carey's lawsuit was filed Friday by Lexington lawyer Ben Cowgill and attorney James Bopp of Terre Haute, Ind., the same lawyer who last year successfully attacked Kentucky's judicial speech rules on behalf of the Family Foundation of Kentucky.

As a result of that suit, the Kentucky Supreme Court had to drop a rule that barred judicial candidates from making statements that "commit or appear to commit" them to positions on cases they likely would hear.

It was replaced by a new canon that says judicial candidates must not intentionally or recklessly make a statement that could be perceived by a reasonable person as committing them to rule a certain way on an issue they could hear.

But Carey contends in his lawsuit that the new rule is so vague that candidates are "still unable to make their views known so that the electorate may intelligently evaluate their … positions on vital public issues … so voters can educate themselves and participate fully in democracy." * * *

The suit, which also names Kentucky Bar Association leaders as defendants, asks for an injunction blocking the new rule, as well as one that requires that a judge disqualify himself in a proceeding when he has "expressed an opinion concerning the merits of the proceeding."

Carey also says rules barring judicial candidates from making endorsements, identifying their party affiliation and directly soliciting campaign contributions violate the First Amendment.

Restrictions on judicial candidates have come under attack in dozens of states since the U.S. Supreme Court decided in a 2002 Minnesota case that judicial candidates have a free-speech right to announce their views as long as they don't pledge to vote a certain way on a particular case. Bopp also won that case.

An Indiana case, Right to Life v. Shepard, is still pending. As the ILB reported on Nov. 9, 2005:
The defendants' motion to dismiss on standing, ripeness and abstention is pending before Judge Sharp in the ND Indiana. In answer to my question, George T. Patton, Bose McKinney & Evans LLP, representing defendants (Randall T. Shepard, et al.), along with the Attorney General, reports that "Because affidavits were attached to our motion, Judge Sharp has converted our dismissal into summary judgment and ordered all parties to file any arguments and evidence relevant to that by the end of the year with replies in April of next year."
For a list of related ILB entries, check here.

For much more on the Kentucky suit (including links to filings), see this entry from the Kentucky Law Blog.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to Courts in general

Not Law - Evansville paper improves website

Today the Evansville Courier& Press unveiled a new website. The old one was practically unusable, and the new one is a vast improvement. Unfortunately, that damn, and very loud, helicopter still flies across the news page, obscuring the news and distracting the reader. I have no idea what it is advertising.

Posted by Marcia Oddi on Tuesday, June 13, 2006
Posted to General News

Monday, June 12, 2006

Ind. Decisions - More on: Toll road case oral arguments tomorrow

Here is the brief of the State (and here is an Addendum).

Here is the brief (2 MB) of the Indiana Finance Authority.

A reader (and experienced appellate attorney) sends this note re the reports of Justice Dickson's recusal:

Interesting. Although there may be some debate on the outcome, ask yourself what happens if there's a 2-2 split. If it's deemed "direct review" by the Supreme Court under Rule 59(B), the trial court judgment shall be affirmed. Accordingly, the constitutionality of Major Moves could be decided on by a single trial court judge without any controlling appellate decision.

The only way you could guarantee an actual controlling appellate case would be if the Court of Appeals (the entity to which the Appellants filed their appeal) heard it first. Then, if the Appellants won in the Court of Appeals 3-0 or 2-1 and the Supreme Court was evenly divided, under Rule 58(C), the Court of Appeals' previously-vacated (on transfer) opinion would be reinstated. Also, the the State and IFA won in the Court of Appeals and there was an equally-divided court, they would win. Either way, you would be guaranteed that someone other than the trial court would have to rule on this legislation.
[More] And sure enough - it turns out the Appellants filed a motion earlier today to remand the matter to the Court of Appeals to ensure there is a controlling appellate decision reached.

Unfortunately I can't quote from the Motion to Vacate Transfer because it is scanned, but turn to page 2. Also note page 6.

Posted by Marcia Oddi on Monday, June 12, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Full-time pro tem judge appointed in Huntington

Beth Shindle of the Huntington Herald Press reports:

The Indiana Supreme Court has appointed local attorney and unopposed 2007 Huntington Circuit Court judge candidate Tom Hakes as full-time judge pro tem for Circuit Court.

The appointment follows a petition from the Huntington County Bar Association that Hakes be named to the position as a result of Judge Mark McIntosh's extended illness and hospitalization. McIntosh has been hospitalized since March 3 after suffering an attack of pancreatitis, an inflammation of the pancreas. The 72-year-old judge has served for 18 years as judge in the Huntington Circuit Court. He did not seek reelection.

"I'm sorry Judge McIntosh is in the hospital, and I would have liked him to finish out his term," Hakes said. "I'll try to do the best I can in this office."

Hakes will officially begin as full-time judge pro tem on June 19. He has been serving as the court's main judge pro tem at a daily pay rate of $25 and as full-time pro tem will be paid at the same rate as McIntosh, currently $110,500 a year.

Hakes will continue in the full-time position until McIntosh would petition that he is able to return to the bench, until the Indiana Supreme Court issues a further order, or until McIntosh's term of office expires on Dec. 31, 2006.

Hakes was McIntosh's partner in private practice for 10 years, and Huntington County Prosecutor John Branham said in May that the bar association did not discuss any other attorneys for the full-time pro tem position. Branham added that McIntosh was contacted about the matter and gave his consent.

As full-time judge pro tem, Hakes has the authority to hear all cases that come before the Circuit Court, including the authority to sentence and to preside over trials.

Earlier ILB entries on the Huntington situation are available here.

Posted by Marcia Oddi on Monday, June 12, 2006
Posted to Indiana Courts

Ind. Decisions - Toll road case oral arguments tomorrow

Presumably the attorneys for the Indiana Finance Authority and the State filed their briefs prior to today's 3 p.m. deadline (schedule here). Appellants reply brief, if any, is due no later than 10:00 a.m. tomorrow, Tue., June 3, 2006.

The arguments before the Supreme Court are set for 1:30 p.m. tomorrow afternoon. They may also be viewed, live online, here, and replayed later.

Mitch Harper is reporting in his blog, Fort Wayne Observed, that "Indiana Supreme Court Justice Brent E. Dickson is recusing himself from hearing the appeal of the trial court decision in the lawsuit challenging Major Moves." [Thanks to Gary Welsh for the heads up.]

I took a look at the docket (71 S 00 - 0606 - CV - 00204) and nothing is recorded at this point.

Of interest is that several amicus briefs have been filed, including one by IU Law Prof. James Tanford, who played a major role in the U.S. Supreme Court's interstate wine shipping case. His client is William Stant. [I'm told that he may the Stant who is seeking the Green Party nomination for Secretary of State.]

Other amicus: Indiana Assoc. of Cities and Towns.

The ILB has posted the appellants' brief here, and would like to post the other filings. Please e-mail me if you can help.

Here is the just filed story by AP reporter Mike Smith about the State's brief. A quote:

Under Indiana statute, 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 is whether the state's 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."

The state said in its brief that the lawsuit's claims have the capacity - regardless of their merit - to scuttle a deal if they simply remain alive on June 30.

"This threat, combined with the nature of the IFA as a municipal corporation, justify treating this case as a public lawsuit," the brief said.

The state said the "Major Moves" plan was not special legislation because it will steer some lease money specifically to the seven toll road counties. It said that argument invites the court to second-guess the General Assembly that the lease could impose unique burdens on those counties because higher tolls might divert more traffic to local roads and drive up local government costs.

The state also that "public debt" should not be an issue because its mention in the state's 1851 constitution referred to debt the state incurred in disastrous infrastructure financing schemes earlier that decade. That was all paid off by 1915, the brief said, and now bonds are issued and debt is managed by quasi public-private agencies such as the Finance Authority, not the state directly.


Posted by Marcia Oddi on Monday, June 12, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - More on: Las Vegas judiciary subject of in-depth LA Times examination

Updating the ILB entry earlier today quoting from the LA Times investigative series on the Las Vegas judicial system, Jon Ralston, a columnist for the Las Vegas Sun, wrote a column Friday that begins:

I'm embarrassed.

For the local judicial system. For the valley's media. And for Southern Nevada.

It took an out-of-state newspaper, the Los Angeles Times, to publish one of the most devastating pieces about Las Vegas that we have seen in many years. The story, which the paper printed this week, is not some of the standard Sin-City-with-Flamboyant-Mayor lampooning we have come to expect. This is an in-depth investigative piece, the product of years of reporting by two journalists, which exposes the incestuous nature of a judiciary fueled by friendships and campaign money.

The notion of Las Vegas as a juice town is not news. The idea that judges can be unduly influenced by who they know and the money they receive is something cynics have long assumed - and one of the reasons many of us have called for electing judges.

But what the L.A. Times has done is devote resources to detailing and documenting a causal connection between influence attempted and decisions rendered.

Through extensive research and interviews, the reporters have uncovered a pay-to-play system that will be hard for the locals to refute.

And in so doing, the California newspaper has left every journalist who has covered courts and politics in this state red-faced and surely induced many past and current judges to wonder if any law enforcement agencies are looking at the same information the Times reporters had.

More from the column:
But this is a story that does not rely on sensational headlines or quotes from losing lawyers who might be accused of having sour grapes.

Yes, attorneys from inside and outside Nevada are critical of the judicial system. But the reporters went much further - they examined hundreds upon hundreds of case files going back years to detail potential conflicts and biased decisions for many former and current District Court judges, including Don Mosley, Joe Pavlikowski, Gene Porter, Sally Loehrer, even Jim Mahan, who has moved up to the federal bench and bristled at the questioning.

Only the recently retired John McGroarty, who merited his own sidebar in the Times, came out well:

"This is a fast track, a fast town - very fast," he said. "This isn't Des Moines, Iowa." He rubbed his thumb and forefinger together to indicate money. "This is a juice town," he said. "Go out there and start messing with that juice, and it will come back and get you."

Coming on the heels of G-Sting, where the FBI uncovered political corruption we had missed, the L.A. Times story is more evidence that we in the local media are part of the problem when we need help from outsiders to fulfill our duty as watchdogs.

Posted by Marcia Oddi on Monday, June 12, 2006
Posted to Courts in general

Ind. Courts - Marion County juvenile justice under Star review

The Indianapolis Star is in the second day of its three-day editorial series on on problems at the Marion County juvenile justice system. Here is its synopsis:

Sunday: Children are flooding into a Marion County juvenile justice system where rules of due process are often ignored and the detention center has been declared unsafe.

Today: Appellate court rulings reveal a troubling pattern of magistrates in Marion County's juvenile court not following the intent of the law.

• Tuesday: Despite serious problems, including alleged sexual abuse, at the Marion County Juvenile Detention Center, state inspectors continued to grade it as fully compliant with standards.

The stories are accompanied by audio interviews with people close to the system.

Here is a quote from Sunday's story:

Forty percent of Indiana juveniles do not have either a private lawyer or a public defender to represent them, according to an analysis by the National Juvenile Defender Center and the Indiana Juvenile Justice Task Force.

Parents frequently waive juveniles' rights, but in some cases it's the parents themselves who are leveling accusations against their children.

State Court of Appeals rulings reveal a troubling pattern of judges ignoring laws that govern court proceedings and rules of evidence. In Donna's case, the Court of Appeals found that Magistrate Geoffrey Gaither didn't have sufficient grounds to find her guilty.

From today's story:
"In the juvenile system, you are at the mercy of the prosecutor and the judge," says Larry Landis, executive director of the Indiana Public Defender Council. "You don't have any checks and balances."

Judge Marilyn Moores, who took over supervision of Marion County's juvenile court last year, is blunt in her assessment of past practices, both by the court and attorneys there. "One of the things they did not do here was practice law," she says.

A Star Editorial Board review of appellate court rulings reveals a troubling pattern of magistrates in Marion County's juvenile court not following the intent of the law:

In May, a three-judge panel of the Court of Appeals found that Magistrate Scott Stowers "abused (his) discretion" in tacking on informal home detention to a plea agreement involving a juvenile named Santana. Judges have little latitude in changing plea agreements once they are accepted.

In a 2004 ruling, appellate court judges unanimously found that Magistrate Geoffrey Gaither based his decision to revoke the probation of a child named Cory on hearsay. Although probation hearings require a lower standard of evidence than trials, the prosecution "produced no evidence" of a drug test that Cory allegedly failed, how long the drug was in his system or prior drug screenings before he was placed on probation. Results of the drug screenings couldn't be produced because none were taken.

Another Appeals Court panel ruled unanimously in 2004 that Magistrate Beth Jansen violated state law by holding a juvenile known as William in the Marion County Detention Center for three months before initially hearing allegations that he violated his truancy probation. Under state law, juveniles can't be detained for more than 24 hours for offenses that aren't considered crimes if committed by an adult.

A three-judge panel in 2003 found that the Marion County Juvenile Court "abused its discretion" in the case of Ebonie, a Pike High School student who had served time at the state Girls School. The court's policy at the time was to automatically send juveniles back to the state prison system for any future offense.

Ebonie was returned to prison for disorderly conduct despite overwhelming evidence she had turned her life around. The appeals court ruled that Marion County's one-size-fits-all rule "conflicted with the rehabilitative goals of the juvenile justice system." * * *

The inadequacy of legal counsel came to a head in Marion County in 2004 when Chief Public Defender David Cook temporarily refused to take on new juvenile cases. Cook argued that it was unethical for him to continue accepting cases given his department's lack of resources. His office has since added 12 full-time public defenders.

Private attorneys remain something of a rarity in juvenile court. Few have expertise in juvenile law and most are unwilling to endure the long waits or the arbitrary policies associated with Marion County's court.

"There's no question, by any definition, that defense lawyers were viewed as second-class citizens in that process," says attorney Robert Hammerle, who occasionally represents juveniles. "So many of my colleagues refused to go."

The Marion County Superior Court is responsible for operation of the juvenile system. But for two decades, Judge James Payne was given wide latitude to run the juvenile court, the detention center and the juvenile probation agency as he saw fit. Payne even reviewed and signed off on all rulings by magistrates under his supervision.

"I'm not saying Judge Payne said 'Keep your nose out of my business.' He wasn't like that," says Presiding Judge Cale Bradford. "But he had always run -- he had always run -- juvenile court and there really hadn't been a clamoring from the Downtown courts or local government to have more involvement out in juvenile."

Now, serious problems in the system are beginning to emerge. Prosecutors have charged 10 detention center employees, including the director, with either sexually abusing teen inmates or helping to cover it up. The abuse is believed to have occurred over at least a six-year span. One national organization recently declared the center unsafe for inmates and staff.

In addition, Marion County has for years operated a juvenile system in which children are frequently sent to prison based on little evidence and without legal representation.

A system supposedly defined by justice has too often failed to deliver.

Posted by Marcia Oddi on Monday, June 12, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides one today

In Phillip W. & Anita B. Richardson v. State of Indiana, a 21-page opinion (with a dissent by Judge Najam beginning on p. 16), Judge Bailey writes:

The Richardsons raise two issues on interlocutory appeal, which we restate as whether the trial court erred by denying their motions to suppress evidence under the Indiana Constitution because: I. An anonymous tip that the Richardsons manufactured methamphetamine did not give police reasonable, articulable suspicion to search their trash; and II. The good faith exception established in Indiana Code Section 35-37-4-5 is inapplicable to the present action. * * *

The anonymous tip, by itself and without further police corroboration, was not sufficiently detailed in predicting the Richardsons’ future actions to justify indiscriminately searching their trash.13 Accordingly, under Litchfield, the items found in the trash were not properly discovered evidence. * * *

Nevertheless, the State argues that we should not apply the exclusionary rule to the present action “because the trooper relied in good faith on the facially valid search warrant that was consistent with prevailing case law at the time the warrant was issued and executed.” Appellee’s Br. at 5. Indiana Code Section 35-37-4-5 provides that, in a prosecution for a crime, a court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the law enforcement officer obtained the evidence in good faith. Subsection (b) of that statute explains that evidence is obtained in good faith if it is obtained pursuant to “a state statute, judicial precedent, or court rule that is later declared unconstitutional or otherwise invalidated.” * * *

Because the search at issue conformed to the prevailing case law at the time, the evidence could not have been properly excluded under Indiana Code Section 35-37-4-516 and, thus, could provide support for the finding of probable cause to issue the warrant to search the Richardsons’ house and property.17 For the foregoing reasons, we affirm the trial court’s denial of the Richardsons’ motions to suppress evidence obtained from the warrantless search of their trash. Affirmed.

BAKER, J., concurs.
NAJAM, J., dissents with separate opinion.

I respectfully dissent. The majority opinion misapplies the statutory good faith exception. Indiana Code Section 35-37-4-5 cannot nullify our Supreme Court’s holding in Litchfield, requiring that a trash search be supported by reasonable suspicion, in this and other cases pending or not yet final when Litchfield was decided. Because Trooper Gill did not have reasonable suspicion to support the trash search, I would reverse. * * *

Under the hierarchy of law governing our state, the Indiana Constitution controls a statute to the contrary enacted by the General Assembly. See Ind. Code § 1-1-2-1. In Litchfield, our Supreme Court determined that Article I, Section 11 requires an “articulable individualized suspicion” before trash may be searched or seized. Litchfield, 824 N.E.2d at 364. And, once more, our Supreme Court has held that a new rule for the conduct of criminal prosecutions which constitutes a “clear break with the past” applies retroactively “with no exception.” Smylie, 823 N.E.2d at 687. No exception means no exception. In this case, and other cases in the same procedural posture, the statutory good faith exception must yield to Article I, Section 11 of the Indiana Constitution as interpreted by our Supreme Court.18 Thus, I respectfully dissent.

Posted by Marcia Oddi on Monday, June 12, 2006
Posted to Ind. App.Ct. Decisions

Courts - Las Vegas judiciary subject of in-depth LA Times examination

The LA Times ran a lengthy three-part series on the Las Vegas court system last week. The first story, "Justice crippled by conflicts," published June 8th, includes these quotes:

This is a juice town, some Las Vegas attorneys openly concede. Financial contributions "get you juice with a judge — an 'in,' " Ian Christopherson, a lawyer in Las Vegas for 18 years, said in an interview. "If you have juice, you get different treatment. This is not a quid pro quo town like, say, Chicago. This town is a juice town."

Las Vegas is one of the fastest-growing metropolitan areas in the United States. Since 1960, census figures show, its population has exploded by 1,246%. But many of its courts have not grown with it, much less grown up. At the heart of the Las Vegas court system are 21 state judges who hear civil and criminal cases, and who can be assigned anywhere in Nevada, but who are called district judges because they work out of courthouses in the judicial districts where they are elected. These state judges often dispense a style of wide-open, frontier justice that veers out of control across ethical, if not legal, boundaries. The consequences reach beyond Nevada, affecting people in other states, especially California.

The second story, from June 9th, is about "a judge and his friends." It begins:
LAS VEGAS — Without help from a friend, James Mahan might never have become a Las Vegas state judge. Certainly he wouldn't have gotten one of the top judicial jobs in town: a lifetime appointment to the federal bench.

Then again, without Mahan, his friend George Swarts would never have gotten to run an Internet porn business, a hotel-casino hair salon or a Southern California software company. Indeed, the careers of Judge James C. Mahan, 62, and his friend George C. Swarts, also 62, whom he appointed again and again as a receiver to manage troubled businesses, might be the ultimate example of how juice replaces justice in Las Vegas courtrooms.

In this town, people speak reverently of having juice, or an "in," and Mahan — bearded, likable but sometimes caustic — has made it a striking feature in his courtroom. First as a state judge and now as a federal judge, he has approved more than $4.8 million in judgments and fees during more than a dozen cases in which a recent search of court records found no statement that he disclosed his relationships with those who benefited from his decisions.

The final story, from June 10th, is focused on senior judges. Some quotes:
Unlike regular judges, senior judges are not answerable to the voters, but serve at the pleasure of the high court, and that can mean for life. Unlike regular judges, they can reject assignments until they are given a case they want to try. Unlike regular judges, they cannot be removed from a case by peremptory challenge. And until last year, they did not have to disclose their financial interests.

With this exceptional flexibility, they could try lawsuits in which they had a personal stake without revealing it. And because they cannot be removed by peremptory challenge, which normally permits a one-time replacement of a judge at the beginning of any case simply for the asking, it is possible for litigants to be stuck with senior judges, their conflicts of interest and their decisions.

Posted by Marcia Oddi on Monday, June 12, 2006
Posted to Courts in general

Sunday, June 11, 2006

Law - "Scholars are split on the Bush administration's use of the Federalist Papers to justify its position "

"Scholars are split on the Bush administration's use of the Federalist Papers to justify its position on presidential war powers" is the headline to an opinion piece by Charlie Savage in The Boston Globe today -- following on his earlier stories on the tension between Congress and the President's re-definition of the reach of executive powers. Today's article begins:

SINCE THE TERRORIST ATTACKS of Sept. 11, 2001, the Bush administration has made sweeping claims about the power the Constitution gives the president as ``commander in chief." Because the president is responsible for protecting national security, the administration has argued, Congress cannot restrict his powers in a time of war.

President Bush hasn't been shy about putting his philosophy into action. In a series of ``signing statements," Bush has claimed that he has the authority to disobey several recent laws passed by Congress, including a ban on torturing detainees and oversight provisions in the USA Patriot Act. Nor has the president limited his opposition to laws passed on his watch; Bush has also authorized the military to wiretap Americans' international phone calls without warrants, defying a 1978 law, the Foreign Intelligence Surveillance Act, or FISA.

To make his case for these broadened powers, Bush and his administration have fallen back on a familiar strategy: pointing to the Constitution and looking to the founders as a guide to its meaning. This ``originalist" approach has been a hallmark of the Bush White House, informing everything from its taste in judges to its opposition to abortion. Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.

Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president's wartime powers: Federalist 69.

Earlier this month, Adam Liptak of the NY Times had a good news analysis of the difficult questions related to the FBI search of a congressional office. Titled "Congress and Justice Dept. May Both Be Overreaching," it begins:
The Justice Department is probably correct in saying that it was legally entitled to search a congressman's office last month. But in ignoring history and established conventions in that case, some legal scholars say, the Bush administration has again unsettled widely shared understandings of constitutional relationships and freedoms that have existed for generations.

As with the administration's assertions that it may ignore a law on domestic eavesdropping, reinterpret other laws through presidential signing statements and prosecute journalists under espionage laws, specialists in constitutional law and history said, the Justice Department's justification for the search is an aggressive use of executive power.

In the search case, there is broad academic consensus that the constitutional protection for Congressional speech and debate does not extend to evidence of criminal conduct, even if it is in a Congressional office.

That means the Justice Department was probably entitled to seek — and a federal judge probably correct in authorizing — a warrant to search the offices of Representative William J. Jefferson, Democrat of Louisiana, notwithstanding objections by leaders of Congress.

But having the legal power to conduct a search of another branch of government does not mean it is a wise or prudent thing to do. No other administration has ever done it. In ordering a 45-day cooling-off period, during which the solicitor general will hold the seized materials, President Bush seemed to allow time for reflection on the difference between what the executive branch may do and what it should do.

At the same time, Congressional leaders may have overreached in describing the search as a flagrant violation of the Constitution.

Indeed, the argument that Congressional offices are immune from law enforcement searches has something in common with the argument that the president has the authority to reinterpret the bills he signs into law, said Douglas W. Kmiec, a law professor at Pepperdine University.

"They have no taproot in the constitutional document," Professor Kmiec said of arguments. "They're all sound and fury."

Posted by Marcia Oddi on Sunday, June 11, 2006
Posted to General Law Related

Ind. Courts - Parties to determine their respective candidates on the Nov. 7 General Election ballot for Greene County Circuit Court Judge

The Greene County Daily World reported Friday:

Leadership in the county's Republican and Democrat parties have scheduled party caucus meetings to determine their respective candidates on the Nov. 7 General Election ballot for Greene County Circuit Court Judge.

The vacancy was created last month when veteran Greene County Circuit Judge David K. Johnson announced his resignation, effective June 30. After nearly 30 years of serving on the local bench, the 59-year-old Johnson accepted an appointment from Indiana Gov. Mitch Daniels to serve as a member of the Indiana Alcohol and Tobacco Commission, which oversees the issuance of all alcoholic beverage permits in the state and directs the operations of the Indiana Excise Police force. * * *

The Demo Party chairman [Jeff Lehman] said he is looking forward to a contested race for Circuit Judge for the first time "in about 50 years."

"Judge Johnson has been in there for about 30 years and I don't ever remember anybody running against him Š I don't ever remember a race at all," Lehman said. "It's going to be nice to have a Democrat candidate for judge."

Members of the Greene County Republican Party leadership will gather June 26 to select its candidate.

Posted by Marcia Oddi on Sunday, June 11, 2006
Posted to Indiana Courts

Ind. Decisions - More on: State high court takes Clark County dispute

Updating this ILB entry from last week on the Supreme Court's grant of emergency transfer to a fee dispute between the Clark county judges and the county council, the Fort Wayne News-Sentinel had a brief editorial commentary Friday:

Why should you care about a dispute between the Clark Couny Council and four elected judges? Because it could affect the way all Indiana counties spend public money. Due to the statewide implications, the Indiana Supreme Court has agreed to decide the case instead of leaving it in the Indiana Court of Appeals.

The dispute is over who has control of nearly $1.9 million in fees from court-supervised probation programs. The council argues that it should be able to tap the money for salaries and other court-related costs as part of the county’s annual budget. But the judges say they should control where the money is spent, accusing the council of overstepping its authority. Before the dispute arose, two years ago, the council and judges often agreed to use a certain portion of the fee money each year to pay court-related costs. But growing expenses have prompted the council to appropriate almost all the money to cover salaries and other expenditures to avoid employee layoffs.

This is also a struggle over power – who has it and how it is used. That affects us even more than how the fees are spent.

Posted by Marcia Oddi on Sunday, June 11, 2006
Posted to Ind. Sup.Ct. Decisions

Environment - Mt. Rumpke under a cloud

"Mt. Rumpke under a cloud: Landfill family expects opposition to growth" is the headline to a lengthy story today in the Cincinnati Enquirer that begins:

Most people don't care where their garbage goes, just that it goes away.

The Rumpkes care. They want most of Greater Cincinnati's trash to keep coming to Mount Rumpke.

That's why the owner-operators of the Rumpke Sanitary Landfill, the man-made mountain of garbage and trash that used to be a valley, want to do a $145.5 million expansion.

The Rumpkes know they face years of scrutiny via public hearings, governmental meetings and environmental assessments. Next stop: The Colerain Township Zoning Commission on June 20.

If Rumpke's plans are approved, the expansion will add 30 to 50 years to the life of the landfill and keep the family in the garbage business for generations.

"Hell, yes, I love that Mount Rumpke name," Bill J. Rumpke Sr. said.

The story includes this aerial photo of "the Rumpke Sanitary Landfill mountain in Colerain Township, which grows by 8,000 tons of garbage a day."

Posted by Marcia Oddi on Sunday, June 11, 2006
Posted to Environment

Saturday, June 10, 2006

Environment - New Albany sewers investigated

"New Albany sewers investigated: Alleged sabotage, finances looked at" is the headline to a story today in the Louisville Courier Journal by Ben Zion Hershberg. Some quotes:

An investigation of New Albany's sewer operations and finances is under way by the U.S. Environmental Protection Agency's criminal division, several city officials and residents said yesterday.

Councilmen Mark Seabrook, Larry Kochert and Dan Coffey said an investigator has asked them and others about alleged sabotage at the city's sewage treatment plant in October that allowed an estimated 5 million gallons of untreated sewage to flow into the Ohio River.

The three, along with city residents Susan Johnson and Yvonne Kersey, said the investigator also asked about the use of sewer-system funds, including a low-cost $30 million loan from the state that helped finance a sewer-system expansion completed in March 2005.

Greg Fifer, the lawyer for the New Albany Sewer Board, which oversees the system, said he had received "a couple of sporadic calls" about an investigator seeking sewer-system information.

He said he has heard from board members that the investigator is asking about use of the state loan.

"I have a hard time believing there is any impropriety" in the use of the loan, Fifer said. He added that claims by contractors were reviewed and approved by the board but were paid by the state, which maintained control of the money.

Erik Olsen, the lawyer for the EPA office in Chicago who has been leading the agency's oversight of New Albany's sewer system, declined to comment beyond saying, "I can't confirm or deny the existence of any criminal investigation."

Posted by Marcia Oddi on Saturday, June 10, 2006
Posted to Environment | Indiana Government

Ind. Courts - Former Schererville Town Court judge admits extortion

The Gary Post-Tribune reports today, in a story by Tim Zorn:

HAMMOND — Deborah Riga, the former Schererville Town Court judge, admitted Friday that she systematically defrauded the town during her time on the bench.

Riga pleaded guilty in U.S. District Court to four of the eight counts in the federal indictment against her.

She also agreed to cooperate with U.S. Attorney Joseph Van Bokkelen’s continuing public-corruption investigation.

A federal grand jury indicted Riga in August 2004. Her trial was scheduled to start Tuesday.

The U.S. attorney’s office will ask the court to dismiss four other counts against Riga when she is sentenced Sept. 8 by Judge Philip Simon.

Riga, who lives now in Sarasota, Fla., will remain free on bond until the sentencing.

Riga was judge of Schererville’s town court — which hears traffic offenses, minor drug and alcohol cases and small-claims cases — from January 2000 through December 2003.

She admitted, in Friday’s plea agreement, that she “devised a scheme to defraud the public and the Town of Schererville of their right to my honest services” when she was judge.

She said she took control of the court’s Crossroads counseling program and driving school and set up a bank account in which she secretly had an interest.

Through that, she received about $12,000 in payments from the court’s defendants. She also stopped paying rent to the town for her courtroom and made the town pay court employees who should have been paid out of the Crossroads program, Riga said.

Each mail-fraud charge Riga admitted to carries a maximum term of 20 years, but the U.S. attorney agreed to a sentence “at the low end” of the sentence range.

Riga also is to make restitution to the town, but the agreement doesn’t specify the amount. One count to be dismissed is a charge that Riga made Nancy Fromm — whose Addiction and Family Care firm provided court-ordered counseling — pay $2,000 to Riga’s father to continue doing business. * * *

The current Schererville Town Court judge, Kenneth Anderson, defeated Riga in a closely contested Democratic primary election in May 2003.

Riga originally was declared the winner by 11 votes, but that result was overturned when Anderson showed that 22 absentee votes were fraudulent.

Here is an earlier ILB entry from Aug. 6, 2004, and more details from Aug. 7th, 2004.

Here is the coverage from the Munster (NW Indiana) Times, by Jon Carlspn. He writes:

Deborah Riga, who once presided over hundreds of small-time offenders as the judge of Schererville Town Court, is probably heading for jail herself.

On the eve of her public corruption trial next week, Riga pleaded guilty Friday afternoon to four counts of felony mail fraud.

Federal prosecutors agreed to drop four other charges against her two years ago, including one count of extortion, in exchange for her guilty plea and cooperation in future investigations.

"I'm saddened that it came to that, and that there was a problem in Schererville," said sitting Town Judge Kenneth Anderson, whose contested election victory over Riga in 2003 spurred the federal probe.

Federal and state investigators accused Riga of concealing profits she earned by sending criminal offenders in her court to two counseling services that she controlled. She pleaded guilty to sending notices through the mail to offenders in her programs.

Riga, 49, faces a maximum penalty of 80 years in prison and $1 million in fines, although her actual sentence will be decided through sentencing guidelines during a hearing in September.

Assistant U.S. Attorney Orest Szewciw said her sentence will be adjusted downward based on how much she cooperates with investigators in future probes.

"It's just one part of what this office is about, in terms of fulfilling its obligation to root out political corruption," Szewciw said, adding that four agents from the FBI and state police worked "tirelessly" to assemble the case.

Posted by Marcia Oddi on Saturday, June 10, 2006
Posted to Indiana Courts

Friday, June 09, 2006

Ind. Courts - Martin County judge jails county clerk

Here is the Washington Times-Herald detailed story by Laura Thigpen on the jailing of the Martin County clerk, supplementing this ILB entry from yesterday:

SHOALS — Martin County Clerk John Hunt spent about two and a half hours in jail Wednesday when Circuit Court Judge Joe Howell charged him with criminal contempt of court just before 4 p.m.

The contempt citation was filed by Howell because the clerk’s office was making it impossible for the court to function, Howell said. He also cited Hunt for falsely certifying a case was completed when it wasn’t, he explained.

Since March 24, few if any cases have been settled and bond money has not been returned due to the backlog in the clerk’s office, according to Howell. The citation charged that Hunt “failed to release and transfer bond proceeds as directed in two separate orders in a timely manner.”

Hunt, who took over the clerk’s office March 24 following a court battle with former Chief Deputy Clerk Linda Nolan for the position, had no experience when he began his tenure, replacing former Clerk Debbie Christmas who resigned in January.

Since then, Howell has regularly notified the county council, commissioners and Hunt and his staff, that the clerk’s office wasn’t up to date or up to speed with their duties as “clerk of the court.”

Because they’re behind, the problem surfaced Wednesday when Howell discovered that a former defendant who had posted a $750 bond upon her arrest had not yet received the money she had coming to her after court and probation costs were subtracted. Bond is posted to get someone out of jail, and to ensure he or she will show up for scheduled court dates, money left over is returned once the case is completed.

Howell signed the order for the woman to receive her money on May 15. On May 31, Hunt signed a certification that his office had fully complied with Howell’s orders, and her money returned. It hadn’t, however, and 35-year-old Sonya D. Holt called Howell’s office, complaining about not receiving her remaining bond money.

After trying to discover what happened, Howell asked Hunt and his staff to come downstairs to the courtroom, and after charging the clerk, Hunt was arrested by Martin County Sheriff Tony Dant and incarcerated in the Martin County Security Center.

Howell also cited Hunt with falsely certifying he’d reimbursed Holt when she reported the office had not yet returned her money. But after initially ordering Hunt to spend 48 hours in jail, he amended the order to serving two hours.

Martin County Prosecutor Mike Steiner said the judge’s action took him by surprise and so could offer no comment on the matter.

The original contempt charge carried with it a $1,000 fine and 48 hours in jail, but Howell amended the citation late Wednesday afternoon, allowing Hunt to leave the security center at about 6:15 p.m. He’s still responsible for the fine, however, and must pay it by 3 p.m. next Wednesday.

Hunt was contacted this morning but chose not to comment on the situation.

Posted by Marcia Oddi on Friday, June 09, 2006
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending June 9, 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 June 9, 2006.

Posted by Marcia Oddi on Friday, June 09, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending June 9, 2006

Here is the Indiana Supreme Court's transfer list for the week ending June 9, 2006.

The Supreme Court did not have their weekly conference until today (Friday) so the Clerk's Office will not receive transfer orders until Monday. Therefore, this week's list only has one order.

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, June 09, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues two today

In Clarian Health Partners, et al. v. Phillip Evans, an 11-page opinion (with a concurring opinion beginning on p. 10), Judge Sharpnack writes:

Clarian Health Partners (“Clarian”) appeals the trial court’s denial of its motion to correct error, which stemmed from the trial court’s declaratory judgment order that estopped and precluded Clarian from pursuing payments from Phillip Evans for unpaid medical bills that were in excess of the reduced hospital lien amount Clarian recovered from Evans’s personal injury settlement proceeds.1 Clarian raises one issue, which we restate as whether the trial court’s declaratory judgment order, which precluded Clarian from pursuing the underlying debt that Evans owed to Clarian after Clarian’s hospital lien was released for a reduced amount, was contrary to the Hospital Lien Statute. We reverse and remand. * * *

NAJAM, J. concurs
ROBB, J. concurs with separate opinion

Although I concur with the majority, I write separately to emphasize that the result we have reached herein avoids what could, under other facts, be an inconsistent result. Here, we are concerned only with medical expenses owed to a hospital. Our legislature has chosen, via the Hospital Lien Act, to protect hospitals and ensure that they are compensated at least in part for their services. See slip op. at 5 (quoting Tankersley v. Parkview Hosp., Inc., 791 N.E.2d at 204). Providers not qualified as “hospitals” and not protected by the Hospital Lien Act are able to pursue the full amounts owed to them by the usual means. It would be incongruous, then, not to allow hospitals to pursue the remainder of the debt owed to them outside of the settlement. Any other result would actually result in less protection for the very entity the legislature has determined should be protected.5 The Hospital Lien Act only ensures that hospitals will receive some recompense. There is no indication the legislature intended the guaranty of some payment would be the quid pro quo for foregoing the balance. It does not limit a hospital’s ability to pursue full compensation. Subject to these comments, I concur with the majority.

In Lloyd Frensemeier v. State of Indiana, a 13-page opinion (with a dissent beginning on p. 12), Judge Baker writes:
Appellant-defendant Lloyd Frensemeier brings this interlocutory appeal challenging the denial of his motion to suppress. Specifically, Frensemeier argues that the police officers acted improperly in ordering hospital personnel to draw blood from him when a sheriff’s deputy believed that he had operated a vehicle while intoxicated because the deputy smelled alcohol on his breath and noticed that his eyes were bloodshot at the scene of an accident. Concluding that the results of the blood tests are admissible in a prosecution against Frensemeier for driving while intoxicated, we affirm the trial court’s denial of the motion to suppress. * * *

MAY, J., concurs.
SULLIVAN, J., dissents with opinion.

I respectfully dissent from the majority’s conclusion that probable cause existed to believe that a non-consensual blood draw at the hospital would reflect a blood alcohol content in excess of 0.08. See I.C. § 9-30-5-1.

Deputy White said that he smelled alcohol and that Frensemeier’s eyes appeared bloodshot and that his movements were slow, whether from injury or some other cause. Countering such observations or impressions, however, was Deputy White’s testimony that the defendant’s speech was clear, that there was no fact or circumstance that suggested defendant was drunk, and that he did not come away with the thought that Frensemeier was intoxicated. Taken in totality, Deputy White’s observations and impressions would not, in my view, lead a reasonable person to believe that a blood draw would demonstrate that a crime had been committed.

I would reverse the ruling and remand with instructions to grant the Motion to Suppress.

Posted by Marcia Oddi on Friday, June 09, 2006
Posted to Ind. App.Ct. Decisions

Courts - A judge's dogs in court? NOT!

Remember the Lou Grant show (1977-1982)? After everyone from the Mary Tyler Moore Show got fired, Lou Grant (Ed Asner) moved to LA to edit the LA NOT Times, and his boss, the publisher, was Mrs. Pynchon (Nancy Marchand), who brought her two little dogs to work and they sat on her desk? I thought of that this morning when I read this story in the Detroit News (thanks to How Appealing):

A district judge who ignored city officials' request to stop taking her pet dogs to work has been ordered by the state Supreme Court to keep the terriers, Lurch and Lizzard, at home where they belong.

The State Court Administrative Office, the administrative agency for the Michigan Supreme Court, this week contacted Eastpointe District Judge Norene Redmond after becoming aware of complaints about the animals, Supreme Court spokeswoman Marcia McBrien said. The Eastpointe city attorney also sent a letter of complaint to the office, McBrien said.

"Animals don't understand that court proceedings are not to be disturbed," McBrien said. "Courtrooms are serious places, and respect for the court needs to be maintained. Dogs and other pets can inject a note of informality.

"That was not appropriate."

McBrien said officials with the 38th District Court told her office that Redmond's small terriers are gone from the courthouse and will not return. Redmond told The Detroit News last week that she saw no problems with bringing dogs to court, which she has done occasionally since 2004. She said they brought a sense of calm to the tense courtroom atmosphere and were an attraction for schoolchildren, police officers and attorneys.

"The employees love having the dog. It brings a sense of happiness," she said.

"Everybody who frequents this court knows it's a pet-friendly workplace."

Redmond declined to comment on the order, but a national judicial ethics expert said that anything that detracts from a courtroom's solemn atmosphere can be an issue.

That's why many judges require appropriate attire, ban phones and prohibit people from reading newspapers, said Cynthia Gray, director of the Iowa-based Center for Judicial Ethics. * * *

Redmond said she was surprised by the May 3 memo because no one ever told her there was a problem. Redmond said she first brought Lurch to court in October 2004, after she rescued the West Highland terrier and Maltese mix. Lizzard, a 2.5-pound silky-haired terrier, didn't go to court often because she's still a puppy.

The two dogs never came to court together, Redmond said. When there, they roamed in the main office away from the public, in the jury room if jurors didn't mind and sometimes slept beneath the court bench.

"No one ever knew he was there," said Redmond.

Employees took them out to urinate. Redmond didn't know where the dogs went to the bathroom because "I wasn't out there."

The ILB recalls a former Indiana governor's spouse, who took her corgi to the Statehouse, Ayres Tea Room, and other places, sometimes with her staff employees tending to the dog, sometimes with no one tending to the dog.

Posted by Marcia Oddi on Friday, June 09, 2006
Posted to Courts in general

Ind. Law - More on: Golf carts in the news again [Updated again]

Yesderday afternon the ILB posted an entry on the Lebannon golf cart ordinance being under siege from the state police (scroll down two entries or click here).

WTHR (Indy ch. 13) had this story last evening:

Lebanon - Golf carts are becoming just as popular on the street as they are on the fairway. But one Indiana city is learning that allowing their use on the street puts them at odds with state police.

Jean Mohr prefers to get around Lebanon in her personalized golf cart. With the price of gas at nearly $3 a gallon, it's certainly cheap transportation. "I use it to go from point A to point B," said Mohr.

But going from A to B could soon get Mohr a fine.

"I think this is an interference of home rule," said Lebanon Mayor James Acton, referring to threats by the state police to ticket golf cart owners like Mohr who thought they were driving their carts on city streets legally.

"What the state's doing in it, I don't know," Mohr said.

With the popularity of golf carts soaring for personal use, cities like Lebanon found that there needs to be some regulation. After months of debate and public meetings, the City Council passed an ordinance in March allowing their use on city streets only by licensed and insured drivers who paid for a $30 registration sticker and met safety requirements. But recently, state police told the city the carts aren't considered motorized vehicles that can be licensed and therefore aren't street legal.

When the city enacted the law, it said that while the carts can be used on city streets, they're not allowed on state roads, which are patrolled by the state police.

Around 35 people paid the $30 fee to register their carts. Lebanon city officials like the mayor says this is a case of home rule they hoped isn't trumped. In case it is, "Then we'll have to repeal the ordinance and police will then be required to ticket people they see on a golf cart," he said.

Jean Mohr may conclude that affordable transportation isn't worth a $100 fine.

State Police met Thursday with the city and county prosecutor. The prosecutor said no decision has been reached yet, adding that he feels this is a public safety issue and that golf carts could be dangerous on city streets.

[Updated] Yesterday's entry mentioned the proposed DNR rule permitting "motorized carts" in state parks. I've now heard back from DNR about the status of the proposed rule:
Hi, Marcia,

The NRC gave final adoption in May to rule amendments that would allow the use of "motorized carts" (which includes golf carts) in some circumstances where not previously authorized. The proposed rules are now at the Attorney General's office for its review as to legality.

If you're interested in checking the hearing officer report, it's Item 13 on the NRC's webpage [i.e. the current agenda].
[Updated again - 6/9/06 afternoon] New information from DNR; the rule has been approved:
On June 6, the Attorney General approved the LSA Document #05-344(F) that provides for the use of motorized carts at state parks and recreation areas. The Governor gave his approval on June 9, 2006, and subsequently, the Secretary of State filed on the same day. The rule will become effective July 9, 2006.

Posted by Marcia Oddi on Friday, June 09, 2006
Posted to Indiana Law

Thursday, June 08, 2006

Ind. Decisions - Plaintiffs file Supreme Court brief in toll road suit [More]

As noted in this ILB entry on the briefing schedule set by the Supreme Court, the deadline for physically filing the plaintiffs'/appellants' brief was 5:00 p.m. this afternoon. Tom Coyne of the AP reports:

Opponents of a plan to lease the Indiana Toll Road on Thursday asked the state Supreme Court to overturn a judge's ruling that they must post a $1.9 billion bond to move ahead with the lawsuit.

The challengers say they have presented evidence that the plan to lease the toll road for 75 years to foreign investors - part of Gov. Mitch Daniels' "Major Moves" highway plan - is unconstitutional.

"The framers of the 1851 Constitution, shaken as they were by the state's financial collapse as a result of major canal and road-building projects, carefully crafted a Constitution so as to ensure that such a catastrophe would not happen again," attorneys for the plaintiffs - seven individuals and the Citizens Action Coalition - wrote in the appeal. "In upholding 'Major Moves,' the trial court disregarded the framers' clear intent."

The appeal asks the high court to overturn St. Joseph Superior Court Judge Michael Scopelitis' May 26 ruling, which declared the case a public lawsuit and required the bond, and send it back to him for a hearing.

The state and the Indiana Finance Authority, which runs the toll road, have until 3 p.m. Monday to file a response. Oral arguments are scheduled Tuesday.

More from Coyne's report:
Lawyers for the plaintiffs argued in a 33-page filing late Thursday afternoon that the case should not have been declared a public lawsuit because:

- The Indiana Finance Authority is not a municipal corporation;

- The public lawsuit statute applies only to the "disposition" of a public improvement;

- Scopelitis erred when he ruled the law allowing the lease does not amount to special legislation and therefore is not unconstitutional.

Much of the appeal focuses on whether the state has "public debt." The plaintiffs contend they documented more than $8 billion in pension liabilities that should be considered public debt.

Scopelitis, though, ruled that there is "no evidence that the state of Indiana is obligated on any of this alleged 'debt.'"

The appeal also says the proceeds from the lease deal must be used to pay off public debt and contends Scopelitis ignored the fact that the toll road belongs to the state of Indiana, not the finance authority.

The ILB is hoping obtain a copy of the brief to post here.

[More] Here is the brief - it is scanned and over 1 MB.

Posted by Marcia Oddi on Thursday, June 08, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Golf carts in the news again

The ILB has had several entries on use of golf carts on public ways. Here is the first one, from March 2, 2006, headed "Golf cart ordinance is an issue in Lebanon, and also other communities." The second one, from March 24th, concerned a proposed rule being considered by the Department of Natural Resources "concerning the operation of motorized carts on DNR properties." I'm checking to see whether the rule was adopted.

(The ILB has received inquiries about the legality of golf carts in various situations, but as it says in the right-hand column, we do not give legal advice.)

Today the Lebanon Reporter has a story by Rod Rose headed "State police considering crackdown on golf carts." Some quotes:

On second thought, buying a golf cart here might not be a good idea.

In March, the Lebanon City Council voted, 4-2, to allow golf carts on most streets. Carts are banned from Lebanon Street, South Street and Indianapolis Avenue either because they are state highways, or for safety reasons. Carts are also prohibited on Lafayette Avenue, because of safety concerns.

But Indiana State Police told Mayor Jim Acton Tuesday they are going to ticket golf cart drivers wherever they find them in the city limits.

Prosecutor Todd Meyer said state police have also told him they will ticket people who drive golf carts on public highways.

Acton said Tuesday that a state police trooper, whose name he could not recall, came to him Monday to talk about the golf cart ordinance. “He didn’t really say what his problem with it was, other than golf carts are not authorized by the Bureau of Motor Vehicles,” Acton said.

Indiana State Police officials could not be reached for comment by press time. * * *

[Prosecutor] Meyer, knowing the state police enforcement would conflict with Lebanon’s ordinance, suggested a meeting at his office Thursday to talk things over. “The city has attempted to address a local issue,” Meyer said. “That city ordinance may not be consistent with the state statute on traffic regulations.”

Meyer thinks a golf cart is a motorized vehicle under Indiana law. Such vehicles must meet Indiana Department of Motor Vehicles rules to be registered. Golf carts do not.

“The state police are indicating they are going to start ticketing and towing vehicles that are not in compliance with the motor vehicle regulations,” Meyer said.

Between 35 and 40 golf cart permits, costing $30 each, have been issued to city residents, Acton said.

[Mayor] Acton said he couldn’t speculate on whether the city would take legal action to keep the state police from citing golf cart drivers. “I won’t know until after that meeting,” Acton said.

Police Chief Tom Garoffolo said his department will enforce the ordinance, because they’ve been told to by the city council and the city attorney. The issue could pit state law against home rule, Garoffolo said. Under home rule, the city may establish ordinances and enforce regulations.

“You can tweak some things you normally wouldn’t be able to,” Garoffolo said.

A ban on golf carts would handicap the county’s annual Fourth of July Festival, committee member Lana Hale said Tuesday. The committee depends on golf carts to check the parade route, to patrol the Lebanon High School parking lot where the parade is formed and to maneuver along crowded streets. * * *

The ordinance was passed in response to last year’s Fourth of July holiday season, when entrepreneurs rented dozens of golf carts. Police received “innumerable complaints” of reckless golf cart driving, including impromptu drag races and overloaded carts without headlights weaving down dark streets.

Lebanon’s golf cart ordinance requires that:

Owners pay an annual fee of $30, by May 1; have proof of insurance on themselves or on the cart at all times; carts are allowed on city streets between 6 a.m. and 9 p.m. from May 1 to Sept. 30, and from 9 a.m. to 5 p.m. from Oct. 1 to April 30; only licensed drivers may operate a golf cart; carts must have rear view mirrors, are banned from Lebanon Street, Indianapolis Avenue and South Street because they are also state highways, and are prohibited from Lafayette Avenue.

Violators can be fined up to $100; if they are ticketed twice in a calendar year, their golf cart permit will be suspended.

Posted by Marcia Oddi on Thursday, June 08, 2006
Posted to Indiana Law

Ind. Courts - Martin County judge reportedly jails county clerk

The ILB has posted quotes from several stories about issues in Martin County between the courts and the clerk's office. For background, see this ILB entry from May 8th.

Today WAMW Local News in Washington Indiana is reporting that:

A Martin Couty judge yesterday ordered the arrest on contempt charges of the Martin County clerk. According to court documents, at first Judge R. Joseph Howell ordered the clerk, John Hunt, to serve 48 hours [later amended to 2 hours] in the Martin County security center for direct contempt of court and to pay a fine of $1,000. *** Allegedly the judge took the action because proper court filings and money money was not being placed in proper accounts.
To read the entire story, go to the WAMW site, click News in the left column.

Posted by Marcia Oddi on Thursday, June 08, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues one today

In Carson Lutz v. Erie Insurance Exchange, as Subrogee of Paul McCormick, a 4-page opinion, Justice Boehm concisely summarizes the Court's ruling:

A party’s pleadings are subject to judicial notice and a fact admitted in a party’s pleading may be binding on that party as a judicial admission even if it is not subject to judicial notice.

Posted by Marcia Oddi on Thursday, June 08, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Records on IU student's death could be released [Updated again]

Ken Kusmer writes today for the AP:

MARTINSVILLE, Ind. (AP) -- A judge [today] could release autopsy and forensic reports in the death of an Indiana University student whose body was found in 2003, nearly three years after she disappeared while riding her bicycle in Bloomington.

The cause and manner of 19-year-old Jill Behrman's death and other autopsy results have been sealed since December 2003 by order of Morgan Superior Court Judge G. Thomas Gray. At the time, he agreed with prosecutors that disclosing the information before an arrest was made could hurt the investigation.

In April, prosecutors charged John Myers II with murder in Behrman's death after a grand jury heard testimony from 90 witnesses over four weeks.

Gray on Thursday will listen The Herald-Times of Bloomington's request to release the information. Public access attorneys argue that state law requires that after any death investigation a county coroner must make public details on the probable cause, manner and mechanism of death.

[Updated at 10:30 am]Ken Kusmer's story now reports:
MARTINSVILLE, Ind. (AP) -- A judge on Thursday refused to release autopsy and forensic reports in the death of an Indiana University student whose body was found in 2003, nearly three years after she disappeared while riding her bicycle in Bloomington.

The cause and manner of 19-year-old Jill Behrman's death and other autopsy results have been sealed since December 2003 by order of Morgan Superior Court Judge G. Thomas Gray. He refused to change that stance Thursday.

"As a philosophical and moral issue, this court can't see why anybody who is dealt a death by involuntary means needs to have those involuntary means splashed across headlines," Gray said when giving his ruling.

The Herald-Times of Bloomington asked for the records to be released. Public access attorneys argued that state law requires that after any death investigation a county coroner must make public details on the probable cause, manner and mechanism of death.

Herald-Times editor Bob Zaltsberg represented the newspaper, which did not have an attorney at the hearing. He said the paper believed the Indiana General Assembly said the record should be open.

Mark Crandley, an attorney for The Indianapolis Star, said he was surprised the judge ruled from bench.

"It's an important case, and the judge obviously put a lot of thought into his decision," he said.

the Indianapolis Star has a brief story here.

The Star story has now been expanded to include:

Mark J. Crandley, an attorney for The Star, said he was surprised the judge ruled so quickly, and was discussing whether there were grounds for an appeal.

State law requires that after any death investigation a county coroner must make public 19 essential details, ranging from name and age to the “conclusion as to the probable cause, manner and mechanism of death.”

But in some cases police contend the law allows them to withhold the release of evidence that they believe would hamper their ability to gain a conviction.

Crandley said the ruling "definitely sends a message to the state, so there is a concern in that regard … the public is not going to have a right to know how the victim was killed for many years."

A Morgan County grand jury indicted John R. Myers II, 30, on a murder charge in April His trial is set for Sept. 18.

Posted by Marcia Oddi on Thursday, June 08, 2006
Posted to Indiana Courts

Ind. Law - Star to feature juvenile justice system

The Indianapolis Star has announced a series "on Marion County's -- and Indiana's -- inhumane juvenile justice system," starting Sunday:

A STAR EDITORIAL BOARD SERIES: What is really wrong with the juvenile (in)justice system.

What do you call a system:

In which young men and women are sent to jail by schools for simply tossing snowballs into cars.

Where judges deny fair trials to the accused by ignoring the spirit of the law.

Where 40 percent of defendents go through serious cases without a lawyer.

Under which an overcrowded jail can still get a clean bill of health.

For thousands of children in Indiana and Marion County, it's called the juvenile justice system. And if you think the accusations of sexual exploitation of inmates at the Marion County Juvenile Detention Center are shocking, you've heard nothing yet.

Posted by Marcia Oddi on Thursday, June 08, 2006
Posted to Indiana Law

Courts - Sandra Day O'Connor says judicial independence is imperiled and electing judges is not wise

USA Today has this interview with Sandra Day O'Connor.

Posted by Marcia Oddi on Thursday, June 08, 2006
Posted to Courts in general

Environment - There are limits to the reach of the information superhighway

The Indianapolis Star had a front-page story yesterday by Tammy Webber headlined "Fish warnings fail to hook those most at risk: Alerts are now only on the Internet, where anglers most likely to eat what they catch may not see them." Some quotes:

Environmentalists say the state has gone from bad to worse in how it warns people about toxins in fish. An annual statewide advisory on which fish to avoid eating, once available in a cumbersome, printed document, is now available only on the Internet.

The bottom line, community advocates say, is that the people who most need the information -- poor and minority residents who often eat what they catch -- are now those least likely to see it.

"It seems like the state is moving backward, not forward, in better informing people," said Brian Wright of the Hoosier Environmental Council.

The story included a survey on what some nearby states are doing.

Today the Star has an editorial stating its position: "The state must blaze a paper trail to anglers unlikely to go online to find fish consumption warnings." Some quotes:

The Internet has been a marvelous tool for alerting the public about government business, but there are limits to the reach of the information superhighway.

Chances are small, for example, that people fishing for their dinner in Indiana's ponds, lakes, canals and streams will check online to make sure the catch is safe to eat.

Yet that's where the Indiana State Department of Health now puts the information, having abandoned the thick printed advisories it used to disseminate. * * *

What's needed is specific information in up-to-date, readily available form. The Internet is not a customary source for most people; and especially not for those at lower socioeconomic levels, where fishing for food rather than for sport is most likely to be practiced. The widely used fishing guide published by the Department of Natural Resources contains some do-not-fish advisories, but is not emphatic enough to suit water-quality advocates and in any case probably misses many of those most in need of alerting.

State health officials say they're looking for ways to supplement the Net; and county health departments, as well as private organizations, are free to do likewise (as Marion County's has to some extent). The old system, in which about 10,000 copies of a 50-plus-page annual report were distributed, was justifiably retired. Too few outlets -- health departments, fishing stores and such -- wanted to fuss with the tomes. Another suggestion, posting signs at waterways, would be expensive and difficult to tailor to the exact status of a given body of water.

A more streamlined paper product, on the other hand, could connect with anglers through a variety of common points including grocery stores and doctors' offices. In Minnesota, about 300 groups take part in the distribution of 50,000 copies of an eight-page advisory to the general public and 60,000 copies of a brochure targeted at women of childbearing age.

Indiana could manage an offering of this type, at least with creative financing. Private sponsorship surely could be obtained, as it was for Gov. Mitch Daniels' INShape initiative. The need is equally vital, and the quick and easy road is likewise not going to arrive at the goal.

Posted by Marcia Oddi on Thursday, June 08, 2006
Posted to Environment | Indiana Government

Wednesday, June 07, 2006

Ind. Decisions - 7th Circuit decides Indiana sentencing appeal

In affirming USA v. Taryll Miller (SD Ind., John Daniel Tinder, Judge), a 10-page opinion, Judge Easterbrook writes on p. 8:

We held in United States v. Gipson, 425 F.3d 335 (7th Cir. 2005), that defendants are not entitled to a deviation from the statutory (100-to-1) ratio. Now we add, in agreement with Eura and Pho, that district judges must continue to carry out the legislative choice, even though there may be powerful reasons for change.

Posted by Marcia Oddi on Wednesday, June 07, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Greene County courthouse security system

From the Greene County Daily World, by Andrea McCann:

When the Greene County Courthouse addition and remodeling are complete, a whole new security system will be in place, but exactly how it'll be used is still up in the air.

“There's a very elaborate security system throughout the whole building,” said Jim Corey, manager of the courthouse construction project. “I think it's a post-9/11 issue. Buildings are being designed around security now.

A detailed description of the security system follows.

Posted by Marcia Oddi on Wednesday, June 07, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides four today

In Cordage Auburn, Inc., et al. v. The Revocable Trust Agreement of Bryce B. Treadwell, et al., a 33-page opinion, Judge Sullivan writes:

Appellants-Defendants, Auburn Cordage, Inc. and Auburn Campground, LLC, challenge the trial court’s grant of summary judgment in favor of Appellees-Plaintiffs, the Revocable Trust Agreement of Bryce B. Treadwell, the Estate of Bryce B. Treadwell, Cindee Crosby, Misty Treadwell, and Terry and April Freeman. The Appellants claim that the trial court erred in granting summary judgment because genuine issues of material fact exist with regard to whether the Estate is entitled to recover, under a theory of equitable subrogation, the sums paid to Union Federal Bank from certain life insurance policies assigned as collateral for a loan to Classic City Camping, LLC.1 The Appellants further claim that the trial court erred in granting summary judgment because genuine issues of material fact exist with regard to whether Classic City was in default under a loan with the Bank, and whether the mortgage agreement between Auburn Cordage and the Bank was supported by adequate consideration. The Appellants also claim that the trial court exceeded its authority in concluding that foreclosure is appropriate. * * *

Conclusion. The trial court properly concluded that the loan was in default and that the mortgage was supported by sufficient consideration. Although the Estate as guarantor may have had a right to seek indemnity from Classic City for the amounts the Estate paid on Classic City’s loans, and the Estate as the holder of the Note may seek payment on the balance of the loan, the Appellees are not entitled to equitable subrogation with regard to the insurance policy proceeds. Finally, the trial court did not err in concluding that foreclosure was appropriate.

The judgment of the trial court is affirmed in part, reversed in part, and the cause is remanded for proceedings not inconsistent with this opinion.

In Deann Thomas v. Lewis Engineering, a 9-page opinion, Judge Najam writes:
We conclude that the duty rule applied in Essex is the correct one to apply in negligent misrepresentation cases. Specifically, a professional owes no duty to one with whom it has not contracted unless the professional has actual knowledge that the third party would rely on the professional’s opinion or service. Because Thomas had no relationship with Lewis, she had no right to rely on its survey. And, in fact, Thomas did not rely on Lewis’ survey. Instead, she argued that the survey was inaccurate when she defended against Owens’ suit and filed her own counter suit. In sum, Thomas has shown neither a duty arising from a relationship with Lewis nor a duty arising from Lewis’ actual knowledge that Thomas would rely on its survey. Thus, Thomas has failed to state a valid claim under Indiana law.1 As such, the trial court did not err when it granted summary judgment in favor of Lewis on Thomas’ negligent misrepresentation claim. Affirmed.
In Warren Gutermuth v. State of Indiana, a 34-page opinion (with Judge Friedllander dissenting on p. 30 and Judge May concurring on p. 34), Judge Crone begins:
Case Summary. In this belated appeal, Warren Gutermuth challenges his twenty-four-year aggregate sentence for three counts of class C felony child molesting.

We affirm. Issues. We restate the two issues Gutermuth presents as follows: I. Whether he may challenge his sentence pursuant to Blakely v. Washington, 542 U.S. 296 (2004); and II. Whether the trial court properly sentenced him.

For an analysis of Gutermuth, see this entry by Michael Ausbrook in his blog, INCourt.

In Richard Brown v. State of Indiana, a 28-page opinion, Judge Crone concludes:

In summary, the trial court did not abuse its discretion in denying Brown’s motion for mistrial. The criminal confinement statute is unconstitutionally vague as applied to Brown, and we therefore reverse those convictions. The identity deception statute is not unconstitutionally vague as applied to Brown. There was sufficient evidence to support Brown’s guilty verdicts for three counts of identity deception. We remand for judgment of conviction to be entered for the identity deception guilty verdicts and for resentencing. Finally, the trial court had statutory authority to impose jury costs, but the $400 fee exceeded its statutory authority of two dollars. Consequently, we remand for entry of a two-dollar jury fee. Affirmed in part, reversed in part, and remanded.
The Indianapolis Star has a brief story on the opinion here:
Indiana's criminal confinement law is too vague to allow the conviction of a man who tricked men into stripping by posing as a radio disc jockey, the Indiana Court of Appeals unanimously ruled Wednesday.

The court set aside Richard C. Brown's March 2005 convictions on three counts of criminal confinement but upheld his three convictions for identity deception. The three-judge panel sent the case back to Marion Superior Court for re-sentencing.

Brown was sentenced to five years in prison, plus three years suspended, after his trial in 2005.

Brown was on house arrest for criminal confinement in July 2004 when he phoned victims and posed as a WNOU-FM (Radio Now) disc jockey holding a contest with a prize of $50,000 cash or a car, according to court records.

Three men came to Brown's home. Two undressed, but the third noticed Brown's home detention ankle bracelet and left. He called the radio station, which notified police.

The Court of Appeals agreed with Brown's contention that the wording of Indiana's law does not make it clear that his behavior constituted criminal confinement, because no force was used.

Judge Terry Crone wrote that the vagueness of the language conceivably could make it a crime to trick someone into going to a surprise birthday party.

Posted by Marcia Oddi on Wednesday, June 07, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Leasing public assets to for-profit companies poses a tantalizing proposition for cash-strapped state and local governments"

Pat Guinane, who covered the legislative debate over leasing the Indiana Toll Road as Statehouse bureau chief for the Times of Northwest Indiana, and previously was Statehouse bureau chief for Illinois Issues, has published a long survey article in Illinois Issues Online. Titled "Public to private: Leasing public assets to for-profit companies poses a tantalizing proposition for cash-strapped state and local governments," it is available here.

(A hat tip to Indiana Daily Insight for the link.)

Posted by Marcia Oddi on Wednesday, June 07, 2006
Posted to Indiana Government

Ind. Courts - Terre Haute federal courthouse not on chopping block

The Lafayette Journal & Courier reports today, in a story by Joe Gerrety:

When a federal judge told Mike Stapleton last month that the federal court branches in Lafayette might be threatened with closure, the president of the Tippecanoe County Bar Association sprang into action.

On May 18, the day the Lafayette attorney received an intervention request from U.S. District Judge Allen Sharp, Stapleton sent out an e-mail to every member of the bar association, asking attorneys to contact Indiana's senators and U.S. Rep. Steve Buyer voicing concern.

Attorney David Rosenthal, the federal bankruptcy trustee in Lafayette, was among those who responded.

"It'd be a terrible thing," Rosenthal said of closing Lafayette's federal courts. "It's part of the civic identity of the community. It's part of the character of our community."

But less than three weeks after the concern was raised, it now appears to be unfounded.

A spokesman for the Administrative Office of the United States Courts in Washington, D.C., said Tuesday a federal review did not identify Lafayette or Terre Haute, also rumored to be on the chopping block, as a division that should be considered for closure.

Collins Fitzpatrick, circuit executive with the 7th Judicial Circuit in Chicago, also said he's "very confident" a closure of the Lafayette division is not being considered.

"That's periodically raised its head for the past 30 years," Fitzpatrick said. But with growing case- loads, closing the Lafayette division is less likely today than it was in the past, he said.

Steve Ludwig, the clerk of court for the Northern District, said he hadn't spoken with Sharp, but he had no knowledge of a plan to close the Lafayette division.

What is odd about this story is that the Terre Haute court IS, according to a number of stories the ILB has seen and reported, definitely in danger.

Posted by Marcia Oddi on Wednesday, June 07, 2006
Posted to Indiana Courts

Ind. Decisions - State high court takes Clark County dispute

"State high court takes Clark dispute: Decision expedites probation-fees case" is the headline to this story today by Alex Davis in the Louisville Courier Journal. It begins:

A sometimes-bitter power struggle between the Clark County Council and the county's four elected judges over probation fees is headed for the Indiana Supreme Court.

The move to take the case from the Court of Appeals, approved Thursday in an order signed by Chief Justice Randall T. Shepard, is a sign that the dispute may be moving toward a conclusion after nearly two years.

The trial court in the case ruled in favor of the judges.

"This is a signal, at the least, that the Supreme Court believes the case has statewide implications, and that it is important enough to expedite the process," David Lewis, a lawyer for the judges, said in an interview.

The council and judges are enmeshed in a lawsuit over nearly $1.9 million in user fees generated by court-supervised probation programs.

The council argues it should be able to use the fees to pay for salaries and other court-related costs as part of the county's annual budget. The judges claim that they should control where the money is spent and that the council is overstepping its authority.

Council member Barbara Hollis said the court's ruling could affect the way all of Indiana's 92 counties spend public money.

More from the story:
Before the dispute arose in late 2004, the council and judges often agreed to use a certain portion of the fee money each year to pay for court-related costs. But faced with growing expenses over the last two years, the council has moved to appropriate almost all of the fee money to cover salaries and other expenditures without resorting to employee layoffs.

Clark Superior Court Judge Steve Fleece issued a statement Friday that said the council's actions have, over the course of 18 months, depleted a fund that took 20 years to build.

Fleece also wrote that the judges believe it is a violation of constitutional due process to have the salaries of court employees so dependent on fees paid by participants in probation programs.

"Would you like to be a defendant in a criminal court where if you don't get convicted, the court staff can't buy groceries?" Fleece asked.

In March the special judge assigned to the case, Elaine Brown of Dubois County, ruled that the council's actions were illegal and ordered all of the money to be returned to the judges, along with legal expenses. Because the calendar year is not quite half over, some of that money has been appropriated but not spent.

The council appealed Brown's ruling to the Indiana Court of Appeals, and some council members had indicated they would appeal again to the state Supreme Court if Brown's ruling wasn't overturned at the appellate level.

In a related matter, Brown issued an order last week requiring the council to dip into its general fund to pay for government expenses after the probation fees are depleted.

Lewis said the need for that may come quickly because only $45,000 in fees were available as of last week. He said a review of the county's finances — compiled for the judges by an accounting firm — shows the county will need $319,000 in extra money to shore up this year's budget once the probation fees are exhausted.

Hollis said she wasn't overly concerned with Brown's order last week. She called the statements from Fleece "unnecessary."

For background, start with this March 8th ILB entry, and this one from Nov. 3, 2005.

Posted by Marcia Oddi on Wednesday, June 07, 2006
Posted to Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions | Indiana Courts

Tuesday, June 06, 2006

Ind. Decisions - Parallels between the Toll Road suit and the Fort Wayne Airport suit, redux; and more

Parts of the ILB entry from April 14th bear, I believe, repeating now that the Supreme Court will hear the Toll Road suit a week from today.

Like the Toll Road suit, the Fort Wayne Airport case also went to the Supreme Court via Rule 56(A), which permits an appeal directly from the trial court "upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination."

Relying on the 10-year general statute of limitations, IC 34-11-1-2, the Airport Authority had asserted that the statute prevented the plaintiffs from contesting the constitutionality of the airport authority statute.

The trial judge defined the issue as: "Whether the doctrine of the statute of limitations precludes citizens from contesting the constitutionality of a statute that provides a basis for the formation of an airport authority 17 years after the statute was enacted." He held that it did.

The ILB wrote at the time:

If upheld, would this decision mean that the General Assembly can protect its statutes from constitutional challenge by simply passing a law limiting the time for challenge (or perhaps totally prohibiting challenge)? Or does the separation of powers play a part here?
Last November, the Supreme Court denied the challenge to the airport authority law, relying not on the statute of limitations, as the trial judge had, but upon the equitable doctrine of laches, with Justice Boehm writing:
Because we hold that the plaintiffs’ claim is barred by laches, we need not address the statute of limitations issue which was the basis of the trial court’s ruling reaching the same result. We affirm the trial court’s entry of summary judgment for the defendants.
As the ILB wrote:
The Supreme Court thus avoided the question of whether the General Assembly by law could limit the time for challenge of a statute's constitutionality, by stating that the right to challenge the constitutionality of a statute, even apparently a statute that was void ab initio and in every application, could be lost by the passage of time.

It seems perhaps a short step from a holding that a patently unconstitutional statute could become unchallengeable though the passage of time via laches, and the same result via the application of a statute of limitations (although one turns on the inaction of a plaintiff, and the other upon a limitation set by the General Assembly.)

The Toll Road case presents at least two tests for the Court that are similar to those in the Fort Wayne case. First, there is a 15-day statute of limitations imposed upon "any action to contest the validity of a public-private agreement entered into under this chapter." Second, there is the separate "public lawsuit"* statute, which by its terms precludes challenge to public works projects unless a massive bond is posted.

Both of these are roadblocks thrown up by one branch of government, the legislature, to prevent citizens from going to a separate branch of government, the courts, to challenge the legislature's actions. The question: May the General Assembly effectively dismantle the constitutional system of checks and balances via artful drafting?

*IC 34-6-2-124 defines "public lawsuit" as:

(1) 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, including but not limited to suits for declaratory judgments or injunctions to declare invalid or to enjoin the construction, financing, or leasing; and
(2) any action to declare invalid or enjoin the creation, organization, or formation of any municipal corporation.
[More] The AP's Tom Coyne has had the time now to add some detail to the story he filed earlier today. Here is some of that detail:
The state asked for the speedy hearing because the private Spanish-Australian partnership that has agreed to 75-year lease can pull out of the deal if litigation is pending June 30, when the deal is scheduled to close.

"The speedy and expeditious resolution of this appeal is of unparalleled consequence to the citizens of this state, for the unassailable truth is that if this court does not accept jurisdiction now ... plaintiffs will in effect already have won - even though they may lose on the merits - for they will have kept their case alive just long enough to block the lease," attorneys for the state wrote in the filing. * * *

Under normal circumstances, challengers would have at least 60 days to file appeals. In this case, the Supreme Court ordered attorneys for the opponents - seven Indiana residents and the Citizens Action Coalition of Indiana - to file their appeal to Scopelitis' ruling by 5 p.m. Thursday.

Both sides then can quickly file responses, leading up to oral arguments that were scheduled for 1:30 p.m. Tuesday, with each side given 30 minutes to present its case.

The state said in its motion that a case of this sort normally would take a year or more, but that "is obviously wholly inadequate to protect the Indiana Finance Authority and the citizens of this state from potential losses."

It asks the court to have the matter resolved by June 30.

Lawyers questioning the constitutionality of the lease expected the case to move through the courts quickly, although the ruling puts pressure on both sides to meet deadlines.

"We can only presume that the court shortened the deadlines so it will have as much time as possible to give full consideration to the substantial and weighty constitutional issues raised in this appeal," said Jim Fenton, an attorney for the plaintiffs. "The decision in this appeal will chart the course of constitutional jurisprudence for years to come."

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Ind. Sup.Ct. Decisions

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

On May 28 the ILB posted quotes from a Chicago Tribune story that began:

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

I was unaware until today that on the following day, May 29, the LA Times pubilshed a lengthy story headlined "Misconduct Taints the Water in Some Privatized Systems." Some quotes:

INDIANAPOLIS — In recent years, cities across the U.S. have turned over a vital public service — providing safe drinking water — to private enterprise.

Driving the trend was the idea that for-profit companies, mainly European conglomerates, could operate water and sewer systems efficiently, keeping water quality high and costs low.

In some places, private-sector management helped trim bureaucracies and replace decaying infrastructure, local officials say. But in Indianapolis, New Orleans, Atlanta and other cities, privatization has been accompanied by corruption scandals, environmental violations and a torrent of customer complaints.

How did I learn about the story? Today Ed Feigenbaum's Indiana Daily Insight (in its section headed "In Other Words") quotes from a letter to the editor from Joseph Burgess, President and Chief Executive Officer of Veolia Water North America, published in the Los Angeles Times.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues two today

In Wendell E. Cox v. Northern Indiana Public Service Company, Inc., a 13-page opinion, Judge Robb writes:

Wendell Cox, a cable installer, filed a complaint against Northern Indiana Public Service Company, Inc. (“NIPSCO”) for negligence in the maintenance of the overhead high voltage electric wires and transformer affixed to a utility pole. NIPSCO filed a motion for summary judgment, alleging that it had no duty to Cox and therefore was entitled to judgment as a matter of law. The trial court granted NIPSCO’s motion for summary judgment and Cox now appeals. We affirm. * * *

Conclusion. Cox is charged with knowing the potential hazards of the electrical equipment with which he came into contact in the course of his employment. Because he has failed to designate any competent evidence of a defect or malfunction in that equipment that caused his injury, NIPSCO had no duty to him even though he was a member of a particular segment of the population that NIPSCO knew would be regularly exposed to its lines. The trial court properly granted summary judgment to NIPSCO on the issue of duty.

In Cleveland Townsley v. Marion County Department of Child Services, a 10-page opinion, Judge Sullivan concludes:
The court’s failure, in this CHINS adjudication, to comply with the requirements of I.C. § 31-34-13-3 to hold a separate hearing to determine the admissibility of child hearsay statements and its broad determination of the statements’ reliability in spite of the arguable inconsistencies in C.T.’s statements at issue undermine our confidence in its determination that C.T. is a CHINS. Accordingly, we reverse the CHINS adjudication and remand to the trial court with instructions to re-evaluate the CHINS petition consistent with the requirements of I.C. § 31-34-13-3. See J.Q., 836 N.E.2d at 967. C.T.’s placement shall remain in therapeutic foster care pending the court’s CHINS determination.

The judgment of the trial court is reversed, and the cause is remanded with instructions.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court to host public vendor demos by four finalists for statewide case management system

Headed "Invitation to Vendor Demonstrations for Statewide Case Management System", the invitation reads:

Invitation to Attend CMS Vendor Demonstrations

The Supreme Court's Division of State Court Administration invites
interested parties to attend the public vendor demonstrations on the
following Fridays in June and July:

6/16: Tyler Technologies, Inc.
6/23: Sustain Technologies, Inc.
7/7: Computer Systems, Inc. (CSI)
7/14: Maximus - Justice Solutions Division

These sessions will be held from 10:00 a.m. to 12:00 noon in the Indiana
Government Center South, Conference Room B, 402 West Washington Street,
Indianapolis, Indiana. Following the demonstration of the proposed case
management system, the vendor will field questions from the audience.

The Court welcomes your participation in the selection process for a
statewide 21st century case management system for Indiana.

Mary L. DePrez
Director and Counsel for Trial Court Technology
Indiana Supreme Court
Division of State Court Administration
Judicial Technology and Automation Committee

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides two today

In Dirk Morris, et al. v. Economy Fire and Casualty Company, a 5-page opinion, Justice Dickson concludes:

This is not a case where an insured, disputing or questioning the interpretation of an insurance policy, initiates a declaratory judgment action to seek judicial resolution. Rather, the Morrises here refused to comply with the policy conditions until first obtaining the prior recorded statements they gave to Economy's investigators, and when Economy refused to provide these statements, the Morrises brought a complaint in tort and immediately submitted interrogatories and requests for production of documents in order to use the rules of discovery to obtain their prior recorded statements. In expressly refusing to submit to examinations under oath until their prior recorded statements were furnished by Economy, the Morrises breached their policy contract. While claiming there was no breach, they do not alternatively contend that the breach was immaterial.

Having previously granted transfer, we now affirm the trial court's entry of summary judgment in favor of the defendants and against the plaintiffs.

State of Indiana ex rel. Indiana State Bar Association v. Gary L. Northouse and Michael E. Ramer, is an 11-page per curiam opinion:
This is an original action brought by the Indiana State Bar Association (“Relator”) in the name of the State of Indiana pursuant to Indiana Admission and Discipline Rule 24.1 Relator seeks an order enjoining Respondents Gary L. Northouse (“Northouse”) and Michael E. Ramer (“Ramer”) from the unauthorized practice of law. This Court has original jurisdiction over matters involving the unauthorized practice of law. See IND. CONST. art. 7, § 4. The Court finds Northouse and Ramer have engaged in the unauthorized practice of law and concludes an injunction is appropriate and necessary. * * *

Drafting and preparing testamentary and trust documents is clearly the practice of law. Northouse and Ramer crossed the line of permissible non-lawyer services and engaged in the unauthorized practice of law, as alleged in the petition. Indeed, the briefs filed by Northouse and Ramer do not deny that they engaged in the unauthorized practice of law. Instead, they take the position that this Court need not address that issue because this case is moot and, even if the case is not moot, an injunction is not proper. * * *

The evidence establishes that Northouse and Ramer have engaged in the unauthorized practice of law. Northouse and Ramer are ORDERED not to engage in acts that would constitute the unauthorized practice of law, including, but not limited to, advising others regarding the effect and/or appropriateness of a particular will, trust, or power of attorney, and preparing such documents for execution by others. This injunction does not prevent Northouse and Ramer from performing non-legal services for their clients.

Additionally, Northouse and Ramer are ORDERED to: (1) return the fees they collected for the unauthorized legal services in connection with the sale of the “Financial Organization” books mentioned in this opinion; and (2) provide a copy of this opinion to the purchaser of each such book. Within thirty days of the date of this opinion, counsel for Northouse and Ramer are ORDERED to file with this Court verified statements detailing how their respective clients have complied with the requirements in this paragraph. Those statements should include, at a minimum, identification (including name, address, and telephone number) of the purchasers to whom refunds and copies of this opinion have been provided and a specification of the amount of the refund.

The requirement that Northouse and Ramer provide the purchasers with a copy of this opinion is intended to allow each purchaser an occasion to consider whether to consult with a duly licensed lawyer of his or her choice to assess whether the documents sold as part of the book are suitable and appropriate for that purchaser.

The costs of the hearing in this matter are assessed against Northouse and Ramer and will be fixed by a separate order.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Here is the Supreme Court's briefing schedule for the toll road case.

Here is the briefing schedule issued by the Supreme Court last evening (6/5/06) in the toll road suit, Bonney v. Indiana Finance Authority.

The Supreme Court concludes that transfer pursuant to Appellate Rule 56(A) is appropriate, grants transfer, and assumes jurisdiction.

A rigorous briefing schedule is set out, culminating with oral argments on Tuesday, June 13th.

[More] Here is Tom Coyne's story about same. A quote:

The Supreme Court ordered the attorneys for the challengers - seven Indiana residents and the Citizens Action Coalition of Indiana - to file their appeal by 5 p.m. Thursday. The state and the Indiana Finance Authority, which runs the toll road, will have until 3 p.m. Monday to file their response.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions

Law - Even more on presidential signing statements

Charlie Savage of the Boston Globe, who the ILB has quoted in this May 28, 2006 entry, and in this April 30, 2006 ILB entry (modestly titled "My latest Res Gestae article coincides with important Boston Globe feature today"), had a lengthy story Sunday in the Globe reporting:

WASHINGTON -- The board of governors of the American Bar Association voted unanimously yesterday to investigate whether President Bush has exceeded his constitutional authority in reserving the right to ignore more than 750 laws that have been enacted since he took office.

Meeting in New Orleans, the board of governors for the world's largest association of legal professionals approved the creation of an all-star legal panel with a number of members from both political parties.

They include a former federal appeals court chief judge, a former FBI director, and several prominent scholars -- to evaluate Bush's assertions that he has the power to ignore laws that conflict with his interpretation of the Constitution.

Bush has appended statements to new laws when he signs them, noting which provisions he believes interfere with his powers.

Among the laws Bush has challenged are the ban on torturing detainees, oversight provisions in the USA Patriot Act, and ``whistle-blower" protections for federal employees.

In addition, Elizabeth Drew has a long article on signing statements in latest issue of The New York Review of Books. My issue arrived in the mail just yesterday, and I found Drew's opening paragraphs quite powerful:
During the presidency of George W. Bush, the White House has made an unprecedented reach for power. It has systematically attempted to defy, control, or threaten the institutions that could challenge it: Congress, the courts, and the press. It has attempted to upset the balance of power among the three branches of government provided for in the Constitution; but its most aggressive and consistent assaults have been against the legislative branch: Bush has time and again said that he feels free to carry out a law as he sees fit, not as Congress wrote it. Through secrecy and contemptuous treatment of Congress, the Bush White House has made the executive branch less accountable than at any time in modern American history. And because of the complaisance of Congress, it has largely succeeded in its efforts.

This power grab has received little attention because it has been carried out largely in obscurity. The press took little notice until Bush, on January 5 of this year, after signing a bill containing the McCain amendment, which placed prohibitions on torture, quietly filed a separate pronouncement, a "signing statement," that he would interpret the bill as he wished. In fact Bush had been issuing such signing statements since the outset of his administration. The Constitution distinguishes between the power of the Congress and that of the president by stating that Congress shall "make all laws" and the president shall "take care that the laws be faithfully executed." Bush claims the power to execute the laws as he interprets them, ignoring congressional intent.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to General Law Related

Law - "Law School in Two Years Flat"

"Law School in Two Years Flat: New program may have led to higher enrollment" is the headline to an intriguing story from the National Law Journal about "a new two-year program at the University of Dayton School of Law." Some quotes:

[T]he chance to shave a year off student expenses and get on with life after law school may be one reason that the school's applications are up 13 percent, despite a 4.8 percent decline in law school applications nationwide, according to the Law School Admission Council. * * *

The school is believed to be the first to offer a five-semester, 24-month accelerated schedule. Other schools also provide their own versions of accelerated programs, including University of Kansas School of Law and Syracuse University College of Law.

Dayton implemented its program after the American Bar Association decided last year to allow students to complete a law degree in 24 months, as opposed to the previous requirement of 36 months. While the number of hours that students must spend in class has not changed, they can complete those hours in a shorter time.

The 500-student law school allows participants to take 18 credits per semester.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to General Law Related

Environment - Several water stories of interest

James Bruggers of the Louisville Courier Journal reports:

Southern Appalachian streams are among the most stressed in the nation, according to a survey from the federal government.

In a region that includes most of Kentucky and parts of Southern Indiana, 55 percent of stream and small-river miles scored poorly for overall biological life -- the worst showing nationally.

The region also had the greatest percentage of stream miles with too much nitrogen and phosphorous -- nutrients that increase the growth of algae, decrease the availability of oxygen and cloud the water. Life-choking sediment also was blamed.

In one of the few bright spots, the report from the U.S. Environmental Protection Agency found that southern Appalachian streams have the second-best physical conditions for fish, behind the western mountain region. * * *

The EPA described its study as a national assessment of "wadeable" streams -- smaller waterways that have been overlooked in the past.

From 2000 through 2004, biologists studied 1,392 representative stream locations across the country, including 21 in Kentucky and 12 in Indiana.

"In a tale of 2 sewer systems, Chicago dumps more, but less into the lake" is the headline to a story in the Milwaukee Journa-Sentinel comparing and cotrasting its sewer system with that of Chicago's, the issue being, which is the worst polluter of Lake Michigan?

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Environment

Ind. Decisions - "Judge upholds political firing in Hammond"

"Judge upholds political firing in Hammond" is the headline to this story today by Joe Carlson i the Munster (NW Indiana) Times. Some quotes:

HAMMOND | A federal judge has sided with Hammond Mayor Thomas McDermott Jr. in what is apparently the last outstanding wrongful termination lawsuit stemming from 2004 mayoral transition.

U.S. District Judge Rudy Lozano ruled Friday that Donald Harney, a former general foreman in the city Recycling Department, was eligible for political firing because he held a policy-making job.

Harney had supported McDermott's opponent, incumbent Mayor Duane Dedelow Jr., in the 2003 mayoral election. He was fired from his job as second-in-command in the recycling department shortly after McDermott took office.

Harney said in his federal lawsuit that, among other claims, McDermott had infringed on his First Amendment right to freedom of speech by retaliating against him for political activity.

Case law says municipal workers can be fired for their political affiliations, but only if they hold high-ranking policy jobs -- positions where a mayor would confide political secrets or rely on them to make political calculations.

Although the judge noted that the decision to fire Harney was "likely imprudent," he ruled that ultimately it was within McDermott's power to fire him. Harney's job as No. 2 in the department left him in charge of operations frequently because then-Director Barb Hooper was frequently on vacation or out of town.

The ILB will post the 21-page decision in Harney v. McDermott shortly. Access it here.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Another editorial against serial meetings; General Assembly blamed

Adding its voice to that of the Evansville Courier& Press (see this ILB entry from Saturday), the Fort Wayne Journal Gazette today writes:

It’s not surprising that the Indiana Court of Appeals ruled in favor of the Indiana University Board of Trustees in a case alleging it broke the state’s Open Door Law when it fired basketball coach Bob Knight in 2000.

The trustees, after all, were only taking advantage of a handy loophole that allows public boards to circumvent the law by meeting in small groups. Then-IU President Myles Brand met with four trustees in the living room of his home while four others waited in another room. Thirty minutes later, he met with the second group: “To exclude any impropriety with respect to the Open Door Act,” Brand explained in a deposition.

Because a quorum was never present to discuss the firing, the definition of a public meeting was never met. The trustees met in a public session the following day to publicly fire the embattled coach.

Third District Judge Paul D. Mathias succinctly nailed the intentions of both the trustees and the General Assembly in his ruling: “The conduct of the IU Trustees was in direct contravention to the public policy behind the Open Door law,” he wrote. “While a more open process in matters of governance such as this might be preferable, the legislative branch of our state government has spoken. The law does not prohibit this conduct. Moreover and importantly, we know this because the General Assembly has repeatedly considered and declined to amend the Open Door Law to change the definition of a meeting.”

And it continues:
[Judge Mathias] goes on to cite the unsuccessful legislative attempts to close the loophole. Sen. Beverly Gard, R-Greenfield, has repeatedly sponsored bills that would prohibit governing bodies from holding a series of meetings to avoid a session with a quorum of voting members. The legislation was approved by the Senate this year, but died in a House committee for the second year in a row.

The court’s ruling is a clear invitation to fix the law, which is routinely abused by school boards and other public groups. If members of the General Assembly truly believe the public’s business is best done in public, they can demonstrate it by passing a law banning serial meetings.

Access the opinion in James R. Dillman, et al v. Trustees of Indiana University via this ILB entry.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Indiana Law

Ind. Law - "Dual lucrative offices" issue raises head in Vanderburgh County

The old bugaboo, the "dual lucrative offices" prohibition in the Indiana Constitution, simple in concept but difficult in application, has raised its head in Vanderburgh County, according to this story today in the Evansville Courier& Press by Thomas B. Langhorne. The prohibition is in Article 2:

Section 9. No person holding a lucrative office or appointment under the United States or under this State is eligible to a seat in the General Assembly; and no person may hold more than one lucrative office at the same time, except as expressly permitted in this Constitution. Offices in the militia to which there is attached no annual salary shall not be deemed lucrative.
The story reports:
Indiana's constitutional prohibition against "dual office-holding" forbids the holding of two "lucrative offices" simultaneously.

The Vanderburgh County Taxpayers Association thinks it may have found at least two examples among local public officials, who each say their dual office-holding is legal.

Rodney Witherspoon, the Taxpayers Association's point man on the issue, says the group is looking into the possibility of legal action.

"The Attorney General's Office, which is supposed to be enforcing this, is reluctant to call people on it," Witherspoon said.

As are most constitutional issues in which the debate is mostly among lawyers, the dual office-holding issue is open to interpretation.

According to a guide issued by the Indiana Attorney General's Office, a person holds a "lucrative office" under the constitution "when he or she holds title to an office in which he or she is authorized to exercise some of the state's sovereign power and where the person is entitled to compensation."

"Essentially, if state law grants any of the state's power (i.e., eminent domain, prosecution, taxation) to a public service position and the person holding such public service position is entitled to get any amount of money for serving in that public service position, then the public service position is considered a lucrative office for purposes of (the constitution)," states the Attorney General's guide.

"... Only pure reimbursement does not constitute compensation."

According to the Taxpayers Association, that means Donald Vowels and Mike Duckworth are in violation.

Vowels, an attorney, has been a member of the Indiana Gaming Commission since 1993. He also is a Democratic member of the Vanderburgh County Election Board.

But Vowels said neither job is "lucrative" by any stretch of the imagination.

"Indiana courts have defined the word 'lucrative' as referring to compensation that is profitable," he said. "I get $50 per meeting of the Gaming Commission, and we meet at least once a quarter. That's obviously not lucrative."

Witherspoon cites a section of state law that says each member of the Election Board "shall be paid an annual salary of not less than $10,000."

The Attorney General's guide is available here.

Posted by Marcia Oddi on Tuesday, June 06, 2006
Posted to Indiana Law

Monday, June 05, 2006

Ind. Courts - "Former priest named in new abuse suit" [Updated]

Related to the ILB entry Saturday headed "Ind. Decisions - 'Lawsuit against church dismissed: Statute of limitations expired, judge rules;' General Assembly partially blamed," is this story this afternoon by Robert King of the Indianapolis Star, reporting:

A ninth lawsuit against former Indianapolis priest Harry Monroe alleges he abused a teen altar boy in the 1980s at a southern Indiana parish.

The suit, filed today in Marion Circuit Court, also alleges that the Archdiocese of Indianapolis committed fraud because it was aware of the priest’s abusive tendencies when it put Monroe in the post of youth minister.

The suit, filed Monday on behalf of “John Doe OD” by Minnesota attorney Pat Noaker, alleges the abuse took place at the St. Michael parish, in the Ohio River town of Cannelton, from approximately 1982 to 1983.

Here is the theory behind the new suit:
The filing comes after a circuit judge in southern Indiana tossed out 23 abuse cases on Friday involving a different priest because he reasoned they were filed after the statutes of limitation had expired. Clark Circuit Judge Daniel F. Donahue ruled that plaintiffs have to sue within two years of their 21st birthdays.

In a press conference today, Noaker said he was convinced that the statutes had not expired with regard to his cases against Monroe. Most of the abuse allegations center on events decades ago. But Noaker said his clients recognized the injuries from them only recently.

[Updated 6/6/06] An AP story today by Ken Kusmer adds this information:
On Friday, Clark Circuit Judge Daniel F. Donahue dismissed a lawsuit brought by 23 plaintiffs who claimed to have been molested by the late Rev. Albert Deery while they attended Jeffersonville's St. Augustine Elementary School during the 1950s and 1960s.

Donahue said Indiana's statute of limitations required the plaintiffs to have sued within two years of their 21st birthdays, but none did.

Noaker, however, said the lawsuit he filed yesterday should go forward because Indiana law allows plaintiffs six years to file civil claims once they discover fraud, and the alleged fraud in this case was not discovered until last November.

It was not until then that the plaintiff learned the archdiocese had shuffled Monroe from parishes in Indianapolis to Terre Haute and finally to Perry County as it received newer allegations against him.

"This man was clearly … abusing children at every stop," he said.

"You can't put someone out there, put a collar on them, and then say, 'How were we to know?' "

Noaker also included fraud charges in some of the previous lawsuits brought by other plaintiffs.

The archdiocese issued a statement that said it urges people to come forward if they have been a victim of sexual misconduct by anyone ministering on behalf of the Church.

It also said it has published information about the lawsuits concerning Monroe in its newspaper, The Criterion, which is delivered to all Catholic households, and in letters and bulletin inserts made available to the parishes where Monroe served.

Posted by Marcia Oddi on Monday, June 05, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Group files official notice it will appeal toll road ruling

"Group files official notice it will appeal toll road ruling" is the headline to this story this afternoon by the AP's Tom Coyne. Some quotes:

SOUTH BEND, Ind. (AP) -- Opponents of the state's plan to lease the Indiana Toll Road filed notice Monday they will appeal a judge's ruling that they must post a $1.9 billion bond to continue their legal challenge.

The seven Indiana residents and the Citizens Action Coalition of Indiana did not give specific reasons for challenging St. Joseph Superior Court Judge Michael Scopelitis' May 26 ruling. The notice simply asks the St. Joseph County clerk of court to assemble a record of the hearing. * * *

The defendants are expected to file a motion asking the Indiana Supreme Court to take jurisdiction of the case because of the time crunch the state is under. * * *

Normally lawyers for the plaintiffs would have at least 60 days to file their formal appeal. But Jane Jankowski, press secretary for Gov. Mitch Daniels, said the state will ask the Supreme Court to expedite the case.

"Our lawyers will ask the Indiana Supreme Court to take immediate jurisdiction of the case so we can close this chapter as soon as possible," she said.

That sounds like Rule 56(A) to me, as mentioned in this May 26 ILB entry as "An observation" and also this entry from earlier the same day.

The Indianapolis Star aslo has posted a brief story on the notice of appeal.

Posted by Marcia Oddi on Monday, June 05, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals decides two today

In Stephen Wieland v. State of Indiana, a 9-page opinion, Judge Sullivan writes:

Appellant, Stephen Wieland, challenges the denial of his petition for post-conviction relief. Upon appeal, Wieland presents one issue for our review: whether his appellate counsel was ineffective for failing to amend his brief on direct appeal in order to challenge his sentence in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm.
In Jeffrey Cole v. State of Indiana, a 12-page opinion, Judge Sullivan writes:
Appellant, Jeffrey L. Cole, challenges the trial court’s imposition of maximum, consecutive sentences upon his convictions for Resisting Law Enforcement as a Class D felony and Possession of Chemical Reagents or Precursors with Intent to Manufacture as a Class D felony. Specifically, Cole claims that the crimes were part of a single episode of criminal conduct and that the trial court’s discretion was statutorily limited to imposition of an aggregate sentence not exceeding the presumptive sentence for a Class C felony, the next-higher class of felony than the most serious crime for which he was convicted. We reverse and remand. * * *

Subsequent to this split among the panels of this court, two more cases have treated the issue of what constitutes an episode of criminal conduct for purposes of I.C. § 35-50-1-2(c). * * *

In the present case, we agree with Cole that Ratliff was incorrectly decided, and instead choose to follow Johnican,3 Haggard, and Massey. Indeed, we find this case essentially indistinguishable from Johnican. As in Johnican, here Cole’s possession of the ammonia occurred at the same time and place as his act of fleeing from the police and would not have been discovered had Cole not been driving while being an habitual traffic offender and fled. We find the State’s citation to Monyhan v. State, 780 N.E.2d 1187 (Ind. Ct. App. 2003), unavailing. * * * Upon remand, the trial court is instructed to reduce Cole’s aggregate sentence to no more than four years.

The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, June 05, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Vanderburgh Court to begin videoconferencing of prisoners

The Evansville Courier& Press reports today, in a story by Jimmy Nesbitt, that:

The first-ever video conference court hearing in Vanderburgh County could take place as early as next month. The installation of video hardware began Tuesday in Misdemeanor Court and is expected to be completed by the end of the month, said David Rector, director of the city-county Building Authority. * * *

On any given weekday, up to 100 inmates are bussed from the jail to the courthouse, once in the morning and again in the afternoon. At least a quarter of those would be eligible for videoconferencing, said Vanderburgh Superior Court Judge Robert Pigman. Pigman said the installation hasn't been delayed.

"Nobody anticipated doing this when the jail first opened," he said. The $70,000 project is the first if its kind in Vanderburgh County. It includes three plasma televisions, a 50-inch screen over the left shoulder of the judge and two 42-inch screens in the audience to cover both sides of the courtroom. On the judge's bench, a monitor and camera will allow the judge to see the inmates at the jail and vice versa.

"It's going to be pretty neat," Rector said. If the video conferences go well in Misdemeanor Court, similar equipment may be used in felony cases, Pigman said.

Posted by Marcia Oddi on Monday, June 05, 2006
Posted to Indiana Courts

Law - "Before" and "After" charts of Illinois state hiring practices

The Chicago Sun-Times offers another fascinating look today at Illinois Gov. Blagojevich’s hiring practices, before and after a federal hiring probe was initiated. Some quotes:

Shortly after federal investigators launched a probe into Gov. Blagojevich's hiring practices, his administration overhauled the way it awards state jobs, the Chicago Sun-Times has learned.

The changes, detailed in documents obtained by the newspaper, drastically scaled back the hiring duties of the governor's personnel office and chief of staff. They took effect in January of this year -- about two months after the feds peppered the governor's office and three state agencies with subpoenas for job placement records.

Disclosure of the changes comes as Blagojevich fights accusations that job candidates' political connections, not their qualifications, played roles in hiring decisions in possible violation of the law. No one in the governor's office has been charged with any crime, and the feds have declined to comment about the hiring probe.

Recall this ILB entry from May 18th, also quoting the Sun-Times, which reported that:
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 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.

Today's story includes links and summaries to the "before" and "after" hiring charts:

Flow charts obtained by the Sun-Times and verified by Gov. Blagojevich’s office detail his hiring system and changes to it. The following are summaries:

Original system (October 2003)

  • Job request made.
  • Request reviewed by governor’s personnel office, a Blagojevich deputy chief of staff and governor’s budget office.
  • “Personnel Action Request” (PAR) committee discusses request behind closed doors at weekly meeting.
  • If approved, governor’s office reviews job posting.
  • If approved, governor’s personnel office posts job and enters candidate information.
  • Governor’s chief of staff performs “final review of transaction, candidate and salary.” Candidate’s name to be “hidden” if job is protected by Rutan court decree.
  • Job offered.
Click here to view the original chart

Revised system (Jan. 9, 2006)

  • Job request made; agency director reviews to see if position is Rutan protected.
  • Request reviewed by a Blagojevich deputy chief of staff and budget office. (Governor’s personnel office no longer reviews request. PAR committee review discontinued, according to governor’s office.)
  • If approved, agency’s personnel office (not the governor’s) posts job and enters candidate information.
  • Governor’s chief of staff performs final review of candidate only if position is Rutan exempt. Otherwise, review is performed by budget office.
  • Job offered.
Click here to view the revised chart

Posted by Marcia Oddi on Monday, June 05, 2006
Posted to General Law Related

Sunday, June 04, 2006

Law - Pennslyvania legislative expenses; Indiana Daily Insight blogger quoted

The Pittsburgh Tribune-Review has a long story today on Pennsylvania's election law and campaign expenses. Some quotes:

Pennsylvania's election law is so broad it allows legislators to spend money on just about anything, a study by the Pittsburgh Tribune-Review found. * * *

The thousands of dollars spent on trips and entertainment "contributed to and will continue to contribute to the outcome of my elections," [Pennsylvania House Speaker John Perzel] and [his chief of staff, Brian Preski] said in response to written questions from the Trib. * * *

What's unusual about Perzel's campaign is the amount -- $700,000 -- in reimbursements to legislative staffers assisting his campaign. They assisted on their own time, Perzel said.

Preski, an attorney, is paid $160,000 by state taxpayers to oversee Perzel's legislative staff. In 2005, the campaign paid him a $56,000 salary, and in 2004 and 2005 reimbursed him a combined $264,000 for expenses ranging from bottled water to the Vegas trips and the Super Bowls.

Preski's reimbursements, documented in more than 2,300 receipts reviewed by the Trib, far exceed those paid by campaigns to aides of other legislative leaders in Pennsylvania.

The receipts provide a rare look inside a financially flush, high-profile campaign -- one that cut more than $700,000 in reimbursement checks to family, friends and legislative staffers as some Republicans across the state were beginning what would become a struggle for survival.

Perzel, who helped orchestrate last year's later-repealed legislative pay raise, escaped a primary election challenge May 16, when voters defeated 11 of his House Republican colleagues. * * *

Legislative staffers often perform campaign work on what they say is personal time. Yet, experts were stunned at the $700,000 Perzel's campaign funneled through staffers.

"That's incredible to me," said Robert Stern, director of the nonprofit Center for Governmental Studies in Los Angeles, and co-author of California's strict campaign spending guidelines. * * *

Edward D. Feigenbaum, an Indiana attorney who wrote the Federal Election Commission's guide to state election laws, said the amount of money changing hands raises questions about the Perzel-Preski arrangement.

"When you're looking at amounts that high it also calls into question what master they are serving. Are they serving the candidate first, or the elected official?" Feigenbaum said.

Posted by Marcia Oddi on Sunday, June 04, 2006
Posted to General Law Related

Ind. Law - Warning to those who rely on the online Indiana Administrative Code

Warning! The ILB has written at length in earlier entries about how the Indiana Register will no longer be published. The General Assembly and its staff agency, the Indiana Legislative Services Agency (LSA), have decided to eliminate it, despite protests of law librarians and the legal community.

Although this monthly, paged document, along with its indices, tables and other aids, has not been available as a printed publication for a number of years (except to legislators), it has been published online. That practice will end this month.

In its place, the LSA has announced, the hundreds of various rulemaking documents, notices, non-rule policy documents, etc., etc., will simply be posted online as individual documents as the LSA staff gets to them.

At a meeting I attended May 15th (see an ILB entry about the meeting here, along with links to related entries), we were told that the online Indiana Admnistrative Code (IAC), which is the codified version of the various agencies' rules) would continue to be provided online. (Citizens have been unable to purchase a printed version of the IAC for years.)

The printed version of the IAC, when it was available, came out annually. The online version of the IAC is updated monthly and thus is always current.

Or at least it has been in the past. Today I was reviewing some water rules and discovered that the rules I was looking at, in 327 IAC 8, do not include amendments that I know took effect May 23, 2006.

Then I looked back to the main page and read that the entire online IAC was last updated "April 26th, 2006"!

When a number of us at the LSA meeting last month, run by Phil Sachtleben, executive director of the Legislative Services Agency, complained about the cutbacks the General Assembly was making in the services it has traditionally provided to the public involving access to the statute law and rules, and how those changes were damaging the historical record, he said: "Aren't there private publishers doing this?"

The clear implication was -- this is not our responsibility. Sachtleben, BTW, is reportedly leaving the LSA for a lobbying job with Ball State shortly.

I hope to write more about this later this week. I also hope to write of concerns about the Indiana Code and the Acts of Indiana. I have heard from some law librarians, I'd like to hear from more, as well as others concerned about, or affected by, the retreat of our General Assembly from, what I at least consider to be, its responsibility to make the laws of Indiana accessible to its citizens.

Posted by Marcia Oddi on Sunday, June 04, 2006
Posted to Indiana Government | Indiana Law

Ind. Decisions - "Toll Road ruling should be feared, not praised"

"Toll Road ruling should be feared, not praised" is the headline the Indianapolis Star has given to this letter from Thomas Heller of Columbus, published in today's Star. Some quotes:

Judge Scopelitis' ruling that opponents of the Toll Road lease must post a $1.9 billion bond if they wish to challenge the legality of the lease is not something that should be praised. To the contrary, the judge's ruling -- and the law on which it is based -- it is something to be feared.

It serves notice on all Hoosiers that attempting to fight elected officials and bureaucrats in city hall, the Statehouse or even the local township office will cost them dearly. It warns us that fair access to the courts on issues of substantial public import is greatly limited -- and, worse, the actions of those officials and bureaucrats are presumed to be lawful.

These folks are not our masters. They are sworn to serve us. So why would The Star cheer when a judge levies such an enormous bond on those who apparently seek to ensure that the lease and the revenues from it are properly within the bounds of state law and the state Constitution? Let the legal issues be decided by the law, not be "priced out" of the courts, as the judge would have it.

For background on the toll road suit, start with this May 30th ILB entry.

Posted by Marcia Oddi on Sunday, June 04, 2006
Posted to Ind. Trial Ct. Decisions

Law - How Blogs Are Transforming Legal Scholarship

The Beckman Center for Internet & Society at Harvard Law School held a symposium in late April on "How Blogs Are Transforming Legal Scholarship." Here is the agenda. Here are links to all the papers.

The event was streamed live. An MP3 was to be available "a week" later, but has not yet appeared. When, or if, it is posted, it will be available at this link.

While on the topic of law professor's blogs, my vote for the best by far is Prof. Douglas A. Berman's Sentencing Law blog. He is the William B. Saxbe Designated Professor of Law at Moritz College of Law at The Ohio State University.

Take a look at this entry from yesterday. A quote:

I was thinking about Judge Rakoff's decision this past week to give an enormous variance — the largest I have seen — to a corporate president who apparently faced a life sentence under the guidelines after a fraud conviction that resulted in $260 million in losses. [He quotes from the AP: "The president of a health care company that once was a Wall Street darling was sentenced Tuesday to three and a half years in prison by a judge who rejected arguments that he deserved a much lengthier term."]
Or this entry, also from yesterday, that reflects his enthusiasm for his topic (a sure sign of a great professor):
I am extraordinarily excited to discover that, as was promised at terrific Miami FSG conference, the US Sentencing Commission has now made available at its website its 2005 Annual Report and 2005 Sourcebook of Federal Sentencing Statistics.

Posted by Marcia Oddi on Sunday, June 04, 2006
Posted to General Law Related

Environment - Wetlands project holds open house

The Fort Wayne Journal Gazette reports today, in a story by Sarah A. Melsch:

A year ago, Eagle Marsh was farmland, home to corn and soybeans. Now, 676 acres of floodplain are in the process of being restored to wetlands, prairies and forest areas, home to a wide diversity of plants and wildlife.

The Little River Wetlands Project had an open house Saturday to introduce people to Eagle Marsh and its plans for it. People gathered in a barn off Engle Road to look at exhibits of the restoration process, pick up a free plant, make a donation or sponsor a nesting box, and head off on a tour of the area.

“It’s taken us 15 years to get to this point,” said Richard Poor, president of Little River Wetlands Project.

The group bought 680 acres a year ago for $1.8 million, said Paul McAfee, the project’s executive director. Four acres aren’t suitable for restoration. The land is southwest of Fort Wayne in Aboite and Wayne townships. It’s adjacent to Fox Island County Park, and its northern border will be part of the towpath trail for Aboite New Trails. * * *

Neighborhoods near Eagle Marsh already have noticed reduced flooding, he said.

As he spoke, an egret flew by.

While significant, Eagle Marsh and other areas already owned by the project are just part of the plan for the Little Wabash River Valley.

“We have almost 1,000 acres, but we have 20,000 acres to go,” Poor said. “We want to restore all available wetlands.”

Posted by Marcia Oddi on Sunday, June 04, 2006
Posted to Environment

Saturday, June 03, 2006

Ind. Gov't. - Still more on: Dunes Inn idea is a bust - no bids received

The Chesterton Tribune's Vicki Urbanik had a story Friday reporting the Save the Dunes' rebuttal to the following statements by DNR chief Kyle Hupner, reported in an earlier Urbanik story:

When asked if the DNR will hope to change people’s minds about the inn through a public forum, Hupfer said he won’t pretend to have such influence. He said hotel opponents have been opposed to any new developments in the park. He cited as an example the opposition against the state park’s Nature Center years ago.

“I don’t know if we can change the minds of the folks who want the park for themselves,” he said.

In a second story in Friday's Tribune, Urbanik reports:
A few people said they don’t think the hotel fight is anywhere near to being over. Indeed, DNR Director Kyle Hupfer said earlier in the day that the state will now conduct an indepth study to see how and if the DNR could build and operate the hotel on its own, just as it has at six other state parks, instead of the privatized facility originally planned.

“We need to do what’s called eternal vigilance,” said Save the Dunes Council President Susan Mihalo.

Save the Dunes Council Executive Director Tom Anderson said the state doesn’t have enough resources to manage the park but it apparently has the time to do a detailed economic study on a hotel that even private sector is not interested in. “To me, there’s an inherent conflict there,” he said.

Mihalo said rather than a study, the DNR should return to its mission of protecting public resources. “I really wish the state would not waste any more resources on this,” she said.

Anderson also said that the Save the Dunes Council earlier suggested acquiring more land for the state park and building the hotel there. But the focus, he said, was on the beachfront lot. “The thing that seemed to be driving it was the lake view,” he said.

Posted by Marcia Oddi on Saturday, June 03, 2006
Posted to Environment | Indiana Government

Ind. Courts - "Behrman autopsy details may be released"

Re the continuing efforts of several Indiana papers to obtain the sealed autopsy report on Jill Behrman's death, the Indianapolis Star posted this story by John Tuohy yesterday afternoon:

The prosecutor overseeing the Jill Behrman murder case said today he might reveal what killed the 19-year-old Indiana University student.

The cause and manner of Behrman’s death and other information in the autopsy have been sealed since December 2003 by order of Morgan Superior Court Judge G. Thomas Gray.
At the time, he agreed with prosecutors that disclosing the information before an arrest was made could hurt the investigation.

In April, a Morgan County grand jury indicted John R. Myers II, 30, on a murder charge in Behrman’s death. The Bloomington Herald-Times and The Indianapolis Star then made freedom of information requests, contending the autopsy should be unsealed.

Gray has scheduled a hearing on the Herald-Times’ request for 9 a.m. Thursday.

Morgan County Prosecutor Steve Sonnega said he might decide to release the cause and manner of death if other details about the slaying — things only the killer would know — could be kept secret. But he said he would oppose releasing the entire autopsy because he feels it would intrude on Behrman’s medical privacy. * * *

[Judge] Gray said Sonnega was free to release whatever information he pleased.

“The ball is in his court,” Gray said. “I sealed the record at his request. If he wants to unseal it, he can do so. He can hold a press conference before the hearing, and then no one needs to show up Thursday. That’s fine by me.”

For background, see this March 10th ILB entry.

Posted by Marcia Oddi on Saturday, June 03, 2006
Posted to Indiana Courts

Environment - Still more on: Gravel pits in the news in Martinsville and Carmel

Updating these ILB entries from April 27th and April 29th, the Indianapolis Star reports today:

Noblesville -- A rejected attempt by Martin Marietta to expand its Carmel mining operation is back in play in Hamilton Superior Court.

In a lawsuit filed against the city of Carmel and its Board of Zoning Appeals, Martin Marietta Materials claimed the board's 4-0 vote April 26 to deny expansion was illegal and should be overturned.

The lawsuit, filed May 24, contends the board's refusal to permit mining on 96 acres at 106th Street and Hazel Dell Parkway ignores reliable evidence presented by company representatives and relies on baseless opinions of neighboring residents and Carmel Mayor Jim Brainard.

Martin Marietta general manager John J. Tiberi asserted that the board's denial of the permit was based on insufficient and improper evidence from opponents, "including testimony and opinions of the mayor of the city of Carmel." Tiberi seeks a court order forcing the board to grant the permit.

The company, which mines sand, gravel and industrial limestone, has been trying to expand its operations on land it leases since 2002. Because the land is zoned low-density residential, expansion would require a special use permit.

More than 1,000 area residents have opposed the expansion. Some told zoning board members that the company's use of explosives made homes shake.

Posted by Marcia Oddi on Saturday, June 03, 2006
Posted to Environment | Indiana Courts

Ind. Decisions - "Lawsuit against church dismissed : Statute of limitations expired, judge rules "; General Assembly partially blamed

The Louisville Courier Journal reports today, in a story by Dick Kaukas:

A judge dismissed a lawsuit yesterday filed by 23 people who said they were sexually abused by a former Jeffersonville priest, ruling that it was filed too late.

Clark Circuit Judge Daniel F. Donahue said in his one-page order that Indiana's statute of limitations barred the case from moving forward. * * *

Donahue ruled that state law requires the plaintiffs to have filed suit within two years after turning 21.

None of them did.

The decision apparently brings an end to the case, which dates to September 2002. Lonnie T. Cooper, attorney for the 23 plaintiffs, said after reading Donahue's order that "we have no intention at this point of appealing."

He said they believe the ruling is correct based on current law and added that the plaintiffs knew the statute of limitations would be a "major hurdle" to overcome.

The plaintiffs decided to move forward nonetheless, Cooper said, because "sometimes you can change the law" and because "all of these individuals had been abused … and they needed a forum to tell their story, to say what happened to them, how the Catholic Church let them down." * * *

Cooper and other lawyers for the 23 plaintiffs wrote in response to [church attorney] Mercer's motions that when the abuse was taking place and afterward, the plaintiffs were too young to realize the extent of the psychological harm they had suffered.

The "traumatic experience of being abused," the lawyers argued, kept the plaintiffs from understanding that their "adult psychological difficulties" were caused by the abuse.

For that reason, the plaintiffs contended, Donahue should permit "an exception to the limitations period."

Donahue's order simply says that the claims were prohibited by the statute of limitations. * * *

Cooper also said yesterday that the plaintiffs had hoped the church would be "compassionate," despite the legalities of the case.

"The Catholic Church has chosen, and it is their legal right to do so, to use the statute of limitations to not take responsibility for what happened," he said.

One of the plaintiffs who said he was molested by Deery, when he was assigned to St. Augustine parish and school in Jeffersonville, is Clark Superior Court Judge Steven Fleece.

"Everybody recognized from the outset that the statute of limitations was a difficult bar to get over," he said yesterday.

Some states, Fleece said, have changed that to permit suits in similar cases. He added that attempts to get the Indiana legislature to do the same were unsuccessful, dimming hopes of success in the Clark County case.

"I took a stand along with other victims of Father Deery because I thought that was just," Fleece said. "But what's just and what's legal, unfortunately, are not always the same."

He added that the archdiocese "got a pass because of the statute of limitations." * * *

The Clark County case is similar to litigation around the country by people who say they were childhood victims of abuse by Catholic priests.

For example, in 2003 the Archdiocese of Louisville reached a $25.7 million settlement with 243 plaintiffs who had made abuse claims.

Posted by Marcia Oddi on Saturday, June 03, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Law

Ind. Decisions - Editorial decries yesterday's "serial meetings" decision, blaming General Assembly

In its "Cheers, Jeers and Tears" column today, the Evansville Courier& Press takes note of yesterday's Court of Appeals ruling in the Bob Knight open door decision (see ILB summary here, 2nd case), writing:

The Indiana Court of Appeals has ruled that Indiana University trustees did not break state law when they met in small, separate groups to discuss the impending firing of men's basketball coach Bob Knight, reports the Associated Press.

The appeals court said the Indiana legislature has defined a "meeting" under the state's open door law as a gathering of a majority of a board's members. Consequently, without a majority present, no meeting occurs for purposes of the open door law.

The truth is, the IU trustees, and any other government boards that engage in "serial meetings," do so to avoid the law. Our jeer today goes to the Indiana Legislature which has refused, at least for the past two sessions, to make serial meetings illegal.

For a list ILB entries on efforts to ban serial meetings, check here.

Posted by Marcia Oddi on Saturday, June 03, 2006
Posted to Ind. App.Ct. Decisions | Indiana Law

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

Referencing its earlier story by Niki Kelly re Governor Daniels imposing additional steps in FSSA contract review process (see ILB entry here), the Fort Wayne Journal Gazette editorializes today, under the headline "Governor takes control":

There are two ways that Gov. Mitch Daniels’ decision to take over the Family and Social Services Administration’s move to privatize welfare eligibility could go.

He could ensure that a decision that profoundly affects so many fragile lives receives the careful analysis it should have gotten in the first place, bringing light and clarity to a murky process.

Or he could advance a pre-ordained contract that gives $1 billion to FSSA Secretary Mitch Roob’s former employer. If he chooses the latter, he’ll be greasing the skids on the road to a debacle.

Posted by Marcia Oddi on Saturday, June 03, 2006
Posted to Indiana Government

Ind. Courts - "Appraisers blamed in bank losses"

"Appraisers blamed in bank losses" is the headline to a story today in the Fort Wayne Journal Gazette by Rebecca S. Green that begins:

Hicksville Bank filed another lawsuit against area appraisers, this time alleging appraisal errors on 48 properties that have cost the bank more than $1 million.

According to the lawsuit, a number of area appraisers and appraisal companies – Glenn Howard, Howard Group Appraisals, Sterling Realtors & Appraisers LLC, Patrick A. Early, Early Appraisal Services Inc. and Aaron Rollins – appraised a total of 48 properties since July 2002 with a collective value of $2,071,000.

But when bank officials began investigating the properties’ vacancy rates and delinquencies, they found the appraisals contained a number of misrepresentations – including vacant properties identified as being occupied, rental properties identified as being owner-occupied, photographs that did not match the properties and grossly inflated market values, according to court documents.

The bank had the properties reappraised, and the 48 were actually valued at $612,500, according to court documents.

Posted by Marcia Oddi on Saturday, June 03, 2006
Posted to Indiana Courts

Friday, June 02, 2006

Ind. Decisions - Former Sullivan County attorney found guilty of stealing

The Greene County Daily World reports today:

A former Sullivan County attorney charged with stealing more than $349,000 from a client's trust fund - with ties to a Linton couple - plead guilty Thursday to a single Class C felony theft charge in Sullivan Superior Court.

It has been alleged that Julia A. Johnson-Sheffler used the stolen trust money to pay her real estate property taxes, personal income taxes, and to purchase a $10,000 John Deere tractor, according to court documents.

The Ann Klapper Testamentary Trust became Sheffler's responsibility to administer in 1997. In 2003, Sheffler was ordered by the court to provide a status of the trust. An independent audit was then sought. The trust was found to have been reduced from $947,000 in 1997 to $260,526 in 2003. * * *

Sheffler, who resigned from the Indiana State Bar Association in June 2005, has repaid nearly $340,900 of the $349,113 taken from the trust fund, according to court records.

As part of the plea agreement, the former attorney will avoid going to prison; instead, she will spend two years on probation.

The plea agreement was taken under advisement by Superior Court Judge Thomas Johnson, and he ordered a pre-sentence report to be prepared by the probation department. A sentencing hearing is set for 10 a.m. June 29.

Posted by Marcia Oddi on Friday, June 02, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending June 2, 2006

Here is the Indiana Supreme Court's transfer list for the week ending June 2, 2006.

It includes the May 25th grant of transfer in the case of Kelley v. Tanoos, discussed in this May 28th ILB entry.

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, June 02, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending June 2, 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 June 2, 2006.

Posted by Marcia Oddi on Friday, June 02, 2006
Posted to NFP Lists

Ind. Decisions - Court of Appeals decides two today (including Bob Knight open door case)

In James R. Dillman, et al v. Trustees of Indiana University, a 9-page opinion, Judge Mathias writes:

James R. Dillman, et al (“Appellants”) appeal from the Monroe Circuit Court’s grant of summary judgment in favor of the Trustees of Indiana University (“Trustees”). Appellants raise the following combined and restated issues:

I. Whether the trial court erred in determining that the Indiana Open Door Law did not apply to a gathering of less than a majority of the Trustees; and,

II. Whether the trial court erred in determining that the Indiana University President’s decision to terminate the contract of a basketball coach was made pursuant to a delegation of authority by the Trustees and not subject to the Open Door Law.

Concluding that neither a gathering of less than a majority of the nine Trustees nor the university president’s decision to terminate a contract were subject to the Open Door Law, we affirm.

In UFG, LLC, David Henigan, et al v. Southwest Corporation, a 20-page opinion, Judge Vaidik writes:
UFG, LLC (“UFG”), David Henigan (“Henigan”), LaVern Schramer, Jr., and Carol Schramer (collectively, “Buyers”) appeal the trial court’s judgment in favor of Southwest Corporation (“Seller”) in Buyers’ action for specific performance and legal damages. Specifically, Buyers argue that the trial court erred in finding that specific performance is no longer an available remedy and that Buyers abandoned any claim for legal damages by electing specific performance as their remedy. We affirm the trial court’s ruling that specific performance is not an available remedy, but because Buyers never “elected” specific performance as their remedy, we reverse and remand with instructions for the trial court to hold a hearing on Buyers’ alternate remedy of legal damages.

Posted by Marcia Oddi on Friday, June 02, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Orange County eyes courthouse renovations

"Orange County eyes courthouse renovations: Project could cost $2.5 million" is the headline to a story by Roger Moon today in the Bedford Times-Mail. Some quotes:

PAOLI - Installation of an elevator is among changes planned at the historic Orange County Courthouse as part of a $2.5 million renovation plan designed to make the 156-year-old building compliant with the Americans with Disabilities Act.

A joint meeting between Orange County Commissioners and Orange County Council members resulted in the council approving a motion made by council member Alan Waynick to “support commissioners in the upkeep of the courthouse.” The vote was 6-0, with one council member absent.

Waynick said before the vote was taken, “I don't feel like we have any choice. ... I just feel like we need to restore it.”

The addition of an elevator is one of a number of changes that commissioners would like to see made at the courthouse so it can be preserved. The last major renovation work took place in the early 1990s.

Commissioners on Wednesday voted to award a contract to the Indianapolis-based DLZ firm for architectural and engineering services that are needed before the county can continue in a quest to get renovation funds from four grant sources. Lisa Gehlhausen, executive director of Indiana Region 15, said Wednesday, “We need architectural service to move into the next phase.”

County leaders will commit a minimum of $685,000 to the project. That constitutes the local match monies that would be needed for the four grants the county is seeking. * * *

County leaders also expressed optimism that money coming to Orange County from the new casino can help with the project.

Paoli attorney J.C. Tucker, who helped guide the last courthouse renovation project, said the council's approach would be to issue bonds on the $685,000. “The bonds,” Tucker said, “would be sold based on ... (the casino's) gaming and admission tax, backed by the credit of the county through tax revenue.”

Kermit Lamb, council president, said, “We're going to have to spend money on that facility no matter what.”

Orange Circuit Court Judge Larry Blanton told county leaders, “You are one handicapped person away from a lawsuit closing the whole thing down, and you start all over again, building a new one or making it handicapped accessible.”

Blanton pointed to a lawsuit that was filed in Tennessee, where circumstances were similar to those in Orange County.

“We have been fortunate so far,” the judge said.

Here, from the Indiana Courts website, are photos (one and two) of the Orange County Courthouse.

Posted by Marcia Oddi on Friday, June 02, 2006
Posted to Indiana Courts

Ind. Gov't. - More on: Dunes Inn idea is a bust - no bids received

Updating yesterday's ILB entry are these items today.

The Fort Wayne Journal Gazette has this editorial, titled "Dunes inn doomed:"

The Indiana Department of Natural Resources’ decision to move forward with an ill-advised plan to build a hotel at Indiana Dunes State Park despite fervent opposition is nothing more than folly.

In January, Kyle Hupfer, director of the DNR, announced a request for proposals from private investors to build a hotel on the valuable but ecologically fragile beach property. Community activists immediately criticized the proposal. Influential environmental groups like the Save the Dunes Council rightly pointed out that a hotel would endanger the already problematic water quality at the beach and that Hoosiers needed to protect Indiana’s limited beach property from further degradation rather than developing the land.

Many were also opposed to the idea of privatizing state park assets.

The deadline for proposals from private developers lapsed on Wednesday. There were no takers. But instead of being dissuaded by the lack of interest from private investors, Hupfer said that the DNR will now look at building and running a hotel in the park on its own.

Even if Hupfer is willing to ignore the concerns about the environmental effects of the hotel, the disinterest from the business community should cause him to rethink this hotel plan.

Neighbors don’t want the inn; park visitors have not demanded it; and businesses don’t want to build. Why don’t state officials drop the idea?

From a Gary Post Tribune story today by Diane Krieger Spivak:
“It has been such a struggle to get this park to begin with,” said Sylvia Troy, also of Beverly Shores and a 40-year member of Save the Dunes. “Every square foot of it was a bloody battle and now they want to put a hotel on this gorgeous beach.”

Opponents have argued that there are hotels outside the park visitors can use, and that the ecological impact on the Dunes would be devastating, from creating light pollution and interfering with migratory bird paths, to blocking beautiful sunsets. * * *

The Indiana Department of Natural Resources, which announced plans in January to build a hotel at the park, says lodging is necessary there because it is one of the most visited state parks and the only one with as many visitors that has no hotel or inn.

From a story by Matthew Van Dusen in the Munster (NW Indiana) Times:
The apparent victory of environmental and citizen groups that mounted an aggressive media campaign against the project was a relief to people at the beach on Thursday, but activists were already getting ready for the next hotel proposal.

"It's important to be here anyway, to send a message," said Laura DeSousa, co-founder of the group Duneland First who was handing out tags that said, "Indiana Dunes State Park, Not for Sale or Lease."

A sign in circulation had a picture of the Hilton Garden Inn in Chesterton superimposed on the site of the proposed hotel at the Dunes.

Many people expressed distrust for the Indiana Department of Natural Resources, particularly Director Kyle Hupfer.

Ruth Osann, a former president of Save the Dunes Council, which also opposed the hotel, said Hupfer was being disingenuous when he said the proposed hotel wouldn't be on the beach.

"It can't get much closer (to the water), unless he wants it to be washed away by the next high lake level," said Osann.

She added the park is too small for development that would ruin natural areas and opposed a hotel even if, as the DNR has proposed, the state builds and runs it.

Finally, the Chesterton Tribune's Vicki Urbanik does her usual thorough job of reporting, with this comprehensive story based on interviews with Hupfer and others. Some quotes:
[DNR Director Kyle Hupfer] said this morning that he will not extend the deadline for developers to submit proposals, but will instead order a high-level financial analysis to see how viable it would be for the state to build and operate the hotel itself, rather than a privatized facility as originally proposed.

“This is a restart of the process,” he said.

The DNR built and operates the inns currently at six state parks. The inn at the Monroe State Reservoir, on the other hand, was built and is operated privately. At the Dunes State Park, the DNR sought a private vendor who would build and operate the inn, paying property taxes on the structure and an annual lease payment to the DNR for use of the land.

The fiscal analysis will address how much a Dunes State Park inn would cost and how much it might generate. “We know intuitively that it would be successful,” Hupfer said. Given the heavy visitation at the Dunes State Park, “we have little doubt that it would have a high level of occupancy.”

Hupfer said once the fiscal analysis is done, the DNR will have several options: Either build and operate the inn itself, put out another request for proposals for a privatized inn, engage in advance discussions with hotel developers about the concept before going forward, or putting the idea temporarily on hold if the timing doesn’t look good.

But regardless of what option the DNR eventually takes, Hupfer said the DNR still supports an inn at the Dunes State Park.

“We think an expansion of the inn system is needed,” he said. * * *

Despite the opposition, Hupfer maintains that a Dunes State Park inn has much support. He cited the destination audit conducted by the Porter County Convention, Recreation and Visitor Commission that supported a state park inn as one way to promote tourism and economic development.

However, that audit also states that the inn should be away from the beach. And more recently, the PCCRVC Board came out against the DNR’s current position of building the inn so close to the beach.

Hupfer disputes that the proposed site—on the northernmost parking lot west of the state park pavilion—is actually on the beach. “It’s well off the beach,” he said, adding that the DNR purposely avoided proposing the inn on the footprint of the previous inn since it was directly on the beach.

When asked if the DNR would support building a hotel at a different site in the state park, Hupfer said he’s open to suggestions, but that he’s not sure where else in the park an inn could feasibly be built. He said the preferred site may end up the most viable location.

He noted that the DNR made a commitment not to build an inn on undisturbed land and that much of the state park is in a dedicated nature preserve that cannot be touched.

He also said people who vacation in Florida don’t want to stay at a hotel away from the ocean, but that they come to Florida to experience the beach atmosphere. * * *

Hupfer said he doesn’t know how long a fiscal analysis for a state-run Dunes State Park inn would take and that he isn’t putting a deadline to the study, since there is “no time pressure.”

If the DNR opts to build an inn itself, it would probably be like the other state park inns. Bond issues funded the initial construction of the facilities. The revenues through inn operations are used to pay off the bonds, as well as operating expenses including DNR staff. “They are profitable,” he said of the state-run inns.

Such a bond would likely be issued through the Indiana Finance Authority. Unless the DNR was seeking direct state funding, no legislative action would be needed, Hupfer said.

Hupfer also said the DNR will likely hold a public forum on the issue before deciding how to proceed. The DNR did not hold a public input session before announcing its plans this year, though Hupfer was the guest speaker at an informational meeting on the topic hosted by the Save the Dunes Council.

When asked if the DNR will hope to change people’s minds about the inn through a public forum, Hupfer said he won’t pretend to have such influence. He said hotel opponents have been opposed to any new developments in the park. He cited as an example the opposition against the state park’s Nature Center years ago.

“I don’t know if we can change the minds of the folks who want the park for themselves,” he said.

[More] I just read this in Marty Lucas' blog, BigEastern, and believe it is worthy of repeating:
If there are any developers out there reading this, I'll say it again. (1) Build on a brownfield lakefront site near the park or Nat'l Lakeshore, not in it, and (2) restore some dunes as part of the project, (3) make the hotel an architectural work worthy of its landscape, and (4) sensitive to the environmental isues (bird migrations and dark sky come to mind) and we dunes lovers will not only be comfortable with it, we'll be comfortable in it. To make it work, you'll need to rent rooms to us whacky treehuggers, especially in winter.

Posted by Marcia Oddi on Friday, June 02, 2006
Posted to Environment | Indiana Government

Thursday, June 01, 2006

Ind. Gov't. - Judge Comer is replaced as Ethics Commission head

Via a press release yesterday, Gov. Daniels announced that:

Laura L. Forest will become executive director of the Indiana State Ethics Commission on June 5, replacing Mary Lee Comer, who will now serve as special counsel to the commission. * * *

Forest recently completed a three-year direct commission with the U.S. Army Judge Advocate General’s Corps where she held the rank of captain. She was most recently assigned as the 3rd Recruiting Brigade Judge Advocate at Fort Knox, Kentucky. Her duties included serving as the brigade’s ethics counselor, which involved responding to ethics questions and providing annual ethics training to soldiers and federal civilian employees. Forest also participated in investigations involving alleged standards of conduct violations and worked closely with the Army’s Office of the Inspector General. * * *

Comer was appointed as executive director of the commission on April 11, 2005. She previously served 18 years as a Hendricks Superior Court judge and four years as a State of Indiana senior judge. Comer requested her new role with the commission to allow her to spend more time with her family, while continuing to serve the state in a part-time capacity.

Here, from an April 13, 2005 ILB entry, is the original announcement of Judge Comer's appointment last year. And here, from May 7, 2006, is the ILB entry headed "Ind. Gov't. - Yet more on: State FSSA exec goes from public to private at twice the price."

Posted by Marcia Oddi on Thursday, June 01, 2006
Posted to Indiana Government

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

The Greene County Daily World reports:

Greene County Circuit Judge David K. Johnson, who tendered his resignation Friday, effective at the end of next month, will assume duties July 1 as a member of the Indiana Alcohol and Tobacco Commission.

The announcement came late Tuesday morning to The Daily World by the office of Gov. Mitch Daniels.

Johnson, who lives in Bloomfield, will replace Melanie Brizzi on the Commission. She resigned earlier this year to work for the Indiana Family and Social Services Administration (FSSA), according to Ben Ledo, special assistant to the governor.

The 59-year-old Johnson will complete the term that ends Jan. 31, 2009. * * *

“I don't know much about the job other than I have visited up there and went to one commission meeting with them,” Johnson said Tuesday. “As for exactly what my daily tasks will be, I don't know much about that at this point in time.”

The job is two-days-a-week and pays $36,000 annually, according to Daniels spokesperson Jan Jankowski.

Johnson said when the opportunity arose for an appointment to the Commission, that got him to thinking about stepping down from the bench.

“When that opportunity presented itself to me, that is what made me start thinking about making this change,” he commented. “I wasn't going to resign (as circuit judge) unless I felt sure I was going to get this.”

When he retires, Johnson will have served as Greene County Circuit Judge for nearly 30 years. At the age of 29, Johnson was first appointed by former governor Otis Bowen, in September 1976, filling out the unexpired term of former judge Edwin Long, who retired. Johnson was later elected five times to six-year terms - most recently in 2002. His current term was not slated to expire until Dec. 31, 2008. * * *

Greene County Republican Party Chairman Lee D. May said a recommendation for an interim judge has to be forwarded to Daniels by June 9.

Interest in the position has been keen. May said he received inquires from four individuals who expressed an interest in the position by the end of the day on Tuesday. Candidates are required to individually make application to the governor's office before June 9 in order to be considered to fill the vacancy.

“My phone has been hot since 8 o'clock this morning,” May said late Tuesday afternoon. “I have made sure they all have the necessary paperwork to apply to the governor.”

May said he would not make public the names of the individuals who have contacted him - leaving that opportunity to the individual candidates.

The interim judge will serve July 1 through Dec. 31.

The earlier ILB entry on Judge Greene's resignation is here.

Posted by Marcia Oddi on Thursday, June 01, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals posts one today

In Bonnie Henderson v. State of Indiana, a 13-page opinion (with Judge Sullivan's separate concurring opinion beginning on p. 11), Judge Baker writes:

Appellant-defendant Bonnie Henderson appeals from the sentence imposed by the trial court following her guilty plea to Conspiracy to Commit Arson with Intent to Defraud,1 a class C felony. In particular, Henderson argues that the trial court considered an improper aggravating circumstance, failed to consider a mitigating circumstance, erred in weighing aggravators and mitigators, and imposed a sentence that is inappropriate in light of the nature of the offense and her character. Henderson also argues that the trial court erred in ordering her to pay restitution to Allstate Insurance Company (Allstate) in the amount of $20,932.48 because an insurance company’s investigative expenses are not compensable as criminal restitution. Finding that the trial court properly sentenced Henderson and improperly ordered her to pay restitution to Allstate, we affirm in part, reverse in part, and remand with instructions to amend the restitution order by removing that portion of the order requiring Henderson to pay restitution to Allstate. * * *

It is apparent—and, indeed, Henderson admits—that Allstate has a civil claim against Henderson to recover the expenses it incurred in investigating the fire. But under these circumstances, Allstate is not entitled to restitution pursuant to a criminal proceeding because the losses that it incurred do not fall into a statutorily compensable category of restitution. Consequently, we conclude that the trial court erred in ordering Henderson to pay restitution to Allstate as a condition of probation.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to amend the restitution order by removing that portion of the order requiring Henderson to pay restitution to Allstate.

MAY, J., concurs.
SULLIVAN, J., concurs in result with opinion.

Although the sentencing in this case took place after the effective date of the amendatory legislation concerning the applicable sentencing scheme, our review is appropriately made under the pre-existing statutory framework. * * *

Notwithstanding the fluid status of the requirements for sentencing defendants under the current statutory scheme vis-à-vis the former scheme, the trial court here chose to articulate aggravating and mitigating circumstance in imposing the four-year advisory/presumptive sentence. Appellate case law has not yet developed to give us clear insight into whether under certain, if not all, circumstances the sentencing court is required to articulate the reasons for the particular sentence imposed and whether in doing so it must set forth the aggravating and mitigating circumstances found to exist. Neither has our General Assembly had sufficient time to reflect upon the arguably hasty draftsmanship which led to the statute in its present form and to make changes which are appropriate to the purposes and policies underlying the sentencing scheme for Indiana consistent with U.S. and State constitutional dictates. See Michael R. Limrick, Senate Bill 96: How General Assembly Returned Problem of Uniform Sentencing to Indiana’s Appellate Courts, RES GESTAE, January/February 2006, at 18.

Subject to the comments herein, I concur in the affirmance of the advisory/presumptive sentence imposed. I further concur in the opinion with respect to restitution.

[More] I emailed Mike Limrick and he notes that the Res Gestae article was also cited in Anglemyer v. State (4/20/06) (in Judge Barnes opinion at pp. 7-8) and that "Joel Schumm has filed a petition for transfer in Anglemyer looking to clarify the review procedure under the new law."

Posted by Marcia Oddi on Thursday, June 01, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Appeals court rules for medical waste plant

Updating this ILB entry from May 20, 2006, Andy Grimm of the Gary Post-Tribune reports today:

The state Supreme Court will decide whether Indiana’s first medical waste treatment plant can stay open in Gary.

Lake County Solid Waste Management Board will challenge the ruling of a state appeals court that sided with Midwest Medical Solutions, which has operated a medical waste-sterilizing plant on 15th Avenue near Interstate 65 since 2001.

County officials claimed that the plant, which had been approved by the state Department of Environmental Management, should not have been permitted by the state without approval from local officials. A Lake County judge sided with the county a year ago, but a state administrative law judge and the appeals court have backed Midwest.

In January, more than two years after Midwest began their waste sterilization operations at the plant, the district board voted overwhelmingly to amend county regulations to block medical waste processing.

Midwest owner Russ Karlins has continued to operate the plant under a court order during the appeals process. He has vowed to continue to fight to stay open and has said the county is wasting tax dollars by trying to shut him down.

Karlins requested documents that show the district has spent more than $50,000 on the case. Board President Jerome Prince, a Gary city councilman, said the money is well spent.

“The ultimate reason we’re fighting this is because the citizens have said they don’t want medical waste facilities,” he said, “but the broader reason is that this ruling would set a horrible precedent that elected officials’ opinions don’t count in these matters. If we don’t have a say, the citizens don’t have a voice in this.”

The May 19th decision is IDEM and Midwest Medical Solutions v. Lake Co. Solid Waste Management District. Read the ILB summary here.

Posted by Marcia Oddi on Thursday, June 01, 2006
Posted to Environment | Ind. App.Ct. Decisions

Ind. Law - New identity theft law effective July 1 [Updated]

"New identity theft law coming to Indiana on July 1" is the headline to a story by James Wensits in the South Bend Tribune. Some quotes:

The law, authored by [State Rep. Jackie Walorski, R-Lakeville] and passed unanimously by the General Assembly, requires companies to encrypt any personal identification information held in computer databases.

The law requires Hoosier companies and companies outside the state who have Indiana customers to notify them of any security breaches that could cause identity theft, identity deception or fraud.

Protected information includes credit card numbers, any state identification card or driver's license number, Social Security numbers and financial account numbers.

The law makes it a Class C felony for a person to have the identities of more than 100 persons or if the harm of the crime is $50,000 or more.

Under the law, it is a Class C infraction to dispose of a customer's encrypted information without first shredding, incinerating, mutilating or erasing it.

Another provision makes it illegal to use the names or identifying information of deceased persons for the purposes of identity theft.

The law is contained in HEA 1101. The ILB posted serious criticisms of this new law on March 11, 2006. Access them here.

[Updated 11:40 am] Serendipitously, the ILB has just received notification of a model law, "The Clean Credit and Identity Theft Protection Act." Read about it here; download it from the bottom of the same page.

Posted by Marcia Oddi on Thursday, June 01, 2006
Posted to Indiana Law

Ind. Gov't. - Dunes Inn idea is a bust - no bids received; more

The Gary Post-Tribune reports today, in a story by Diane Krieger Spivak:

It looks like private investors won’t be building a hotel at Indiana Dunes State Park.

But that doesn’t mean the state won’t look into putting one up.

By Wednesday’s 1 p.m. deadline, the Indiana Department of Natural Resources had not received any requests for proposals for lodging at the park, said DNR Director Kyle Hupfer.

“Unless something turns up in a mailroom somewhere, it is safe to say we have gotten no proposals,” Hupfer said.

Local environmentalists were happy but cautious at the news.

Tom Anderson, executive director of the Save the Dunes Council, said he felt public outcry played a role in the lack of proposals from developers.

“My opinion is that public response and concerns over this proposal made any prospective developers realize this was a no-win situation,” Anderson said.

Since Hupfer announced in January the DNR’s plans to build a hotel on an auxiliary parking lot west of the Dunes Pavilion, environmental groups have mounted a campaign against the plan, arguing it would be a threat to the dunes’ unique ecology. * * *

The DNR will now turn its attention to looking at the feasibility of building and running its own lodge as it does at six other state parks.

“I want to see a better financial study if we would do it ourselves,” Hupfer said.

He said a public hearing would also be conducted this year to get input on the issue.

The hotel would have to at least break even each year, which, Hupfer said, is not something that worries him with the level of visitation at the Dunes State Park. * * *

The DNR put out a request for proposals about a year ago for Potato Creek and Versailles state parks and received none. A request for proposals for those parks also went out this year with the Dunes proposal. The DNR received no proposals for any of the three. * * *

Bill Wellman, senior vice president of Whiteco Industries, and vice chairman of the Lake County Convention and Visitors Bureau board, which supported the plan, said the venture would not be profitable.

“It’s pretty hard to open a new hotel and do everything first class for 100 rooms and make it work financially,” Wellman said Wednesday.

“It’s pretty quiet up there through the winter months for a business that small,” he said. “It’s been a political football as well,” he added, referring to the opposition the proposal has generated.

Both the Lake and Porter county tourism bureaus have formally supported the idea, although the Porter County Convention, Recreation and Visitor Commission expressed its concern over the location so close to the beach.

My thoughts. No businesses bid because they judged the venture not profitable. So why would the State now want to go ahead and build an inn with taxpayers' money?

Here is the report from the Munster (NW Indiana) Times, by Matthew Van Dusen, headlined "Deadline passes, no Dunes hotel bids: State to rethink privatization plan, DNR might build own facility:"

Indiana Department of Natural Resources officials were surprised and environmentalists were relieved on Wednesday as the deadline for proposals to build a hotel at Indiana Dunes State Park passed without a single submission.

Department Director Kyle Hupfer said the state DNR will consider whether it should ask again for private proposals, put the idea on hold or build its own Dunes hotel.

Tom Anderson, executive director of Save the Dunes Council, said he expects future proposals to develop public land on the Dunes, but he was pleased with Wednesday's news.

"It wasn't a defeat," said Anderson.

In January, Hupfer proposed putting privately built hotels at the Dunes, Potato Creek State Park and Versailles State Park. He said the 100-room, 87,000-square-foot hotel would be built on previously disturbed land and it would add needed lodging to the area.

Save the Dunes literature countered there is no need for a hotel and its construction would lead to a loss of animal habitat and open space and a commercialization of public land. A group of local residents called Duneland First, a coalition of Chicago birding groups and others also opposed the hotel.

Hupfer said on Wednesday he had heard developers were interested and couldn't explain why there were no proposals for any of the three sites. He added that of the three sites, the Dunes is the strongest because of its location and attendance of about 700,000 visitors a year.

Take back the beach. Meanwhile, on a related topic, here is an encouraging report from the Chesterton Tribune, headlined "Portage getting public beach thanks to the federal government." Some quotes:
The first project of the Marquette Plan is officially underway.

A groundbreaking ceremony was held Tuesday for a new Portage lakefront park that will be developed jointly by the Indiana Dunes National Lakeshore and the city of Portage.

The 66-acre beachfront park was previously part of the former Midwest Steel plant and was purchased in 2004 by the National Park Service. Through a cooperative agreement, Portage will develop and maintain a city beach on the national park property.

The new park, located on the west side of Burns Waterway, will include interpretive trails, a scenic overlook and an interpretive overlook. The park itself is part of a more ambitious project that includes a riverwalk along Burns Waterway and links with an expanded public marina, the city’s downtown, and the South Shore train station. In addition, the project includes a trail linkage between the east and west units of the National Lakeshore. * * *

Chuck Brimmer, a Visclosky staffer, said the Portage park project meets all the Marquette Plan’s criteria by both preserving green space and by opening the lakefront for public use.

Brimmer said that just as no one can imagine Chicago without Lake Shore Drive or New York City without Central Park, “one day you will not be able to think of Northwest Indiana without the Marquette Plan and its open spaces.” * * *

Brimmer said Visclosky continues to work with the other Marquette Plan’s projects, but that the next one that appears ready to go forward is in the city of Whiting, in which the lakefront park will be improved and expanded.

Posted by Marcia Oddi on Thursday, June 01, 2006
Posted to Environmental Issues | Indiana Government

Ind. Gov't. - More on: Senate democrats reject retirement benefits

Supplementing the ILB entry from yesterday are these stories:

Lesley Stedman Weidenbener of the Louisville Courier Journal writes that:

INDIANAPOLIS — Indiana Senate Democrats said yesterday they support a further reduction of health benefits for future legislative retirees and won't individually accept the benefit as currently defined.

Senate Minority Leader Richard Young, D-Milltown, said lawmakers should not get any benefit that isn't available to state employees.

Young wrote a letter to the chamber's principal clerk, Mary Mendel, last week saying Democrats "have collectively agreed that any member of our caucus who returns to the Senate next year will not accept the retirement healthcare benefit in its current form."

The letter came several months after Young and other members of his caucus endorsed changes that Senate President Pro Tem Robert Garton, R-Columbus, made in the controversial plan that would have still provided state-subsidized benefits for some legislative retirees.

But yesterday, Young said those changes didn't go far enough.

"It's always difficult for us as legislators to deal with issues that involve ourselves, whether it's a pay raise, pensions or health care," he said. "Our caucus position would be that we would not continue this program." * * *

The plan provided significant discounts on health-insurance premiums for retired lawmakers, their spouses and even former spouses. It let retired lawmakers keep the insurance even after they were old enough to qualify for Medicare.

Young said that at the time the plan was put in place, he didn't understand what a generous benefit it would be, and that he has been uncomfortable about it for some time. He said one of his caucus members, Sen. Lindel Hume, D-Princeton, prepared legislation to eliminate it but didn't offer it at Garton's request.

House Speaker Brian Bosma, R-Indianapolis, who was the House minority leader when the legislation was approved, has said he didn't understand the ramifications.

Bosma announced this year that he would end the plan and that future legislative retirees -- those leaving the House after 2006 -- would receive only the health-care benefit that state employees get. State employees can retain their benefits -- but only if they pay the full cost with no state subsidy, and only until they qualify for Medicare.

Garton, however, chose to only partially scale back the plan. He eliminated the benefit for anyone who retired before 50 but left in place some state subsidy for older retirees based on their age and length of service. The issue was used against him in the primary, where he was defeated.

At the time Garton amended the Senate plan, Young had said, "We are pleased to see a plan emerge that is more closely in line with what average Hoosiers deal with today."

Here is the Indianapolis Star's Mary Beth Schneider's story in today's paper, including these quotes:
Indiana Senate Democrats have joined the growing line of lawmakers who say they will not accept the generous health care benefits legislators gave themselves a few years ago.

They were pretty quiet, though, about their decision. Only at the end of a news conference on their plan to provide health care insurance for all Hoosiers did Senate Minority Leader Richard D. Young Jr., D-Milltown, disclose he wrote a letter last week saying Senate Democrats will opt out of the coverage.

"We should not have any benefit that is not available to all state employees," Young said.

The health care benefit -- lifetime coverage to legislators, their dependent children, spouses and ex-spouses -- is only one such perk unavailable to others. Another, which remains in place in the Senate and House, matches every dollar a legislator contributes to their pension with $4 in taxpayer funds.

Young and other Senate Democrats had joined Senate Republican leaders this year at a news conference in which they said they would keep a retooled version of the health insurance program for lawmakers, rather than discard it as the House did.

Wednesday, Young said one Democrat, Sen. Lindel Hume of Princeton, had prepared legislation repealing the plan. Young said the bill was never filed, at the request of Senate President Pro Tempore Robert D. Garton, R-Columbus.

Outrage about the issue contributed to Garton's defeat in the May 2 primary election.

Since then, several Republicans interested in succeeding Garton as the Senate leader have said they would kill the benefit. Recently, House Republicans signed a pledge promising to seek a repeal of the plan. House Minority Leader B. Patrick Bauer, D-South Bend, said he, too, would do away with it.

If Democrats had been in charge in the Senate, Young said, the plan never would have been enacted. Still, he defended the need for some health care coverage for the part-time lawmakers.

"As media people, you have health care problems. You need health insurance. Your families need health insurance," Young told reporters. "Legislators have health care problems. Legislators and their families need health insurance."

Of course, the issue is not about legislators receiving health insurance while they are members of the General Assembly; the issue is about coverage by the taxpayers after the legislators retire from the General Assembly -- lifetime benefits for as little as 6 years of service.

Posted by Marcia Oddi on Thursday, June 01, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Gov't. - Urban sprawl in Allen County

The Fort Wayne Journal Gazette has an interesting story by reporter Benjamin Lanka on a discussion by county commissioners on the looming problem of urban sprawl in Allen County. It begins:

Allen County is overdeveloped, but efforts to stop the construction of more homes conflict with the notion of free enterprise, a county commissioner said Wednesday.

The commissioners rezoned four parcels of land – three of them farms – to allow for new residential and commercial developments. After approving the individual projects – some after lengthy discussion – the commissioners were asked to take a broader look at land development so it is done in the best way for the entire community. This prompted an even lengthier discussion on urban sprawl in the area.

David Van Gilder, a local attorney and member of Mayor Graham Richard’s environmental task force, said development in Allen County has been typically developer-driven, meaning governmental bodies usually accept any development proposed to them. He said the commissioners and others in power will eventually need to take a stand to prevent Fort Wayne from having the urban sprawl problems of Indianapolis or Atlanta.

“At some point, legislative bodies are going to have to turn developers away from farmland,” he said.

Van Gilder said this would be difficult because there is nothing easier to develop than open land. He said the community would either have to push businesses to develop land in urban areas or provide incentives to keep farmers from selling. He represented clients who were concerned with two of the rezoning projects.

Related is the Journal Gazette editorial from Tuesday on the city process. Some quotes:
Members of the Fort Wayne Plan Commission got it right when they nixed a recent rezoning request. The vote showed commission members understand the importance of keeping the approval process for land use straightforward and transparent. * * *

Too little attention is paid to the activities of the city Plan Commission – there were only two persons in the audience at this meeting – despite the group’s far-reaching powers to guide and control the development of this community. The decisions the appointed members make dictate the community’s destiny for decades. And while there are guidelines for the commission members to follow, there is plenty, perhaps too much, wiggle room in the process.

Posted by Marcia Oddi on Thursday, June 01, 2006
Posted to Indiana Government