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Monday, July 31, 2006

Law - "Law-related blogging starting to see a coming of age" -- But can a law blogger ever be considered a "journalist"?

"Law-related blogging starting to see a coming of age." So reads the headline to a story today from the Chicago Lawyer (thanks to WSJ Law Blog for the tip). The article begins:

Law professors are mindful of where their scholarship lands, particularly when it's in a court decision. Douglas A. Berman, who focuses on criminal sentencing law at Ohio State University's Moritz College of Law, is no exception. He considers citation counts the "currency of a law professor's work."

While Berman has penned more than 50 law review articles and commentaries, he estimates that only about a half-dozen of those traditional forms of published scholarship have been cited in judicial opinions.

His popular Sentencing Law & Policy Blog, on the other hand, has been cited in more than a dozen cases, including a dissenting opinion in a 2005 landmark decision by the U.S. Supreme Court (United States v. Booker).

"My blog is my most-cited work, by far. Certainly, it is more widely read than any of my scholarship," said Berman, who has been blogging about advancements in federal sentencing since 2004. "It's all part of the power of the blog."

Berman is among a growing number of law professors, law students, lawyers, and even judges who have gravitated to the world of blogs, the interactive online medium that allows people worldwide to publish their ideas, and others to comment on them -- all with an ease and immediacy that many legal professionals have come to embrace.

"Blogs help make the legal world move a lot faster. Within a matter of minutes, I can take a new legal development, make it available to the world, and comment on it quickly," Berman said. "It's kind of a self-controlled punditry." Blogging in droves Law-related blogs, also known as "blawgs," made their debut around 2000.

But can a law blogger ever be considered a "journalist"? Not according to the application that accompanies this press release from the Indiana Supreme Court, asking for nominations for "an award [to be] presented to a member of the news media for efforts in responsible reporting on the Indiana judiciary." The application specifies:
The Indiana Judges Association wishes to recognize those members of the media (newspaper, television, radio) who have made special contributions to the judicial profession by their efforts in responsible reporting of the Indiana Judiciary. The annual awards will be presented at the Indiana Judges Association luncheon in South Bend on September 14, 2006.

Posted by Marcia Oddi on Monday, July 31, 2006
Posted to General Law Related

Ind. Courts - Judge unseals records in French Lick casino dispute today [Updated at 2:19]

The AP is reporting this afternoon, in a story by Mike Smith:

PAOLI, Ind. (AP) -- Lawsuits unsealed Monday reveal a bitter dispute between partners developing an Orange County casino and related projects.

Indianapolis-based Lauth Property Group and Bloomington-based Cook Group are at odds over ownership and control of the $382 million development in southern Indiana. Both companies accuse one another of trying to force the other out.

Lauth says Bloomington billionaire William Cook has spent lavishly on renovations of two hotels, an 18-hole golf course and convention center.

Cook is accusing Lauth of preventing the project from being a lavish resort. He says because Lauth failed to have its financing in place in time, Cook is entitled to 75 percent of ownership instead of a 50-50 split.

Both lawsuits have been under seal in Orange Circuit Court in Paoli at the parties' request. But Orange County Circuit Judge Larry Blanton made them public on Monday.

The Courier-Journal of Louisville, Ky., The Herald-Times of Bloomington, The Times-Mail of Bedford and an investor group that lost out on a bid for the casino two years ago had filed briefs seeking to have the lawsuits unsealed. The office of Attorney General Steve Carter also wanted the lawsuits made public. * * *

The two companies formed Blue Sky Casino LLC in November and signed a long-term contract with the Indiana Gaming Commission to open a 1,200-slot riverboat casino in French Lick, 45 miles south of Bloomington, this November. The project includes renovations for the two century-old hotels in French Lick and adjacent West Baden, as well as construction of the golf course, parking garage and convention center.

[Updated at 2:19] Lesley Stedman Weidenbener of the Louisville Courier Journal reports:
In its lawsuit, Orange County Holdings — a company created by Cook — asked the judge to prevent Lauth officials from firing the project’s architect and hotel manager, both of which Cook officials say are essential to the project.

In subsequent court filings, Lauth accused Orange County Holdings and William Cook — head of the Cook Group — of making decisions without consulting Lauth; with lavish spending outside the project’s original plan; and with fraud, in part for giving no-bid contracts to friends or business associates of Cook’s.

Each side denies the allegations made by the other.

Posted by Marcia Oddi on Monday, July 31, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues four today

In Reliable Development Corp. d/b/a The Fitness Barn v. Christopher Berrier, an 11-page opinion, Judge Robb writes:

Reliable Development Corporation (“Reliable”) d/b/a The Fitness Barn (“Fitness Barn”) appeals after a jury trial in which Reliable was assigned ninety percent of the fault for causing Christopher Berrier to sustain a lower back injury when he fell while running on a treadmill. The jury awarded damages totaling $9,000,000, of which $8,100,000 was apportioned to Reliable. On appeal, Reliable raises six issues for review, one of which we find dispositive, namely whether the trial court properly prevented Reliable from cross-examining Berrier’s medical expert witnesses about prior back injuries. Defendants in personal injury actions are entitled to challenge a plaintiff’s expert with respect to the accuracy, consistency, and credibility of that expert’s causation opinions, including through vigorous cross-examination. For this reason, we conclude that the trial court went too far in prohibiting Reliable from cross-examining Berrier’s medical experts about his prior injuries, and therefore reverse and remand for a new trial. * * *

Conclusion The trial court erred when it prevented cross-examination of Berrier’s medical experts before the jury for purposes of challenging their opinions. This was inconsistent with substantial justice, and we therefore reverse and remand for a new trial.

Floyd Piles v. Thomas Gosman, a 14-page opinion, is an adverse possession case. Judge Barnes concludes:
Based on Thomas Collett’s testimony, Gosman established the elements3 of adverse possession with clear and convincing evidence. Because the Colletts acquired the property from the Newkirks by adverse possession, the Newkirks could not convey the disputed property to Piles. Downing v. Eubanks, 557 N.E.2d 1027, 1029-30 (Ind. Ct. App. 1990) (“‘If a grantor conveys property, part of which belongs to the grantor and part of which belongs to another, the deed is good as to the property owned by the grantor and a mere nullity as to the property not owned by the grantor.’” (citation omitted)). The trial court properly concluded that Gosman is the owner of the disputed land.

Conclusion. The trial court properly concluded that Gosman obtained the property at issue by adverse possession. We affirm.

In David R. Boyle v. State of Indiana, a 19-page Blakely-related opinion (with a dissent by Judge Friedlander on p. 19), Judge Crone concludes:
Accordingly, we are left with one impermissible aggravating factor, one aggravating factor that is partially problematic, and one valid mitigating factor. Given this scenario, we must conclude that Boyle’s enhanced sentences (“45 years on each count, 35 years executed, 10 suspended, 3 probation” for each of the three class A felonies) were improper. * * * As such, we reverse and remand to the trial court for resentencing. * * * Reversed and remanded.

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

The majority’s decision to reverse is dependent in part upon its conclusion that Blakely applies retroactively to this case because Boyle’s ability to appeal via Post-Conviction Rule 2(1) had not been exhausted. I continue to adhere to the contrary view, as articulated in Robbins v. State, 839 N.E.2d 1196 (Ind. Ct. App. 2005). For the same reasons set out in my dissenting opinion in Gutermuth v. State, --- N.E.2d ---, No. 10A01-0509-CR-410 (Ind. Ct. App. June 7. 2006), I respectfully dissent from the majority’s holding in the instant case. I would affirm the trial court.

In George Membres, III v. State of Indiana, an 11-page opinion (with a dissent by Judge Bailey beginning on p. 8), CJ Kirsch writes:
George Membres III appeals the trial court’s order, finding that the seizure of his property was done pursuant to a lawful search, and therefore, the property was subject to be turned over to federal authorities. He raises two issues, of which we find one dispositive: whether the police had articulable, individualized suspicion of criminal activity prior to searching Membres’ trash. We reverse and remand. * * *

In this case, the information provided to Deputy Wildauer by the confidential informant was not sufficient to support an articulable, individualized suspicion of criminal activity. The information given was of the informant’s suspicions of criminal activity occurring at Membres’ residence and not on any observations of actual drug activity. There were also no facts that set forth what Deputy Wildauer did to corroborate the information given by the informant. We conclude that because the informant’s tip so lacked the indicia of reliability and credibility, Deputy Wildauer could not have had a good faith reliance on this information to support the search of Membres’ trash and, later, the affidavit for probable cause. The good faith exception therefore does not apply, and the trial court erred in denying Membres’ motion to suppress. Because the property subject to the transfer order was not obtained pursuant to a lawful search, we remand to the trial court to vacate the turnover order and return the property. Reversed and remanded.

CRONE, J., concurs.
BAILEY, J., dissents with separate opinion. [which begins]

I respectfully dissent from the majority’s determination that the good faith exception to the exclusionary rule is inapplicable to the trash search in question and that, as a result, the property subject to the transfer order—i.e., the $57,060.00, jewelry, and firearms—was not obtained pursuant to a lawful search. Even assuming arguendo that the police lacked a reasonable, articulable suspicion for seizing Membres’s trash and that, as a consequence, the trash pull did not meet the constitutional requirements of Litchfield v. State, 824 N.E.2d 356, 363-64 (Ind. 2005), the evidence is still admissible under the good faith exception as codified in Indiana Code Section 35-47-4-5. See, e.g., Richardson v. State, 848 N.E.2d 1097, 1103-04 (Ind. Ct. App. 2006).

Posted by Marcia Oddi on Monday, July 31, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Proposed bond court to ease overcrowding"

A story today in the Munster (NW Indiana) Times by Ruthann Robinson reports:

CROWN POINT | If the working group of the jail oversight committee has its wish, a Saturday bond court in the Lake County Jail courtroom will start as early as Sept. 9.

The jail is at capacity, averaging more than the 1,040 inmates it was designed to hold, and the proposed court could be one solution to overcrowding.

Many of those arrested on misdemeanor charges who can't make bail sit in jail until their city or town court initial hearings.

Of the 10 city and town courts, five hold court two or fewer days of the week.

The proposed Saturday bond court could expedite the process by deciding bond reductions sooner so inmates who couldn't pay the higher bond could be released.

Lake County Sheriff Rogelio "Roy" Dominguez said it would save time and gasoline and be safer to hold bail hearings in a courtroom housed within the County Jail, eliminating the transportation of inmates around the county to individual community courtrooms.

The group working on getting a bond court in place has met once a week since February.

At a meeting last week, Lake County Superior Court Judge Julie Cantrell reported all county judges are willing to staff the Saturday court. They also are willing to take a look at their bond schedule to see if they can bring them in line with each other.

Posted by Marcia Oddi on Monday, July 31, 2006
Posted to Indiana Courts

Courts - "Could Increased Openness in Judges' Decision-Making Depoliticize Confirmations?"

"Could Increased Openness in Judges' Decision-Making Depoliticize Confirmations?" is the title to Howard Bashman's column this Monday in Law.com. (Today's column follows on his interesting column last week titled "What should judges do if, while visiting the legal blogosphere, they encounter discussions about how pending cases ought to be decided?")

Actually, I had never before thought of the judicial branch as the most transparent, but Howard makes some good points. Further, he is writing about the appellate judge confirmation process at the federal level, but much of what he says also could apply to retention votes at the state judicial level. Some quotes:

The judicial branch, at least at the appellate level, has the potential to be the most open to public scrutiny of the three branches of the federal government. Not only do appellate judges have a practice of explaining in writing the reasons for their rulings in opinions that are widely available and open to public scrutiny, but increasingly the legal briefs that the parties file on appeal and the audio or written transcript of appellate oral arguments are also freely available online. * * *

As more federal appellate courts provide easy public access to appellate briefs, oral argument audio and their own rulings, it will be interesting to see whether the judicial branch's openness will have a depoliticizing impact on the judicial confirmation process. In the case of the most controversial federal appellate court nominees, contentious battles continue to be fought between groups that would prefer to have judges arrive at a particular set of outcomes in hot-button cases. * * *

[J]udges' roles are not to implement their particular personal or political preferences under the guise of deciding cases. Rather, judges decide cases based on a combination of their approach to the law, existing precedent, the facts and procedural posture of the pending case and other applicable statutory or constitutional provisions.

As the process for deciding cases at the appellate level becomes more transparent -- due, in part, to the availability of parties' appellate briefs and oral argument audio or transcript, along with the appellate court's opinion explaining the basis for its rulings -- perhaps the public will better appreciate that, in the majority of cases, the process of deciding cases on appeal does not consist of judges imposing their personal preferences on society. Then, perhaps, the battle over confirming judges will be less about the ultimate results of controversial disputes and more about nominees' methods of deciding legal issues.

Instead of asking judicial nominees at their confirmation hearings to reveal personal views on abortion, the death penalty, racial preferences and so forth, perhaps the confirmation process could focus on more important questions, such as how a nominee would go about deciding the meaning of an unclear constitutional provision or a piece of legislation, the level of constitutional specificity required to override the majority's expression of its wishes through the legislative process, and the nominee's plans for addressing a crushing appellate caseload.

Re "[J]udges decide cases based on a combination of their approach to the law, existing precedent, the facts and procedural posture of the pending case and other applicable statutory or constitutional provisions", this may be precisely why appellate judges often describe their work as "technical" and are surprised that others may look for political motivations in their opinions.

Posted by Marcia Oddi on Monday, July 31, 2006
Posted to Courts in general

Sunday, July 30, 2006

Ind. Law - Indiana felons must provide DNA

Richard D. Walton of the Indianapolis Star reports today that:

Thousands of convicted Indiana felons are being required to give DNA samples at county probation offices.

Starting Monday, felons in Marion County must begin providing the samples. Felons in counties surrounding Indianapolis must begin the process in August, with the rest of the counties phased in after that.

Previously, only those who committed the most violent crimes were routinely tested. But under a 2005 state law, all felons in the state must submit to the procedure. * * *

"I'm not sure simply being convicted of any felony ought to subject you to ... that kind of intrusion," said Paula Sites, assistant executive director of the Indiana Public Defender Council.

Sites is concerned that the public may put too much faith in DNA testing. The substance is not recovered from many crime scenes, and samples can be contaminated, she said. "It's not the sort of across-the-board panacea that the public is maybe led to believe."

All 50 states have criminal DNA databases. Some test only those convicted of murder or other violent offenses. Some states collect samples from juveniles convicted of crimes that would be felonies if committed by an adult. Several states, including Virginia, permit DNA tests on people upon their arrests.

The law is IC 10-13-6, passed in 2003. Section 10, listing the persons required to supply DNA samples, and Section 11, "guidelines relating to procedures for DNA sample collection and shipment," were last amended in 2006.

Who may be required to provide DNA samples
has been looked at by a number of federal circuit courts, including the 7th Circuit. See this ILB entry from 1/9/04, on the Wisconsin case of Green v. Berge, upholding a Wisconsin law compelling felons in Wisconsin prisons to submit a DNA sample for analysis and storage in a data bank. In a concurring opinion Judge Easterbrook posits that:
there are at least four major categories, potentially subject to differing legal analysis.

Prisoners make up the first category. Their privacy interests are extinguished by the judgments placing them in custody. * * * Persons on conditional release—parole, probation, supervised release, and the like—are the second category. * * * One common condition of release is submission to tests for drugs, without the need for person-specific suspicion. DNA may be extracted from samples obtained through these tests without any incremental invasion of privacy. * * * Felons whose terms have expired are the third category. Established criminality may be the basis of legal obligations that differ from those of the general population. “A broad range of choices that might infringe constitutional rights in free society fall within the expected conditions . . . of those who have suffered a lawful conviction.” McKune v. Lile, 536 U.S. 24, 36 (2002). One need only think of Megan’s Law and its variations across the nation. * * *

Those who have never been convicted of a felony are the last distinct category. What is “reasonable” under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population. Just as parolees’ homes may be searched without a warrant or probable cause, while both are required to search a free person’s home, so it may be that collection of DNA samples from the general population would require person-specific cause—or at least a “special need,” whatever the meaning of that phrase in recent decisions turns out to be. See Indianapolis v. Edmond, 531 U.S. 32 (2000); Ferguson v. City of Charleston, 532 U.S. 67 (2001).

See also this August 19, 2004 ILB entry.

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

Ind. Courts - Porter Judge Harper recognized for juvenile work

"Judge Harper recognized for juvenile work" reports the Munster (NW Indiana) Times today. Some quotes:

Porter Circuit Judge Mary Harper was awarded the 2006 Robert J. Kinsey Award for Outstanding Judicial Service and Support to the Children and Youth of Indiana.

The award was presented recently at the 23rd annual Juvenile Judges Symposium. The recipient is chosen by a committee composed of statewide human service professionals.

Harper, in addition to her responsibilities with the circuit court, serves as supervising judge of the Porter County Family Court.

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

Ind. Courts - Crown Point city court: Income exceeds expenses; staff sees record caseload

"Income exceeds expenses; staff sees record caseload" is the headline to this story in the Munster (NW Indiana) Times, by Allison Fashek. Some quotes:

CROWN POINT | The City Court is expected to mark two milestones this year -- handling more than 4,000 cases and operating in the black.

As of mid-July, the City Court had handled 2,255 new cases, Judge Kent Jeffirs told the City Council during budget talks last week. In 2005, the court had a total of 3,100 cases.

The increasing workload is nothing new. Last year, Jeffirs told city officials that cases had tripled in the previous five years.

"As you build more houses and put more police officers on the street that is inevitable," he said, adding that state grants for police to write traffic tickets also increased the number of court cases.

But through a mix of revenue from bond fees and the court's new deferral and probation programs, the court is beginning to bring in more income than its expenses, though not all of the money goes to the city's general fund.

Probation fees must be used for the probation program, and revenue from the deferral program, which allows people to get tickets taken off their records, is split between the City Court and the Police Department.

From July 1, 2004, to June 30, 2005, the court brought in $126,000. But from July 1, 2005, to June 30, it had a revenue of $228,000, an increase of about 81 percent.

"The deferral program has taken off," Jeffirs said. "People are fighting to get on it."

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

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

Upating this latest ILB entry from Friday, the Indianapolis Star has a brief story today that Attorney General Steve Carter has joined the fray:

Indiana Attorney General Steve Carter is asking an Orange County judge to unseal the records in a lawsuit between the partners of a new casino in French Lick.

A hearing on whether the records should remain sealed is scheduled for Monday in the Orange County court in Paoli.

"Casino gambling operations have a long history of public scrutiny in Indiana," Carter said in a statement. "Attempts to elude public scrutiny raise doubt and create a cloud of suspicion."

Last month, Judge Larry Blanton ruled that the records in the lawsuit should be sealed pending Monday's hearing.

On June 8, Orange County Holdings filed suit against Lauth Resorts & Casino, its partner in Blue Sky Casino LLC, which won the right operate the French Lick casino. Lauth then sued Orange County Holdings.

The Bloomington Heral-Times also has a story, headlined "Casino project moves forward despite lawsuits," but their stories require a paid subscription. Shortsightedly, in my opinion.

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

Ind. Courts - More on: Commission on Judicial Qualifications has filed judicial disciplinary charges against Judge Thomas Newman, Jr., Madison Superior Court #3.

Updating this ILB report from Friday, the Court has now posted the charging document, including thirty-one separate allegations in support of the charges: In the Matter of the Honorable Thomas Newman, Jr.: Notice of the Institution of Formal Proceedings and Statement of Charges. Access the 9-page document here. Some quotes:

30. Judge Newman also stated to the Commission, “I think what happened is…the DOC got in the way. Which may have kept [Dawson’s release] from happening … No, they didn’t have an order. And it’s just speculation as to if they would have complied with it or not complied with it.”

31. Judge Newman also said, “If the Court of Appeals had desired that I immediately release Mr. Dawson, the Appeals Court could have so ordered.” In his deposition before the Commission, he testified, “I blame the Court of Appeals. That’s who I blame. If they would have done what their appellate rules would provide…He would have been out of prison. I really think I’m being a scapegoat in this thing.”


The Commission alleges that Judge Newman not only neglected to execute the appropriate order for Dawson’s release, but that he did not properly supervise and instruct his court reporter in response to the Dawson opinion, has exhibited no meaningful remorse or concern for the effects of his neglect on Dawson’s liberty, and, over time, has assigned blame for what occurred never to himself, but to his court reporter, the DOC, then the Court of Appeals.

Here is an AP story today on the charge:
ANDERSON, Ind. - A man spent more than an extra year in prison after a judge neglected to follow a higher court order, a state judicial commission said.

Madison Superior Court Judge Thomas Newman Jr. has 20 days to file a response to the disciplinary charges filed by the Indiana Supreme Court Judicial Commission. The case then will be reviewed by three judges appointed by the high court.

The charges filed Friday stem from a 2001 case in which the state Supreme Court ordered the release of an inmate who had been sentenced by Newman the previous year. But the man was not notified and spent another 14 months in prison before he was released.

The judicial commission accused Newman of "indifference," "serious neglect" and "assigning responsibility for his neglect to others" and alleged the conduct was not isolated.

"The unique facts of this case ... illustrate that these charges are not based upon a simple mistake, but on Judge Newman's neglect and indifference to his judicial duties and his subsequent attempts to cast blame elsewhere," said commission attorney Meg Babcock.

There was no number for Newman in published listings and he could not be reached for comment Saturday. The Associated Press left a phone message seeking comment at his court.

Babcock said it would be up to the court to determine if Newman had violated the public trust and if so, what penalty to impose.

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

Saturday, July 29, 2006

Courts - Kansas school finance lawsuit dismissed

The last ILB entry on the Kansas school finance lawsuit, from May 22nd, was headed "Kansas Justice's Lunchtime Chat Leads to Ethics Probe". It followed on an April 23rd entry titled "A Kansas Supreme Court justice has removed himself from future discussions of the school funding case".

Here is how the story today in the Lawrence Journal World, reporting the Kansas Supreme Court's dismissal of the lawsuit, begins:

Topeka — For the first time in seven years, Kansas schools are clear of the litigation that boiled state politics, brought constitutional showdowns and threatened to shutter classrooms.

The state Supreme Court, in a 4-2 decision Friday, dismissed the school finance lawsuit first filed in 1999.

In an unprecedented move, Chief Justice Kay McFarland delivered the opinion and, while standing next to a table weighed down by legal briefs in the case, issued a statement.

“This case is not about winners and losers — it is about the children of Kansas,” McFarland said. “They will be better educated and better prepared to meet the challenges of our rapidly changing society. Kansas will be the ultimate beneficiary.”

Leading policymakers were euphoric to learn the school finance system had passed court muster, eliminating the possibility of a repeat from last summer when political tempers exploded during a special legislative session.

“This ruling is good news for Kansas and a welcome resolution to this case,” said Gov. Kathleen Sebelius, who promised to veto any attempt in future legislative sessions to scale back the new three-year school funding plan approved Friday by the court.

After the decision was announced, House Speaker Doug Mays, R-Topeka, a frequent critic of the court about previous rulings in the case, said, “I’m relieved; somewhat surprised.” [my emphasis]

The story includes links to the opinion, the statement of the Chief Justice, and a full list of court documents.

Recall that Indiana has a school finance case pending
; see this July 13th ILB entry for backgrond.

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

Courts - More on: Dahlia Lithwick writes on state court judges and the gay marriage bans

Dahlia Lithwick's Slate column, which I quoted here in an ILB entry Thursday, began:

Let's say you're a justice on the Washington State Supreme Court. You have a nice life, a quiet life. Cozy chambers. Huggable clerks. And then in March of 2005, you hear oral arguments in a case about the state ban on gay marriage.
Her article was of course about the Supreme Court of Washington's decision Wednesday to uphold a state law banning same-sex marriages.(See ILB entry here.)

Today the Seattle Times has a story headed "Upholding gay-marriage ban may put new spin on court races." Some quotes:

OLYMPIA — Good luck trying to read the political reverberations from the state Supreme Court's decision this week upholding Washington's gay-marriage ban.

Theories abound about how the long-awaited ruling will affect the three justices who are up for re-election this year.

Many observers say Justice Tom Chambers, who so far is unopposed, will likely draw a conservative opponent because of his minority opinion that the gay-marriage ban is unconstitutional.

Justice Susan Owens, who concurred in Chambers' opinion, is already taking heat from religious conservatives in her re-election race against Republican state Sen. Steve Johnson.

Meanwhile, there are rumors that activists in the gay and lesbian community are trying to recruit someone to run against Chief Justice Gerry Alexander, who voted to uphold the state's Defense of Marriage Act (DOMA). But others say Alexander's vote in the case could help him in his race against challenger John Groen, a prominent property-rights attorney from Bellevue.

The candidate filing deadline for this year's election is today at 5 p.m. * * *

Hours after the court's 5-4 gay-marriage ruling was released Wednesday, Gov. Christine Gregoire asked that people on both sides of the issue not take their frustrations out on the justices.

"Whether we agree or disagree with them, we have to respect that they're doing their job," said Gregoire, a Democrat who is supporting all three court incumbents. "The way we distinguish this country from others is respect for the legal process."

The gay-marriage case plunged the Supreme Court squarely into the middle of one of society's most bitter culture clashes. Owens said it was "by far" the most controversial issue she has dealt with since joining the court six years ago.

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

About the Indiana Law Blog: How to Read a Blog

I am posting this entry, "How to Read a Blog," again for new readers. It has some tips on how to get the most out of this blog, and perhaps some others. I have also posted a permanent link to these instructions at the top of the right-hand, gray, column, so that you can readily access them at any time.

If you have a question I haven't answered, or a tip I haven't covered, please drop me a note.

How to Read a Blog

The first time I looked at a web log ("blog") I was totally confused. Even after some time of reading blogs, I did not know all the ins and outs. I still may not know all the tricks, but I hope the following will be of help to many of you.

(1) When you go to the address, indianalawblog.com, The Indiana Law Blog, you see the Main Page. The wide left column contains my entries, with the most recent first. All the entries I've posted in any one day will appear under a heading for that day, such as "January 02, 2004."

If you scroll down the page you will see earlier entries, in reverse chronological order. The entries for the past 30 days will always appear here.

(2) Four things to know about the links that appear within an entry:

First, say an entry begins: "This story in today's NY Times...". The link for "this story" will lead directly to the story on the NY Times site. The link for "NY Times" will lead to the main page ("portal") of the NY Times site. Why both? This practice is a generally accepted courtesy, which I think derives from the objections some portal owners have had to what is called "deep linking" -- links that bypass the web portal. Nowadays it would seem to be less necessary, as all pages in major sites will generally identify that it is a page from, say, the NY Times and will provide links to get to other places on the Times site. Therefore, often now you will see New York Times in bold, but without the link - which may less confusing.

Second, particularly with newspaper stories, be aware that a link may not last forever. At some point, you may click on a link in any entry and get nothing, or a notice that the page is not available, or a link to "pay for view" archives. There is no general rule, some pages disappear the next day (eg the Gary Post Tribune's stories); some are good for a week (the NYT sometimes)or for months (the Washington Post); some may be good forever.

Third, some links will lead to sites that require to you to register the first time you visit (on each different specific computer you use). The NY Times and Chicago Tribune are examples. Registration is free (I generally do not link to stories on pay sites, such as the Wall Street Journal), but some free sites may request what you (or I) may consider to be overly intrusive information and you may decide to forgo reading the story. Often I will not link at all to stories in such publications.

Fourth, how to open a link in a new window? If you want to click on a link and have it open a in new window, rather than replacing the screen you are viewing, do this if you are using MS Windows: right click the link; a box will appear; the second option down in the box will be "open in new window"; click it.

(3) What if you want to bookmark a specific entry, or send a link to it to someone? Go to the end of the entry. You will see, for instance, "Posted by Marcia Oddi at 03:37 PM" Click on the time link. That entry, and no more, will appear, filling the entire page (or you can right click, as above, to open it in a new window). You can bookmark this page (via "favorites"), or you can pull down "File" and select "Send" the page, or the link to the page, via email. Or you can highlight all or part of the entry, select "copy" from the Edit menu, then "paste" it into an email message box.

Once you are done with the entry, if you are looking at an ILB entry, look at the top of the page, right below the blue title box, and select "Main" to return to the main page. Or there may be a "Home" link in the upper left-hand corner. Or, especially if you went to a link on another website, use your browser's "back" arrow or command. Or, if you opened a new page, simply close it.

(4) What if you want to go back and read more than the past 30 days' worth of ILB entries? (I'm flattered.) Look at the narrow grey right-hand column, and scroll down until you see a list of the months, under the heading "Archives." If you click on "September 2003," for instance, all the entries for September 2003, beginning with the last one made on September 30, 2003, will appear. (This, incidentally, is the way to go if for some reason you should want to print out or save all the entries in this or a similar blog.)

(5) What is the Calendar for? The calendar highlights the days during the current month when at least one new entry has been posted. In this blog the color blue is the highlighter. Clicking on a highlighted date will take you to that day's entries. The calendar is probably most useful for blogs where entires are sporatic. You can tell at a glance whether the owner generally posts new material daily or weekly, or only once in a while.

(6) The two features I feel make this site more valuable to the user are the "Categories" links and the "Search this Site" box.

Categories. Each time I post an entry, I categorize it. Generally I also identify the category at the beginning of the heading -- such as "Environment - Land Use and Water Quality in Floyd and Hendricks Counties." All my category headings are listed under the heading "Categories" in the right column. (I add new category headings occasionally.)

If you click on one of the category headings in the right column, such as "Indiana Decisions," you will get a list of every "Indiana Decisions" entry since this blog started, in reverse chronological order, along with the first few lines of the entry. A click will take you to the full entry.

Search! I use the search box all the time. If I'm posting an entry about X and I know (or don't recall whether) I've written about X before, I use the search box. The result I receive is a page listing every entry containing X, in reverse chronological order, with a few lines from the beginning of each such entry. If you wanted to see all the entries that included the term "eminent domain," regardless of category, you could use the search box.

(7) A few other features are in the right column: "Some Good Law-Related Blogs" and "Indiana Legal Resources" are lists of links to sites I like or use frequently. Occasionally I go through these links and may toss out some or add others.

"Recent Entries" lists the headings of my last thirty entries. If you see something interesting, you can clik on the heading and go directly to the entry. However, this feature is, I feel, of questionable usefulness on my blog and I may discard it.

(8) Other information for you. Except for correcting grammar or spelling errors I may notice later, I generally do not change an entry once I have publicly posted it. However, I may add to it within the next day or two, generally via an addition at the end labeled "[Update]" if I obtain more information. Thus it may be useful to you to check back on an entry from yesterday that you found useful or interesting to see if I've added anything.

Most days I post a number of entries during the course of the day. If you want to check in several times during the day, remember that you may need to refresh your browser. In addition, some services, such as AOL, cache pages during the day on their own servers. So even if my page has been updated, the page AOL has cached and you access (if you are, for instance, an AOL user) may still be an earlier version. So you may be seeing one thing, while your friend on the phone who is looking at her computer may be seeing something else on the same main page. Yes, I've had this happen.

Finally, although I have over a thousand visitors a day, I'm nowhere in the league of Howard Bashman (How Appealing). So tell your friends about this site. And let me know what you think -- my email address is right there, in the gray column, below the search box.

If you would like to help support the Indiana Law Blog, click for details near the top of the gray column.

And thanks for visiting the Indiana Law Blog!

Update: More on How to Read a Blog

A reader wrote to tell me that he enjoyed my "How to Read a Blog" entry, but added:

I use Netscape, not Explorer, and your blog is very strangely formatted when viewed in Netscape (I have to scroll to the bottom for the ad and related admin stuff), and I switch to Explorer to view it only when I need to access a link (which I can't do from your blog in Netscape, for some reason, though I can from Hasen, Still, Bashman, and SCOTUS blogs). That's why I had to smile -- and wince -- when reviewing your great user's guide this weekend . . .
Well, I hated to read that! I sent him a picture of what the Indiana Law Blog should look like (although the green column in the picture is somewhat truncated) and later received this response:
that was helpful. After viewing the .pdf, I was able to get your site to look like that in Explorer -- after I changed the size of the text to "smallest."

Looks great -- far better than the white on blue title box and white box with black text on ugly brown bkgd and bizarre formatting that I get in Netscape!

I mention this in case you too do not see the green column [that was the old blog, the couln is now grey] running down the right side of this blog, etc. If you think you may be missing something, check this picture. And please let me know (and tell me what browser you are using) so that I can attempt to make adjustments on my end.

Posted by Marcia Oddi on Saturday, July 29, 2006
Posted to About the Indiana Law Blog

Law - "Legal Blogs: The Search for Legitimacy"

Lyle Denniston, a Supreme Court journalist, and also a regular contributor to SCOTUS blog, has published an article in the Chapman Law Journal titled "Legal Blogs: The Search for Legitimacy." Access it here.

Posted by Marcia Oddi on Saturday, July 29, 2006
Posted to General Law Related

Law - 7th Circuit decisions make "decision of the day"

A 7th Circuit decision yesterday, Doe v. Oberweis Dairy, (out of Illinois) by Judge Posner, was selected federal Court of Appeals "Decision of the Day" by the blog of the same name. Access the entry here.

Yesterday's National Coalition of Prayer v. Carter (see ILB entry here) made "Best of the Rest." The Decision of the Day summary:

In this legal battle over Indiana’s do-not-call laws, a Seventh Circuit panel unanimously upholds the statute against a First Amendment challenge by charitable organizations. However, the panel divides on the reasoning. The majority opinion, authored by Chief Judge Flaum, applies a balancing of interests test to reject the plaintiffs’ claims. Judge Williams concurs, arguing that strict scrutiny is the proper approach – i.e., is the statute narrowly tailored to achieve a substantial government objective. But like the majority, she concludes that the statute withstands constitutional challenge.

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

Ind. Gov't. - South Shore ridership jumps, again

The Gary Post-Tribune reports:

CHESTERTON — Dan Ryan Expressway and Chicago Skyway reconstruction, coupled with gasoline prices that have topped the $3 a gallon mark, have caused another explosion in commuter ridership on the South Shore.

John Parsons, spokesman for the Northern Indiana Transportation District, which operates the South Shore, explained the spike to the NICTD board Friday.

“All three are really impacting ridership this summer,” Parsons said.

Daily weekday ridership during the summer months last year averaged about 13,500, compared to 15,500 this year, a 2,000-per-day passenger increase.

During the Taste of Chicago’s 10-day run, daily ridership last year numbered 13,203, compared to 14,210 this year.

“We should hit 4 million passengers this year,” Parsons said. Going into Week 16 of the Dan Ryan project, weekday ridership is up dramatically over what ridership was before the Dan Ryan project, Parsons said.

NICTD is waiting to hear whether the Indiana Department of Transportation will approve a $31.2 million grant, and from the Regional Development Authority on a $7.8 million grant to purchase 12 passenger cars. If approved, it would take 18 to 24 months for construction and delivery of the cars.

Parsons said the Dan Ryan and Skyway construction projects would likely be completed before the cars arrive, but noted that they would still be needed since there is standing room only on a number of the trains.

Seems like a no-brainer! But also seems like this is moving very slowly. See this ILB entry from April 25th, titled "Ind. Econ. Dev. - The South Shore Line, something that works, and could work even better," which included this quote:
The South Shore owns 68 passenger cars, although several are typically out of service for maintenance.

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

and also referenced another story of the South Shore's growth and expansion needs from nearly a year ago.

Posted by Marcia Oddi on Saturday, July 29, 2006
Posted to Indiana Government | Indiana economic development

Ind. Decisions - Federal court rules architects' copyright suit against library can proceed

"Architects' suit against library gets green light: Judge refuses to dismiss case filed by firm that designed expansion" is the headline to a story today in the Indianapolis Star by Kevin Corcoran. Some quotes:

The Central Library project's former architects will get their day in court, a federal judge ruled Friday.

U.S. District Judge John D. Tinder denied a request by attorneys for the Indianapolis-Marion County Public Library to dismiss a copyright-infringement case filed by the firm that designed the library expansion.

Tinder ruled that the suit by Woollen, Molzan and Partners might not have complied with every technicality of law but that he would not delay the case by making the Indianapolis company file a corrected lawsuit.

"There is enough maneuvering going on already in the background of this very public fiasco," Tinder wrote. "The time of the parties would be better spent resolving this case." * * *

Woollen Molzan filed its suit against the library after the seven-member Library Board voted in April to terminate the firm's contract, saying design errors continued to surface and the firm was delaying work.

Here is a copy of Judge Tinder's ruling in Woollen Molzan et al v. Indianapolis-Marion County Public Library.

Some interesting dicta from the ruling:

Prior to Woollen Molzan’s filing of its copyright registration, the primary issue underlying Library’s motion to dismiss was whether a district court has jurisdiction to hear a copyright infringement claim when the plaintiff has applied for a copyright but no registration has yet issued. * * *

Under 17 U.S.C. § 411(a), no person can begin an action for infringement of a
copyright until “registration of the copyright claim has been made” or, alternatively, until the registration has been refused and the applicant serves a copy of its complaint on the Register of the Copyrights. 17 U.S.C. § 411(a). * * *

The jurisdictional issue regarding the requirements of § 411(a) is not a simple one. First, the circuits have divided between the “registration approach,” in which a plaintiff must await the Copyright Office’s actual registration before filing suit, and the “application approach,” in which the plaintiff has a cause of action upon filing a copyright application, along with the appropriate fee and deposit of material to be protected. See La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1202-04 (10th Cir. 2005) (describing, in relatively neutral terms, the arguments in support of each approach); see also 17 U.S.C. 410(d) (defining the effective date of copyright registration as “the day on which an application, deposit, and fee ... have all been received in the Copyright Office”). The Seventh Circuit has not yet addressed this issue directly, although one decision suggests that this circuit may favor the “application approach.” * * *

Secondly, the parties in this case argue over whether § 411(a) is a condition precedent to filing a lawsuit or a requirement for jurisdiction. * * *

Both issues must be set aside for another case, another day. The Copyright Office has now apparently issued a Certificate of Registration to Woollen Molzan, and, as noted above, a district court may look beyond a complaint’s jurisdictional allegations and “view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Ezekiel, 66 F.3d at 897. As such, there is no justiciable issue before this court on whether a cause of action exists before the Copyright Office has registered the copyright or refused registration.

Posted by Marcia Oddi on Saturday, July 29, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - A second judge could be assigned to the Marion County major felony drug court next year

Karen Eschbacher of the Indianapolis Star reports today:

A second judge could be assigned to the Marion County major felony drug court next year in an effort to speed cases through the system and help ease overcrowding in the county jail.

Under legislation passed earlier this year, Marion County will get three new judges starting in January. Cale Bradford, the presiding judge of Marion Superior Court, said Friday one would likely be assigned to drug court.

Bradford said the move has nothing to do with controversy surrounding Judge Bill Young, who drew criticism from city officials for shutting the court for two weeks earlier this month while he went on vacation. [See 7/19/06 ILB entry here.] Rather, he said it comes down to numbers.

"It's likely going to happen, and that's because that caseload is three times that of other major felony courts," Bradford said. "Those cases need another judge to assist."

The major felony drug court has about 1,200 pending cases.

Young said he would welcome the help. "It will allow me, by loosening up some of the cases, to be able to spend more time on a case, to deal with each defendant in a more thoughtful way than I am able to now."

The assignment isn't a done deal and needs approval from the courts' three-member executive committee. The City-County Council must approve funding for the extra prosecutors, public defenders and court personnel necessary to support another judge. * * *

Even without another judge, there are plans to help. Work is under way to move the drug court from the basement of the City-County Building to another floor, where it will have three hearing rooms instead of one. That will let Young and the two commissioners assigned to the court conduct hearings simultaneously rather than wait for the lone hearing room to be open.

As for his decision to shut his court while away, Young continued to defend the move, saying it gave prosecutors and defense lawyers time to work on cases. Since he returned, 145 cases are now set for disposition, he said.

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

Ind. Courts - More on: Thousands escape traffic fines when ticket writer doesn't come to court

"Thousands escape traffic fines when ticket writer doesn't come to court" was the headline to an Indianapolis Star investigative story published July 4th and quoted in this ILB entry from that date.

Today's story, by Vic Ryckaert, is headed "County calling bluff in traffic court 'game': Motorists paying fine on day of trial, avoiding cop and judge, now face extra $50 charge." The a side-bar to the story explains how the new policy works:

Ticketed drivers who show up in Marion County's traffic court and pay after they see the officer is present now pay a $200 fine, up from $150.

Also, drivers who request a court date and then fail to appear now are fined $250. Previously they were fined $200.

Drivers who go through with their court cases and lose face fines of up to $500, set at the discretion of the judge.

Drivers who have their cases dismissed, either because an officer fails to appear or they win their case, pay no fines.

From the story itself:
Marion Superior Court has started fining motorists who take their cases to court and settle moments before their trials start.

Judges hope that will discourage people who go to court in hopes of winning a dismissal simply because a police officer fails to show up. The new fines were announced after an investigation by The Indianapolis Star found that more than one in three traffic ticket cases is dismissed because officers skip their court dates.

Now, drivers who request a trial and then pay after they get to court and see the officer has shown up will pay an additional $50 fine. The policy took effect Monday.

"We've adopted a schedule that if you show up and you're trying to play the game that the cop doesn't show up, it's going to be added to the fine," said Judge Cale Bradford. "We are getting more of a 'gaming of the system' than people truly trying to assert their rights."

But critics question the policy. Defense attorney Jennifer Lukemeyer said the court is applying a broad policy to matters that ought to be handled on a case-by-case basis. The court might be inviting a class-action lawsuit or review by the Indiana Supreme Court.

"No court should have a uniform policy on imposition of any sentence, fine or disposition," Lukemeyer said. "It's no different than if the court tells a defendant, 'If you go to trial, you will get an extra 10 years.'"
Others say the new rules penalize people for exercising their constitutional rights.

"You have a right to have the state produce their evidence and go forward," Marion County Chief Public Defender David Cook said. "The state still has the obligation to show up at trial."

People hoping to beat the system by just showing up have created a backlog, Master Commissioner Marc Rothenberg said. He presides over the bustling traffic court at 10th Street and Post Road.

Court staff must schedule each case and send out subpoenas to witnesses. Motorists must wait about six months before their cases go to trial. "It's wasting court time," Rothenberg said. "If we had less of these cases set, people who really want trials would have them sooner. Instead of waiting six months, you could have it in three months." * * *

State law gives Rothenberg the leeway to levy fines up to $500 for most traffic violations. In his view, people who pay before stepping before him are admitting their guilt -- and he has the authority to impose an added $50 to their fine.

That $50 will help defray some of the overtime and administrative costs, Rothenberg reasoned.

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

Friday, July 28, 2006

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

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

Note: The Supreme Court has denied transfer in the case of Knightstown Banner, LLC v. Town of Knightstown, et al. Read about the Court of Appeals decision, involving whether the terms of the settlement at issue were a public record, in this Dec. 13, 2005 ILB entry.

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

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

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending July 28, 2006.

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

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

Yesterday the ILB posted a reminder that Orange County Circuit Judge Larry Blanton's hearing on the sealed casino lawsuits is scheduled for Monday, July 31.

In a Louisville Courier Journal story just posted (12:12 p.m.) online, reporter Grace Schneider, who broke the secret lawsuit story last month, reports:

A partner in the Orange County casino development moved Friday to dispel any doubts about its commitment to the $382 million gambling project.

A statement released by Bloomington-based Cook Group officials promised that they have made a long-term commitment to the project and to investing in the community.

The announcement clearly was timed to preempt revelations expected early next week about a continuing legal dispute between Cook Group and its partner in the project, Indianapolis-based Lauth Property Group.

Two lawsuits filed against one another last month by the companies have remained under seal in Orange Circuit Court in Paoli at the parties’ request. But a hearing Monday is expected to open the contents of both suits after a hearing on the matter.

The Courier-Journal and representatives for newspapers in Bedford and Bloomington, as well as an investor group that lost out in a bid to develop the French Lick casino two years ago, have submitted briefs this week asking that the suits be unsealed. * * *

Cook Group president Steve Ferguson said in an interview Friday that word of the dispute between Cook and Lauth has created concerns about whether the project will be completed.

“I just want to alleviate concerns of employees, the people of Orange County and state government … that we are fully committed to this project,” he said.

Ferguson said that he and Lauth executives remain under a confidentiality agreement involving the two suits, and he declined to answer any questions.
He was asked about whether he believes Lauth is committed to the project for the long term.

“We have a partner, and whether they stay or go obviously is up to them,” Ferguson said.

Posted by Marcia Oddi on Friday, July 28, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit upholds "no-call list" statute

In Nat'l Coalition of Prayer v. Steve Carter (SD Ind., Sarah Evans Barker, Judge), a 32-page opinion, including a concurring opinion by Judge Williams beginning on p. 17), Chief Judge Flaum writes:

Plaintiffs are charities that Indiana’s Telephone Privacy Act (“the Act”) precludes from fundraising through professional telemarketers. They claim that the Act violates their First Amendment right to freedom of speech because it is content-based, underbroad, and a prior restraint on speech. The district court granted summary judgment to the State, and Plaintiffs now appeal. For the following reasons, we affirm the decision of the district court. * * *

Because the Act sharply curtails telemarketing—the speech that was most injurious to residential privacy— while excluding speech that historically enjoys greater First Amendment protection, we are satisfied that the Act is not underbroad. Therefore, applying Rowan, we believe that the state’s interest in protecting residents’ right not to endure unwanted speech in their own homes outweighs any First Amendment interests the Plaintiffs possess.

Here is a link to a 9/17/05 ILB entry concerning Judge Barker's opinion.

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

Ind. Decisions - Court of Appeals issues three today

Rosanne B. Shorter v. Lester J. Shorter - "This cause is remanded with instructions to enter an order assigning the parties’ respective interests in what was formerly Lester’s pension account, consistent with the principles set out in this opinion."

In Anton K. Johnson v. State of Indiana, a 12-page opinion, Judge Friedlander concludes:

In summary, Johnson does not challenge the adequacy of his advisement of rights, but merely asserts that said advisement and his subsequent waiver were invalid because he was not first informed that he had been charged with the murders of West and Tasha. We conclude that, although preferable, the lack of such an advisement did not, in and of itself, vitiate Johnson’s waiver of rights. Rather, the proper inquiry for determining whether the waiver was valid is whether Johnson was “made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel [.]”
In James F. Plummer v. State of Indiana, an 8-page opinion, Judge Najam concludes:
In sum, Plummer’s Blakely claim is without merit because the imposition of consecutive sentences does not implicate Blakely. See Smylie, 823 N.E.2d at 686. Further, the trial court did not abuse its discretion when it identified all significant aggravating and mitigating circumstances and determined that presumptive, consecutive sentences were appropriate. Affirmed.

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

Ind. Courts - Commission on Judicial Qualifications has filed judicial disciplinary charges against Judge Thomas Newman, Jr., Madison Superior Court #3.

A strongly-worded release just issued from the Chief Justice's office [emphasis added]:

The Indiana Commission on Judicial Qualifications has filed judicial disciplinary charges against the Honorable Thomas Newman, Jr., Madison Superior Court #3.

In October 2000, Judge Newman revoked Lance Dawson’s probation and sentenced him to six years in prison. In July 2001, the Court of Appeals found the sentence was contrary to law, and Dawson was to be released. However, Judge Newman did not issue an order for Dawson’s release. Dawson was unaware of the Court of Appeals decision, and spent fourteen additional months in prison.

The Commission alleged in its charges, “Judge Newman was so indifferent to the need to prepare an order for Dawson’s release as to constitute such serious neglect that he violated the Code of Judicial Conduct. He further violated the Code when, later, he variously assigned responsibility for his neglect not to himself but to his court reporter, the Department of Corrections, and the Court of Appeals.”

Meg Babcock, the Commission’s attorney, said about the charges, “The Commission emphasizes to Indiana judges, lawyers, and citizens that the Commission values and protects the independence of the judiciary and does not consider an honest judicial mistake, however grave the consequences, to be within its jurisdiction to prosecute. The unique facts of this case, though, illustrate that these charges are not based upon a simple mistake, but on Judge Newman’s neglect and indifference to his judicial duties and his subsequent attempts to cast blame elsewhere.”

Judge Newman may file an Answer to the charges within twenty days, after which the Supreme Court will appoint a panel of three judges to preside over an evidentiary hearing and report to the Court. The Indiana Supreme Court makes the final decision whether the Commission proved its charges and, if so, what sanction or discipline to impose against the judge.

This is not the first we have heard of this case. The ILB posted an entry April 6th of this year quoting from an opinion piece by national columnist James J. Kilpatrick. The entry includes cites to the earlier (2001) Court of Appeals decision and to a 7th Circuit ruling.

Then on April 18th, the ILB posted a summary of a second Court of Appeals opinion. In this case Dawson had sued Judge Newman in state court. The Court of Appeals upheld Newman's claim of abolute judicial immunity.

However, apparently wheels were turning in the background.

[More] Today's press release adds that:

The charging document, which includes thirty-one separate allegations in support of the charges, will be available at www.in.gov/judiciary/jud-qual.
They are not posted yet.

However, there is an earlier Commission Admonition (issued in lieu of filing charges) of Judge Newman, from June 30, 2005, with respect to a different incident. Access it here.

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

Courts - Kentucky bar group wants fen-phen lawyers suspended

Another story today from the Louisville Courier Journal, this one related to the fen-phen case scandal, about which the ILB has had many entires in the past - access the list here. Today's report:

Three Lexington lawyers accused of taking millions in excessive fees in Kentucky's fen-phen case should have their licenses to practice law suspended, a Kentucky Bar Association commission has concluded.

The Kentucky Supreme Court, which disciplines lawyers, will hold a hearing Aug. 17 on a request by the bar association's Inquiry Commission for temporary suspensions of lawyers Melbourne Mills, Shirley Cunningham Jr. and William Gallion, according to the court's calendar. * * *

In a lawsuit filed against the lawyers in 2004, the plaintiffs claim that up to $64.4 million of the $200 million settlement was misappropriated.

The suit is pending in Boone Circuit Court.

Cunningham, Gallion and Mills paid themselves more than $20 million each and paid $20.5 million more to Cincinnati lawyer Stan Chesley, whom they hired to negotiate the fen-phen settlement.

Posted by Marcia Oddi on Friday, July 28, 2006
Posted to Courts in general

Courts - Kentucky judge criticizes lethal-force law

According to this AP story:

LEXINGTON, Ky. — A judge has criticized a new Kentucky law that allows people to shoot home intruders without being charged with a crime.

"I'm not quite sure that the drafters had even a marginal knowledge of criminal law or Kentucky law," Fayette County Circuit Judge Sheila Isaac said. "It is absolutely silent on the court's role."

Isaac made the comments Wednesday in rejecting James Adam Clem's request to have his murder charges dismissed because of the law.

The law says a person has the right to use lethal force if he has "reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred." It also applies if a person is attacked in a public place "where he or she has a right to be."

Clem, 27, says he killed Keith Newberg, 25, in self-defense after Newberg allegedly attacked him upon entering Clem's apartment early Aug. 9, 2004.

Isaac sided with prosecutors, who said that whether Newberg was an intruder or had committed a crime is a factual question that jurors must decide.

"To go into whether he is immune clearly requires fact-intensive decisions" that judges should not make, Isaac said.

Prosecutors around the state have expressed concerns about the law, which they say is difficult to interpret and raises numerous questions.

University of Kentucky law professor Robert Lawson, widely considered the state's foremost expert on criminal law, sharply criticized the law. It was approved overwhelmingly by the General Assembly this spring, and it took effect this month.

"It is the worst legislation I have ever seen in 40 years," said Lawson, the principal drafter of Kentucky's penal code, which was adopted in 1975.

Indiana's General Assembly passed a similar law earlier this year. See the second half of this ILB entry from March 18th, quoting from an earlier LCJ story that began:
FRANKFORT, Ky. -- Kentucky is poised to join Indiana and several other states that have expanded people's right to shoot anyone they believe is threatening them.

Backed by the National Rifle Association, the measure became law in Florida last year and in South Dakota last month. Last week, it was approved by lawmakers in Mississippi and Indiana.

The Indiana bill, now law, is HEA 1028.

Posted by Marcia Oddi on Friday, July 28, 2006
Posted to Courts in general

Courts - Kentucky juror fined for making comments before case over

The Louisville Courier Journal reports, via the AP:

SOMERSET, Ky. (AP) -- A judge ordered a juror to pay $1,500 for comments he made that led the judge to declare a mistrial in a criminal case.

Wade Whisenant, 51, was on the jury hearing the case against an employee of Oakwood, the state's largest home for the mentally retarded. The employee, Rita Bond, 42, was charged with neglect for allegedly failing to properly train an aide.

During a break in the trial, Whisenant said he had already made up his mind, speaking in a loud voice, Pulaski County Circuit Judge David A. Tapp said. Tapp, who had warned jurors not to form or express opinions before the evidence was presented, declared a mistrial.

At a hearing Thursday, Tapp ordered Whisenant to pay a $100 fine and $1,400 to reimburse the cost of paying more than 100 people $12.50 each to come to court for jury selection, the Lexington Herald-Leader reported on its Web site.

Tapp said sentencing Whisenant to the six months in jail he could have received would have sent the right message but would have cost taxpayers more.

Posted by Marcia Oddi on Friday, July 28, 2006
Posted to Courts in general

Environment - US EPA accuses local woman of failing to disclose possible lead-paint hazards to tenants and buyers

A story in the Indianapolis Star today by Tammy Webber reports:

The U.S. Environmental Protection Agency has accused a Hamilton County woman of failing to disclose possible lead-paint hazards to tenants and buyers of several Indianapolis properties.

Karen Krach, Cicero, is accused of not providing lead-disclosure statements or including warnings of possible lead-based paint in contracts for three homes she rented to people with children, according to an administrative complaint filed by the EPA on July 6 and made public Thursday.

Krach also is accused of selling three apartment buildings without informing buyers they could conduct risk assessments or inspections for lead or waive that right.

The federal Lead-Based Paint Disclosure Rule requires that landlords and sellers of housing built before 1978 provide tenants and buyers with lead-hazard information. * * *

The EPA has proposed a fine of $45,210 against Krach in connection with the 18 alleged violations, and settlement negotiations are ongoing, officials said. * * *

EPA officials said Krach's properties were chosen at random for investigation as part of a lead-hazard enforcement initiative in Marion County. The complaint is based on only alleged disclosure violations because a property inspection was not conducted, EPA case developer Estrella Calvo said.

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

Thursday, July 27, 2006

Ind. Law - A change in Indiana law in 2002 prohibits use of the death penalty for juvenile offenders

Dan Davis of the Seymour Tribune reports today in an informative article related to the interstate sniper shootings earlier this week:

Indiana law will bar Jackson County Prosecutor Stephen Pierson from seeking the death penalty against the 17-year-old suspected of murdering a New Albany man north of Seymour early Sunday.

Indiana law was changed in 2002, abolishing use of the death penalty against juvenile offenders.

Pierson said today he will not challenge that change in Indiana law. "I don't think this is the appropriate case for that because the relationship between the shooter and victim is so dissociated, that it's tough to get a handle on," Pierson said.

"This is going to be a tough case on the murder charge because of intent," he added. "It's going to require some circumstantial evidence to get around that."

Indiana's death penalty came under international scrutiny following the death sentence handed down against Paula Cooper, who was 15 when she committed a murder.

A campaign based in Italy brought worldwide attention to Cooper's case, according to Amnesty International. In September 1987, Pope John Paul II urged clemency, and in March 1989 a petition with 1 million signatures calling for clemency for Cooper was presented to the United Nations. Her sentence was commuted to life imprisonment in July 1989.

Pierson would also have to go against the U.S. Supreme Court, which in a 5-4 vote, ruled March 1, 2005, that the Eighth and Fourteenth Amendments forbid the execution of offenders who were younger than 18 when their crimes were committed.

That ruling came in the case of Roper v. Simmons, involving a 17-year-old convicted of capital murder in Missouri.

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

Ind. Law - More on: Mo-peds, Scooters and Golf Carts

I have't seen a golf cart story recently, but here is another scooter story, this one from the Kokomo Perspective, headlined "Scooter ordinance rolls on in Kokomo
Some say law should not be; others say it’s not well-enforced."

Here are three earlier ILB scooter entries.

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

Ind. Courts - Judge Barbara Arnold Harcourt retires, joins Supreme Court administration [More]

The Rushville Republican reports, in a story by Sarah Bruner:

After 18 years in office at the Rush County Courthouse as judge of the Rush Circuit Court, the Honorable Judge Barbara Arnold Harcourt has made the decision not to seek re-election and to pursue other areas of interest. Judge Harcourt will be working with State Court Administration with the Indiana Supreme Court. * * *

Rush County is predominantly Republican and Judge Harcourt is a Democrat. When asked if this ever caused complications she replied, “It makes for a different dynamic, but complications? No. Although I am elected on a partisan ballot, once we are in office it is completely non-partisan.”

Judge Harcourt praised county department heads, the county commissioners and council members, saying that they have all been “terrific.”

Judge Harcourt began her career teaching in Nevada, and has now moved to working on Web-based courses—along with the Honorable Stephan Bradbury from Susanville, Calif. and the Honorable Doug Harkin from Missoula, Mont. These courses are scheduled for Sept. 11 through Oct. 27, 2006.

Judge Harcourt was quoted in the winter/spring edition of “Case in Point” saying, “Isolation is such a big issue with rural judges. Distance learning is a great way to give people the opportunity to have educational experiences that would normally not be available to them.” * * *

She admits that she will miss the local bench but noted, “New brooms sweep clean.” And although she will no longer be the judge for Rush Circuit Court her home is here in Rush County and she has no plans to relocate.

Judge Harcourt’s term will officially end Dec. 31, 2006.

[More] I have been able to locate the issue of Case in Point referenced. If you have broadband you can access it also -- it is a 40-page publication, the article quoting Judge Harcourt is on page 9 (or 11, if you go by the page numbers). Some quotes from the article, "Isolated No More: NJC' New Web Course Focuses on Enahncing the Skills of Rural Judges.":
Judge Harcourt, who has been an NJC faculty member since 1993, is one of three rural court judges designing the curriculum for Rural Courts: A Web-Based Course, scheduled for Sept. 11-Oct. 27, 2006. She will also be a faculty member for the course. “I am working on isolation and the roles of rural court judges,” she explained. “Should they play a more active role or focus more on their roles as adjudicators? I will be discussing different kinds of crimes and the programs that are used in different areas. It is going to be extremely interactive. I want the judges to network with each other so they can build a base of people to chat with when issues arise in their courts. Isolation is such a big issue with rural judges.” * * *

Hon. Doug Harkin, a district court judge from Missoula, Mont., is creating the section of the course that will focus on problems that are unique to rural judges as well as solutions to those problems.

“Rural courts face unique challenges such as the great distances involved, limited technology, lack of funding and diffi culty in obtaining training,” he explained. “Many rural court judges have very little contact with other rural judges in their states. Distances between courts and limited funds for travel often keep face-to-face communication to a minimum. The great beauty of the Internet is that now rural judges can communicate with their contemporaries on a daily basis when time permits and access learning and research sources.”

My thoughts. Law blogs also are helping to bring everyone up to the same information level. I think How Appealing and the SCOTUSblog, for example, have increased lawyers' and judges' awareness of what is going in the federal court system as it happens. And the same for the state court systems, in states that have good law blogs. I remember when I got out of law school (some years ago), keeping up with U.S. Supreme Court cases was very difficult (there was BNA's looseleaf publication, LawWeek, at the law library, that was about it); keeping up with state court opinions was practically impossible.

Posted by Marcia Oddi on Thursday, July 27, 2006
Posted to Indiana Courts

Courts - Dahlia Lithwick writes on state court judges and the gay marriage bans

They have two totally different approaches, one is differential and the other is irreverent, but Linda Greenhouse of the NY Times and Dahlia Lithwick of Slate are my two favorite legal journalists.

Today Ms. Litwick has an absolutely brilliant take on the thought processes of state court justices faced with the same-sex marriage issue. I'd like to quote the entire column, but you may read it for yourself here. It begins:

Let's say you're a justice on the Washington State Supreme Court. You have a nice life, a quiet life. Cozy chambers. Huggable clerks. And then in March of 2005, you hear oral arguments in a case about the state ban on gay marriage.

Eighteen months later, the dumb decision is still pending. You've tossed. You've turned. What to do?

If you vote to strike down the ban, the president will take your name in vain. You'll be vilified as an "activist" in the national media. Bloggers will publish photos of your children and pets. You'll have to apologize for the courage of your convictions for the rest of your career.

If you vote to uphold the ban, on the other hand, you'll get to join your colleagues on the New York and Nebraska courts, who just did the same thing. You'll also find yourself in the warm embrace of your buddies on the Georgia and Tennessee courts (who ultimately ruled against gay marriage in recent weeks on narrower, more technical, terms). Nobody will excoriate you in the op-ed pages. Instead of causing widespread fury, you will unleash, at most, widespread resignation.

Still, you feel bad. You hold no personal animus toward gay people. You even think there is something slightly mean-spirited behind your state's Defense of Marriage Act. You talk it over with your wife/husband/clerks. It's a pickle. Months pass.

Until you hit upon the solution: Shift the blame. Make the legislature the bad guys. Find a way to frame the ban on gay marriage that makes it impossible to strike down. Rule that unless the ban is utterly insane, it's constitutional. Suggest that as long as the legislature passed it, it must be rational. Use the word "deferential" six times.

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

Ind. Courts - More on NFP decisions

Serendipitously (in light of this earlier ILB entry today), I just ran across this entry in a good new blog -- the (new) legal writer ("A collection of resources for lawyers, who write"). The entry is headed "Citation of unpublished decisions soon to be okay in Louisiana." A quote:

Currently in Louisiana, unpublished decisions of the courts of appeal cannot be cited. See Rule 2-16.3 Unif. R. La. Cts. App. That will change when Act 644 of the recently concluded legislative session becomes effective. The Act creates new Code of Civil Procedure Article 2168 which (a) requires Louisiana appellate courts to post their unpublished decisions on their respective web sites; and (b) authorizes citation of those unpublished opinions as legal authorities.
Well, the passage of a law is certainly NOT what I am urging for Indiana. And indeed, the first reader comment to the entry asks: "Isn't this act unconstitutional? Can the legislature force the court to publish an opinion when the court itself has set up rules to determine what is published? Is this not an infringement on the independency of the courts by a separate branch of government?"

Posted by Marcia Oddi on Thursday, July 27, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues two today

In Hollis B. Members, Jr. v. State of Indiana, a 7-page opinion, Judge Bailey writes:

Appellant-Defendant Hollis B. Members Jr. (“Members”) appeals the post-conviction court’s denial of his petition for post-conviction relief, claiming that he was entitled to educational credit time for a high school diploma earned from an out-of-state school. Concluding that the post-conviction court was without jurisdiction to hear this matter, we dismiss the appeal. * * *

In the present case, because Members is challenging the DOC’s denial of his educational credit time, his grievance is with the DOC. He must, therefore, exhaust all of his administrative remedies with the DOC before resorting to the judicial system. See, e.g., Samuels, 849 N.E.2d at 692. Inasmuch as Members has failed to exhaust his available remedies within the DOC, the post-conviction court lacked subject matter jurisdiction to entertain his education credit time complaint and, thus, the judgment must be set aside and this appeal dismissed.

In Mattie Anderson v. State Auto Insurance, a 7-page opinion, Senior Judge Hoffman concludes:
The trial court did not err by finding that the Defendants had established that they were entitled to relief due to excusable neglect, because they contacted their insurance agent, and believed that they had insurance coverage for the situation involved. The trial court did not err by holding that the Defendants were required to establish a meritorious defense in addition to excusable neglect in order to avail themselves of the relief they sought pursuant to T.R. 60(B)(1). Case law has not abrogated the requirement. Review of the transcript reveals that there was no evidence to make a prima facie showing of a defense to the allegations of the complaint about the accident itself before the trial court. Therefore, the trial court did not err by concluding that Appellants were not entitled to relief for failure to make a showing of a meritorious defense. Affirmed.

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

Ind. Decisions - Supreme Court issues two today

In Jason Hole v. State of Indiana, a 4-page, 5-0 opinion, Justice Rucker writes:

In a recent opinion we disagreed with the view expressed in several Court of Appeals opinions that defendants who enter into certain categories of plea agreements are either barred on appeal from challenging the appropriateness of their sentences under Indiana Appellate Rule 7(B) or have acquiesced to their sentences and therefore cannot now complain. We 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, 848 N.E.2d 1073, 1080 (Ind. 2006)

That is not to say however that every sentence that is the product of a plea agreement is subject to Rule 7(B) review. Only if the trial court is exercising discretion in imposing a sentence may a defendant then contest on appeal the merits of that discretion on the grounds that the sentence is inappropriate in light of the nature of the offense and the character of the offender. And whether a defendant pleads guilty under the terms of an agreement that provides for an “open plea” or an agreement that provides for a sentencing cap or range, the trial court still must exercise discretion in determining the sentence it will impose. By contrast where a plea agreement calls for a specific term of years, “if the trial court accepts the parties’ agreement, it has no discretion to impose anything other than the precise sentence upon which they agreed.” * * * The plea agreement in this case falls within the latter category. The parties agreed that Hole would serve a “ten (10) year sentence.” And Hole received the precise sentence for which he bargained. Except for the location where his sentence is to be served, which Hole does not challenge, his sentence is not available for Rule 7(B) review. We affirm the judgment of the trial court.

In Juan Rivera v. State of Indiana, a 4-page, 5-0 opinion, Justice Rucker repeats much of the above Jason Hole language (without referencing the opinion), and then continues:

In this case, the plea agreement is not “open” in the sense that sentencing is left completely to the trial court’s discretion. Nor does the plea agreement contain a sentencing cap or sentencing range. Nonetheless the plea agreement here still affords the trial court some amount of discretion in imposing sentence. More precisely the trial court was left to decide “how said sentence shall be served.” Stated somewhat differently, although the trial court was bound to impose a ten-year sentence, it retained the discretion to determine the amount of the sentence that would be suspended to probation. And precisely because the trial court retained discretion in determining the amount of the sentence that would be executed, Rivera did not waive his right to contest the merits of that discretion on grounds that the sentence is “inappropriate in light of the nature of the offense and the character of the offender.” As indicated earlier in this opinion the Court of Appeals addressed the merits of Rivera’s claim. We decline to address the claim further. The judgment of the trial court is affirmed.

Shepard, C.J., and Sullivan and Boehm, JJ., concur.
Dickson, J., concurs in result without separate opinion.

Posted by Marcia Oddi on Thursday, July 27, 2006
Posted to

Law - More on: Ohio Supreme Court issues long awaited eminent domain ruling today

Updating this ILB entry from yesterday, today the Cincinnati Enquirer reports:

Property rights advocates hailed Wednesday's Ohio Supreme Court ruling - striking down the city of Norwood's use of eminent domain for a developer - as a victory for property owners in Norwood, in Ohio and across the nation.

But the three Norwood property owners who took their case to the state's highest court may have won the war but lost the battle.

Joseph P. Horney, the lead plaintiff in the landmark Supreme Court case, triumphantly forced open the temporary fencing Wednesday that surrounds what's left of the neighborhood, an 11-acre site. Once inside, he looked around and said, "It's painful to see the neighborhood. There's not much left of it."

Horney and his former neighbors - the Gamble and Burton families - are so far sticking to their position that their three-year property rights campaign was about principle, not price.

But what they fought for seems almost uninhabitable, surrounded by a desolate field of weeds and the drone of highway traffic.

For now, they're content with being at the forefront of what seems to be a national property rights backlash in the wake of last year's U.S. Supreme Court ruling in Kelo v. New London.

In that case, the court held that there's nothing unconstitutional about a government taking private property solely for economic development. But the court left it to state courts to decide whether such takings violate state constitutions, and that's what the Ohio Supreme Court did Wednesday.

The Norwood case was the first major eminent-domain case argued and decided by a state supreme court since Kelo.

In ruling that Ohio cities cannot take property by eminent domain solely for economic development, the seven Ohio Supreme Court justices upended a developer's plans to build a $125 million shopping center and office complex on what used to be a residential neighborhood.

The ruling also heartened property rights groups across the country, who tried to make Ohio the first battleground of what could be a series of state-by-state challenges to eminent-domain laws.

Here is a story from today's NY Times, headlined "Ohio Supreme Court Rejects Taking of Homes for Project."

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

Ind. Law - Star writes today on new identity theft law

The ILB posted last March a lengthy entry criticizing HEA 1101 (now PL 125), the identity theft law. (See also this ILB entry from June 1st.)

Today Erika D. Smith of the Indianapolis Star has a balanced story reporting on the new law, and also its shortcomings. Access it here.

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

Law - Washington Court Upholds Ban on Gay Marriage

"Washington Court Upholds Ban on Gay Marriage" is the headline to this story today in the NY Times. The story by Adam Liptak begins:

In an angrily divided 5-to-4 decision, the Washington Supreme Court yesterday upheld a state law banning same-sex marriages.

The justices issued six opinions in the case, with some in the majority emphasizing that the Legislature remained free to extend the right to marry to gay and lesbian couples.

The four dissenting justices said the majority relied on speculation and circular reasoning to endorse discrimination.

Massachusetts remains the only state that sanctions same-sex marriages. New York’s highest court, by a vote of 4 to 2 earlier this month, upheld state laws limiting marriage to opposite-sex couples. The New Jersey Supreme Court is expected to rule soon on the legality of same-sex marriages there.

Legal scholars said the closeness of the Washington and New York decisions suggested that the legal status of same-sex marriages would remain unsettled and controversial. That alone, they said, represents a significant change in public and judicial attitudes.

When the Washington courts last addressed the question of same-sex marriage in 1974, by contrast, an appeals court unanimously voted against the plaintiffs and the State Supreme Court refused to hear the case.

“You’ve gone in 32 years from something that was more or less a slam dunk to where the court is almost evenly and very bitterly divided,” said William B. Rubenstein, a law professor at the University of California, Los Angeles, and author of “Sexual Orientation and the Law.” “The issue is in play.”

Here is a report from the LA Times:
Opponents of gay marriage racked up another legal victory Wednesday, as the highest court in Washington state ruled 5 to 4 that there was no constitutional right for people of the same sex to marry each other.

But even as the state Supreme Court upheld the Legislature's 1998 Defense of Marriage Act, three judges in the majority urged lawmakers to revisit their ban on same-sex marriage and the "clear hardship" it imposed on gay people and their children.

The ruling in liberal-leaning Washington echoed one this month in New York, and it left opponents of same-sex marriage elated and hopeful that the national movement was sputtering to an end.

"Christians all over the state have been praying for this decision, and there is a sense of joy," said Rick Kingham, senior pastor of the Overlake Christian Church in Redmond, Wash., and a leader of Allies for Marriage and Children, a citizens group. "We would truly say that God has intervened in the affairs of man."

For gay-marriage supporters, the ruling was a major setback. It overturned pro-gay-marriage decisions by two lower-court judges and leaves Massachusetts as the only state in the nation with legally sanctioned same-sex marriage.

But they seized hopefully on the narrow margin and the majority judges' call to lawmakers to revisit the issue as indications that their side would prevail.

Here is the Washington Post report. A quote:
A sharply worded dissent, written by Justice Mary E. Fairhurst and signed by three other justices, said the court was using "the excuse of deference to the legislature to perpetuate the existence of an unconstitutional and unjust law."

The majority ruling condoned "blatant discrimination against Washington's gay and lesbian citizens in the name of encouraging procreation" and raising children in homes with opposite-sex parents, Fairhurst wrote. She argued that the court ignored "the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests."

Here is a link to the opinions page in Andersen v. King Co.

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

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

A reminder - Orange County Circuit Judge Larry Blanton's hearing on the sealed casino lawsuits is scheduled for July 31.

For background, start with this ILB entry from June 23rd.

Posted by Marcia Oddi on Thursday, July 27, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Drane’s rape, murder conviction overturned"; yet another "NFP" decision of general interest

The Gary Post-Tribune reports today:

CROWN POINT — The Indiana Court of Appeals has reversed the murder and rape conviction of Ronnie Dontell Drane of Gary, who was found guilty in connection with the 2002 strangulation death of a Hammond woman.

The appeals court found that the state failed to produce sufficient evidence to convict Drane, 32, who was charged with murder in the perpetration of a rape in the death of Tamarra Taylor, 25.

On Feb. 23, 2005, Lake Superior Court Judge pro tem Thomas Webber Sr. convicted Drane of the crimes and sentenced him to 85 years in prison. * * *

Deputy Attorney General Ryan Johanningsmeier said he will file a petition for rehearing to ask the appeals court to reconsider its June 29 ruling.

If the petition is denied, Johanningsmeier can appeal to the Indiana Supreme Court.

If the court grants the petition, the case can be returned to Lake County for a new trial. It could be two to three months before the appeals court announces its decision on the rehearing petition.

Meanwhile, Drane has another murder trial scheduled for Oct. 16 in Lake County.

Although this is a reversal, the panel determined it did not meet the criteria of Appellate Rule 65, and designated the 15-page opinion as Not for Publication (NFP). Thus it is not available on the court website, and does not have precedential value. Here is the docket entry:
Case Number: 45 A 04 - 0503 - CR - 00164
6/29/06 2006 TERM
REVERSED---------------CRONE, J.
This NFP case follows on the NFP decision involving libel issues denied transfer by the Supreme Court reported on in stories earlier this week - see ILB entries here and here.

The ILB has posted numerous entries* over the past few years arguing that the rationale behind the "NFP" designation has passed. The "NFP" designation of Indiana Court of Appeals opinions means two things: (1) the ruling is neither posted online nor published; (2) the opinion does not have precedential value (except in narrow circumstances).

One reason behind the rule, the cost of printing, of course no longer exists -- it has vanished with digitization. Another rationale I've heard, and this goes to the precedential aspect, is that this is an (some might say "paternalistic") effort on the part of the court to relieve attorneys of the burden of unnecessary reading. That too, however, seems grounded in an earlier time, without the research technology of today's world.

At least 3 out of 4 Court of Appeals opinions issued are designated NFP. As of 8/19/05, the ILB began posting, with the agreement of the Office of the Clerk of the Indiana Courts, the weekly list of the Court's NFP opinions. One thing this list of the week's NFP opinions makes clear is the enormous amount of work the Court of Appeals judges produce. These NFP opinions are not brief notations, as on the federal level, but full-blown opinions. We are only privy to at most 25% of the work product of the Court of Appeals judges. This makes it more difficult for us when the time comes to "judge the judges."

Opinions designated by the Court of Appeals panel as "not-for-publication" currently are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?
*For some earlier ILB entries on the NFP issue, see: Oct. 21, 2005; July 13, 2005; July 15, 2005.

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

Law - No divorce after death in Pennsylvania

From today's Pittsburgh Tribune-Review, this story:

A dead man cannot obtain a divorce in Pennsylvania, an Indiana County judge ruled Wednesday in what has been cited as a landmark case in Pennsylvania.

Common Pleas Judge Carol Hanna refused a request by attorneys for murdered Blairsville dentist Dr. John J. Yelenic Jr. to grant a posthumous divorce.

Attorneys for Yelenic said if the divorce had been granted, it would have been a first in Pennsylvania.

The slain man and Michele Yelenic were married for more than eight years, but were separated for more than two years after a fiery split.

Yelenic, 39, was found murdered in his home April 13, a day before he was to sign paperwork finalizing his divorce. No arrests have been made.

His attorneys told the court that if the divorce was denied, the door would be opened for Michele Yelenic to challenge her husband's will. Yelenic's will names his adopted son as his main beneficiary.

Regardless of Hanna's ruling on the divorce, Michele Yelenic, 35, will receive money from a marriage settlement signed days before her husband's death.

Under the agreement, she will receive monthly child support payments of $1,337 along with $54,000 for her share of several properties the couple jointly owned, as well as a portion of his dental practice.

In addition, she will receive more than $38,000 from an annuity they held, money to pay for her White Township home and payments for their son's medical and educational expenses. She will receive this money from her late husband's estate.

In her ruling, Hanna referred to a 1927 Pennsylvania Common Pleas Court opinion that quoted an English case.

"A man can no more be divorced after he is dead than he can be married or condemned to death. Marriage is the union of two lives which can be dissolved either by death or by process of law, but after it has been dissolved in one of those ways, you cannot dissolve it again; you cannot untie a knot which has already been untied," Hanna said.

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

Wednesday, July 26, 2006

Ind. Law - 'Indy Star' Photog's Death Prompts State OSHA Investigation

"'Indy Star' Photog's Death Prompts State OSHA Investigation" is the headline to a story today in Editor & Publisher ("America's Oldest Journal Covering the Newspaper Industry"). It begins:

NEW YORK Indiana state officials are investigating whether The Indianapolis Star violated state workplace safety requirements, following the death of a Star photographer who collapsed in the newsroom earlier this month.

"We became aware that there was a death at the work site and we are investigating to determine whether or not there were OSHA violations associated with the death," said Tim Grogg, a special assistant commissioner with the Indiana Department of Labor's Occupational Safety and Health Administration office. He said the agency became aware of the death within the last two weeks, but did not know if the employer had reported it as required by state law.

"Anytime we become aware of it, whether it is reported by the employer or another way, it is our statutory duty to do an investigation," Grogg added. "I don't know how many people [at the Star] they have had an opportunity to interview, but they have been to the site within the last two weeks."

Meanwhile, a war of words between the Star's editor and a former columnist-turned-blogger has erupted over ongoing questions about the death of the photographer, Mpozi Tolbert, who died at a local hospital an hour after collapsing at his desk in the Star newsroom July 3.

Posted by Marcia Oddi on Wednesday, July 26, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Changes proposed to legal advertsing rules

The Indiana State Bar Association's Report of the Special Committee on Legal Advertising is available online at the ISBA site. It is dated June 30, 2006, and thus preceded in time the New Jersey ethics ruling on "superlawyers". Although the report is 78-pages long, the appendices start on page 46.

Despite the fact that at least one highly-regarded former journalist is among the attorneys on the special committee, there is no executive summary summarizing the recommendations in non-legalize.

The Special Committee on Legal Advertising requests comments on its recommendations by August 4th.

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

Ind. Decisions - 7th Circuit, in banc, denies rehearing in Notre Dame case [Updated]

The case is JOAN LASKOWSKI and DANIEL M. COOK v. MARGARET SPELLINGS, Secretary of Education, and UNIVERSITY OF NOTRE DAME. Here is the rehearing denial.

The original, April 13th ILB entry on the ruling by Judge Posner is available here.

Here is an entry from the ILB the following day, quoting from the Chicago Tribune:

A federal lawsuit alleging that the University of Notre Dame and the U.S. Department of Education used federal money for religious purposes was ordered to proceed Wednesday by a panel of the 7th Circuit Court of Appeals in Chicago.

In a 2-1 decision to send the case back to a lower court in Indiana, the panel of judges found that the case was prematurely dismissed without deciding issues such as whether the university appropriately tracked how the money was spent.

Here, from April 15th, are quotes from an AP story.

Judge Posner writes today to clarify two points, one being this:

The language of section 309 might seem to undermine the plaintiffs’ constitutional claim—for how could a “teacher quality initiative” be unconstitutional? But the claim is not that Congress may not give money to religious institutions. It just may not give it without imposing conditions that prevent the use of the money for religious rather than secular purposes. 443 F.3d at 937. “[S]tates may not make unrestricted cash payments directly to religious institutions.” Freedom from Religion Foundation, Inc. v. Bugher, 249 F.3d 606, 612 (7th Cir. 2001), and cases cited there. Whether appropriate conditions were imposed by the Secretary of Education and were properly observed or implemented by Notre Dame are the issues on the merits that the district court will be resolving in the first instance on remand.
[Updated] Charles Wilson of the AP has a story this evening, published by the Fort Wayne News Sentinel:
A federal appeals court on Wednesday declined to rehear a case that could force the University of Notre Dame to repay a $500,000 government grant used to train teachers in Roman Catholic schools.

The order sent the case back to a federal judge in Indianapolis to determine whether the school violated the Constitution and whether Notre Dame should have to reimburse the Department of Education.

Attorneys for Notre Dame and the Education Department had asked the 7th U.S. Circuit Court of Appeals in Chicago to reconsider its April ruling that District Judge Larry McKinney acted prematurely when he dismissed the case as moot because the money had already been spent.

Notre Dame received the money to redistribute to other colleges to help them replicate the Alliance for Catholic Education. The program trains teachers who then work in Catholic schools that have inadequate resources. Private donations also fund the program.

The American Civil Liberties Union of Indiana, which sued on behalf of taxpayers, said the government had no business paying for religious education.

Appeals court Judge Richard Posner wrote in a supplemental ruling Wednesday that "the claim is not that Congress may not give money to religious institutions. It just may not give it without imposing conditions that prevent the use of the money for religious rather than secular purposes."

But the three-judge panel left it up to McKinney to determine whether the Constitution had been violated.

The judges also left the door open for a Notre Dame defense, noting that the university was not just a fiscal intermediary but had kept part of the money for its own use.

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

Law - Ohio Supreme Court issues long awaited eminent domain ruling today

Here is the report from the Cincinnati Enquirer, titled "Eminent domain abused: Ohio Supreme Court overrules Norwood home-taking." Some quotes:

The city of Norwood cannot use “deteriorating” as a standard for blight to justify the taking of homes by eminent domain, the Ohio Supreme Court ruled this morning.

In holding parts of Ohio’s eminent domain law unconstitutional, the state’s highest court set a different course than the U.S. Supreme Court did in its landmark Kelo v. New London decision last year. There, the Supreme Court ruled that a Connecticut city’s taking of property for economic development was constitutional – but made clear that state constitutions could set different standards for property rights.

The Norwood case is expected to be closely watched around the country. It was the first major eminent domain case to reach a state Supreme Court since Kelo. * * *

The unanimous decision, written by Justice Maureen O’Connor, found the state’s eminent domain law unconstitutional for several reasons:

• It allows the taking of private property for solely for economic development. “We hold that although economic factors may be considered in determining whether private property may be appropriated, the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section19, Article I of the Ohio Constitution.”

• Similarly, the standard that Norwood used to take the properties – the fact that the neighborhood was “deteriorating” – is too vague of a concept to justify the taking.

• The appeal provisions of the eminent domain law – prohibiting property owners from appealing the government’s right to take until after a jury determines the compensation – denies the property owners their right to due process.

Here is a link to today's 58-page opinion, Norwood V. Horney.

The Enquirer has been anticipating this ruling for several months and has written a number of stories on it. The Enquirer has a special page on eminent domain, with links to the stories, as well as to the briefs in the Norwood case. And here is a list of entries about the Norwood case in the ILB.

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

Law - State of Washington Supreme Court rules against same-sex marriage, 5-4

See the How Appealing entry here for early reports.

For background, see this ILB entry from Monday, headed "Where does gay marriage stand in the courts?"

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

Ind. Decisions - Court of Appeals issues two today

In Jerry W. Williams v. Jeff Younginer, et al., a 13-page opinion involving "breach of implied warranty of fitness for habitation, breach of implied warranty of workmanship, breach of express warranty, and constructive fraud", Judge Mathias concludes:

The trial court properly denied judgment on the evidence on the issue of Williams’s personal liability. The court properly granted judgment on the evidence on the issue of punitive damages. However, the trial court erred when it granted judgment on the evidence on the breach of contract claim. Therefore, we affirm in part, reverse in part, and remand for consideration of attorney’s fees.
In City of Gary v. Robert McCrady, a 14-page opinion, Senior Judge Hoffman wrties:
Defendant-Appellant Gary Common Council appeals the trial court’s entry of partial summary judgment in favor of Plaintiff-Appellee Robert McCrady. * * *

In August 1997, McCrady was hired by the Gary Common Council (Council) as Legislative Administrator, which position was later designated as Chief of Operations. In January 2000, a newly elected Council took office and advertised that they were seeking applicants for the position of Chief of Operations. McCrady, as well as others, submitted their application and interviewed for the position, but the council was unable to decide on a candidate. The position was advertised again, and McCrady again submitted his application and was granted an interview. In August 2000, the Council held a regular meeting and the issue of filling the position of Chief of Operations was discussed. In the end, a council member made a motion to appoint a candidate other than McCrady to the position of Chief of Operations. The motion passed with five members voting in favor, three voting against, and one abstention. The president of the Council then sent a letter to McCrady informing him of his termination from the position of Chief of Operations. Alleging violations of the Open Door Law, McCrady filed suit against the City of Gary and the Gary Common Council. McCrady filed a motion for partial summary judgment, to which the Council responded with a cross motion, and the trial court granted partial summary judgment in favor of McCrady. This appeal ensued. * * *

We begin with the affidavit of Public Access Counselor Anne M. O’Connor. McCrady designated this affidavit as evidence in support of his motion for partial summary judgment, and the Council moved the trial court to strike the affidavit from consideration. The trial court denied the Council’s motion.

Statements made by O’Connor in her affidavit involve the investigation of the alleged violation of the Open Door Law in regard to McCrady’s termination. Although it appears from her affidavit that she conducted some amount of investigation, the bulk of her affidavit is based upon the investigation and statements of the Office of Corporation Counsel for the City of Gary and the Law Department for the City of Gary. In addition, she relates information premised by phrases such as, “I agreed with Atty. Clorius L. Lay’s [McCrady’s counsel] conclusion that the Gary Common Council had violated Indiana Open Door Law by failing to take action to terminate Mr. McCrady in a public meeting” * * * Clearly, O’Connor’s affidavit was not made upon her personal knowledge of the information she sets forth in the affidavit as required by T.R. 56(E). * * * Moreover, not only is O’Connor’s affidavit not based upon her personal knowledge but also it contains improper conclusions of law and opinions as to the main issue of this case. “Mere assertions in an affidavit of conclusions of law or opinions will not suffice.” * * * [T]he trial court erred by not striking O’Connor’s affidavit. * * *

In addition, the Council contends that summary judgment was not appropriate because there was no violation of the Open Door Law when Council Member Allen polled council members. McCrady, however, asserts that Council Member Allen and several other council members held a secret meeting to discuss the filling of the position of Chief of Operations in violation of the Open Door Law. * * *

In the instant case, there was no meeting that would subject Council Member Allen’s discussions with other council members to the Open Door Law. The designated evidence includes Council Member Allen’s deposition wherein he testified that he did poll other council members. He stated that he polled five council members that shared his view but that he did this individually. As set out above, in order to have a meeting under the Open Door Law, a majority of the governing body must be present. Such was not the case here. The legislature has specifically defined “meeting” under the Open Door Law as requiring a majority of the governing body; thus, without a majority present, no meeting occurs for purposes of the Open Door Law. See Dillman v. Trustees of Indiana University, 848 N.E.2d 348, 350-52 (Ind. Ct. App. 2006) (stating that although conduct of trustees in meeting with university president in groups constituting less than a quorum in order to circumvent the Open Door Law was “in direct contravention to the public policy behind the Open Door Law,” such conduct is not prohibited and Open Door Law was not violated).

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

Law - Still more on: "Superlawyers" must not flaunt status [Updated]

A reader sends this note, which I've edited only slightly, as shown:

I've been following your thread on the Superlawyers with some interest. I regularly call [phone number omitted] to get the weather forecast, sponsored by injury attorney [name omitted]. Almost every one of his cheesy ads used to mention that he was a Super Lawyer 2005, and the ads said things like "Get a Super Lawyer on Your Team!" Just this week, all references to super lawyer are gone. Perhaps he's taken note of these developments as well. I wonder how many other changes we'll see in attorney advertising.
See the most recent ILB "superlawyers" entry here.

[Updated, 3:00 p.m.] From the same reader:

Oh no! The superlawyer phone ad is back! I am sorry to have been a not entirely accurate source of information. But I honestly hadn't heard it in several days

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

Indiana state government website down [Updated]

The entire Indiana state government website appears to be down, and has been since at least early this morning.

Perhaps the BMV problems are spreading ...

[Update 11:00 a.m.] The state government website appears to be back in operation.

Posted by Marcia Oddi on Wednesday, July 26, 2006
Posted to General News

Ind. Law - DOJ Antitrust Division testimony on competition in real estate brokerage services

Here is a link to testimony offered yesterday before a U.S. House SubCommittee, concerning competition in real estate brokerage services. Some quotes from the transcript:

Mr. Chairman and Members of the Subcommittee, I am pleased to be here on behalf of the Department of Justice Antitrust Division to discuss the competitive implications of developments taking place in the real estate brokerage marketplace. * * *

[A]s in other industries, laws and regulations in real estate brokerage can impede competition from innovative business models. Our experience in other industries has highlighted the negative effects government restraints can have on markets. Therefore, where it comes to our attention that significantly anticompetitive state laws or regulations are under consideration, we approach state officials to advocate that they take into account the benefits to consumers of a more competitive approach. Our experience analyzing competitive practices in a wide variety of markets often is useful in understanding the effects that state laws or regulations may have on competition and consumers.

The Antitrust Division has had a number of opportunities to offer states our pro-competition perspective on proposed measures affecting real estate services. For example, over the last decade, some states considered expanding the definition of "practice of law" so as to prevent non-lawyers from providing routine real estate closing services. Asked for our view, we have advised numerous state legislatures, courts, and bar associations as to the effects on consumers of prohibiting non-lawyers from providing these services. * * *

In more recent years, state authorities have been urged by some to adopt so-called "minimum services" rules, which would require that real estate brokers provide a certain minimum package of services. The traditional broker model provides virtually all nonlegal services associated with a home sale transaction, including those related to marketing, negotiating, and closing, in exchange for the broker's percentage commission. Some consumers prefer to purchase fewer services, handling certain aspects themselves and paying less to brokers. In response to this consumer demand, new broker business models offer smaller packages of broker services, often on a menu basis, in exchange for a smaller total fee. Where this consumer choice is allowed, home sellers and buyers have been able to save thousands of dollars on individual home sales.

Some brokers are resisting these developments, encouraging their state legislatures, regulators, or local real estate boards to impose restrictions that prevent any broker from offering less than a specified list of the "minimum services." This is portrayed as protecting consumers from unwittingly agreeing to substandard service. But we have not found evidence of consumer confusion, so it appears that the effect of these restrictions is not to protect consumers, but to interfere with their freedom to choose, and pay for, only the services they want.

As the ILB has noted in a number of entries (see partial list here), the Indiana General Assembly enacted, and the Governor signed into law, such an anti- discount real estate brokers ("minimum services") law earlier this year -- HEA 1339. For the most recent ILB entry, see this one from July 22nd.

See also Indianapolis attorney Gary Welsh's blog, Advance Indiana, which also has had numerous postings on the new law, including this one from July 22nd.

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

Ind. Courts - "Two lawyers suspended by state justices"

"Two lawyers suspended by state justices" is the headline to this story by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – The Indiana Supreme Court on Tuesday released discipline rulings against two area lawyers – including a short suspension for a Wabash attorney and a yearlong hiatus for an Allen County defense lawyer.

Nicole Jaubert, of Fort Wayne, was suspended for 12 months starting Sept. 11. After the suspension she must apply for reinstatement.

According to the ruling, a client hired Jaubert in August 2003 to seek a sentence modification. For 10 months the client heard nothing from Jaubert so he filed a grievance with the state disciplinary commission.

In response, Jaubert told the commission that she had contacted the prosecutor’s office about a modification and produced copies of letters and a proposed motion she claimed to have sent to the prosecutor. She also further claimed the prosecutor had written back objecting to a change in sentence.

Jaubert then told the commission she updated her client in an April 2004 letter.

But, the ruling said, “the parties agree that (Jaubert’s) assertions were false and that she did not send the documents she produced as she claimed.” * * *

In the second case, Michael J. Smith – of Wabash – received a 60-day suspension also beginning Sept. 11.

According to the ruling, Smith was hired by an Ohio law firm to collect debts owed by Indiana residents to one of its clients. He agreed to do so on a contingency basis but had no written fee agreement.

Smith then used his local law practice account – instead of an attorney trust account – to hold his clients’ money as well as his own personal deposits. From this account, he paid personal bills not associated with his law practice and did not “appropriately safeguard his client’s money.”

The commingling of the money resulted in Smith’s violating several rules of professional conduct.

After his suspension, Smith will be readmitted to practice law subject to a year’s probation that requires him to retain the services of a professional accountant to review his trust account and certify that he is in compliance with state rules.

Supreme Court Chief Justice Randall T. Shepard dissented in the opinion, noting the case warranted more than a minimal suspension.

“This is not just a technical violation of trust account rules,” he wrote. “(Smith) was paying his personal bills with his client’s money. The client did not get paid on schedule because (Smith) had spent the client’s orders here.

Here is a link to the Supreme Court's disciplinary order's page.

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

Tuesday, July 25, 2006

Ind. Decisions - Supreme Court issues one today

In the Matter of the Hon. Israel Nunez Cruz, Commissioner in the Marion Superior Court is a per curiam decision in a judicial disciplinary matter. The Court concludes:

The Respondent and the Commission have agreed that by driving with a blood alcohol concentration equivalent to 0.08 grams of alcohol per 210 liters of breath, the Respondent failed to uphold the integrity of the judiciary and to maintain high standards of conduct, thereby violating Canon 1 of the Code of Judicial Conduct. The Court agrees with the parties.

The parties have further agreed, as does the Court, that the appropriate sanction for this misconduct is a public reprimand. Accordingly, Israel Nunez Cruz, Commissioner in the Marion Superior Court, is hereby reprimanded. This discipline terminates the disciplinary proceedings relating to the circumstances giving rise to this cause. The costs of this proceeding are assessed against the Respondent.

Posted by Marcia Oddi on Tuesday, July 25, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues six today

In Estate of Diane Patrick Troxal v. S.P.T., Anthem Life Ins. Co., a 13-page opinion, Judge Riley concludes: "In light of the foregoing [which involves a review of the "the constructive trust, or Slayer’s Rule"], we find that the trial court properly decided as a matter of law that the proceeds of Diane’s life insurance policy inure to the benefit of the contingent beneficiary, Diane’s minor child, S.P.T., where the primary beneficiary has murdered the policy holder. Affirmed."

In David L. Moshenek v. State of Indiana, a 10-page opinion, Judge Darden concludes: "Based upon the allegations of Moshenek’s petition and the evidence presented to the trial court, we find that the trial court abused its discretion when it did not find that Moshenek had proved his grounds for relief by a preponderance of the evidence and denied his petition for permission to file a belated appeal. Reversed."

Donald Selby v. Northern Indiana Public Service Co., is an 11-page opinion by Judge Riley. The issue is: "Whether NIPSCO owed a non-delegable duty to Selby, an employee of an independent contractor injured while blasting dynamite on-site at a NIPSCO plant, and thus was vicariously liable for Selby’s injuries under the “intrinsically dangerous” exception to the general rule of a principal’s nonliability for a contractor’s negligence." After a very interesting discussion of the status of the law in Indiana in this area, including:

To show the vitality of the intrinsically dangerous exception, we note our supreme court’s 1995 opinion in Bagley v. Insight Communications Co., L.P., 658 N.E.2d 584, 588 (Ind. 1995), which held that “[w]here a contractor’s employer is responsible for a non-delegable duty, the contractor’s injured worker should not discriminately be deprived of access to full compensatory damages but should have recourse equal to that of an injured bystander.” Therefore, the longstanding categorization of blasting as an abnormally dangerous activity susceptible to strict liability, as well as the language in Bagley, are now at odds with the court’s declaration in Roberts that the exception does not apply without the additional claim of negligent hiring. * * *

Nevertheless, in hopes that Bagley lives on, Selby points out that our supreme court has referenced the case since its issuance of Roberts.

the opinion concludes:
Thus, despite being presented with facts that embody the classic example of an abnormally dangerous activity historically subject to strict liability, i.e. blasting with dynamite, the record here does reveal that Selby’s injuries could have been avoided had his co-worker, Ron, followed proper procedure and waited for confirmation from Selby before detonating the blast of dynamite that caused Selby’s injuries. Consequently, because Graycor’s employee did not exercise the ordinary and necessary precautions in detonating the charge of dynamite, NIPSCO cannot be held liable. However, if NIPSCO would be found to have negligently hired Graycor, then NIPSCO would be liable for Graycor’s employee’s negligent acts.
In J. Gregory Smith v. Shirley A. Smith, a 10-page opinion, Judge Vaidik writes:
J. Gregory Smith (“Greg”) appeals the dissolution court’s order dividing the marital assets he shared with Shirley A. Smith (“Shirley”). Specifically, Greg contends that the court abused its discretion in barring the introduction of certain evidence as a sanction for discovery violations without first holding a hearing. He also contends that the court abused its discretion by dividing the assets unjustly. We find the court did not abuse its discretion when it issued the sanction and that the division of property is reasonable. However, because of mistakes in the division of rental properties in the dissolution decree, we remand with instructions for the court to correct the dissolution decree.
In Allstate Insurance Co. v. Tim L. Scroghan, a 16-page opinion, CJ Kirsch writes:
This appeal involves a hotly contested battle over discovery sought in the course of a bad faith claim brought against Allstate for allegedly refusing or delaying payment on an uninsured motorist claim. Tim L. Scroghan brought the bad faith claim (along with breach of contract and punitive damages claims) after being injured in an automobile accident on October 10, 1997. At the time of the accident, Scroghan was insured by Allstate. His policy provided for coverage of property damage, medical payments, uninsured motorist, and bodily injury with a limit on liability of $50,000 per person. The trial court bifurcated Scroghan’s claims into two trials – one on the breach of contract claim and one on the bad faith and punitive damages claims. This appeal covers only the discovery pursued in the latter case.
In Board of School Commissioners of City of Indianapolis, et al v. Angela Pettigrew, a 10-page opinion, CJ Kirsch writes:
Angela Pettigrew filed suit against Ken Grubb, Susan Torzewski, and the Board of School Commissioners of the City of Indianapolis (the “Board”) alleging that Grubb and Torzewski, both employees of Indianapolis Public Schools (“IPS”), made defamatory statements against her, and that the Board negligently supervised these employees, which resulted in their alleged negligent and unreasonable conduct. The trial court granted summary judgment in favor of Grubb and Torzewski, but denied it as to the Board. The Board now appeals the trial court’s denial of its motion for summary judgment, and Pettigrew cross-appeals the trial court’s granting of Grubb’s and Torzewski’s motion for summary judgment. Because we hold that the Board, Grubb and Torzewski are immune under the doctrine of qualified immunity, we need not reach whether the statements of Grubb and Torzewski were defamatory. We affirm in part, reverse in part, and remand with instructions * * * to enter summary judgment in favor of the Board.
Here is some of the discussion of qualified immunity (cites omitted):
The Board maintains that even if the statements of Grubb and Torzewski were determined to be defamatory, it is immune to Pettigrew’s claim of defamation under the doctrine of qualified privilege.

A qualified privilege of public interest applies to communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty. The privilege exists because of “the necessity for full and unrestricted communication on matters in which the parties have a common interest or duty.” The privilege exists because of “the necessity for full and unrestricted communication on matters in which the parties have a common interest or duty.”

Intracompany communications regarding the fitness of an employee are protected by the qualified privilege, in order to accommodate the important role of free and open intracompany communications and legitimate human resource management needs. The privilege protects personnel evaluation information communicated in good faith. Absent a factual dispute, whether a statement is protected by a qualified privilege is a question of law. * * *

However, such a privilege may be overcome.

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

Ind. Decisions - Former controller admits he had E.C. pay legal defense bills

A report today in the Munster (NW Indiana) Times by Joe Carlson begins:

The former controller of East Chicago, already imprisoned for his part in the 1999 sidewalks-for-votes scheme, got another 33 months in prison Monday for illegally using public money to pay his defense attorneys.

Under his new sentence, Edwardo Maldonado, 36, will be eligible for release from the Federal Prison Camp in Duluth, Minn., in 2014 if he shows good behavior.

During the sentencing hearing Monday in South Bend, U.S. District Court Judge Robert Miller said Maldonado's conduct was "astonishingly brazen" and refused to grant a more lenient sentence.

Maldonado was one of the Sidewalk Six, the original group of city officials charged with spending more than $25 million to lay free concrete and trim trees in exchange for votes in the 1999 East Chicago primary election. * * *

An East Chicago ordinance at the time allowed the city to pay for the defenses of its public officials, but the money was supposed to be repaid if the officials ever pleaded or were found guilty.

The situation spawned a state law that prohibits cities, townships and counties from paying defense bills in criminal lawsuits.

Posted by Marcia Oddi on Tuesday, July 25, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Porter County institutes new procedures for use of mouth swabs for drug testing

Bob Kasarda of the Munster (NW Indiana) Times reports today:

VALPARAISO | Concerns about the reliability of an oral drug test used by the county's adult probation department has resulted in 57 revocation cases being dismissed and the adoption of a new procedure aimed at eliminating the potential for false positive results.

Starting today, probationers must wear gloves when handling the cotton swabs used to gather their saliva samples, according to the adult probation department.

The department determined the former method, which did not include gloves, afforded the opportunity for the swabs to be contaminated by the transfer of controlled substances from the probationer's hands.

Due to the possibility of contamination, the department also decided to dismiss pending probation revocation claims based on accusations of failed oral swabs. * * *

The reliability of the test was called into question by defense attorneys, who noticed a spike in the number of positive cocaine tests among clients. They said those same clients tested negative using other methods.

Defense attorney Larry Rogers, who said his firm represents about 20 of the cases dismissed, was encouraged by the new procedure.

"I'm convinced it can be an accurate detector if everything is done correctly," he said.

Fellow defense attorney Peter Boyles also is hopeful, but is taking a wait-and-see attitude.

For background, see this list of four earlier ILB entries from February and March of this year.

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

Courts - 6th Circuit - "Bad work by lawyers may save clients"

The Louisville Courier Journal reports today:

CINCINNATI — Lawyers might be tempted to offer a weak defense in death penalty cases because many execution sentences are being overturned due to lawyer incompetence, the chief judge of a four-state federal appeals court said in an opinion released yesterday.

Prisoners who receive ineffective assistance are likely to be spared, "certainly for many years, and frequently forever," wrote Chief Judge Danny Boggs of the 6th U.S. Circuit Court of Appeals.

"To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court," Boggs wrote. * * *

Boggs' comments came in a unanimous, three-judge ruling that threw out the death sentence for a man whose execution has been pending 21 years. * * *

Boggs called the possibility of deliberately ineffective representation a "moral hazard" but said "any sensible attorney … would have to be blind not to reason."

He also said his thinking was only speculation, and he did not criticize lawyers in this or any other case.

Judge Martha Craig Daughtrey, who was on the three-judge panel, concurred in the ruling but wrote a separate opinion to express her dismay with Boggs' "unjustified attack" on defense lawyers and, indirectly, on other members of the court.

"For the chief judge of a federal appellate court to state that it is 'virtually inevitable' that 'any mildly-sentient defense attorney' would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing," she wrote.

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

Not law - A potentially great new blog hits the ground running

Ruth Holliday, just retired from the Indianapolis Star, where she wrote a human interest column for years, now has a blog: Ruth's Kick Ass Web Log. "This is a blog of all my opinions, both right and wrong. If you don't agree with me, get bent."

If her first entry, "Death in the Newsroom," is any indication, this is going to be a real winner.

Posted by Marcia Oddi on Tuesday, July 25, 2006
Posted to General News

Law - More on: "Superlawyers" must not flaunt status

Law.com today posts a story from the New Jersey Law Journal reporting that:

A New Jersey Supreme Court ethics panel knocked "SuperLawyers" and "Best Lawyers in America" out of the business of ranking New Jersey lawyers on July 19 by prohibiting attorneys from advertising their inclusion and taking part in the selection process.
See the earlier ILB entry here. More from today's very comprehensive story:
Because the opinion says participation in the selection process is inappropriate, New Jersey lawyers won't be able to make the recommendations or return ballots the surveys depend on to create the lists. * * *

The New Jersey authorities are at odds with those in three states. The Philadelphia Bar Association said in Opinion 2004-10 that a lawyer could mention the SuperLawyers designation in a Yellow Pages ad if the ad included details of the selection process.

The Iowa State Bar said in Opinion 05-03 that a firm could be in a Corporate Counsel magazine issue that included lists of Best Lawyers in America. The Iowa Bar reasoned that the magazine, distributed to 30,000 in-house lawyers in corporations, was primarily for the use of the legal profession.

The Virginia State Bar went the farthest and said in 2003, in Opinion A-0144, that a lawyer can advertise inclusion in a rating system that uses a "legitimate peer review process." It said Best Lawyers in America fit the bill.

Virginia's experience suggests how crucial these ethics opinions are for the rating services and the lawyers who use them to woo clients.

James McCauley, the Virginia Bar's ethics counsel, says Opinion A-0144 was a 180-degree turn from an earlier ruling challenged in a federal First Amendment suit by a firm in Best Lawyers in America.

After the judge in the case, Allen, Allen, Allen, Allen v. Williams, 254 F.Supp. 2d 614 (E.D. Va. 2003), issued a temporary injunction, the Bar settled and wrote the permissive revision.

McCauley says the New Jersey opinion is wrong because, in the case of Best Lawyers in America, "there is a selection process and a vetting process that is sufficiently broad-based to show that the publication is not a sham."

As long as a lawyer states truthfully that he or she is in the survey and the criteria are transparent, the public has a reasonable basis to make a choice, McCauley says, adding, "I think a lot of times, bar regulators assume that consumers are like dumb sheep.

"I think this New Jersey opinion is inviting a lawsuit," he goes on. "This advertising business is big business for these personal injury lawyers. They're not going to give up on it too easily."

At some big firms in New Jersey, however, senior partners were cheering.

"I'm thrilled," says Michael Rodburg, managing partner at Roseland's Lowenstein Sandler. "Personally, I think it's been crap, and I think it's been crap from the beginning."

Rodburg says he and other managing partners have succumbed to pressure by lawyers and marketing advisers to participate in ad campaigns geared to the rankings, and firms do so only because others are. "As long as ethics regulators aren't enforcing it and everyone is doing it, you feel like a jerk if you're firm isn't involved," he says. "I always thought it inappropriate and meaningless."

At Princeton's Hill Wallack, managing partner Robert Bacso says the New Jersey Monthly ads costs thousands of dollars and he is glad he no longer has to spend the money to keep up with other firms and satisfy partners who feel they should be publicly recognized for being in SuperLawyers. "I think it's a puff piece and an ego stroke, but if you've got attorneys in the firm who have the designation and you don't advertise it, they have a legitimate gripe," he says. He would rather spend money on targeted marketing or give it to charity, he says.

Here, thanks to How Appealing, is a link to the New Jersey Committee on Attorney Advertising Opinion 39: Advertisements Touting Designation as “Super Lawyer” or “Best Lawyer in America.

BTW, my Indiana Superlawyers ballot is on my desk - it arrived last week.

Posted by Marcia Oddi on Tuesday, July 25, 2006
Posted to General Law Related

Ind. Decisions - Even more on: Ruling stands in favor of Clinton mayor, against newspaper [Updated]

Updating the ILB entry immediately below (which was also updated earlier this morning), here, thanks to the great people at the Indiana Clerk of the Courts office, is a copy of the NFP opinion in The Daily Clintonian v. Shepard.

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

Monday, July 24, 2006

Ind. Decisions - More on: Ruling stands in favor of Clinton mayor, against newspaper [Updated]

The Indianapolis Star has posted an AP story containing a few more details on the Not for Publication 10/28/05 Court of Appeals decision in the case of The Daily Clintonian, George B. Carey, and Concerned Citizens. The Supreme Court last week denied transfer to the case. See this morning's ILB entry here.

The AP story reports:

The state Supreme Court has let stand a jury’s $235,000 award to a mayor who sued a western Indiana newspaper that published a political ad accusing him of wrongdoing.

The state Court of Appeals in October upheld the award, ruling that George B. “Sonny” Carey acted with malice in publishing the April 2002 advertisement in The Daily Clintonian.

The Supreme Court last Thursday declined to hear the case, leaving the outcome unchanged. * * *

The ad accused Clinton Mayor Ron Shepard of misusing city money in refinancing a fire truck and failing to negotiate new rates with Clinton Township Water Co.

Shepard claimed the advertisement was false and defamatory. The newspaper declined to publish a retraction, and Shepard sued Carey, The Daily Clintonian and an unregistered political action committee identified only as Concerned Citizens.

Carey, who also is president of Clinton Township Water Co., denied any involvement with the advertisement and refused to identify the person who had placed it.

A Vermillion Circuit Court jury in 2004 awarded Shepard $225,000 in compensatory damages and $10,000 in punitive damages from The Daily Clintonian.

In upholding the damages, the appeals court said Carey had stipulated before trial that The Daily Clintonian had published the advertisement accusing Shepard of abusing his office. But he later testified he did not think Shepard had committed a crime, the judges noted.

That last paragraph confuses me. Of course, if the Court of Appeals decision was online, it would be easy enough to review the opinion.

The ILB will try to obtain a copy from the Clerk of the Court's office.

[Updated 7/25/06] Here is more about the NFP Court of Appeals ruling, quoted with permision from a November 2005 issue of Indiana Legislative Insight. The intro is "The Indiana Court of Appeals hands down a pair of rulings in cases involving political libel.

In The Daily Clintonian v. Shepard, No. 83A01-0403-CV-97, a Not for Publication opinion, the Court of Appeals affirms a Vermillion County Circuit Court jury verdict of $225,000 in compensatory damages and $10,000 in punitive damages in favor of Clinton Mayor Ron Shepard (D) against George B. “Sonny” Carey, owner and publisher of The Daily Clintonian. Mayor Shepard sued the paper for publishing an anonymous advertisement on April 26, 2002 which reviewed certain city actions and included the line “Abuse of office is a criminal offense.” Mayor Shepard informed the paper that he believed those accusations – that he had “Committed abuse of office as a criminal offense” to be “libelous per se under Indiana law,”and demanded that the paper print a retraction. After the paper refused, Shepard filed suit. Before the trail, Carey and Shepard stipulated to a series of facts, including that the paper “published a paid political advertisement to its 5,400 readers which accused [Shepard] of the crime of abuse of office.” Carey, through his attorney, former Senate Democratic Leader Robert F. Hellmann, argued on appeal that Shepard assigned an erroneous meaning to the sentence about abuse of office complained of in the ad. However, the appellate panel found, the stipulations were binding. “Carey stipulated that the advertisement accused Shepard of a crime, and he cannot now argue that the advertisement did not accuse Shepard of a crime. The stipulation, coupled with Carey’s own testimony, demonstrates he acted with actual malice in publishing the advertisement .... “Having stipulated the advertisement he published accused Shepard of a crime, Carey testified that when he published the advertisement, he did not think Shepard had committed a crime. In other words, he ‘in fact entertained serious doubts as to the truth’ of the advertisement,” the judges write, citing the well-known 1999 Bandido’s libel ruling issued by the Indiana Supreme Court. “This is sufficient to demonstrate Carey’s reckless disregard of truth or falsity of the advertisement and to support a finding of actual malice.” Carey posts a letter of credit to protect the judgment, and plans to seek transfer.

In Shine v. Loomis, No. 02A03-0412-CV-575, Allen County Republican Party Chair Steve Shine prevails in a case in which 2002 Allen County Prosecutor candidate Mike Loomis accused him of defamation of character in 2003 for suggesting that Loomis, as a deputy prosecutor, used “the prosecutor’s office as a vendetta against minorities and the multicultural community.” While an Miami Circuit Court Judge Bruce Embrey, sitting as a special judge, ruled that the case should proceed to trial to determine whether Shine acted with “actual malice,” the appellate court found that Loomis failed to prove that Shine made a defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Judge Michael Barnes files an intriguing concurring opinion, “to express both my concern and reservation that the First Amendment shields the conduct and speech described here. The chairman of a political party made a false statement to a media outlet about a candidate whom he did not support in a primary election. This statement accused the candidate of racially intolerant behavior. The charge was clearly incendiary particular in this context. ‘Coincidentally,’ this statement received widespread media coverage and, perhaps not so ‘coincidentally,” the candidate lost the primary election to the candidate favored by the chairman.” he refers to “the hardball politics seeping through the entire fabric of this case,” but agrees that Loomis failed to prove actual malice here.

The Shine v. Loomis opinion was a published opinion and was covered by the ILB at the time. Here is a Nov. 1, 2005 entry headed "Ruling today turns on a showing of actual malice." The opinion was written by Senior Judge Ratiff, with J. Sharpnack concurring and J. Barnes concurring with separate opinion.

(BTW, I hadn't known until recently that senior judges write opinions, but don't vote.)

And here is an ILB entry from the following day, Nov. 2nd, quoting from a Fort Wayne Journal Gazette story that begins:

The Indiana Court of Appeals today dismissed a lawsuit accusing Allen County’s Republican Party chairman of defaming a former candidate for prosecutor.

Even though the three-judge panel unanimously sided with Steve Shine against Mike Loomis, Judge Michael P. Barnes in his concurring opinion wrote to “express both my concern and reservation that the First Amendment shields the conduct and speech” at the center of the controversy.

Posted by Marcia Oddi on Monday, July 24, 2006
Posted to Ind. Sup.Ct. Decisions

Law - Where does gay marriage stand in the courts?

The LA Times has a good overview of the legal situation today, in a story headed "Flurry of Court Rulings, with More Ahead, on Gay Unions." A quote:

Advocates on both sides are anxiously awaiting two rulings expected any day, from the state high courts in New Jersey and Washington. If either court rules in favor of same-sex marriage, it could have broad ramifications. Both states grant marriage licenses to nonresidents, so same-sex couples from across the country could arrange weddings there. When they returned to their home states, they could sue for the right to have their marriages recognized. That would touch off a new line of litigation. "The last 10 days have been pretty good for [traditional] marriage, but history's taught us that things can turn around pretty quickly," said Gary Schneeberger, a spokesman for Focus on the Family, a conservative advocacy group. * * *

Gay-rights activists say two more decisions against them would be a serious blow to their cause. Even so, it would not end the legal wrangling. Gay-marriage cases are

Posted by Marcia Oddi on Monday, July 24, 2006
Posted to General Law Related

Courts - So what if the judge reads the lawprof's blog?

As noted in this ILB entry Saturday, Howard Bashman of How Appealing has written a commentary concerning "What should judges do if, while visiting the legal blogosphere, they encounter discussions about how pending cases ought to be decided?"

For more, see Bashman's entry this afternoon, and, more particularly, see law prof Ann Althouse's take (and here is her main blog site) on the article, plus the many reader's comments, all available here. Her take:

Is there any trace of a problem here? There's the suggestion that blogging is a too-easy way around writing an amicus brief. (But so is doing an op-ed.) And there's the suggestion that blog posts are written hastily and without much editing. But judges and lawyers are thoroughly used to reading things and deciding what they are worth. (And plenty of law review articles and court briefs and cases are badly done.)

The main thing I can think of is that blog reading can be seductive, eroding your patience for belabored writing, and judges and their clerks might read blogs out of proportion to their actual worth. A relatively small proportion of lawprofs are writing blogs, and the ones who are doing it aren't necessarily the best scholars. We're just the people who love to write in this form.

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

Ind. Decisions - More on: "Appellate court reverses DeKalb logjam decision"

Updating this June 20th ILB entry about last Tuesday's Court of Appeals DeKalb County logjam ruling, reversing the trial court's decision dismissing the plaintiff's "petition for judicial review of the permit, claiming the DNR had not considered the cumulative effects of granting the logjam renewal permit, as required by state law" (to quote the Fort Wayne Journal Gazette story), it occurred to the ILB this morning that NRC administrative ruling might be available online.

And here it is, via the NRC's CADDNAR, a copy of the final order of the ALJ, from 4/26/04.

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

Ind. Decisions - 7th Circuit rules on West Lafayette school superintendent dispute

In Stella Batagiannis v. West Lafayette Community School Corp. (ND Ind., Judge Allen Sharp), an 8-page opinion, Judge Easterbrook writes:

West Lafayette, Indiana, hired Stella Batagiannis in 1999 as Superintendent of the school district. In 2002 the board of education (as we call the governing body) gave Batagiannis a new contract running until June 30, 2007. In May 2003, with more than four years to go on that deal, the board suspended Batagiannis (with pay) after losing confidence in her leadership. She responded with a suit in state court, maintaining that the suspension was a de facto discharge; the state court declined to enjoin the board’s proceedings or undo the suspension. After a hearing in April 2004 the board converted de facto to de jure and fired Batagiannis. This federal suit under 42 U.S.C. §1983 maintains that these steps violated Batagiannis’s rights under the due process clause of the fourteenth amendment; she also contends that the board unlawfully retaliated against her for filing the state-court suit.

The district court granted summary judgment for the defendants (the school board and its trustees) after concluding that the April 2004 hearing provided Batagiannis with all requisite process. Logically the initial question on appeal should be whether any process was due. * * * See Rutan v. Republican Party of Illinois, 497 U.S. 62, 74 (1990). We applied this principle recently to hold that assistant wardens in Illinois prisons may be hired and fired on political grounds. Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005). Superintendents of education, who exercise greater discretion than assistant wardens, likewise may be hired and fired on the basis of speech implying support for, or opposition to, the elected officials’ programs. By filing suit against the board, Batagiannis made it clear that she and the elected officials were no longer operating as a team; the board was entitled to take that into consideration. Indeed, judges do the same in employment discrimination cases involving nonpolicymaking personnel. One common reason for denying reinstatement, and awarding front pay instead, is that the litigation has made a harmonious employment relation impossible. See, e.g., McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992). The board’s decision here—noting that the elected officials had lost confidence in Batagiannis in part because she had filed suit rather than working out differences in private—is in the same spirit.

What’s more, this particular claim of retaliation is incoherent on its own terms. Recall the foundation of the state suit: Batagiannis insisted that the suspension was a de facto discharge and demonstrated that the board already had decided to get rid of her. The formal decision in 2004 cannot be “retaliation” for the state suit when it just confirms something that, according to the litigation, preceded the suit’s commencement.

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

Ind. Decisions - Catching up

I've had a chance to go back and summarize Friday's 5 Court of Appeals decisions. Access them here (or scroll down).

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

Ind. Decisions - Court of Appeals issues one today

In Ronald D. Liggett, et al. v. Dean A. Young, et al. (a 19-page opinion with a disent by Judge Sullivan beginning on p. 18), Judge Baker writes:

Appellant-third-party-plaintiff Ronald D. Liggett, d/b/a Liggett Construction Company (Liggett), appeals from the trial court’s order granting summary judgment in favor of appellees-third-party-defendants Dean and Elisabeth Young (collectively, the Youngs). Specifically, Liggett raises three issues: (1) whether the trial court erred in refusing to consider new evidence as it reconsidered its previous order granting partial summary judgment in favor of the Youngs; (2) whether the trial court erred in failing to conclude that the contract entered into between the Youngs and Liggett was void because Dean, an attorney, violated Professional Conduct Rule 1.8 by entering into the contract; and (3) whether the contract is ambiguous and should be construed against Dean, who drafted it. Finding no error, we affirm the judgment of the trial court. * * *

Ultimately, we conclude that the trial court properly found that it could not consider new evidence, that the contract was not void, that the contract was not ambiguous, that the Youngs do not owe Liggett any more money under the contract, and that partial summary judgment in the Youngs’ favor was warranted. The judgment of the trial court is affirmed.

MAY, J., concurs.
SULLIVAN, J., concurs in part and dissents with opinion. [which begins]

I concur, albeit with some degree of hesitation, as to all parts of the majority opinion except as to Part II. A. In my view, there is a large question as to whether Dean’s drafting of the construction contract and the manner in which is was phrased violated Professional Conduct Rule 1.8(a).

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

Ind. Decisions - Ruling stands in favor of Clinton mayor, against newspaper

The Terre Haute Tribune-Star reports today:

An Indiana Supreme Court decision Thursday means an appellate court’s ruling stands in a judgment in favor of the mayor of Clinton against the city’s newspaper.

The state’s high court decided not to review the case.

Mayor Ron Shepard had been awarded damages in 2004 in a lawsuit against defendant George B. “Sonny” Carey, owner and publisher of the Daily Clintonian.

A jury in Vermillion Circuit Court on Jan. 22, 2004, awarded Shepard $225,000 in compensatory damages and $10,000 in punitive damages.

Shepard sued the newspaper for maliciously publishing an advertisement on April 26, 2002, implying the mayor was a criminal who abused his office.

The transfer list for the week ending July 21st, posted here Friday, lists the decision, The Daily Clintonian, George B. Carey, and Concerned Citizens. It was a NFP deicison issued 10/28/05 by the Court of Appeals.

Posted by Marcia Oddi on Monday, July 24, 2006
Posted to Ind. Sup.Ct. Decisions

Law - LCJ features Kentucky political blogger

The blog is the Bluegrass Report. Some quotes from the story today in the Louisville Courier Journal:

PARIS, Ky. — Working on the 2000 presidential vote recount, Democratic strategist Mark Nickolas learned the influence a single person could have on government. As a blogger, Nickolas is applying that lesson to Kentucky's political scene.

Nickolas, working from a home office in a 1790s-era house at a sprawling horse farm, has taken on a who's who of Kentucky politics -- ranging from indicted Gov. Ernie Fletcher to his own party's leaders. Despite a state government block on his Web site, Nickolas says he's not backing down.

"One person can do a lot," Nickolas said. "You don't need a million people and a million dollars. You need hard work and courage." * * *

Nickolas has seemingly been in a fight since he launched the site on June 13, 2005.

He has regularly blasted Fletcher, Kentucky Chief Justice Joseph Lambert and Republican Senate President David Williams. Considering he's a Democrat, Nickolas has also been particularly rough on the Kentucky Democratic Party and Chairman Jerry Lundergan.

Posted by Marcia Oddi on Monday, July 24, 2006
Posted to

Law - Bar Task Force finds presidential signing statements undermine separation of powers

Here is the just released statement of the American Bar Association. Some quotes:

WASHINGTON, D.C., July 24, 2006 – Presidential signing statements that assert President Bush’s authority to disregard or decline to enforce laws adopted by Congress undermine the rule of law and our constitutional system of separation of powers, according to a report released today by a blue-ribbon American Bar Association task force.

To address these concerns, the task force urges Congress to adopt legislation enabling its members to seek court review of signing statements that assert the President’s right to ignore or not enforce laws passed by Congress, and urges the President to veto bills he feels are not constitutional. * * *

The task force report and recommendations will be presented to the ABA’s policy-making House of Delegates for adoption at its upcoming Annual Meeting Aug. 7-8. Until the ABA House has taken formal action, the report and recommendations represent only the views of the task force.

The bipartisan task force, composed of constitutional scholars, former presidential advisers, and legal and judicial experts, noted that President George W. Bush is not the first president to use signing statements, but said, “It was the number and nature of the current President’s signing statements which … compelled our recommendations.”

The task force said its report and recommendations “are intended to underscore the importance of the doctrine of separation of powers. They therefore represent a call to this President and to all his successors to fully respect the rule of law and our constitutional system of separation of powers and checks and balances.”

The task force determined that signing statements that signal the president’s intent to disregard laws adopted by Congress undermine the separation of powers by depriving Congress of the opportunity to override a veto, and by shutting off policy debate between the two branches of government. According to the task force, they operate as a “line item veto,” which the U.S. Supreme Court has ruled unconstitutional.

Here is a story today from the NY Times headlined "Legal Group Faults Bush for Ignoring Parts of Bills." A quote:
The panel’s report adds momentum to a campaign by scholars and members of Congress who want to curtail the use of signing statements as a device to augment presidential power.

At a recent hearing of the Senate Judiciary Committee, the chairman, Arlen Specter, Republican of Pennsylvania, said Mr. Bush seemed to think he could “cherry-pick the provisions he likes and exclude the ones he doesn’t like.” Senator Patrick J. Leahy of Vermont, the senior Democrat on the committee, said the signing statements were “a diabolical device” to rewrite laws enacted by Congress.

From the Washington Post today:
Bush has vetoed only one bill since taking office, a bill approved by Congress last week relaxing his limits on federal funding for human embryonic stem cell research. But he has on many occasions signed bills, then issued statements reserving the right not to enforce or execute parts of the new laws, on the grounds that they infringe on presidential authority or violate other constitutional provisions.

Perhaps the most prominent example was legislation last year banning cruel, inhumane or degrading treatment of prisoners at U.S. detention centers. Bush signed the bill into law after a struggle with Congress, then followed it with an official statement indicating that he might waive the ban under his constitutional authority as commander in chief, if necessary to prevent a terrorist attack. * * *

If the president has constitutional problems with a bill, the task force said, he should convey those concerns to Congress before it reaches his desk. The panel said signing statements should not be a substitute for vetoing bills the president considers unconstitutional.

"The President's constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal," panel members wrote. "The Constitution is not what the President says it is."

[More] Here is the full text of the ABA report - 34 pp.

Posted by Marcia Oddi on Monday, July 24, 2006
Posted to General Law Related

Sunday, July 23, 2006

Courts - More on: Lawmakers seek to bar hot issues from federal courts

Following up on this ILB entry from last Thursday, here is a story today in the Baltimore Sun headed "GOP lawmakers take aim at U.S. judiciary: Upset over rulings, some in House pursue 'jurisdiction stripping'". The long story begins:

When House Republicans tried last week to block federal courts from hearing challenges to the words "under God" in the Pledge of Allegiance, U.S. Rep. Todd Akin didn't sugarcoat the latest effort to limit the judiciary: We do this, the Missouri Republican said, "because we don't trust them."

In the simmering feud between Congress and the courts, such "jurisdiction stripping" measures have emerged as a weapon of choice for Republicans.

For the most part, the proposals - including the move to allow only state courts to hear Pledge of Allegiance challenges - stand little chance of becoming law, legal scholars and analysts say. But they lay bare ugly tensions between the legislative and judicial branches and could prove to be a potent issue in this year's midterm elections.

Angry about court rulings on issues ranging from private property seizures to same-sex marriage, lawmakers over the past two years have introduced at least a dozen measures aimed at stripping the federal courts, including the U.S. Supreme Court, of the authority to rule on any cases involving issues such as public displays of the Ten Commandments, prayer at government meetings or state laws restricting pornography.

Some lawmakers would go further. House Judiciary Committee Chairman F. James Sensenbrenner Jr. of Wisconsin has suggested appointing an inspector general to monitor the federal courts. Another proposal would dilute the influence of the San Francisco-based 9th U.S. Circuit Court of Appeals - which four years ago touched off the Pledge of Allegiance furor by ruling that "under God" had turned the patriotic oath into an unconstitutional "profession of religious belief" - by splitting the panel in two.

"I think you can look at this in two ways - and one way, which I think is clearly true, is it's a form of saber-rattling - the House is saying, 'We're mad as hell. But if we just say we're mad as hell, it isn't going to be taken as seriously as if we pass something,'" said Charles G. Geyh, an Indiana University law professor and author of When Courts & Congress Collide: The Struggle for Control of America's Judicial System.

"The second possibility, though, is that we are seeing a sea change, something a little more profound," Geyh said recently. "It could be this brave new world of controlling judicial functions."

Here is more about the book, When Courts & Congress Collide: The Struggle for Control of America's Judicial System.

And here is a review, via Findlaw.com, titled "Politics and Law, Courts and Congress: Reviews of Two Recent Books on the Relationship Between Two Oft-Clashing American Traditions and Institutions." It begins:

Two excellent recent books take on the struggle between law and politics being played out in the federal courts and the U.S. Congress -- one by Columbia law professor and FindLaw columnist Michael Dorf; the other, by Indiana University at Bloomington Law School professor Charles Gardner Geyh.

Dorf addresses the issue in the context of individual cases decided between 2000 and 2005. Geyh probes the institutional power struggle. Both have something to teach us about the law and politics.

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

Law - Civil rights hiring shifted in Bush era; Hoosier connections

The Boston Globe today has a sidebar (more about the main story below) that begins:

After the Bush administration changed hiring rules, the Civil Rights Division has been bringing in more conservative lawyers. Here are three recent cases worked on by some of the new hires, along with information about their backgrounds: * * *

[First case] The university offered paid fellowships for minorities and women. The Civil Rights Division sued the university for discriminating against white men. To avoid a court battle, the university dropped the program.

Attorney: The case was handled by a graduate of Indiana University Law School who was hired in February 2004. He is a member of the Federalist Society and the Republican National Lawyers Association. Previously, he worked for the Center for Individual Rights, a nonprofit group that has filed many lawsuits opposing affirmative action in higher education.

The second case is the Georgia voter photo ID case, and in the third the justice division filed a `"friend-of-the-court" brief saying that a public library policy "preventing religious organizations from using its facilities to hold worship services" violated the Christian group's civil rights. "The brief was written by a Notre Dame University Law School graduate who was hired in November 2004."

The lead story is a long report by Charlie Savage, headed "Civil rights hiring shifted in Bush era: Conservative leanings stressed." It begins:

The Bush administration is quietly remaking the Justice Department's Civil Rights Division, filling the permanent ranks with lawyers who have strong conservative credentials but little experience in civil rights, according to job application materials obtained by the Globe.

The documents show that only 42 percent of the lawyers hired since 2003, after the administration changed the rules to give political appointees more influence in the hiring process, have civil rights experience. In the two years before the change, 77 percent of those who were hired had civil rights backgrounds.

In an acknowledgment of the department's special need to be politically neutral, hiring for career jobs in the Civil Rights Division under all recent administrations, Democratic and Republican, had been handled by civil servants -- not political appointees.

But in the fall of 2002, then-attorney general John Ashcroft changed the procedures. The Civil Rights Division disbanded the hiring committees made up of veteran career lawyers.

For decades, such committees had screened thousands of resumes, interviewed candidates, and made recommendations that were only rarely rejected.

Now, hiring is closely overseen by Bush administration political appointees to Justice, effectively turning hundreds of career jobs into politically appointed positions.

The profile of the lawyers being hired has since changed dramatically, according to the resumes of successful applicants to the voting rights, employment litigation, and appellate sections. * * *

At the same time, the kinds of cases the Civil Rights Division is bringing have undergone a shift. The division is bringing fewer voting rights and employment cases involving systematic discrimination against African-Americans, and more alleging reverse discrimination against whites and religious discrimination against Christians.

Posted by Marcia Oddi on Sunday, July 23, 2006
Posted to General Law Related

Environment - A special report on the Fernald uranium foundry cleanup

"Final chapter for Fernald: Uranium plant goes from A-bomb cog to toxic site, and now to nature park" is the headline to a special report today in the Cincinnati Enquirer. It begins:

CROSBY TWP. - The uranium foundry at Fernald was a key link in the United States' nuclear weapons program for decades.

Born during the most frigid period of the Cold War, the top-secret plant sprawled over 1,030 acres. Workers were warned not to talk about what went on there.

The secrecy lasted until the mid-1980s, when accidents spewed uranium into the air and some neighbors of the plant learned their wells were contaminated.

A decade ago, officials and residents agreed on a $4.4 billion plan to close Fernald and clean up the toxic atomic mess created by 40 years of uranium processing.

That cleanup is coming to an end. Hundreds of buildings have been leveled, thousands of tons of contaminated waste have been shipped to Utah and Texas. Hundreds of acres are being reclaimed.

By September, managers at the site expect to finish the job.

Today's special report looks at what has been done to clean up Fernald and what the relic from the Cold War arms race will look like when the project is done.

Posted by Marcia Oddi on Sunday, July 23, 2006
Posted to Environment

Ind. Gov't. - "Computer upgrade for BMV remains a work in progress "

"Computer upgrade for BMV remains a work in progress" is the headline to Lesley Stedman Weidenbener's column today in the Louisville Courier-Journal. This is what caught my eye:

A $32 million computer upgrade -- one that's been in the works for six years under three governors -- did not go as well as planned, leaving some customers unable to complete transactions on their initial visits and others waiting in long lines to do so.

Commissioner Joel Silverman has apologized for the problems. So has Gov. Mitch Daniels.

The men have largely accepted blame for the situation while at the same time deflecting some blame to previous administrations.

I heard the Governor say on TV Friday evening that there was little that BMV could do to get performance from the computer contractor because the contract was paid for in advance.

How can that be? The state never pays in advance. If the Governor's information is correct, I'd like to know more about why this very large contract was not subject to all the hoops of other state contracts.

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

Ind. Law - More on fireworks law protests

Lesley Stedman Weidenbener of the Louisville Courier-Journal reports today in a story headlined "Indiana may revisit fireworks change: Lenient law sparks urban complaints." Here are a few quotes:

Residents in some of the state's more urban communities have complained that the use of consumer fireworks in neighborhoods has been more prolonged than in the past, disrupting those trying to sleep.

Brad and Terilyn Myers, who live with their 11-month-old daughter in a suburban Elkhart neighborhood, became so frustrated that they are among the 201 people who have complained to Gov. Mitch Daniels.

"Thanks to your ill-considered decision to legalize the use of fireworks in residential areas, we are now forced to live with the sound of fireworks on a nightly basis," their e-mail said. "Please re-evaluate this law because it is truly affecting the quality of life for many Hoosiers." * * *

New Albany police spokesman Todd Bailey, who oversees the city's community watch program, said it's "like a war zone" during fireworks season. He heard lots of complaints from neighborhood groups this year frustrated with continuing disruptions.

Posted by Marcia Oddi on Sunday, July 23, 2006
Posted to Indiana Law

Saturday, July 22, 2006

Law - "Superlawyers" must not flaunt status [Updated]

"Lawyer Ads Cannot Tout ‘Super’ Status" is the headline to this story today in the NY Times regional section:

TRENTON, July 21 — They may be pronounced “Super Lawyers” by a magazine supplement, and their names may appear in a “Best Lawyers in America” directory. But under a decision by a State Supreme Court committee, these best-credentialed and best-paid New Jersey lawyers may no longer advertise those honors.

The court’s Committee on Attorney Advertising said in an opinion this week that such advertising violated a rule against ads that are “comparative in nature.” The committee found that that “this simplistic use of a media-generated sound bite title clearly has the capacity to materially mislead the public.”

Moreover, the opinion prohibited all advertising by lawyers in a supplement of The New Jersey Monthly magazine, even if the ads do not use the words “super lawyer,” because a reader might see the same names in the ads and text and conclude that the label confers a recommendation.

The “Super Lawyers” are named in an annual advertising section of the monthly magazine that is later published as a stand-alone issue. * * *

The “Best Lawyers in America,” published by Woodward/White Inc., is a national referral guide that does not contain advertising. The committee noted, however, that the publication had started advertising supplements in some areas of the nation.

Michael L. Rodburg, the managing partner of Lowenstein Sandler of Roseland, N.J., which had more than 30 “super lawyers” and advertised in the section, said in an interview Friday that the firm had removed the reference from its Web site and other materials.

Hmm, this might easily become an issue in Indiana and other states.

Thanks to How Appealing for the link; I didn't see this when I leafed through today's paper.

[Updated 7/23/06]
Michael Stevens of the Kentucky Law Blog picks up this story today and runs with it. Read his entry here.

Posted by Marcia Oddi on Saturday, July 22, 2006
Posted to General Law Related

Ind. Courts - Former Indiana attorney admits to 24 bank robberies

The Boston Globe reported yesterday:

ROCK ISLAND, Ill. --A former Indiana police officer pleaded guilty Friday to 24 bank robberies in Connecticut and 10 other states that netted more than $167,000. Three in Illinois were worth nearly $28,500.

Clifton Bruce Davidson Jr., 41, of Holland, Mich., had been on the FBI's list of most wanted fugitives for seven months before he was taken into custody Jan. 31 in Phoenix and turned over to federal authorities.

He pleaded guilty Friday to three counts of aggravated bank robbery, 21 counts of bank robbery and one count of brandishing a firearm during a crime of violence, the U.S. attorney's office said in a statement.

In federal court, Davidson admitted to four robberies in Michigan; three each in Illinois, Kentucky and Missouri; two each in Ohio, Tennessee, Maryland and Wisconsin; and one each in Indiana, Iowa and Connecticut between Nov. 12, 2003 and last Nov. 18, prosecutors said. * * *

Davidson was fired from the Elkhart, Ind. police force in 1995 for making public statements about an investigation into a police shooting. He later won a defamation suit against the city and then-Mayor James Perron over a 1994 letter to the editor in a local newspaper that alleged Davidson abused unnamed police privileges and was soft on crime.

Davidson became a lawyer, but was disbarred after the Indiana Supreme Court found him guilty of six counts of misconduct in 2004 for taking clients' money for lawsuits that never were filed or on which he did little work.

The per curium ruling disbarring Davidson is reported in this ILB entry from 8/31/04 (3rd item). A quote from the order:
The respondent in the present case absconded with his client’s money, abandoned his practice without warning, and failed to respond to any of the subsequent disciplinary proceedings. For the protection of the public and to ensure the integrity of the bar, we find that the respondent’s misconduct deserves the most severe punishment and that he should be disbarred.

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

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

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending July 21, 2006.

Posted by Marcia Oddi on Saturday, July 22, 2006
Posted to NFP Lists

Law - What should judges do if, while visiting the legal blogosphere, they encounter discussions about how pending cases ought to be decided?

"What should judges do if, while visiting the legal blogosphere, they encounter discussions about how pending cases ought to be decided?" That is the question Howard Bashman of How Appealing addresses today in his weekly commentary on Law.com. Access it here - highly recommended.

The column, says Bashman, is based on a portion of the remarks he delivered earlier this week at the Eighth Circuit Judicial Conference.

Posted by Marcia Oddi on Saturday, July 22, 2006
Posted to General Law Related

Ind. Decisions - Commentary on the 7th Circuit's Monon ruling

Commenting on the 7th Circuit's decision Wednesday in USA v. Rosby (access ILB entry here - 2nd case), Leo Morris of the Fort Wayne News-Sentinel writes, in "Editorial Briefs":

A federal appeals court has ruled against two former top Monon Corp. executives who came up with a creative argument for why they should not have to repay millions of dollars taken in corporate fraud: Lenders should have known something was wrong and therefore not fallen for the fraud. Prosecutors said the two tricked three lenders into loaning the company money so they could finance lavish lifestyles while the cargo trailer maker slid toward bankruptcy in the 1990s.

“Telling the truth is cheap,” wrote Judge Frank Easterbrook, “while nosing out deceit is expensive. Requiring all lenders, investors and so on to investigate every representation made to them would be extravagantly wasteful.”

So be warned. “Let the buyer beware” is a good business practice but a poor defense for cheaters.

Posted by Marcia Oddi on Saturday, July 22, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More today on real estate law change [Updated]

I've updated yesterday morning's ILB entry on WRTV's feature last evening on the General Assembly's anti-discount broker changes to the state real estate law. Access it here.

Here is a headline from a story in Inside Business Today, headed "Indianapolis-based Angie's List is asking the Indiana General Assembly to repeal or modify the state's new minimum services law," and featuring the company's press release. Some quotes from the release:

Calling Indiana's new minimum services law anti-competitive and a blow to consumer choice, Angie's List is asking the Indiana General Assembly to take action to repeal - or at least modify - the statute, which took effect July 1.

The new law requires real estate agents engaged in exclusive listings to be available to answer questions, accept and present offers and help with the closing process. As a result of this requirement, limited-service or discount brokers are no longer able to offer some of their lower cost or "a la carte" options to consumers.

"The minimum service law is anti-competitive and limits the choices consumers have for selling their home," says Angie Hicks, founder of Angie's List. "Homeowners with experience in the selling process should have the freedom to decide what they can handle, and in turn have the option to save potentially thousands of dollars in commission fees."

The push for tougher minimum service standards across the U.S. has also caught the attention of the U.S. Department of Justice, which has sent letters encouraging governors and legislators considering such requirements to reject them on the grounds they harm competition and, hence, consumers. * * *

If not an outright repeal by state legislators, Angie's List wants the law transitioned to a version that strikes a more fair balance, similar to a law passed in Virginia and one currently being considered in Ohio. These versions mandate that agents disclose the services they are required to offer, but allow homeowners to opt out of any services they do not need, thereby keeping operating costs down and allowing discount brokers to continue offering lower-priced services.

Interestingly, the CEO of Angie's list is Bill Oesterle, who managed Governor Mitch Daniels' 2004 campaign. Daniels signed the new minimum services law earlier this year; the ILB wrote at the time: "I've wondered why Governor Daniels signed this bill so quickly. My take on the Governor had been that he was for business competition, not against it."

Here is a related column from the Washington Post today, that begins "When it comes to protecting consumers in the real estate market, are the foxes guarding the henhouse?" Some quotes:

That's the conclusion of new research by the Consumer Federation of America into the relatively obscure state regulatory commissions that oversee residential real estate. Whereas other key industries regulated at the state level -- utility and insurance commissions, for example -- typically are run by professionals independent of the industries they oversee, real estate commissions are dominated and essentially run by active real estate agents and brokers.

That, according to the Consumer Federation, makes them slow to act on consumer complaints and slow to introduce needed consumer protections. It also prejudices them against "nontraditional" approaches such as limited-service, limited-cost options that can save consumers money. Sometimes the industry-dominated commissions are the primary authors of state regulations or laws that directly harm home sellers and buyers, including statewide bans against real estate fee rebates to customers, the group said. * * *

State commissioners also have allowed real estate agents to ignore legislative requirements such as early, formal disclosure to consumers about who the agent represents in a transaction. The National Association of Realtors cited agents' noncompliance with state disclosure rules as a growing problem in the industry earlier this year.

State commissions dominated by real estate agents have actively opposed the growth of money-saving nontraditional brokerage approaches, especially those involving Internet-based firms, according to the Consumer Federation. In several states this year, real estate commissions have sought to retain or enact bans against rebates to home buyers and have supported "minimum service" regulations that discourage the growth of discount-brokerage concepts in which consumers assume greater responsibility in the sale of their homes while paying brokers lower commissions or flat fees.

[Updated 7/23/06] Here is a link to the Consumer Federation of American press release.

Posted by Marcia Oddi on Saturday, July 22, 2006
Posted to Indiana Law

Friday, July 21, 2006

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

Here is the Indiana Supreme Court's transfer list for the week ending July 21, 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, July 21, 2006
Posted to Indiana Transfer Lists

Ind. Courts - More on: Indiana Judge’s Wide Disclosure Order Could Tie Up Litigation Firm

Earlier this morning the ILB quoted from a NY Times story referencing a ruling yesterday by "Judge Kim Van Valer Shilts in Superior Court". Of course, as the NYT apparently is unaware that there is more than one superior court in Indiana, that would be Hon. Kim Van Valer Shilts, Superior Court 3, in Johnson County.

The court has been kind enough to send us a copy of the ruling. It turns out the judge is sitting as special judge in Hamilton County Superior Court. The case is Peter Douglas, et al. v. American United Life. Here is the July 20th order, written up by both the NYT and the Wall St. Journal today.

[More] David M. Hooper, of Thomasson, Thomasson, & Jackson, P.C., Columbus, writes to say: "The NYT article mentions that the order cannot be appealed. Is this true? Couldn’t it be certified for interlocutory appeal? Or perhaps a Writ of Mandamus?" [The NYT article said "Under Indiana court rules the order by Judge Shilts cannot be appealed, but she may narrow the discovery order at a future hearing."]

Posted by Marcia Oddi on Friday, July 21, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues five today

In Jim Aaron v. Susan J. Scott a/k/a Susan J. Mahl; John Nicklas and HD Vest Financial Services and Merill Lynch, a 13-page opinion, Judge Friedlander concludes: "Based on the foregoing, we cannot conclude the trial court’s determination that Merrill Lynch was not in contempt was contrary to the logic and effect of the facts, and, therefore, the trial court did not abuse its discretion."

Township Board of Calumet Township of Lake County, et al v. Mary L. Elgin - a 9-page opinion, is an interesting case - the question at one point is "whether the Home Rule Act [conferred] upon the Township Board the statutory authority to pre-approve the Trustee’s contracts and purchases in excess of $75,000.00." Or, as Judge Bailey puts it on p. 5: "The instant dispute distills to whether the Township Board, having allocated a certain sum for professional and service contracts executed by the Trustee, may then micromanage the expenditures." The Board had passed several resolutions, including a resolution stating that all the trustee's contracts over $75,000 had to have approval by the board. Judge Bailey writes:

On appeal, the Township Board has abandoned any argument that the Home Rule Act explicitly confers upon it the authority to approve the Trustee’s proposed contracts. Instead, the Township Board claims that the act implicitly authorized the passage of the resolutions at issue. It advances a “public policy” argument that the taxpayers would be well served by greater scrutiny of the Trustee’s expenditures.

No doubt, the public policy argument would be more persuasive if the taxpayer funds were expended by the Trustee without any checks and balances. However, the Trustee is constrained by the budget approved by the Township Board, which includes line item allocations. The Township Board annually reviews the prior expenditures and decides to maintain, decrease, or increase future allocations. Additionally, proof of expenditures must be submitted to the State Board of Accounts. Aside from encroaching upon the statutory role of the Trustee, the purported resolution would not promote efficiency. Presumably, the Township Board would be required to convene upon multiple occasions to entertain bids or approve proposed contracts or expenditures; yet the resolution mandates no such meetings. Effectively, if the Township Board declined to voluntarily convene, the Trustee could not enter into any large contract or make any large expenditure during her tenure. For these reasons, the Township Board’s public policy argument does not persuade us that the Township Board, rather than the Trustee, was entitled to summary judgment.

In Bill Colburn v. Kessler's Team Sports, an 11-page opinion in a Worker's Compensation case, Judge Najam writes:
Bill Colburn appeals from the Worker’s Compensation Board’s dismissal of his Application for Adjustment of Claim (“Claim”). Colburn presents a single dispositive issue for our review, namely, whether the Board erred when it found that Colburn’s Claim was untimely under Indiana Code Section 22-3-3-3. * * *

Colburn asserts that because the Act is to be liberally construed in favor of employees, and because “the law does not favor litigation,” we should construe the Act “to provide that the expiration of the two year statute of limitations imposed by I.C. § 22-3-3-3 is not effective to bar a claimant’s claim where no disagreement has arisen prior to the expiration of the statute.”

We decline Colburn’s invitation to so construe the Act based on public policy considerations.

In Bucko Construction Co., Inc. v. Indiana Dept. of Transportation, et al, an 18-page opinion, Judge Friedlander writes:
In November 1996, the Indiana Department of Transportation (INDOT) reviewed Bucko Construction Company, Inc.’s (Bucko) performance as a contractor with the State and, based on Bucko’s deficient performance on Contract R-20974 (the Contract), reduced Bucko’s prequalification rating for highway construction projects by thirty percent. Bucko administratively appealed the reduction and, after its administrative remedies proved unsuccessful, sought judicial review in December 1998. While the judicial review action was pending, Bucko filed a complaint against INDOT for alleged violations of the Contract. Thereafter, Bucko supplemented the record in the Lake Superior Court judicial review action by submitting the judgment from the Marion Superior Court contract case. In affirming INDOT’s decision to reduce Bucko’s prequalification rating, the Lake Superior Court refused to consider the judgment of the Marion Superior Court. On appeal, Bucko claims the Marion Superior Court judgment was controlling and should have been considered in the judicial review action. We affirm. * * *

In summary, we conclude that the judicial review court properly confined its review to the administrative record. Moreover, even if considered, the Marion County litigation sheds no significant light on the adequacy of the administrative findings and the resulting reduction of Bucko’s prequalification rating. As set forth in detail above and in the ALJ’s findings, the project was plagued with problems (e.g., delays, equipment failures, material failures, the use of unapproved materials, and plant shutdowns) well before the dispute arose regarding segregation and raveling of the passing lanes, as evidenced by the interim CR-2s and the warning letter issued by the prequalification committee during Phase II of the project. Further, it is evident that surface problems arose on the passing lanes soon after Phase II was completed, causing rapid deterioration of significant portions of the surface and requiring repair. The fact that the contract only required removal and replacement of the defective portions of roadway and not microsurfacing does not alter the ALJ’s extensive findings regarding the inadequacy of Bucko’s performance throughout the contract and the deficient quality of its finished product. The judicial review court properly affirmed INDOT’s decision to reduce Bucko’s prequalification rating.

In the Paternity of P.W.J., Phillip William Gray v. Linda Sue Schachel - "We grant Gray’s petition for rehearing for the sole purpose of clarifying this issue and affirm our original opinion in all other respects."

Posted by Marcia Oddi on Friday, July 21, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court suspends licenses of two Porter County lawyers

The Gary Post-Tribune reports today:

The Indiana Supreme Court suspended the licenses of two Porter County attorneys who were not diligent.

Laura Larson Sullivan was working as an attorney in her Michigan City office, but she repeatedly failed to process her clients’ documents in a timely manner, the supreme court said. * * *

When asked about the cases by the supreme court, Sullivan said she suffered from a mental disability. The court, however, said her excuse wasn’t good enough.

“While illness may be a mitigating factor in determining the nature of a sanction, an attorney may not use illness as an excuse to violate the Professional Rules of Conduct,” the court ruled. “Clients are entitled to protection regardless of a lawyer’s personal condition.”

The supreme court suspended her license for three months, and she will not be automatically reinstated.

Michael Yudt of Valparaiso also was disciplined by the Indiana Supreme Court. He received a notice in May from the court asking him to explain his negligent actions. Details about his conduct were not specified.

Yudt failed to respond to the court, which decided to suspend him from practicing law indefinitely. Calls to his home were not immediately returned.

Access the Supreme Court's orders here.

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

Ind. Courts - Indiana Judge’s Wide Disclosure Order Could Tie Up Litigation Firm

This story today from the NY Times:

Milberg Weiss Bershad & Schulman, an embattled class-action law firm that has been accused of paying people to serve as plaintiffs, may be required to turn over all its financial records since 1998 under an order released Thursday by an Indiana judge.

Several legal experts, including one of Milberg’s own lawyers, said they expected other defendants to seek discovery orders like the one sought by an insurance company Milberg is suing. That tactic, if successful, could tie up the Milberg firm in so much litigation that it might have difficulty pursuing the hundreds of cases it has filed nationwide.

The insurer, American United Life Insurance, sought the financial disclosure order after a federal grand jury in California indicted Milberg Weiss in May, accusing it of paying $11 million to people to be plaintiffs in class-action suits. * * *

The order, made public Thursday by Judge Kim Van Valer Shilts in Superior Court, would require the four plaintiffs to disclose their financial records since 1998 and then, in a second phase, require that Milberg Weiss disclose its financial records since 1998 unless the judge concluded that there was no reason to pursue the matter.

Under Indiana court rules the order by Judge Shilts cannot be appealed, but she may narrow the discovery order at a future hearing.

This is a very odd story. It is not as if Indiana had only one Superior Court!

Hon. Kim Van Valer Shilts, judge of Superior Court 3, in Johnson County, Franklin, Indiana would be a more useful identification.

The Wall Street Journal Blog has this commentary on the story.

Does anyone have more information on this ruling?

Posted by Marcia Oddi on Friday, July 21, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - $8.7 million restitution upheld in Monon fraud

Charles Wilson of the AP has this story today, published in the Louisville Courier Journal, on Wednesday's ruling by Judge Easterbrook of the 7th Circuit in the case of USA v. Rosby. (See ILB entry here - 2nd case.) Some quotes:

A federal appeals court has ruled against two former Monon Corp. executives who argued that they should not have to repay millions of dollars taken in a corporate fraud because lenders should have noticed something was wrong.

On Wednesday the 7th U.S. Circuit Court of Appeals in Chicago upheld the convictions and sentences of Thomas Rosby and John Franklin, including requirements that they pay $8.7 million in restitution to three lending institutions.

Prosecutors said Rosby, Monon's chief executive, and Franklin, the chief financial officer, tricked three lenders into making loans to the company so they could finance lavish lifestyles while the cargo-trailer maker slid toward bankruptcy in the 1990s.

The former executives argued in their appeal that the lenders should have more closely examined their dealings with the company, which was based in the Northern Indiana town of Monon. * * *

"Telling the truth is cheap, while nosing out deceit is expensive," Judge Frank Easterbrook wrote. "Requiring all lenders, investors, and so on to investigate every representation made to them would be extravagantly wasteful."

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

Ind. Law - WRTV to feature real estate law changes [Updated]

I heard this morning from the TV as I was getting the dog out the door to have fun at Doggy Day Care: "WRTV News at 5 - new state law impacting who can sell your home."

See this ILB entry from July 8 for background.

[Update 6:50 p.m.] Well, I missed the WRTV feature (I was picking up the dog), but fortunately Gary Welsh of Advance Indiana watched it and has a nice summary, including this: "In a telephone interview Rep. Tim Harris, the author of the 'Realtor's Protection Law', conceded that he had been advised by the U.S. Justice Department not to push the passage of the new law because of its anti-trust concerns."

If WRTV posts the video, I'll put a link here.

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

Thursday, July 20, 2006

Court - Kansas federal district court bars enforcement of rules limiting judicial speech

The AP is reporting, via the Kansas City Star:

TOPEKA, Kan. - Rules barring Kansas' judicial candidates from personally soliciting contributions and limiting what they can say during campaigns can't be enforced because of questions about the rules' constitutionality, a federal judge has ruled.

U.S. District Judge Julie Robinson is prohibiting the state's Commission on Judicial Qualifications from moving against judges or judicial candidates who violate provisions in Kansas' code of judicial conduct. Her order, issued Wednesday, will remain in effect until she considers a lawsuit filed by Kansas Judicial Watch, a political action committee based in Wichita.

The PAC sued the commission after it advised a judicial candidate in April that he could not answer a questionnaire from the group without running afoul of the code.

Among other things, the questionnaire asked whether a candidate thought the Kansas Supreme Court had overstepped its authority in ordering legislators to increase spending on public schools, whether same-sex marriages should be prohibited and whether fetuses have a right to life that "should be respected at every stage of their biological development."

Kansas Judicial Watch argued that the code contained provisions that violated judicial candidates' free speech rights and prevented voters from obtaining information about them. * * *

James Bopp Jr., a Terre Haute, Ind., attorney representing Kansas Judicial Watch, had predicted the provisions in the Kansas code would not withstand scrutiny because of a 2002 U.S. Supreme Court ruling in a Minnesota case - which Robinson cited. * * *

Ron Keefover, a spokesman for Kansas' court system, said attorneys are reviewing the ruling and deciding whether to appeal it to the 10th U.S. Circuit Court of Appeals in Denver. * * *

Supreme Court justices and Court of Appeals judges are appointed by the governor and stand for retention. The same is true for 125 district judges in 52 of the state's 105 counties.

But 115 district judges in 53 counties are elected.

"Because the state has voluntarily allowed for this method of judicial selection, the candidates should be allowed to educate the voters about themselves without fear of discipline," Robinson wrote in her order.

The 48-page decision, Kansas Judicial Watch, et. al., v. Mikel L. Stout, et. al., is available here. Note that the judge takes care to point out at p. 48:
The Court takes this opportunity to point out that although the preliminary injunction in this case will allow judicial candidates the opportunity to make certain statements in the context of their campaigns, they are by no means compelled to do so. “[T]he practice of voluntarily demurring does not establish the legitimacy of legal compulsion to demur.” Further, the recusal Canon operates as a check against any statements made that could later render a judge impartial in a particular case or controversy.
(Thanks to How Appealing for the links.)

The ILB last reported on the status of a similar suit in the ND Indiana in an entry from July 12, 2006.

Posted by Marcia Oddi on Thursday, July 20, 2006
Posted to Courts in general

Ind. Courts - More on: South Bend Osco Triple Murder Trial

Updating this ILB entry from July 10th, today the AP reports, in a story headlined "Second hung jury for man accused of killing 3 in South Bend":

NEW CASTLE, Ind. - The trial of former South Bend drug store manager accused of killing three former co-workers 16 years ago has ended in a hung jury for a second time.

A Henry County jury deliberated two days without reaching a verdict in the murder trial of Christopher Allen, forcing a mistrial to be declared Thursday.

It was the third time Allen was tried in the shooting deaths of assistant manager Scott Dick, 29, clerk Connie Zalewski, 43, and pharmacist Tracy Holvoet, 24, during an early morning robbery at an Osco in 1990.

The first trial in June 2001 also with a hung jury. He was convicted in June 2003 on three counts of murder and sentenced to 144 years in prison. But the Indiana Court of Appeals overturned that verdict August 2004, ruling that evidence was wrongfully excluded during the second trial.

The St. Joseph County prosecutor in the early 1990s, Michael Barnes, did not bring charges in the case. Allen was charged by then-Prosecutor Christopher Toth in 1999. * * *

The case was moved to Henry County because of extensive pretrial media coverage in the South Bend area.

Posted by Marcia Oddi on Thursday, July 20, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Still more on: Six Indiana appellate judges up for retention in November

On Monday the ILB called for readers' thoughts on the ILB's proposal to make more information available about the records of the five Court of Appeals judges and one Supreme Court justice who are up for retention at the November 2006 general election. The proposal:

The ILB is considering pulling case statistics from the Courts' reports for the various judges and making them more accessible. The ILB is also considering compiling a list of recent opinions for each judge or justice and making that information available under their name, as well as links to online oral arguments in which they participated.
Yesterday I repeated the call for input and promised a report on readers' input so far by today. Here is the report.

The first response, from an attorney, was not encouraging:

May be too much work for you. Attorneys already know who is good. Non-attorneys could care less -- although you have mentioned the search engine hits you get for that kind of stuff.
The second response, also from an attorney:
How to do an objective and useful resource on judicial retention. That's a challenging question. As you know, I practice in the appellate courts reasonably often, but somehow I don't have that strong of an opinion...in fact I've only rarely had a strongly negative opinion of a judge I've practiced in front of. I do look at prior opinions by the judges that I'm in front of, esp. prior to oral argument, but it's more to get a feel for their recent decisions so as not to hoist myself too quickly.
Both responses were useful, but somewhat attorney-centric. The Constitution does not say only attorneys vote on the retention questions.

I believe many voters want to make meaningful decisions. As I've written before, in the week leading up to the November 2004 general election, the ILB hits tripled. Trying to account for this sudden interest, I found I could access the list of most frequently used search words that had directed visitors to the Indiana Law Blog.

It turned out that the top words and phrases that week were variations on the name "Judge John T. Sharpnack." My interpretation: These were voters who wanted to find out more about the Judge so that they could cast intelligent votes.

The next response was from a software engineer, a non-attorney, who reads the ILB closely each day and who was quick to point out to me my error one day when I messed up the quotes from one of Judge Posner's opinions, adding a paragraph from the dissent as Judge Posner's "conclusion."

He wrote yesterday:

I think this is a great idea. In the past when I have voted I have felt grossly under-informed about the judges I'm voting to retain. The only obvious voting strategies in the absence of information are 1) pro- or anti-incumbent and 2) party affiliation. As I recall, judges' party affiliations don't actually appear on the ballot, but when you live in Carmel, as I do, it's pretty easy to tell from the yard signs which judges are affiliated with the Republican Party.

I would also find statistics on reversal of each judge's opinions to be interesting, but I acknowledge that it might be highly time-consuming to prepare such data in a way that would be detailed enough to be meaningful.

This response supports the position that citizen-voters want more information, and also points out that even very conscientious voters may be somewhat hazy about appellate judges and how they are selected and retained, which I see to be a failure of the legal community to educate, not a failure of the voters.

From another non-attorney, albeit one who keeps close tabs on Indiana legal matters: ".. a real public service, which, one can hope, will keep the General Assembly at bay with regards to changing the merit system of selection and retention."

Finally, from an attorney who appears frequently before the appellate courts (I've edited and combined several of his responses):

I think anything that provides greater information to the public and bar about judges up for retention is great. My concern about using the court's annual report, though, is that it primarily provides statistics about how many opinions were written. I think most lawyers would agree that the judges who write the most are not necessarily writing the best ones. [ILB - The same applies, I think, to those who write the longest.]

Perhaps you could solicit information from readers about specific opinions from the six judges and excerpt those (good and bad). In fairness to the judges, you might contact each of them and ask for a couple of opinions of which they are particularly proud (or think are representative of their work).

I am pretty sure Judge Mathias has been previously asked about which opinions he is most proud. It might have been by the Fort Wayne paper on one of his anniversaries on the bench. I don't think the question is tantamount to stating a position on something for the future but rather gives an indication of the quality of prior work--from the judge's perspective.

I didn't mention the oral arguments earlier. I do think it would be good for the public to be able to see some of those, and hopefully you can make it easy by selecting just a few in which the judge asks quite a few questions.

I wrote back and told the reader that his suggestions paralleled some additional ideas I have been mulling over, which involve a variation on Howard Bashman's "20 Questions for the Appellate Judge."

I said I was thinking of 5 to 10 questions, basically the same for all six of the judges/justices running for retention this fall. The purpose would be to allow the voter to know a little more about the judges than they can find by reading the very brief biographies posted on the court website -- more about their backgrounds and interests -- the kind of things that would be asked if they appeared before an editorial board.

Plus possibly questions such as "list and talk a little about some of your recent opinions: (1) that people may have read about in the papers, or (2) of which you are most proud, or (3) that may impact citizens in their own lives, or (4) etc." Another might be: "tell us how many opinions you write or participate in in a year and how to you manage your time."

No questions, of course, about the judges' positions on issues that might come before the court, or their political views, or asking that they explain their vote on a particular matter.

Is there additional input?

Posted by Marcia Oddi on Thursday, July 20, 2006
Posted to Indiana Courts

Ind. Decisions - Three today from Court of Appeals

In Amy McCray v. State of Indiana, a 7-page opinion, Judge Riley writes:

McCray argues that the evidence presented by the State was insufficient to support her conviction for operating a vehicle while intoxicated, as a Class A misdemeanor. Specifically, she asserts that the State failed to prove beyond a reasonable doubt the temporal element of the crime, i.e., that she was actually intoxicated at the same time she operated her vehicle. We disagree. * * *

McCray’s sole argument here is that the State failed to establish beyond a reasonable doubt that McCray operated a vehicle “while” intoxicated. McCray asserts that there was no evidence from which a reasonable finder of fact could have concluded that McCray’s “intoxication” intersected with her “operating a vehicle.” Thus, we must examine the temporal element of operating a motor vehicle while intoxicated. * * *

We conclude that the present case can be distinguished from Flanagan. In Flanagan, there was no indication as to how long Flanagan was intoxicated, and whether he drove while intoxicated. However, both the instant case and Weida involve a reasonably defined time period in which the drinking, intoxication, and driving occurred. Similar to the defendant in Weida, the evidence most favorable to the judgment establishes that McCray had been drinking at a bar before driving her vehicle to pick up her children, and that she then drove to her residence. Like the officer in Weida who reported to the scene within five to seven minutes after the accident was reported and discovered the defendant in a state of intoxication, the record reflects that Officer Vanek arrived at the scene, discovered McCray in a state of intoxication, and located the children in the car within a span of twenty minutes after receiving his dispatch report. After Officer Vanek read McCray her rights, she admitted to having consumed four beers prior to driving. Since there was limited time between receiving the call that a red Beretta was heading to the residence, and actually locating McCray in an intoxicated state, a fact finder could reasonably conclude that McCray drove while intoxicated. Therefore, we will not disturb the trial court’s judgment.

In Michael Green v. State of Indiana, a 25-page opinion, Judge Sullivan concludes:
In sum, we affirm in part, reverse in part, and remand to the trial court with instructions to vacate Green’s conviction for conspiracy to commit robbery and to resentence Green. In doing so we instruct the court to consider aggravators and mitigators in a manner not inconsistent with this opinion. Furthermore we direct that the new sentence may not exceed an aggregate of 105 years, representing a maximum of fifty years for the burglary conviction and a maximum of fifty-five years for the single episode of criminal conduct consisting of the attempted robbery and conspiracy to commit burglary convictions.
In Jonathan & Kelly Hill v. Lanie Davis, a 9-page opinion, Judge Bailey writes:
Tenants timely appealed the small claims court’s judgment, arguing that it was clearly erroneous in light of Indiana Code 32-31-3, i.e., the Security Deposit Statute. The Hill Court agreed, reversed the judgment of the small claims court, and remanded with instructions to enter judgment in favor Tenants and to determine the proper amount of attorney’s fees and costs. Hill, 832 N.E.2d at 555.

On remand, Tenants sought attorney’s fees in the aggregate amount of $13,857.00, plus costs in the amount of $969.03. Tenants attached to their motion for attorney’s fees an affidavit from attorney Clifford Shepard (“Shepard”), who began representing them on August 24, 2004, that detailed his legal experience, in general, and his knowledge of consumer law issues, in particular. In his affidavit, Shepard explained that he has personally expended “39.90 hours” representing Tenants in this action, for a resulting fee of $10,573.50, and, further, that two of his paralegals have expended 31.5 hours, resulting in a fee of $3,283.50.2 After conducting a hearing on the reasonableness of Tenants’ attorney’s fees, the small claims court awarded Tenants the return of their $500.00 security deposit, $6,300.00 in attorney’s fees, as well as $969.03 in costs. Tenants now appeal the trial court’s award of attorney’s fees as inadequate. * * *

On appeal, Tenants challenge the sufficiency of the attorney’s fee award, arguing that the reduction in fees constitutes an abuse of discretion because Tenants “essentially tendered to the Trial Court un-controverted evidence as to a majority, if not all, of the factors contained in Ind. Professional Rule 1.5.” We disagree.

At the hearing for example, Landlord, through her counsel, offered evidence from another attorney, Paul A. Hadley (“Hadley”), regarding a customary attorney’s fee for the representation of a small claims action. Specifically, Hadley—a fifteen-year legal veteran who represented Landlord in the small claims trial and on appeal—testified that he charges a flat fee of approximately $400.00 for representing clients in small claims matters. He explained that, in small claims actions, he does not bill his time, which generally consists of a brief consultation with the client, finding details, making copies, preparing and filing the Notice of Claim with the small claims court, and presenting the claim at a subsequent hearing. The trial court also admitted into evidence five exhibits, representing judgments in other small claims actions where Hadley’s clients received a reasonable attorney’s fee award of between $136.00 and $150.00.

In addition, and with regard to appellate attorney fees, Hadley testified that he “generally charges somewhere between Twenty-five to Three Thousand Dollars ($2500 - $3000) flat fee for the appeal,” and that he only charged Landlord $750.00 for taking the appeal in Hall. Accordingly, the record contains evidence, which casts doubt upon the reasonableness of Tenants’ request for $13,857.00 in attorney’s fees for a small claims trial and appeal.

Posted by Marcia Oddi on Thursday, July 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Union County Courthouse offices to close starting Monday for move-in

The Richmond Palladium-Item reports:

If you have business at the Union County Courthouse, do it today or Friday.

Union County's courthouse offices will be closed from July 24 to July 31 so the offices can move from the Liberty Mini Mall to the renovated courthouse.

Phone numbers for county offices will remain the same, but the phone service will be switched to the new offices in the courthouse on Monday, even though most offices will still be in the mini mall at that point.

Moving Monday will begin with the prosecutor, probation and child support offices. The clerk and court offices will move Tuesday, followed by the auditor and commissioner offices on Wednesday. The treasurer, recorder, assessor and surveyor's offices will move Thursday.

For background, see this April 25th ILB entry, titled "Union County Court rennovation moving along." (Note: The photo accompanying the story apparently is no longer available.)

Posted by Marcia Oddi on Thursday, July 20, 2006
Posted to Indiana Courts

Ind. Gov't. - More on: Goldman Sachs's Conflicts of Interest Convulse Chicago, Indiana

The Fort Wayne Journal Gazette has an interesting editorial today, putting the best face on the Bloomberg News article quoted in this ILB entry Monday. Some quotes from the editorial:

Now that legal challenges to the Indiana Toll Road lease have been exhausted, and the lease exercised, all that remains is to reap the rewards of the Major Moves windfall, right? Not quite – a $3.8 billion lease agreement demands vigorous oversight. And to its credit, the Daniels administration appears to be watching.

Bloomberg News reported this week that Goldman Sachs Group Inc. lost the chance to serve as financial adviser for Chicago’s sale of Midway Airport after city officials learned the securities firm was planning to buy a European airport company that was a potential Midway buyer.

The blatant conflict of interest drew criticism not only from Chicago’s chief financial officer but also from Charles Schalliol, Indiana budget director.

The securities firm is building a $3 billion infrastructure fund it would use to invest in infrastructure such as toll roads and airports, according to Bloomberg.

“The objective of these funds is to buy assets on the cheap,” said Dana Levenson, Chicago’s CFO. “We’re concerned, but it’s unavoidable. It would be a lot easier if there were no funds housed in investment banks, but that’s not going to be the case.”

It won’t be the case because savvy investment professionals have recognized the lucrative potential of leasing government infrastructure. They can’t be faulted for trying to maximize their profits, but state and municipal government officials need to be aware that their interests as adviser might be compromised by their own investments.

To his credit, budget director Schalliol is on top of the situation. When he found out that Goldman Sachs was preparing to invest in toll highways and other infrastructure, he called the Goldman Sachs banker who oversaw the Toll Road deal. The state of Indiana paid the securities firm $20 million last month for drawing up and executing the public-private concession agreement.

“I told Mark Florian, after the transaction was done, it would have been a significant area of conversation,” Schalliol told Bloomberg News. “I would not go so far as to say it’s unacceptable to have a fund. I would say it creates some serious questions for the engagement.” * * *

It’s encouraging to see that Schalliol was on top of Goldman Sachs’ venture and, more important, that he served the company notice.

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

Ind. Decisions - "Appellate court reverses DeKalb logjam decision"

"Appellate court reverses DeKalb logjam decision" is the headline to a story today by Angela Mapes in the Fort Wayne Journal Gazette, about a Court of Appeals ruling Tuesday in the case of Izaak Walton League of America, Inc. & Cedar Creek Wildlife Project, Inc. v. DeKalb County Surveyor's Office & Indiana Department of Natural Resources. (Access the ILB summary here - third case.) Some quotes from the story:

Environmental activists this week won a victory over the removal of logjams in DeKalb County, a victory they hope may lead to changes on a statewide level.

The Indiana Court of Appeals ruled Tuesday that a petition for judicial review of a permit issued for the removal of logjams on the creek, filed by the Izaak Walton League of America and the Cedar Creek Wildlife Project, should not have been dismissed last year.

The trial court dismissed the petition based on arguments that the environmental groups had not provided adequate records for judicial review. The appellate court overturned that ruling this week and ordered the case be sent back to the trial court.The case dates to 2001, when the Department of Natural Resources issued a permit to the DeKalb County surveyor’s office to remove two logjams from Cedar Creek.

Logjams can cause the water to change course, deposit sediment and swell over its banks, the surveyor said at the time.

The Izaak Walton League, the Cedar Creek group and four individuals filed a petition for judicial review of the permit, claiming the DNR had not considered the cumulative effects of granting the logjam renewal permit, as required by state law.

While the case was pending, the logjams in question were removed.

In 2003, an administrative law judge with the Natural Resources Commission ruled – after a hearing months earlier – that the DNR may not have considered cumulative effects and ordered the permit be sent back to the DNR for further review.

The environmental groups petitioned again in 2004 for judicial review in Allen Circuit Court, after the Natural Resources Commission acknowledged the DNR had not considered the cumulative effects but also had not invalidated the permit to remove the logjams.

Mary Anna Feitler, president of the DeKalb County chapter of the Izaak Walton League, said the case is worth pursuing even though the logjams in question were removed several years ago.

The issue is broader than Cedar Creek, she said.

“It’s important to get on the record that cumulative effects have to be considered in any future work, and to make the DNR do something about it,” Feitler said.

[More] See also this July 19th analysis of the decision by attorney Marty Lucas of BigEastern.com. He concludes:
It seems that this issue: whether a permit issued by DNR without proper consideration of cumulative effects must therefore be invalidated, will now be considered by the trial court on judicial review.

So, at long last, here's the bottom line. Cumulative effects are a big deal. Most of the environmental degradation issues facing Indiana's waterways are the product of a million little hurts, not one big disaster. I hope that DNR will begin to more seriously and systematically consider cumulative effects, and quit fighting against people who point out that they have a responsiblity to do this.

Posted by Marcia Oddi on Thursday, July 20, 2006
Posted to Indiana Courts

Courts - Lawmakers seek to bar hot issues from federal courts

Maureen Groppe of the Indianapolis Star Washington Bureau writes today that "Conservatives' bills aim to block federal judges from hearing cases on controversial topics." Some quotes:

WASHINGTON -- What do you do when a judge makes a decision you don't agree with?

Take away judges' power to consider the issue.

That's what conservative lawmakers -- including two from Indiana -- have been trying to do on such hot-button issues as public displays of the Ten Commandments, gay marriage, the Pledge of Allegiance and invoking the Christian God in legislatures. * * *

"The way our system works is when a court makes a decision, we abide by the decision," said Ken Falk, legal director for the American Civil Liberties Union of Indiana * * * But lawmakers say their approach is easier than amending the Constitution or replacing the judges and is equally appropriate.

"If James Madison and Alexander Hamilton and George Washington didn't want Congress to have this authority, then they would have left it out of the Constitution," Hostettler said.

The Constitution gives Congress the authority to define the jurisdiction of lower federal courts and the appellate jurisdiction of the Supreme Court.
Congress is always adjusting federal jurisdiction, said Russell Wheeler, former deputy director of the Federal Judicial Center and a guest scholar at the Brookings Institution.

"What makes (the current bills) different," Wheeler said, "is that they are not just a normal regulation of jurisdiction, but they are an effort to eviscerate the third branch of government." * * *

[S]ome legal experts think chances a "court-stripping" bill could pass have increased, citing the increased political polarization in Congress, a particularly strong period of conflict between Congress and the courts, and the influence of interest groups.

"My sense is that the level of antagonism toward judges is pretty high right now," Geyh said. "And in some congressional districts, people running for Congress will be made to look good if they do something to yank the chains of judges."

[More] Here is an AP story today on one such bill. The report begins:
WASHINGTON (AP) -- Legislation to bar federal courts from ruling on constitutional issues arising from the Pledge of Allegiance, including the "one nation, under God" reference, passed the House after lawmakers argued that the pledge is linked to the nation's spiritual history.

Opponents countered that such a law, a priority of social conservatives, would undercut judicial independence and deny access to federal courts to religious minorities seeking to defend their rights. * * *

The pledge bill would deny jurisdiction to federal courts, and appellate jurisdiction to the Supreme Court, to decide questions pertaining to the interpretation or constitutionality of the pledge. State courts could still decide whether the pledge is valid within the state. * * *

Davison Douglas, a professor at the William and Mary School of Law, said constitutional scholars are divided over whether such congressional restrictions on judicial review would pass constitutional muster.

"If this bill is enacted, it would be a highly significant landmark in terms of congressional efforts to control the actions of federal courts," Douglas said.

Posted by Marcia Oddi on Thursday, July 20, 2006
Posted to Courts in general

Wednesday, July 19, 2006

Courts - Former Connecticut Chief Justice in hot seat

The Hartford Courant has an AP story today reporting that:

The state's Judicial Review Council on Wednesday found probable cause that former state Supreme Court Chief Justice William J. Sullivan violated judicial rules of conduct when he delayed the release of a court opinion to help a fellow justice facing confirmation hearings.

Sullivan, who can still sit on cases as a retired justice, was charged with five violations of the Code of Judicial Conduct and state statutes. * * *

Sullivan has acknowledged that he delayed the release of a controversial court decision, hoping to protect Republican Gov. M. Jodi Rell's one-time chief justice nominee, Supreme Court Justice Peter Zarella. Zarella was facing legislative confirmation hearings and Sullivan feared Zarella's position on the case would anger legislators.

In the ruling, Zarella voted with the majority to keep certain judicial records secret from the public.

Sunday the Courant had a very long and outraged editorial headed "The Imperial Judiciary." It is an interesting read. Here is a sample from the second half of the article:
[R]eporters discovered a few years ago that judges had for two decades labeled certain cases "Level 1" and super-sealed them so no public traces of those records could be found. Many cases involved influential people, including judges. The Courant and the Connecticut Law Tribune sued in federal court to find out such basic information as the names of litigants and of the judges who approved the sealings.

Judges voted (behind closed doors) to ban the practice. But they also voted to automatically seal all financial affidavits in divorce cases. They didn't ask for the legislature's blessing.

Posted by Marcia Oddi on Wednesday, July 19, 2006
Posted to Courts in general

Ind. Decisions - 7th Circuit issues three today

Biomet Orthopedics v. Tact Medical (ND Ind., Philip P. Simon, Judge) (7 pp.)

EASTERBROOK, Circuit Judge. For 12 years TACT Medical was the exclusive distributor in Japan of medical devices made by Biomet Orthopedics. At the conclusion of its distributorship in February 2001, TACT had a choice under §2.3 of the contract:
[After] this Agreement has been terminated . . . TACT may at its sole discretion continue distribution of the Products and parts which TACT owns in its inventories and/or request BIOMET to repurchase those Products and parts back at the price equal to that paid by TACT to BIOMET, with the costs of carriage, insurance, duty and charges required for such return being borne by [Biomet] . . . .
USA v. Rosby, Thomas J. (ND Ind., James T. Moody, Judge) (12 pp.)
EASTERBROOK, Circuit Judge. Monon Corporation once was among the largest manufacturers of over-the-road semi-trailers, containers, and container chassis, producing about 150 units a day. Early in 1996, however, Monon’s principal customer cut back on orders and the lost business could not be replaced. Production fell to about 100 units a day in January 1996, dropping to 60 in April and 50 in August. This decline in sales produced a liquidity crisis, as the firm’s fixed obligations and payroll could not be cut as fast as the order book shriveled. Thomas Rosby, Monon’s CEO and holder of 72% of its equity, and John Franklin, its CFO and holder of 14%, watched the finances closely.

Much of Monon’s working capital came from Congress Financial Corporation, a factor that advanced credit on the security of Monon’s inventory and receivables. Monon could draw on the credit as soon as it started production of each new unit. During 1996 Monon began a bill-ahead fraud. It would, for example, report starting 60 units on a day when only 50 actually entered production. As sales continued to decrease, however, Monon had to report more and more early starts, so that it could retire older advances. Congress was left unsecured for the difference between actual and reported production. The unsecured draw against the revolving credit increased from about $2 million in March 1996 to $5.9 million in August, when Congress discovered the fraud. After Monon filed for bankruptcy on September 1996, Congress completed many of the falsely reported units at its own expense and risk. Its net loss was about $1.8 million.

Defendants’ principal arguments in this court collapse to a single contention: that the false representations were not material because, by making prudent inquiries, the lenders could have figured out what Monon was doing.

Spilmon, Bryan E. v. USA (ND Ind., Allen Sharp, Judge)(7 pp.)
POSNER, Circuit Judge. Bryan Spilmon, a dentist, was indicted for defrauding Medicaid by submitting claims for work that he had not performed, billing for unnecessary procedures, concealing overpayments to him by Medicaid, and committing related offenses. He agreed to plead guilty and receive a 57-month sentence. As part of the plea agreement, the government dismissed charges against his wife. A couple of months after the district judge accepted the guilty plea in a hearing in which Spilmon admitted his guilt, Spilmon moved to withdraw his plea. The judge denied the motion without an evidentiary hearing which he had agreed in the plea agreement (plus three years of supervised release) as well as to pay restitution in excess of $2.4 million. Spilmon appeals from the judgment, arguing that the district judge should have allowed him to withdraw his guilty plea.

His main ground is that the plea was coerced: he says that he believed (in fact knew) all along that he was innocent but that his love for his wife had moved him to admit his guilt so that the charges against her would be dropped. “Package” plea agreements in which dismissal of charges against a spouse or other family member of the principal malefactor is part of the deal are common. They are not improper or forbidden. * * *

The cases that express particular concern about package deals operationalize their concern by requiring that the existence of such a deal be disclosed to the judge so that he can determine its voluntariness. * * * We have no quarrel with the requirement or with the cases that say that such deals must be viewed with caution by the judge; we add only that this is true of all plea deals. The requirement was satisfied in this case. * * * Affirmed.

Posted by Marcia Oddi on Wednesday, July 19, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals decides one today

Deborah J. Maxwell v. Terry Steven Maxwell is a 13-page opinion by Judge Barnes, with a dissent/concur by Judge Mathias beginning on p. 12. Judge Barnes' conclusion:

The trial court did not abuse its discretion in the manner in which it divided the property of the parties. However, the trial court’s findings regarding attorney fees and costs are inadequate to explain why Deborah was denied any such award and we remand for further consideration of that issue.

Posted by Marcia Oddi on Wednesday, July 19, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Six Indiana appellate judges up for retention in November

On Monday the ILB called for readers' thoughts on the ILB's proposal to make more information available about the records of the five Court of Appeals judges and one Supreme Court justice who are up for retention at the November 2006 general election. See Monday's entry here. Here is what was proposed:

The ILB is considering pulling case statistics from the Courts' reports for the various judges and making them more accessible. The ILB is also considering compiling a list of recent opinions for each judge or justice and making that information available under their name, as well as links to online oral arguments in which they participated.
This afternoon or tomorrow at the latest I will have a report on readers' input so far. Let me hear from you -- remember, if I use your comments I won't use your name unless you tell me you don't object.

Posted by Marcia Oddi on Wednesday, July 19, 2006
Posted to Indiana Courts

Courts - 7th Circuit adds RSS feed

The 7th Circuit has added RSS feeds so that a user may be automatically notified when the Court has posted new opinions or oral arguments, without having to check the site itself several times a day. This new feature may cause me to start following 7th Circuit rulings again - something I've slacked off on in the last month. However, the feeds, just like the 7th Circuit's online postings, do not tell the cases' states of origin, so you still have to open each one to discover those involving Indiana.

ILB readers may recall this ILB entry from April 21st noting that Michael Ausbrook had created RSS feeds for Indiana appellate decisions -- these have made keeping up with the Indiana courts' postings much easier for me.

Many of you may find RSS discussions incomprehensible -- as did I for a long time. If so, rest easy, as I am using them and relaying the results to you via The Indiana Law Blog. Now if only Indiana's federal district courts would begin the move into the 21st century.

Posted by Marcia Oddi on Wednesday, July 19, 2006
Posted to Courts in general

Ind. Courts - Still more on "Montgomery County judges issue mandate for staff raises" [Updated]

See this November 16, 2005 ILB entry for background on this judicial mandate case. The Indiana Supreme Court appointed a Cass County judge to hear and rule on the case -via this 11/7/05 order. Monday the Crawfordsville Journal-Review reported, in a story by Melissa Franklin:

Testimony was given by Circuit Judge Thomas Milligan, Superior Judge David Ault, and County Court Judge Peggy Lohorn regarding the pay increase of the judges staff on Monday.

According to testimony, court reporters compiled information regarding pay raises around surrounding areas regarding court reporters, administrative assistants, and secretary/bailiffs. The findings were than presented to the judges, said Theresa L. Davis, Reporter for Montgomery Superior Court.

The judges then tried to talk to county council about pay increases. "Each time we plead our case, it fell into deaf ears," Judge Lohorn said. Montgomery County judges mandated $10,000 raises for their staff in August 2005. The mandate was issued to stem turnover in the county court system after a third court employee left for a better-paying position. "That was the proverbial straw that broke the camels back," Judge Milligan said. "All the county employees are grossly underpaid."

The mandate was turned in days after the Indiana Department of Local Government Finance ordered the county to cut $750,000 from the 2006 budget. "We don't have any money to give them," County Councilman Terry Hockersmith said. "It's a mandate that we give them unappropriated funds and we don't have any unappropriated funds."

The judges all testified that court is getting busier which has increased the staff's workload. "In 2004 it became apparent we wouldn't be able to keep our staff without an obstantial increase of pay," Judge Lohorn said.

"We're scratching our heads all over the place wondering how we are going to keep the police officers and how to give everybody raises," Hockersmith said. "We're going to have to get rid of personnel to satisfy the judges mandate." The court will reside today at 9:00 a.m. at Montgomery Circuit Court.

[Update Wed. evening] Yesterday the Journal-Review had another report. This time the special judge was identified -- Julian L. Ridlen. From the story:
A ruling is expected in August in the case of Montgomery County judges ordering pay raises for their staff while other county employees received no special treatment.

Testimony concluded after the second day on Tuesday. Attorneys will submit final arguments in writing to special judge Julian L. Ridlen to review. * * *

"We don't have any money to give them," Montgomery County Councilman Terry Hockersmith said. "It's a mandate that we give them unappropriated funds and we don't have any unappropriated funds."

If Judge Ridlen upholds the mandate, Hockersmith said, the county will likely have to cut five employees this year and another 16 in two years. "We're scratching our heads all over the place wondering how we are going to keep the police officers and give everybody pay raises," Hockersmith said.

Posted by Marcia Oddi on Wednesday, July 19, 2006
Posted to Indiana Courts

Law - Chicago's top lawyer rejects criticism

From the Chicago Sun-Times today, in a column by Fran Spielman, city hall reporter, that begins:

Mayor Daley's embattled corporation counsel insisted Tuesday that her integrity remains intact -- and she can continue to function as the city's No. 1 lawyer -- even after a federal judge singled her out for ridicule.

U.S. District Judge David Coar has dismissed as "incredible" Corporation Counsel Mara Georges' claim that she was unaware of hiring abuses until federal investigators raided the Mayor's Office of Intergovernmental Affairs last year.

In documents unsealed on the day the mayor's former patronage chief and three others were convicted, Coar said he thought Georges "put on blinders" when it came to the scheme to reward pro-Daley armies of political workers with jobs.

"With respect to . . . the corporation counsel's office especially, there seems to be -- the attitude seems to be -- put on the blinders and don't look left or right," the judge said during a private discussion with attorneys.

On Tuesday, reacting publicly for the first time, Georges defended her integrity.

She insisted she was telling the truth when she said she was unaware that IGA, where convicted patronage chief Robert Sorich worked, controlled hiring.

Posted by Marcia Oddi on Wednesday, July 19, 2006
Posted to General Law Related

Ind. Courts - Marion Superior Court Judge's vacation becomes an issue

Vic Ryckaertand Will Higgins report today in the Indianapolis Star:

A Marion County judge went on vacation this month and shut down his busy court for two weeks.

The break in Superior Court Judge Bill Young's court has drawn criticism from city leaders, who say slowing progress on hundreds of cases was a mistake as the county entered its worst jail crisis in years.

"The court had no activity for two weeks," said City Controller Robert Clifford. "It's like a retailer closing in December. It's the busiest time of the year."

Just last month, the county freed almost 600 inmates because of crowding -- the second highest mass jail release in the past six years. The Marion County Jail has been near a mandatory population cap of 1,135 repeatedly as inmates wait for their cases to move through the justice system.

Young said the shutdown was designed to help lawyers in his court catch up on paperwork and settle a host of cases through plea agreements. He said that in the long run, it might help ease crowding at the jail.

Judges have the option of having commissioners, magistrates or other judges fill in during an absence.

Young oversees the major felony drug court, one of the county's busiest, with 1,251 pending cases. Defendants in Young's court include accused cocaine dealers, methamphetamine manufacturers and people suspected of serious drug use.

"I've got lawyers with 150 cases apiece who barely have time to look at their cases," said Young, reached in Indianapolis where he was attending a meeting Tuesday. "I'm just seeing if I can make a dent in my caseload by giving the lawyers some breathing room." * * *

Young's court, records show, has 354 defendants with pending cases sitting in the Marion County Jail. No other criminal court even comes close.

The drug court, records show, has an additional 316 defendants whose cases have been closed sitting in jail, but it's unclear whether those inmates are awaiting sentencing or being held on charges in another court.

"The fact is I need more prosecutors, I need more public defenders," Young said. "You can have a hearing every day, but if the lawyers have done no work on it, we get nowhere." * * *

The jail has been under the scrutiny of a federal judge since the Indiana Civil Liberties Union brought a suit over poor conditions at the jail in the 1970s. Ken Falk, the legal director of the organization now called the American Civil Liberties Union of Indiana, said Young's vacation underscored the continuing problems with the system.

"If something as insignificant as a judge going on vacation can create significant problems with capacity," he said, "that illustrates to me we haven't addressed the underlying problem of, 'Do we have enough capacity?' "

Young went on vacation for a month in Brown County, volunteering at a summer camp. For two weeks, fill-in judges and commissioners or magistrates presided over the court.

An acting judge could have overseen the court, but for the first two weeks of July, the court shut down completely.

Several lawyers and one of his magistrates also were heading out of town during that time, which included the Fourth of July holiday, Young said. He sat down with supervising prosecutors and public defenders, and Young said they agreed that closing the court would benefit the system more than bringing in an acting judge.

"We planned this for a month and a half," Young said, adding that officials should be able to assess the payoff next month. "I think we need to sit down in August and look at what dispositions we had."

Posted by Marcia Oddi on Wednesday, July 19, 2006
Posted to Indiana Courts

Tuesday, July 18, 2006

Ind. Decisions - Court of Appeals decides six today

In James Bruno v. Wells Fargo Bank, an 18-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude: (1) Bruno did not effectively revoke his guarantee on Columbo’s note; (2) no fiduciary relationship existed between Bruno and Wells Fargo; (3) Wells Fargo did not fail to mitigate its damages; (4) Bruno’s due process rights were not violated by denial of an in-person hearing; and (5) insufficient evidence was presented as to damages and attorney’s fees. Accordingly, we remand this case to the trial court on the issue of damages only, with instructions to request that the parties present additional evidence for an accurate determination of the award.
In Elizabeth MacGill v. Tina Reid d/b/a Reid's Housekeeping, a 13-page opinion in a case involving a covenant not to compete, Judge Bailey writes:
Although Reid had a legitimate protectible interest in Reid Housekeeping’s good will, the covenant was unreasonable in the type of activity restricted because it went beyond the scope of Reid’s Housekeeping’s good will interest of protecting its current customers and housekeepers. Therefore, we conclude that the trial court erred by concluding that the parties’ covenant not to compete was enforceable. Accordingly, the trial court erred by denying MacGill’s summary judgment motion and granting Reid’s cross motion for summary judgment.

For the foregoing reasons, we reverse the trial court’s order denying MacGill’s motion for summary judgment and granting Reid’s cross motion for summary judgment.

Shannon Frye v. State of Indiana - appeal of conviction, affirmed.

Izaak Walton League of America, Inc. & Cedar Creek Wildlife Project, Inc. v. DeKalb County Surveyor's Office & Indiana Department of Natural Resources, is a 23-page opinion (with a dissent starting on p. 21), involving AOPA provisions IC 4-21.5-5-13 and IC 4-21.5-3-33. Judge Barnes concludes:

We conclude the trial court here had both subject matter jurisdiction and jurisdiction over the particular case. The record filed by Walton and Cedar Creek was adequate for the trial court to review the claim made in their petition for judicial review. We reverse the dismissal of the petition and remand for further proceedings consistent with this opinion.

FRIEDLANDER, J., concurs.
MATHIAS, J., dissents with separate opinion. [that begins]

As I cannot conclude that Walton and Cedar Creek presented “an adequate agency record” for purposes of judicial review under AOPA, I respectfully dissent.

The majority has determined that Walton and Cedar Creek filed the “essential” items for judicial review of the DNR’s decision. This determination is unnecessary—the General Assembly has already defined which items are essential for that review in Indiana Code section 4-21.5-3-33.

In In the Matter of Z.H., a 12-page opinion, Judge Baker writes:
Appellant-respondent Z.H. appeals from the juvenile court’s order requiring him to register as a sex offender. Specifically, Z.H. raises the dispositive argument that the State did not establish by clear and convincing evidence that he is likely to repeat an act that would be a sex offense if committed by an adult. Finding that the State did not meet its burden, we reverse the judgment of the juvenile court. * * *

Thus, we conclude that the juvenile court erred in concluding that there is clear and convincing evidence that Z.H. is likely to repeat an act that would be a sex offense if committed by an adult. The judgment of the juvenile court is reversed.

In Todd Green v. Hancock County Board of Zoning Appeals and Joyce Holmes, a 10-page opinion relating to zoning, Judge Riley writes:
Appellants contend that the trial court erred in affirming the BZA’s decision to grant a special exception to Holmes for the construction of a banquet hall-wedding reception facility in an agriculturally zoned district. Specifically, they assert that by interpreting the special exception of commercial recreational use as including a banquet hall-wedding reception facility, the BZA acted as a quasi-legislative entity. Furthermore, they argue that, even if the BZA is allowed to interpret its own zoning ordinance, its interpretation in the instant case is unreasonably broad. * * *

While an argument can be made that the BZA acted in a quasi-legislative fashion because it interpreted a law, and its interpretation could be used generally and prospectively; the better view of the BZA’s decision is that the BZA interpreted the zoning ordinance to resolve an existing controversy – Holmes’ application for a special exception – and its interpretation had the effect of determining the legal rights of specific persons. * * *

[W]e conclude that the BZA did not abuse its discretion by including a banquet hall-wedding reception facility within the definition of commercial recreational use. * * *

In light of the foregoing, we find that the trial court properly concluded that the BZA correctly interpreted its zoning ordinance by determining that Holmes’ proposed banquet hall-wedding reception facility fell within a special exception, as provided for in the zoning ordinance.

Posted by Marcia Oddi on Tuesday, July 18, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Bystanders can sue police over chases

The South Bend Tribune has an editorial today on the Supreme Court decisions Jue 14th in City of Indianapolis and Indianapolis Police Department v. Richard Garman, and Jeffrey Patrick, City of Gary & City of Gary Police Department v. Richard Miresso. For background, see this June 15th ILB entry.

Posted by Marcia Oddi on Tuesday, July 18, 2006
Posted to Ind. Sup.Ct. Decisions

Law - More on: New Jersey case on waiver of liability at skateboard park

This Feb. 1, 2006 ILB entry reported on an argument before the NJ Supreme Court on whether parents can waive their children's rights to sue.

Yesterday, the New Jersey Supreme Court ruled 5-2 that commercial recreational facilities cannot use those forms to escape liability for their own carelessness.
That is a quote from this story in today's Newark New Jersey Star-Ledger. More from the story:
The case centered on a form that Anastasia Hojnowski signed on Dec. 26, 2002, so her son, Andrew, could skateboard at Vans Skate Park in Moorestown. A week later, the 12-year-old broke his thighbone while skateboarding and had to undergo surgery three times.

His parents blamed the skate park for failing to supervise "aggressive skateboarders," a claim that the park denies. But the lawsuit filed on Andrew's behalf ran into a roadblock, namely the form his mother had signed. It contained a provision allowing him to sue only if the skate park "intentionally failed" to correct a hazardous condition or unsafe equipment.

Writing for the majority, Justice James Zazzali said that if the court upheld such waivers, "we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety."

Zazzali said other state courts have upheld such waivers only when they involve nonprofit or volunteer organizations, not money-making operations. He added that New Jersey lawmakers have provided protection against lawsuits for volunteer coaches and charitable organizations, but not businesses.

"The operator of a commercial recreational enterprise can inspect the premises for unsafe conditions, train his or her employees with regard to the facility's proper operation, and regulate the types of activities permitted to occur," as well as buy insurance, Zazzali said. "Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks."

Justices Jaynee LaVecchia and Roberto Rivera-Soto dissented, saying such a waiver would be enforceable against an adult and should be enforced against the youngster.

Here is a link to the opinion, Andrew Hojnowski, a minor v. Vans Skate Park. (Thanks to How Appealing.)

Posted by Marcia Oddi on Tuesday, July 18, 2006
Posted to General Law Related

Ind. Law - More on: Mo-peds, Scooters and Golf Carts

Central Indiana's WLBC is reporting:

The Frankton Town Council is considering an ordinance that would require residents to register small vehicles like golf carts, electric vehicles or any other motorized vehicles other than dirt bikes or quads. The plan is similar to one adopted in Lapel three years ago.

Posted by Marcia Oddi on Tuesday, July 18, 2006
Posted to Indiana Law

Ind. Courts - Former Delaware County judge Mario Pieroni dies

Central Indiana's WLBC is reporting:

A former Delaware County judge has passed away. Mario Pieroni died in Houston, Texas last Thursday at the age of 92. Pieroni overcame blindness to become an attorney and then earn election as Superior Court judge in the 1970's.

Posted by Marcia Oddi on Tuesday, July 18, 2006
Posted to Indiana Courts

Monday, July 17, 2006

Ind. Courts - Governor appoints Greene Circuit Court interim Judge [Updated]

From a press release from the Governor's office:

Governor Mitch Daniels today announced the appointment of Bloomfield native Erik “Chip”Allen as Greene Circuit Court Judge. He succeeds Judge David Johnson, who resigned on June 30 to accept an appointment as vice chairman of the Indiana Alcohol & Tobacco Commission.

Allen currently serves as chief deputy prosecutor of Clay County and has previously served as child support deputy prosecutor. He has also worked in private practice and was a partner in the general practice law firm Rowe & Allen, LLC in Linton.

[Update 7/18/06] Today the Greene County Daily World reports:
Erik "Chip" Allen has been appointed the interim Greene Circuit Judge by Indiana Governor Mitch Daniels, effective July 31.

The announcement came in a telephone call from the governor's office to Allen on Monday afternoon.

Late last month, he was the Greene County Republican Party's pick to be the party's nominee in the November general election.

The 33-year-old Allen, who lives in Bloomfield, said he will be sworn in on July 31 - his first official day on the job.

He succeeds former Circuit Judge David K. Johnson, who resigned effective June 30 to accept an appointment from Gov. Daniels to serve on the Indiana State Alcohol and Tobacco Commission. Johnson began his term as judge nearly 30 years ago at the age of 29.

Since July 1, the Indiana Supreme Court has appointed Judith Hayes Dwyer of Washington to serve as judge pro tempore for the Greene Circuit Court, Gov. Daniels made his appointment.

In this June 30th ILB entry, reporting on Allen's selection "as the Republican Party's nominee in the race for Circuit Court Judge on the Nov. 7 General Election ballot," the ILB commented:
Hmm, maybe the Governor will appoint an interim judge now that there is a Republican nominee for the fall elelction ...

Posted by Marcia Oddi on Monday, July 17, 2006
Posted to Indiana Courts

Ind. Courts - Six Indiana appellate judges up for retention in November

All six of the Indiana appellate court judges (five judges and one justice) whose terms expire on December 31st of this year have filed a request to have the question of their retention in that office placed on the November 2006 general election ballot. The filing deadline was July 15th (which fell on a Saturday, so it was actually today).

Here, from the Secretary of State, is a copy of the November 7, 2006 Judicial Retention Questions.

Last October I published in Res Gestae a column titled "Voting to Retain or Reject Indiana Appellate Judges and Justices." You may access a copy online here.

In the article I set forth the position that voters need information about judges' records in order to make informed decisions and to make the retention vote meaningful. The article concluded:

It is up to the state and local bar associations, the media, and the League of Women Voters and similar civic groups, to start now to assure that the citizenry will have the information they need to make their votes on retention meaningful.
The Indiana State Bar Association is again this year polling ISBA members concerning the performance of state appellate court judges standing for retention this fall. The confidential yes-no poll will be released to the general public. The ILB will post the results.

What else might be done? The ILB is considering pulling case statistics from the Courts' reports for the various judges and making them more accessible. The ILB is also considering compiling a list of recent opinions for each judge or justice and making that information available under their name, as well as links to online oral arguments in which they participated.

I'd appreciate some input on all of this. In the event that I might want to quote from what you write, please let me know if you would prefer not to be identified.

Posted by Marcia Oddi on Monday, July 17, 2006
Posted to Indiana Courts

Ind. Decisions - "Man prepares for new murder trial"

The Fort Wayne News Sentinel has an AP story headlined "Man prepares for new murder trial." It begins:

Michael "Wolf" Collins, 49, was convicted in February 2004 in the 2003 shooting death of 33-year-old Michele Jaynes of Marion.

But Collins' conviction was overturned by the Indiana Court of Appeals because the case's original judge should not have allowed jurors to view a videotaped statement by a witness who refused to testify on the stand. The state Supreme Court declined to hear a further appeal, and sent the case back to Grant County.

The new jury will be selected in adjacent Blackford County and bused to Grant County for the trial after Grant Circuit Judge Thomas Hunt ruled that local publicity surrounding the case would be prejudicial.

Here is the 2-1 May 4, 2005 Court of Appeals opinion.

Posted by Marcia Oddi on Monday, July 17, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Goldman Sachs's Conflicts of Interest Convulse Chicago, Indiana

Well, this is very interesting. Bloomberg News has this story today, headlined "Goldman Sachs's Conflicts of Interest Convulse Chicago, Indiana." Some quotes:

July 17 (Bloomberg) -- If you want to know about conflicts of interest at Goldman Sachs Group Inc., just ask Chicago's city government.

Goldman, the world's most profitable securities firm, was a frontrunner to advise Chicago on the potential sale of Midway Airport after helping the city lease a toll highway last year. That was until April, when Dana Levenson, Chicago's chief financial officer, read about Goldman's plan to buy an airport company in Europe that might eventually bid for Midway. Within a day, he called Goldman to complain and in May told the New York- based firm that it wouldn't get the assignment.

"It's an obligation we have to taxpayers,'' said Levenson, who denied Goldman a formal interview at his office and hired Credit Suisse Group. ``If we think anything could hinder us from maximizing proceeds, we have to fix the situation. And that may involve making sure our advisers don't have conflicts."

A growing number of U.S. public officials are asking how an adviser charged with selling assets at the highest price can play the role of investor at the same time, seeking to buy them for as little as possible. Like Levenson, 49, administrators in Indiana, Oregon and Texas are getting wise to Wall Street's efforts and forcing firms to choose between fees and investment returns. * * *

At least 13 U.S. states may hire private companies to help build and operate $34.5 billion in toll roads spanning 2,700 miles (4,344 kilometers), according to the Federal Highway Administration. That means about $175 million in fees are up for grabs, based on rates charged on the handful of completed road sales and leases.

There are probably more to come. Local and state governments oversee about $1.7 trillion of roadways nationwide, and billions more in other infrastructure, from subways to sewers, the U.S. Bureau of Economic Analysis estimates. Less than 4 percent of the 5,244 miles of U.S. toll roads are now privately run, a figure that may jump to 32 percent based on the number of deals being considered. * * *

Goldman, the No. 1 arranger on mergers and acquisitions this year, courted conflicts twice with its unsolicited bid for BAA Plc, the offer that riled Levenson in April. Bankers at the firm made their approach to BAA, owner of London's Heathrow airport, less than two months after offering to help it fend off a hostile takeover from Spain's Grupo Ferrovial SA.

The situation prompted Goldman's chief executive officer at the time, newly appointed U.S. Treasury Secretary Henry Paulson, to warn senior managers he was concerned about the ``perception'' of the firm's actions. Paulson, 60, was succeeded last month by Lloyd Blankfein, 51, who had been Goldman's president. * * *

Sales of public assets were contentious even without the question of conflicts. From the beginning, community activists and government officials wary of ceding control over public works have threatened to derail privatizations.

The administrations that pursue sales, such as Chicago, do so largely because higher taxes are the only other way to plug deficits, fund pension obligations and combat rising fuel costs.

"You need to fund all of these fundamental programs, and raising taxes is not very palatable," said Sujit CanagaRetna, a senior fiscal analyst in Atlanta for the Council of State Governments, a research association for legislators.

Indiana budget director Charles Schalliol is another official who's mindful of the dual roles investment banks can play. Schalliol, a former executive director of corporate finance at drugmaker Eli Lilly & Co., helped pick Goldman last year to advise Indiana on the lease of a 157-mile toll road, turning down pitches from finalists Citigroup, JPMorgan and New York-based Bear Stearns Cos., the No. 5 U.S. securities firm.

The state, which received $3.8 billion for the 75-year lease when it closed June 29, paid Goldman $20 million in fees.

Schalliol, 58, said he later found out Goldman had started raising its fund to invest in toll highways and similar projects after winning the assignment from Indiana. Perturbed, he raised concerns with the firm's top infrastructure banker, 48-year-old Mark Florian.

"I told Mark Florian, after the transaction was done, it would have been a significant area of conversation," Schalliol said. "I would not go so far as to say it's unacceptable to have a fund. I would say it creates some serious questions for the engagement."

The above are just a few excerpts from the long story.

Posted by Marcia Oddi on Monday, July 17, 2006
Posted to Indiana Government

Ind. Courts - Court Appointed Special Advocates program featured

Jerry Davich of the Munster (NW Indiana) Times has a story today on the CASA program. Some quotes:

PORTAGE I They are privy to the hushed secrets of abused, neglected and at-risk children.

They have access to confidential records, documents and court hearings. They even have the power to recommend children be taken away from their parents for good.

Yet most don't get paid a dime, not even for mileage to distant communities, and they typically work behind the scenes in the child welfare field.

They're called CASAs, or Court Appointed Special Advocates, and most are volunteers appointed by juvenile court judges to speak up for child victims.

"We're the eyes and ears of juvenile court judges," said Luci Hand, volunteer coordinator of the Porter County CASA program.

The program, funded through a mix of local, state and federal money, operates through the Family And Youth Service Bureau in Portage.

Here, about 65 CASAs handled more than 400 children's cases last year, from infants to 18 years old, often taking them for walks or haircuts or lunch to discuss touchy family issues or tucked-away feelings. * * *

Of Indiana's 92 counties, 65 have volunteer programs like Porter and Lake, and 44 are nationally certified, including Porter and Lake. Counties without volunteer programs appoint paid attorneys or guardians ad litem to represent children, though often on a limited basis, CASA data show.

Porter County's program provides a CASA for each CHINs case -- or Children in Need of Services. Most counties do not, leaving at least 4,000 Hoosier children on waiting lists last year, Hand said.

Posted by Marcia Oddi on Monday, July 17, 2006
Posted to Indiana Courts

Ind. Gov't. - State Ethics Commission to review aspect of state hospital privatization

The Richmond Palladium-Item has a report today by Bill Engle headlined "Ethics panel will rule on hospital plan." Here are some quotes:

The Indiana State Ethics Commission should rule next month on whether Richmond State Hospital Superintendent Jeff Butler is operating within state ethics laws in leading an organization hoping to run the state hospital.

The ethics commission met Thursday and discussed two questions regarding a proposal from Behavioral Healthcare Services, Inc., a local non-profit that Butler is a member of that has made a proposal to run the state hospital.

But the ethics commission tabled further discussion and is expected to rule on two questions when it meets Aug. 15.

The questions are:

Do state ethics laws prevent Butler from accepting employment with a non-profit if that group's proposal to the Indiana Family and Social Service Agency is accepted and he is no longer a state employee? And

Do state ethics laws prevent Butler from assisting the non-profit in negotiating with the FSSA?

Officials at FSSA brought the questions to the ethics commission as a precaution in the ongoing discussions regarding Behavioral Healthcare Services' proposal to run the state hospital. Behavioral Healthcare's proposal was the only one received.

Butler testified before the commission, as did FSSA attorney John Davis.

"I think Jeff was very persuasive," Davis said. "The ethics issue is bigger than Jeff Butler. It is really about the whole project and all the employees at the state hospital."

Davis said commission members had a number of questions about the plan.

"It's regrettable that a decision didn't come because a lot of people are waiting on this," Davis said.

The FSSA earlier this year called for proposals for local non-profit agencies to run the state hospital.

Here are some earlier ILB entries on proposed privatization of Richmond and Evansville state hospitals.

Posted by Marcia Oddi on Monday, July 17, 2006
Posted to Indiana Government

Sunday, July 16, 2006

More on: Blogs in the news

Michael Stevens of the Kentucky Law Blog posted a very nice entry this morning about the Louisville Courier Journal story mentioning the ILB. Access Michael's entry here.

Posted by Marcia Oddi on Sunday, July 16, 2006
Posted to About the Indiana Law Blog

Ind. Law - More on fireworks law

"Will state’s new fireworks law fizzle?" is the headline to a long story by Steve Walsh in the Gary Post-Tribune, including the voting records on what legislators voted for and against the new "all fireworks, all the time" law. (Read it today because the Post-Trib unfortunately doesn't archive its stories.) A few quotes:

Rep. Charlie Brown, D-Gary, a long-time critic of legalized fireworks, said he will sponsor an outright ban in the next session. He has received calls and letters from voters kept up by a barrage of neighborhood displays.

“This was the worst year, yet. It shows the stranglehold the fireworks industry has over the General Assembly,” Brown said. * * *

Shellshocked residents, who may not have followed the bill as it snaked through the General Assembly, are questioning why the state opted to lift the loose restrictions rather than clamp down.

“Thanks to the new rules, it was bombs away, beginning as early as 9 a.m. and going until midnight. We seem to be living among pyromaniacs,” said Mark Ashmann of Griffith, who was one of 10 readers who challenged legalization in letters published Thursday in the Post-Tribune.

Jim and Gail Burnette, who live near Hebron, said Independence Day revelry got a little absurd this year, in the wake of legalization.

“Way more of those really big fireworks, the kind where you’re not sure if it’s a shotgun or a bomb or what,” Gail Burnette said. “You can say people are going to light them off one way or another, but it was never like this before.”

“We would prefer there to be some controls in place,” Jim Burnette said. “We would welcome that.” * * *

During the session, lawmakers did have the chance to add firepower to the bill.

Senators voted down provisions that would have given communities the option of banning fireworks or further limiting hours.

They also turned down an amendment that would have made shooters liable for any damage caused by wayward bottle rockets and Roman candles.

Burns Harbor police chief Jerry Price: “My only question is, what were they thinking?”

The Munster (NW Indiana) Times also has a story today.

Posted by Marcia Oddi on Sunday, July 16, 2006
Posted to Indiana Law

Ind. Courts - Former attorney punished by court

The Muncie Star-Press reports:

A former Muncie attorney has been found in contempt of court by the Indiana Supreme Court for doing legal work after surrendering his license to practice law.

Bruce W. McLaren last week was fined $1,000 and given a 15-day jail term that was suspended on the condition his fine is paid by Aug. 21.

McLaren, who had been a longtime Delaware County court commissioner, gave up his law license after his 2003 indictment by a federal grand jury on charges he had participated in a scheme to conduct fraudulent real estate transactions.

The ex-attorney was sentenced in April 2004 to five months of incarceration and five months of home detention after entering a guilty plea in U.S. District Court.

According to last week's Supreme Court ruling -- a copy of which was mailed to The Star Press -- McLaren "maintained a presence in the law office of Michael Alexander," his defense attorney in the federal court case, in 2005, and helped Alexander "prepare a dissolution-of-marriage case for trial."

The court said that Alexander's $12,740 bill for legal services in that case specified that $5,540 was for work performed by McLaren.

"Such a blatant violation" of rules governing the practice of law in Indiana "will not be tolerated and a significant sanction is warranted," the Supreme Court wrote in its ruling.

The court noted a rule specifying that attorneys who have lost their law licenses shall "not maintain a presence or occupy an office where the practice of law is conducted."

The court rejected a suggestion by McLaren that the rule didn't apply to him since he had resigned from the Indiana Bar before being suspended or disbarred.

Here is a link to an April 30, 2004 ILB entry, including an earlier quote from the Muncie paper that "Moments after Federal Judge Sarah Evans Barker sentenced a former Delaware County court official to a 5-month prison term, she nearly cried and told the people standing in her courtroom how she never wanted to hear the case."

Posted by Marcia Oddi on Sunday, July 16, 2006
Posted to Indiana Courts

Ind. Courts - Gravel mining company sues Carmel in federal court

Bruce C. Smith of the Indianapolis Star reports today:

Martin Marietta Materials has filed a federal lawsuit accusing Carmel Mayor James Brainard of playing politics to stop the company from expanding its sand and gravel mine in the city and asking a judge to make him stop.

The company also is asking for appointment of a new and independent Board of Zoning Appeals to give its mine permit a fresh and impartial review.

Martin Marietta is asking for a federal injunction against the mayor, prohibiting him from participating, directing or influencing future BZA review of company permit applications. An injunction is sought to force the current BZA members to withdraw from Martin Marietta's case.

The company also is asking for payment for land given to the city several years ago for construction of a section of Hazel Dell Parkway and for development of a park.

And, Martin Marietta accuses the city BZA of conducting closed-door executive sessions in violation of the state open door law to debate a key amendment to a planning and zoning rule.

Federal Judge David F. Hamilton signed an order giving the city until next week to respond with all related paperwork, video recordings and other records, or ask for more time.

At stake are millions of dollars and millions of tons of stone that could be extracted from the landmark mine, which lies mostly between 96th and 106th streets, versus the complaints and fears of neighbors.

Brainard denied any impropriety by the city, which is fighting other Martin Marietta suits. The mayor, who has spoken against the company in public hearings as recently as Feb. 27, insisted he won't be stifled by the suit.
* * *

The suit filed recently in U.S. District Court for Southern Indiana in Indianapolis is similar in some sections to an appeal of a BZA rejection that Martin Marietta has pending in Hamilton Superior Court. But taking the long-running feud between the company, the city and its neighboring housing subdivisions to a federal judge raises the stakes.

In the suit in county court, filed by the mining company against the city and its BZA, Martin Marietta claims the zoning board's 4-0 vote April 26 to deny an expansion of the mine was illegal and should be overturned.

"The federal suit is an appeal from the same BZA decision. But it also involves a series of other issues relating to the way the city has treated Martin Marietta," said attorney Wayne Pheares, based in Atlanta. "So much has piled up over four years, and we held off and held off. We just want to get this all settled."

Indianapolis attorney Zeff Weiss, also representing the company, explained "in the suits, we believe the mayor inappropriately interfered with the BZA process by mandating to the BZA members how to vote without regard to the merit of the petition."

Here are two ILB entries (1 and 2) on a Court of Appeals opinion involving the same parties, dated July 5th.

Posted by Marcia Oddi on Sunday, July 16, 2006
Posted to Ind Fed D.Ct. Decisions | Ind. App.Ct. Decisions | Indiana Courts

Ind. Gov't. - "‘Buy Indiana’ gives outsiders in-state perks"

Niki Kelly of the Fort Wayne Journal Gazette has a long investigative piece today on "Buy Indiana." It begins:

INDIANAPOLIS – At first blush, it might seem that Gov. Mitch Daniels’ new administration is doing a great job steering Indiana’s public purchasing dollars to companies in the state.

A recent “Buy Indiana” report tracking state expenditures on goods and services from July 1, 2005, to June 19, 2006, shows that 81 percent of the dollars are going to Indiana entities.

That is if you consider the University of Cincinnati and the University of Utah to be from Indiana.

The state’s report does – qualifying them as Indiana companies under the “principal place of business” designation.

Or at least it did until a recent analysis by The Journal Gazette identified the errors.

A side-bar lists "the top 15 entities receiving Indiana public purchasing dollars from July 1, 2005, to June 18, 2006."

Posted by Marcia Oddi on Sunday, July 16, 2006
Posted to Indiana Government

Ind. Courts - "Audit finds disorder in Payne court"

The Indianapolis Star's Richard D. Walton and Tim Evans have a story today on the draft results of an audit of the Marion County Juvenile Court and Detention Center under former Judge James W. Payne conducted by the State Board of Accounts. From the story:

Shoddy record-keeping, the issuing of blank checks for purchases and the apparent misuse of $2,317 for a party are among the findings of an audit of the Marion County Juvenile Court and Detention Center under former Judge James W. Payne.

The draft report, obtained by The Indianapolis Star, found controls and documentation so lacking at the troubled center that auditors said it was impossible to verify many expenditures.

The report also raised questions about the use of county-owned vehicles by court officials, but included few specifics.

The audit was requested by the Marion Superior Court executive committee after then-Court Administrator Mark Renner found irregularities following Payne's departure last year to head the state's Department of Child Services.

"There was a sense of surprise and, in some quarters, outrage that those controls, those protocols, did not exist," said Renner, who has since left county government. * * *

Superior Court Judge Jane Magnus-Stinson -- who along with judges Cale Bradford and Robyn Moberly sits on the executive committee -- was in her first week on the panel when she learned of what she calls the financial "mess."

"In my history in government, which extends 15 or 16 years, our traditional going away is a pitch-in and a cake," she said. "I don't believe the State Board of Accounts authorizes you to use the public's money to throw a party."

The report also said that a failure to produce vehicle logs left auditors unable to determine if the use of county-owned vehicles complied with county and IRS guidelines. Logs are required under state accounting guidelines.

"There was always that sense of concern: Is this being handled correctly?" Renner said. "But other than trusting (Payne), we didn't have any real oversight or any real way to ensure that proper procedures, protocols and ordinances were being followed."

The lack of significant oversight of juvenile services can be partly explained by tradition.

Historically, Marion County courts operated separately. Even after they were unified in 1996, some judges resisted scrutiny.

"You had always had a group of independently elected, very independent-minded judges running their own individual courts," Renner said. "Now they were being told you now no longer have that authority. It took a number of years. . . for judges to relinquish" their turf.

By most accounts, Payne never did. Superior Court Judge Barbara Collins recalled an encounter with the judge while trying to collect financial data for a court-sponsored project to examine the county's juvenile justice system.

Payne, she said, was not interested in helping with the project. While he eventually provided some records, they were not the ones Collins and consultants had requested.

"He didn't refuse," she said. "He just didn't do it." * * *

Collins said judges today, like all other public officials, must be accountable. "You can't just do things you want to because you are the boss," she said.

But Payne was for years the face of juvenile justice in Indiana. Renner said Payne's seniority and standing within the Republican Party made some reluctant to press him to yield part of his control.

The Star today also publishes a "My View" column by Payne, now director of the Indiana Department of Child Services, appointed by Governor Daniels when he took office in 2005. It begins:
The recent information about the Marion County Juvenile Court, while distressing, has clouded what I believe have been, over the past years, the many accomplishments of the men and women who have devoted their adult lives and in many cases whole careers to serving children in our community who come into the juvenile system. I would like to point out some of those accomplishments.
Finally in the Star today, this editorial, headed "Mismanaging juvenile justice," calling for more oversight.

Posted by Marcia Oddi on Sunday, July 16, 2006
Posted to Indiana Courts

Ind. Gov't. - Blogs in the news

Lesley Stedman Weidenbener of the Louisville Courier Journal devotes her Sunday column to "A few blogs for political junkies to check out." The Indiana Law Blog is mentioned, described (accurately) as "the least political blog" on the list, and as "a great roundup of government issues statewide."

For those of you new to blogs, I recommend my entry, "How to Read a Blog." The first time I looked at a web log ("blog") I was totally confused. Even after some Access it here. It begins:

The first time I looked at a web log ("blog") I was totally confused. Even after some time of reading blogs, I did not know all the ins and outs. I still may not know all the tricks, but I hope the following will be of help to many of you.

Posted by Marcia Oddi on Sunday, July 16, 2006
Posted to About the Indiana Law Blog | Indiana Government

Saturday, July 15, 2006

Ind. Courts - "Mediation ordered in Clark fee dispute: Council, judges still wrangling"

The long running dispute between the Clark County Council and the county's four elected judges continues.

Alex Davis of the Louisville Courier Journal reports today:

A financial dispute between the Clark County Council and the county's four elected judges will grind on for at least another six weeks after the Indiana Supreme Court ordered the matter to mediation.

The two sides have been arguing for nearly two years over who controls hundreds of thousands of dollars in fees collected through court-supervised probation programs.

The judges eventually sued the council over the matter, and a trial court judge ruled in their favor.

Last month the suit moved to the Indiana Supreme Court. But on Wednesday Chief Justice Randall T. Shepard signed an order saying the matter should be decided locally.

The order sets a 15-day deadline for a mediator to be named. It requires a mediation report by Aug. 28. If the case is still unresolved, it would go back to the high court.

No mediator had been selected as of yesterday. But Karl Mulvaney, an Indianapolis attorney representing the judges, said he has started looking at possible candidates.

He said the county will pay the cost of the mediator, which can run up to $350 an hour.

County Councilwoman Barbara Hollis said yesterday that she was disappointed by the high court's decision. She said the issue will now take more time to resolve, adding to a legal bill already estimated at more than $100,000.

"Here we are right back where we started," she said in an interview. "It's frustrating because nothing is defined for the future."

Hollis declined to comment on the chances for a successful mediation. But she said she continues to believe that the council has the sole authority to spend the probation fees. The council has appropriated about $1.9 million from those fees for the county's budgets over the last two years.

For their part, the judges claim that they should control how the money is spent.

Clark Circuit Court Judge Daniel Donahue said yesterday that he thought it would be difficult for a mediator to put together an agreement.

"From my point of view, the statute is absolutely clear," Donahue said in an interview. "There is no reason (for the judges) to give (in)." * * *

The Supreme Court's order says a ruling on the legal questions raised in the suit might help Clark County's leaders. But at the same time it could hinder other Indiana counties from reaching agreements on how to use the probation fees.

Jim Smith, president of the Clark County Council, said yesterday that the court's action was a positive development because it didn't side with the trial court decision in the judges' favor. But he also said the mediation process would put "tremendous weight" on the county's 2007 budget talks this fall.

Clark Superior Court Judge Steve Fleece said in a written statement that the fee case had become a "gruesome and costly stalemate," which he compared to trench warfare.

He said the mediation will not have any value as a legal precedent, either locally or in other Indiana counties.

"Both sides wanted clear guidance and finality," he said in the statement. "Neither side has obtained its objective."

This dispute has been going on since early last year. The ILB has had at least 8 entires on this dispute. My understanding is that although this was a declaratory judgment action, it could just as well have been a mandate action and appears to have been treated as such -- appointment of a special judge, appeal directly to the Supreme Court. The Fort Wayne News-Sentinel had an editorial June 11th on why it is important (see ILB entry here); here are quotes from the editorial:
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.

But as Judge Fleece is quoted in the LCJ story above:
He said the mediation will not have any value as a legal precedent, either locally or in other Indiana counties.

"Both sides wanted clear guidance and finality," he said in the statement. "Neither side has obtained its objective."

According to the docket for the case, 10 S 00 - 0606 - CV - 00199, CLARK COUNTY COUNCIL, ET AL -V- DONAHUE, DANIEL F., ET AL, appellants made a motion for oral argument on 6/30/06. On 7/12/06, the Supreme Court issued the following order:








[More] Here is another version of the story, via the AP.

Posted by Marcia Oddi on Saturday, July 15, 2006
Posted to Ind. Sup.Ct. Decisions

Friday, July 14, 2006

Law - FTC Targets Home-Listing Limits

The Wall Street Journal has another story today by James R. Hagerty on the real estate industry, this one headlined "FTC Targets Home-Listing Limits." (It is not freely available online at this point.) A few quotes:

As part of a broader push by antitrust regulators to promote competition among real-estate brokers, the Federal Trade Commission is cracking down on rules that prevent data about some homes for sale from appearing on Realtor.com and other popular Web sites. * * *

Realtor officials in Cleveland, Columbus and Indianapolis said they would review their policies in light of the FTC's move. The Greater Tulsa Association of Realtors in Oklahoma dropped a rule similar to the one in Austin last year after Justice Department officials raised questions.

Posted by Marcia Oddi on Friday, July 14, 2006
Posted to General Law Related

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending July 14, 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 July 14, 2006.

Posted by Marcia Oddi on Friday, July 14, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending July 14, 2006

Here is the Indiana Supreme Court's transfer list for the week ending July 14, 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, July 14, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - Inside details on Hammon v. Indiana argument before the U.S. Supreme Court

Under the heading "U.S Supreme Court decides Indiana 'confrontation clause' case today", this June 19th ILB entry began:

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.
Today the Peru Tribune has a story titled "Judge, attorney and prosecutor recount Hammon case on Rochester radio station." that begins:
Three local criminal justice officials gave a recounting of the facts of a case local attorney Robert Spahr argued that made it all the way to the Supreme Court during the "Friday Legal Program" on WROI-FM, Rochester, Friday morning.

Spahr, Miami Circuit Judge Rosemary Higgins Burke and Deputy Prosecutor Brent Davis talked about the attention the case drew and the rulings' significance to courts across the United States.

The court overturned the decisions of the Miami Circuit Court, the Indiana Court of Appeals and the Indiana Supreme Court, saying that testimony Peru Police Officer Jason Mooney gave in court of what the victim told him after a domestic dispute was inadmissible.

The case was paired with a similar case from Washington state to give the justices a parameter to look at when making their decision, Spahr explained, but the Washington decision was upheld.

"The Washington case was the result of a 911 call," Davis said. "The court found in that particular instance that the person was able to call, was not in the presence of police, was alone, and was not under the influence of police officers at the time."

Spahr attended the Supreme Court hearing in March and walked away impressed.

"It is a remarkable experience to watch four attorneys pretty much get reamed out with difficult questions from the individual justices," Spahr said. " ... It was amazing. They are extraordinarily punctual - when you're done, your done, and they're not kidding. You do not move in your chair as a spectators, you will not cause any disruptions, you will not even stand up - you cannot do anything while the arguments are in progress." * * *

Higgins Burke said that she is waiting to hear from officials on what to do with the case. She said either judgment has to be set aside or the state has to move forward with seeking forfeiture of the defendant's right to confront, if they find wrongdoing in him keeping the victim away from the courtroom that day.

Posted by Marcia Oddi on Friday, July 14, 2006
Posted to Ind. Sup.Ct. Decisions

Law - More on: Flood insurance issues now on trial

"Katrina Victims Say Agents Advised Against Flood Coverage" is the headline to this story today in the NY Times, updating this ILB entry from July 11th. Some quotes from the Times story:

GULFPORT, Miss., July 13 — Six weeks before Hurricane Katrina tore up the Gulf Coast of Mississippi last August, Dr. Munson Hinman went to see his insurance agent to buy flood coverage for his home near the beach.

He had a blank check in his pocket, but, Dr. Hinman testified in Federal District Court here on Tuesday, the agent talked him out of buying the coverage.

“He didn’t tell me directly not to get it,’’ Dr. Hinman recalled. “But in a roundabout way he said it wasn’t necessary. He was emphatic about that it wasn’t necessary.’’

Dr. Hinman, a chiropractor, was testifying in a lawsuit against Nationwide Insurance that could force the Ohio company and other insurers to pay out billions of dollars for claims of flood damage from Hurricane Katrina and other storms that they have previously denied. Mr. Hinman’s home was heavily damaged in the hurricane.

The insurers have said their policies specifically rule out coverage for floods.

But Richard F. Scruggs, a Pascagoula lawyer who rose to prominence as he helped win a $250 billion settlement from the tobacco industry a few years ago, argues that in selling home insurance with many references to windstorms and hurricanes, Nationwide and other insurers led customers to believe that any hurricane damage — whether from wind or water — would be covered.

That perception was reinforced, Mr. Scruggs said in an interview, by agents who suggested to customers like Dr. Hinman that they did not need to buy the separate coverage for flood damage that is provided by the federal government and sold through agents.

Posted by Marcia Oddi on Friday, July 14, 2006
Posted to General Law Related

Ind. Law - More on: "Indiana's fireworks law is a blasted nuisance"

This from Thursday's Chesterton Tribune, reported by Kevin Nevers:

It may now be legal for Hoosiers to discharge fireworks, but that doesn’t mean that their neighbors have to like it. And apparently a lot of them don’t.

As Chesterton Police Chief George Nelson told the Police Commission at its meeting Wednesday, the CPD has been receiving numerous complaints from residents about fireworks in their neighborhoods. Unfortunately, he said, there’s not much his officers can do about it.

Because it’s not only legal now under state statute to detonate fireworks—on your property, between the hours of 9 a.m. and 11 p.m.—but any violations of that statute are supposed to be enforced by the State Fire Marshal’s Office. And there aren’t exactly battalions of State Fire Marshals patrolling the streets of Chesterton, Nelson said. * * *

Member Nick Walters ventured that residents “could get more results calling their state legislators and letting them know how they feel than talking to us.”

Posted by Marcia Oddi on Friday, July 14, 2006
Posted to Indiana Law

Ind. Decisions - One today from the Court of Appeals

Harold Mansfield v. State of Indiana - appeal of post-conviction court’s denial of petition for post-conviction relief, affirmed.

Posted by Marcia Oddi on Friday, July 14, 2006
Posted to Ind. App.Ct. Decisions

Law - Critics of voter IDs get boost

"Georgia judge rules law similar to Ohio's is discriminatory, unconstitutional" is the headline to a story today in the Akron Ohio Beacon Journal. Some quotes:

COLUMBUS - The efforts of Ohio Democrats to prevent a voter identification requirement at the polls has received a boost from a U.S. District Court judge in Georgia who ruled a similar law in that state is discriminatory and illegal.

Plaintiffs in Georgia echoed what Ohio voting advocacy groups have been saying here -- that the ID requirement is meant to discriminate by preventing the poor from voting.

And within a month, Democrats will know if they too have a case, said Jennifer Brunner, Democratic nominee for secretary of state.

Georgia's Wednesday ruling -- issued after a five-hour hearing by U.S. District Judge Harold Murphy -- found that Georgia's voter photo ID requirement is unconstitutional because it violates guarantees of the First and 14th amendments.

Ohio's law is somewhat different because it includes a broader array of identification, such as pay stubs and utility bills.

Both laws were driven by Republicans and opposed by their Democratic counterparts. * * *

Even without a contrary court decision in Ohio, the voter ID issue is likely to head to the Supreme Court, Brunner said. There are 22 other states with voter ID laws and many could have court battles, she said.

Brunner noted that a court in Indiana already ruled in favor of a Republican-driven voter ID law in April. Indiana and Georgia's opposing district court rulings could end up in the nation's highest court, she said.

Here is an ILB entry from April 15, including a link to the 127-page opinion by federal (SD Ind.) Judge Sarah Evans Barker in Indiana Democratic Party v. Rokita. The case is now on appeal in the 7th Circuit. Here is a link to a site (Election Law @ Moritz) with the district court pleadings and some of the appeals documents (at the end of the list). Here is a link to the briefs filed with the 7th Circuit. (At least one of the files is damaged and unreadable -- #5, the Amicus Brief of the League of Women Voters).

Ed Feigenbaum of Indiana Daily Insight provided a link this morning to an upcoming 66-page University of Michigan Law Review article on voter identification cases - access it here.

See a story on Wednesday's Georgia voter ID rulings here, from the Atlanta Journal Constitution.

Posted by Marcia Oddi on Friday, July 14, 2006
Posted to General Law Related

Ind. Law - More on: Jeffersonville's campaign finance law

Updating this ILB entry from July 2, the Louisville Courier Journal reports today, in a story by Alex Davis:

Jeffersonville Mayor Rob Waiz signed a campaign-finance ordinance yesterday that aims to prevent businesses and individuals from making large campaign contributions and then doing a substantial amount of business with the city.

Waiz said in a statement that the ordinance is a "far cry" from being perfect, but that it will be a step toward more accountability for elected officials. * * *

Fetz had two local attorneys review the ordinance, and both said it would pass legal muster. But a July 7 letter from the Legislative Services Agency, which provides legal counsel to state lawmakers, raised several questions.

One concerns a recent U.S. Supreme Court decision that invalidated certain campaign restrictions in Vermont. The letter also questions whether the city's ordinance conflicts with the ability of the county election board to regulate campaigns.

The letter was requested by Rep. Carlene Bottorff, D-Jeffersonville, on behalf of Waiz.

Posted by Marcia Oddi on Friday, July 14, 2006
Posted to Indiana Law

Thursday, July 13, 2006

Ind. Courts - Still more on: ISTA sues over school funding

On April 19, 2006, the ILB had this entry about the Indiana State Teachers Association suing the State over school funding, including a quote from the Gary Post Tribune:

They hired Boston-based attorney Michael Weisman, the man who successfully sued the Massachusetts Commission of Education.

Over the past 13 years, Weisman said, his litigation has helped boost Massachusetts schools with $30 billion in funding.

He’s hoping to be just as successful in Indiana, which has a similar constitutional requirement to educate children.

On April 20th, there was more, including my statement that I would try to obtain a copy of the complaint. Well, I never did obtain a copy, although a story in the Louisville Courier Journal reported that at a press conference, "Weisman distributed copies of the lawsuit, which emphasizes lows ISTEP scores statewide, as well as low SAT scores and graduation rates."

This April 21st ILB entry has fairly extensive reports on the initial stages of the suit.

The Defendant Responds. This evening I have received copies of the State of Indiana's motion to dismiss and memorandum in support of motion to dismiss, filed today, July 13th, in Marion Superior Court. The case name is Bonner v. State.

Posted by Marcia Oddi on Thursday, July 13, 2006
Posted to Indiana Courts

Law - California Supreme Court declines to review lower court ruling upholding ordinance banning big-box stores

From the San Franscisco Chronicle:

The California Supreme Court rejected Wal-Mart's appeal Wednesday of a ruling that allows cities and counties in the state to outlaw big-box superstores.

The April 5 ruling by the Court of Appeal in Fresno [Wal-Mart v. City of Turlock, a 33-page opinion available here] upheld an ordinance enacted in 2004 by Turlock (Stanislaus County) that was backed by neighborhood supermarkets and labor unions. The court, setting a statewide precedent, said local governments can enact such restrictions to prevent the collapse of local businesses and resulting urban blight.

The state's high court denied review Wednesday without comment.

It was Turlock's second legal victory over Wal-Mart this month. On July 3, a federal judge in Fresno dismissed the company's constitutional challenge to the ordinance, saying the city was not interfering with interstate commerce or discriminating illegally against one type of store.

Rick Jarvis, a lawyer for Turlock, said Wednesday's state court action allows a city to "make its own land-use plans and decide for itself what's good for the community." It will also "make it much more difficult for Wal-Mart to file expensive legal challenges against other jurisdictions that decide to adopt similar ordinances," he said. * * *

Turlock has a Wal-Mart store but responded to the company's plans for a supercenter by passing the ordinance in 2004. Without mentioning Wal-Mart, the law prohibits any retail store larger than 100,000 feet that devotes more than 5 percent of its space to nontaxable items such as groceries. The City Council said the purpose was to preserve neighborhood shopping centers.

In its April 5 ruling, the appeals court said the city's motives were legal, even if its action hurt competition.

"While zoning ordinances may not legitimately be used to control economic competition, they may be used to address the urban/suburban decay'' that can result from the entry of a large new business, the court said.

[Thanks to How Appealing for the link.]

Posted by Marcia Oddi on Thursday, July 13, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals issues seven today

Cristian Ponciano v. State of Indiana - criminal recklessness, a Class C felony, appeal - affirmed.

Jeremiah Cox v. State of Indiana - appeal of court's revocation of probation - affirmed.

In Arra Ransom v. State of Indiana, a 23-page opinion by Judge Daren, CJ Kirsch concurs in part and dissents in part beginning on p. 17, and Judge Sullivan concurs in part and dissents in part beginning on p. 19. His dissent begins:

I fully concur with respect to the lead opinion’s holding as to denial of Ransom’s Motion for New Trial based upon an alleged Brady violation. As to the sufficiency of the evidence and double jeopardy issues, I write separately in order to cast the evidence and the procedural history of the case in a posture different from that stated in the lead opinion.
Eric D. Smith v. Maximum Control Facility, et al

Eric D. Smith v. P.B. McKee, et al

Eric D. Smith v. Stephen J. Huckins, et al

Eric D. Smith v. Ralph Carrasco and David Miller

Posted by Marcia Oddi on Thursday, July 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - The Indiana Register and the Indiana Code, online

My Res Gestae column for the July-August issue examines the Indiana General Assembly’s recent move to eliminate the Indiana Register, and assesses the General Assembly’s custodianship of the Indiana statutes. Here are a few sample quotes from the article:

Just two issues short of completing its 29th volume, representing 29 consecutive years of publication, the familiar Indiana Register has been eliminated, in a move that will come as a surprise to most of Indiana’s legal community and others reliant on the Indiana Register for information about Indiana’s administrative rules. * * *

LSA’s actual changes, however, go far beyond what was announced, and far beyond the statutory authorization. The Indiana Register, a serial publication, has been replaced by a webpage containing links, not to the various pages of the Register, but to the individual rulemaking documents submitted by the various state agencies to LSA. * * *

This move by the LSA may be 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. [As of the survey, only two states had no register-type publication, North Dakota and Nebraska -- they have now been joined by Indiana.] * * *

[T]he new LSA webpage, a page that contains only links to other URLs, does not meet the universal definition of a “serial publication.” Why is this important? Because the LSA’s posting of the documents individually online, rather than in “a serial publication with the name Indiana Register,” as required by law, may be deemed noncompliant rulemakings, leading to unenforceable rules. A review of the relevant statutes demonstrates how this result could be reached. * * *

The LSA has announced 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. Given the current state of the LSA's online efforts with the Indiana Code, that news is cause for concern. Here are some of the issues. [Some of the issues addressed include: the significance of headnotes and history lines; errors in the online Indiana Code; the fact that for much of the year the online version is not current; retention issues.] * * *


Here is a pre-publication link to the column, which will appear in the upcoming issue of Res Gestae.

(Note: A lengthy footnote on p. 8 continues onto p. 9 and is easy to overlook.)

Posted by Marcia Oddi on Thursday, July 13, 2006
Posted to Indiana Law

Ind. Law - More on: "Indiana's fireworks law is a blasted nuisance"

Benjamin Lanka of the Fort Wayne Journal Gazette reports today in a story headlined "Governor favors local control of fireworks." Some quotes:

As a new state law has turned almost every summer night into Independence Day, Gov. Mitch Daniels on Wednesday said he would support giving cities and towns more control to regulate fireworks use.

Daniels, in Fort Wayne to speak about the state’s budget, said he would support amending the fireworks law to allow municipalities to ban them if they desired. The current law legalizing fireworks is statewide and does not allow municipalities to ban their use.

The governor said he is a large proponent of home rule – allowing local officials to decide the best laws for themselves. He said he also will push legislation to allow local communities different taxing options to reduce the reliance on property taxes.

The governor’s support of changing the state fireworks law came a day after the Fort Wayne City Council discussed ways it could prompt the legislature to review the legalization of fireworks. * * *

Daniels said the fireworks law – passed this year – was a good one, even as a member of the audience shouted that it wasn’t because it prevented her from walking her dog or sleeping with her windows open.

The Journal Gazette also has an editorial today:
The letters that filled Tuesday’s Opinion page and continue on this page today make it clear: The new law legalizing most fireworks has diminished the quality of life for many local and area residents.

Clearly, the newly legalized home use of exploding firecrackers and rockets has greatly worsened the nighttime noise and litter related to fireworks. Indiana legislators need to reconsider the law they passed earlier this year. * * *

Ideally, Indiana would outright ban the sale and private use of all exploding and projectile fireworks. Period. They are dangerous; they are noisy; they create tons of litter. Hoosiers have plenty of opportunities to see great fireworks displays at dozens of community celebrations throughout the state.

See also this July 11th ILB entry.

Posted by Marcia Oddi on Thursday, July 13, 2006
Posted to Indiana Law

Ind. Courts - Floyd officials seek new court

Ben Zion Hershberg of the Louisville Courier Journal reports today:

Floyd County officials are pushing to create a court that they believe would help delay the need to build a new jail. * * *

Adding a court was discussed at Tuesday's county council meeting on the budget for 2007, said county councilman Larry McAllister, and the council agreed to write a letter of support to the Indiana Commission on Courts.

The commission reviews requests from county governments and judges for new courts and makes recommendations to the General Assembly, which must approve them.

McAllister said he hopes a new magistrate -- a hearing officer appointed by the judges -- might be in place next year to help relieve caseloads on the three judges and magistrate the county has now.

And he said he hopes the state will approve an additional judge who could take office Jan. 1, 2009, possibly replacing the magistrate, or in addition to the magistrate if caseloads demand it.

State government pays most of a magistrate's or judge's salary, with county government providing funds for most other court expenses.

Floyd County Auditor Teresa Plaiss said she doesn't know what the cost of a new court would be in 2009, but the 2007 budget proposed for Floyd County Superior Court is $173,000.

The proposed, 2007 budget for Magistrate Daniel Burke's court is $77,000. She said she doesn't know where the money can be found in the county's tight budget for an additional court.

Indiana Judicial Center statistics for 2005 show that Floyd County's caseload is substantially higher than the state average, with county judges and the magistrate handling the work suggested for more than 1 1/2 judges, on average.

Statewide, according to the judicial center's annual caseload study, judges handle the recommended work of nearly 1 1/4 judges, on average.

"The real importance of it," County Court Judge Glenn Hancock said, "is being able to serve the people who come to court."

With the caseload in his court, Hancock said, he must schedule cases coming to his court now for hearings next year, which can be unfair to everyone involved.

Floyd County Superior Court Judge Susan Orth said she and Floyd County Circuit Court Judge J. Terrence Cody have been studying caseloads and recently asked the Floyd County Board of Commissioners to write a letter of support for creation of an additional magistrate's court.

She said she was pleasantly surprised to learn that the county council has said it also will ask the Commission on the Courts to approve an additional court with an elected judge with full authority, like her Superior Court.

The courts need such help, Orth said, and she hopes a new magistrate's court can be in operation by spring.

Posted by Marcia Oddi on Thursday, July 13, 2006
Posted to Indiana Courts

Wednesday, July 12, 2006

Ind. Courts - Clark County scuttles plan for 2 more judges

An AP story today reports:

JEFFERSONVILLE, Ind. (AP) -- A split vote has scuttled a plan by a Clark County councilman to add two judges to try to reduce the number of cases each court handles.

Three Republican county council members, including its leading supporter Raymond Snelling, voted Tuesday to pursue the idea, but three Democrats voted against it. A fourth Council Democrat was absent.

Snelling had said the courts are overloaded and that other ideas also could help make the judicial system more efficient. They include consolidating the probation departments into a single office and expanding home-confinement programs.

County Prosecutor Steve Stewart has said the overburdened court system is contributing to a scheduling backlog at the county jail. * * *

The southeastern Indiana county's four elected judges and a part-time magistrate had the second-heaviest caseload of the state's 92 counties last year, according to the Indiana Judicial Service Report. The only county more taxed was Howard, which added a judge in January.

The data is based on the number of available judges and the number of cases, with certain serious crimes, such as murder, being given greater weight.

Clark County officials recently tried several times to expand court resources. In late 2004, the county approved an emergency expenditure of $20,000 to clear a paperwork backlog.

Adding more judges has also been discussed, although the county hasn't added a new elected judge since 1982.

See earlier ILB entry here, from July 4th.

Posted by Marcia Oddi on Wednesday, July 12, 2006
Posted to Indiana Courts

Ind. Courts - Court of Appeals posts three today

In Mark M. Ransley v. State of Indiana, a 16-page opinion (with a dissent beginnig on p. 11), CJ Kirsch writes:

Mark M. Ransley (“Ransley”) appeals his conviction for intimidation1 as a Class C felony following a jury trial. On appeal, he raises two issues, of which we find the following dispositive: whether the State presented sufficient evidence that Ransley acted with the intent of placing Nolan in fear of retaliation for a prior lawful act as required under the intimidation statute. We reverse. * * *

SULLIVAN, J., concurs.
DARDEN, J., dissents with separate opinion. [which begins]

I would respectfully dissent, finding that sufficient probative evidence exists to support the jury’s verdict that Ransley committed the offense of intimidation, a class C felony. * * * [and concludes]

Accordingly, I would find that sufficient evidence of probative value exists which supports the jury’s verdict that Ransley committed the offense of intimidation, as a class C felony. Thus, I vote to affirm the trial court.

John Redden v. State of Indiana - affirms convictions and sentence for various drug-related offenses.

In Valerie L. Hamilton v. Steven D. Ashton, D.O., Ashton Cosmetice Surgery & Kosciusko Community Hospital, Judge Robb writes:

In Hamilton v. Ashton, 846 N.E.2d 309 (Ind. Ct. App. 2006) [ILB entry here, from4/27/06], we held, in part, that the trial court did not err in granting partial summary judgment to Dr. Ashton on the issue of his negligence in the performance of surgery on Valerie Hamilton. Hamilton now petitions for rehearing.1 We grant the petition in order to clarify our holding, but reaffirm our opinion in all respects.

Posted by Marcia Oddi on Wednesday, July 12, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Update on suit to to lift the rules that bar Indiana judicial candidates from commenting on issues

Indiana Daily Insight has an interesting item today:

Indiana Republican National Committeeman James Bopp, Jr. of Terre Haute is representing the Texas Republican Party on appeal in the federal litigation over the eligibility of former U.S. House Majority Whip Tom DeLay (R-TX) in the November general election. On Tuesday, Bopp filed a motion for a partial stay of the ruling barring the Texas GOP from finding DeLay ineligible and replacing DeLay on the ballot. He also filed a Motion to Expedite the proceedings in the U.S. Court of Appeals for the Fifth Circuit.
Indiana attorney Bopp is also lead counsel in the suit of Indiana Right To Life Inc et al v. Randall T. Shepard et al, which is pending in the Northern District of Indiana, Judge Sharp presiding. This is a suit to lift the rules that bar Indiana judicial candidates from commenting on issues.

Here are two recent filings, the memorandum in behalf of Defendant Randall T. Shepard's motion for summary judgment, filed 12/30/05, and the response memorandum, filed 4/3/06, that give an overview of this case.

See this ILB entry from Nov. 9, 2005 for some background, as well as this one from June 13, 2006.

Posted by Marcia Oddi on Wednesday, July 12, 2006
Posted to Indiana Courts

Ind. Gov't. - More on efforts of the Lake Station Clerk-Treasurer to obtain money for legal fees

The ILB has had three earlier entries on the efforts of the Lake Station Clerk-Treasurer to obtain money for legal fees. Today the Gary Post-Tribune reports, in a story by Karen Snelling:

LAKE STATION — There’s no money in Clerk-Treasurer Martha Kroledge’s budget to pay an attorney, but that isn’t stopping her from suing four members of the City Council.

Councilmen Keith Soderquist, Rick Long, Samual Vargas and John McDaniel were named as defendants in a lawsuit filed on Kroledge’s behalf last month.

The suit alleges the councilmen violated state law and acted in bad faith when they refused to appropriate funds to allow Kroledge to pay a lawyer.

“The council has no power to regulate, limit or determine the clark-treasurer’s terms of appointment of counsel, and the council has no discretion to deny the appropriation of necessary funds,” Highland Attorney Anthony DeBonis wrote in the lawsuit.

Kroledge, who is serving the unexpired term of the late Donna Smelley, asked the council in February for a $12,000 appropriation to retain DeBonis.

DeBonis was to be paid $175 per hour, but not more than $9,000 a year, under an agreement he reached with Kroledge.

The council budgeted $12,000 to pay its attorney, Michael Deppe.

Soderquist, the council’s president, tabled the request saying a city ordinance restricted attorney’s fees to $100 a hour. He later had the request removed from the council agenda without discussion by a 4 to 3 vote.

Deppe said state law requires the council to appropriate money to pay the clerk-treasurer’s attorney in the annual budget, if requested. However, he said the council is not required to consider a special appropriation after the budget is adopted.

“There was never a need for an attorney under Donna Smelley,” he said. “I think the council will be obligated to appropriate money for an attorney next year.”

DeBonis claims Kroledge will be irreparably harmed in carrying out her official duties if the councilmen’s action is not reversed.

But Lake Station taxpayers, he said, should not be saddled with the expense of the prosecution or defense of the lawsuit.

That cost, he said, should be borne by the four defendants.

Posted by Marcia Oddi on Wednesday, July 12, 2006
Posted to Indiana Government

Ind. Courts - Benton County prosecutor receives reprimand for conflict

From the Lafayette Journal & Courier:

FOWLER -- The Benton County prosecutor has been reprimanded for failing to withdraw from a civil case in which his client was accused of a crime.

In a July 3 order, the Indiana Supreme Court issued a public reprimand against Jud Barce, the part-time elected prosecutor in Benton County.

The action stems from a September 2002 case in which a landlord consulted the chief deputy prosecutor in Benton County about a bounced rent check from a tenant. The prosecutor's office sent a letter to the tenant threatening criminal charges if payment wasn't made on the bad check within 30 days.

Later the same month, the tenant hired Barce to represent her on a counterclaim in a small claims case that the landlord had filed against her.

"Because the tenant used several aliases, (Barce) was not immediately aware that the tenant was the same person whom the prosecutor's office had sent a letter regarding the bad check," according to the Supreme Court's order.

The order states that Barce learned of the conflict in mid-October 2002. But instead of withdrawing from the civil case, he told the landlord he could not pursue the bad check case because of a conflict of interest.

Rules of professional conduct prohibit a part-time prosecutor from representing a private client in any matter in which he has a prosecutorial responsibility.

Barce noted Monday he agreed to represent the tenant in the civil case pro bono, meaning without charging a fee.

"I asked for a special prosecutor on the criminal case, and I withdrew too late in the civil case," Barce said.

The landlord in the civil case was represented by Fowler attorney R. Perry Shipman.

Access the Supreme Court's order here.

Posted by Marcia Oddi on Wednesday, July 12, 2006
Posted to Indiana Courts

Ind. Law - Mo-peds, Scooters and Golf Carts

Yesterday the ILB carried a report on "lax mo-ped laws." And the ILB has had a number of entries on the use of golf carts on city streets - see this entry from July 5, and these from June 9th and 8th, for starts.

Now add this on motor scooters, from a story by Chelsea Schneider of the Evansville Courier& Press reporting on a meeting of Evansville's traveling city hall Tuesday evening:

Terry McCrarey, president of the Diamond-Stringtown Neighborhood Association, coordinated the meeting with Mayor Jonathan Weinzapfel and brought a concern of his own.

He recently bought a solar-powered scooter from California to beat the high gas prices. But a new city ordinance makes his scooter illegal even if he wears a helmet, McCrarey said.

The ordinance bans scooters that travel under 25 mph from city streets and sidewalks. Scooters that go 25 mph or more are legal if a person has a driver's license with a motorcycle endorsement and wears a helmet, Evansville police officer Steve Shemwell said. The ban mainly targets children who use scooters on the streets, because it's a safety issue.

McCrarey's scooter goes about15 mph. He sees the ordinance as the city banning some forms of alternative-power transportation that are easier on his pocketbook.

"When I used the scooter, I didn't have to pay $3 a gallon at all because it's powered by sunlight," McCrarey said.

Posted by Marcia Oddi on Wednesday, July 12, 2006
Posted to Indiana Law

Ind. Gov't. - More on "Indiana has yet to identify its critical infrastructure"

On May 14, 2006, the ILB reported on several Fort Wayne Journal Gazette stories on our State's failure to compile a list of its "critical infrastructure." A quote from one of the stories:

A year and a half later, in February 2003, the federal government released its national strategy for protecting critical infrastructure and key assets, detailing what needed to be done.

“Like the federal government, states should identify and secure the critical infrastructures and key assets under their control,” the strategy says.

And just in case officials were unsure of what constitutes a critical infrastructure or key assets, the national strategy explains there are 13 types of critical infrastructure – from agriculture to transportation – and three types of key assets, from monuments and icons to industry and technology to commercial centers and anywhere crowds gather, such as sports stadiums. It then devotes a chapter to each type.

But three years after the national strategy was released, Indiana still cannot say what its critical infrastructure and key assets are.

Well, apparently we have done a heck of a job of catchup in the past two months!

Today I woke up to an NPR story on how Indiana had many more critical assets in need of protection than New York State. Then when I checked my emails I found a reader had directed me to this NY Times story, with a chart that shows Indiana has more critical assets than any other state in the country, according to the National Critical Assets Database!

Here are some quotes from the Times story:

The source of the problems, the audit said, appears to be insufficient definitions or standards for inclusion provided to the states, which submit lists of locations for the database. * * *

The inspector general questions whether many of the sites listed in whole categories — like the 1,305 casinos, 163 water parks, 159 cruise ships, 244 jails, 3,773 malls, 718 mortuaries and 571 nursing homes — should even be included in the tally.

But the report also notes that the list “may have too few assets in essential areas.” It apparently does not include many major business and finance operations or critical national telecommunications hubs.

The department does not release the list of 77,069 sites, but the report said that as of January it included 17,327 commercial properties like office buildings, malls and shopping centers, 12,019 government facilities, 8,402 public health buildings, 7,889 power plants and 2,963 sites with chemical or hazardous materials.

George W. Foresman, the department’s under secretary for preparedness, said the audit misunderstood the purpose of the database, as it was an inventory or catalog of national assets, not a prioritized list of the most critical sites.The database is just one of many sources consulted in deciding antiterrorism grants.

The inspector general recommends that the department review the list and determine which of the “extremely insignificant” assets that have been included should remain and provide better guidance to states on what to submit in the future.

Mr. Agen, the Homeland Security Department spokesman, said that he agreed that his agency should provide better directions for the states and that it would do so in the future.

One business owner who learned from a reporter that a company named Amish Country Popcorn was on the list was at first puzzled. The businessman, Brian Lehman, said he owned the only operation in the country with that name.

“I am out in the middle of nowhere,” said Mr. Lehman, whose business in Berne, Ind., has five employees and grows and distributes popcorn. “We are nothing but a bunch of Amish buggies and tractors out here. No one would care.”

But on second thought, he came up with an explanation: “Maybe because popcorn explodes?”

Posted by Marcia Oddi on Wednesday, July 12, 2006
Posted to Indiana Government

Tuesday, July 11, 2006

Not law but interesting - Sitting in the coffee shop dunking doughnuts?

A reader has sent me this story today from the Boston Globe, headlined "20 inspectors suspended over GPS." It begins:

The Massachusetts public safety commissioner yesterday suspended 20 state building and engineering inspectors for refusing to accept cellphones equipped with global positioning systems.

Only two inspectors accepted the phones; another two were out on vacation when Commissioner Thomas Gatzunis tried to distribute the phones, which supervisors want to use to keep track of the inspectors during the work day.

"The act of insubordination leaves me with no choice but to impose disciplinary measures, including the immediate suspension of those who refused the phone," Gatzunis said.

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to General News

Ind. Courts - "A Jeffersonville lawyer has been sued for defamation of character for the second time in about two months"

This story today in the New Albany Tribune begins:

A Jeffersonville lawyer has been sued for defamation of character for the second time in about two months, with the latest suit coming after he implied that a New Albany developer bribes public officials to avoid environmental and drainage regulations.

Robert F. Lynn, CEO of New Albany’s Robert Lynn Company Inc., sued Jeffersonville attorney John R. “Jack” Vissing over a letter dated June 22 that Vissing sent to the attorney for the Clark County Drainage Board on behalf of a client who has been sued by the drainage panel.

In his letter, Vissing wrote, “There are other developers out there such as Mr. Lynn who pay money as bribes to avoid protecting the environment and our drainage problems within the community.”

Vissing’s letter does not provide specific allegations against Lynn.

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to Indiana Courts

Law - N.Y. High Court Says Mistaken Avowal of Fatherhood Imposes an 'Equitable Paternity'

"N.Y. High Court Says Mistaken Avowal of Fatherhood Imposes an 'Equitable Paternity'" is the headline to a New York Law Journal story today. Some quotes:

He who acts like a father, is a father -- if not biologically than at least legally -- the Court of Appeals said Thursday in imposing "equitable paternity" on a man who wrongly assumed he had fathered a girl and acted accordingly.

The court in Matter of Shondel J. v. Mark D., 40, upheld the trial court and the Appellate Division, 2nd Department, in ordering a man to pay child support on behalf of a child he did not father. In doing so, it recognized the legislatively endorsed concept of "equity paternity," or paternity by estoppel (see Family Court Act §§ 18 [a] and 532 [a]).

Shondel J. centers on a Guyana native who, while living in New York, met a woman in Guyana while visiting family in 1995. After the man, Mark D., returned to New York, the woman, Shondel J., informed him that she was pregnant and carrying his child.

Mark did not dispute his paternity. Instead, he helped pay for Shondel's pregnancy, visited the girl he thought was his and made her a beneficiary of his life insurance. He also signed a letter affirming his fatherhood so the child could obtain immigration papers. In 1999, he married another woman, and they have children.

The next year, Shondel moved to New York and lodged a paternity petition in Brooklyn, and Mark filed a separate visitation petition. A court-ordered DNA test proved that Mark was not the father.

At that point, Mark attempted to sever ties with the girl. But he was equitably estopped from disclaiming paternity and ordered to pay child support. The child support amounted to $78 weekly, plus retroactive support of $12,859. Mark has had no personal contact with the child since March 2000.

On appeal, Mark argued that the imposition of "equitable paternity" effectively saddled him with an involuntary adoption, in violation of the Constitution and contrary to public policy.

But the 2nd Department, and now the Court of Appeals, focused not on whether Mark got a raw deal, but on the best interests of the child.

"In allowing a court to declare paternity irrespective of biological fatherhood, the Legislature made a deliberate policy choice that speaks directly to the case before us," Judge Albert M. Rosenblatt wrote for the 5-2 majority. "The potential damage to a child's psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given." * * *

All four women on the court -- Chief Judge Judith S. Kaye and Judges Carmen Beauchamp Ciparick, Victoria A. Graffeo and Susan Phillips Read -- joined Rosenblatt. Judge George Bundy Smith dissented in an opinion joined by Judge Robert S. Smith.

This all sounded familiar. Brief research has not turned up an Indiana case, but here is an ILB report of an Illinois decision from September 2004:
An AP story today in the Munster Times reports:
SPRINGFIELD (AP) -- Documents trump DNA when it comes to deciding a child's legal father, the Illinois Supreme Court ruled Thursday.

The court held that a man who signed a paternity agreement saying he fathered a baby cannot challenge the document now, even though DNA tests prove he isn't the biological father. The agreement can be challenged if it was obtained through fraud or duress but not because it is simply wrong, the court said.

The Illinois Supreme Court decision is THE PEOPLE ex rel. THE DEPARTMENT OF PUBLIC AID v. ROMEL C. SMITH. Access it here.

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to General Law Related

Law - Flood insurance issues now on trial

After Katrina, the ILB posted several entries on flood insurance, both on "water vs. winds damage" issues and on the federal flood insurance program for those building in flood prone-areas. This Oct. 11, 2005 ILB link should lead you to most of the other entries.

Today the AP has a story reporting that begins:

A federal judge on Monday began hearing a groundbreaking trial that could signal whether thousands of people whose homes were destroyed by Hurricane Katrina can receive payouts for losses their insurance companies claim were caused by flooding.

Attorneys for Paul and Julie Leonard claim the couple was misled by their insurance agent and then denied much of their claim for their Pascagoula, Miss., home without a full review of the facts.

Nationwide Mutual Insurance Co., argued that while wind damage is covered by its homeowners' policies, damage from flooding is excluded, including Katrina's wind-driven storm surge.

The trial, being heard without a jury by U.S. District Judge L.T. Senter Jr., is the first among hundreds of lawsuits that have been filed by Gulf Coast homeowners challenging insurance companies over the wind-versus-water issue. Plaintiffs attorneys hope a ruling in the homeowners' favor would pressure insurance companies to pay out hundreds of millions of dollars in settlements for homeowners whose claims have been rejected.

Paul Leonard asked a Nationwide Mutual agent in 1999 if he should get flood coverage. "You don't need that," the agent replied, according to one of the Leonards' lawyers.

The agent did not want to write a flood policy "because he didn't make much money off of it," attorney Zach Scruggs said in opening statements.

Scruggs and his father, Richard "Dickie" Scruggs, represent about 3,000 policyholders on Mississippi's Gulf Coast. Their law firm also has filed suits against other insurers, including Allstate Insurance Co., Metropolitan Life Insurance Co., State Farm Insurance Cos. and United Services Automobile Association.

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to General Law Related

Law - The early practice of legislative intervention in litigation and its repudiation by the framers of the Constitution

I haven't read it yet but this law journal article, titled "Legislative Usurpation: The Early Practice and Constitutional Repudiation of Legislative Intervention in Adjudication" sounds very interesting. And it is only 6-pages long. The abstract:

In the United States, we usually think of separation of powers as easy and obvious. Legislatures make rules of general application; courts decide cases between parties based on existing law; and executives enforce and implement the laws. Sometimes the lines shift or get fuzzy, but the principle was fundamental to the framers of the Constitution and still has the feel and supporting authority of a foundational precept. However, this was not always so. In the pre-constitutional history of the United States, legislatures regularly exercised judicial functions, intervened in adjudication, and interfered with accrued or vested rights. Congress seems poised to test the basic principle once again with a bill that bars the pending city lawsuits and most other litigation against handgun manufacturers and dealers. This short historical essay addresses the early practice of legislative intervention in litigation and its repudiation by the framers of the Constitution.
Here is the link, at the bottom of the page.

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals decides one today

In Brent E. Clary, et al v. Lite Machines, a 30-page opinion, Judge Crone writes:

Brent E. Clary, Roger W. Bennett, and Bennett, Boehning & Clary (collectively, “BB&C”) appeal the trial court’s entry of summary judgment in favor of Lite Machines Corporation (“Lite”) and the jury’s subsequent award to Lite of $3,612,574.00. On cross-appeal, Lite challenges the trial court’s denial of its motion for prejudgment interest. We affirm.

Issues. BB&C presents seven issues, which we consolidate and restate as the following six:

I. Whether the trial court erred by denying its motion for summary judgment;
II. Whether the trial court abused its discretion by admitting three documents from the underlying case—specifically, Judge Donald C. Johnson’s findings of fact, conclusions of law, and judgment; his subsequent order; and the memorandum decision of this Court;
III. Whether the trial court abused its discretion by denying BB&C the opportunity to examine Judge Johnson, who presided over the underlying case;
IV. Whether the trial court abused its discretion by admitting evidence of Lite’s alleged lost profits from 1998 through 2004;
V. Whether there was sufficient evidence to sustain the jury’s award; and
VI. Whether Lite was required to prove that a greater damages award would have been collectible.

On cross-appeal, Lite presents one issue, which we restate as whether the trial court erred by denying Lite’s motion for prejudgment interest.

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - "Indiana's fireworks law is a blasted nuisance" [Updated]

"Indiana's fireworks law is a blasted nuisance" is the headline to an editorial published Sunday in the Munster (NW Indiana) Times. It begins:

Indiana's new fireworks law established a fund for firefighter training. They'll need that training, because the relaxed fireworks rules are resulting in additional fires to be fought.

Portage's assistant fire chief, Mike Bucy, said fireworks buzzed past and exploded all around him as he drove through Portage, South Haven and Union Township on the Fourth of July.

"In years past, there were always fireworks, but they were occasional," Bucy said. This year, "it seemed everybody was lighting them. Every neighborhood ... mimicked Iraq or Beirut."

So far this year in Northwest Indiana, fireworks have caused at least seven injuries and fires at three homes.

More from the editorial:
The old law was bad, no question about that. It made liars out of many purchasers of fireworks, who had to promise they would either take the fireworks out of state or set them off only at designated sites.

The new law removed that restriction, allowing people to set off fireworks only on their own property. But it reclassified some more powerful fireworks to allow them to be sold to consumers, not just people who have been trained to run public fireworks displays.

Fireworks are illegal in Illinois, but Northwest Indiana is apparently an irresistible lure, because media reports on fireworks sales and use over the Fourth of July -- which doesn't seem to be limited to just one day -- showed images of people from Chicago and its suburbs buying fireworks in Indiana and attempting to set them off on the wrong side of the state line.

The Consumer Product Safety Commission last week quietly reopened the question of whether to tighten its regulation of fireworks. The agency estimated 10,800 people required emergency room treatment last year, up from an estimated 8,000 in 2002.

Indiana's new law won't help bring that number down. It also won't help the people and pets terrorized by the loud explosions that last until late at night on the Fourth of July and, in many areas, on a number of other nights as well.

The Indiana General Assembly should take another look at this law. The old law was bad, but the new one is worse.

Today the Times has this news story by Phil Wieland:
VALPARAISO | One Fourth of July under the new state law was enough to convince Councilman John Bowker the law needs to be changed.

Bowker said at Monday's City Council meeting that only Porter's proposal to build a new hospital campus at Ind. 49 and Vale Park Road has generated more complaints than the fireworks. He said he agreed with a recent Times editorial that the Legislature made a bad law worse when it legalized the sale and use of commercial fireworks in Indiana.

One display he saw near Glendale Boulevard and Silhavy Road was as spectacular as the city's own program, but a woman who lives near it complained the street was left littered with fireworks debris. She was afraid to drive through it because she couldn't tell whether all of the fireworks were exploded or not, Bowker said.

Bowker asked if the council was interested in taking a stronger stance or trying to enforce the city's noise ordinance. City Attorney David Hollenbeck said the city is even restricted in what it can do about the noise because the law allows explosive devices until midnight on July 4.

Mayor Jon Costas suggested the council adopt a resolution asking state legislators to change the law. Bowker said he will work on one for the next meeting. He invited other councilmen, many of whom agreed with him, to join in the effort.

[Updated 7/12/06] See also this letter to the editori in the Munster (NW Indiana) Times, headlined "Vote against officials who legalized fireworks."

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to Indiana Law

Ind. Law - "Mo-ped crashes expose Indiana's lax laws"

"Mo-ped crashes expose Indiana's lax laws: In 2004, of 48 mo-ped accident deaths nationwide, 10 happened in Indiana" is the headline to a story today by Nick Werner in the Muncie Star-Press. Some quotes:

Under Indiana law, mo-ped drivers must be at least 15 years old and have a state-issued identification to identify the rider in case of an accident. Drivers and riders under 18 also must wear a helmet.

Compared to surrounding states, Indiana has the most lax mo-ped regulations, causing some authorities to wonder whether Indiana's freewheeling attitude toward the vehicle has helped make the state a leader in mo-ped-related fatal accidents. In 2004, Indiana accounted for 10 of 48 fatal mo-ped accidents in the United States, second only to Florida, according to statistics from the National Highway Traffic Safety Administration. * * *

Indiana State Police Sgt. Rod Russell attributed the carnage not to any inherent danger in mo-peds, but to the fact that the crash victims were in most cases disregarding traffic laws. Youth and ignorance are often contributing factors, Russell said.

"To ride a mo-ped in Indiana, you don't have to have safety education," Russell said.

Mo-ped operators in Ohio, Kentucky and Michigan must have either a standard driver's license or a special mo-ped license. Obtaining a special mo-ped license in these states requires at least the passage of standard traffic knowledge and vision tests. In Ohio, mo-ped riders as young as 14 can be licensed but undergo a probationary period until age 16. During that period, authorities can revoke their license for just one traffic violation.

In Illinois, riders must have a valid driver's license. * * *

Enforcing Hoosier mo-ped laws can be difficult because violators are often under the age of 15, too young to be cited into city court.

During increased enforcement throughout the summer, however, Muncie police plan to ticket parents.

"According to the law, they are held responsible, and that is the way we are going to address it," Sgt. Brad Arey of the MPD's traffic division said.

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to Indiana Law

Ind. Courts - More on cameras in Allen County Superior Court

The Fort Wayne Journal Gazette has a thoughtful editorial today on the camera pilot project in the Allen County Superior Court, perhaps to atone for its earlier coverage (see "Judge makes joke; reporter fails to notice" in the Fort Wayne Observed Blog from July 8th). Some quotes from the editorial:

Allen Superior Court Judge Nancy Boyer wasted little time in turning Indiana’s test of cameras in the courtroom from concept to action when she arranged for TV and still cameras to record a hearing Friday. * * *

Boyer is one of just eight Hoosier judges participating. As a civil court judge, Boyer’s cases generally are the subject of far less public interest than criminal cases. Rather than wait for a higher-profile civil case to come along, Boyer responsibly began looking for a case to introduce cameras into her courtroom as soon as reasonable after the July 1 effective date.

Friday’s court hearing was on a motion for summary judgment, a common move in civil cases in which one or both parties in the lawsuit ask the judge to issue a ruling based solely on the merits of the court filings, without a trial. Only the lawyers for the two sides participated, allowing Boyer to gauge how cameras affected the proceedings without witnesses being involved. The case was filed by an insurance company against the owner of an airplane involved in a Michigan crash.

“I was conscious there were cameras in the courtroom,” Boyer said in a follow-up interview. Most conspicuous were the frequent clicks of the still photographer’s camera. Still, “I think I will get used to this. I think the attorneys will get used to this.”

Boyer is uncertain how witnesses will react to the cameras.

“For most witnesses and parties to lawsuits, it will be the first time they appear in a courtroom. … I wonder if (cameras) will make them more nervous and self-conscious. But that remains to be seen.”

There is little doubt that criminal cases capture far more public attention than civil lawsuits. There is more need and interest for cameras in the courts of Superior Court Judges Fran Gull, Kenneth Scheibenberger and John Surbeck, who handle criminal cases. But there will come a time when an Indiana court will hear an important civil case with much public interest. The public will want coverage from the news media, and the news media can best present the news of the trial with images and recordings. So it is vital that during this cameras-in-the-courtroom pilot program, different types of courts participate.

In addition, if the pilot program works well in Boyer’s courtroom, her colleagues may well be more inclined to invite cameras into their own courts.

For her part, Boyer demonstrated she understands the importance of her role in the pilot program, and she commendably sought to get the project moving in her court.

Posted by Marcia Oddi on Tuesday, July 11, 2006
Posted to Indiana Courts

Monday, July 10, 2006

Ind. Courts - South Bend Osco Triple Murder Trial

The ILB generally doesn't cover murder trials, but the South Bend WNDU 16 had this brief story Sunday:

Opening statements are set to begin Monday morning in the Osco triple murder trial.

Christopher Allen is accused of killing three co-workers in South Bend in August of 1990. This is Allen's third trial. His first trial ended in a hung jury.

In 2002, he was convicted of killing Tracy Holvoet, Connie Zalewski and Scott dick, but the Indiana Court of Appeals set aside that conviction, saying evidence was wrongly excluded in the case.

Due to publicity here in South Bend, the trial is once again being held in Henry County. Opening statements are set for 8:30 AM on Monday.

The South Bend Tribune reported last Friday that jury selection was complete:
NEW CASTLE, Ind. — A 12th juror and three alternates were chosen this morning in the third trial on whether Christopher Allen murdered three employees of the Western Avenue Osco Drug store in South Bend nearly 16 years ago.

Seven women and five men will decide in this Henry County courtroom the fate of Allen, who was convicted of the murders in 2002 before the state's Court of Appeals ruled that a jury should have heard additional evidence. The first trial in 2001 ended with a hung jury.

Attorneys expect the trial to last about two weeks. Opening arguments and the prosecution's case will begin Monday morning. Read more about the case and the expected strategies of both sides in Sunday's Tribune.

Here is the Sunday Tribune story, including these quotes:
NEW CASTLE, Ind. -- "I've heard about this case on A&E or Court TV," the prospective juror with the glasses and graying beard told the judge, recognition dawning in his voice.

Indeed, the Osco Drug store triple homicide in 1990 was featured in a cable TV show not long ago about psychics who work with police.

"I was called for the first jury when it was here before," another male would-be juror told Judge Mary Willis, who chuckled and asked, "What are the odds of that?" * * *

The case was sent out of St. Joseph County because of pretrial publicity and was taken over by a special prosecutor, Allen County Chief Deputy Prosecutor Michael McAlexander. A jury could not reach a decision in 2001. Allen was convicted when the case was retried in 2002, but the state Court of Appeals ruled in 2004 that although enough evidence existed to convict Allen, the jury should have heard certain evidence that the judge had excluded.

All of which, when discussed briefly in court last week, threw the jury pool into confusion.

Female potential juror: "So this is a third trial?"

Defense attorney Kevin McGoff: "Yes, ma'am."

Potential juror, hesitating: "And the first trial was hung?"

McGoff: "Yes, ma'am."

Potential juror: "And then there was a conviction?"

McGoff: "Yes, ma'am."

Another potential juror: "Is that unusual, to have three trials for the same crime?"

McGoff, looking at the other attorneys, who look at one another and nod: "I'd have to say it is."

Most interesting to the ILB was this profile of one of the jurors, Juror No. 12, published yesterday in the South Bend Tribune.

Posted by Marcia Oddi on Monday, July 10, 2006
Posted to Indiana Courts

Sunday, July 09, 2006

Ind. Law - Adult entertainment law, or how to shut down an "adult items" shop

Kate Braser of the Evansville Courier&Press has an interesting story today headlined "County getting lesson in laws: Efforts target adult business." Some quotes:

A few months ago, John Wetherill, an attorney in Spencer County, didn't know much about adult entertainment law - and didn't think he'd ever need to.

So the irony didn't escape him last week, when Wetherill found himself lecturing before a group of colleagues in Indianapolis on that very topic.

"I absolutely never thought adult entertainment law would cross my desk," he said from his office in downtown Rockport, Ind.

That all changed last November, when a business named the Love Boutique began selling pornographic videos, adult toys and more at the site of a former truck stop near Dale, Ind. Officials soon learned of plans to open an adult motel and strip club at the site at the junction of U.S. 231 and Interstate 64.

Since then, Spencer County officials have found themselves embroiled in a legal fight with the business owners.

But their case is not isolated.

Increasingly, small, rural counties that border major interstates are finding themselves home to adult-oriented businesses.

Spencer County officials hired a Tennessee attorney to advise them on how to shut down the Love Boutique.

Scott Bergthold of Chattanooga has built a national reputation for helping small communities keep out adult entertainment businesses. He told them the local case is part of a "very large trend" that's been going on in rural counties around the country for a good part of the past decade.

"They (rural officials) never thought they'd have the problem and now the wolf is at the door," he said. "But I have worked for a lot of counties like Spencer County, and they all share the commonality of bordering an interstate." * * *

For now, Spencer County has been able to stifle the business's development at the site with a court-ordered injunction that bars the business from operating as anything other than a convenience store. Only a small percentage of the store's merchandise can be adult-oriented material.

The county also adopted a new zoning ordinance that Bergthold has said he is confident will hold up under court challenge because it was carefully modeled after others previously upheld in similar cases.

The zoning ordinance bars adult businesses from operating within 1,000 feet of churches, schools and residences, based on the idea that the businesses might bring negatively affect.

The consequences, such as increases in certain types of crime, are termed "negative secondary effects," and attorneys say they have been proven in other cases and upheld by courts.

The Love Boutique's attorneys have challenged the constitutionality of Spencer County's ordinance.

County attorney Francis Lueken said ensuring the business owners' First Amendment rights are respected has been a priority in the county's case.

"Most definitely there are First Amendment rights that have to be recognized, but the U.S. Supreme Court has also recognized that it is appropriate for local government to control those negative secondary effects," Lueken said.

Fighting the adult entertainment industry in court can be costly for small counties.

To date, Spencer County has appropriated $70,000 for the case, said Sara Arnold, county auditor.

Those costs are expected to mount. County attorneys don't expect a hearing date to be set for the case until at least August.

"This case has probably got a lot of time left on the clock," Wetherill said.

Here is a link to a Jan. 16, 2006 ILB entry, quoting from an AP story in the Louisville Courier Journal titled "Adult business dispute draws top lawyers to fight in Spencer." And here is a long list of earlier ILB entries on "adult business."

Posted by Marcia Oddi on Sunday, July 09, 2006
Posted to Indiana Law

Ind. Law - Evidence gathering goes digital in Fort Wayne and clogs system

A story in the Fort Wayne Journal Gazette today by Amanda Iacone reports:

Since Fort Wayne police officers began using digital cameras regularly last year, they have filled up a computer server full of photos of car wrecks, victims and crime scenes, including those of domestic batteries and burglaries. * * *

Officers have taken so many photos that the department’s computer technology staff was aching for additional space to store the digital images and to speed up the software used to access the database, officer Scott Kizziar said.

The department plans to keep the photos for three to five years on the server and then archive the images onto a DVD for safekeeping.

Because the images are considered evidence, they are encrypted to ensure their authenticity, he said.

The current server is sluggish, creating long wait times to transfer the images from the officers’ cameras to the server. It sometimes can take patrol officers 45 minutes to an hour to download the pictures. And that keeps them from getting back on the street because the officers must be in one of the outposts or at police headquarters to access the database, Capt. Paul Shrawder said.

To improve on the system, the police department has ordered a new server that will hold vastly more data than the current equipment. The hardware along with some other technical changes Kizziar and his co-workers are making will shorten the time needed to save and recall photos. * * *

The $12,000 server will hold seven to eight times more data, and the department hopes those photos will be available forever, if the department chooses to keep them that long, he said.

And most importantly for the street officers taking the bulk of the shots, the new equipment will shorten the time needed to download and save the photos, sending them back out on patrol sooner. The wait time caused a slight decrease in the number of photos taken from when officers initially received the cameras, Kizziar said.

“They’ve learned to take exactly what they need and not to go overboard."

Posted by Marcia Oddi on Sunday, July 09, 2006
Posted to Indiana Law

Saturday, July 08, 2006

Ind. Law - A second Indiana newspaper reports on Indiana's new anti-discount real estate brokers law

The lastest issue of the Indianpolis Business Journal, out today, has a report by Tracy Donhardt, headlined "New law provides Realtors an edge: HomeYeah! packs up after low-cost brokers get service mandates." Some quotes from the lengthy story:

A new state law backed by Realtors that critics say stifles cut-rate competition already has prompted a discount brokerage, California-based HomeYeah!, to shutter its operations here.

The law, which went into effect July 1, spells out minimum services all licensed residential real estate brokers must offer, regardless of whether customers want to pay for the services.

Realtors, who are members of the National Association of Realtors, say the law helps ensure brokers provide clients the help they need to navigate the complex home-buying process. But critics say Realtors are trying to suppress competition to protect the 7-percent commission they typically collect on home sales.

Here is a list of some of the earlier ILB entries on this new law. The most recent ILB entry, quoting from a Wall Street Journal story and a Washington Post story on these new, anti-competition laws, is here, from July 2nd.

[Update] See this post from Advance Indiana.

Posted by Marcia Oddi on Saturday, July 08, 2006
Posted to Indiana Law

Ind. Gov't. - Legislative candidates squabble over who likes controversial health perks for lawmakers the least

Bryan Corbin of the Evansville Courier& Press has a a story today headlined "Flier is misleading, challenger says: Battles says he's criticized for nonexistent record." Some quotes:

A Republican state legislator from Vincennes is taking credit for ending controversial health perks for lawmakers and claims his Democratic opponent would have supported them.

But his Democratic challenger said Troy Woodruff's latest political mailing is misleading, because the challenger opposes the perks, too.

"My opponent is criticizing me for a record that I don't have. I would never have supported it in the first place," Democratic candidate Kreg Battles said.

The fliers that Woodruff, R-Vincennes, mailed to about 22,000 voters in House District 64 cost his campaign about $6,000. It was his second campaign mailing in two weeks.

Like his first one, Woodruff's new flier makes various assertions about what Democrats did when they controlled the Indiana House and concludes, "My opponent, Kreg Battles, wants that same Democrat leadership team back in power. Is that what you want?"

The latest mailing says that Woodruff "authored the bill to abolish lifetime healthcare for Indiana legislators." It adds, "This outrageous benefit is now gone, saving you millions. ... In 2002, the House Democrats created that outrageous perk for themselves."

Battles disputes Woodruff's assertions.

The background: In 2001, then-House Speaker John Gregg, a Democrat, and Senate President Robert Garton, a Republican, added a lifetime insurance benefit for state lawmakers who served more than six years, their spouses and some staff. The benefit locked in the employee rate, and taxpayers had to cover the difference as premiums costs rose.

In 2004, Woodruff was among a handful of Republican candidates who campaigned against lifetime perks. After winning the 2004 election,

Woodruff introduced a bill in 2005 to end the benefits; it never got a hearing and died in committee. The same thing happened when Woodruff introduced the bill in 2006.

House Speaker Brian Bosma, a Republican, announced Jan. 17 that he was administratively ending the lifetime perks for House members starting this year, meaning they would have to pay all premiums. The same day, House Democratic Minority Leader B. Patrick Bauer promised to not bring back the health plan if Democrats win back control and he becomes speaker again.

Posted by Marcia Oddi on Saturday, July 08, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Courts - Both Fort Wayne papers report on cameras in local courtroom

From Jeff White of the Fort Wayne News-Sentinel, a report that begins:

It was a day in court like any other, except Allen Superior Judge Nancy Boyer decided to don the black robe.

Most of the time when she sees a hearing on the schedule like the one she had Friday – where an insurance plaintiff files a motion for her to give a summary judgment – Boyer said she’d probably be just fine without the robe. As she reclined at her desk afterward in her office, she said maybe she’d wear a suit instead of the Hawaiian-print shirt she had on, but she only breaks out the robe during jury trials.

But unlike any other day in court, there were cameras watching her every move.

The 9 a.m. Illinois National vs. Dean Chaffee and Michael Day motion hearing was the first in Allen County to be taped and photographed by the media.

Boyer is one of eight judges across the state participating in an 18-month pilot program authorized by the Indiana State Supreme Court to see how media cameras affect proceedings in trial courtrooms.

As part of the program, Boyer, who is a civil judge and the only one in Allen County participating, said both parties of a case and their lawyers have to give consent before cameras can enter the courtroom. Since July 1, when the program began, she has asked lawyers in 10 of her upcoming cases if they would consent to having cameras present.

Only the lawyers in the National Illinois case agreed.

“If 90 percent of parties in litigation don’t want cameras in the courtroom, I think that’s going to tell the Supreme Court something,” Boyer said. “If the Supreme Court of Indiana views that 90 percent of the public doesn’t want cameras in courtroom if it’s them, I think it’s another factor the Supreme Court needs to consider.”

From Dionne Waugh of the Fort Wayne Journal Gazette, a report, complete with photos taken i the courtroom, begins:
Allen Superior Court Judge Nancy Boyer doesn’t always wear her robe to court.

If the case involves a jury or a serious matter, she will.

On Friday she had another reason.

Boyer’s court was selected as one of eight in the state to participate in an 18-month pilot program allowing news photographers and TV cameras in the courtroom during proceedings.

“I had on my Hawaiian shirt today,” she said. “I wore my robe to be more formal.”

Boyer, a civil division judge who handles cases such as lawsuits and contract disagreements, said the new visitors initially made it difficult to concentrate.

“At the beginning it was hard for me to focus just because it was a new thing,” she said. “I heard the clicks from the still camera. I guess it’s just something you get used to.”

Friday marked the first hearing in which attorneys on both sides agreed to allow the cameras, a provision of the pilot program. Since the program started last week, attorneys in nine other cases have said no.

According to the Radio and Television News Directors Association and Foundation, Indiana is among 15 states with the most restrictive court access in the country.

The Indiana Supreme Court voted 3-2 this year to proceed with the pilot program – one video camera, one still camera and up to three tape recorders in the courtroom at a time. Media must also share coverage and be approved in advance. The justices have said that they hope the pilot program will educate the public about what goes on inside the court. It will last until the end of 2007.

Fort Wayne attorney Michael Loomis, who argued his case during Friday’s hearing, said he likes the openness of having cameras in the courtroom and that it was a good idea for citizens to have access through the media.

He said once the hearing began, he didn’t even notice the cameras.

“I likened the experience to playing in a game and seeing your parents in the audience,” Loomis said. “You know they’re there, but you forget about it as it goes on.”

Both stories are worth reading in full, the Journal-Gazette has the photos, but the News-Sentinel points out the very interesting 90% turndown rate in the program's initial days.

Posted by Marcia Oddi on Saturday, July 08, 2006
Posted to Indiana Courts

Ind. Law - More on: New Albany lawsuit seeks new council districts

Updating this ILB entry from May 18, 2006, Ben Zion Hershberg of the Louisville Courier Journal reports today:

The New Albany City Council has asked U.S. District Court to dismiss a lawsuit seeking the realignment of the six council districts on grounds that the suit is based on incorrect information.

Jerry Ulrich, the council's lawyer, said the suit is based on the disparity in the number of registered voters in each district, while state and federal law require districts to be based on population.

Stephen Beardsley, who filed the suit on behalf of 20 city residents, said he doesn't believe it will be dismissed.

"The statute requires more or less equal districts," Beardsley said.

He said the statistics provided in the suit are clear enough. They show 7,481 registered voters in the 2nd District, which is represented by Bill Schmidt, and only 3,993 in the 1st District, which is represented by Dan Coffey.

The number of registered voters in the other districts ranges from 4,230 to 5,030.

Beardsley said the real issue isn't the statistical basis for the suit but "why don't they redistrict?"

With municipal elections next year, he said, the City Council or the court must act quickly to draw new districts in time.

The council discussed redistricting in 2002, as is required after the U.S. Census, which is taken each decade. But the members were unable to agree on a redistricting plan.

Posted by Marcia Oddi on Saturday, July 08, 2006
Posted to Indiana Law

Law - Federal court rules that opening Kentucky juvenile cases is a matter for state courts

The Louisville Courier Journal reports today on a 6th Circuit ruling:

If the news media want Kentucky's juvenile court proceedings opened, they should first go to state court, a federal appeals panel has ruled.

The Kentucky Press Association failed to show it can't get access to now-closed juvenile court proceedings by asking state courts to decide the matter, said an opinion yesterday by the 6th U.S. Circuit Court of Appeals.

Here is a link to the brief opinion in Kentucky Press Ass'n, Inc. v. Commonwealth of Kentucky.

Posted by Marcia Oddi on Saturday, July 08, 2006
Posted to General Law Related

Ind. Law - "Muncie attorney held on drug charge"

Nick Werner of the Muncie Star-Press reports today:

RIDGEVILLE -- A Delaware County attorney was arrested on suspicion of cocaine possession Friday after an Indiana State Police trooper reported seeing him urinate in the middle of a state highway.

Donald K. McClellan, 50, Selma, was being held Friday night in the Randolph County jail in Winchester, preliminarily charged with possession of a controlled substance, public intoxication and illegal parking.

According to a press release, Cpl. Tom Hart of the ISP's Redkey post was off duty in his marked police car about 10:45 a.m. when he saw a man urinating in the middle of Ind. 28 near Randolph County Road 475-W and next to a parked 2000 black Jaguar.

Master Trooper Jerry Alexander, also of the Redkey post, assisted Hart at the scene and found a white powdery substance in McClellan's possession during a routine pat-down, authorities said.

Police could not arrest McClellan on a driving-while-intoxicated charge because they had not seen him driving, ISP Sgt. Rod Russell said.

McClellan, a former Delaware County deputy prosecutor, was transported to the Randolph County jail, where he continued to be held under a $4,000 bond Friday night.

A criminal conviction could potentially endanger his license to practice law.

McClellan was one of two local lawyers who represented a Muncie couple in a lawsuit against the Outback restaurant chain that ended with a $39 million judgment.

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

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

The Indiana Court of Appeals last July upheld the $39 million judgment, now under review by the Indiana Supreme Court.

See this Feb. 25, 2006 ILB entry on the Supreme Court's granting transfer to the Outback case.

Posted by Marcia Oddi on Saturday, July 08, 2006
Posted to Indiana Law

Friday, July 07, 2006

Ind. Decisions - Transfer list for week ending July 7, 2006

Here is the Indiana Supreme Court's transfer list for the week ending July 7, 2006.

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

Posted by Marcia Oddi on Friday, July 07, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending July 7, 2006

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending July 7, 2006.

Posted by Marcia Oddi on Friday, July 07, 2006
Posted to NFP Lists

Ind. Courts - More disciplinary matters [Updated]

The Anderson Herald-Bulletin reports, in a long story by Lee Noble headlined "Lawyer avoids Disciplinary Commission hearing by resigning," that:

After six years of racking up violations of attorney codes of conduct, a local criminal lawyer tendered his resignation to the Indiana Supreme Court.

Shawn D. Ramsey’s resignation was a response to an extensive list of complaints filed against Ramsey March 27.

The following were filed against Ramsey with the Indiana Supreme Court Disciplinary Commission:

- 15 complaints against Ramsey affecting 19 individuals who he was hired to represent.

- almost $19,000 worth of legal fees paid by those clients, who complain that Ramsey failed them by not appearing in court, refusing refunds or failing to communicate updates of their trials, among other violations.

- 50 violations of Rules of Conduct for Attorneys at Law contained in the above complaints.

- one charge of driving with a suspended license.

- one attempt to carry a handgun into the Madison County Government Center.

Ramsey could not be reached for comment; his law office phone has been disconnected and his home phone number is unlisted.

Here is the Supreme Court's "Order Accepting Resignation."

The Bloomington Herald-Telegram reports today, in a long story that begins:

Longtime Bloomington attorney David Colman is the focus of a disciplinary complaint filed Thursday in the Indiana Supreme Court.

The complaint alleges Colman violated the rules of professional conduct for attorneys 13 times in three separate cases involving three different clients. It also alleges a violation of Indiana Admission and Discipline Rule 23.

Colman’s attorney, Paul Watts, said his client denies the allegations.

“There is a whole lot more included than appears on the face of these complaints,” Watts said. “David certainly denies any wrongdoing.”

Colman couldn’t be reached for comment Thursday, but Watts said he advised Colman not to speak publicly about the case.

The complaint was filed Thursday in the state Supreme Court by the court’s disciplinary commission.

[Updated 7/8/06] The Bloomington Herald-Telegram has more today on the Colman matter - unfortunately, one has to pay to read even the H-T's current stories. The story, by Bethany Nolan, is headlined "Disciplinary complaint a serious matter, says head of lawyers' group: Local attorney faces allegations he violated rules of professional conduct in three cases" It begins:
About 1,600 complaints about Hoosier attorneys are sent each year to the Indiana Supreme Court's disciplinary commission.

Of those, about 100 eventually become formal disciplinary complaints like the one filed Thursday against prominent Bloomington attorney David Colman, said Seth Pruden, a staff attorney with the commission.

Posted by Marcia Oddi on Friday, July 07, 2006
Posted to Indiana Courts

Ind. Decisions - "Judges must outline reasons for overruling juries"

"Judges must outline reasons for overruling juries" is the headline to a story by AP reporter Charles Wilson published by the Fort Wayne News-Sentinel. The case is Wednesday's Supreme Court decision in Thomas M. Weida v. Donald and Kathy Kegarise - see the ILB entry here. From the AP story:

Trial judges are required to carefully outline their reasons when they set aside verdicts reached by juries, the Indiana Supreme Court has ruled.

"Setting aside a verdict because the trial court concludes that it is against the weight of the evidence is a weighty but well-recognized power of common law judges," Chief Justice Randall Shepard wrote in the unanimous 13-page ruling.

But he added that rules say judges who exercise the power must detail the reasons. Without reasons, the verdict should be reinstated.

The ruling Wednesday involved a Pulaski County lawsuit from a February 2002 traffic accident in which the jury found for the defendant even though his attorney acknowledged during final arguments that he had caused the crash.

The jury instructions included a stipulation that final arguments were not evidence.

Pulaski Circuit Judge Michael Shurn set aside the jury verdict and ordered a new trial, but his reasons were not clear.

The state Court of Appeals sent the case back to Pulaski County with instructions for the judge to outline his reasons for overruling the jury. But the Supreme Court instead ordered the jury verdict reinstated.

Indiana trial rules require judges to set aside verdicts if they clearly contradict the evidence, Shepard wrote, but it also requires them to outline those contradictions. If a judge orders a new trial instead of directing a verdict, he must issue additional findings explaining why.

If that is not done, the proper remedy is to reinstate the jury verdict, Shepard wrote.

"Compliance with the requirement is necessary to assure the public that the justice system is safe not only from capricious or malicious juries, but also from usurpation by unrestrained judges," Shepard wrote.

Posted by Marcia Oddi on Friday, July 07, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court reprimands former judge

The Munster (NW Indiana) Times reports today that begins:

CROWN POINT | The Indiana Supreme Court is publicly reprimanding a former Lake County judge for professional lapses as a private lawyer.

A court order, published this week on the state's Web site, said Paul D. Stanko failed to act with diligence and promptness in cases involving two separate clients.

Stanko, who served as a Lake Superior Court, County Division judge from 1985 to 1992 and who maintains private offices in Lakes of the Four Seasons, declined comment Thursday.

The order states Stanko was handling an appeal for an unidentified man convicted of a felony and sentenced to eight years in prison, but failed to inform his client the Indiana Court of Appeals had ruled against him until it was too late to pursue a further appeal to the Indiana Supreme Court.

Here is the Court's order.

Posted by Marcia Oddi on Friday, July 07, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals hears challenge to bidding statute

Niki Kelly reports this morning in the Fort Wayne Journal Gazette about a Court of Appeals argument heard yesterday. Some quotes:

INDIANAPOLIS – A dispute heard by the Indiana Court of Appeals on Thursday over $4.8 million worth of fire trucks bought by Fort Wayne in 2004 could substantially alter long-standing public purchasing law.

The crux of the issue is whether a disappointed bidder has standing – or the legal right – to sue.

Mark Keaton, who represented the city, said more than 100 years of case law shows such bidders do not sue unless fraud or collusion is involved. He added that any changes to state statute in the late 1990s narrowed – not expanded – the situation further.

But James Fenton – arguing for Pierce Manufacturing Inc. of Wisconsin – said his client fits under a section added to state purchasing laws specifying a remedy for an aggrieved person.

The case began in 2004 when the city used a relatively new “reverse auction” process to solicit bids from Pierce and American LaFrance Corp. of South Carolina.

Essentially, rather than taking sealed bids, the city asked for proposals from fire truck builders, then began negotiating down the prices simultaneously. In the end, LaFrance won the contract for the 14 trucks at a cost of $4.8 million. * * *

A few months later Pierce sued, alleging the city didn’t treat both bidders fairly. The case was moved out of Allen County, where Wells Circuit Judge David L. Hanselman Sr. decided in October that Pierce did have standing and the city failed to follow the statutory procedure.

He canceled the contract and ordered a new bidding process – the only remedy allowed by law. Pierce cannot seek cash damages. * * *

Fenton argued that the legislature set up the remedy for an aggrieved person and that his client counts.

“If Pierce doesn’t have the right to seek a remedy, then who does?” he asked. One of the three appellate judges noted that during the negotiation process, the city told LaFrance that its bid was not competitive – which is like a red flag to lower the price.

Fenton also explained that while the original bid specifications required the fire trucks to have an independent front suspension system, the city later told LaFrance it would be willing to listen to bids without that component. That same information was not conveyed to Pierce, Fenton said, and that could have knocked $10,000 off the price of each truck.

“The record is pretty clear that, if we have standing, we were harmed,” he said.

Keaton said the city vigorously denies it did anything inappropriate.

He noted that if the court opens up case law to allow failed bidders to sue, then every negotiation will be scoured over by attorneys – stalling important projects and purchases.

“We think there are aggrieved persons but we don’t believe the legislature meant to include disappointed bidders,” he said.

Both attorneys acknowledged the case is one of “first impression” for the court, which means it has not decided the issue since the law was changed.

The three-judge appellate panel can rule just on the narrow subject of standing or can go further and decide the merits of the entire case.

The case is City of Fort Wayne v. Pierce Manufacturing, Inc. Unfortunately, the oral argument does not appear to be available online. The panel was Sharpnack, Najam and Robb. The statute involved is IC 5-22.

Posted by Marcia Oddi on Friday, July 07, 2006
Posted to Ind. App.Ct. Decisions

Thursday, July 06, 2006

Ind. Courts - Fountain County officials increasing courthouse security

The Crawfordsville Journal Review reports, in a story by Bill Dotson:

COVINGTON — Fountain County officials are continuing to explore ways to increase security at the county courthouse in Covington.

Commissioner Janet Shoaf said Wednesday that she had reviewed a proposal for courthouse security from Circuit Court Judge Susan Orr Henderson.

Shoaf said she has asked Sheriff Robert Bass to add another deputy to his department's next budget proposal, at jailer's pay. That deputy would be designated to provide security at the courthouse five days a week, she said, from half an hour before the building opens until half an hour after it closes.

The Fountain County Courthouse is open to the public 8 a.m. to 4 p.m. Monday through Friday.

Shoaf also discussed the idea of having some sort of alarm signal at a security station in the courthouse that could alert the officer of a problem somewhere in the building.

County Attorney Richard Holmes countered that some sort of risk assessment may be warranted before making any firm decisions on that aspect of courthouse security.

If the person causing a problem in the courthouse would happen to have a confederate in the lobby, for example, it might be best to avoid alerting that accomplice with an audible alarm, he said.

To date, Fountain County has experienced no major crisis due to a lack of courthouse security. Nonetheless, the issue has been raised more often lately in connection with the ongoing dispute over building a new county jail near Veedersburg rather than in Covington.

The current jail is only a block away from the courthouse.

Posted by Marcia Oddi on Thursday, July 06, 2006
Posted to Indiana Courts

Law - "Tax dollars to fund study on restricting public data "

"Tax dollars to fund study on restricting public data: Pentagon to pay school to devise statute curbing freedom-of-information requests" is the headline to this story today in USA Today. Some quotes:

The federal government will pay a Texas law school $1 million to do research aimed at rolling back the amount of sensitive data available to the press and public through freedom-of-information requests.

Beginning this month, St. Mary's University School of Law in San Antonio will analyze recent state laws that place previously available information, such as site plans of power plants, beyond the reach of public inquiries.

Jeffrey Addicott, a professor at the law school, said he will use that research to produce a national “model statute” that state legislatures and Congress could adopt to ensure that potentially dangerous information “stays out of the hands of the bad guys.” * * *

The federal Freedom of Information Act, which became law 40 years ago this week, has long been a source of tension between the government and the public and news media.

Critics say the research plan overstates the need for secrecy and is likely to give state and federal governments too much discretion to withhold material. “Restricting information (for) security and efficiency and comfort level, that's the good story,” says Paul McMasters, a specialist in public information law at the First Amendment Center in Arlington, Va. “The bad story is that it can also be a great instrument of control. … To automatically believe that the less known the better is really not rational.”

Congress added the grant to this year's Defense Department budget. It is being administered through the Air Force Research Laboratory, Addicott said. The laboratory in Rome, N.Y., specializes in information technology, according to its website.

The Freedom of Information Act was signed July 4, 1966. All 50 states and the federal government have “sunshine laws” that allow reporters and citizens access to many government meetings and to government records through freedom-of-information requests.

In the past four years, Congress, the District of Columbia and 41 of the 50 states have moved to close some meetings and restrict records for fear of making information available to terrorists, according to the Reporters Committee for Freedom of the Press in Arlington, Va.

Under a 2002 law, for instance, information submitted to the federal government by private industry that concerns “critical infrastructure programs” is exempt from Freedom of Information Act requests or use in lawsuits. * * *

Lucy Dalglish, director of the Reporters Committee for Freedom of the Press, says the research program is in keeping with a recent federal trend to use “homeland security” as an excuse to restrict unrelated material.

Contract this with the column this weekend by Jimmy Carter, that appeared in many papers. It is headlined in the Houston Chronicle as "Face it: Government keeps entirely too many secrets: Trends alarming in this era of deep, warranted suspicion."

And here is another USA Today column, this one from July 4th, headlined "Checks, balances and FOIA's 40th anniversary."

Posted by Marcia Oddi on Thursday, July 06, 2006
Posted to General Law Related

Ind. Decisions - Star editorializes on special laws ruling

The Indianapolis Star editoriaizes today on the Supreme Court decision last week in Alpha Psi Chapter of Pi Kappa Phi Fraternity, Inc. v. Auditor of Monroe County. (See ILB entry here.):

The Indiana Supreme Court may have saved the state legislature from itself in striking down a special law retroactively providing tax relief for three Indiana University fraternities that missed a filing deadline.

One of the main reasons a convention was called to draft Indiana's 1851 Constitution was because the legislature was bogged down at the time in dealing with special-interest legislation. As Chief Justice Randall Shepard noted in the court's recent ruling, debates at the time of the convention indicate that more than two-thirds of all laws enacted in the state's 35-year history were special or local in nature.

Delegates fixed the problem by approving constitutional prohibitions against enactment of local or special-interest laws. They wanted general laws that applied to everyone in the state.

In recent years, however, legislators have approved the bill waiving the consequences of missing a tax deadline for the three IU fraternities and passed similar legislation to help a Butler University fraternity and a Zionsville youth soccer league.

If it's OK for those fraternities to miss deadlines, why should other organizations care about meeting them?

As Shepard notes, the court has carved out broad areas where the legislature can address special problems in various areas of the state -- varying from riverboat gambling in a handful of counties to property tax issues stemming from the decline of steel mills in Lake County. But there have to be unique factors to justify differential treatment.

Indianapolis' difficulties in winning approval to merge police and fire operations suggest the General Assembly already is too involved in local affairs. If anything, less special legislation and greater home rule are needed.

Posted by Marcia Oddi on Thursday, July 06, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on: New lifetime gun permit law featured

The Indianapolis Star has a front-page story today by Tim Evan on the the new lifetime gun permit law. A quote:

Ashley Varner, spokeswoman for the National Rifle Association, said her organization is "very pleased" with the Indiana law.

Gun-permit holders "are among the most law-abiding citizens in the state," she said.

But Peter Hamm, communications director for the Brady Campaign to Prevent Gun Violence, called the law "ludicrous."

"I would presume the state legislature is going to do the same with driver's licenses and business licenses, because there is no reason anybody should have to go through the hassle of being checked out every four years," he said.

The new law makes Indiana the first state to offer lifetime licenses to carry a handgun, Hamm said.

Posted by Marcia Oddi on Thursday, July 06, 2006
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues one today

Logansport School Corporation v. P.F. is a 16-page, 2-1 opinion re "the trial court’s order vacating the expulsion of appellee-plaintiff P.F., a Logansport High School student."

Posted by Marcia Oddi on Thursday, July 06, 2006
Posted to Ind. App.Ct. Decisions

Law - NY Court says no to same-sex marriage; so does Georgia

Here is the 70-page ruling that begins:

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.
[More] AP reports this afternoon, in a story headlined "Ga. Top Court Reinstates Gay Marriage Ban," that:
ATLANTA (AP) -- The state Supreme Court reinstated Georgia's constitutional ban on gay marriage Thursday, just hours after New York's highest court upheld that state's gay-marriage ban.

The Georgia Supreme Court, reversing a lower court judge's ruling, decided unanimously that the ban did not violate the state's single-subject rule for ballot measures. Superior Court Judge Constance Russell of Fulton County had ruled that it did.

Seventy-six percent of Georgia voters approved the ban when it was on the ballot in 2004.

Here is a May 17, 2006 ILB entry on the lower court's ruling, titled "Georgia same-sex ruling interesting on several levels."

Posted by Marcia Oddi on Thursday, July 06, 2006
Posted to Courts in general

Wednesday, July 05, 2006

Law - "Democrats Not Eager to Emulate Texas's Redistricting"

"Democrats Not Eager to Emulate Texas's Redistricting" is the title to an analysis piece by Charles Babington in today's Washington Post. Some quotes:

The Supreme Court's June 28 ruling let stand the main elements of DeLay's audacious plan. It began in 2002 with adding Republican control of the Texas legislature to the governorship, which gave the party full rein over the redistricting process. Then, over Democrats' objections, Texas Republicans immediately redrew the U.S. congressional district boundaries in ways designed to maximize their gains, only two years after the traditional once-a-decade redistricting had taken place.

Having previously stepped down from his House leadership post, DeLay left office after being indicted on charges related to raising money to promote the plan. But the GOP's dramatic gains remain, serving as a blueprint or an enticement to Democrats, if they decide to be so bold. Party leaders say there is not enough time to redistrict states for the November elections, but that a successful effort next year could give them a big boost in 2008 and 2010.

First, Democrats must compile a list of states where a DeLay-like strategy is feasible. It will be remarkably short. Several states assign the redistricting task to commissions, shielding the process from partisan control. Some states, such as Texas, are controlled by Republicans. Many others have divided government, in which neither party controls both the governorship and the two legislative chambers, making blatantly partisan redistricting impossible. Finally, some Democratic-controlled states have already carved out all the Democratic-leaning House districts they can, leaving no room for gains.

The result, redistricting experts say, yields perhaps four states where Democrats conceivably could try a mid-decade gerrymander comparable to that of Texas's: Illinois, North Carolina, New Mexico and Louisiana. In each one, however, such a move seems unlikely because of factors that include racial politics, Democratic cautiousness and even a hurricane's impact.

In Illinois, as in many other states, the current congressional map is the product of a bipartisan agreement to protect incumbents of both parties, election after election. Democrats, who hold 10 of the state's 19 House seats, control the legislature and hope to reelect Gov. Rod Blagojevich this fall. They possibly could gain another House seat or two in the 2008 elections by packing Republican voters into overwhelmingly GOP-leaning districts, the tactic that DeLay used against Texas Democrats.

But recent history suggests that they will demur. The current district lines have strong support in both parties, and Rep. Rahm Emanuel (D-Ill.) got nowhere last year with a bid to redraw them in retaliation for what happened in Texas. "I couldn't get enough fellow Democrats to see the benefits of that," said Emanuel, who chairs his party's campaign to elect more House members.

The story is similar in New Mexico, where some Democrats think an aggressive redistricting effort could reverse the GOP's 2-to-1 advantage in the three-member House delegation. The state's Democratic Senate president called for such a move in 2003, but Gov. Bill Richardson (D) seemed cool to the idea, and it never took flight.

In North Carolina, some Democratic partisans have urged party leaders to use their redistricting powers to reverse the GOP's 7-to-6 advantage in the House delegation. But several political currents seem to be running against that notion. Democrats hold a slim majority in the state House, and their speaker faces ethics allegations that reportedly leave him little stomach for a fiercely partisan showdown.

The push for more assertive gerrymandering "was viewed as something they didn't want to do politically," Price said. Moreover, any map revisions that might threaten North Carolina's two African American House members would likely upset black voters -- a key party constituency -- and run afoul of the Voting Rights Act. The 1965 law, designed to protect minority participation in politics, "is a real constraint" on redistricting options, Price said. "It doesn't impact the Republican Party the way it does Democrats."

Posted by Marcia Oddi on Wednesday, July 05, 2006
Posted to General Law Related

Ind. Law - More on golf carts

Although the ILB writes about the unitary executive and presidential signing statements and the like, one of the most searched for terms on this site is "golf carts."

Here is a WTHR 6 story from June 15th, headlined "Tipton To Consider Letting Stroke Victim Drive Golf Cart: Ordinance Proposal To Be Offered June 28" that I found while looking for a story I saw this weekend on Lebanon's golf cart ordinance - since I can't locate it, perhaps it was a rerun of the earlier June 8 WTHR report, blogged here.

That same ILB entry reports on a "proposed DNR rule permitting 'motorized carts' in state parks." Well, that rule is now official - here is a link to its text.

Posted by Marcia Oddi on Wednesday, July 05, 2006
Posted to Indiana Law

Ind. Decisions - More on Court of Appeals opinion on Carmel regulation of gravel-mining

"Court deals blow to Carmel mining law" is the headline to an Indianapolis Star story by Dan McFeely, just posted to the Star website. Some quotes:

The Indiana Court of Appeals dealt the city of Carmel a blow this morning in its battle against Martin Marietta's mining operation along Hazel Dell Parkway.

The court upheld a trial court's decision to grant a preliminary injunction against a local ordinance enacted in 2005, which would exert more control over the 50-year-old mining operation the city annexed in 2002.

The company, which has mined sand, gravel and industrial limestone at its site near 96th and Hazel Dell for more than five decades, claims the city overstepped its jurisdiction with its ordinance that would regulate permits and blasting levels.

Under the ordinance, the city would have the right to request blasting records and related operational information from mining companies.

Martin Marietta called the ordinance "vague" and asked the court for a temporary restraining order to stop it from taking effect. Martin Marietta said it could cost the company $1 million to comply with the ordinance.

Hamilton Superior Court Judge William Hughes ruled in favor of the mining company. The city appealed.

The ongoing dispute stems from the city's annexation of the mine in 2002. Neighboring subdivisions have been vocal about the intensity and frequency of mining blasts.

The ILB entry on the opinion, City of Carmel, Indiana v. Martin Marietta Materials, Inc., is available here (or simply scroll down to the next entry).

For background, start with this June 3, 2006 ILB entry about gravel pits in Carmel and Martinsville.

Posted by Marcia Oddi on Wednesday, July 05, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Appeals Court decides two, including Carmel gravel-mining case

In City of Carmel, Indiana v. Martin Marietta Materials, Inc., a 23-page opinion, Judge Robbs writes:

The City of Carmel, Indiana, (“Carmel”) appeals the trial court’s grant of a preliminary injunction in favor of Martin Marietta Materials, Inc. (“Martin Marietta”), enjoining enforcement of Carmel’s Ordinance No. D-1686-04 As Amended: An Ordinance of the Common Council of the City of Carmel, Indiana, to Regulate Mining Operations within the Corporate Boundaries of the City of Carmel (“Amended Ordinance”). Carmel disputes that Martin Marietta established the factors necessary for issuance of a temporary injunction by the trial court. As a matter of first impression, we decide that Carmel’s governmental immunity from damages liability results in irreparable harm due to the lack of an adequate legal remedy. Furthermore, Carmel may not invoke its general police power to circumvent the planning process as delineated by the legislature. Therefore, we conclude that the trial court did not err in granting the preliminary injunction, and we affirm.

Issue. Carmel raises two issues for review, which we consolidate and restate as whether the trial court properly issued a preliminary injunction prohibiting Carmel from enforcing the Amended Ordinance. * * *

Conclusion. Martin Marietta established that it would suffer irreparable harm due to inadequate remedies at law, that it had a reasonable probability of success on the merits, that a balancing of the harms supported issuance of a preliminary injunction, and that the public interest would not be thereby disserved. Thus, the trial court did not abuse its discretion when it granted a preliminary injunction against enforcement of the Amended Ordinance. We therefore affirm the trial court’s judgment.

In Estate of Dora W. Powers, a 14-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that as Indiana law now stands, an economic benefit is required for the existence of an insurable interest in the life of another. Here, we conclude that the trial court incorrectly found that John had an insurable interest in the life of the Decedent, his mother. However, the trial court’s determination that John possessed such an insurable interest does not affect the outcome of this case in light of the inapplicability of I.C. § 27-1-15.6-31 to the facts at hand.
I found the historical discussion of insuring the life of another in this opinion quite interesting. For example: "However, the necessity of an insurable interest in human life arises where a person takes out an insurance policy for his or her own benefit on the life of another. * * * With its roots in public policy, this long-standing rule was initiated as a means to forbid wagering contracts on human life."

Posted by Marcia Oddi on Wednesday, July 05, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court requires reasons for setting aside a verdict

You've seen it often in television courtroom dramas -- plaintiff wins after a hard fought trial, only to have the judge set aside the jury's verdict.

In Thomas M. Weida v. Donald and Kathy Kegarise, a 13-page, 5-0 opinion today (an appeal from Pulaski Circuit Court, Judge Michael Anthony Shurn), Chief Justice Shepard writes:

Setting aside a verdict because the trial court concludes that it is against the weight of the evidence is a weighty but well-recognized power of common law judges. Our rules require a judge who exercises this power to describe the reasons in some detail. When the trial court acts without giving reasons, the verdict should be reinstated on appeal. * * *

Conclusion. We direct reinstatement of the jury’s verdict.

Posted by Marcia Oddi on Wednesday, July 05, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - Computer Glitch Blamed by some for 'Secret Dockets' in Florida

The Daily Business Review, via Law.com, reports:

Top Florida court officials in Broward and Palm Beach counties now say that computer problems were responsible for the controversial removal of many civil court cases from the public record.

Broward Circuit Administrative Judge Thomas Lynch IV, whose own 2003 divorce was removed from public view, and Un Cha Kim, the chief operating officer of the Palm Beach County clerk's office, said last week that computer programming problems and a changeover in systems led to sealed civil cases being left off the public dockets.

The officials say their counties, which came under public criticism this spring for maintaining "secret dockets," are handling the problem differently.

"It was either one way or another," said Lynch, the administrative judge of Broward. He was referring to a computer system that was unable to seal a file while retaining it on the public record. * * *

Lynch said he thinks that all files that were taken off the public record should be returned to the public record.

After inquiries by the Miami Herald, Broward County reported 107 "super-sealed" cases -- cases that have been completely sealed -- are not part of the public record. Lynch said he had been told the computer problem has been fixed.

Broward Clerk of Courts Howard Forman was unaware of any computer glitch and was unable to confirm any before deadline. He maintained Thursday that the clerk's office was following judicial orders to seal cases when they removed them from public view. * * *

The Herald first reported the existence of secret dockets in Broward and Palm Beach counties in April. The Florida Constitution, through the Sunshine Amendments of 1992, guarantees access to the public to court and judicial records. There are exceptions, but none that allow for cases to be completely removed from the public docket, where even if a person searched for a party, no case would appear. * * *

While he didn't comment specifically on this issue, Jon Kaney, a lawyer with the First Amendment Foundation, a nonprofit organization dedicated to maintaining open government in Florida, was skeptical that technology is to blame. Even in electronic form, the public should be able to see the case number, he said.

Another issue raised in Palm Beach County initially was "what is a court record?" Sharon Bock, clerk of the Palm Beach County courts, questioned whether names and case numbers qualified as part of the court record to be sealed.

That issue was settled in February by a 4th District Court of Appeal panel, which ruled in the case A.D. and C.D. v. M.D.M. and Sharon Bock that case numbers are not confidential information even in cases that might otherwise be confidential such as adoptions.

"The record of what cases are pending is not the file and that should never be sealed," Kaney said.

"When they take a case off the [docket], they've gone way beyond sealing a file and that goes way beyond paper or electronic," he added.

Regardless of the move to electronic records, the public should have been able to know these cases existed.

Here is a list of earlier ILB entries containing the phrase "secret docket."

Posted by Marcia Oddi on Wednesday, July 05, 2006
Posted to Courts in general

Law - Same sex marriage rulings expected

"Top State Court's Ruling on Gay and Lesbian Marriage Is Awaited" is the headline to a story today in the NY Times. The lengthy story begins:

New York's highest court is expected to rule today on what one legal scholar called a contest between judicial hearts and minds, a parsing of legal texts and private sympathies: whether to permit gay and lesbian marriage.

There are several directions the Court of Appeals could take, lawyers said. The most dramatic would be a clear affirmation that same-sex couples have a constitutional right to marry, which would make New York the second state in the nation, after Massachusetts, to allow such marriages. In that event, the court could order the Legislature to rewrite the marriage law.

This backgrounder from Statetline.org, last updated June 7, 2006, begins:
Nearly half the states now outlaw or are poised to ban same-sex marriage in their constitutions, but at least three states – New Jersey, New York and Washington state – are a court order away from knowing whether they will join Massachusetts in legalizing gay weddings.

After hearing arguments in March 2005, the Supreme Court of Washington state is expected to rule any time now to uphold or overturn two lower court rulings in favor of same-sex marriage. It was the first state high court to tackle same-sex marriage since Massachusetts’ highest court issued its ruling legalizing gay unions in November 2003.

New York's highest court heard arguments on a similar lawsuit May 31, 2006, and New Jersey justices were briefed in February. Rulings in those states could come before the end of 2006.

A national debate over same-sex marriage has raged in courtrooms, in state legislatures and at ballot boxes across the country since Massachusetts began marrying same-sex couples on May 17, 2004, amidst street-party fanfare.

To head off potential court rulings like the one in Massachusetts, 20 states have written prohibitions on same-sex marriage into their state constitutions. The latest was Alabama on June 6, when 80 percent of voters approved the measure in a statewide referendum. At least six more states will hold statewide votes on same-sex marriage bans in November 2006: Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin. And more are in line with seven other states considering similar amendments (see side-bar).

Legal challenges seeking permission for gays and lesbians to marry are pending in nine states: California, Connecticut, Iowa, Maryland, Nebraska, New Jersey, New York, Oklahoma, and Washington.

Judges have ruled both for and against same-sex marriage in some of those cases.

MORE COMING - but ot today. No ruling was issued today by the NY court, despite the NY Times story.

Posted by Marcia Oddi on Wednesday, July 05, 2006
Posted to General Law Related

Law - Milwaukee and surrounding area spend $100 million in legal fees in 5 year period

The Milwaukee Journal Sentinel today reports:

Lawyer bills ate up close to $100 million in local tax dollars over the past five years in the five-county metro area, and legal spending by municipalities is on the rise, a Journal Sentinel analysis shows.

In many communities, even a portion of what cash-strapped school districts spent on lawyers would have been enough to pay for one or more teachers.

But the lion's share of the nearly $100 million, according to the analysis, was spent by cities, villages and towns. And their legal spending rose by 19% from 2001 to 2005.

"That's a lot of money for lawyers," said Mark Duff, a New Berlin School Board member and an officer with the non-profit Taxpayers Network. "If you're spending money on them, you're not spending it for police or fire or educating kids."

The newspaper's analysis covered the nearly 200 cities, villages, towns and school districts in Milwaukee, Racine, Ozaukee, Washington and Waukesha counties.

They were asked to provide the amount spent on legal expenses from 2001 through 2005.

Local governments reported spending more than $99 million on legal expenses during the period. The actual figure is likely closer to $100 million, however, because some of the expenditures were not available. Milwaukee Public Schools, for example, could not provide figures for the 2000-'01 and 2001-'02 school years. From 2002-'03 through 2004-'05, its annual legal expenses averaged more than $700,000. * * *

Despite pressure on local governments to cut spending, officials said most legal expenses simply cannot be avoided.

"If there are things that our instincts tell us we need legal guidance on," said Germantown schools Superintendent Victor Rossetti, "that's when we call the lawyers."

Officials say much of the money, whether spent on staff lawyers or on $150-an-hour private attorneys, could not simply be diverted to fill more potholes or hire teachers and police - at least not without a risk.

Posted by Marcia Oddi on Wednesday, July 05, 2006
Posted to General Law Related

Tuesday, July 04, 2006

Environment - "Tapping the Latent Power in What's Left Around the Barnyard "

On the front page of the Business section of today's NY Times is this story, headlined "Tapping the Latent Power in What's Left Around the Barnyard." This is interesting because it reports that conversion of manure to energy is becoming a big business, with utilities contracting for the gas produced. Some quotes:

In a sense, it is the ultimate renewable source of fuel. Weather anomalies can kill off corn crops, calm the winds, obscure the sun — but through rain or shine, gusts or stillness, cows and hogs and turkeys spew forth a steady stream of manure, one of nature's richest sources of methane, a principal component of natural gas.

And now, farmers and entrepreneurs are recognizing that this immutable fact can yield a steady stream of revenue and profit, too. Slowly, but steadily, they are replacing the malodorous lagoons used to treat the waste with machines that can wrest energy from excrement.

According to AgStar, a federal program that promotes the conversion of manure to energy, there are more than 100 anaerobic digesters — devices that create an oxygen-free atmosphere in which bacteria digest manure and release gas — operating in the United States today, with another 80 on the drawing boards.

"These are the only kinds of waste management systems that can actually put money in farmers' pockets," said Kurt Roos, program manager of AgStar.

There are a number of reasons for the new spotlight on what is called brown energy. Oil and gas prices have soared, even as environmentalists have sounded alarms about climate change. In the last two years, various state and federal agencies have subsidized purchases of digesters, since they capture methane — a potent greenhouse gas — before it escapes into the atmosphere. Many utilities operate in states that require them to include environmentally aware energy sources in their portfolios. They will often accept manure gas, since many farms have installed equipment to clean it.

In fact, more utilities are thinking of buying the gas outright. Pacific Gas and Electric has agreed to transport gas from a big digester that Microgy, a digester manufacturer, is building in California. Right now Microgy plans to sell the gas on the open market, but Robert Howard, vice president for gas transmission and distribution, said P.G.& E. may buy some gas itself. "This technology provides pipeline-quality gas and reduces carbon emissions, so of course we're in favor it," he said.

The environmental boons are many. According to Agstar, digesters are already keeping 66,000 tons of methane from escaping each year into the atmosphere, while generating enough energy to power more than 20,000 homes. * * *

The deals are struck in different ways. In most cases, farmers buy digesters and either use the gas themselves, sell it to a utility, or use it to power a generator that feeds electricity to the utility's grid. In another model, the manufacturer owns the digester and sells the gas. In those cases the farmers provide the manure and the land, and get the fertilizer, bedding and a cut of revenues from sales of gas. Last year, for example, Hunter Haven Farms in Pearl City, Ill., paid $960,000 — half of it subsidized by state and federal grants — for a GHD digester that processes waste from 600 dairy cows. Hunter Haven then pipes its methane into a generator, and sells the resulting electricity to Commonwealth Edison for 3.5 cents per kilowatt hour.

There is much more to this story. (Remember that the Times' stories are often unavailable to nonsubscribers after one week.)

Posted by Marcia Oddi on Tuesday, July 04, 2006
Posted to Environment

Ind. Courts - Thousands escape traffic fines when ticket writer doesn't come to court

"Thousands escape traffic fines when ticket writer doesn't come to court" reports Vic Ryckaert reports today in the Indianapolis Star:

Star reporters Amy Bartner and Vic Ryckaert gathered paper copies of Marion County traffic court dockets from September to February and totaled the number of traffic court cases and the number dismissed because a police officer failed to appear. The records were drawn from 239 court sessions that involved nearly 13,000 cases.
The story begins:
For thousands of motorists in Marion County, beating a traffic ticket is as simple as showing up in court.

Speeders, red-light runners and others who break the rules of the road have a better than 1 in 3 chance of seeing their citations dismissed because the officers who wrote their tickets will fail to appear in court, an Indianapolis Star analysis shows.

From September to February, 4,776 of nearly 13,000 traffic court cases, or 37 percent, were dismissed because an officer did not show up for the hearing. * * *

Marion County has the busiest of the state's 150 or so traffic courts, handling as many as 30,000 ticket cases a year. To keep up with all the citations and traffic-related criminal offenses it handles, the court sets its calendar months in advance. And with so many cases, a ticket gets one shot before a judge, and there is no chance to reschedule. * * *

[Capt. Gregory Bieberich, commander of the Indianapolis Police Department's traffic section] believes officers attend court more often than The Star found in its analysis. The Star's findings are flawed, he said, because of the limitations of the county's error-riddled computerized records.

He's seen officers punch over-time cards proving they were in court, he said, at the same time court records claim they were absent. "The county's record keeping system is prone to errors," Bieberich said.

But there's no doubt that each day dozens of traffic tickets are dismissed because officers fail to appear. * * *

[Master Commissioner Marc Rothenberg, who presides over the bustling courtroom at 10th Street and Post Road,] routinely warns those fighting their tickets that the burden of proof in traffic court is much lighter than one sees in a criminal case.

The state must prove only that it's likely the driver committed the offense. Lawyers say that's a very difficult burden for a regular motorist to overcome.

"There's really not much you can do unless you can prove the equipment is bad," said John Fierek, an Indianapolis attorney who works in traffic court. "It is an uphill battle to prove a machine wasn't calibrated properly or that the officer was aiming it at the wrong car."

Finding such evidence would mean scheduling depositions and hiring experts, Fierek said. A motorist bent on seriously fighting the ticket would easily end up paying much more in defense fees than the $150 fine.

Those who still fight the ticket after the officer shows up should be prepared to shell out more than $150 if the judge decides they've offered a lame excuse.
Earnestine Myles, 68, felt the judge's sting after she tried to argue her way out of a recent ticket for speeding in a school zone.

The Near-Northside resident said she was going the same speed as the officer driving beside her. "It was unfair for him to write me a ticket," Myles said. "If I was speeding, he was speeding." Rothenberg fined her $200. * * *

Indianapolis police officer John Haggard, an eight-year veteran assigned to patrol traffic on the Westside, said attending court is part of his job. "It's basically finishing up the case that you started," he said.

Haggard, whose primary duty is traffic, has scheduled days each month where he knows he will be in traffic court. Most people who fight a ticket show up just to see whether the officer is there, Haggard said. When they see the cop, Haggard said, many drivers go ahead and pay the ticket before court starts.

But he agrees that, for most drivers, going to court is a pretty good gamble. "If I got a ticket, I'd probably try it. Why not?"

Posted by Marcia Oddi on Tuesday, July 04, 2006
Posted to Indiana Courts

Ind. Courts - More on jury duty changes

"Skipping jury duty just got harder: New state rules end quirky exemptions" is the headline to a story today in the Fort Wayne Journal Gazette by Dionne Waugh. Some quotes:

As of this week, all of Indiana’s jury exemptions – from the political to the quirky – will be gone.

No longer will ferry boat operators, veterinarians, citizens older than 65 and Indianapolis Public Schools board members, among others, be automatically exempt from jury duty.

However, it will be a few months before Allen County sees the effect of the new law, which allows whole groups of people, including dentists, law enforcement officers, legislators, armed services personnel, elected or appointed government officials, firefighters and corrections officers, to opt out of serving on a jury.

The new law puts Indiana with a handful of other states leading the country because of the changes.

Allen County officials have been prepared since they learned in March that the law was a go, said Superior Judge Fran Gull, who helped write the new rules.

But because Allen County uses a two-tiered system to qualify potential jurors, the exemption effect won’t be instantaneous.

It works like this: Every few months, Allen County court staff mail out qualification documents, which include boxes that people can check for automatic exemption. When the paperwork comes back, it is run through a software system that automatically kicks out people who are exempt or don’t qualify. * * *

Gull also points out that people still must qualify to serve as jurors, such as being an Allen County resident at least 18 years old who can read and understand the English language.

For example, she said she knows some of the elderly fear they may be forced to serve even though they suffer from problems such as deafness.

“Well, if they can’t hear, they don’t qualify,” she said. The same is true for those who may be in a nursing home under someone else’s guardianship. “The elimination of exemptions has nothing to do with qualifications.”

The now-gone exemptions have their roots in Hoosier history.

“Back in the day, there were no doctors, only veterinarians, and if you pulled one (in for jury duty) you would be decimating a rural community (because) those were the ones who were making sure the flocks were healthy … and that’s what put food on the table,” Gull said. “That’s not the case anymore.”

And in the days without cars and bridges, ferry boat operators were the only ones who could get residents across the river.

“Those were critical professions. It was important they had some consideration from the court,” she said.

The measure, which failed twice before, will create a deeper pool of applicants to draw from as well as better representation on the juries, Gull said.

Posted by Marcia Oddi on Tuesday, July 04, 2006
Posted to Indiana Courts

Ind. Courts - More on: History made today in Vanderburgh County courtroom

Bryan Corbin of the Evansville Courier& Press follows up yesterday's story with a report today on how it went. a quote:

While one video camera on a riser filmed Dean's hearing inside, cameras from two other Evansville television stations and an Indianapolis station remained outside the courtroom. All got to share in the courtroom video, however.

A radio microphone inside also captured audio, which WIKY-104.1 FM news director Randy Wheeler shared with other media.

Wheeler, who is president of the Indiana Associated Press Broadcasters Association, said he has urged for years that Indiana courtrooms be opened to cameras and microphones, just as other government meetings already are.

"I've always felt people didn't understand a lot about the judicial system because they didn't have the same opportunity for audio, for pictures, that they get from the City Council, from the County Commission, from the School Board and all the rest. It's one-third of government that has not been adequately covered, out of their own decision-making," Wheeler said.

Posted by Marcia Oddi on Tuesday, July 04, 2006
Posted to Indiana Courts

Ind. Courts - Clark ponders adding 2 judges

Alex Davis of the Louisville Courier Journal reports today:

Clark County would get two new judges -- giving it a total of six full-time positions -- under a plan that could be put to a local vote as soon as next week.

Raymond "Monty" Snelling, a member of the County Council, said he hopes to introduce a resolution in support of the idea at the council's meeting Monday.

"Right now our courts are overloaded," he said in an interview. "We need to step back and look at every option." * * *

According to the Indiana Judicial Service Report, Clark County's four elected judges and its part-time magistrate had the second-heaviest caseload of the state's 92 counties last year.

The only county with a bigger load was Howard, which got a new judge in January.

Similar figures show that Clark County's judges were the third-busiest in Indiana in 2004, behind Howard and Floyd counties.

The caseload information is based on the number of available judges and the number of cases, with certain serious crimes, such as murder, being given greater weight.

There have been several attempts in recent years to expand court resources in Clark County. In late 2004 an emergency expenditure of $20,000 was approved to clear up a paperwork backlog.

Posted by Marcia Oddi on Tuesday, July 04, 2006
Posted to Indiana Courts

Not law but fun - Today's cardboard boat regatta on Cedar Lake

This story today in the Munster (NW Indiana) Times, reported by Vanessa Renderman, comes complete with a great photo labeled "The Fish-ee-swaa is a 14-foot cardboard boat the Wilson family built with the help of neighbors to enter in today's cardboard boat regatta on Cedar Lake." The story begins:

SCHERERVILLE | This big fish story is true.

Connie and Bob Wilson have a 14-foot-long yellow fish in their garage.

Named Fish-ee-swaa, the cardboard fish is held together with liquid nails, tape and wires, Connie Wilson said.

It's one of the water vessels that will compete in today's cardboard boat regatta in Cedar Lake.

This is the third year the Wilsons will participate in the annual competition. They've won a trophy the first two years.

Trophies go to best design, fastest race time and most people on a boat. The Anchor Award goes to the cardboard boat that sinks first, said Mary Joan Dickson, secretary of Cedar Lake's Summerfest.

Lifeguards and a dive team will be on site during the competition that sends cardboard boat captains steering around two buoys on the lake, Dickson said.

Sounds like a great way to spend the 4th!

Posted by Marcia Oddi on Tuesday, July 04, 2006
Posted to General News

Monday, July 03, 2006

Court - Linda Greenhouse review of the Supreme Court term

Don't miss it. The lengthy NYT article begins:

WASHINGTON, July 1 — As the dust settled on a consequential Supreme Court term, the first in 11 years with a change in membership and the first in two decades with a new chief justice, one question that lingered was whether it was now the Roberts court, in fact as well as in name.

The answer: not yet.

Chief Justice John G. Roberts Jr. was clearly in charge, presiding over the court with grace, wit and meticulous preparation. But he was not in control.

Posted by Marcia Oddi on Monday, July 03, 2006
Posted to Courts in general

Ind. Courts - History made today in Vanderburgh County courtroom

Bryan Corbin of the Evansville Courier& Press writes today:

History was made today inside a Vanderburgh County courtroom when news cameras were allowed to photograph an Indiana court proceeding: a man pleading guilty in another man’s death.

Cameras had been banned in Indiana courtrooms for more than 50 years, until a recent Indiana Supreme Court order that allowed them to photograph court proceedings on an experimental basis.

Photojournalists from the Evansville Courier & Press and WFIE-Channel 14 got to document the hearing today of John R. Dean, who entered guilty pleas in the 2004 death of Lloyd Goad. Other television stations got to pick up the video feed via a media-pool arrangement.

Originally charged with murder, Dean pleaded guilty to a lesser charge of voluntary manslaughter, a class B felony, as well as to burglary and theft charges. Dean, 40, will be sentenced Aug. 9.

Judge Wayne Trockman, who presided over today’s hearing, is one of a handful of judges in the state participating the cameras-in-the-courtroom pilot project. His was the first courtroom to allow cameras inside while court was in session.

“I like the idea of the experiment,” Trockman said after the hearing. “Everything here should be transparent. Having cameras in the courtroom brings this home and makes it easier for most people who can’t be here – unless they get the sometimes-unfortunate jury notice to appear. I think only good things can come of this.”

Trockman noted that the reason cameras had been banned for 50 years was the concern that they would be disruptive.

“In my opinion, it was obvious today that there were no disruptions,” the judge said. * * *

For a full report of today’s historic case, read Tuesday’s Evansville Courier & Press.

Thanks to the reader who called my attention to this just posted story, noting that Evansville was on a slightly faster timetable than South Bend (see earlier story below).

Posted by Marcia Oddi on Monday, July 03, 2006
Posted to Indiana Courts

Ind. Decisions - Another take on David Jeffrey Lee v. State of Indiana

The Fort Wayne News-Sentinel's Leo Morris, in the paper's "Editorial Briefs" column today, writes on the Supreme Court's decision last Thursday in the case of David Jeffrey Lee v. State of Indiana (see ILB summary here - last case). Morris writes:

When can we expect a right to privacy?

Nobody should feel too sorry for photographer David Jeffrey Lee of Highland, who was dealt a blow by the Indiana Supreme Court last week. He had been charged with voyeurism for secretly videotaping his female clients while they changed clothes. He’s a creep, and society would benefit from his legal chastisement.

But the case raises an interesting issue of privacy rights. It began when Lee’s fiancee, who shared his home but was not usually allowed in his bedroom or basement, discovered 16 videotapes in the basement and watched three. She took them to police. After viewing them, officers went to the home and obtained the girlfriend’s and Lee’s mother’s permission to search. They then seized more than 360 videotapes and charged him. The case was put on hold while Lee appealed, saying the seizure was unreasonable because his fiancee wasn’t supposed to be in the basement and didn’t have permission to touch the tapes. The Indiana Court of Appeals agreed, but the Supreme Court didn’t.

There are circumstances in which we have an expectation of privacy and circumstances in which we don’t. Sometimes, the lines are blurry, as Indiana courts have now demonstrated.

Posted by Marcia Oddi on Monday, July 03, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - History will be made Wednesday in St. Joseph Circuit Court.

Tim Harmon of the South Bend Tribune writes today about that cameras are "set to make history in S.B. courtroom." Some quotes:

The Fourth of July 2006 is not just about liberal, new fireworks laws in Indiana. The American tradition of open-court proceedings is part of what we celebrate this week.

It's fitting that, if all goes according to plan, history will be made Wednesday in St. Joseph Circuit Court.

With Judge Michael Gotsch presiding, a videographer representing all three television stations and a Tribune photographer will shoot the first news images ever from a St. Joseph courtroom. You'll be able to see some of those video clips and photos on WSBT-TV and other stations and on our Web site later Wednesday, and in Thursday morning's Tribune. * * *

In-court photojournalism with various degrees of restriction is commonly allowed in most states, including Michigan. The concept has been argued in Indiana longer than the Cubs' pennant drought.

For the 18-month test period in Indiana, participating judges must secure the consent of both parties to allow taping and photography. (There is a long list of types of people who can't be photographed, starting with jurors.)

Posted by Marcia Oddi on Monday, July 03, 2006
Posted to Indiana Courts

Ind. Law - Star editorial urges "obvious solution" for redistricting

An editorial in today's Indianapolis Star states: "Opening door to perpetual redistricting makes need for nonpartisan map-making all the more urgent." It concludes by urging the General Assembly to pass a bill to create a redistricting commission:

The obvious solution is to turn over political map-making to nonpartisan or bipartisan commissions that can draw competitive districts respecting traditional township, city and county lines.

Gov. Mitch Daniels supports such a solution. The Indiana House in the last session approved a bill to create a commission, but the legislation died in the Senate. House Republicans recently vowed to renew that effort next session. Voters should demand a similar pledge from every candidate, regardless of party affiliation.

I restated my thoughts about such an approach in this entry Saturday:
There are valid concerns about the redistricting bill. It is ambiguous. It may well be unconstitutional. It could be repealed next year, one General Assembly can not bind the next.

A redistricting commission is an excellent idea, but it has to be done right -- by constitutional amendment. Going the constitutional route would solve each of the above problems.

For "nuts and bolts," see "My take for Indiana" at the conclusion of this entry yestrday.

Posted by Marcia Oddi on Monday, July 03, 2006
Posted to Indiana Law

Ind. Deecisions - Retroactive property tax relief to three Indiana University fraternities ruled unconstitutional

Mary Beth Schneider of the Indianapolis Star writes today on the Indiana Supreme Court's decision last Friday in the case of Alpha Psi Chapter of Pi Kappa Phi Fraternity, Inc. v. Auditor of Monroe County (see last Friday's ILB entry on the decsion here.) Some quotes from the story:

The Indiana Supreme Court has ruled the legislature violated the state constitution when it passed a law in 2003 giving retroactive property tax relief to three Indiana University fraternities.

"The Indiana Constitution prohibits special laws which grant privileges to a few people that are not available to others," the court said in the 4-1 decision. "In this case (legislators) exempted three taxpayers, after the fact, from tax deadlines applicable to everyone else."

The legislature did the same thing in this year's session, including in a major property tax relief bill special retroactive tax breaks for a Zionsville youth soccer league and a Butler University fraternity that hadn't filed the proper tax credit forms.

Chief Justice Randall Shepard, in his opinion rejecting the help for the Indiana University fraternities, wrote that "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."

However, Justice Frank Sullivan dissented, saying the court was overstepping its bounds and interfering in the legislative process. He noted that the court had upheld other laws that treat some people differently, including the riverboat gambling law that applied to some counties but not others.

"They passed the Court's muster only because the Court found that unique circumstances rationally justified them," Sullivan wrote. "When the Court operates in this way, it is performing a legislative and not judicial function."

The Indiana Daily Student also has a story on the decision.

Posted by Marcia Oddi on Monday, July 03, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Law - New lifetime gun permit law featured

The Lafayette Journal and Courier focuses today on Indiana's new lifetime gun permit law, in a story by Sophia Voravong. Some quotes:

A new state law that allows Hoosiers to seek a lifetime permit to carry a handgun -- rather than reapplying every four years -- could mean more work for local law enforcement to ensure that future criminals don't slip through the cracks.

But the legislation, which took effect Saturday, is being touted as a time-saver for Indiana citizens who can now choose between the two options.

"It's going to be a lot faster with a more complete, thorough check," said Dick Fidler, who owns Lafayette's Flat Creek Range, a shooting range and gun retailer. "It's good, it's convenient. But I think they also need to monitor and see 'What's going on with this person?' Maybe run checks at random to make sure nothing comes up."

House Bill 1176, approved in a 78-21 vote by the Indiana General Assembly and signed into law by Gov. Mitch Daniels earlier this year, also includes plans for a Web-based application process. Language in Senate Bill 54 also awards lifetime permits. [See Note below.]

Deputy chief John Dennis of the Lafayette Police Department said circumstances that would cause a handgun permit to be revoked include convictions for felonies or domestic battery, or mental health issues.

This places more responsibility on his officers to check whether a person they arrest or encounter in such instances is licensed to carry, he said. Checks can be done from an officer's squad car. * * *

In any given week, as few as none or as many as 10 people apply for a permit to carry a handgun through the Tippecanoe County Sheriff's Department.

During the process, a local investigation, which includes fingerprints, is done; information and a recommendation is then sent to the Indiana State Police. A second background check is done at that state level before a licensed is issued.

The same steps were followed for renewal applications, whether or not a license had expired, said Gloria Andrews, the sheriff's department's firearms clerk.

"With the four-year ones, backgrounds were ran every time they renewed. One thing I wonder is, how are they going to check people for backgrounds?" she said.

Sheriff's Maj. Tracy Brown sought that answer this past week from the state police. He said when prosecutors enter information for a person convicted of any crime that could result in the loss of a license, his or her name and other identifiers will be cross-checked with a firearms database.

A hearing will then be held to determine whether the person's license should be revoked, he said.

Andrews said she received few applications in the weeks leading to July 1, possibly because people were waiting for the new law to take effect.

She still expects some will apply for four-year permits, such as older residents or Purdue University students who plan to move from the area.

"For a lot of people, they're glad for the fact that they don't have to come in every four years," Andrews said. "That'll be wonderful. It's the convenience of doing it at once." * * *

House Bill 1176 also means significant changes for gun retailers. Now, checks will be done through the National Instant Background Check System maintained by the FBI rather than state police.

But it also means dealers will have to forward a copy of the firearms transaction form -- which includes a person's Social Security number, date of birth, place of birth and other personal information -- in the mail to state police. Before, checks could be done over the telephone.

Note: SB 54 never became law, so this mention is somewhat confusing.

Posted by Marcia Oddi on Monday, July 03, 2006
Posted to Indiana Law

Sunday, July 02, 2006

Environment - Honda plans the Greensburg plant to "have the smallest environmental footprint of any Honda auto plant in North America"

This encouraging news from the June 28 Honda press release announcing the new automobile manufacturing plant in Greensburg, Indiana:

Honda will make a significant commitment to limit the environmental impact of the new Indiana plant. Already, every major Honda plant in North America has met the ISO 14001 international environmental management standards except the new transmission plant in Georgia that opened in May 2006, which is now working toward certification. The Indiana plant will employ advanced methods of energy and emission reduction with the goal to become a "zero waste to landfill" factory.

"Our commitment to the environment is not based just on regulations or testing standards," said Akio Hamada, president of Honda of America Mfg. Inc., and head of Honda's manufacturing operations in the North America Region. "Our goal is that this plant in Indiana will have the smallest environmental footprint of any Honda auto plant in North America."

Posted by Marcia Oddi on Sunday, July 02, 2006
Posted to Environment

Law - More on real estate brokers vs. discount brokers and Indiana's new law

My bad. It wasn't until lunch today, as I was going through stacks of unopened newpapers (still in the little plastic delivery bags I use during dog walks) that I spotted a story in the June 17th issue of the Wall Street Journal titled "Real-Estate War Traps Consumers in the Middle: Full Service Brokers' Tactics to Rebuff Discount Rivals Sometimes Hurt the Consumer."

Fortunately, this story has been republished in a number of freely available online sources, including Yahoo Finance. Access it here. The story begins:

In the fight between traditional real-estate brokers and their discount rivals, some consumers are getting caught in the crossfire.

With house prices surging in recent years, a number of people are seeking ways to cut commission costs, which are based on a percentage of a home's selling price. More home buyers are turning to discount brokers that offer to rebate a portion of the commission if you are willing to do much of the work in finding a home. And sellers are hiring discounters who, for a flat fee of a few hundred dollars, will include your home in a multiple-listing service, a database on houses for sale used by agents.

About 11% of home sellers last year used "alternative" brokers (ones offering flat fees or other forms of discounting), up from less than 2% in 2002, according to surveys by Real Trends, a publishing and consulting firm.

The competition from discounters has prompted some traditional brokers to use a variety of tactics to fight back, and this can end up hurting consumers. The controversy will get a public airing Monday when the Consumer Federation of America, a nonprofit research and advocacy group, releases a report on "how the real estate brokerage industry functions as a price-setting cartel."

Well, "Monday" was June 19th, so the CFA report is available now. The Washington Post published an article about the CFA report on June 20th. Some quotes:
A national consumer advocacy group yesterday condemned real estate trade groups as a "cartel" that sets prices and blocks competition to maintain its traditional commission structure and to keep discount firms from gaining market share.

The commission system is "cockamamie," said Stephen Brobeck, executive director of the Consumer Federation of America. Even some inexperienced real estate agents are charging a 7 percent sales commission, he said -- an amount he likened to the cost of a new car. And he questioned why the brokerage fee on an $800,000 houses is four times higher than that for a $200,000 house, saying the work involved is basically equal.

The District-based federation applauded efforts by government antitrust regulators to put pressure on the trade groups to change the way they do business, but Brobeck said no one had yet found the "magic bullet" to reduce costs. He said consumers have been left on their own and urged home buyers and sellers to negotiate over the sales commissions they are charged and make sure it is clear who is representing whom, what each agent will be paid and for what services. * * *

The federation's report came as the Michigan legislature prepares to enact rules sought by the state real estate industry to define the responsibilities of agents in ways that critics say would favor traditional firms and make it more difficult for discount and Internet-based firms to compete. The Realtor association in Michigan says the rule change is needed because some of the new firms are offering consumers poor service, leaving traditional real estate agents scrambling to keep deals together.

In October, federal antitrust regulators at the Justice Department and the Federal Trade Commission wrote to Michigan legislators urging them to shelve the proposed rule. The agencies said it "would reduce consumer choice and cause Michigan consumers to pay more for real estate brokerage services," according to a Justice Department statement.

The ILB reported on the Michigan effort in this March 22nd entry. The last paragraph is a quote from a release from the FTC and Justice referencing a letter earlier sent to a Michigan Senate Committee. The release begins:
The Federal Trade Commission and U.S. Department of Justice (DOJ) issued a joint letter today urging the Michigan Senate Committee on Economic Development, Small Business, and Regulatory Reform to reject House Bill 4849 as currently drafted, as the legislation would reduce consumer choice and cause Michigan consumers to pay more for real estate brokerage services. According to the letter, the bill would change current law to restrict the ability of licensed real estate brokers to offer consumers the option to pick the specific brokerage services they want.
This certainly sounds a lot like our Indiana law.

The CFA's press release has a list of five factors under the heading "How Traditional Brokers Stifle Competition." Number two is:

The anti-rebate and minimum service laws, which traditional brokers have persuaded many state legislatures to pass, are designed to restrict service and pricing options. So are more subtle forms of discrimination by traditional brokers who do not show listings of discount or fee-only brokers or who make access to property listings difficult for exclusive buyer brokers or rebaters.
Here is the report itself.

Here, from last Sunday
, is the ILB's most recent substantive entry on the issues raised by the new Indiana law, along with links to earlier entries.

Posted by Marcia Oddi on Sunday, July 02, 2006
Posted to General Law Related

Ind. Law - Lilly's general counsel featured

Today's Indianapolis Star Business Section features Eli Lilly General Counsel Robert A. Armitage. Some quotes:

The 58-year-old Armitage heads Lilly's 230-person legal division, which in this litigation-happy age plays a role as critical to Lilly's fate as its scientists or sales force. * * *

In Armitage, Lilly has a seasoned lawyer who is perhaps best-known for his risk-taking.

Mike Kirk, executive director of the American Intellectual Property Law Association, sees Armitage as someone unafraid to dive into new legal waters.

"There are some people who view Bob as a little ahead of the curve. You might be uncomfortable with some of that thought process," he says. Kirk, who works with Armitage lobbying Congress over patent law reforms, also notes Armitage's ability to remember the fine points of obscure legal cases, and his suave demeanor.

"His ability to debate and speak on his feet and do it in a very unassuming, nonaggressive way, but very effective, is almost without parallel."
That reputation eventually got Armitage a spot on the legal team trying to defend Lilly's Prozac patent in the late 1990s. From there, Armitage was hired full time by the drug maker that once spurned him.

Steven G. Davis, a former Lilly patent attorney, said Armitage's hiring seemed to reflect an effort by Lilly's leadership to shed its conservative managerial ways and become more aggressive.

"I don't consider him to be a conservative attorney," said Davis, now principal of the Concord, Mass., law firm of Hamilton Brook Smith & Reynolds.
Armitage found himself on the firing line, serving as general patent counsel during the surprise Prozac appeals court decision in 2000 that reversed the lower court's ruling in Lilly's favor.

The federal appeals judges struck down Lilly's patent, saying Lilly illegally patented Prozac twice. They cited an obscure conflicting patent that had been issued well before the main patent.

Losing the case didn't seem to hurt Armitage's standing at Lilly. While calling the Prozac patent defeat a "huge disappointment," Armitage says Taurel and Lilly's board concluded the appeals court ruling lacked good precedent and no amount of lawyering could have helped Lilly win.

"There is nothing even today I could think of . . . that would have changed the outcome," he says.

In January 2003, Armitage was promoted to general counsel and senior vice president, succeeding Becky Kendall. Last year his salary, bonus, stock award and other compensation totaled $2.88 million, making him the company's fifth-best-paid executive.

Posted by Marcia Oddi on Sunday, July 02, 2006
Posted to Indiana Law

Law - "Farm Program Pays $1.3 Billion to People Who Don't Farm"

The Washington Post has a major story today reporting that:

Nationwide, the federal government has paid at least $1.3 billion in subsidies for rice and other crops since 2000 to individuals who do no farming at all, according to an analysis of government records by The Washington Post. * * *

Most of the money goes to real farmers who grow crops on their land, but they are under no obligation to grow the crop being subsidized. They can switch to a different crop or raise cattle or even grow a stand of timber -- and still get the government payments. The cash comes with so few restrictions that subdivision developers who buy farmland advertise that homeowners can collect farm subsidies on their new back yards.

The payments now account for nearly half of the nation's expanding agricultural subsidy system, a complex web that has little basis in fairness or efficiency. What began in the 1930s as a limited safety net for working farmers has swollen into a far-flung infrastructure of entitlements that has cost $172 billion over the past decade. In 2005 alone, when pretax farm profits were at a near-record $72 billion, the federal government handed out more than $25 billion in aid, almost 50 percent more than the amount it pays to families receiving welfare.

The Post's nine-month investigation found farm subsidy programs that have become so all-encompassing and generous that they have taken much of the risk out of farming for the increasingly wealthy individuals who dominate it.

The farm payments have also altered the landscape and culture of the Farm Belt, pushing up land prices and favoring large, wealthy operators.

The system pays farmers a subsidy to protect against low prices even when they sell their crops at higher prices. It makes "emergency disaster payments" for crops that fail even as it provides subsidized insurance to protect against those failures.

And it pays people such as Matthews for merely owning land that was once farmed.

This lengthy report comes with a number of side-bars, including an amazing interactive map of the U.S. "This map shows each county that received the payments in the past calendar year and the program's 10 largest recipients in each county, according to payment records obtained by The Washington Post from the U.S. Agriculture Department as of February 2005."

Using the map, you can key in on any Indiana county and see the names and amounts of the 10 largest recipients. The color key indicates that no Indiana county recipients' totals were more than $20 million last year, although this looks to be the case in a number of Illinois counties. Indiana's two higest subsidy counties:

White County, Indiana, Total $10.2 million
Top recipients 2005:

Jasper County, Indiana, Total $10.6 million
Top recipients 2005:

How did the Post arrive at these names? This article explains:
The 1996 Freedom to Farm Act contained a provision that allowed landowners or tenant farmers to receive an annual payment even if they planted no crops. Six years later, the federal government tried to measure how much of that money, now known as direct and countercyclical payments, went to those who did not farm.

The conclusion: Its data were insufficient to allow for an estimate.

The Washington Post sought on its own to document the amount. The newspaper interviewed individual landowners and analyzed county production records, government surveys of farmers, the Census of Agriculture and a database of 217 million payment records dating to 1990.

Virtually all working farmers who receive the annual payment also receive other subsidies that are related to their farm's production, including disaster payments and price supports.

To find individuals who collect the annual payment even though they do not farm, The Post looked for those who had received that money but claimed none of the other subsidies over six years. Those who fell into this category collected $1.3 billion over the six-year period, about 3 percent of the total.

That figure excludes payments to landowners who agree not to farm as part of the government's "soil bank," now called the Conservation Reserve Program.

Note: My emphasis. The Post story is not about farmers who also collect subsidies; it is about people who collect subsidies who do not farm - people who own property that was once farmed.

Posted by Marcia Oddi on Sunday, July 02, 2006
Posted to General Law Related

Ind. Law - Jeffersonville's campaign finance law

The Fort Wayne News-Sentinel ran this AP report yesterday that begins:

JEFFERSONVILLE, Ind. - A local campaign-finance ordinance that prohibits recent large city contractors from giving more than $200 to a candidate in a single year may not hold up in court.

The ordinance adopted Friday states that "no person who has done business with the city in the preceding four years or is seeking to do business with the city shall make contributions exceeding $200 in a year in which a candidacy occurs."

If Mayor Rob Waiz signs the law, it would take effect about 30 days after being published in a local newspaper.

Both Waiz and City Attorney Les Merkley, however, said they had concerns over whether the ordinance is legal.

Merkley said he isn't sure the council has the authority to adopt such a measure. He said he has requested a legal opinion from the Indiana attorney general's office to make sure the local law will hold up in court.

Even the measure's main sponsor says the wording of the ordinance may have to change. As it now stands, the law allows an individual or a company to make a large donation and then receive a large city contract as long as the donor had not done local government work in the previous four years.

Councilman Keith Fetz, the measure's main backer, said he plans to offer an amendment that would restrict donors from doing large amounts of work for four years before or after they donate more than $200.

Despite the wording problem, he said the law helps put all candidates on a level playing field. The law's intent is to prevent large donations being made in return for city business.

Posted by Marcia Oddi on Sunday, July 02, 2006
Posted to Indiana Law

Has the Fort Wayne Journal Gazette dropped its editorial page?

Apparently, as I can locate no link on their web site.

[Update, Sunday afternoon] The link is back now.

Posted by Marcia Oddi on Sunday, July 02, 2006
Posted to General News

Saturday, July 01, 2006

Law - The Texas redistricting decision

Linda Greenhouse's wrote in the NY Times Thursday, in a story headlined "Justices Uphold Most Remapping in Texas by G.O.P.":

The ruling also cleared the way for other states to join Texas in adopting the approach that was challenged in the case: setting aside the tradition of redrawing Congressional districts only after the once-a-decade census, instead using a change of political control in the state governments as reason to reshape their maps. But there was no indication that there would be any rush to do so. * * *

With only Justice Anthony M. Kennedy joining both parts of the decision, the court looked in two directions in its most important voting rights case of the decade, rejecting the statewide gerrymandering claim brought by Democrats and other plaintiffs while accepting the Voting Rights Act challenge in southwestern Texas, brought by the Mexican American Legal Defense and Educational Fund. The case produced six separate opinions, a total of 123 pages.

On the gerrymander question, only two justices, John Paul Stevens and Stephen G. Breyer, found the Texas plan completely invalid, calling it a violation of "the state's constitutional duty to govern impartially."

Justice Kennedy's opinion for a plurality of justices — on two sections of the opinion he spoke only for himself — kept open the theoretical possibility that a partisan gerrymander might someday be found unconstitutional. But that prospect appeared remote. Despite finding that the Texas Legislature appeared to have acted "with the sole purpose of achieving a Republican congressional majority," Justice Kennedy said the case did not provide a "workable test" for deciding "how much partisan dominance is too much." * * *

Justice Kennedy's rejection of the statewide gerrymander challenge, brought by Texas Democrats and others, had the support of a majority of the court for his conclusion, but not for his analysis.

Justices Antonin Scalia and Clarence Thomas agreed because they believe, as they said in a case from Pennsylvania in 2004, that claims of partisan gerrymandering were categorically invalid and could never be considered by a federal court. * * *

Justices Souter and Ginsburg agreed with one relatively minor part of Justice Kennedy's analysis, his rejection of the argument that a mid-decade plan that relied on census data from the beginning of the decade, not taking account of inevitable population shifts, violated the constitutional requirement of one person one vote.

But on the more general question of how to assess a redistricting plan for impermissible partisanship, these two justices said there was "nothing to be gained" by revisiting an issue on which the court was deadlocked. They said they would keep the issue alive for future cases but would not express a view now.

With only Justices Stevens and Breyer voting to invalidate the Texas plan as an invalid gerrymander, that left the vote on the gerrymander part of the opinion at 5-to-2-to-2.

Here is the NY Times link to the opinion, LEAGUE OF UNITED LATIN AMERICAN CITIZENS et al. v. PERRY, GOVERNOR OF TEXAS, et al. [LULAC v. Perry], lia Findlaw.

Charles Lane and Dan Balz write for the Washington Post:

Seven justices rejected at least part of the opponents' broadest contention: that the entire Texas plan is unconstitutional because the legislature rewrote a previous court-drawn map, three years after the most recent census, out of nothing more than a desire for Republican advantage.

The seven justices gave widely varying reasons for rejecting the constitutional challenge, and the court did not quite say that no such challenge could ever succeed.

But with six justices producing 123 pages of opinions, without any five of them able to agree on how to define an unconstitutional gerrymander, politicians of both parties said that the ruling leaves the door wide open to attempts to copy the DeLay strategy in other states.

"Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen," said Rep. Rahm Emanuel (Ill.), chairman of the Democratic Congressional Campaign Committee. "That's the gift that the Supreme Court and Tom DeLay have given us." * * *

The main deterrent to gerrymandering could be the sheer political bloodiness of redistricting battles. In Texas, the GOP's plan was enacted after months of drama in which Democratic legislators twice fled the state in efforts to prevent it from being voted on.

"It's a traumatic thing to go through," said Benjamin L. Ginsberg, former general counsel at the Republican National Committee. "Even if there are a bunch of seats on the table, if you've got a governor and legislature that have a program they want to put through, it really does disrupt the rest of the legislative program."

From David G. Savage of the LA Times:
The Supreme Court gave politicians legal license Wednesday to aggressively redraw election districts to benefit the party in power, as it upheld the mid-decade redistricting plan engineered by former House Majority Leader Tom DeLay and other Texas Republicans.

By clever line-drawing, DeLay and the Texas Legislature — with both houses newly under GOP control in 2003 — remade its delegation in Congress, turning a 17-15 Democratic majority into a 21-11 Republican majority in 2004.

The bold move signaled an escalation in partisan warfare.

Before, the redrawing of electoral districts had been a once-a-decade battle that followed the release of new census numbers. Under the Constitution, states are required to adjust district lines to account for population changes. Wednesday's ruling means they may redraw the lines whenever they choose, as long as they do not violate voting rights laws.

Legal experts and political strategists said the ruling would encourage Republicans in other GOP-dominated states to redraw their districts to gain more seats.

It is not clear whether Democrats will be able to do the same. In the ruling, the court emphasized that the Voting Rights Act generally forbade splitting up blocs of minority voters. That makes it harder to create more Democratic districts.

Mary G. Wilson, president of the League of Women Voters, called the decision "extremely disappointing," saying it would encourage politicians to become serial mapmakers. "We now can expect an even more vicious battle between the political parties as they redraw district lines every two years for partisan gain," she said.

The partisan nature of redistricting has inspired efforts to take the process out of the hands of lawmakers. Last year, California Gov. Arnold Schwarzenegger proposed to give a panel of retired judges the task of redrawing electoral districts, but voters rejected the idea. * * *

In the past, the Supreme Court has struck down "racial gerrymandering" and said the Constitution generally bars officials from making decisions based on race.

Politics is another matter, and although many Supreme Court justices have voiced unease over brazenly partisan gerrymandering, they have never struck down a redistricting plan as too partisan.

On Wednesday, a five-member majority said DeLay's plan, even if it were drawn for a purely partisan purpose, did not violate the Constitution and its guarantee of equal protection under the law.

The ILB has had a slew of entries on the topic of "redistricting" (use the search box to find them). This one, from Oct. 24, 2005, quotes from a Washington Post editorial:
Modern redistricting is a travesty. Politicians, using powerful computers, design districts that all but guarantee victory to one side or another. Sure, voters can go through the motions on Election Day, but few races are more than fictions. Sometimes the process is rigged to protect incumbents, sometimes to oust them, but maximizing competition and voter choice is never the goal when politicians get to draw the districts in which they or their friends will run. The result contributes to political polarization, since heavily Democratic districts tend to elect people far more liberal than average while heavily Republican districts tend to elect people far more conservative.
Well, there we are -- the Supreme Court has just said there is nothing wrong with redistricting for political advantage, even in mid-decade. So that leaves it up to us in each state.

The same Oct. 24, 2005 ILB entry links to a NY Times Magazine article titled "Who Should Redistrict?". The article explains that a commission may be the way to go, but there are infinite complexities to redistricting, even with commissioners with the most noble of intentions.

The drawing of legislative boundaries is one of the most politicized and corruptible practices in American-style government, and few people will say they approve of the gerrymandering it has unleashed. Boundary-rigging infamously kept blacks from gaining political power in the South. (One Mississippi district, mapped in the late 1870's with the single purpose of preventing the re-election of a black congressman, was 500 miles long and 40 miles wide.) In the early part of the 20th century, rural lawmakers held onto power by simply ignoring their obligation to draw new boundaries as people migrated to the cities and populations shifted, thus denying the swelling cities the political representation their numbers warranted.

The passage of the Voting Rights Act in 1965 and various rulings by the Supreme Court curtailed such egregious gerrymandering, but the practice endures -- sometimes to favor incumbents, sometimes to favor one political party over the other. Lawmakers now use finely tuned demographic information and advanced computer programs to create ''safe but slim victory margins in the maximum number of districts, with little risk of cutting their margins too thin,'' as the Supreme Court justice Stephen G. Breyer wrote last year in a dissenting opinion in a gerrymandering case, Vieth v. Jubelirer. That is what happened in California, where the deal worked out between the two parties created safe seats for incumbents. There was also, of course, the spectacle two years ago in which Tom DeLay, then the Republican majority leader in the House, orchestrated a mid-decade partisan gerrymander in his home state of Texas, which Democratic lawmakers tried to thwart by fleeing to Oklahoma and New Mexico. They failed, and of the seven incumbents defeated in Congress in 2004, four of them were Texas Democrats who had been placed in the newly rigged districts.

But while it's easy to make a case against gerrymandering, it's much harder to say how districts should be drawn. Most states require that district boundaries be revisited every 10 years, after the release of new census data and the reapportionment of the country's Congressional seats. The creation of contiguous districts is the most widely accepted and uncontroversial criterion. Every state requires contiguity, and in 1842, Congress passed the first federal law that mandated the drawing of contiguous Congressional districts. A few other rules apply: the Supreme Court decisions of the 1960's forced Congressional districts to be roughly equal in population. The Voting Rights Act also prohibits ''retrogression'' in minority voting rights in certain states and the diluting of the political strength of minority communities anywhere. But beyond these piecemeal and often vague criteria -- contiguity, after all, can accommodate serpentine shapes -- legislators are free to create the maps as they see fit.

The Supreme Court has been little help in separating raw politics from mapmaking, with the justices disagreeing on how to deal with even obvious partisan boundary-rigging. In Vieth v. Jubelirer, Pennsylvania Democrats asked the court to overturn the state's redistricting plan, which was drafted by a Republican-led State Legislature and signed into law by a Republican governor. The new map gave Republicans the advantage in 12 of 19 Congressional districts, even though Democrats outnumbered Republicans statewide. Four of the justices held that redistricting was a political matter that could never be decided by the courts. Five justices agreed that excessive partisanship in redistricting could be unconstitutional, but they didn't settle on a standard for deciding when a party had gone too far. Ultimately, the court allowed the Pennsylvania map to stand.

The Vieth case helped push the issue of gerrymandering into the hands of activists who are pursuing reform one state at a time. Even before Vieth, six states had assigned the task of redistricting Congressional seats to officials outside the State Legislature, and 12 had done so for state legislative districts. In California, Proposition 77 would give mapmaking power to three retired judges chosen in a multistep, excruciatingly choreographed process meant to ensure that both parties are represented; in Ohio, the redistricting power would go to five citizens, with a judge from each of the two major parties choosing one of the panelists. Voters in Florida are expected to take up a redistricting measure next year that would create a 15-member citizen commission.

If these initiatives succeed, people who do not hold elected office will be the ones to weigh and balance competing interests. But as Larry M. Bartels, director of the Center for the Study of Democratic Politics at Princeton, points out, changing the mapmakers does not eliminate the vexing philosophical questions behind the mechanics of electoral mapmaking. ''Should they attempt to maximize the number of competitive races or to ensure that the partisan distribution of seats in the legislature appropriately reflects the partisan distribution of votes?'' he wrote in an e-mail message. ''Is it more important for districts to have precisely equal populations or to reflect 'natural communities' defined by political boundaries, media markets or other criteria? Should they attempt to keep as many people as possible in the same districts in order to facilitate accountability, or should each redistricting cycle be treated as a blank slate?''

In other words, what are the electoral building blocks of a representative democracy? The answers are not always obvious. In Arizona, an independent commission was given the power to create ''fair and competitive'' districts. That commission drew some districts with large Latino populations, with the stated goal of giving a historically underrepresented group a stronger voice. Some Democratic and Latino groups complained that the real intention was to dilute their strength in other districts. First the Department of Justice, and later the courts, sent the mapmakers back to the drawing board. ''The problem is that people have different expectations about the outcomes,'' Bruce E. Cain, who served as a special master for the Arizona redistricting, told me. ''You can change the process, but you can't take away the controversy.''

Independent redistricting wears the cloak of a good-government reform movement, but like most things in politics, its proponents have many motives. Schwarzenegger may truly believe that it's an affront to democracy to carve the state into safe districts for incumbents, but he would also benefit from a quick change in the cast of characters in the Democratic-controlled State Legislature -- preferably in time for a hoped-for second term. (He called a special election -- costing the state $45 million -- rather than waiting until the regular statewide elections next year.) In Ohio, the group pushing redistricting is a nonpartisan organization called Reform Ohio Now. But the Democrats and union officials who dominate the group also view new boundaries as a way to break the Republican hold on both the statehouse and the Congressional delegation, and to revive a lackluster Democratic Party.

In any case, engineering districts for the benefit of incumbents or political parties seems easier to accomplish than creating more competition. Despite all the work on a new Arizona map done by the independent commission, nearly half of the State Senate seats weren't even contested in last year's election, according to the Center for Voting and Democracy, which promotes competitive elections. In Iowa, where an independent commission serves in an advisory role and is often cited as a reform model, the group found that Congressional incumbents have still won 98 percent of their re-election bids since 1982. In the end, the process had changed but the results were much the same. [emphasis added]

There is much more to the NYT article, which was written long before this week's Supreme Court decision, and also before Proposition 77, the Califiornia commission plan, failed to gain voter approval.

A reader from Lafayette wrote me last evening when he saw my post saying that I was disappointed by the Supreme Court's opinion:

I am looking forward to your post tomorrow on the "very disappointing" U. S. Supreme Court decision in LULAC v. Perry. I share your disappointment, although it may or may not be for completely different reasons.

I was hoping for one of those thrilling, historic, once-in-a-generation decisions in which our Supreme Court speaks with clarity, principle, and purpose about the basic tenets of representative democracy. This is a mission that only the U.S. Supreme Court can fulfill, because it is supposed to be beyond partisan politics. It is the duty that the framers placed upon the members of that court. It was their responsibility, as it should always be, to remind Americans that the principles of this democracy are more than just words learned in elementary school. "One person, one vote" should be more than a catchphrase. It is a fundamental right of all Americans that should have been proudly and boldly reaffirmed in this decision. None of these justices did so. Instead, the decision is a nearly indecipherable hodgepodge of criss-crossed majorities, none of which carries an issue in dispute with sufficient decisiveness that any of us can be confident what the law in this area will be when the next two new members of the court, whoever they might be, are someday confirmed.

Let's be direct: gerrymandering is wrong. Is that even in dispute? Does anyone really disagree? It is wrong because it represents an abuse of governmental power by those who seek to serve their own interests by preserving their party's control. It is designed to preserve that control even after the opposing party becomes a majority by diluting the participation of that majority in the governmental process. That Texas Republicans were "only getting even" for decades of gerrymandering by Texas Democrats may well be true. But that doesn't make it right. Gerrymandering of electoral districts impinges upon the liberties of all Americans to participate in their governance. That is what I had hoped the Supreme Court would say. Not a single justice of the court did.

I'm a Republican. Perhaps I should be happy that there are six more Republicans in the U.S. House of Representatives right now than there might have been without the mid-decade redistricting in Texas. But I would be happy to have those six seats at risk if only the gerrymandered districts in California, New York, Michigan, and other states, were also required to be redrawn fairly. Is there anything more contrived and contorted than the shape of the current Indiana 4th Congressional District? Who drew this cartographic abomination? Only a mapmaker with a supercomputer and the goal of forcing two incumbent Republican congressmen to run against each other could have come up with this one. Moreover, the creation of such distorted district shapes deprives voters of a sense of community. Voters in Loogootee and Monon may share a Congressman (for now), but each knows that it is the result of manipulation and contrivance done to enhance and preserve the power of someone they probably never had the opportunity to vote for or against.

State government in Indiana might be much more responsible, responsive, and interesting to watch if House districts weren't drawn to protect Democrats and Senate districts were not drawn to protect Republicans, as they currently are. As district lines are presently drawn, there may be no more than 4 House seats really at issue in a typical election. Imagine having all 100 House seats legitimately at issue every 2 years. Oh, hold it -- that's the way it's supposed to be, isn't it!

If only the Supreme Court justices had used this opportunity to rededicate government at all levels to service to the people. But they didn't. Not a single one.

My take for Indiana? As the reader from Lafayette writes, the answer will not be coming from the U.S. Supreme Court.

That leaves, as I see it, a constitutional amendment establishing a redistricting commission as the only answer remaining. The proposed amendment will need to be passed by the General Assembly in 2007, and again in 2009, and then go to the voters at the next general election thereafter. So the timing is bad. And as the NYT article shows, a commission will not be a cure-all.

But with the Court's ruling last week, the creation of a redistricting commission seems to be the only alternative to the staus quo. What we all learned in school is that here in the United States, your elected officials answer to the voters and if you are not happy, you can throw them out. But that is not often the case. Most legislators are in "safe" districts, so safe that the other party often may not even put up an opponent.

True, two high-profile state senators were defeated, to the great shock of most, in the past two years. But both Senators Borst and Garton were defeated by primary opponents, members of their own party, who had the support of unhappy voters who also were members of the same party. These defeat would have been extremely unlikely to happen in the general election.

Posted by Marcia Oddi on Saturday, July 01, 2006
Posted to General Law Related

Law - The "Mother of All BAPCPA Consumer Bankruptcy Law Outlines," Soon Available for Your Reading Pleasure

Chicago attorney Steve Jakubowski, of The Bankruptcy Litigation Blog, has recently begun to publish, in serial format, what the author calls "The "Mother of All BAPCPA Consumer Bankruptcy Law Outlines."

Here is his Intro and Table of Contents page. From this page you should be able to navigate back and forth to the various entries.

Notice that although the author has posted quite a bit of material already, relatively speaking he is just getting started moving through the extremely comprehensive outline.

Having myself recently done quite a bit of research and writing in the bankruptcy area, I admire what the author has done/is doing and recommend it to you.

Posted by Marcia Oddi on Saturday, July 01, 2006
Posted to General Law Related

Ind. Law - Bosma says GOP won't redistrict next year

"Bosma says GOP won't redistrict next year" is the headline to a story today by the Louisville Courier Journal's Lesley Stedman Weidenbener. This is the first story I've seen on the impact of the U.S. Supreme Court decision in the Texas redistricting case, LULAC v. Perry, on Indiana. Weidenbener writes:

House Speaker Brian Bosma said yesterday the Republican caucus won't push to redraw maps for legislative districts next year, despite a U.S. Supreme Court decision that might allow it.

Bosma, R-Indianapolis, said the current Indiana House maps drawn by Democrats in 2001 were meant to try to protect the party's control of the chamber and incumbents.

But Bosma said his caucus supports changing the process by which maps are created -- not redrawing them mid-decade, as Republicans tried in 1995.

"There may be extraordinary circumstances where interim redistricting is appropriate," Bosma said. "But I don't see any of those being in place now."

I didn't remember that the Republicans tried a mid-decade redistricting in 1995. I'll have to check the back newspapers. The story continues:
On Wednesday the Supreme Court upheld mid-decade congressional redistricting in a Texas case, although the justices found fault with some of the maps drawn there.

Typically redistricting is done the year after the federal census because those numbers are used to determine the maps. But GOP lawmakers in Texas drew new congressional maps in 2003 to increase the likelihood that Republicans would be elected.

In the majority opinion, the court noted that neither the Constitution nor Congress "has stated any explicit prohibition of mid-decade redistricting to change districts drawn earlier in conformance with a decennial census."

The ruling might not be the controlling opinion in an Indiana legislative redistricting because the Indiana Supreme Court likely would interpret what the state constitution says about such a step. But the federal case could be a guide.

When Republicans took control of the House in 1994, they arrived at the next year's session ready to redraw the maps.

They said then that they wanted to eliminate a seat -- going from 100 districts to 99 -- to avoid future 50-50 ties between the two parties. But Democrats saw the move as a power grab and went home, where they stayed for days, stopping all business. Eventually, Republicans gave up, and the Democrats came back.

Ah, I do remember that --the effort to create an odd number of House members, to avoid the co-speakership situation.
Now House Republicans are proposing that a bipartisan commission be charged with developing districts based on population and compactness. It would be prohibited from considering political factors.

Democrats, who hope to gain control of the House in this year's elections, say the idea could be unconstitutional because the state constitution requires lawmakers to approve the maps.

Of course, current House Speaker Bosma will only be in a position to push for a map redraw next year if the House again goes Republican. Earlier this week I wrote:
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.
"Wanting to do" a mid-term redistricting and actually doing one successfully are two different things. Giving more thought to the matter, a redistricting brings into play both the House and the Senate and the Governor. If all three are Republican next year, a mid-decade redistricting could be possible, provided that the House majority is large enough - remember the Democrat walkouts. If the House turns Democrat next year, the Democrats may want to do a redistricting, but it would likely die in the Republican Senate. The key is that there is no constitutional mandate to conduct a redistricting in other than decennial census years. Art. 4, sec. 5 of the Indiana constitution provides:
Section 5. The General Assembly elected during the year in which a federal decennial census is taken shall fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census. The territory in each district shall be contiguous.
(History: As amended March 14, 1881; November 6, 1984).
This mandate is why the court will become involved if the legislature cannot come to an agreeement during the post-census session. But there is no constitutional mandate to redistrict in mid-decade.

Another issue of course would be what population figures to use.

Section 5 also points out Rep. Bauer's issue: "the [commission] idea could be unconstitutional because the state constitution requires lawmakers to approve the maps." Here is what I've written (1/30/06 ILB entry) about the commission concept:

My thoughts. There are valid concerns about the redistricting bill. It is ambiguous. It may well be unconstitutional. It could be repealed next year, one General Assembly can not bind the next.

A redistricting commission is an excellent idea, but it has to be done right -- by constitutional amendment. Going the constitutional route would solve each of the above problems.

A constitutional amendment needs to be passed by two separately elected General Assemblies. 2006 was the second session of the 114th General Assembly, 2007 is the first session of the 115th. If the constitutional amendment route (rather than creating a commission by statute) had been initiated last year, the proposed amendment could have been adopted in the 2007 session and been eligible for submission to the voters at the next general election. If the proposed amendment is adopted in the upcoming 2007 session, it will have to wait until the 2009 session for the second vote.

Posted by Marcia Oddi on Saturday, July 01, 2006
Posted to Indiana Government | Indiana Law