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Thursday, August 31, 2006

Ind. Courts - Two stories today on Howard County security and budgeting issues

Lisa Fipps writes in The Kokomo Perspective about security at the Howard County Courthouse. Some quotes:

Just one year shy of the 20th anniversary of the Howard County Courthouse bombing, security at the building might be enhanced.

Counties across the Hoosier state can apply for a grant to purchase security equipment, thanks to Division of State Court Administration and the Indiana Department of Homeland Security.

That's just one catch: The grant doesn't cover the cost of hiring an employee to operate the equipment.

"I understand that's problematic," Howard Circuit Court Judge Lynn Murray told the county councilmen.

"If you don't' have somebody manning it, it's not any good," commissioner Brad Bagwell said.

Howard County sheriff deputy Craig Trott is assigned to the courthouse, sheriff Marty Talbert said. "He checks the other county buildings, too, helps with money runs, assists in court rooms when extra security is needed or to cover for a court bailiff who's sick or on vacation," the sheriff said. "I don't believe that he'll have the ability to be stationed at that machine every hour of the day."

However, Murray and Talbert told the councilmen that even if Trott or someone else operated the security equipment during high-profile cases it would improve employee and citizen safety.

Debate over who could man the equipment wasn't as important as taking advantage of the opportunity to get free equipment, Talbert said. "We all know what the money situation is here in Howard County," he said. "I think we should try to grab a piece of this pie."

The judges "are pretty much in agreement that we could use extra security," Murray said, adding that folks in the courtrooms "aren't there because they get along."

Reporter Fipps has another story today headlined "County faced with demands it can't meet: Council hears requests for more personnel despite its financial pinch; Judge Menges wants a drug court coordinator." A quote from the long story:
Superior Court I Judge Bill Menges wants to hire a drug court coordinator; he wants to make a court reporter a full-time secretary (a $4,182 increase), and he wants the council to make the drug court administrator position (that it agreed to fund until Dec. 31, 2006) a permanent one from here on out. Prosecutor Jim Fleming wants the county to put on the payroll two deputies whose salaries had been funded by federal grants. And public defender Steve Raquet wants to hire a full-time deputy public defender.

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to Indiana Courts

Ind. Decisions - "New trial ordered for woman convicted in triple slaying"

Charity L. Payne v. State of Indiana, a 28-page opinion issued this morning (scroll down or access the ILB entry here - 2nd opinion), is the subject of two press reports this afternoon. The AP reports:

The Indiana Court of Appeals ordered a new trial Thursday for a woman convicted of murder for allegedly setting into motion a burglary that led to the deaths of three northern Indiana construction workers.

Charity Payne of North Liberty was sentenced in 2002 to 165 years in prison after she was convicted of murder in the September 2000 deaths of Wayne Shumaker, 58, of Plymouth, and Corby Myers, 30, and Lynn Ganger, 54, both of Bremen.

Testimony during Payne's trial showed that she and a friend met four men at a South Bend mall two days before the murders and later told the men of the upscale St. Joseph County house of her former boyfriend.

Later, witnesses testified, she drove two of the men to show them the house about 10 miles south of South Bend near Lakeville and told them how to bypass the alarm system. The four men went to the home the next day and one ended up killing the three carpenters, who were building a loft in a pole barn.

A deputy prosecutor has said the slayings never would have occurred if not for Payne. He also said she never warned any one of the threats by Phillip Stroud, one of the burglars later convicted as the triggerman, to kill anyone there.

The appeals court reversed Payne's convictions on several grounds. Among other things, the ruling said police wrongfully interrogated Payne for seven hours before advising her of her Miranda rights. The court also said incriminating information she had divulged should not have been admitted by the lower court.

Payne was 18 at the time of the interrogation.

A South Bend Tribune story reports:
The Indiana Court of Appeals has overturned the guilty verdict of Charity Payne in the homicide of three construction workers at a Lakeville home in September 2000, and ordered a new trial. * * *

The appeals court ruled that Payne should have a new trial because Judge William T. Means should not have allowed a tape of Payne's interrogation and confession to be played for the jury because police did not tell Payne of her right not to speak to them without an attorney until seven hours after the interview began, and after she had already told most of her involvement.

The court also found the admission of a letter Payne wrote to her ex-boyfriend describing how easy it would be to burglarize the house was improper. Also a mistake, the court ruled, was admitting a videotape into evidence that showed Ronald Carter walking police through the crime scene and describing the events of the crime. The court said playing the tape amounted to hearsay, because Carter had refused to testify, so Payne's attorneys could not question him.

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to Ind. App.Ct. Decisions

Not law but interesting - Trump fires Carolyn

"TV Role went to her head" is the headline from the NY Post story today. (Link via Althouse.)

Oh no! Could this mean next we may be reading "Brian fires Connie?"

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to General News

Ind. Decisions - Court of Appeals issues 8 today (and 12 NFP) [Updated]

For publication opinions today (8):

In Bridgestone Americas Holding Inc., et al v. Violet Mayberry, et al, a 16-page opinion, Judge Najam writes:

Bridgestone Americas Holding Inc., Bridgestone/Firestone, Inc., Bridgestone/Firestone North American Tire, LLC, and Bridgestone/Firestone Manufacturing Operations Division (collectively “Bridgestone”) bring this interlocutory appeal to challenge the trial court’s order compelling discovery of Bridgestone’s highly proprietary skim stock formula.1 Bridgestone presents three issues for our review, which we consolidate and restate as whether the trial court abused its discretion when it ordered Bridgestone to disclose its skim stock formula. We affirm. * * *

To convince us that the trial court abused its discretion, Bridgestone must demonstrate that the trial court’s conclusion is against the logic and natural inferences that can be drawn from the facts and circumstances before the court. See Stuff, 838 N.E.2d at 1099. Bridgestone has not met this burden on appeal. Therefore, we cannot say that the trial court abused its discretion when it fashioned a narrowly tailored protective order under Rule 26(C)(7) and compelled Bridgestone to disclose its skim stock formula.

In Charity L. Payne v. State of Indiana, a 28-page opinion, Judge Riley concludes:
CONCLUSION. Based on the foregoing, we find that (1) the trial court erred by admitting into evidence Payne’s statement which was obtained in violation of her Miranda rights; (2) the trial court erred by admitting into evidence Payne’s letter to her former boyfriend; and (3) the trial court erred by admitting into evidence a testimonial statement given by an unavailable co-defendant. Reversed and remanded for a new trial.
In Kelsey Bowman b/n/f John & Karrie Bowman v. Alycea McNary, Tippecanoe School Corp., et al, a 24-page opinion, Judge Barnes writes:
Kelsey Bowman, by her parents Jon and Karrie Bowman, appeals the trial court’s grant of summary judgment in favor of the Tippecanoe School Corporation, the Tippecanoe School Corporation Board of Trustees (collectively “the School Corporation”), and Alycea McNary. We affirm. * * *

Bowman was standing in the practice tee area when McCary took her swing and struck Bowman. It is apparent from Bowman’s own testimony that she had actual knowledge of a risk involved in being in a driving range area, namely being struck with a golf club. Bowman voluntarily accepted that risk by choosing to be a member of the golf team and by stepping onto the driving range with others who had clubs in their hands. She seems to contend that she did not incur the risk of McNary acting negligently and taking a swing without first stepping away from her. However, if this were sufficient to defeat a finding of incurred risk in a negligence case, the defense could never be invoked. Additionally, Bowman did not have to know the specific risk that she might be struck by a club on this particular occasion; it is sufficient that she knew more generally the risk of being struck by a club while on a driving range. See Mauller, 552 N.E.2d at 503 n.3. We find no genuine issues of material fact and conclude the School Corporation is entitled to judgment as a matter of law on the basis that Bowman incurred the risk of injury she sustained.

The trial court properly concluded that there are no issues of material fact and that McNary and the School Corporation are entitled to judgment as a matter of law.

In R & R Real Estate v. C & N Armstrong Farms, a 12-page opinion, Judge Crone writes:
R&R Real Estate Company, LLC, and Leland Roberts (collectively, “R&R”) appeal the denial of R&R’s claim for grain bin rental damages and the denial of prejudgment interest. On cross-appeal, C&N Armstrong Farms, Ltd. (“C&N”), contends that R&R’s appeal should be dismissed pursuant to Indiana Code Section 34-56-1-2 and that C&N should have received a setoff for the cost of repairing grain bins and a grain auger on R&R’s property. We affirm.
In Arvin Cruite v. State of Indiana, a 6-page opinion, Chief Judge Kirsch writes:
Arvin Cruite appeals the trial court’s order denying permission to file a belated notice of appeal. He raises several issues, of which we find one dispositive: whether the trial court erred in denying his petition for leave to file a belated notice of appeal. We reverse. * * *

Time spent by the State Public Defender investigating a claim does not count against a defendant when determining the issue of diligence under P-C.R. 2. Kling v. State, 837 N.E.2d 502, 508 (Ind. 2005). We therefore conclude that Cruite was diligent in requesting permission to file a belated notice of appeal. The trial court abused its discretion in denying Cruite’s request for permission to file a belated appeal.

In Carole Pope v. State of Indiana, a 6-page opinion, Judge Crone writes:
Carole Pope appeals from the trial court’s order revoking her home detention and its denial of her motion to set aside the results of a drug screen. We reverse.
In Property Owners Insurance v. Ted's Tavern, a 17-page opinion, Judge Crone writes:
Property-Owners Insurance Company (“Property-Owners”) appeals an order granting partial summary judgment in favor of Carole Stine, individually and as personal representative of the estate of William Roland Stine, deceased (“Stine”). We reverse and enter judgment for Property-Owners on the challenged counts. * * *

In doing so, we reiterate that insurers are entitled to limit their coverage of risks and, thus, their liability by imposing exceptions, conditions, and exclusions. See Amerisure, 818 N.E.2d at 1002. Further, we note that we are not the first jurisdiction to enforce such exclusions under similar circumstances. See Cusenbary v. United States Fidelity and Guaranty Co., 307 Mont. 238, 37 P.3d 67, 70 (2001) (finding that where evidence of improper hiring, training, and supervision was directly related to the service or sale of alcohol, former claims were excluded from coverage under policy’s liquor liability/intoxication exclusion); see also Cont’l W. Ins. Co. v. The Dam Bar, 478 N.W.2d 373, 374-76 (N.D. 1991) (finding no sustainable basis for liability separate from liability based upon serving alcoholic beverages, thus liquor liability/intoxication exclusion excluded coverage for all counts, including negligent hiring, training, and supervision, even if those counts did not contain specific allegations related to or arising from the sale or service of liquor to an intoxicated patron).

In The Blakley Corporation v. EFCO Corporation, a 16-page opinion, Judge Robb writes:
The Blakley Corporation (“Blakley”) appeals from the trial court’s denial of its motion to correct error in a breach of contract case. Blakley requested that the trial court amend its findings of fact and conclusions thereon by addition of an award to Blakley of markup damages against EFCO Corporation (“EFCO”) totaling $76,755.00. By way of cross-appeal, EFCO calls into question the trial court’s determination that it was liable for breach of contract, resulting in damages to Blakley in the amount of $307,020.00. We conclude that EFCO has failed its burden of establishing that the evidence does not support the trial court’s determination of liability. We also conclude that the trial court sufficiently addressed markup damages when it twice rejected Blakley’s claim to them. We therefore affirm.
NFP civil opinions today (5):

Bobbie L. Ruble and Marlene K. Ruble v. National City Bank of Indiana (NFP)

Vicki L. (Teter) Maxey v. Barry W. Teter (NFP)

In Redbud Estate Sales, Inc.v. State of Indiana Department of Natural Resources (NFP), a 5-page opinion, Judge Vaidik writes:

Here, the trial court’s November 8, 2004, order dismissing Redbud’s complaint against the DNR was to fewer than all of the claims or parties because ICC’s cross-appeal against the State was still pending. Indeed, the trial court’s order does not even mention ICC or its cross-claim against the State. Because this order was not a final judgment, to authorize an appeal the trial court should have “in writing expressly determine[d] that there is no just reason for delay, and in writing expressly direct[ed] entry of judgment,” see T.R. 54(B), which it did not do. We therefore dismiss this appeal.
Portia Jackson, Administratrix of the Estate of Peter C. Sholar, deceased and Rochelle Sholar v. Railroad Friction Products Corporation (NFP)

Claude Copeland v. Jim A. Borror, et al. (NFP)

NFP criminal opinions today (7) (link to cases):

Samuel Hollan v. State of Indiana (NFP)

James Durham v. State of Indiana (NFP) (see ILB entry from 9/6/06)

Brandon A. Crockett v. State of Indiana (NFP)

State of Indiana v. Jacqueline Edwards (NFP)

Jack Weir v. State of Indiana (NFP)

Ernest Smith v. State of Indiana (NFP)

Susan Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to Ind. App.Ct. Decisions

Enviroment - "Calif. Diverges from U.S. with Greenhouse Gas Cuts"

Interesting NPR story by Elizabeth Shogren this morning:

Morning Edition, August 31, 2006 · Republican Gov. Arnold Schwarzenegger and California's Democrat-controlled legislature have a plan to curb the state's greenhouse-gas emissions. Supporters see the plan as a major breakthrough for climate change policy in the United States.
Listen to it here. For more, see this story from this morning's LA Times, headed "State on Verge of Greenhouse Gas Restrictions."

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to Environment

Ind. Gov't. - "Sen. Mrvan files records complaint against GUEA"

Marc Chase of the Munster (NW Indiana) Times reports today:

An Indiana senator made his most recent attempt Tuesday to pry records from the hands of the embattled Gary Urban Enterprise Association, complaining to the state the group is withholding public documents.

Meanwhile, the recently appointed executive director of GUEA -- a fellow state legislator of the senator -- claimed that even if the Indiana public access counselor's office rules that Sen. Frank Mrvan, D-Hammond, is entitled to the records, the documents either no longer exist or are in the hands of various law enforcement agencies investigating GUEA.

Mrvan's complaint with the access counselor Tuesday follows a July denial by GUEA of the senator's request for minutes of the group's board of directors for meetings between 2000 and 2004. The time period coincides with his Republican opponent Christopher Morrow serving on the board. * * *

GUEA attorneys have denied Mrvan access to its records, claiming the group is a private entity not subject to open-records laws.

For background see this ILB entry from Oct. 5, 2005, including this quote from a 6/12/05 Times story by Brendan O'Shaughnessy:
The new Gary Urban Enterprise Association board and its lawyer have slipped through a crack in open-door laws and are refusing to provide state-requested reports on the embattled nonprofit agency.
Here is an advisory opinion from the Indiana Public Access Counselor dated May 4, 2005 on the issue of when an entity [specifically GUEA] is subject to the public records law. Here is a related PAC opinion from March 31, 2005.

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to Indiana Government

Ind. Courts - "Judge gets tough(er) on phone ban"

A week ago the ILB entry was headed "Judge rings up 3 cell phone owners on contempt charges."

Today the Gary Post-Tribune reports:

CROWN POINT — The cell phone ban in the courtrooms applies to attorneys, too.

Lake Superior Court Judge Diane Ross Boswell, who last week found three people in contempt of court because they failed to turn off their cell phones when asked, imposed a $25 fine on defense attorney Vicki Battle-Cashwell.

Battle-Cashwell said she was in the back of the courtroom Wednesday morning conferring with a deputy prosecutor before she left for another courtroom when her phone rang.

“The judge said, 'Officer, bring me whoever it was whose phone went off,’ ” Battle-Cashwell said. “I came out (of the conference room) with my head down,” she said.

The judge asked if Battle-Cashwell was aware she should have had her phone turned off in court, and Battle-Cashwell replied that she was.

After the incident last week, a new sign instructing people to turn off their cell phones appeared next to the door handle to Room 3 in the criminal division.

One individual last week opted to pay a $100 fine after her phone rang more than once and the judge had asked everyone to turn off their cell phones. Two other individuals were ordered to perform 40 hours of community service.

Boswell said Battle-Cashwell, who apologized to the court, received a lower fine because she immediately turned off her phone when asked.

“It disrupts court — I can understand that,” Battle-Cashwell said.

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to Indiana Courts

Law - Kentucky State bar says ads violated its rules

Tom Loftus of the Louisville Courier Journal writes:

FRANKFORT, Ky. -- A Kentucky Bar Association panel said yesterday that a newspaper's ads from lawyers who want to represent families of victims of the crash of Comair Flight 5191 violate the association's rules.

Because of controversy over the ads and the panel finding, Lexington Herald-Leader publisher Tim Kelly said last night the ads have been pulled from today's editions of the newspaper.

At issue are three ads that ran in the newspaper yesterday. Two ads directly advertised to families of victims of the crash. All three advertised expertise in representing victims of airplane crashes.

Bruce Davis, executive director of the Kentucky Bar Association, said the Attorneys Advertising Commission of the Kentucky bar issued a finding late yesterday that all three ads violated bar rules.

Davis said each ad violated rules for different reasons, but all broke a rule that bans advertising to families of victims of a disaster within 30 days of that disaster.

Kelly said that one of the firms -- "DeSimone, Aviles, Shorter & Oxamendi and Floyd A. Wisner" -- pulled its ad voluntarily yesterday before learning of the bar's finding.

A second firm, Chalik & Chalik, of Lexington, pulled its ad when told by the newspaper of the bar's ruling, he said.

The third firm, The Johnson Law Firm, of Fort Worth, Texas, did not respond last night when the Lexington newspaper informed it of the bar's finding. Kelly said he decided to pull that ad "pending further discussion with them" because the firm initially told the newspaper it wanted to comply with bar association rules.

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to General Law Related

Environment - 3rd Circuit Rules DuPont Can't Get Help From U.S. for Voluntary Cleanup

"3rd Circuit: DuPont Can't Get Help From U.S. for Voluntary Cleanup" is the headline to a story by Sharon P. Duffy in the Legal Intelligencer, via Law.com. Some quotes:

A polluter that voluntarily takes on the duty to clean up a toxic waste site cannot later seek contributions from the federal government -- even if the government itself was also a polluter at the site -- the 3rd U.S. Circuit Court of Appeals has ruled.

But a dissenting judge complained that the majority was relying on two 3rd Circuit precedents that she believes have been effectively overruled by the U.S. Supreme Court, and that a ruling in favor of the government would discourage voluntary cleanups.

"I am concerned that the effect of the majority's opinion will be that parties will be reluctant to engage in voluntary cleanups for fear that they may not be able to obtain contribution," U.S. Circuit Judge Dolores K. Sloviter wrote in her dissent in E.I. du Pont de Nemours Co. v. United States.

"Spills that could be most efficaciously dealt with if cleaned up immediately will remain untouched while parties attempt to settle with the government," Sloviter wrote.

In the suit, three companies -- DuPont, Conoco Inc. and Sporting Goods Properties Inc. -- sought contributions from the government for cleanups at 15 sites.

Each of the sites was owned or operated by the United States at various times during World War I, World War II and the Korean War, the suit said, during which time the United States was responsible for some contamination.

But U.S. District Judge William J. Martini of the District of New Jersey granted summary judgment in favor of the government, holding that a "responsible party" that conducts a voluntary, unsupervised cleanup cannot assert a claim for contribution.

On appeal, lawyers for the three companies urged the 3rd Circuit to reconsider two of its environmental law precedents -- New Castle County v. Halliburton NUS Corp. and In re Matter of Reading Co. -- in light of the U.S. Supreme Court's 2004 decision in Cooper Industries Inc. v. Aviall Services Inc.

But Circuit Judge Thomas L. Ambro, in an opinion joined by visiting Judge Paul R. Michel of the U.S. Court of Appeals for the Federal Circuit, found that both of the 3rd Circuit's decisions remain good law and are consistent with the intent of Congress.

"Cooper Industries did not explicitly or implicitly overrule our precedents; indeed, the Supreme Court expressly declined to consider the very questions at issue here," Ambro wrote. * * *

But in dissent, Sloviter said she agreed with DuPont's argument that Copper Industries is an "intervening authority" that forces the 3rd Circuit to reconsider its precedents.

"Cooper Industries weakens the conceptual underpinnings of our decisions in Reading and New Castle County. For that reason, and because our holdings in Reading and New Castle County cannot be reconciled with the policies Congress sought to encourage when it enacted CERCLA, I believe this court can and should reconsider those opinions," Sloviter wrote.

Sloviter noted that two other federal circuits have done exactly what DuPont urged the 3rd Circuit to do.

In decisions from the 2nd and 8th circuits, Sloviter said, unanimous three-judge panels concluded that, in light of Cooper Industries, courts must now allow responsible parties to seek contribution from other responsible parties under §107.

Sloviter said she would have followed her sister circuits because their decisions promote the goals of Congress.

"I believe that permitting parties who voluntarily incur cleanup costs to bring suit under Section 107 comports with the fundamental purposes of CERCLA," Sloviter wrote.

Here is the 3rd Circuit opinion in E.I. du Pont de Nemours Co. v. United States, via Findlaw.com.

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to Environment

Ind. Courts - More on: "Man on trial in Clark for 1980 rapes"

Updating Tuesday's ILB entry, today Dick Kaukas of the Louisville Courier Journal reports:

After six hours of deliberations, a Clark County jury yesterday convicted an Evansville man of rape and deviate criminal conduct in a case that dated to December 1980.

But the jury of 10 women and two men also acquitted the defendant, Thomas N. Schiro, 45, of the same charges involving a case from September 1980. * * *

Schiro is now serving the final months of a 60-year sentence for raping and murdering Laura Luebbehusen in February 1981. He originally had been sentenced to death in that case, but the Indiana Supreme Court overturned the sentence in 1996, saying the trial judge improperly imposed the death penalty after the jury decided against it.

Instead, the court sentenced Schiro to 60 years, which meant that with credit for good behavior his term could be cut in half and he likely would have been released in about six months.

Because of the original death sentence, Schiro was not tried on either of the 1980 rape cases previously. But Stanley Levco, the Vanderburgh County prosecutor, decided to prosecute Schiro on the charges now in an effort to prevent his release.

There is no statute of limitations on rape in Indiana. The deviate criminal conduct charge covers cases in which victims allegedly were forced to submit to oral or anal sex.

The charges were based on incidents that occurred in the same Evansville house. The woman in the September 1980 case had moved out before the December attack occurred on a different woman. * * *

Robert Canada, Schiro's lawyer, said he intended to file an appeal, contending that parts of a journal written in 1981 by his client in support of an insanity plea should not have been allowed into evidence.

Kate Braser of the Evansville Courier& Press has this story today. Some quotes:
Schiro was an initial suspect in the [1980] rapes but was not charged because in 1981 he was convicted in the murder of Evansville resident Laura Luebbenhusen.

He originally was sentenced to death, but that penalty was reduced on appeal to straight prison time. With that term scheduled to end in February, Prosecutor Stan Levco reopened the rape cases. The trial was moved to Clark County because of pretrial publicity. * * *

[Defense attorney Robert Canada] said he will appeal the verdict.

Throughout the trial, Canada said there was no question whether the two women were raped, but the question was whether Schiro was their attacker.

Prosecutors had to convince the jury based on the victim's testimony and four excerpts extracted from a 39-page handwritten autobiography Schiro wrote in 1981 that mentions unspecified rapes, sex acts and thoughts of rape. Scientific evidence such as DNA was not available in the case because of its age.

"There was no proof beyond a reasonable doubt," Canada said as he left the courthouse.

Canada said he believes Schiro's diary should not have been admitted in the trial.

"Normally an appeal is a desperate measure but in this case it's not," he said. "The letter was admitted even though it had nothing to do with these cases."

Posted by Marcia Oddi on Thursday, August 31, 2006
Posted to Ind. Trial Ct. Decisions

Wednesday, August 30, 2006

Ind. Courts - Reception & dinner honoring Judge V. Sue Shields Oct. 6

The ISBA Annual Meeting is early this year, so take note. And it is in Indianapolis. The ILB will post more about this tommorrow.

Meanwhile, here is one event many of you won't want to miss:

Reception & dinner honoring Judge V. Sue Shields Oct. 6

The United States District Court for the Southern District of Indiana,
in conjunction with the Indiana State Bar Association’s Annual Meeting,
invites you to celebrate the accomplishments and upcoming retirement of

Honorable V. Sue Shields, United States Magistrate Judge
United States District Court, Indianapolis

Friday, October 6, 2006

Reception is at 6 p.m. with dinner immediately following at 7 p.m.

Marriott Downtown Indianapolis Hotel
Marriott Ballroom 1-5, second floor

$60 per person

To register for the reception and dinner, download a registration form. [Note: Slow]

Or download a complete ISBA Annual Meeting registration brochure.

For more about Judge Shields
, see this ILB entry from March 11th.

Posted by Marcia Oddi on Wednesday, August 30, 2006
Posted to Indiana Courts

Courts - Missouri Bar issues voters' guide to judges facing retention

An AP story today in the Jefferson City Missouri News-Tribune reports:

Aiming to help voters decide whether to retain certain judges this November, The Missouri Bar issued a report Tuesday summarizing evaluations of the jurists by lawyers and, in some instances, by jurors as well.

Judges on the state Supreme Court, the three-district Court of Appeals and five circuit courts in the St. Louis and Kansas City areas are appointed by the governor and stand for retention periodically.

Unlike elected judges, who are free to tout their qualifications directly to voters, those who face retention are barred from campaigning, making them question marks to most voters.

The Missouri Bar has worked for years to fill in the blanks about individual judges by surveying lawyers who have appeared in their courtrooms. Most judges receive overwhelming recommendations to keep their black robes.

And in a pilot project this year, the Bar also asked people who had served on juries in St. Louis County to evaluate seven of the judges up for retention there. Generally, the jurors' evaluations were aligned with or more favorable than the lawyers' findings about the judges.

“The jurors' evaluations add an important point of view that should be considered by everyone who casts a judicial ballot,” Missouri Bar president Douglas Copeland said in a statement. “Voters can put the jurors' ratings side by side with the lawyers' evaluations and have a complete picture of each judge's courtroom behavior and professional skills.”

Access it here.

Posted by Marcia Oddi on Wednesday, August 30, 2006
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP) [Updated]

For publication opinions today (1):

In Vanderburgh County Auditor, et al. v. Michiana Campgrounds, an 8-page opinion, Judge Riley writes:

Appellant-Plaintiff, Vanderburgh County Auditor (Vanderburgh County) appeals the trial court’s Order granting Appellee-Defendant’s, Michiana Campgrounds LLC (Michiana), Motion to Refund Purchase Price Minus 25% Penalty. We affirm. * * *

Vanderburgh County argues that Ind. Code § 6-1.1-25-4.6(d) does not allow for tax sale purchasers to obtain a refund when the purchaser simply opts not to file a verified petition for a tax deed. Vanderburgh County maintains that granting such a refund is not only contrary to the statutory language but also to the purpose of Indiana’s tax sale legislation. * * *

[W]e hold that a “purchaser’s failure” as set forth in I.C. § 6-1.1-25-4.6(d) can include the situation where a tax sale purchaser chooses not to meet the statutory requirements of I.C. § 6-1.1-25-4.6. See Mundy, 783 N.E.2d at 744. In the present case, Michiana complied with the initial notice requirements but did not make an attempt to comply with the requirement to file a petition for a tax deed or send the accompanying notices. Instead, Michiana filed its Motions to Refund Purchase Price Minus 25% Penalty based on I.C. § 6-1.1-25-4.6(d) stating that it will be not asking for a tax deed. Accordingly, Michiana chose not to request a tax deed with respect to the properties, and as such, we find that it fulfills the requirements of I.C. § 6-1.1-25-4.6(d) entitling it to a refund of the purchase price minus a twenty-five percent penalty.

NFP civil opinions today (1):

Stanley Asher v. Mary Lou Asher (NFP) - child support. Affirmed.

NFP criminal opinions today (8) (link to cases):

Earnest Moore v. State of Indiana (NFP)

Adam Whitney v. State of Indiana (NFP)

Marcus I. Snell v. State of Indiana (NFP)

State of Indiana v. Paul Trice (NFP)

Lawrence Ray Holley v. State of Indiana (NFP)

John Bliley v. State of Indiana (NFP)

Daniel Bailey v. State of Indiana (NFP)

Matthew Caleb Forgille v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 30, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - $18 million Marion County jury verdict against local law firm

The Indianapolis Star reports today, in a story by Jeff Swiatek:

More than 8,000 Hoosiers stiffed by their health plan could share in an $18 million malpractice judgment made Monday against the Indianapolis law firm that represented the plan.

The verdict, by a Marion Circuit Court jury after a six-day trial, amounts to a potentially crippling financial blow for the 43-year-old Eastside firm Fillenwarth Dennerline Groth & Towe, known for its labor law practice. * * *

The jury found Fillenwarth Dennerline liable for failing to notify the health plan's trustees of its growing financial losses. The now-defunct plan, the Indiana Construction Industry Trust, was set up by about a dozen construction-related companies to cover their nonunion employees. * * *

The verdict equals the unpaid medical claims the plan's 8,200 members faced as a result of its 2002 insolvency. It was the costliest bust of an Indiana health plan.

Fillenwarth Dennerline suggested it would appeal the judgment. "We strongly disagree with the jury's decision and intend to pursue all of our legal options," the law firm said in a statement issued by one of its outside attorneys.

The statement said the health plan "failed due to gross mismanagement by (its) executives and others. Nevertheless, the jury decided to hold one lawyer responsible for these business decisions."

The plan's top two executives have gone to prison for embezzling money from the former Indianapolis plan. Neither Fillenwarth Dennerline nor its attorneys face criminal charges.

The state Department of Insurance, which brought the civil lawsuit against Fillenwarth Dennerline, already has collected more than $7 million in settlements from other parties it sued over the collapse, including trustees of the nonprofit plan.

Fillenwarth Dennerline was the only defendant to fight the insurance department all the way to trial. The law firm sued its malpractice insurer, in a separate lawsuit, for refusing to let it settle with the state for $1 million, which is the firm's malpractice coverage limit.

A multimillion-dollar malpractice judgment is "obviously a seriously bad day for a law firm," said David Millard, vice chairman of the business department at the Indianapolis law firm of Barnes & Thornburg.

But it may be hard for the state to collect the $18 million if the law firm's insurance doesn't cover claims that large, Millard said.

Going after the firm's attorneys individually to collect the judgment "is never an easy thing to do. It's a very messy process," he said. "Oftentimes such matters get settled on appeal" for a lower amount, he said.

Irwin Levin, an attorney for the Insurance Department, said the verdict means "8,200 Hoosiers who got stuck with medical bills they had paid premiums to have covered will now have additional funds to pay their doctors and hospitals."

Levin showed the Circuit Court jury evidence that plan attorney Fred W. Dennerline III had a copy of a fraudulent balance sheet, created by executives to hide the plan's growing losses, months before trustees saw it.

The balance sheet included nearly $3 million in leased jewels, which were listed as an asset but should have been accounted for as a liability, the Insurance Department has said.

If the $18 million judgment stands, Hoosier policyholders won't get all the money. Administrative and legal fees must come out of the judgment. Levin and his Indianapolis firm, Cohen & Malad, received 30 percent of the earlier settlements.

Here is a news item from the Cohen & Malad, LLP website.

Posted by Marcia Oddi on Wednesday, August 30, 2006
Posted to Ind. Trial Ct. Decisions

Courts - "Women Suddenly Scarce Among Justices’ Clerks" [Updated]

A front-page story by Linda Greenhouse in today's NY Times is headed: "Women Suddenly Scarce Among Justices’ Clerks." Some quotes from the beginning of the report:

WASHINGTON, Aug. 29 — Everyone knows that with the retirement of Justice Sandra Day O’Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country’s new law school graduates than there are today.

Last year at this time, there were 14 female clerks, including one, Ann E. O’Connell, who was hired by William H. Rehnquist, the chief justice who died before the term began. His successor, Chief Justice John G. Roberts Jr., then hired Ms. O’Connell.

Justice Samuel A. Alito Jr., who joined the court in January, hired Hannah Smith, who had clerked for him on the appeals court where he had previously served. So by the end of the term, and counting Ms. O’Connell twice, there were 16 women among the 43 law clerks hired by last term’s justices.

After years in which more than a third of the clerks were women, the sudden drop was a hot topic this summer on various law-related blogs. Word of the justices’ individual hiring decisions spread quickly among those for whom the comings and goings of law clerks are more riveting than any offering on reality television.

Who are these young lawyers who are the subject of such interest? They do not, contrary to myth — propagated in part by law clerks themselves — run the court. They do play a significant role in screening new cases, though, and they help their justices in preparing for argument and in drafting opinions.

While their pay is a modest $63,335 for their year of service, a Supreme Court clerkship is money in the bank: the clerks are considered such a catch that law firms are currently paying each one they hire a signing bonus of $200,000.

The story is accompanied by a chart showing percentage of female clerks hired by justices since 2000.

What about Indiana? As best the ILB can tell, the Supreme Court's clerks are fairly evenly split between men and women.

The ILB took the database of state employees made available by the Indianapolis Star and produced a list of individuals employed by the Indiana Supreme Court with the job title "law clerk". (These individuals would have been state employees as of 6/30/06.)

It appears, however, that the job title "law clerk" covers several individuals not traditionally thought of as "law clerks."

So, knowing from past experience that law clerks' phone numbers are not listed in the state phone book, the ILB cross-checked the Star list against the state phone list and omitted every potential "law clerk" name that had a listed phone number. The result was 12 names, five women and seven men.

Posted by Marcia Oddi on Wednesday, August 30, 2006
Posted to Courts in general

Tuesday, August 29, 2006

Ind. Decisions - Deju vu? "IU trustees do not have reveal details of Knight's firing "

The AP is reporting this afternoon:

BLOOMINGTON, Ind. (AP) -- Two Indiana University trustees who investigated Bob Knight were acting as attorneys and do not have to reveal details that led to the firing of the former basketball coach, a judge ruled Tuesday.

The decision was a defeat for The Indianapolis Star's five-year-old lawsuit, which contended that IU violated the state's open records law in its refusal to release the unfiltered information related to Knight's dismissal in May 2000.

Attorney Kevin Betz, who represented the Star, said the newspaper was considering its legal options.

Special Judge Jane Craney of Morgan County ruled that the records were exempt from the state's Access to Public Records Act because they were "work product" protected by attorney-client privilege.

The ILB thought she had read this all before. The next part of the AP story explains why.
The ruling echoed the argument made in August 2005 in testimony by former IU President Myles Brand, now president of the NCAA.

If Craney had decided that Fred Eichhorn and John Walda were acting as trustees during the investigation, the information they gathered could have been made public. * * *

The investigation looked into allegations against Knight by former player Neil Reed. Reed claimed in a television interview that Knight choked him in practice, ordered Brand out of Assembly Hall and waved soiled toilet paper at players.

Craney first ruled in favor of IU, but the Indiana Court of Appeals said the Reed documents should be disclosed if Walda and Eichhorn acted as trustees when they investigated.

The Court of Appeals decisions, from June 2, 2006, is James R. Dillman, et al v. Trustees of Indiana University. See the ILB entry here.

Posted by Marcia Oddi on Tuesday, August 29, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - One Ind. case today from the 7th Circuit

In USA v. Cunningham, Herman (SD ind., Sarah Evans Barker, Judge), a 14-page opinion, Circuit Judge Kane writes:

After a jury trial, Herman Cunningham, Larry Williams, and David Hardin were convicted of conspiracy to commit various drug offenses involving the distribution of heroin in Indianapolis, Indiana. See 21 U.S.C. §§ 841(a)(1), 846, 860(a), 861(f). Hardin was also convicted of possession with intent to distribute heroin and of being a felon in possession of a firearm.1 See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). Cunningham was sentenced to life in prison; Williams and Hardin were sentenced to 420 and 300 months’ imprisonment, respectively. Over the defendants’ objection at trial, the government recounted a litany of procedures of the local U.S. Attorney’s office, the Office of the Attorney General, and the Drug Enforcement Administration (“DEA”) utilized in seeking court authorization for two telephone wiretaps. In doing so, the government witness’s testimony suggested to the jury that a panel of senior government lawyers in the Office of the Attorney General in Washington, D.C. and others in law enforcement were of the opinion that there was probable cause to believe the defendants were indeed engaging in criminal activity. The admission of this irrelevant evidence had the effect of improperly bolstering the credibility of the government’s case in the eyes of the jury, and the error was not harmless. Accordingly, we reverse and remand.

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

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Tina N. Grant v. Gregory M. Hager, a 15-page opinion, Judge Vaidik writes:

Tina Grant (“Mother”) appeals the trial court’s decision to award her ex-husband, Gregory Hager (“Father”), child support following Father’s support modification request. The trial court based its decision on calculations under the Indiana Child Support Worksheet. After crediting Father, the noncustodial parent, with a parenting time credit for 156 overnights per year, the Worksheet indicated that Father’s weekly child support obligation was –$91.81. The trial court, therefore, ordered Mother, as the custodial parent, to pay Father $91.00 per week. We hold that the present Indiana Child Support Guidelines, while authorizing the use of a Parenting Time Credit to reduce the support obligation of a noncustodial parent, do not permit the application of the credit in a manner that requires a custodial parent to pay child support to a noncustodial parent. Because the Parenting Time Credit in this case is sufficient to reduce Father’s child support obligation to $0.00, we remand and instruct the trial court to enter an order excusing Father from the payment of child support. * * *

There are advantages and disadvantages to allowing child support payments to run from a custodial to a noncustodial parent. On the one hand, to do so encourages a noncustodial parent to participate more in his or her children’s lives following divorce, and it results in more similar living environments for children when they go from one parent’s home to the other’s. On the other hand, it also has the potential to increase custody disputes by providing an incentive for a custodial parent to fight shared parenting time, and it takes money from the custodial parent, thereby reducing the likelihood that he or she will be able to provide a home more similar to that which the children would have enjoyed had the marriage remained intact. Where a matter is scheduled for regular review, however, these and other concerns are best addressed by the judicial committees charged with that review rather than by this Court. Reversed and remanded with instructions.

DARDEN J., and RILEY, J., concur

NFP civil opinions today (3):

The Guardianship and Adoption of M.S.G. and N.B.C., Will and Stacy Ferguson, Mark and Angela Clinton v. Robert Garrison and Ginger Combs and Mitch and Patty Ahrens (NFP) - issue is whether parents' consent to adoption is needed.

K. Scott Mapes v. Review Bd. of the Indiana Dept. of Workforce Development and Big C Lumber Co. (NFP) - Unemployment benefits - "Because Mapes voluntarily left his job without good cause, we affirm the decision of the Board."

St. Anthony Medical Center, Inc. v. Ralph Kalember (NFP)
- "Because there was a genuine issue of material fact as to whether the negligence of the nurses was the proximate cause of Mrs. Kalember’s death and Kalember’s injuries, the trial court did not err in denying St. Anthony’s motion for partial summary judgment on Kalember’s claim against the nurses."

NFP criminal opinions today (9) (link to cases):

Twain Osborne v. State of Indiana (NFP)

George L. Walker v. State of Indiana (NFP)

Jason Alton Haymaker v. State of Indiana (NFP)

Robert E. Stanley v. State of Indiana (NFP)

Milton James Wilson v. State of Indiana (NFP)

Albert Green v. State of Indiana (NFP)

Irving Dillon v. State of Indiana (NFP)

David P. Griffin v. State of Indiana (NFP)

C.A.L. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 29, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Union Courthouse not ready for festival

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

LIBERTY, Ind. -- The Union County Courthouse won't be ready for an open house during Founders Day weekend, the commissioners said Monday.

Floors can't be polished until record storage boxes are cleared away and boxes can't be emptied until officials know which records must be kept. * * *

The first floor hallway has boxes of moldy law books that were ruined when a storage trailer leaked during the 14-month courthouse renovation project.

"The very worst (books) are outside," Auditor Virginia Bostick said. "Some were wet when they came out of the boxes. Some had been wet but (had) dried and were all moldy. There are 12 boxes."

The books were part of Union County's law library. Union Circuit Court Judge Matthew Cox said the court must have a law library available for attorneys and the public. Cox is seeking an estimate to replace the damaged books.

The storage trailers were rented by construction manager Spike Shepler of PMSI Inc., but insurance coverage for the trailers hasn't been determined, Bostick said. The county's insurance will cover the loss, but it has a $2,500 deductible, she said.

Shepler will be bringing a group from Randolph County to tour Union County Courthouse on Sept. 7. The Randolph County commissioners voted two years ago to demolish their 1870s-era courthouse, but now are looking to save the building.

Here is a link to some earlier ILB entries about Union and Randolph county courthouse renovations.

Also of interest is the approach being taken in Defiance Ohio to the question of build or rennovate. See this story by Angela Mapes from the August 17th Fort Wayne Journal Gazette. The Definance County Website had a good powerpoint presentation about the project - unfortunately, it seems to not longer be available online.

Posted by Marcia Oddi on Tuesday, August 29, 2006
Posted to Indiana Courts

Ind. Decisions - "Appeals court upholds Silvercrest's closing"

Lesley Stedman Weidenbener of the Louisville Courier Journal writes today on the Court of Appeals decision yesterday upholding a challenge to the closing of the Silvercrest Children's Development Center in New Albany.

The case is Angel M. Combs, et al. v. Gov. Mitch Daniels and Judith Monroe - see the ILB entry here (2nd case).

From the story:

Gov. Mitch Daniels' administration had the authority to close the Silvercrest Children's Development Center in New Albany this spring, despite a state law establishing the program, an Indiana appeals court ruled yesterday.

The nine-page decision, which upheld a lower court ruling, said the same law gave the commissioner of the Indiana Department of Health "complete administrative control and responsibility for the center," a place designed as a temporary residential school for disabled children. * * *

[Plaintiff] Combs said she sees little reason to appeal the decision to the Indiana Supreme Court. The attorney handling the case, Mary Jane Lapointe in Indianapolis, did not return a message left at her office yesterday.

Posted by Marcia Oddi on Tuesday, August 29, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Man on trial in Clark for 1980 rapes"

The ILB in July and August posted several entries (most recent here) on a third (which ended in a hung jury), and possible fourth, trial in the South Bend Osco triple murder from 1990.

Today, the Louisville Courier Journal has a story by Ben Zion Hershberg headlined "Man on trial in Clark for 1980 rapes." It begins:

A man went on trial yesterday in Clark County, accused of raping two women in Evansville more than 25 years ago.

Thomas N. Schiro was never tried in connection with the 1980 rapes because he was sentenced to death in 1981 after being convicted of raping and bludgeoning to death 28-year-old Laura Luebbehusen in February 1981, when he was 20.

But the Indiana Supreme Court overturned Schiro's death sentence in 1996, ruling that the trial judge had imposed the death penalty after the jury had rejected it.

The Supreme Court ruled Schiro should serve 60 years in prison, and because an Indiana prisoner can get a sentence cut in half for good behavior in prison, Schiro could be released in February.

After Schiro's death sentence was overturned, Vanderburgh County Prosecutor Stanley Levco said he decided to prosecute him in the 1980 cases. There is no statute of limitations on rape in Indiana.

"I wanted him accountable. I didn't want him out on the street," Levco said.

The trial is being conducted by Vanderburgh Circuit Court Judge Carl Heldt in Clark Circuit Court, where it was moved because of publicity in Vanderburgh County.

Posted by Marcia Oddi on Tuesday, August 29, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Paper criticizes recent Court of Appeals opinion on drunk driving

"Indiana Court of Appeals reduces sentence in fatality" is the headline to this editorial today in the Evansville Courier& Press:

In one of its most short-sighted decisions recently, the Indiana Court of Appeals has reduced the sentence of admitted drunken driver Adam D. Miley from 14 years in prison to 12.

Miley pleaded guilty last year to causing the Feb. 10, 2005, crash that killed Michael "Mickey" Barnett, a 34-year-old married father. In pleading guilty, Miley admitted he drank numerous beers and smoked an unknown substance before his pickup plowed into Barnett's car at the intersection of Morgan Avenue and Burkhardt Road.

Miley could have received six to 20 years in prison - Vanderburgh Superior Court Judge Wayne Trockman sentenced him to 14 years. At the sentencing Sept. 8, Trockman paused to observe "that every person in this community has the right to be safe on our streets from intoxicated drivers (and) the community will not tolerate those who drink and drive."

In a 16-page decision Thursday, the Court of Appeals took issue with that statement. Citing a 1991 case, the appellate panel ruled it was "improper" for the judge to list that as an aggravating factor and called for a longer sentence for Miley.

Appellate judges John Baker, Melissa May and Patrick Sullivan also ruled Trockman should have reduced Miley's sentence because Miley had pleaded guilty without a plea bargain, thus sparing the victim's family the ordeal of a trial.

One must keep in mind that the Court of Appeals doesn't hear live witnesses testify - it relies on case transcripts and pleadings filed by attorneys. And with all due respect to the appeals court judges, one wonders if they misunderstood the context of Trockman's remarks from the bench.

For those who attended the sentencing, it was clear that Judge Trockman's comments were directed not just to the defendant, but also to the packed courtroom of spectators. It was also directed to the larger Evansville public. It is not uncommon at sentencings for judges to lecture defendants - either to deter others from committing similar crimes or to express the conscience of the community.

Whether prosecutors can appeal the sentence reduction to the Indiana Supreme Court will be up to the state attorney general's office. Practically speaking, it would make little difference if they didn't appeal, since the Miley case sets no legal precedent and, with the state's early release policy, Miley would get out in six years instead of seven.

Nonetheless, it is an affront to Barnett's family and other victims of drunken drivers to let this decision stand. Trockman is a wise, meticulous judge, and his observations were appropriate in context. In light of all the devastation Miley caused, Miley ought not to be released early.

The editorial follows on the Evansville Courier& Press story last Friday by Bryan Corbin headed "Sentence cut in fatal DUI crash".

The case, Adam Miley v. State of Indiana (NFP), is a not-for-publication opinion, which is what the editorial means by its statement: "Practically speaking, it would make little difference if they didn't appeal, since the Miley case sets no legal precedent."*

Note that without the Court's significant policy change last week, this opinion would not have been readily available online, although a paper copy would be available from the Clerk's Office (if you knew enough about it to ask for it).
_____________
*Under Appellate Rule 65(D):

Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
But, under 65(B):
Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication.
The "criteria for publication" are set out in 65(A):
(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

Posted by Marcia Oddi on Tuesday, August 29, 2006
Posted to Ind. App.Ct. Decisions

Courts - Suit filed seeking to enjoin Florida’s canons that require judges to recuse themselves from cases involving issues that they responded to in questionnaire

Ed Feigenbaum has posted this new item in Indiana Daily Insight:

Represented by Indiana Republican National Committeeman James Bopp, Jr. of Terre Haute, the Florida Family Policy Council filed suit in the U.S. District Court for the Northern District of Florida in Tallahassee Monday seeking to enjoin Florida’s canons that require judges to recuse themselves from cases involving issues that they responded to in a questionnaire asking their views on legal and political issues.

The suit was brought against members of the Florida Judicial Qualifications Commission and Chief Bar Counsel for the Florida Bar – entities charged with disciplining judges and lawyers who violate the judicial canons of Florida and the state’s Rules of Professional Conduct.

According to Bopp, lead counsel for the plaintiffs, the Florida recusal requirement “is contrary to the U.S. Supreme Court’s holding, which clearly stated that judicial candidates have a right to respond to surveys like this and that voters have a right to hear what they have to say.”

Bopp, who successfully argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), says that the recusal requirement was being interpreted to suppress the same sort of free speech that Minnesota had tried to punish.

The Florida Family Policy Council has asked for a preliminary injunction so that judicial candidates may respond to the questionnaire without fear of recusal should they hear the same issues as judges. The Council hopes to resend and publish judicial candidates’ questionnaire responses before the November 2006 general election.

Posted by Marcia Oddi on Tuesday, August 29, 2006
Posted to Courts in general

Courts - "Exacting Easterbrook to Be Chief of 7th Circuit"

Lynne Marek of the The National Law Journal has a long story today titled "Exacting Easterbrook to Be Chief of 7th Circuit." Some quotes:

The ascent of [Judge Frank H. Easterbrook], who has been on the court since 1985, will mean only a handful of changes for a court that he considers well-managed.

"It's running about as smoothly as one could hope for," Easterbrook said in a recent interview. "I could mess up and become notorious from that perspective, but there's nothing I could do I think to make people think it was a better court."

Easterbrook, 57, will take the top post when Chief Judge Joel M. Flaum turns 70, the age at which a chief judge is required to step aside and hand the baton to the most senior judge who hasn't been chief. Easterbrook is not particularly excited about the new job, which is mainly an administrative one, because he'd rather spend time on judicial work. Still, he said he's duty-bound to take his turn.

As chief, he'll have general oversight of staff, facilities and budget matters for the 15 courts in the three states of Illinois, Indiana and Wisconsin. He will also handle any concerns about the competence of about 100 judges on those courts.

To make more time for court work, he's cutting one of the two courses he typically teaches at the University of Chicago Law School and is reducing his commute by moving his home closer to the federal courthouse in downtown Chicago.

Easterbrook, who is single and has no children, hopes that his new duties won't disrupt his practice of spending three months of the year in Alaska, never more than two weeks at a time, while sometimes telecommuting for work. The Buffalo, N.Y., native said he loves Alaska's climate, mountains and animals. He spends a lot of time hiking and watching the wildlife, he said. * * *

Easterbrook was appointed to the bench by President Ronald Reagan after he had been a law professor at the University of Chicago for eight years and while he was working for the economic consulting firm Lexecon Inc. He worked in the Solicitor General's Office from 1974 to 1979, arguing before the U.S. Supreme Court on a number of occasions.

As a scholar and a judge, he's "had an enormous impact because of the forcefulness of his reason, the clarity of his writing and his willingness to stake out the non-traditional positions," said Dan Fischel, a former University of Chicago Law School dean who now teaches at Northwestern University School of Law. Fischel, who is also president of Lexecon, co-authored with Easterbrook "The Economic Structure of Corporate Law," a book that "revolutionized" the approach to corporate law and is still used to teach law 15 years after its publication, said Dan Klerman, a professor of law and history at the University of Southern California. * * *

The two biggest challenges for any chief judge today are maintaining a collegial court and grappling with a burgeoning docket using static resources, said David Vladeck, a professor at Georgetown University Law Center.

"This is a court that has avoided many of the tensions and the internecine battles that have marked other appellate courts, and I would expect he will do what he can to maintain that tradition," Vladeck said.

Easterbrook proudly notes that the 7th Circuit annually publishes about as many opinions as the 9th Circuit, which has about three times as many judges. Both circuits published about 600 written and signed opinions last year, according to the 7th Circuit's annual report. The 7th Circuit also allows more oral argument than most of the other appellate courts, he said.

While attorneys, professors and colleagues mainly praise Easterbrook's intellect and knowledge of law, their opinions about his tough courtroom style vary widely. Some say he's too harsh with attorneys, but are reluctant to talk about it publicly, given the possibility they may face him in court. He elicits a combination of reactions: Attorneys find him intimidating, but also intellectually challenging.

Stephen Moore, an attorney with Chicago-based Rowland & Moore, said that his time before Easterbrook "was probably the most enjoyable oral argument I ever had," describing it as "dueling with a brilliant mind."

But he also noted, "[y]ou'll see him, I don't want to say attacking an attorney, but putting them on the defensive. All parties are subject to his wrath."

Easterbrook earned the second-highest ranking in a 2003 study that sought to quantify the quality of federal judges' work by, among other things, counting citations to their work and measuring how fast they produced opinions. Easterbrook's fellow 7th Circuit judge, Richard Posner, ranked No. 1.

"It's not just that he comes out ahead of everybody, except for Richard Posner," said Mitu Gulati, a Duke Law School professor who co-authored the study. "It's by how much he comes out ahead. They're off the charts."

There is much more in this article.

Posted by Marcia Oddi on Tuesday, August 29, 2006
Posted to Courts in general

Monday, August 28, 2006

Environment - Scant land forces creative thinking for new parks

The Chicago Tribune has an interesting story today by Noreen S. Ahmed-Ullah. Some quotes:

Building parks once meant claiming meadows, digging lagoons and plunking down benches.

But like most major cities today, Chicago faces increased pressure on land and an insatiable hunger for recreational areas, breaks in the dense fabric of urban life.

That has pushed park planners to get creative. Often it means taking advantage of neighborhood changes, cobbling together tax-delinquent properties to carve out a park or transforming abandoned industrial parcels. Waterfront plots are especially valued, but unused railroad rights-of-way or even old landfills offer opportunities.

"The urban park movement today is really not about conserving land," said Peter Harnik, director of the Washington-based Center for City Park Excellence with the non-profit Trust for Public Land. "It's about revitalizing or reworking lands that have been used for something else."

And while planners work with what's available, they have also learned to exercise their imaginations about what some of these humble plots might offer, from history to sledding to new ways to see the city.

From approved plans to ideas that are just beyond a gleam in the eye, here are a few of the proposals under development at the Chicago Park District:

Here s the one that caught my attention:
On Chicago's Southeast Side, the USX mill was once one of the country's largest steel plants, employing more than 20,000 people. Changes in the industry led to the plant's closing in the early 1980s. The mill was demolished, and the land is overgrown with weeds.

City officials hope to redevelop the 500 acres into housing, hotels and retail and park space. Because it's prime lakefront land, acreage abutting the lake will be turned into green space and trails. Park officials also hope to build a marina.

But what gets Chicagoans most excited is the prospect that this property and another recently acquired lakefront site in Rogers Park now means that 24 of the 28 miles of Chicago lakefront are publicly owned. Daniel Burnham, whose 1909 Plan of Chicago envisioned public parks all along the city's lakefront, would have approved.

Posted by Marcia Oddi on Monday, August 28, 2006
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Laurie Batchelor and Indiana Department of Corrections v. Sharon Batchelor, an 8-page opinion, Judge Baker writes:

Appellant-defendant Indiana Department of Correction (DOC) appeals from the trial court’s entry of judgment in favor of appellee-plaintiff Sharon Batchelor.1 In particular, the DOC contends that the trial court erred in finding that it breached a contractual duty to Ronald Batchelor, Sharon’s deceased husband. Concluding that the trial court improperly found that the DOC had a contractual responsibility to Ronald to ensure that he effected the appropriate beneficiary changes following a divorce, we reverse the judgment of the trial court. * * *

Although the result may be unfortunate, the simple reality is that Ronald made a mistake. Either he forgot to mention to the DOC payroll clerk that he wished to change the designated beneficiary of his basic life insurance coverage from Laurie to Sharon or he did mention it but neither inspected the forms he completed nor realized that he had not filled out a form regarding his basic life insurance coverage. Either way, nothing in the record supports a conclusion that the DOC is contractually required to insure that mistake. Thus, we conclude that the trial court erred in entering judgment in favor of Sharon.

In Angel M. Combs, et al. v. Gov. Mitch Daniels and Judith Monroe, a 9-page opinion, Judge Baker writes:
Appellants-plaintiffs Angel Marie Combs, along with eight other students of Silvercrest Children’s Development Center (Silvercrest) through their legal guardians, two Silvercrest employees, and the American Federation of State, County and Municipal Employees (collectively, “Appellants”), appeal from the trial court’s denial of their request for a preliminary injunction preventing the closure of Silvercrest ordered by Governor Mitchell Daniels in conjunction with Judith Monroe, the Commissioner of the State Department of Health (ISDH) (collectively, “Commissioner”). Specifically, they raise two issues, which we consolidate and restate as whether the trial court erred in holding that the Commissioner had complete administrative authority to close Silvercrest. We affirm the judgment of the trial court.
NFP civil opinions today (2):

Gary Roark v. Valerie Roark (NFP)
- "The evidence before the trial court was insufficient to support the trial court’s imposition of the permanent protective order in Valerie’s favor. Reversed and remanded."

In the Matter of the Termination of the Parent-Child Relationship of J.B., minor child and Edgar Bradbury, natural father v. State of Indiana (NFP) - termination of parental rights. Affirmed.

NFP criminal opinions today (12) (link to cases):

William Randolph v. State of Indiana (NFP)

William Dewey King v. State of Indiana (NFP)

Aaron Dishman v. State of Indiana (NFP)

Alonda Wilson v. State of Indiana (NFP)

M. Cathy Ostler v. State of Indiana (NFP)

Dewey B. Williams v. State of Indiana (NFP)

Richard D. Dewitt v. State of Indiana (NFP)

A.P. v. State of Indiana (NFP)

Jimmy Dale Edwards v. State of Indiana (NFP)

Bryan Stone v. State of Indiana (NFP)

David G. Taylor v. State of Indiana (NFP)

Steven M. Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 28, 2006
Posted to Ind. App.Ct. Decisions

Environment - States sue other states for pollution. Could this happen here?

"Pollution in the Water, Lawsuits in the Air: With Damage to Ecosystem Jeopardizing Tourist Industry, Oklahoma Fights Back" is the headline to a story today by Juliet Ellperin in the Washington Post. Some quotes:

TAHLEQUAH, Okla. -- Every time the rain comes down, muddy water laden with phosphorus, arsenic and other contaminants flows into the Illinois River from chicken farms nearby and just across the border in Arkansas.

The inflow of nutrients has begun to change the river and the reservoir it feeds, Tenkiller Ferry Lake. At times the water is clogged with fish-killing algae, occasionally emitting a foul odor that affects the drinking water and undercuts the area's attraction as a tourist destination.

"This river used to be crystal clear," recalled Ed Brocksmith, a member of the Oklahoma Scenic Rivers Commission. "Phosphorus is the problem here."

Frustrated that nearly four years of talks failed to produce a solution, Oklahoma is now suing eight firms -- including Arkansas giant Tyson Foods Inc. -- on the grounds that the chicken waste applied to crops near the river contains hazardous chemicals that are damaging the ecosystem and jeopardizing the region's tourist industry.

"They're not fertilizing, they're dumping," said Drew Edmondson, an Oklahoma lawyer who filed the suit last year. "My concern is for the environment. My concern is for the lake and the river, which I'm watching being degraded before my eyes, literally."

Across the country, states and localities are suing polluters outside their jurisdiction, and sometimes each other, in efforts to curb air and water contamination that respects no borders. They say they are forced to act because Congress and the Bush administration have failed to crack down on everything from storm water runoff to dumping of invasive aquatic species.

In some cases, there is little in the way of federal law or regulation. This is the case with the factory farms in Arkansas and Oklahoma. The administration is still sorting through which regulations apply to poultry, dairy and hog farmers, and existing rules don't apply to those who buy the waste for fertilizer. And some lawmakers, such as Rep. Ralph M. Hall (R-Tex.), are lobbying to permanently exempt these industries from even minimal federal oversight.

Other times the administration has blessed activities in one state that another state opposes: Virginia -- over Kentucky's objections -- plans to allow a strip mining company to discharge more than a billion gallons of briny water into a river just eight miles from where it flows into Kentucky.

In others instances, the Bush administration has declined to take action, such as the Environmental Protection Agency's decision not to regulate ballast water from freighters that release invasive species into waterways. * * *

In Arkansas, poultry farmers see the Oklahoma lawsuit as a threat to their livelihoods. Keith Morgan, who raises 178,000 chickens at a time for Arkansas-based Peterson Farms, said he and other producers make a profit selling their waste as fertilizer and cannot afford to truck it out of the million-acre watershed. * * *

Some have succeeded with such litigation. In Texas, Waco officials sued after city drinking water became polluted by more than a dozen out-of-town dairy farms dumping waste into the North Bosque River. Eventually, Waco reached a series of settlements, including an agreement to monitor the river's water quality for two years and a pledge by the dairies to make sure any new cows they acquire will not worsen the area's water pollution.

Posted by Marcia Oddi on Monday, August 28, 2006
Posted to Environment

Law - "Missouri Voter ID Law Faces Legal Challenges"

"Missouri Voter ID Law Faces Legal Challenges" was the title to an NPR story this morning:

Morning Edition, August 28, 2006 · Missouri's new voter identification law is now in effect. It requires citizens to show a state-issued photo ID before voting. The law faces legal challenges. A Federal judge in Georgia threw out a similar law, while a judge in Indiana upheld one.

Frank Morris of member station KCUR reports.

Listen here.

For background, see this ILB list of earlier entries.

Posted by Marcia Oddi on Monday, August 28, 2006
Posted to General Law Related

Ind. Decisions - Transfer list for week ending August 25, 2006

Here is the Indiana Supreme Court's transfer list for the week ending August 25, 2006.

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

Posted by Marcia Oddi on Monday, August 28, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending August 25, 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 August 25, 2006.

Posted by Marcia Oddi on Monday, August 28, 2006
Posted to NFP Lists

Ind. Decisions - Three editorials today on last week's remonstrance ruling

Three editorials today on the Court of Appeals decision in Bruce Jones v. Martha Womacks (access ILB entry here - 3rd decision; see also this 8/25/06 entry).

From the Lafayette Journal & Courier:

All residents should be provided the chance to have a say in whether a school corporation should proceed with a building project.

That was the ruling from the Indiana Court of Appeals, which on Thursday declared the petitioning process used in remonstrance processes to be unconstitutional.

The petitioning process involves getting supporters and opponents of a particular project to sign competing petitions. But participation, under state law, has been limited to those who own property in the affected school corporation.

Remonstrances have occurred in a number of local corporations, including Tippecanoe School Corp. and Benton Central.

Now the appeals court ruled that the remonstrance process is a kind of election. The state cannot restrict traditional elections or referendums to property owners, so it can't place that requirement on remonstrance efforts.

It's a sensible ruling, one that recognizes that all Hoosiers should have a voice in government.

The ruling also recognizes that school projects affect not only those who own property, but also those who have children in school, and those who rent property and, presumably, pay property taxes through their rent.

The appeals court ruling won't go into effect until after the next legislative session, giving state lawmakers a chance to change the system used to challenge school boards' decisions to issue bonds to finance their projects.

A possible remedy would be to open the petitioning process to everyone living in the affected area.

But Rep. Jeff Espich, R-Uniondale, told the Associated Press he would prefer to hold a public vote on certain school bonds.

Some people may not want to put their name on a petition, which is a public document, but they would vote in an election, which allows for more anonymity.

"The whole idea is to give the public a say in these kinds of issues," Espich said.

According to the AP, 78 school bond remonstrance efforts have been attempted since state legislators passed the current bill in 1995. Forty succeeded and 38 failed.

Those numbers indicate that residents do want a voice in building projects; they do want some means of recourse when building projects are planned by corporation officials.

As they work to revamp the law to make it constitutional, state lawmakers should recognize the rights of residents to play a role in such decisions. But they also need to make sure that they don't make the process unwieldy, time-consuming or expensive for either schools or those challenging bonding issues.

From the Indianapolis Star:
Let's give renters a voice in how local governments, including school districts, spend money.
As it stands in Indiana, only property owners have the right to sign a petition either in support of or against proposed bonds. The Indiana Court of Appeals, however, ruled last week that renters also have a stake in blocking or approving such decisions.

In a case involving a recent $200 million bond issue by Indianapolis Public Schools, the three-judge panel correctly noted that higher property taxes lead to higher rents. Increased taxes on commercial property also are passed along to renters and non-renters in the form of higher prices.

State legislators should follow the court's lead by giving renters the right to participate in remonstrances and petitions that address paying for schools, libraries and other major capital projects.

As the U.S. Supreme Court said in an Arizona case, while property owners can have interests different from renters, "there is no basis for concluding that non-property owners are substantially less interested in the issuance of these securities."

The ruling, which doesn't affect the annexation process, won't take effect until after legislators have an opportunity to fix the law.

Lawmakers also should examine how the entire approval process works.

Studies show Indiana school districts spend a far high percentage of education money for interest on long-term debt than do schools in other states. The state's remonstrance process makes it difficult to mount opposition to projects such as the Central Library expansion, made by an unelected board, let alone to defeat them.

Perhaps big-ticket items should be subject to a referendum. Perhaps an arbitration process could lead to the type of negotiations that substantially cut the price tag of a recent school bond issue in Washington Township. Maybe postponing the issuance of bonds until after an intervening election of board members is the answer.

Perhaps less reliance on property taxes for building projects is the best answer of all.

From the Fort Wayne Journal Gazette, a lengthy editorial that begins:
The Indiana Court of Appeals forcefully and rightly ruled the state’s procedure of allowing dueling petition drives to determine the fate of large local government projects was unconstitutional because only property owners can participate.

Now, state lawmakers will be challenged to weigh a variety of compelling yet sometimes competing arguments to determine how much of a say the public should have in reviewing the spending decisions of their government officials. Of more immediate concern is whether the court’s decision should affect the pending petition drive over a Carroll High School expansion in Northwest Allen County Schools and Fort Wayne Community Schools’ plans for a multimillion-dollar, system-wide building renovation project.

State law allows property owners to challenge major building projects through a remonstrance petition that only property owners could sign. When 100 property owners sign a remonstrance petitions, it triggers a dueling-petition process in which supporters and opponents collect signatures of property owners, and the side with the most valid signatures wins.

The process is the equivalent of a vote that excludes renters and others who don’t own property. Paradoxically, it includes property owners who may not even live in the district or county. The process is appallingly exclusive.

“The petition/remonstrance process … is a de facto election or referendum,” the court ruled in a decision written by Patrick Sullivan, the dean of the appeals court judges. “We see no reason why the State, which could not constitutionally restrict the franchise to owners of real property in a traditional election or referendum by ballot regarding school bonding issues, should be able to accomplish effectively the same thing by providing for a petition/remonstrance signature-collecting competition. The State may not accomplish indirectly what it may not do directly.” * * *

Lawmakers need to seriously consider whether any kind of direct citizen vote on such projects is even necessary. Elected officials make other decisions that affect their constituents’ pocketbooks, and voters show their approval or opposition when those officials face re-election. * * *

Perhaps the simplest step lawmakers could take is to continue the petition procedure but allow any legal resident of voting age to sign. This step would undoubtedly increase the number of signatures, greatly increasing the workload for county auditors, who must verify the validity of all signatures.

Any new procedure the legislature develops is bound to have advantages and drawbacks. But almost any procedure is better than one that is not only unfair but, as the Indiana Court of Appeals determined, unconstitutional as well.

Posted by Marcia Oddi on Monday, August 28, 2006
Posted to Ind. App.Ct. Decisions

Law - A "ruling that promises to fundamentally alter the way many American law students prepare for the bar exam"

Shannon P. Duffy of The Legal Intelligencer reports today at length via Law.com:

In a ruling that promises to fundamentally alter the way many American law students prepare for the bar exam, a federal judge has concluded that a California company illegally copied questions from the Multistate Bar Examination for use in its bar exam preparation courses and ordered it to pay more than $11.9 million to the National Conference of Bar Examiners.

In the suit, NCBE claimed that employees of Multistate Legal Studies Inc. have attended bar exams in several states for the sole purpose of copying questions to be used in its prep courses.

MLSI is based in Santa Monica, Calif., and has offices in Philadelphia and New York. It operates bar-review programs under the trade name PMBR, which stands for "preliminary multistate bar review."

Lawyers for MLSI insisted that any similarities between the questions in their prep courses and those on the MBE stem from the fact that both are drawn from the same pool of material -- hornbooks, law treatises and case law -- and that such similarity is entirely permissible.

But Eastern Distsrict of Pennsylvania Judge John P. Fullam disagreed and said the evidence showed MLSI had copied both the detailed facts in the questions as well as the correct and incorrect answers.

"I conclude that nearly all of the 113 challenged questions are substantially similar to copyrighted MBE questions," Fullam wrote. "In many instances, evidence of copying practically leaps from the page." * * *

Fullam noted that many advertisements for the PMBR course use "testimonials" from former students that emphasize the similarity between its practice questions and those on the MBE.

In one ad, a student is quoted as saying that "dozens of nearly identical questions appeared on the actual exam," and another says he "breezed through the exam because I recognized so many of the questions from PMBR."

Because the illegally copied questions were a "major selling-point" for MLSI, Fullam concluded that the company should pay damages equal to one-third of its $35.7 million in revenues from a five-year period ending in 2005 during which more than 125,000 students took its three-day course, paying fees ranging from $250 to $300.

"Because question similarity is a major draw, and because infringing questions made up close to 40 percent of the PMBR from 2003 through 2005 (though a substantially lower percentage in 2001 and 2002), I conclude that attributing one-third of defendants' revenues to the infringing questions is justified," Fullam wrote.

MLSI was also enjoined from future copying of MBE test questions and its employees are now prohibited from taking bar exam tests "for any purpose other than to obtain bar admission in the jurisdiction in which the examination is being given."

Fullam's 25-page opinion in National Conference of Bar Examiners v. Multistate Legal Studies Inc. announces his verdict from a four-day nonjury trial in February.

Access the 25-page opinion here.

Posted by Marcia Oddi on Monday, August 28, 2006
Posted to General Law Related

Sunday, August 27, 2006

Ind. Decisions - ILB pretty much caught up with cases, but tomorrow is another week

The ILB has gone back and caught the past week, with its influx of NFPs, up-to-date.

In addition, among the cases the ILB failed to summarize several weeks ago was Jason Eichelberger v. State of Indiana. Several people have called this decision to my attention, and I have gone back and summarized it in this ILB entry from August 17th.

Posted by Marcia Oddi on Sunday, August 27, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals Court strikes down some convictions in child's death"

An AP story published Saturday in the Fort Wayne News Sentinel reports:

CROWN POINT, Ind. - The Indiana Court of Appeals has overturned the most serious felony convictions against a Crown Point couple serving 11-year prison sentences for causing the 2003 death of their infant daughter.

The separate, concurrent decisions by the court mean that Andrew and Kelly Stacy could be free in as little as a year. Prosecutors said the couple kept their home so filthy that it endangered the health of their children, including 4-month-old Katie Stacy, who was found dead among a pile of dirty clothes and blankets.

After a jury conviction a year ago, Lake Criminal Court Judge Clarence Murray sentenced Andrew and Kelly Stacy each on a B felony count of neglect of a dependent in the death of the child and three D felony neglect counts for Katie's three older siblings, who suffered from lice, malnutrition and other sicknesses.

Attorneys for the couple appealed the more serious felony conviction, saying there was not enough evidence that the couple knew their actions could result in Katie's death.

"We believe they (prosecutors) didn't prove (the Stacys) had the requisite knowledge of endangering the infant," said Marce Gonzalez, who represented Kelly Stacy.

The Lake County Prosecutor's office will review the ruling for a possible appeal to the Indiana Supreme Court, said chief deputy Barbara McConnell.

The opinions involved are Kelly L. Stacy v. State of Indiana (NFP) and Andrew Stacy v. State of Indiana (NFP), both issued Friday by the Court of Appeals.

Although both opinions are designated Not-for-Publication, they are now readily available online (although not citeable) due to the Court's change in policy announced and put into operation last week. For more on the change, start with this ILB entry from Aug. 23.

Posted by Marcia Oddi on Sunday, August 27, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Ruling takes a load off library officials' minds"

The Indianapolis Star reports today, in its Sunday "Behind Closed Doors" column, on the August 11th ruling of the Court of Appeals in Thorton-Tomasetti Engineers v. Marion County Public Library. The ILB entry is available here - 4th case:

Indianapolis-Marion County Public Library officials are breathing easier now that the Indiana Court of Appeals has rejected an effort to halt the Central Library project for load testing.

Library officials and their construction team, led by Hunt/Smoot Library Builders, warned the appeals court that subjecting the new underground garage's beams and columns to such testing by adding weight and measuring their movement could cause structural damage to the entire garage and lead to tens of millions of dollars in additional expenses for Marion County taxpayers.

The two-story garage serves as the foundation for a new, six-story addition. Already, the Downtown library renovation and expansion, now estimated at $153.6 million, is two years behind schedule, $50 million over budget and mired in expensive litigation.

This latest appeal arose after Special Judge Matthew C. Kincaid of Boone County rejected a request in January by the library's original structural engineering firm, Thornton-Tomasetti Engineers, to apply concrete weights to three beams in the new underground garage.

The internationally recognized engineering firm had proposed this step in an effort to challenge library officials' assertions that the garage was poorly engineered. The New York City firm argued that the garage could bear massive loads without the costly repairs the library has undertaken at taxpayer expense.

Writing for the unanimous three-judge panel on Aug. 11, however, Judge John G. Baker stated that load testing was not necessary to give Thornton-Tomasetti a fair opportunity to challenge the library's investigation, analysis and repair work. The appeals court ruled that taking expert testimony could accomplish the same goal and could do so with less risk of damage to the structure.

Posted by Marcia Oddi on Sunday, August 27, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Hupfer gives 10-year reprieve to canned hunting [Updated]

Niki Kelly of the Fort Wayne Journal Gazette reports today, in a lengthy story that begins:

INDIANAPOLIS – Kyle Hupfer, director of the Indiana Department of Natural Resources, made the pronouncement last August: no more hunting of white-tailed deer and other animals behind high fences.

The Department of Natural Resources passed emergency and permanent rules, and the governor and attorney general signed off.

The legislature tangled with the issue but failed to intervene.

And yet a year after Hupfer delivered those stern words on hunting ethics and fair chase, he is nearing a settlement with a handful of shooting preserve owners that allows the controversial activity to continue for at least a decade.

The Journal Gazette also has an editorial today headed "Canned hunt settlement unacceptable." Some quotes:
What looked like a satisfying end to a despicable business now appears to be a diversion to benefit high-fenced hunting preserve owners. A proposed settlement allowing the illegal operations to continue for another decade is an unacceptable resolution. * * *

Hupfer insists the agreement is fair to the preserve owners, who have much invested in their businesses and who are entitled to property rights.

He also suggests that an unfavorable ruling in the lawsuit could prove costly to the DNR, although that point is unclear. What seems more likely is that Hupfer has been pressured by legislators sympathetic to the canned-hunting operators to allow them plenty of time to recoup their interests.

There’s good reason the preserve operators are celebrating the settlement – it’s a clear victory for them. The fact that they are enthusiastically promoting the upcoming hunting season is an affront to all those who have worked to preserve sportsmanlike behavior in hunting. And the settlement is a clear loss for anyone who supports time-honored concepts regarding wildlife and the doctrine of fair chase – giving animals a sporting chance to escape.

Doug Allman, an advocate with the Indiana Deer Hunters Association, is right when he says the settlement is the wrong approach.

“It’s bogus for us to say it’s wrong and unethical but then look the other way for 10 years,” Allman told The Journal Gazette.

As for lawmakers, he suggests that if they approve of the practice of canned hunting, they should vote to legalize it and make themselves accountable to voters.

The proposed settlement goes far beyond fair in offering protection for this illegal business. It should be scrapped and the lawsuit allowed to proceed. A case in Montana ended with a federal court ruling that the state not only had a right to shut down high-fence hunting operations, but also a responsibility to do so.

In Indiana, the preserve owners had fair warning. The DNR should stick with its early intentions to enforce the law and shut down these businesses.

[Updated 8/28/06] Niki Kelly has another story today, this one headlined "Farmer’s son gets OK to shoot herd."

Posted by Marcia Oddi on Sunday, August 27, 2006
Posted to Indiana Government

Saturday, August 26, 2006

Ind. Courts - New judge appointed in Nappanee

Both the Goshen News (here) and the Elkhart Truth (here) report today that (from the News):

Gov. Mitch Daniels announced Friday the appointment of Nappanee native Timi Sloat as judge of the Nappanee City Court.

She succeeds Judge David Widmoyer who is resigning effective Sept. 1. * * *

Sloat currently is an associate attorney with Morris & Ruiz, P.C. and previously served as a deputy prosecuting attorney in Elkhart County. She has served as judge pro tem in Nappanee City Court during August.

Sloat received her undergraduate degree from Western State College of Colorado and a law degree from Indiana University — Indianapolis.

“Timi has deep roots in Elkhart County and will serve the citizens of Nappanee with distinction,” Daniels said Friday. “She’s a rising star in the legal community and brings to the bench a welcome balance of traditional small-town values and modern jurisprudence.”

The Truth story notes:
Sloat, a Nappanee native, is an associate attorney with Morris & Ruiz law firm in Plymouth, a position she will retain.

Sloat previously served as an Elkhart County deputy prosecuting attorney. She earned her undergraduate degree from Western State College of Colorado and law degree from Indiana University - Purdue University, Indianapolis.

Widmoyer, now 76, has served as city judge since 1980. He also is pastor of congregational care for Faith United Methodist Church, Goshen.

Ms. Sloat was admitted to Indiana practice 10/18/2005.

Posted by Marcia Oddi on Saturday, August 26, 2006
Posted to Indiana Courts

Ind. Courts - More on: Missing South Bend lawyer leaves clients angry, baffled

On April 19th, the ILB quoted from a South Bend Tribune story headlined "Missing South Bend lawyer leaves clients angry, baffled."

Today the Tribune reports:

A South Bend attorney has lost his right to practice law in Indiana after several clients filed complaints against him with the state's highest court.

In a recently filed order, Indiana Supreme Court Chief Justice Randall T. Shepard said he was suspending attorney John Hosinski's law license because Hosinski had failed to respond to the court Disciplinary Commission's attempts to contact him about the complaints.

Here is a copy of the Supreme Court order suspending Hosinski from the practice of law in Indiana.

Posted by Marcia Oddi on Saturday, August 26, 2006
Posted to Indiana Courts

Not law but interesting - Senator Obama, in Kenya, gets bribe money back for TV crews

From the Chicago Sun-Times this morning. Some quotes:

NAIROBI, Kenya -- Swamped by thousands of Kenyan fans at the memorial to victims of the 1998 U.S. Embassy bombing here, Barack Obama also pressured the Kenyan government Friday to refund what he said was shakedown money two Chicago TV crews were forced to pay at the airport to get their equipment out of customs.

On Friday night, Obama foreign affairs adviser Mark Lippert showed up at the hotel where Obama and the traveling press were staying with wads of cash in brown envelopes --one for CBS2 Chicago with $1,000 and another of about 59,000 Kenyan shillings, about $800 to the Chicago based Media Process Group, which is taping Obama's Africa travels. * * *

Obama's day started with a meeting with Kenyan President Mwai Kibaki and part of the conversation the Illinois Democrat -- whose father was a Kenyan -- had with the president were blunt comments about corruption.

"We were fairly out front about the importance of reducing corruption and crime in this country if Kenya wants to see significant economic development,'' said Obama, who will deliver a speech on government corruption in the coming days.

As an example, Obama told Kibaki that demands he considered bribes were made of Chicago TV crews flying to Kenya to cover his visit. * * *

"We got jacked up for $1,000 back there," he said.

Posted by Marcia Oddi on Saturday, August 26, 2006
Posted to General News

Ind. Courts - Man offers cash bribe to deputy prosecutor

From WTCA in Plymouth:

Marshall County Prosecutor, Kurt Palmer had 66 year old Ralph Costello arrested on August 23rd on alleged bribery charges. In a Friday morning press release Palmer states:
On August 22nd Ralph Costello of Plymouth was charged with one count of bribery as a class C felony in the Marshall Superior Court # 1.

It is alleged that on August 18th, while in the Courthouse in Plymouth, Mr. Costello offered a cash bribe of $150.00 to a deputy prosecuting attorney in an attempt to influence the outcome of a criminal case pending in Marshall Superior Court #2 against Robert Brown, Jr.

There is currently a pending motion to revoke the probation of Mr. Brown for his failure to successfully complete the terms of his probation.

Mr. Costello allegedly offered the money to the deputy prosecuting attorney in an attempt to have Mr. Brown’s probationary status restored to good standing.

Posted by Marcia Oddi on Saturday, August 26, 2006
Posted to Indiana Courts

Ind. Courts - "Bailiff accused of impersonating officer"

Ruthann Robinson of the Munster (NW Indiana) Times reports today:

CROWN POINT | It appears a Gary City Court bailiff decided to use his authority to aid him in his repo-man side job.

The problem is, he didn't have arrest powers.

Now there's a warrant out for the arrest of Paris Harris, 50, on charges of impersonating a public servant and criminal confinement. Harris has been suspended without pay, said Lynn Reeves, court administrator.

On July 29, Harris walked into Fagan Pharmacy, 504 Broadway, with an arrest warrant for an employee, according to the probable cause affidavit.

Harris flashed a photo ID card with a miniature star badge on it and told the employee he was under arrest on a domestic violence warrant, the affidavit states. The employee begged not to be handcuffed in front of his co-workers and customers, and Harris obliged, taking him outside, the report states.

Harris put the man into his car and drove off, the report states. When Harris didn't turn toward the jail, the man questioned him.

Harris explained there was "a new system." Then he asked the man if he owned a van. If it ran, Harris would let the man go, the report states. So they went to the man's house, where he handed over the keys to Harris.

Harris then repossessed the 1995 Ford Van for Commercial Auto and Truck, the report states.

Lori Caldwell of the Gary Post-Tribune has this report today:
Paris Harris, 50, a Democratic precinct committeeman in Aetna, faces up to six years in prison if convicted of the charges.

Lake County Deputy Prosecutor David Kowalczyk reviewed evidence presented by Lt. Del Stout for more than a week before approving the felony charges.

Ray Walton, an employee of Radde Security, told Stout that Harris came into Fagen Pharmacy at 504 Broadway on July 29 and informed him he had a warrant from Gary City Court. Harris flashed a worn identification card belonging to “B. Higgens,” escorted Walton out of the drug store, handcuffed him and placed him in a white Corvette.

Walton, who has since been fired from his job, said he first became concerned when he saw the “officer” direct him to the Corvette, then drive him in the opposite direction of the police station.

Harris told Walton he could take care of the old warrant on his own and explained he wanted to repossess a 1995 van because Walton was behind in his payments.

After turning over the keys to the van, Walton returned to work. Although Harris suggested Walton shouldn’t mention the “arrest” to anyone, Walton called police and reported the incident.

Most bailiffs in Gary City Court Judge Deidre Monroe’s employ have arrest powers through the Lake County sheriff. Harris does not have police authority, however, because it was revoked after he was fired as a correctional officer for the Lake County work release program.

Monroe told Stout, “Her staff has been advised the bailiffs of her court not to make arrests if they do not have commissions issued through the Lake County police department,” the probable cause affidavit states.

An arrest warrant has been issued for Harris, who had applied to become a member of the Gary auxiliary police unit.

Posted by Marcia Oddi on Saturday, August 26, 2006
Posted to Indiana Courts

Ind. Courts - "Judge denies TV station's request for witness lists in Behrman case"

"Judge denies TV station's request for witness lists in Behrman case" is the headline to an AP story published this morning the Louisville Courier Journal. Some quotes:

MARTINSVILLE, Ind. — A judge yesterday denied a television station's request for lists of potential witnesses in the trial of the man charged with killing Indiana University student Jill Behrman.

Indianapolis Fox affiliate WXIN had filed a formal request under the state public records law for lists of prosecution and defense witnesses who might testify in the trial of John Myers II.

In a three-page ruling, Morgan Superior Court Judge Chris Burnham said the records were confidential because they may contain the names of witnesses who appeared before the grand jury that indicted the 30-year-old Ellettsville man.

Grand jury proceedings are confidential under Indiana law. Burnham issued an order July 11 closing the witness lists to the public because they could be intertwined with the grand jury process. * * *

A grand jury indicted Myers on a charge of murder in April after hearing testimony from 90 witnesses. Authorities have declined to comment on any possible motive for Behrman's death.

Myers has pleaded not guilty and is being held without bond. Jury selection is to begin Oct. 2, with the trial to start Oct. 16.

An August 9th ILB entry recorded that "pretrial hearings in the Jill Behrman murder trial are being held in closed chambers."

From a June 8th ILB entry, quoting from an AP story by Ken Kusmer:

A judge on Thursday refused to release autopsy and forensic reports in the death of an Indiana University student whose body was found in 2003, nearly three years after she disappeared while riding her bicycle in Bloomington.

The cause and manner of 19-year-old Jill Behrman's death and other autopsy results have been sealed since December 2003 by order of Morgan Superior Court Judge G. Thomas Gray. He refused to change that stance Thursday.

Posted by Marcia Oddi on Saturday, August 26, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Star editorial on cameras in courtrooms

"Cameras keep eye on court system" is the title to the editorial today in the Indianapolis Star, followed by "Our position: Indiana court proceedings should be >permanently open to cameras." The piece provides some interesting context to the current experiment:

It shouldn't be a surprise that participants in an Indiana Supreme Court experiment allowing cameras in courtrooms report no disruptions in proceedings, no showboating lawyers, no intimidated witnesses.

Former Marion County Judge John Wilson might have predicted that. Decades ago, Wilson mounted a fixed camera in his courtroom allowing TV stations to broadcast some of the most widely publicized trials of the era. Until the state Supreme Court made him stop.

In 1990, Larry McKinney, now chief judge of the U.S. District Court for the Southern District of Indiana, participated in an experiment allowing cameras in federal courts.

"Our report back to the Judicial Conference was that we had tried it, we worked through some of the problems, and we did not see any difficulty with the conduct of the lawyers, with witness behavior or that it made jurors more or less nervous," McKinney said. "It was a relatively positive experience for us."

In 1994, however, the Judicial Conference rejected a recommendation to authorize cameras in federal courts.

But dozens of states permit cameras at trials and have done so for decades without incident.

The biggest problem with Indiana's 18-month pilot project is that lawyers for both sides have to consent to allow cameras. To date, only 10 to 15 percent of litigants have agreed to have cameras present. That could sway Supreme Court justices, who are narrowly divided on the issue, against permanently allowing cameras in all Indiana courtrooms.

Perhaps the most sensible approach on the issue was taken years ago by Hendricks Circuit Judge J.V. Boles, who decided to use modern technology to provide video transcripts of court proceedings, instead of relying on written transcripts that add expense to trials and fail to capture everything occurring in the courtroom.

If cable channels, local TV stations or newspapers wanted to tap the official recording, they easily could do so.

"The risk here isn't turning courtrooms into a circus or unduly invading someone's privacy," said Sen. Russ Feingold, D-Wis., in support of legislation to allow cameras in federal courtrooms. "The risk is the danger we pose to our society and our democracy when we close off our institutions to the people they are supposed to serve."

Posted by Marcia Oddi on Saturday, August 26, 2006
Posted to Indiana Courts

Friday, August 25, 2006

Ind. Decisions - One today from the 7th Circuit

Santos, Efrain v. USA (ND Ind., James T. Moody, Judge), a 15-page opinion, Circuit Judge Manion writes:

Efrain Santos and Benedicto Diaz ran an illicit lottery, which landed them in federal prison on money laundering charges. Their money laundering convictions were premised upon the word “proceeds” in 18 U.S.C. § 1956(a)(1) meaning gross income of unlawful activity. This court affirmed the judgments against them in United States v. Febus, 218 F.3d 784 (7th Cir. 2000). However, in later proceedings under 28 U.S.C. § 2255, the district court vacated their money laundering convictions on the basis of our decision in United States v. Scialabba, 282 F.3d 475 (7th Cir. 2002), which defined “proceeds” to mean net income, as opposed to gross income. The government appeals, asking us to overturn Scialabba and interpret the pivotal term “proceeds” to mean gross income. In the interest of stability in the law, we decline to do so and thus affirm the district court’s judgments in favor of Santos and Diaz.

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

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

As the ILB wrote yesterday:

The ILB is trying to develop an approach to the new wealth of Court of Appeals opinions posted each day. One problem over the past two days has been that the day's opinions have not all been posted at the same time, and the latest postings on the Court site then seem to become intermingled with those posted earlier in the day, making it harder to keep track.

What the ILB will try to do is keep all its CA postings for one day in one entry. If additional cases are posted later in the day by the Court, they will be added to the end of the appropriate listing, and the entry heading will bear the note: "Updated".

The ILB will try to do brief summaries of the FP cases each day, as it has in the past, plus the civil NFPs. Criminal NFPs will not be summarized or linked (except for a general link to the court page). But should a NFP criminal case attract attention, such as a newspaper story, or a grant of transfer, the ILB may go back and add content.

That last statement is exactly what happened today as a result of the Evansville Courier& Press coverage of the Court's NFP ruling yesterday in Adam Miley v. State of Indiana (NFP).

Two additional developments: The Clerk's Office has gone back and posted all the NFP opinions issued starting with April 21st, the date of the Supreme Court order. What the ILB hopes to do over the weekend is to go back and update the ILB entries from the 21st and 22nd to include the newly-available NFPs.

Second, the Supreme Court has now posted its Aug. 21st order (already available in this ILB entry), via a press release dated Aug. 24th.

For publication opinions today (4):

In Charles E. Hellums v. Alan D. Raber, a 7-page opinions, Judge Crone writes:

Charles D. Hellums appeals the trial court’s grant of Alan Raber’s motion for summary judgment. We reverse and remand.

We restate the issue as whether there is a genuine issue of material fact as to whether Alan’s actions were a proximate cause of Hellums’s injuries.

In In the Matter of the Guardianship of E.N., Adult, a 19-page 2-1 opinion (with the dissent beginning on p. 17), Judge Friedlander writes:
In this lawsuit, the Brothers appeal the trial court’s approval of an estate plan filed by the Children in their capacity as E.N.’s co-guardians. *** We affirm. * * *

BARNES, Judge, dissenting with separate opinion

I respectfully dissent. Although Judge Friedlander’s majority opinion is thoughtful and “solves” the long-standing dispute between the Brothers and the Children, the evidence indicates to me that the last will made while E.N. was competent left his estate to the Brothers and that today’s decision is in conflict with that intention. * * *

Because of the extreme disparities in E.N.’s wishes and the decline of his mental capacity toward the end of his life, I believe it is unwise to completely disregard the intentions clearly indicated in E.N.’s 1997 will, as this will appears to have been made while E.N. was competent. I am troubled, to say the least, that the Children who were specifically disinherited in this will, were subsequently permitted to effectively rewrite E.N.’s will to their benefit. Although Indiana Code Section 29-3-9-4 certainly permits the creation of estate plans in some situations, I am hesitant to allow the statute to be used to override an estate plan or will created by the protected person before the guardianship proceedings were initiated. Because the statute only permits, and does not require, the authorization of a guardian’s plan, I believe this dispute is better resolved in a probate proceeding.

In Chickamauga Properties, Inc. v. Hershall Barnard and Joyce E. Barnard, a 13-page opinion, Judge May concludes:
The trial court correctly concluded Dixon’s use of the access road ripened into a prescriptive easement in the early 1990s. The easement was not abandoned by nonuser. The adverse possession tax statute is inapplicable. Accordingly, we affirm.
In State of Indiana v. Thomas A. Cook, a 9-page, 2-1 opinion (with the dissent beginning on p. 6), Judge May writes:
The State appeals the grant of Thomas A. Cook’s motion to suppress evidence obtained from his trash. The police seized Cook’s trash because his name was on a list of customers who had purchased products from Worm’s Way, a garden supply company. The presence of Cook’s name on that customer list did not give police “articulable individualized grounds,” State v. Litchfield, 849 N.E.2d 170, 173 (Ind. Ct. App. 2006) (“Litchfield II”), for suspecting Cook of illegal activity. We accordingly affirm the grant of Cook’s motion to suppress. * * *

BAKER, Judge, dissenting.

I respectfully dissent from the majority’s decision to affirm the trial court’s grant of Cook’s motion to suppress. In particular, I part ways with the determination that the State failed to establish a reasonable suspicion for seizing the trash in these circumstances.

* * * I believe that the “specific indicia of reliability” requirement was satisfied here under the Terry standard. Therefore, I reject the notion that the seizure of Cook’s trash was merely random and based on some inchoate hunch by police officers that Cook “might” be in possession of contraband. For these reasons, I vote to reverse the trial court’s grant of the motion to suppress.

NFP civil opinions today (3):

In Terry R. Huber v. United Farm Family Mutual Insurance Company (NFP), a 7-page opinion with interesting details of how insurance disputes over property damage valuation may be resolved, Judge Crone concludes:

In conclusion, we hold that neither Huber’s claims nor their underlying issues are barred by the doctrine of res judicata. Huber has alleged that Farm Bureau acted fraudulently and that the umpire was biased. Since res judicata does not apply and Huber has alleged an appropriate ground for setting aside the appraisal, Farm Bureau is not entitled to judgment as a matter of law. Therefore, we reverse and remand for further proceedings.

In the Matter of S.L., a Child Alleged to Be in Need of Services (NFP) - "We conclude that sufficient evidence was presented to support the trial court’s determination that S.L. was a CHINS."

In the Matter of the Adoption of C.C., J.M. and A.M. (NFP) - "For the foregoing reasons, we affirm the trial court’s denial of Hayes’s petition to adopt the Children."

NFP criminal opinions today (6) (link to cases):

Antonio Tutson v. State of Indiana (NFP)

Alexander Antonio Lopez v. State of Indiana (NFP)

Natividad Balderas v. State of Indiana (NFP)

Kelly L. Stacy v. State of Indiana (NFP) - see 8/27/06 ILB entry

Andrew Stacy v. State of Indiana (NFP) - see 8/27/06 ILB entry

Michael Keys v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 25, 2006
Posted to Ind. App.Ct. Decisions

Law - "Wine Sales Thrive As Old Barriers Start to Crumble" [Updated]

"Wine Sales Thrive As Old Barriers Start to Crumble" is a must-read story for anyone following this topic. It is written by Vanessa O'Connell and appears on the front-page of today's WSJ. Unfortunately, presently the story appears to be available only to paid subscribers. It begins: "The business of wine is breaking free of one of the world's most archaic and tangled retail systems. The result: a rise in sales, and an explosion of new ways to buy wine." A quote:

The market is in upheaval because its many barriers are starting to crumble. Recently, a Seattle federal court struck down state rules forcing retailers to buy through wholesalers at pre-established prices. Several states are lifting rules that prevent consumers from buying wine directly from out-of-state producers and retailers.
[Update] The WSJ story is now available here. Here is another quote from the informative article:
For decades, wine and liquor marketers have been restrained by the 21st Amendment, which ended Prohibition in 1933 and granted the states broad power to control sales of alcoholic beverages. Fearful that a single player might dominate alcohol sales as gangsters had in the 1920s, the states set up a three-tier marketing system.

By law, producers could sell alcohol only to state-licensed wholesalers. Wholesalers then sold products to state-licensed stores, who ultimately made sales to consumers. Until recently, the three-tier system -- with its patchwork of state regulations -- made online sales nearly impossible. Some states, such as Missouri, even had laws in place setting a minimum wholesale price for wine and liquor sold in the state. Elsewhere, wholesalers often had to adhere to mandated minimum markups of 10 percent or more, or were required to sell each wine to all retailers in a state at the same price.

Retailers grew dependent on wholesalers -- some larger than the companies whose products they sell. Miami-based Southern Wine & Spirits of America Inc. is the market leader, with roughly $7 billion in annual revenue, according to the research firm Impact. The world's biggest wine company, Constellation Brands Inc., by comparison, has roughly $3.2 billion in annual wine sales.

Wholesalers only carry certain brands in a particular market, so stores must often go to dozens of them just to get the products they want. Since no one wholesaler does business in every state, national chains might have to deal with more than 450 different wholesale suppliers.

The snarl of rules explains why no retailer has emerged to carve out a nationwide franchise in wine, as Starbucks did with coffee, Victoria's Secret with lingerie or Home Depot with hardware.

Over the past several years, a spate of mergers in the wine business sparked similar consolidation among wholesalers, anxious to maintain their bargaining power. Giant companies like Southern, whose operations straddle several states, fought state-mandated controls on wholesale prices and some other restrictions.

The first major challenge to the old system came in the late 1990s, from small wineries in Virginia, Northern California and elsewhere. Eager to ship wine to customers in other states, the wineries began mounting legal campaigns against laws barring interstate wine sales in Indiana, Texas, Michigan, New York and North Carolina.

Their efforts culminated in a major victory last year, when the Supreme Court ruled that states must allow wine shipments to consumers from wineries both in and out of state -- or ban such sales altogether. While the court sanctioned interstate sales, it left it up to each state to permit them or not. The ruling didn't address beer and liquor producers, which are fewer in number than wineries and whose products are more broadly distributed in retail stores across the U.S.

Today, 34 states let consumers order direct from out-of-state wineries. In 1997, only 17 states allowed such shipments, thanks to lobbying in the 1980s and 1990s in those states by wineries in California and elsewhere.

Big retailers such as Costco, Target and Wal-Mart Stores Inc. are now pushing for change too, eyeing a lucrative new way to expand their sales. Wal-Mart found that at its new, upscale store in Plano, Texas -- where the median household income is nearly twice the national average -- its 144-square-foot wine section generates more sales per square foot than dairy products.

Costco mounted a federal court challenge to the three-tier system in Washington state's U.S. district court. In April, it emerged victorious when Judge Marsha Pechman issued a sweeping ruling, calling state wine and liquor regulations "plainly anticompetitive" and in violation of antitrust laws.

Judge Pechman not only struck down state pricing controls but also, earlier in the case, she prompted lawmakers to address the direct-sales issue. The state enacted new legislation allowing out-of-state wineries and brewers to ship their products directly to Washington retailers.

If the court's rulings ultimately are upheld on appeal and applied broadly, they could drive wine prices down and streamline the sales process. Warehouse clubs and other wine discounters could benefit the most because they compete ferociously on price. Costco already has a following from consumers looking for deals on fine wines, especially from France.

Washington's alcohol control board and wholesalers have filed separate appeals. Wholesalers say they play an important role in checking the power of big retailers and helping smaller stores compete.

Costco is "trying to change the system so they can apply direct pressure on suppliers without wholesalers being involved," says Craig Wolf, general counsel for Wine and Spirits Wholesalers of America. "The regulations challenged by Costco -- such as uniform pricing and no volume discounts to stores -- were intended to prevent big retailers from having advantages over the mom and pops, who lack the resources to keep up."

John Sullivan, associate general counsel for Costco, says its suit is about "bringing competition to the distribution of beer and wine, so that the distribution is subject to the same competition as every other facet of business." He says Costco is not trying to do away with wholesalers, but argues "there's no reason that wholesalers should have a special protection from competition just because of the things that happened 70 years ago."

In the months since the ruling, Costco has begun trying to get out-of-state wine and beer suppliers to sell to it directly, without much success. "We are doing our best," Mr. Sullivan says. "The current system has some inertia and there's great resistance" from wholesalers.

"Everybody wants to see how this plays out," says Mike Martin, a spokesman for Constellation Brands, which has refused to sell wine to Costco directly.

Last year's Supreme Court decision regarding interstate trade applied to wineries, not retailers. But store-owners argue they also should be covered. Some wine stores, wanting to directly ship bottles to consumers nationwide, have begun mounting their own legal challenges to state restrictions.

Posted by Marcia Oddi on Friday, August 25, 2006
Posted to General Law Related

Environment - "Environmentalists see victory in power plant waste ruling"

Mark Wilson of the Evansville Courier& Press reports:

A permit has been overturned that would have allowed the owner of the Rockport River Terminal to use waste from a nearby power plant as construction fill near the town water supply.

An administrative law judge said the Indiana Department of Natural Resources did not consider whether putting the power plant waste there would affect fish, wildlife or plants in the area when it gave the project a permit.

Rockport River Terminal President Bruce Kanipe has been seeking to use waste from the nearby American Electric Power plant to fill an 1,100-foot-by-500-foot area in the Ohio River floodway.

A major source of groundwater stretches beneath the site along the Ohio River, providing a water source for the towns of Rockport and Grandview in Spencer County, Ind.

Kanipe could not be reached to comment on whether he would file a formal objection to the appeal decision. He has until Sept. 11 to make a decision.

The DNR approved the permit in April 2005 but it was appealed by the groups Save Our Rivers and Save Our Land & Environment and several area residents. The Town of Rockport also joined the appeal.

"This is a major decision," said Don Mottley, an environmental activist who worked on the appeal.

He noted that the same judge, Sandra Jensen of the Natural Resources Commission, had ruled differently in past decisions involving the placing of coal combustion waste in a floodway and that her decision on the Rockport appeal refers to the waste as a contaminant - a key point for environmentalists.

Objectors argued using coal combustion waste - often described as fly ash or bottom ash, depending on its origins - in the floodway would potentially contaminate the water.

An earlier C&P story, from 8/9/05, reported:
Environmentalists and some area residents are appealing a state permit that would allow the owner of Rockport River Terminal in Spencer County to use power plant ash as construction fill near the town water supply.

After a yearlong process, the Indiana Department of Natural Resources approved the business' permit in April. However, it is being appealed by the groups Save Our Rivers and Save Our Land & Environment and several area residents. * * *

A major source of groundwater stretches beneath the site along the Ohio River, providing a water source for the Indiana towns of Rockport and Grandview. The town of Rockport serves nearly 1,200 water customers, according to the town utility office. That concerns Save Our Rivers' Don Mottley. "There are too many people who depend on this aquifer. We don't need another Pines here in Southwest Indiana," Mottley said.

The Northwest Indiana town of Pines was declared a U.S. Environmental Protection Agency Superfund site in 2000 after a plume of groundwater contamination was discovered. The pollution was traced to power plant fly ash, which was disposed of in a landfill near the town.

"That was in a landfill with liners and monitors," Mottley said. "They are not proposing any monitoring here."

Posted by Marcia Oddi on Friday, August 25, 2006
Posted to Ind. Adm. Bd. Decisions

Ind. Courts - "More young adults are serving on juries."

Following up on its Sunday story about the deeper jury pool (access ILB entry here), the Fort Wayne Journal Gazette has an editorial today on one of the results - "More young adults are serving on juries." Some quotes:

The effort to broaden jury pools in Allen County has had an apparently unintended result that should be viewed as a benefit: More young adults are serving on juries. * * *

The appearance of more young adults, even high school seniors, for jury duty has several benefits, including:

• Criminal defendants tend to be younger than the overall population, and including young adults is a big step toward forming a jury of the defendant’s peers.

• A jury that includes a cross-section of the community serves justice well. Having more youths helps diversify the jury just as much as having a range of people from different races and socio-economic backgrounds.

• At a time when many people lament a supposed lack of public involvement and lessening interest in the affairs of government among youth, thrusting young adults into the court system is great exposure to both civic duty and the courts system.

Though some criminal justice officials fear youths will be more liberal in judging accused offenders, there is really no reason to believe young adults will set a lower level of standards than their older colleagues on a jury.

Getting more young adults on juries was not the primary goal of the jury reform effort, but it is a positive benefit.

Posted by Marcia Oddi on Friday, August 25, 2006
Posted to Indiana Courts

Ind. Decisions - "Sentence cut in fatal DUI crash"

Bryan Corbin, Statehouse reporter for the Evansville Courier& Press, reports today on the Court of Appeals decision yesterday in the case of Miley v. State, a NFP decision, one of many now accessible online as a result of the Court's policy change. From today's story:

INDIANAPOLIS - The Indiana Court of Appeals has reduced the sentence of an intoxicated driver whose crash killed Michael "Mickey" Barnett last year, ordering that driver Adam D. Miley should serve 12 years in prison instead of 14.

The court found that an observation that a Vanderburgh County judge made at Miley's sentencing was "improper" to cite as a sentencing factor.

Vanderburgh County prosecutors don't know yet if they will appeal Thursday's ruling.

Meanwhile, Barnett's mother, Marilyn Barnett of Newburgh, who helped start a Mothers Against Drunk Driving chapter in Evansville after her son's death, said she struggled Thursday with how to break the news to her family.

The appellate decision also came as a disappointment to Melody Stevens, executive director of MADD of Indiana. "I think it's always hurtful to a victim's family when you hear of a decision like this. It doesn't matter if it's three months (after the fatal crash) or three years or 30 years, it's difficult." * * *

Miley later pleaded guilty as charged, without a plea bargain, to two Class B felonies and three Class D felonies. Having a range of between six and 20 years, Vanderburgh Superior Court Judge Wayne Trockman sentenced Miley to concurrent terms of 14 years in prison.

At the sentencing, Trockman cited as an aggravating factor "that every person in this community ... has the right to be safe on our streets from intoxicated drivers, (and) the community will not tolerate those who drink and drive."

The three-judge appeals court panel singled out that finding, contending it was "improper" for the judge to cite it.

"In our view, it is apparent that Miley's sentence was aggravated - at least in part - in order to send a personal, philosophical or political message to the community. Such a statement is improper to warrant the aggravation of a defendant's sentence," wrote appeals court Judge John Baker in the 16-page decision. * * *

Moreover, the three-judge appellate panel concluded Miley's sentence should have been mitigated (shortened somewhat) because Miley pleaded guilty without a plea bargain, thus sparing the victim's family the ordeal of a trial.

"In our view, Miley's decision to plead guilty, along with his remorse and acceptance of responsibility for his actions, constitute significant mitigating factors that were overlooked by the trial court," the appellate decision said. The appeals court ordered Miley's prison sentence modified to 12 years, not 14. * * *

With the sentence reduction, Miley would become eligible for parole in 2011.

Though prosecutors can request an appeal, the decision whether to file one is up to the Indiana attorney general's office.

Posted by Marcia Oddi on Friday, August 25, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: "Appeals court says petitioning process unconstitutional"

"Remonstrances are open to all, court rules: Petitions on bond issues shouldn't be limited to property owners, judge finds." That is the headline to this story today by Richard D. Walton of the Indianapolis Star. The subject is yesterday's Court of Appeals decision in Bruce Jones v. Martha Womacks (access ILB entry here - 3rd decision). Today's story reports:

Property owners should not be the only ones who help decide whether school districts and local governments can issue bonds, the Indiana Court of Appeals ruled Thursday.

The remonstrance practice, which had limited participation to property owners, was exclusionary, the court found, and violated the Constitution. The court said local residents, not just property owners, should be able to participate.
People on both sides of the 2004 remonstrance that sparked the court case hailed the ruling as a break for the public.

"Before it was: 'Well, you're not a property owner so you don't count.' That's wrong," said Carl Moldthan, a longtime opponent of the property tax increases that underwrite the bonds. Now, with more people able to participate, he said, "it will be a lot harder to pass bond issues unless you've got a very good reason." * * *

Thursday's ruling would take effect only after the next legislative session, giving state lawmakers the chance to amend the law to include non-property owners.

At issue in the case was a $200 million bond issue sought by IPS to pay off debt as part of a construction and renovation project estimated to cost more than $800 million.

A side-by to the story explains:
WHAT IS A REMONSTRANCE?

When local government or a school district seeks to raise money through taxpayer-supported loans, the effort can be challenged through a process called remonstrance.

Before property taxes can be raised to pay debt service, several steps must be taken.

First, a notice must be published that tells readers who want to start a remonstrance process that they have 30 days to do so. Then they must collect 100 valid signatures on a petition to trigger a full remonstrance among eligible people living the district.

Then opponents and supporters are locked in a monthlong race to collect the most valid petition signatures. Once the signatures are verified, the side with the most prevails.

The last high-profile example of a remonstrance in Marion County involved the 2004 quest by Indianapolis Public Schools to issue $200 million in bonds. Opponents were unable to collect enough signatures to defeat the proposal.

Posted by Marcia Oddi on Friday, August 25, 2006
Posted to Ind. App.Ct. Decisions

Thursday, August 24, 2006

Ind. Courts - More on the Ruth Lilly oral arguments

Court of Appeals Judge John Baker's comments during the oral arguments in the case of Americans for the Arts v. The Ruth Lilly Trust, et al. earlier this week, as reported in the Indianapolis Star and picked up here in the ILB, have been published in a number of out-of-state papers. This afternoon the WSJ Law Blog has a post titled "Judge Thinks Lilly Trust Dispute Isn’t Very Poetic." Some quotes:

“If there’s no money in poetry, neither is there poetry in money.”

–Robert Graves

That was the epigraph of a 2003 WSJ page-one story detailing how a $100 million donation to Poetry Magazine from pharmaceutical heiress Ruth Lilly was “sowing discord in the normally harmonious realm of verse.” The money had roiled the tiny publication: Among other un-poet-like moves, it sued a bank over the mismanagement of funds.

On Tuesday, an Indiana appeals court heard arguments in that case from the Chicago-based Poetry Foundation (home of the magazine) and the Washington-based Americans for the Arts, parties squabbling with National City Bank of Indiana over the 91-year-old Lilly’s estate. * * *

Because most of the coin won’t arrive until Lilly’s death, the two charities are fighting over the many millions before it’s even theirs. “If you have a gift horse,” scolded Judge John Baker, “keep your mouth shut.”

Posted by Marcia Oddi on Thursday, August 24, 2006
Posted to Indiana Courts

Ind. Decisions - "Appeals court says petitioning process unconstitutional"

Deanna Martin of the AP has already picked up on today's big Court of Appeals decision:

The petitioning process used to determine local support for schools to borrow money through bonds is unconstitutional because it only includes property owners, the Indiana Court of Appeals said in an unanimous decision Thursday.

However, the court said its ruling would only take effect after the next legislative session, which could give the Indiana General Assembly time to change the law to include nonproperty owners.

The state's petition and remonstrance process allows those for and against a school bond to collect signatures from property owners, and the side that collects the most petitions prevails. Bonds are usually used to finance major projects such as new or renovated schools.

The Indiana Court of Appeals called the process a de facto election. The state cannot restrict traditional elections or referendums to property owners - so it should not only allow property owners to participate in the "signature-collecting competition," the ruling said.

"The state may not accomplish indirectly what it may not do directly," Judge Patrick Sullivan wrote in the 3-0 ruling.

See the decision in the ILB entry immediately below - Bruce Jones v. Martha Womacks.

Posted by Marcia Oddi on Thursday, August 24, 2006
Posted to Ind. App.Ct. Decisions

Indiana Decisions - Court of Appeals issues 4 today (and 12 NFP)

The ILB is trying to develop an approach to the new wealth of Court of Appeals opinions posted each day. One problem over the past two days has been that the day's opinions have not all been posted at the same time, and the latest postings on the Court site then seem to become intermingled with those posted earlier in the day, making it harder to keep track.

What the ILB will try to do is keep all its CA postings for one day in one entry. If additional cases are posted later in the day by the Court, they will be added to the end of the appropriate listing, and the entry heading will bear the note: "Updated".

The ILB will try to do brief summaries of the FP cases each day, as it has in the past, plus the civil NFPs. Criminal NFPs will not be summarized or linked (except for a general link to the court page). But should a NFP criminal case attract attention, such as a newspaper story, or a grant of transfer, the ILB may go back and add content.

For publication opinions today (4):

David Fields v. State of Indiana is 10-page, 2-1 opinion affirming sentencing.

Scott D. Wells v. State of Indiana is a 2-page, 2-1 opinion correcting two factual problems but otherwise reaffirming the original opinion.

In Bruce Jones v. Martha Womacks, a 28-page opinion, Judge Sullivan writes:

Appellant, Bruce Jones, brought suit against Appellee, Martha Womacks in her capacity as Marion County Auditor, claiming that [IC 6-1.1-20-3.2], which governs petition and remonstrance procedures for building projects proposed by political subdivisions, was unconstitutional. The trial court ultimately granted summary judgment in favor of Womacks. Upon appeal, Jones claims that the trial court erred in granting summary judgment, arguing both that the current case is not moot and that the statute at issue violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in that it restricts the right to participate in the petition/remonstrance process to owners of real property living within the political subdivision. * * *

We recognize that this case is moot, and nothing we do now can change the fact that Jones was denied the right to participate in the petition/remonstrance process. Too, we are not inclined to overstep our judicial role and attempt to re-draft Section 3.2 to remedy the constitutional infirmities we perceive. Instead, we opt to stay the effectiveness of our holding until such time as the General Assembly adjourns from its next regularly-scheduled session. This provides the General Assembly with the opportunity to redraft or otherwise remedy the inadequacies of the current Section 3.2, if it so chooses. However, if the General Assembly does not act upon this issue by the time it adjourns, our holding will then be in effect, and the propriety of every petition/remonstrance procedure planned or then underway will be subject to the holdings of this case.

The trial court was in error to grant summary judgment in favor of Womacks in that Section 3.2 as currently drafted is unconstitutional.

KIRSCH, C.J., and DARDEN, J., concur.

In James Jarrell v. State of Indiana, a 14-page opinion, Judge Barnes concludes:
Jarrell’s confrontation rights under the Sixth Amendment were not violated by introduction into evidence of the DataMaster compliance certificate, and there is sufficient evidence to support his conviction. We affirm.

NFP civil opinions today (3):

Richard Beach v. Kristina A. Tormoehlen (NFP)
18 pp. - "Concluding that the trial court improperly calculated the amount of Kristina’s child support arrearage, we reverse that portion of the judgment and remand this cause to the trial court for a re-calculation of the arrearage that Kristina owes. In all other respects, we affirm the trial court’s judgment."

Robert G. Mertz v. Denise A. Mertz (NFP) 10 pp. - challenging a court order modifying child support and ordering the payment of college expenses for their eldest child. Affirmed.

In Harrison County Board of Zoning Appeals v. Craig Bishop (NFP), a 7-page opinion, Judge Crone concludes:

In our view, the Board’s interpretation of Indiana Code Section 36-7-4-918.5(a), the Local Ordinance, and the Subdivision Ordinance provided a rational basis for the Board’s decision, and thus we cannot conclude that the denial of Bishop’s variance request was arbitrary, capricious, or otherwise contrary to law. See Reinking v. Metro. Bd. of Zoning Appeals of Marion County, 671 N.E.2d 137, 142 (Ind. Ct. App. 1996) (reviewing court may reverse zoning board’s denial of variance if it does not rest upon a rational basis, or if it was arbitrary, capricious, or contrary to law). We therefore reverse the trial court’s order, thereby reinstating the Board’s denial of Bishop’s variance petition. Reversed.
NFP criminal opinions today (9) (link to cases):

John Ray Fries v. State of Indiana (NFP)

Ronald Haynes v. State of Indiana (NFP)

Michael W. Morgan v. State of Indiana (NFP)

Toby Johnson v. State of Indiana (NFP)

Sherman Nicholson v. State of Indiana (NFP)

Adam Miley v. State of Indiana (NFP)
- see 8/25/06 ILB entry.

Nathan A. Poehlein v. State of Indiana (NFP)

Bryan B. Sullivan v. State of Indiana (NFP)

William V. Dickerson, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 24, 2006
Posted to Ind. App.Ct. Decisions

Law - "Small Litigation Shops Produce Big Results"

Law.com has an interesting feature today, from the Daily Business Review, on litigation boutiques. Some quotes from the lengthy story by John Pacenti:

Litigation boutiques generally are characterized as having one dozen to two dozen lawyers, a payment system other than billable hours and careful selection of cases to enhance the firm's ability to provide individualized client service. The boutiques argue that they often provide better value than the litigation departments of larger firms.

Unlike bigger firms, many litigation shops offer a variety of payment options for clients: flat fee, contingency or a mix that may include some billable hours. The billing approach depends on the type of litigation, and litigation shops focusing on commercial defense differ from personal injury firms.

"At the large firms, often what is heard is a large sucking sound," said Steven L. Schwarzberg, of Schwarzberg Spector Duke Schulz & Rogers, an 11-attorney firm in West Palm Beach that focuses on defending employers in suits filed by employees or former employees. "There are lots and lots of fees, but not a lot of results."

Ervin Gonzalez, of the 15-attorney Miami firm Colson Hicks Eidson, said his firm only does plaintiff-side, high-stakes complex litigation. "The benefit you get is real trial lawyers who are not afraid of trying cases and who can get to the bottom line effectively and efficiently without overbilling," he said.

In addition, boutique firm leaders say, their clients don't get the beehive treatment seen at large firms, where junior associates may be brought in to carry the load.

"If a client hires me, they are going to get me, not just me lightly overseeing young associates doing the work," said Gonzalez, who has won a string of huge verdicts and settlements in Florida over the last several years. "The philosophy I use to meet the test is I ask myself what kind of lawyer would I want, how would I want that lawyer to act, and then I try to be that lawyer." * * *

Christopher Duke, a partner at Schwarzberg's firm, said attorneys leave the bigger firms because they want to be hands-on in cases, not just a bit player. "You can have much more of an immediate impact," he said. "All of our partners here have come from big-firm backgrounds. We know what it takes to do high-level work." * * *

But leaders of larger law firms say they still have lots of advantages over litigation boutiques. Some have structured their litigation departments to concentrate on particular fields of law, somewhat mimicking the boutiques.

Posted by Marcia Oddi on Thursday, August 24, 2006
Posted to General Law Related

Ind. Courts - DOJ to investigate Marion County Juvenile Detention Center

The Indianapolis Star reports today, in a story by Richard D. Walton that begins:

The U.S. Department of Justice will investigate the troubled Marion County Juvenile Detention Center, focusing on how the staff can prevent or investigate abuse and how detainees can air grievances.

The investigation comes after a series of high-profile incidents surfaced at the center in the past four months, including reports of sexual abuse of females in custody and shoddy bookkeeping.

Federal officials confirmed the investigation but would not comment on it. Cale Bradford, presiding judge of Marion Superior Court, said Wednesday he welcomes the review.

"They're supposed to be one of the watchdogs" to prevent abuse, Bradford said.
Juvenile Court Judge Marilyn Moores could not be reached for comment about the center Wednesday.

According to a letter sent to local officials July 18, the civil rights investigation will seek to determine whether there are "systematic violations" of the U.S. Constitution's guarantee of civil rights.

The letter cited three key areas for review:

• Protecting juveniles from harm, including sexual abuse of female residents by staff members.

• The child abuse reporting and investigation systems.

• The ways residents can report and resolve grievances.

The letter says that if problems are uncovered, the Department of Justice will offer suggestions for improvements.

Posted by Marcia Oddi on Thursday, August 24, 2006
Posted to Indiana Courts

Ind. Courts - "Judge rings up 3 cell phone owners on contempt charges "

"Judge rings up 3 cell phone owners on contempt charges" is the headline to a story today by Ruth Ann Krause in the Gary Post-Tribune:

CROWN POINT — Ringing cell phones in court Wednesday were annoying to Lake Superior Court Judge Diane Ross Boswell, who found three people in contempt.

Cynthia Cannon of Gary, whose phone rang twice while Boswell was conducting hearings, initially was ordered out of the courtroom, then was told to take a seat in a row of chairs along the wall where defendants and defense attorneys sit.

When the morning court call begins, bailiffs in Boswell’s court tell visitors they must turn off their cell phones. There also is a sign outside the courtroom indicating cell phones aren’t allowed.

Verdell Berry Jr. was turning off his cell phone when it beeped. An irritated Boswell told Berry, Shonique Freeman of Gary, Mark Suller of Hammond and Aaron Hindson of Merrillville to sit next to Cannon.

Berry said he was trying to turn off his phone and it made a noise.

Freeman, who was with Berry, didn’t tell Boswell it was Berry’s phone that made the noise.

“The next time the court asks you a question, answer it,” Boswell said.

Berry and Freeman were told to perform 40 hours of community service.

Suller and Hindson were off the hook after they showed the bailiff their phones had been turned off.

Cannon was given the option of community service, one day in the Lake County Jail, or a $100 fine. Cannon said she is disabled and can’t sit for long periods of time, so she opted for the fine.

All three people can appeal their sentence within 30 days.

The Munster (NW Indiana) Times also has story, by Ruthann Robinson:
CROWN POINT | When the third cell phone rang in her courtroom Wednesday, Lake Criminal Court Judge Diane Boswell had enough.

Boswell stopped court and asked the offender to fess up.

No one did.

So she ordered the entire row the sound came from to stand up.

Still no one squealed.

Boswell told all five people in that row to come forward and sit in chairs reserved for offenders.

There they sat, waiting an hour for morning court call to end.

Boswell found in contempt of court three of the five people who she determined had thumbed their noses at the court's authority.

Cynthia Cannon admitted her phone was one of the ones that went off. The judge ordered her to do community service.

"I can't work. I'm on disability," Cannon, of Gary, said.

Boswell assured Cannon she wouldn't be doing hard labor -- possibly something like checking in books at a library.

"I can't sit for very long. I've got a bad back," Cannon said.

"Well, I could put you in jail for a day and you could sit there," Boswell said. "Or I could fine you $100."

Cannon opted for the fine.

Verdell Berry Jr., of Merrillville, said he had two phones. One was off, the other he turned off when Boswell warned the gallery all cell phones must be off. The sound of it powering down is what she heard, Berry said.

He admitted he didn't speak up to explain that when Boswell first asked.

Shonique Freeman, of Gary, said she knew it was Berry's phone, but she didn't offer the information, either.

Boswell ordered both Berry and Freeman to serve 40 hours of community service.

"The next time you come to court, don't bring your cell phone," Boswell said. "And when the court asks a question, answer the question."

Posted by Marcia Oddi on Thursday, August 24, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court order re posting NFPs

The ILB has this morning, via the Clerk of the Court's office, obtained a copy of the August 21st Supreme Court order authorizing the request of the Court of Appeals to post not-for-publication opinions online.

Posted by Marcia Oddi on Thursday, August 24, 2006
Posted to Ind. Sup.Ct. Decisions

Wednesday, August 23, 2006

Ind. Decisions - Supreme Court issues one today

In Dixie Packard & Clay Township Assessor v. Paul Shoopman, a 6-page opinion, Justice Boehm writes:

We hold that objection based on a petitioner’s alleged failure to comply with the statutory requirement that petition to the Tax Court be filed within thirty days after the agency determination is waived if not raised in the first response to the petition. * * *

The Assessor’s first response to Shoopman’s complaint was a December 2003 motion to dismiss certain respondents named in the complaint. The Assessor raised the objection to timeli-ness of the complaint for the first time in its Response Brief filed in February 2005. Although the objection was raised in the Assessor’s response, the response was untimely under Tax Court Rule 5 because it was filed more than 30 days after Shoopman filed his complaint. We therefore conclude that the Assessor has waived any objection to timeliness of filing.

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Ind. Sup.Ct. Decisions

Indiana Decisions - Court of Appeals issues a second batch of opinions today, including 7 for publication and 6 more NFP

Ah yes, be careful what you wish for ...

Jim D. Voris v. State of Indiana (NFP) - sentencing, affirmed.

Steven Grooms v. State of Indiana (NFP) - evidence admissibility, affirmed.

In Michael Rocap v. Kathy Money, et al. (NFP), a 19-page NFP opinion, Judge Mathias concludes:

We conclude that the doctrines of law of the case and res judicata are inapplicable. Additionally, Money and Talsky’s claims are not time-barred. As such, the trial court did not err when it denied Rocap’s motion to dismiss. Affirmed.
Daniel Baker v. Gale Phelps Revocable Trust (NFP) is a 4-page opinion by Judge Crone involving a trust formed by an attorney before her death and the question of whether a client's debt had been assigned to the trust. Reversed.

Elizabeth Nowak v. Martin Eckert (NFP) is a 9-page opinion by Judge Riley, concluding:

Based on the forgoing, we conclude that the trial court properly ordered Mother to pay child support arrearage in the amount of $4,613.00. Additionally, we conclude that the trial court did not abuse its discretion by refusing to find Father in contempt. Affirmed.

Byron K. Breaston v. Sheriff Michael Books (NFP) - Byron K. Breaston appeals the small claims court’s judgment in favor of Elkhart County Sheriff Michael Books on Breaston’s complaint. Affirmed.

In Brad Hirshey v. State of Indiana, an 11-page opinion, Judge Crone concludes:

In conclusion, we affirm Hirshey’s convictions for dealing in methamphetamine and possession of a sawed-off shotgun. We reverse his convictions for eight counts of possession of a switchblade knife, possession of marijuana, and possession of paraphernalia and remand for a new trial. Affirmed in part, reversed in part, and remanded.

In Eric D. Smith v. Indiana Department of Corrections, et al., a 19-page opinion in a case which has a number of amicus curiae on both sides, Judge Vaidik writes:

Eric D. Smith, an inmate at the Maximum Control Facility at Westville Correctional Center, appeals the trial court’s dismissal of his complaint pursuant to Indiana Code § 34-58-2-1, which provides that if an offender has filed at least three civil actions in which a state court has dismissed the action or a claim under Indiana Code § 34-58-1-2, the offender may not file a new complaint or petition unless a court determines that he is in immediate danger of serious bodily injury. Specifically, Smith contends that Indiana Code § 34-58-2-1 violates the Open Courts and Privileges and Immunities Clauses of the Indiana Constitution because it restricts offenders’ access to the courts. In this issue of first impression, we conclude that Indiana Code § 34-58-2-1 is constitutional and therefore affirm the dismissal of Smith’s complaint. * * *

In sum, we acknowledge that Indiana Code § 34-58-2-1 restricts the ability of offenders to bring civil actions. In Parks v. Madison County, we addressed Indiana Code § 35-50-6-5(a)(4), which provides that a person may be deprived of credit time if a court determines that a civil claim brought by the person in a state or an administrative court is frivolous, unreasonable, or groundless. We then made the following observation, which we find equally applicable here:

Were there no cost to society for such frivolous suits, there would be no need to discourage them. There is, however, a substantial cost. Meritless lawsuits consume valuable judicial, administrative, and law enforcement resources in the same measure and manner as do their counterparts that have some merit. I.C. § 35-50-6-5(a)(4) is intended to help preserve those resources by apprising incarcerated, pro se appellants that there is a possible down-side to the decision to litigate. The statute reflects the reality that such determinations are of a kind that someone with formal legal training is better equipped to make.
Parks, 783 N.E.2d at 724 n.2. By giving offenders three chances before they are restricted from bringing more complaints or petitions, Indiana Code § 34-58-2-1 merely forces offenders to be fiscally responsible and to pick and choose the lawsuits that they bring. We therefore affirm the dismissal of Smith’s complaint. Affirmed.
In Dale Morgan v. Tackitt Insurance Agency, Inc., a 13-page opinion, Judge Sharpnack concludes:
In summary, we conclude that a question of fact exists at least to whether TIA obtained the requested insurance and whether TIA informed Morgan that it did not obtain the requested insurance. Thus, the trial court erred by granting TIA’s motion for summary judgment. For the foregoing reasons, we reverse the trial court’s grant of summary judgment to TIA and remand for proceedings consistent with this opinion.
In Eric D. Smith v. Wal-Mart Stores East, LP, a 9-page opinion, Judge Vaidik summarizes:
Eric D. Smith, a pro se inmate at the Westville Correctional Center, appeals the trial court’s dismissal of his complaint against Wal-Mart Stores East, LP (“Wal-Mart”). Because Smith’s complaint against Wal-Mart is simply an attempt to relitigate his 2001 arson conviction, we conclude that his complaint is frivolous and therefore affirm the trial court’s dismissal pursuant to Indiana Code § 34-58-1-2, which provides a screening procedure for offender litigation.
Daniel F. Lomont v. State of Indiana - affirms convictions

In Demetrius Jackson v. State of Indiana, an 8-page opinion (with a dissent beginning on p. 6), Judge Friedlander writes:

Demetrius Jackson, pro se, appeals the trial court’s denial of his petition for leave to file a belated notice of appeal. He presents the following restated issue for review: Did the trial court err in denying his petition? We reverse and remand. * * *

In holding that Jackson is entitled to a hearing on his petition, we recognize that on similar facts in Baysinger v. State, 839 N.E.2d 1250, we reversed the trial court’s denial of the defendant’s petition for permission to file a belated notice of appeal and granted permission to file the belated notice of appeal. * * * Here, where the record is relatively undeveloped, we cannot make the necessary factual determinations, especially with regard to Jackson’s diligence in seeking permission to file a belated notice of appeal after learning of the proper method for challenging his sentence. Therefore, we reverse and remand with instruction that the trial court hold a hearing on Jackson’s petition. * * *

MATHIAS, J., concurs.
BARNES, J., dissents with separate opinion. [that concludes]

It is clear to me that there has been a great increase in the number of defendants seeking permission to file belated appeals challenging their sentences since Collins. Whether that is solely because of Collins or because of the proximity in time of both Collins and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), petitions for permission to file belated appeals must be closely scrutinized so as not to allow wholesale exceptions to the State’s interest in the finality of criminal proceedings.3 I believe the trial court correctly denied Jackson’s petition for permission to file a belated appeal and would affirm that decision.

In Stephen E. Abernathy v. State of Indiana, a 9-page opinion, Judge Sharpnack writes:
Stephen Abernathy appeals the trial court’s revocation of his probation. Abernathy raises one issue, which we restate as whether the trial court abused its discretion by ordering Abernathy to serve his three-year suspended sentence. We affirm.

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on Court of Appeals decision to post NFP decisions

The ILB has just received this note from appellate litigator George Patton of Bose McKinney:

You are to be congratulated in pushing for the posting of Not-For-Publication decisions on the website of the Indiana Court of Appeals. As I think you do, I favor an amendment to Indiana Appellate Rule 65 along the lines of Federal Rule of Appellate Procedure 32.1 (effective Dec. 1, 2006) permitting citation to such decisions while also requiring that a copy be provided to all parties and the Court.

While citation should be allowed, the question of "publication" has been overtaken by technological advances such as internet postings. My thinking is that the Indiana Court of Appeals does a good job of selecting which opinions belong "in the books." By not having to read all the civil decisions each day but just those "in the books," I appreciate the culling the appellate court does for the bar and based upon my experience largely agree that most decisions are of little value beyond the parties.

Posting the other decisions on the internet and allowing liberal citations will serve as check in the off chance that the Court's initial decision about the importance of case turns out to be overtaken by later events beyond the 30-day publication window in Indiana Appellate Rule 65(B). For example, I could imagine a decision that may seem as though it does not belong "in the books" but due to some later development becomes important and is so frequently cited that the Court or some later party asks that the decision be put "in the books."

Most of these decisions of the Court will never be cited even once and will fade away over time. Posting them on the internet, however, gives the public and the bar the assurance that cases are not being swept under the rug outside of public and bar view as I recall was suggested in a Res Gestae column a number of years ago to which a judge of the Court of Appeals responded. In my own practice, I probably will just look at the first paragraphs of the civil Not-For-Publication decisions just to make sure there is nothing I can use in any of the appeals I am working upon.

I am copying Chief Judge Kirsch to congratulate him and the Court on this decision to post the Not-For-Publication decisions on the site. I should finish by noting that in my experience the Court's Not-For-Publication decisions are often quite detailed and thorough reflecting well on the Court's decision-making process, something that cannot be said about some intermediate appellate courts across the country who I have heard issue one word decisions, like "Affirmed." In short, my prediction is that public confidence in the Court will grow as a result of the decision to post the Not-For-Publication decisions on the web.

Best regards,
George T. Patton, Jr.
Bose McKinney & Evans LLP
700 North One Lafayette Centre
1120 20th Street, N.W.
Washington, DC 20036-3406

[More] A report late this afternoon indicates that the Supreme Court issued an order on Monday approving the posting of NFP opinions, but the ILB has been unable to locate it on the Court website.

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Jackson County family court in works

From WCSI in Columbus:

BROWNSTOWN OKS FUNDING FOR 3RD COURT

Brownstown town council members threw their support behind a plan establishing a Jackson County court to deal with family issues on Monday. That support didn't come without a number of questions for those pushing a plan that would have the county's four municipalities give up some of their county economic development income taxes. The funding plan is based upon funding for Jackson Superior Court in Seymour. The funding plan calls for the county to shift funding for bonds for the jail and juvenile center buildings and courthouse renovation project from income tax to property taxes.

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Indiana Courts

Ind. Decisions - More on: Court of Appeals posts 15 NFP decisions today

So, where's the list? Here it is. I've summarized the two civil NFPs. There were no "for publication" opinions issued today.

NFP criminal opinions (link to cases):

Shirley Shane v. State of Indiana (NFP)

Robert Burks v. State of Indiana (NFP)

Stephen Puckett v. State of Indiana (NFP)

Richard McClaine v. State of Indiana (NFP)

Charles Colbert v. State of Indiana (NFP)

Thomas G. Roberts v. State of Indiana (NFP)

Charles L. Wathen v. State of Indiana (NFP)

Michael Bridgeforth v. State of Indiana (NFP)

Charles Holton v. State of Indiana (NFP)

Jeffrey L. Howard v. State of Indiana (NFP)

Timothy Dillow v. State of Indiana (NFP)

Jason Tye Myers v. State of Indiana (NFP)

Eugene A. Nowak v. State of Indiana (NFP)

NFP civil opinions:

In Dale Raber v. Health & Hospital Corporation of Marion County, et al. (NFP), a 5-page opinion, Judge Mathias writes:

Dale Raber (“Raber”) appeals, pro se, the Marion Superior Court’s judgments against him in two separate actions, both stemming from environmental health code violations filed by the Health and Hospital Corporation of Marion County (“the Corporation”) pursuant to Indiana Code section 16-22-8-31(b).1 Concluding that Raber has failed to comply with various rules of appellate procedure, we dismiss his appeal. * * *

An appellant who proceeds pro se is “held to the same established rules of procedure that a trained legal counsel is bound to follow and, therefore, must be prepared to accept the consequences of his or her action.” * * *

Raber has failed to include these sections under separate headings in his appellate brief. It is impossible to discern where Raber’s facts, procedural history, and arguments begin and end, amounting to little more than a torrent of completely unfounded accusations. * * *

Failure to follow the appellate rules can, in egregious situations, lead to dismissal of the appeal. Kirchoff v. Selby, 703 N.E.2d 644, 656 (Ind. 1998). We regretfully conclude that Raber’s failure to comply with the appellate rules precludes review of his appeal. Dismissed.

In Marc Stults v. Anderson Police Department, et al. (NFP), an 8-page opinion, Judge Robb writes:
Marc Stults sought and was denied access to certain records by the Anderson City Attorney on behalf of the Chief of Police of the Anderson Police Department (collectively referred to as “Anderson PD”). Stults filed a complaint against Anderson PD seeking to compel access to the records. The trial court granted summary judgment to Anderson PD, and Stults now appeals, raising two issues that we consolidate as one: whether the trial court properly granted summary judgment. We affirm. * * *

The trial court was not precluded from granting summary judgment even though discovery was pending because of Stults’ failure to timely respond to Anderson PD’s motion for summary judgment. The trial court did not err in granting summary judgment to Anderson PD because the records Stults was seeking were investigatory records, access to which could be denied in the agency’s discretion. The trial court’s judgment is affirmed. Affirmed.

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals posts 15 NFP decisions today

It is not news that the Court of Appeals issued 15 NFP opinions today, but these have been posted.

The question is -- does this indicate change in policy, or was it a posting error? The ILB is attempting to find out.

More: The ILB has learned that this is a Change in Policy. I hope to post more on that later.

Meanwhile, as discussed in earlier posts, approximately 70% of Court of Appeals opinions are designated as NFP. Under Appellate Rule 65(D):

Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
This rule remains in effect. It is separate and apart from the policy decision as to whether or not to make the NFP opinions readily available online. (They have always been available via the Clerk's Office.)

Summaries of NFPs. Unless the ILB is cloned (and cloned again), there is no way to review all the NFPs issued by the C of A each day. However, the ILB will list all the opinions, and will attempt to summarize the civil NFPs.

From Chief Judge Kirsch. With permission. I am posting a message that I received earlier today in answer to the question "Does this [posting of 15 NFPs] indicate a change in policy, or was it a posting error? The ILB is attempting to find out."

Dear Marcia,

The internet posting of our not-for-profit opinions which you noticed today is the result of a change in policy, not inadvertence. This change comes about after extended study and debate which was prompted to a significant degree by a number of postings in The Indiana Law Blog.

Thank you for both raising the issue and contributing to the debate.

If you have any questions, please write or call.

Sincerely,
Jim Kirsch

James S. Kirsch
Chief Judge
Court of Appeals of Indiana

And there is more. I quickly responded, saying in part that:
[This] really makes clear how much work your court does. Although I review the NFP list every week, seeing 15 NFPs posted this morning was an eye opener!

With your permission, I would like to post your message to me on the ILB. Please let me know.

PS - This is step one. Any thoughts (for publication or not) as to step two -- eliminating the NFP designation altogether?
Chief Judge Kirsch has just responded:
Dear Marcia,

If you would like to post my note, please feel free to do so.

As to whether the posting of NFP opinions will be a first step toward
the designation of all opinions as for publication, we will have to see.
The issue is which has been much debated, and the citability of federal NFP
opinions will be sure to continue the debate. By having our NFP decisions
more readily available, the bar and others interested in the issue will
have more understanding of what is at hand. Our work has always been a
matter of public record, but as you have noted, accessing that record has
been difficult at times, especially for people without ready access to the
State House. The posting of NFP decisions should help significantly in
this regard.

I have wavered over the years about the advisability of designating
every opinion as for publication. On the one hand, I see the tremendous
value of transparency. On the other, my concern about designating all
opinions "for publication" has nothing to do with the publication of the
opinions and everything to do with their citability. You note that this
morning we handed down fifteen NFP decisions. We hand down, on average,
more than thirty NFP decisions and more than fifteen for publication
opinions per week. If all of the NFP decisions were for publication and,
thus, citable, the volume of law in this state would increase by a multiple
of three. Everyone doing legal research would be affected by this
increase. It would drive up the cost of legal research significantly.
Ultimately, I think the issue will turn upon whether the benefits of
transparency justify the increased cost.

I look forward to the debate.

Sincerely,
Jim Kirsch

The ILB intends to continue to contribute to this debate. And contributions from readers will be appreciated.

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Oral arguments yesterday in Lilly trusts appeal

Richard D. Walton reports today in the Indianapolis Star on oral arguments heard yesterday in Americans for the Arts v. The Ruth Lilly Trust, et al. Here is the synopsis from the Court website:

Synopsis:The issue presented by this appeal is whether the trial court erred in granting summary judgment (a) approving the Bank’s intermediate accountings for the Accounting period; and (b) relieving the Bank from liability for the administration of Trusts during the accounting period.

The Scheduled Panel Members are:Judges Sullivan, Baker and May.

From the Star story:
An appeals court hearing Tuesday left the judge wondering why two charities that stand to reap millions from the estate of Ruth Lilly are squabbling about the money before it is even theirs.

Lilly, 91, is the only surviving great-grandchild of Eli Lilly, founder of the pharmaceutical company that bears his name. In 2002, her wealth was estimated to exceed $1 billion. When she dies, the Chicago-based Poetry Foundation and the Washington-based Americans for the Arts will be beneficiaries of two of her trusts.

Indiana Court of Appeals Judge John Baker said the Poetry Foundation and the Americans for the Arts are beneficiaries of "Ruth's lar-gess" and questioned why neither group objected when the trust documents originally were drawn up.

After hearing Eugene Schiltz, attorney for the Poetry Foundation, say there is a difference between consenting to language and failing to object to it, Baker responded pointedly.

"If you have a gift horse," he said, you "keep your mouth shut."

The appeal by the two groups of a Marion Probate Court judge's ruling will be decided on the law, Baker said, while suggesting a need sometimes for "some degree of common sense."

In 2002, the charitable groups filed suit alleging that National City Bank of Indiana, which oversees Lilly's wealth, had failed to sell $286 million worth of Lilly stock in the trusts quickly enough, reducing the value of the nonprofits' potential payday when she dies by tens of millions. The trusts were worth roughly $184 million when the suits were filed.

National City's attorneys, in court filings, said that both groups should be grateful for whatever money they receive. The bank said the arts groups "are potential beneficiaries today only because the bank sought them out."

Schiltz questioned a clause in trust documents that he says has protected the bank from accountability. The provision gives it the powers to sell or "to retain indefinitely" assets, provided the decision is made in good faith.

In response to Baker's observation that the bank didn't pocket trust money, Schiltz agreed but said the institution still benefited from the trust clause.

"It's a huge benefit," he said, "because they're not liable."

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Ind. App.Ct. Decisions

Courts - "Chief Justices Sound Alarm on Judicial Elections"

"Conference of state justices fears issue-based political campaigns sap public confidence in the judiciary" is the subhead to this Legal Times story by Tony Mauro. Some quotes (emphasis added by ILB):

The nation's state chief justices are launching a campaign to remind voters of what used to be obvious: Judicial elections are different from those for other offices.

Voicing "grave concern" over increasingly partisan and costly campaigns, the Conference of Chief Justices -- representing the top jurists in all 50 states, the District of Columbia, and U.S. territories -- voted Aug. 2 on measures to emphasize the "unique nature" of judicial elections. At least some of the judges in 39 states are elected.

"It's the money, it's the judicial questionnaires, it's a whole constellation of things happening now that don't advance the public's confidence in the courts," says Indiana Supreme Court Chief Justice Randall Shepard, outgoing chairman of the conference, who hosted the chief justices' meeting in Indianapolis. "We need to get information to bar associations and judges groups about what to do when the fire alarm goes off, or before the alarm goes off, in an election."

The chief justices also targeted low judicial salaries, which may be discouraging quality candidates from running. New data indicate that state judges' salary increases are lagging behind those of other state employees as well as private sector lawyers.

Though concern has been building for years about the increase in campaign spending and partisanship in what used to be sedate judicial campaigns, the main impetus for the latest effort by the chief justices is the fallout from a 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White.

That ruling struck down, on First Amendment grounds, a Minnesota canon of judicial ethics that barred candidates from announcing their views on disputed legal or political issues.

Several lower federal courts have responded to the decision by striking down other state canons and rules aimed at keeping judicial candidates from making campaign promises and partisan statements that may compromise the substance and appearance of impartiality once they are elected. * * *

At a symposium on the impact of the White decision at the National Judicial College in Reno, Nev., last year, participants called on the chief justices to move aggressively to improve public understanding of courts and the need for open-minded judges, as well as to change the "culture" of judicial elections.

A "call to action" endorsed by the participants at the Reno conference urged, "Very high priority must be given to reducing the aspects of judicial elections that jeopardize public confidence in our courts -- our state courts directly, but unquestionably all our courts."

None of this will be news to regular readers of the ILB. But where are the details?

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Courts in general

Ind. Courts - "Sending badly behaving kids to court"

WTWO Terre Haute reported yesterday:

A new program at one valley school is sending badly behaving kids to court!

It`s the "Courthouse Suspension Program" at Riverton Parke Junior/Senior High School.

Students who get suspended must now appear in a the Parke County courtroom with their parents and do their time in the grand jury room.

The program is already making an impact.

"I think the kids will take their suspensions pretty seriously knowing that this program is in affect," says Parke County Judge Sam Swaim.

"It scares me," says Riverton Parke Senior Ashley Craft, "Even though I don`t really do anything to get in trouble, it still scares me!"

"We are all in this together," says School Superintendent Leonard Orr, "[we`re]trying to do what we can to help kids get through school."

Orr modeled program after one he participated in up in Fountain County. One middle school there saw it`s numbers of suspensions decrease dramatically after the program had been put in place.

Posted by Marcia Oddi on Wednesday, August 23, 2006
Posted to Indiana Courts

Tuesday, August 22, 2006

Law - Federal judge strikes down Kentucky law prohibiting wine shipments [Updated again]

AP reporter Brett Barrouquere reports this afternoon, via the Lexington Herald-Leader:

LOUISVILLE, Ky. - Kentucky's prohibition on out-of-state wineries shipping their products to the state is unconstitutional because it discriminates against some businesses, a federal judge ruled Tuesday.

The ruling, by U.S. District Judge Charles Simpson, opens the door for wineries in other states that are licensed in Kentucky to ship wine across state lines.

The ruling came in a lawsuit filed by Huber Winery in southern Indiana, which claimed Kentucky's law violated the Commerce Clause of the U.S. Constitution by giving preference to Kentucky businesses over out-of-state merchants.

Until a new law goes into effect in January, Kentucky cannot enforce the criminal statute against out-of-state wineries shipping into Kentucky, Simpson said. * * *

Earlier this year, the Kentucky General Assembly passed a law requiring in-state wineries to sell their wares through wholesalers, just like other producers of beer or spirits.

Because of laws enacted in the 1930s following the repeal of Prohibition, alcoholic beverages are distributed under a three-tiered system in which brewers, winemakers and distillers are required to sell their products to a distributor, who then sells the product to retailers such as bars, restaurants and retail stores.

The new law will eliminate a provision in Kentucky law that allows small wineries to ship their product directly to retailers rather than having to use the services of a distributor.

[Updated 8/23/06] David Goetz of the Louisville Courier Journal has a few more details this morning:
Small wineries inside and outside Kentucky can ship products anywhere in the state, a federal judge ruled yesterday, if they have a state license.

The ruling, by U.S. District Judge Charles Simpson in Louisville, said the state cannot enforce the criminal statute against out-of-state wineries shipping into Kentucky.

The ruling also strikes down provisions of current Kentucky law requiring consumers who want wine shipped to order it in person. That could allow orders of out-of-state wine by telephone, mail or Internet.

Simpson said requiring customers to order in person gives too much advantage to Kentucky wineries, violating interstate commerce protections.

It's unclear what the ruling means for a new state law governing small wineries that goes into effect in January. Legislators most familiar with the new law could not be reached late yesterday.

I haven't been able to locate the opinion via the Lexington federal district court site.

[Update] Here, thanks to a mention in the Kentucky Law Blog, is a new Kentucky blog, Musings of a Bluegrass Barrister, that has a comprehensive report on yesterday's decision, with links to relevant documents.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to General Law Related

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

In US v. Ellis (SD Ind., Richard L. Young, Judge), a 14-page opinion, Circuit Judge Kanne writes:

After being convicted at trial on three counts of illegal possession of firearms, Brian K. Ellis was sentenced as an armed career criminal to 300 months’ imprisonment. He now raises three issues on appeal, including one argument relying on the decision of Crawford v. Washington, 541 U.S. 36 (2004). We affirm. * * *

Having dealt with those issues, we are left with Ellis’s argument relying on Crawford attacking the admission of the medical records establishing the presence of methamphetamine in his system. * * *

We agree with these courts that the mere fact a person creating a business record (or other similar record) knows the record might be used for criminal prosecution does not by itself make that record testimonial. The Court’s recent decision in Davis [Davis v. Washington (2006)] (though we recognize the Court made no such pronouncement) supports this conclusion because we think it necessarily rejects a strict adherence to denominating as testimonial all statements made under circumstances where a reasonable person would know the statements might be used as evidence of a crime.

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

Law - Superlawyers on ice, at least for now [Updated]

According to this story published Saturday in the Trenton Star-Ledger:

The state Supreme Court yesterday weighed in on the ongoing battle in the New Jersey's legal community over attorney advertis ing.

The court put the brakes on a ruling last month by the Commit tee on Attorney Advertising that prohibits lawyers from touting their inclusion on two lists -- "Super Lawyers" and "Best Lawyers in America."

Justice John Wallace Jr. signed the stay until there could be "further order of the court." * * *

Laywers in the case said they expect to file briefs on the issues to the high court in the coming days. It was unclear yesterday how exactly the court would review the matter and when it would issue a decision.

See a list of earlier related ILB entries here.

(Thanks to How Appealing for the link.)

[Updated 8/23/06] "'Super Lawyers' Edict Stayed by N.J. Supreme Court: Advertising and Web posting can go on; so can selection process" is the headline to a story from the NJ Law Journal by Henry Gottlieb, via Law.com. The lengthy story begins:

A state Supreme Court justice put Super Lawyers and Best Lawyers in America back in business in New Jersey on Aug. 18 by staying the ethics opinion that prohibited lawyers from advertising their inclusion in the two surveys.

Justice John Wallace Jr. issued the stay at the request of Super Lawyers Magazine's management and the State Bar Association, after the Committee on Attorney Advertising took no position on the request. The stay puts the panel's stricture, Opinion 39, on hold while the Supreme Court reviews its merits.

Wallace's action means attorneys can continue advertising their selection as Super Lawyers and Best Lawyers without fear of being nabbed by the ethics police. In addition, lawyers can fill out ballots being mailed this month for the next edition of Super Lawyers.

In other words, Opinion 39 won't make Super Lawyers and Best Lawyers in America ads unethical until the Supreme Court says it does.

Wallace's decision "has taken us back to the status quo before Opinion 39," says Bennett Wasserman of Newark's Stryker, Tams & Dill, one of the Super Lawyers counsel in the case.

The stay came after four weeks of anxiety, or at least puzzlement, among lawyers wondering about the effect of the opinion, and strategizing by attorneys hired by Super Lawyers and Best Lawyers in America to fight the ban. The State Bar jumped into the fray, too.

Bar President Wayne Positan says lawyers didn't know what to do: pull ads, take Super Lawyer plaques off their walls, reconfigure letterheads and Web sites at great expense or do nothing and risk disciplinary action.

In the Bar's request for a stay, he wrote: "In light of this turmoil, the balancing of equities would seem to tip in favor of permitting attorneys to maintain the status quo until a final determination is made by the Court about whether the advertising in question is appropriate or not."

The opinion, which had taken effect upon publication on July 24 [185 N.J.L.J. 360] affected Best Lawyers' 744 New Jersey selectees and Super Lawyers' 1,669. They couldn't advertise their inclusion in the services' lists or participate in the selection processes, under Opinion 39.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to General Law Related

Law - "What if there were IM acronyms for lawyers?"

"What if there were IM [instant messaging] acronyms for lawyers?" is the question asked in a WSJ Law Blog entry from last Friday. A sampling:

ASSA = Assuming arguendo

OFG = Open the flood gates

2SL = Slippery slope

AFB = At first blush

XF = Exercise in futility

WSA = Well-settled authority

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to General Law Related

Ind. Decisions - "Tissue ruling is victory for ACell"

The Court of Appeals for the Federal Circuit ruled yesterday in the appeal of a decision by federal Judge Allen Sharp. The case is Cook Biotech Inc., et al. v. Acell, Inc., et al., the Federal Circuit opinion is available here.

Jeff Swiateck covers the story today for the Indianapolis Star. The report begins:

A tiny Maryland company whose innovative tissue-growth product was used to treat the injured racehorse Barbaro will gear up its Indiana manufacturing plant now that it has won a legal victory over Purdue Research Foundation and Cook Biotech.

The Court of Appeals for the Federal Circuit has ruled that ACell Inc.'s products don't infringe a Purdue patent. ACell laid off 10 of its 20 employees after losing a jury trial last year but now hopes to rebuild its work force.

The ruling is "a complete and total victory for ACell," its general counsel, Miles Grody, said Monday. "We are now free to pursue our business without the cloud of an infringement verdict. The litigation was a huge impediment to us growing our business."

He said privately owned ACell, which maintains its production facility in Lafayette, plans to seek partners and investors to resume selling its veterinary products and add several products for human use.

ACell's products, including a powder and a paper-thin mesh that speed healing of tissue, potentially compete against Cook Biotech, which is based in West Lafayette and sells a line of similar tissue-healing biomaterial. Cook Biotech, with more than 100 employees, is one of Indiana's most successful biotech companies.

Both companies' products grew out of research done at Purdue in the 1980s and '90s by a former Purdue professor, Stephen Badylak, who became president of ACell for a year and is also a defendant in the infringement lawsuit. The inventor in the ACell patent is a former Harvard University professor and surgeon, Dr. Alan Spievack, who did work at Badylak's labs and founded ACell.

The appeals court ruling is the latest development in a long-running dispute over the biomaterial derived from the lining of the pig intestine, bladders or other livestock organs. The sterilized tissue, stripped of live animal cells, is used in humans to promote healing of almost any kind of tissue, from skin and tendons to the lining of the brain.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - One today from the Court of Appeals (and 9 NFP)

For publication opinions today (1):

In The Harbours Condominium Association v. Angela Hudson, a 16-page opinion, Judge Najam concludes:

We conclude that the trial court erred when it failed to include the delinquent assessment amount in the judgment and failed to grant the Association’s request to foreclose on the condominium lien on Unit 716. But such errors are harmless because Hudson has paid the Association the delinquent assessments and the late fees calculated by the trial court. We further conclude that the “liquidated damages” provided for under the Third Amendment constitute an unenforceable penalty because, on these facts, the damages are grossly disproportionate to the losses actually sustained by the Association as a result of Hudson’s delinquencies. We also conclude that the trial court did not err in its choice of title for the judgment because we read the judgment in its entirety together with the pleadings. And finally, we conclude that the Association is not entitled to appellate attorney’s fees because it has not prevailed on appeal.

NFP civil opinions today (5):

Geiger & Peters, Inc. and Carl L. Peters v. Michael R. Berghoff and Lenex Steel Company (NFP), a 19-page opinion, involves a claim of tortious interference with a business relationship. Affirmed.

Paul Glasscock v. Grant County Sheriff & Town Manager for the Town of Swayzee (NFP) - motion for rehearing denied.

James H. Higgason, Jr. v. Dennis Barger, et al. (NFP) - inmate suit. Affirmed.

David Brookmyer v. Carol Baker (NFP), an 11-page opinion, involves a probate dispute. Affirmed.

Julie A. (Beach) Estell v. Wernle Ristine & Ayers, L.P.C. (NFP), a 15-page opinion, is a contracts case involving a compensation dispute between an associate attorney and a law firm. Affirmed.

NFP criminal opinions today (4) (link to cases):

Jose Mendoza v. State of Indiana (NFP)

G.A.T. v. State of Indiana (NFP)

Timothy Banks v. State of Indiana (NFP)

Jimmy E. Isom, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More from the Porter County courts

Two Munster (NW Indiana) Times stories today from the Porter County courts:

First, the finger incident. "Man released early after court outburst" is the headline to a Bob Kasarda story reporting:

VALPARAISO | Jonathan Wilson said he was wrong last week when he flipped off Porter Superior Judge David Chidester with his middle finger and called him an obscene name.

"I went into his house and insulted him and his system of running things," Wilson said.

But the 31-year-old San Pierre man said he did not go into the courtroom looking for trouble, as Chidester later said. Wilson is also at a loss as to why the judge reacted so negatively to his letter of apology.

Wilson was released from the county jail Sunday, four days earlier than expected. Chidester's staff said the judge decided on the early release to allow Wilson to get back to work and to save taxpayers the cost of housing him at the jail. * * *

Wilson said he walks away from the experience with a greater appreciation for the appellate process and a suggestion that others not follow in his footsteps.

Perhaps he meant "the judicial process." For background, see this Aug. 18th ILB entry titled "More on: 'Bad idea: Flipping off the judge".'"

"Judge says kids are 'meaner than you've ever seen'" is the headline to this story today by Robyn Monaghan:

VALPARAISO | Porter County Circuit Court Judge Mary Harper wants to make the Juvenile Detention Center a safer place for its employees.

After giving back $100,000 in saved juvenile corrections fees from her court budget, Harper launched a campaign to get three full-time juvenile detention officers for the woefully understaffed facility.

It's an unsafe situation, Harper said. Over six months early this year, four employees filed workman's compensation reports for injuries received restraining violent young people. That is the same number of injuries as in the previous nine years, according to a report prepared by detention center Director Kenneth Perkins.

"We have to deal with dangerous children," Harper said. "They're violent. They're meaner than you've ever seen."

Harper, speaking with Perkins at the County Council budget meeting Monday, threatened to end contracts -- valued at up to $150,000 a year -- to house youths from Marshall and Jasper counties if the council refused to authorize at least two new officers, with yearly salaries of about $27,000 each.

This year, the facility exceeded the safe staffing levels nearly two-thirds of the time. Even if the county stopped accepting out-of-county kids, the detention facility would be below safe staffing ratios a third of the time, according to Perkins' report.

Instead of the three new detention officers with a price tag of about $80,000, the council gave the center two. Council members until now had stuck to a pledge not to fund any new full-time employees after health insurance costs ate up nearly half of a $900,000-plus budget increase.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to Indiana Courts

Ind. Decisions - "Calumet Township can buy Gary building, court says"

Patrick Guinane of the Munster (NW Indiana) Times writes today about the Court of Appeals decision yesterday in the case of Max Pinkowski, et al. v. Calumet Township of Lake County. The story begins:

INDIANAPOLIS | The Indiana Court of Appeals on Monday all but cleared the way for Calumet Township to purchase rental property in Gary at a bargain price.

Edward Bernstein and Max and Eleanor Pinkowski -- owners of the office building at 1900 W. 41st Ave. -- had sought to block the township's ability to exercise a purchase option included in the 1994 lease, which was negotiated with former Calumet Township Trustee Dozier Allen Jr.

The contract, an extension of an earlier lease that dates to 1984, gave the township a one-month window in November 2003 to decide whether to buy the building for $200,000. Dock McDowell, the Merrillville attorney representing the township in the matter, says the property is now worth about $700,000, and that the landlords tried to nix the sale by claiming the township was behind on its rent. "In my opinion, it was an attempt to fleece the township," McDowell said.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Details of Orange County casino dispute

Updating the ILB entries on the Orange County casino dispute is this detailed report in the Business section of today's Indianapolis Star, by J.K. Wall. Some quotes:

On Monday, attorneys for both companies filed additional briefs with Orange County Judge Larry Blanton. He will decide whether the dispute goes before an arbitrator or stays entirely with him.

After a hearing before Blanton on Aug. 14, Lauth attorneys say they were angered by Cook attorney Bob Clark, who told reporters that mediation between the two companies ended because Lauth officials walked out. In response, Lauth attorneys chose to publicly disclose details of the buyout offers.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to Indiana Courts

Ind. Courts - "With debut of Indy's night court, wheels of justice keep on turning"

"With debut of Indy's night court, wheels of justice keep on turning" is the headline of a story today in the Indianapolis Star, bylined by Karen Eschbacher, Vic Ryckaert and Richard D. Walton. Some quotes:

Beginning this week, the court will be in session from 5 to 9 p.m. Monday through Thursday. Jury trials, if needed, will be held during the day Friday.

The court's focus will be on misdemeanor and minor felony crimes involving guns, such as criminal recklessness and pointing a firearm.

Eichholtz, a former Marion Superior Court judge who is set to return to the bench full-time next year, is presiding.

"I've been called Harry Stone a lot lately," Eichholtz quipped as the session got under way, a reference to the judge on the 1980s sitcom "Night Court." "Everyone wants to know where Bull is."

On the first night, 13 defendants were brought before Eichholtz during the session that ended early just after 7 p.m. Two cases were settled with plea agreements. * * *

The night court is one change of 18 ordered Aug. 9 by the three-judge executive panel that runs the county's superior courts. The $2.2 million plan was supported by Mayor Bart Peterson, Prosecutor Carl Brizzi and others and will be fully in effect by the end of this month.

Other changes include a new warrant strike team to track down violent suspects who skip court; hiring up to 12 prosecutors and 16 public defenders; and hiring analysts to test firearms and test DNA for the county's crime lab.

Superior Court Judge Cale Bradford said night court will remain in effect until the end of the year and will then be evaluated. "We'll learn as we go," he said.

While court ended early Monday, Eichholtz said he expects there will be nights with 40 or 50 cases on the docket when it runs late.

Lawyers and court staff will work to resolve misdemeanor cases in 45 days and felony cases in 90 days, Eichholtz said.

"I appreciate everyone throwing this together," he told court employees and attorneys during a break Monday night. "Hopefully, we can move cases and do justice at the same time."

A side-bar to the story sets out the overall plan:
Other elements

Three Marion Superior Court judges issued 18 orders to help ease jail overcrowding. Here's a look at some of the specified changes:

• Night court will handle all new Class D felony and misdemeanor gun offenses, as well as certain other D felonies and misdemeanors.

• A Warrant Strike Team will be formed to track down violent crime defendants who fail to appear in court.

• An expedited probation violation court will meet for an hour each day, speeding up the process to determine if defendants should be held or released from jail. There are about 11,000 adults under county probation supervision.

• The Marion County Crime Lab has been told to reduce its backlog of firearms/ballistics tests and DNA evidence tests for cases with a suspect in custody.

• As many as 12 additional prosecutors will be divided among homicide, major felony cases, night court and major felony drug cases. As many as 16 public defenders will be hired for those divisions and for the expedited probation violation court. Paralegals and support staff will be hired, too.

• All courts and agencies must make the most efficient use of their available resources to achieve the goals set by the judges.

Michael W. Hoskins of the Indiana Lawyer sent out an advance look at a Sept. 9th story today:
Steven Eichholtz's opening lines as he presided over the court Monday night was to remind the courtroom full of attorneys, court staff, and about two dozen onlookers that his courtroom wouldn't be like the television show.

Instead, he described it as an "experiment" to help move cases move through the judicial process more quickly and help resolve overcrowding concerns in the Marion County jail.

The first installment of night court saw 13 cases involving D felonies or gun-related charges between 5:15 p.m. and 7:15 p.m. - almost two hours short of the allotted time. A total of 22 were on the docket, but some were resolved prior to night court or postponed.

Proceedings were on the fifth floor of the Marion County City-County Building, in courtroom 99.

Future nights could bring as many as 40 or 50 cases to help speed cases through the county's judicial system and ease jail overcrowding, Eichholtz said.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to Indiana Courts

Courts - Brooklyn Mental Health Court may be model

The Wall Street Journal had a front-page story yesterday by Gary Fields headlined: "Trial Run In Brooklyn Court, A Route Out of Jail For the Mentally Ill: Judge D'Emic, With Humor, Guides Felons' Treatment; Model for Others in U.S." Unfortunately, the story does not appear to be freely available online. Here are some brief quotes from the well-worth-reading story:

Brooklyn's mental-health program has become a model for localities trying to deal with a seemingly intractable problem: the increasing number of mentally ill people filling the nation's prisons. The problem stems largely from the shuttering of state-run mental-health facilities a generation ago. Once behind bars, the mentally ill are rarely paroled. If released, they usually end up back in prison because of a lack of outside treatment options. The Justice Department estimates that about 330,000 of the nation's 2.2 million inmates are mentally ill.

Mental-health courts, which work in tandem with prosecutors' offices, are slowly emerging as a promising alternative. They came on the scene in the late 1990s and are designed to allow the mentally ill to avoid prison time, provided they adhere to extensive treatment plans set up and monitored by the new courts. Defendants must plead guilty and pass intensive psychiatric evaluations before being admitted. Once under the court's authority, they undergo regular therapy sessions and often their medication is monitored. Prosecutors and judges typically have complete discretion as to whether a defendant can seek this alternative path.

What makes the idea appealing to many is that it represents a middle ground between locking up the mentally ill and letting them roam free.

"The easiest thing we do is put people in jail, [but] you cannot prison-build your way into reducing crime," says Charles Hynes, the longtime Brooklyn district attorney, who helped create the Brooklyn Mental Health Court.

The Brooklyn court routinely hosts visiting judges and court officers interested in the concept. In the past four years, eight mental-health courts have been created in New York state, and three other local jurisdictions are preparing to open such courts of their own. When all are up and running, New York will account for about 10% of the 120 mental-health courts in the U.S.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to Courts in general

Ind. Courts - Reports from Gibson and Monroe Counties

The Princeton Daily Clarion reported Monday, in a story by Travis Neff, on security cameras installed in the courthouse:

PRINCETON-Security upgrades at the Gibson County Courthouse are a step in the right direction, said Sheriff Allen Harmon, but he warns the building is not nearly as secure as it should be.

“We're installing new cameras and a new fire alarm system in the courthouse, but public safety is at stake here if we don't do more,” said Harmon.

The cameras will be monitored by personnel at the Gibson County Jail. They will be mounted on the three levels of the courthouse that are open to the public.

“If we are called up to the court house during an emergency, we can have an idea of what we'll be facing when we get there before entering the building,” said Harmon.

A sheriff's deputy was posted full-time in the courthouse beginning late last year, but Harmon said the county council needs to authorize his department to have a deputy on duty for both the Circuit and the Superior Court.

“Quite honestly the security level at the courthouse is a joke,” said Harmon. “We are very lucky we have not had a hostage situation or someone come in with a gun. I'm afraid our luck may run out.”

Harmon said police have responded to several incidents at the courthouse.

“People can get pretty unruly. Going to court is an emotional experience,” said Harmon. He said some people have outbursts at the child support office during custody proceedings and following civil cases which did not have the outcome they wanted.

If an incident, like an assault, occurred at the courthouse, footage could be used as evidence to prosecute a suspect, Harmon said.

The number of incidents have been reduced since a deputy has been on duty at the courthouse, said Harmon.

“We could have a hostage situation up there, or someone could walk in with a gun, and then we would have a real tragedy on our hands,” he said.

The sheriff said there should only be one entrance to the building and he hopes to obtain grants from the U.S. Dept. of Homeland Security, but he wants the council to approve additional deputies to provide protection and to screen people entering the building.

“Each judge deserves to have a deputy on hand in case something happens,” Harmon said.

“We have been fortunate there has not been a terrible incident up there,” said Harmon.

He said the sheriff's department is applying for grants to obtain extra metal detectors and other screening equipment.

“I firmly believe we're taking a heck of a risk not having a deputy for each court,” said Harmon.

Sunday, Bethany Nolan of Hoosier Times reported in a story headlined: "$2 million bond doesn’t include new courtrooms: While officials debate money, some say space problem isn’t going away." The story begins:
BLOOMINGTON — Last week’s approval of a nearly $2 million bond issue by the Monroe County Council didn’t include funds to build two new courtrooms and remodel office space.

Council members balked at spending the bulk of the proposed bond on what some termed a “short-term fix” for a space crunch in the Justice Building.

But the space-needs issue isn’t going to go away, and a solution must be reached, Monroe Circuit Judge E. Michael Hoff said.

“It’s a pretty straightforward problem,” he said. “We’re basically trying to provide an office for each court and a courtroom to do public business in.”

The county currently has eight judges and a court commissioner. A ninth court is scheduled to be added in January 2008.

Posted by Marcia Oddi on Tuesday, August 22, 2006
Posted to Indiana Courts

Monday, August 21, 2006

Ind. Courts - "Allen County fishing in deeper jury pool"

Dionne Waugh of the Fort Wayne Journal Gazette reported Sunday on the impact of the amendments to the Indiana Jury Rules, Rule 2, Jury Pool, and Rule 4, Notice and Summons that went into effect January 1, 2006, as well as changes from the 2006 session abolishing most exemptions from jury duty. The lengthy story begins:

As 19-year-old Leah Newcomb looked around the ornate Allen County courtroom, waiting to see whether she’d be picked for jury duty, she felt a little out of place.

“I was probably the youngest person there,” the 2005 Homestead High School graduate said with a smile.

She likely was, but she was not alone. Of the 50 or so people called for jury service sitting in an Allen County courtroom, a handful looked to be around Newcomb’s age.

Though that might not seem like much, a larger number of younger people is the most visible result of Indiana’s efforts to create a bigger, more diverse jury pool, Allen County court officials and local attorneys say. Even high school seniors are getting summonses, though they can defer their service until summer.

In the past few years, the state has eliminated automatic jury exemptions; changed the way it selects potential jurors; and changed how long jurors and potential jurors must serve. The changes are all designed to make the process better for citizens as well as produce more diverse juries.

One of the biggest changes started in 2003, when the state switched from culling potential jurors only from the list of registered voters. Now, localities must use at least two sources of information. Most combine the registered voters’ list with the list of people who have driver’s licenses. In January, the state added information from the Department of Revenue as another source. Allen County uses all three lists.

Essentially, anyone in Allen County who votes, drives or pays taxes can be called for jury duty.

But younger jurors are not the only difference attorneys are seeing. More criminals are also getting called for jury duty, and their convictions don’t automatically bar them from service. Additionally, attorneys are seeing more attorneys in the pool than before.

It’s taken time for those who work in the system to see how the changes have played out. Some attorneys call the changes a mixed blessing.

“It’s easier on jurors themselves. I don’t think it’s easier on the folks that work in the system,” Allen County Prosecutor Karen Richards said.

Though opinions vary, Indiana is one of three states – along with Arizona and New York – leading the way in making changes.

With more young people in the pool and on a jury, some might wonder whether they have enough experience to serve. Most attorneys and court officials said they were just as qualified as older people.

“I think they would certainly have a different opinion based on their life experiences,” said Lynn Murphy, Allen County jury administrator. “But everybody has an opinion, and it doesn’t matter how old you are. A doctor and a garbage truck driver will have different opinions. We need that diversity.” * * *

Though the changes are meant to diversify potential jurors, Allen County does not keep data to show whether the changes are actually creating a more diverse pool, said Allen Superior Judge Fran Gull, who supervises the county’s jury process and has been instrumental in instituting the changes.

“I’m not required to,” Gull said.

Richards said she hasn’t seen a significant diversity change, which surprised her.

“I would have thought changing from voter registration to driver’s licenses, we would have seen a change in the (racial) makeup of the jury,” she said. “Not the cases I’ve seen. I’ve seen a lot more young people and those with convictions.”

But Gull said she has seen both a more evenly distributed male-to-female ratio in the pool and more ethnicities and cultures.

Here is a list of earlier ILB entries mentioning Indiana jury pool.

Posted by Marcia Oddi on Monday, August 21, 2006
Posted to Indiana Courts

Ind. Law - Lawyers in Indianapolis Archdiocese sex abuse cases featured

The Terre Haute Tribune-Star had a very long story Saturday by Stephanie Salter on the opposing lawyers in cases involving allegations of abuse by Indianapolis Archdiocese priests or church employees. The story begins:

TERRE HAUTE — Patrick Noaker and Jay Mercer frequently cross one another’s path — albeit mostly in court files.

Noaker, a native of Wakarusa (near Elkhart), is a member of the St. Paul, Minn., firm of Jeff Anderson & Associates, P.A., a team of lawyers that has climbed to national prominence during the past two decades as advocates for plaintiffs in child sex abuse cases, many involving Catholic priests.

In June, a U.S. District Judge in Portland, Ore., ruled that Anderson’s firm could include the Vatican as a defendant in a sex abuse case involving a now-deceased priest. It was the first such decision in the United States.

Born in Indianapolis, Mercer is a partner at Wood Tuohy Gleason Mercer & Herrin, P.C., in the state capital. His areas of expertise are health-care law, employment and personnel law. He helped develop his firm’s policies for handling claims of sexual misconduct for institutional clients such as hospitals, schools, churches and summer camps.

Mercer is the lead counsel for the Archdiocese of Indianapolis on all cases involving allegations of abuse by archdiocesan priests or church employees. He has represented the Archdiocese since 1986.

Mercer received his undergraduate and law degrees from Indiana University. Noaker graduated from Taylor University and got his law degree at St. Louis University. Both men are Catholics, but Noaker said he no longer practices the faith.

The last time the two attorneys met face-to-face was a few months ago at Mercer’s Monument Circle office to discuss discovery issues in the case of former priest Harry E. Monroe. The session came shortly after a Clark County Superior Court judge threw out the complaints of 22 men — not represented by Noaker — who alleged sex abuse as minors by another Indianapolis archdiocesan priest.

The statute of limitations for prosecuting such crimes had run out, the judge ruled.

That case was reported in this June 2nd ILB entry, quoting from the Louisville Courier Journal. This June 5-6 entry includes later information.

Posted by Marcia Oddi on Monday, August 21, 2006
Posted to Indiana Law

Ind. Decisions - 3 today from the Court of Appeals (and 8 NFP)

For publication opinions today (3):

State of Indiana v. Laura Williamson

Brian Borum v. Pamela (Borum) Owens

Max Pinkowski, et al. v. Calumet Township of Lake County - see ILB entry here

NFP civil opinions today (3):

Termination of the Parent-Child Relationship of C.O., B.R., and D.O. v. Allen County Department of Child Services (NFP)

Town of LaFontaine, IN v. Bookwright & Co. and GMAC Commercial Mortgage (NFP)

Essie (Owens) Baker v. Paul Owens (NFP)

NFP criminal opinions today (5) (link to cases):

Michael Saylor v. State of Indiana (NFP)

J.T. v. State of Indiana (NFP)

Eric D. Smith v. Department of Corrections, et al. (NFP)

Arbie Gartrell v. State of Indiana (NFP)

Glenn Calhoun, II, AKA Sonny Calhoun v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 21, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Attorney ready to act on facade program"

"Attorney ready to act on facade program" is the headline to a brief story today in the Munster (NW Indiana) Times by Mary Wilds. Some quotes:

DYER | A facade-improvement program has been in the talking stages for years, but a town attorney is ready to take it to the next level if he can get more information from redevelopment commissioners.

Attorney Lance Ryskamp asked for guidance on the potential program at August's redevelopment meeting. He said he has done some research, but any further work he does will depend in which direction the board wants to go, especially financially.

The board can go for either grants or a loan arrangement, he said.

"We'd like the best bang for our buck, and (a program) that will make facades in town more interesting," commission President Connee Trepton said.

In addition to encouraging new businesses and properties, the Redevelopment Commission has wanted to improve the look of Dyer's existing commercial corridors.

Redevelopment Director Rick Eberly pointed out that communities like Crown Point have a 50/50 matching program in which the town and the business agree on an amount they can both put up for improvements.

The ILB had a long entry on Dec. 12, 2004, on the potentially relevant historic fascade easement program, both nationally and in Indiana.

Posted by Marcia Oddi on Monday, August 21, 2006
Posted to Indiana Government

Ind. Courts - "Early marks are high for cameras in courtrooms"

So reads the headline to this story today by Richard D. Walton in the Indianapolis Star. The story begins:

An experiment to allow cameras in Indiana courtrooms for the first time in decades is getting early high marks and just a few complaints.

Among the results thus far, according to observers:

Attorneys seem to be getting along better and are better prepared.

Fears of lawyers showboating or witnesses being intimidated have proved unfounded.

The cameras generally don't disrupt proceedings.

Yet a few problems have cropped up since Indiana Chief Justice Randall T. Shepard announced the program, which on July 1 began allowing video and still cameras in courts in Indianapolis, Evansville and Fort Wayne.

At least one attorney has complained about the difficulty of entering a courtroom because of the assembled media.

Another concern involves the clicking noise that still cameras make. They have caused a few distractions, said Dan Byron, general counsel for the Indiana Broadcasters Association and the chief architect of the terms of the camera project, but the problem can be fixed by using a digital camera with an attachment that muffles sound.

One of the biggest problems, Byron said, is that only about 15 percent of the suspects approached about allowing cameras have consented.

Posted by Marcia Oddi on Monday, August 21, 2006
Posted to Indiana Courts

Ind. Courts - Justice Boehm's 10 years on Supreme Court marked

Susan Guyett of the Indianapolis Star's "Talk of the Town" column reports today:

Friends and fans of Indiana Supreme Court Justice Theodore Boehm were not about to let his 10th anniversary on the bench pass unnoticed.

Scores of Boehm buffs showed up at his Supreme Court office last week to offer their congratulations, have some laughs and watch "Super Judge" take up residence in the judge's chambers.

Two former law clerks, Paul Jefferson and Deborah Pollack-Milgate, who are now with Barnes & Thornburg, were among the tribute ringleaders. A PowerPoint presentation featured a bespectacled, judicial robe-wearing action figure going about the day at the Statehouse in genuine Boehmian fashion.

The tribute also included a few examples of Boehm's unique style and humor bubbling up in a few court decisions.

See photo here.

Posted by Marcia Oddi on Monday, August 21, 2006
Posted to Indiana Courts

Sunday, August 20, 2006

Ind. Gov't. - "Political players helped pave way for Major Moves"

Patrick Guinane of the Munster (NW Indiana) Times has two stories today on Major Moves and the law firms involved.

The first is headed "Political players helped pave way for Major Moves." Some quotes:

INDIANAPOLIS | Four firms that received $1.6 million in legal and consulting work connected to the private leasing of the Indiana Toll Road have made $90,585 in campaign contributions to Republican Gov. Mitch Daniels during the last three years.

And one top attorney encouraged engineering firms to bankroll an ad blitz in support of the lease while he was under contract with the state.

The Daniels administration says such political considerations play no role in the awarding of contracts and the state simply selected the most qualified firms.

To bolster that argument, Chuck Schalliol, chairman of the Indiana Finance Authority -- the state agency that owns the Toll Road -- points to the losing law firms. Indeed, all nine of those unsuccessful bidders have given at least $2,000 to the governor's campaign, including nearly $146,000 by Baker & Daniels, Indiana's largest law firm.

The ubiquity of such contributions illustrates the well-traveled intersection between government and politics. The overlap, critics argue, drowns out individual residents. * * *

To help pave the way for Major Moves -- the governor's 10-year road building plan tied to the Toll Road lease -- the state incurred a total of $22.3 million in transaction expenses. THe bulk of that -- $20.1 million in consulting fees -- went to Goldman Sachs, a New York-based global investment bank that did not make campaign contributions to Daniels or any other Indiana politician.

The remaining legal and consulting work was shared by seven firms, with the biggest chunk -- $1.3 million -- awarded to Ice Miller, the state's third largest law firm. The Indianapolis-based company employs several high-profile political players on both sides of the aisle, including state Rep. Luke Messer, a former executive director of the Indiana Republican Party, He joined the firm's lobbying team in April, one month after helping the Toll Road lease clear the House without a vote to spare. Ice Miller also is the former employer of Harry Gonso, who now serves as Daniels' chief of staff.

Near the top of the Ice Miller roster is John Hammond III, a veteran Republican powerbroker the state hired at $331 hourly to work on the Toll Road transaction. Hammond has contributed $20,699 to Daniels' campaign, and in January he gave a pep talk to engineering firms concerned about the legislative fate of Major Moves.

Such firms, along with construction trades that also stand to benefit from the road plan, helped steer more than $300,000 this year to Aiming Higher, a nonprofit advocacy group that used the contributions to fund a multimedia ad campaign in the weeks before the General Assembly OK'd the Toll Road lease. * * *

Hammond said he made the Aiming Higher sales pitch on his own time and the political contributions made by him, his firm and other Ice Miller staff are not intended to win state contracts or influence policy decisions.

"You cannot expect there to be any return favor," he said. "I think, in general, our view is you're trying to support people who are going to support policies that are good for the state of Indiana and the citizens of Indiana."

Ice Miller has made $7,386 in corporate contributions to Daniels' campaign since 2003 and, beyond Hammond, six other Ice Miller staffers who worked on the Toll Road contract have given a total of $11,008.

Schalliol, who serves as state budget director, noted that most major law firms make regular donations to both political parties. In fact, several other Ice Miller attorneys hired for the Toll Road work are regular patrons of Democrats and gave more than $3,500 to the re-election bid of Democratic Gov. Joe Kernan, who was defeated by Daniels in 2004. * * *

State Public Finance Director Ryan Kitchell, the Indiana Finance Authority's top administrator, said Ice Miller was chosen because of its highly respected work on corporate mergers and acquisitions and because it offered a 15 percent discount from its standard hourly rates.

"The IFA sought qualified Indiana firms to submit (proposals)," Jane Jankowski, the governor's press secretary, said Friday. "IFA selected what it considered to be the best firm available to handle the transaction based on the responses."

In addition to the contributions by Ice Miller and Mayer, Brown, Rowe and Maw, Daniels' campaign has received $35,492 from Krieg DeVault, an Indianapolis law firm that helped defend against the Toll Road lawsuit, and $6,000 from Crowe Chizek, an accounting agency hired to provide an independent analysis of future toll revenues.

A second story examines "the political connections of legal and consulting firms hired to pave the way for Major Moves." Some quotes:
Ice Miller, the state's third-largest law firm received $1.3 million in legal work. The firm, plus seven Ice Miller attorneys or pubic affairs specialists that worked on the contract, have made a total of $39,093 in campaign contributions to Republican Gov. Mitch Daniels since 2003. John Hammond III, one of the Ice Miller attorneys hired by the state, also lobbied engineering firms to contribute to Aiming Higher, a advocacy group that bankrolled an ad blitz in support of Major Moves.

Mayer, Brown, Rowe and Maw, the mammoth Chicago law firm that handled the privatization of the Chicago Skyway, lost its bid for the main Toll Road contract but received $312,000 in subcontracting work via Ice Miller. Mayer, Brown, Rowe and Maw gave $10,000 to Daniels' campaign in 2004 and the firm employs former state Rep. Dan Dumezich, a Schererville Republican and fundraiser for Secretary of State Todd Rokita and other GOP candidates.

Krieg DeVault, another large Indiana law firm, lost out on the contract that went to Ice Miller, but it and another firm shared $91,187 in legal fees related to the short-lived citizen lawsuit filed against the leasing of the Toll Road. During the last three years, Krieg DeVault has made corporate contributions of $35,492 to Daniels' campaign.

Crowe Chizek, an accounting firm that has done Toll Road work in the past, was paid $20,000 to complete an independent analysis projecting potential toll revenues through the duration of the lease. The company has contributed $6,000 to Daniels' campaign since 2003.

All seven of the other Indiana law firms that competed against Ice Miller for the main Toll Road legal contract have contributed at least $2,000 to Daniels' campaign. Three of those firms have given more than $30,000 since 2003, including nearly $146,000 contributed by Baker & Daniels, the state's largest law firm.

Of course, several of these large Indianapolis firms have been retained in state matters other than the toll road. For instance, this Indianapolis Star story from June 23rd headed "Lawyers win big in million-dollar fight over lottery ticket" reports in a side-bar that the law firm Baker & Daniels has received $450,00 in legal fees so far for representing the State in the dispute. The body of the story states:
The lottery already has ponied up more than $450,000 to pay lawyers to fight the suit and now is agreeing to set up a $600,000 pot to resolve the entire matter, once and for all.

Posted by Marcia Oddi on Sunday, August 20, 2006
Posted to Indiana Government | Indiana Law

Ind. Gov't. - Stories today on FSSA; Governor's ethics pledge

"Company seeking Indiana deal had woes in other states" is the headline to this lengthy AP story by Ken Kusmer, published in the Sunday Louisville Courier Journal.

Niki Kelly of the Fort Wayne Journal Gazette reports today on "the success of Gov. Mitch Daniels’ campaign pledges [relating to] ethics and integrity," including a fairly long list of issues that have arisen.

Posted by Marcia Oddi on Sunday, August 20, 2006
Posted to Indiana Government

Ind. Gov't. - State and university salaries

"Who's making what?" is the title to an extensive Indianapolis Star special report today on Indiana state government and university salaries. This report includes a link to a complete list of state employees and what they are paid.

The database is quite useful. For instance, if you type in "IDEM" you get a list of all IDEM employees, 40 names to a page, 25 pages in total, that may be sorted by name, salary, etc.

The "More about the database" link explains:

As part of the analysis, The Star compiled a database of annual salaries for state legislators and elected officials, and employees of all state government agencies and five public universities - Ball State, Indiana, Indiana State and Purdue universities, and the University of Southern Indiana. The database of 69,000 records includes workers' names, the state agency or university at which they work, their titles or positions, years' experience (if given), and their most current annual salaries.

Search the database by typing in a specific first or last name, agency or university name, or job title, or a specific number for years' experience and salary. To sort the entire database, click on any of the highlighted field names, or search for a specific group of employees and click on the field names to sort that group.

If you sort "IDEM" by department it turns out there are some other names (about 35) in the mix, epidemiologists from the State Department of Health, for instance. A reader points out that is because of the "idem" in epidemiologist.

A review of the Office of the Attorney General proves interesting. First, you have to know to use the code "ATG" to access the list. The result is 9 screens of 40 names. The highest paid person by far in the AG's office is the office manager -- paid $136,500, far higher than the next higest salary -- $91,400.

Steven Carter, the Attorney General, is listed at $79,400. His salary is set by statute. He is the 11th highest paid in the office.

An interesting name that turns up on the list is Gordon Durnil, who apparently has been there since 2001 as "Governor's Summer Interns - Summer Intern," earning $67,996.

To look up court salaries, it appears that you need to enter "ISC - Supreme Court", "ISC - JTAP", "ISC - Supreme Court Disciplinary", "ISC - Judges & Lawyers Assistance", and "ISC - Pro Se", depending on what you are seeking. In order to access the appellate court, you need to use "IAC - Appellate".

Salaries of the Legislative Services Agency do not appear to be included in the database. Neither do the salaries of House and Senate staff. All of these salaries are paid, of course, by the taxpayers.

Typing in "State Senator" will yield a list of the state senators; "state representative" will do the same for the House, but you will also need to sort the house result by department.

University salaries are also included, including both high officials, and instructors whose names I recognize here in Indianapolis. One wonders then why Senator Robert Garton's and Rep. Patrick Bauer's names only appear with their General Assembly salaries, when they are also high up on the staff of Ivy Tech. (The answer may be - Ivy Tech is not one of the five universities included in the database.)

Posted by Marcia Oddi on Sunday, August 20, 2006
Posted to Indiana Government

Saturday, August 19, 2006

Ind. Law - New system of trending to impact property owners

The Lafayette Journal & Courier ran two stories earlier this week on "trending." From the first:

Question: What is trending?

Answer: Trending is a new way of assessing the value of real estate in Indiana. Trending requires assessors to look up the prices that properties in a particular area have sold for during the past two years.

Using that information, assessors then estimate the values of other properties in the same area.

Trending is being used for the first time this year and will first affect property taxes owed in 2007.

Q: How will trending affect my taxes?

A: It's too early to tell, according to Nancy Moore, the county assessor. The last reassessment was done using the values of real estate in 1999.

Trending will use prices for which property has sold in the last two years, which may cause the assessed values of many properties to increase in 2006.

But the taxes owed next year will not necessarily do the same, she said.

That's because 2007 taxes cannot be calculated until tax rates for that year have been set. And that has not yet happened.

State legislation recently passed also is making it difficult to know what property owners will owe next year. For 2007 only, lawmakers increased the homestead deduction from $35,000 to $45,000.

That is the amount that can be deducted from the assessed value of a house that a person owns and lives in, thus lowering his taxes. * * *

Q: How is trending different from the previous way of assessing property?

A: In the past, the assessed values of real estate were adjusted only after a reassessment, which came as far apart as 10 years.

In reassessments, assessors used a formula to set a value on different features of a property.

For example, a square foot of a building is said to be worth so much; a bathroom to be worth so much; a garage to be worth so much, etc.

Unlike reassessments, trending will occur every year.

Q: Why did lawmakers adopt trending?

A: The old way of assessing property would, in years without a reassessment, steadily shift the burden of paying property taxes onto owners of personal property, according to Larry DeBoer, a professor in agricultural economics at Purdue University.

Personal property largely refers to equipment owned by businesses, he said.

The reason for the shift: unlike the values of real state, which were reassessed as seldom as 10 years apart, the values of personal property were adjusted every year, he said.

Hence the values of personal property would gradually increase while those of real estate remained stagnant.

So in successive years without a reassessment, owners of businesses, when compared to owners of real property, would come to pay a larger and larger portion of all taxes owed, according to DeBoer.

Thinking the disparity unfair, lawmakers adopted trending.

Now the values of real estate and personal property will be adjusted every year.

From the second story, by Dan Shaw:
A letter John Thompson recently received in the mail said his house is worth $25,000 more this year than last year.

Is he happy? No, since the county's letter was referring to his home's assessed value, a number that is used to calculate his taxes.

"There's not a lot of evidence that property values are going up in the fashion they are saying," he said.

The assessment raised the value from about $269,000 to $294,000, an increase of about 9 percent.

Nancy Moore, the county assessor, said such increases stem largely from a new system of assessing property, known as "trending." In trending, assessors look at what local houses and businesses have sold for in the past two years. * * *

After receiving them, property owners are allowed 45 days to appeal the assessments. About 150 people from the rural townships have done so, she said.

Thompson, who owns a house in Union Township near Shadeland, is one of them. To contest the assessment, he will likely have to pay for an independent appraisal, a prospect he finds irritating, he said.

"The burden of proof is on me," he said.

This morning the J&C has a story by Dan Shaw headlined "Candidate: Trending drives up property value, tax." The story begins:
A private company is placing too high a value on Tippecanoe County property that will be taxed, says a woman who would be county assessor.

Samantha Steele, a Democrat running for assessor, says local township officials should be assessing local houses, businesses and land. If they were, the values would more closely match what the property could be sold for on the market, she said.

Steele will face the incumbent assessor, Nancy Moore, a Republican, in the Nov. 7 general election.

"We have been over-assessed because we have an out-of-state consulting company doing this work," Steele said at a press conference this week.

The story is accompanied by a useful side-bar on trending and how to file an appeal.

Also today, the Monticello Herald Journal has the first of a two-part report by Kevin Howell, headlined "'Trend' in property tax assessment taking hold: Property Tax Debate - Part 1." Some quotes:

Following a 2002 reassessment in Indiana the state moved toward placing values on home and business properties more in line with fair market values for taxing purposes.

Some taxes went skyrocketing while others fell or held fairly steady.

Since then more information based on property sales values has been entered into databases leading to the next phase of taxing property: trending.

In White County, with its 23 taxing districts, Scott Potts of the Indianapolis firm Manatron has been working in conjunction with the White County Assessor's office to place trending values on property.

"What we're trying to accomplish with trending is to bring the assessments to sales (values) in a more recent time period. During the reassessment we were looking at sales in the 1998-1999 time period and adjusting assessments to match those sales," explained Potts. * * *

Like in White County, Carroll County has also hired an outside firm to work on trending.

"We hired an Indiana company to do it because none of our trustees are qualified to do this trending. I hope it's going to be fair - we see the figures but when you don't know what the tax rate is it's hard.

"We're going to have to do this next year so we saved what we can get - all sales disclosures and we make a copy of property record cards and then we can verify everything that way," said Carroll assessor Doris McLeland.

Brandi Daniels, an employee in McLeland's office, said trending will focus on sale prices in neighborhoods rather than entire townships or taxing districts. * * *

Daniels said there are four different numbers they come up with to determine value but it's easier to look at it as a percentage. For simplification, if those ten sales show an increase in value over a previous assessment by 2 percent, other properties in the neighborhood will be assumed to have risen in value that much as well.

Those who receive Form 11s, and don't agree with the property value, will have 45 days to appeal. But it could take an appraisal or other form of evidence of the correct value.

"The taxpayer has 45 days, and if they feel it's way too high they can appeal, but it will probably take an appraisal this year to change the value," McLeland said.

Posted by Marcia Oddi on Saturday, August 19, 2006
Posted to Indiana Government | Indiana Law

Law - Many law bloggers quoted as experts in NYT front-page story

"Experts Fault Reasoning in Surveillance Decision" is the headline to a front-page story in today's NY Times. The story is below the fold, but Howard Bashman's first quotes are on the front-page, as are those of Yale law professor Jack Balkin. The story is about reaction to federal Judge Anna Diggs Taylor's ruling Thursday. Some quotes:

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

The main problems, scholars sympathetic to the decision’s bottom line said, is that the judge, Anna Diggs Taylor, relied on novel and questionable constitutional arguments when more straightforward statutory ones were available.

She ruled, for instance, that the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored.

That ruling is “rather innovative” and “not a particularly good argument,” Jack Balkin, a law professor at Yale who believes the program is illegal, wrote on his Web log.

A number of other law blogger experts are quoted on the jump page.

A few month ago, The Beckman Center for Internet Law and Society at Harvard University sponsored a seminar titled "Bloggership: How Blogs Are Transforming Legal Scholarship." Here is the agenda.

Via this page, you can access all of the papers from the conference, plus download mp3s of the audio of the full-day conference.

The theme of the conference was:

Web logs ("blogs") are transforming much of American society, including government, politics, journalism, and business. In the past few years, blogs have begun to affect the delivery of legal education, the production and dissemination of legal scholarship, and the practice of law. We are delighted that over twenty of the nation’s leading law professor bloggers have agreed to join with us for the first scholarly conference on the impact of blogs on the legal academy.
Examples such as today's NY Times story appear to make the point.

Posted by Marcia Oddi on Saturday, August 19, 2006
Posted to General Law Related

Friday, August 18, 2006

Law - Mannequins involved in lawsuits across the country

The LA Times reports today, in a great story by Roy Rivenburg that begins:

"Attack of the Mannequins" might sound like a horror film title, but, for some shoppers, it could also be a documentary.

Diana Newton, 51, of Westminster sued the J.C. Penney Co. last month after she was allegedly thwacked on the head by a department store dummy.

Newton said she was ambushed by a legless female mannequin at the company's Westminster Mall store, a skirmish that left her with a bloodied scalp, a cracked tooth, recurring shoulder pain and numbness in her fingers.

The alleged attack was the latest in a string of mannequin mayhem incidents nationwide.

"There are a slew of lawsuits like this," said mannequin manufacturer Barry Rosenberg, who joked that stores should run background checks on dummies before letting them mingle with shoppers.

Most of the cases involved mannequins toppling over onto customers, but an Indiana woman claimed she caught herpes from the lips of a CPR training dummy. She dropped her lawsuit against the American Red Cross in 2000 after further tests revealed that she didn't have the disease, according to news reports.

The alleged Westminster Mall incident happened nearly a year ago in the women's department at J.C. Penney. Newton said she wanted to buy a certain blouse, but the only one in her size was being worn by a mannequin.

When a salesclerk tried to remove the garment, the dummy's arm flew off and struck Newton's head, according to her lawsuit, which was filed in Orange County Superior Court and seeks unspecified damages.

"I felt a burning sensation," she recalled. Then, blood cascaded down her face, she said.

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to General Law Related

Courts - Authentication of e-government documents in the courts

My most recent Res Gestae article, "The General Assembly's role in making Indiana rules and statutes available to the public," published in the current July/August 2006 issue and also accessible via this link, lists a number of concerns about the General Assembly's custodianship of the Indiana statutes and rules, including this paragraph:

With a printed volume of the Acts of Indiana, or the Indiana Code, what is on a page will stay the same, forever. You do not have to worry that a page of the Acts of 1941 has been changed, inadvertently or intentionally. You cannot say the same about the current online documents. It is hard to see how a court could take judicial notice of such material.
Perhaps in reference to this, I received an email this afternoon from an Indiana law librarian, enclosing a request posted on a national list-serv by a counterpart in California:
I am writing an article about authentication of e-government documents in the courts. For the article, I am looking for anecdotes, at the trial court level, where an attorney has offered into evidence some documentary evidence of the law – a case, statute, regulation, agency publication, et cetera - from an online source, and had the court (or opposing counsel) refuse to accept the document unless an “authentic” or “official” version was proffered. If you have any examples of this occurring, I would really appreciate hearing about it.

I would also like to send this question to several attorney list- servs, to reach attorneys who do not have librarians. If any of your attorneys subscribe to list-servs for the California Bar Association litigation section, the ABA litigation section, or the ATLA , and you think they would be receptive to a request to post my question on their list-servs, please let me know.

Thanks in advance – I know there are interesting stories out there!

Reference Librarian
University of California - Hastings College of the Law

I've deleted the librarian's name and email, as I don't have her permission, but if you have comments for her, let me know and I will send them on.

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to Courts in general

Ind. Decisions - Transfer list for week ending August 18, 2006

Here is the Indiana Supreme Court's transfer list for the week ending August 18, 2006.

Over two and a half 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, August 18, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending August 18, 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 August 18, 2006.

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to NFP Lists

Ind. Decisions - Court of Appeals decides four today

Ronnie Ikemire v. State of Indiana

Thomas G. Reising v. Guardianship of Christopher Joel Reising

Sandra K. Penny v. Review Board of the Indiana Department of Workforce Development

Cathy Hodge v. Alan H. Johnson, J.D., and Orthopaedic Associates, Inc.

DETAILS LATER

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Bad idea: Flipping off the judge" [Updated]

Updating this ILB entry from Wednesday, the Munster (NW Indiana) Times' Bob Kasarda reports today:

VALPARAISO | Matters went from bad to worse Thursday for Jonathan Wilson, the San Pierre man hauled off to jail this week after flipping a judge the middle finger and calling him an obscene name.

Wilson wrote a letter of apology as ordered, but it failed Thursday to satisfy Porter Superior Judge David Chidester.

Rather than releasing Wilson, Chidester ordered Wilson spend 10 days behind bars. Wilson is not free to walk away from the county jail until 6 a.m. Aug. 24.

More from the story:
Chidester said Wilson continues to contest his failed attempt to convince the court to throw out a speeding ticket, which was the reason he appeared before the judge.

He also continues to feel it is acceptable to hurl vulgarities at the arresting police officer, Chidester said.

Wilson apologizes in his letter for using vulgar language, particularly in front of women in the courtroom.

"I was raised not to talk in such a way when ladies are present," he wrote.

But he goes on say his vulgarity was directed more toward the officers and not the judge.

"I felt disrespected myself & bullied against & when excited, I have less grasp of vocabulary, as it may have shown," Wilson wrote.

Chidester accused Wilson on Thursday of externalizing, or directing fault toward the court and police and failing to take responsibility for his actions.

Chidester said Wilson came to court seeking a confrontation. He said Wilson and his clothing were soiled when he arrived to court Tuesday. He was also found sleeping in the courtroom before business began and when awakened, confronted court security, Chidester said.

Chidester said failing to punish Wilson would itself show contempt for the law.

"Defendant's actions and words were a threat to the administration of justice," Chidester wrote.

The ILB will try to obtain a copy of Judge Chidester's order.

[Update] Here is a copy of Judge Chidester's order.

ILB is not too proud to admit that she had to look up the word "contumacious". The definition: "Obstinately disobedient or rebellious; insubordinate."

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "U.S. wins round in air pollution fight"

Yesterday's decision by the 7th Cricuit in USA v. Cinergy Corp. (see ILB entry here) is reported in this AP story by John Heilprin, headed "U.S. wins round in air pollution fight." It begins:

WASHINGTON -- The government won a round Thursday in a long-running dispute over how much authority it has to force industrial plants to cut air pollution.

Its victory over Cinergy Corp. and its power plants in Indiana in a federal appeals court in Chicago could help the Supreme Court decide the issue in a similar case this fall.

The Supreme Court's decision -- which is shaping up as a test of the Bush and Clinton administrations' competing legal approaches for cutting air pollution -- would affect up to 17,000 industrial plants and the unhealthy air breathed by 160 million Americans.

The facilities are major sources of nitrogen oxides and sulfur dioxide, which contribute to smog, acid rain, soot and other fine particles that lodge in people's lungs and cause asthma and other respiratory ailments.

The Cinergy case turned on whether its power plants could spew more pollutants into the air when they modernized to operate for longer hours. The Environmental Protection Agency said no, because Cinergy should have gone through a federal permit process, and the 7th U.S. Circuit Court of Appeals in Chicago agreed.

"Cinergy's suggested interpretation, besides not conforming well to the language of the regulation ... would elude the permit requirement," Circuit Judge Richard Posner wrote for a three-judge panel of the federal appeals court.

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Quick guide on Trial Rule 77 - Court Records

A 17-page document titled "Trial Rule 77 Quick Guide" was posted yesterday on the Indiana courts website:

Trial Rule 77, “Court Records,” is the basic framework for court/clerk record creation and management. This rule was promulgated by the Supreme Court of Indiana and made effective January 1, 1991. It replaced an earlier version of a rule that set standards for docket sheets and order books. This Quick Guide is intended to provide guidance to clerks and courts in handling some particular situations encountered with court records and also to assist with some frequently asked questions Trial Rule 77.

Trial Rule 77 requires four sets of judicial records to be maintained by trial courts: 1) the Chronological Case Summary (CCS); 2) the Record of Judgments and Orders (RJO); 3) indexes of all court actions and proceedings; and 4) the case file (pleadings and papers).

In addition, Trial Rule 77 sets forth standards for maintaining statistics, for replacing lost records, for general record keeping, and for the electronic posting of court records.

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to Indiana Courts

Ind. Courts - Indiana is the first state to receive CASA certification

A release from the Office of the Chief Justice:

The Indiana State Office of Guardian as Litem/Court Appointed Special Advocate (GAL/CASA) has been awarded certification by the National Court Appointed Special Advocate (CASA) Association. Indiana is the first state in the nation to receive this certification, which recognizes that the Indiana State Office of GAL/CASA meets National CASA’s high standards for program operations and management.

The Indiana State Office of GAL/CASA, which was started in 1990, certifies and provides training and support to local GAL/CASA programs in 67 Indiana counties. The local GAL/CASA programs provide trained community volunteers to speak for the best interests of abused and neglected children in court, helping to ensure children’s needs are met while they are in foster care and that these children have a safe and permanent home as quickly as possible. Indiana has one of the largest networks of GAL/CASA programs in the nation. Indiana volunteers spoke for 10,883 abused and neglected children in cases in 2005; nonetheless, thousands of children are still waiting for a volunteer.

The Indiana Supreme Court Division of State Court Administration operates the State Office of GAL/CASA. Chief Justice Randall T. Shepard and the Supreme Court have strongly supported and encouraged the Indiana GAL/CASA programs in their efforts to promote quality advocacy for children.

Chief Justice Shepard noted that, “Indiana has been a leader in promoting quality assurance of local GAL/CASA programs and is now setting the standard on a national basis for the certification of state GAL/CASA entities. We are proud to be leaders in encouraging quality advocacy for abused and neglected children.”

According to Michael Piraino, CEO of the National CASA Association, “The National CASA quality assurance process is very rigorous and reflects our commitment to ensure all children we serve have the most powerful volunteer advocates working on their behalf.”

Leslie Dunn, the Indiana’s Director of GAL/CASA noted that, “The certification of the Indiana State Office demonstrates the Indiana Supreme Court has a strong commitment to provide effective advocacy for abused and neglected children within the state.”

For more information about GAL/CASA programs or to volunteer, contact the Indiana State Office of GAL/CASA at 1-800-542-0813 or www.in.gov/judiciary/galcasa.

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to Indiana Courts

Ind. Law - "Laws give nursing moms right to breast-feed in public"

The Muncie Star-Press republished this story today from the Sacramento Bee. Some quotes:

But under a California law enacted in 1997, women are allowed to breast-feed anywhere in public where they're entitled to be present.

Although many studies have proven the health benefits of the practice, advocates say what happened at the two gyms reflects a society still unaccustomed to the sight of nursing mothers in public places.

Despite laws in 42 states allowing public breast-feeding, La Leche League International spokeswoman Mary Lofton said incidents like the ones at California Family Fitness are common.

Women recently staged "nurse-ins" at Starbucks stores in Florida and Maryland to protest after employees were accused of asking breast-feeding mothers to leave or cover up more.

Earlier this summer, two incidents involving breast-feeding mothers at Victoria's Secret stores in Wisconsin and Massachusetts prompted a nationwide protest.

"Virtually all of the establishments relent or say, 'We didn't realize it was a law,' and send their apologies and say they will train their staff to be better informed," Lofton said.

Companies and their employees aren't the only ones needing better training about the benefits of breast-feeding, according to Lofton.

"Ironically, exposure is not really the issue," Lofton said, noting that most nursing mothers try to be as discreet as possible. "It's the act of nursing that people are not comfortable with. We have a long history of bottle-feeding in our culture."

The Star-Press includes a side-bar that answers the question - What about Indiana?
Indiana enacted its own public breast-feeding law three years ago -- Indiana Code 16-35-6-1 -- stating that "a woman may breastfeed her child anywhere the woman has a right to be."

However, "a lot of women don't know about the law," said Tina Babbitt, a perinatal educator at Indiana Perinatal Network in Indianapolis. So, they end up having to breastfeed in the restroom, if they can't leave the businesses' property. "What they need to ask is 'Do you like to eat your food in the restroom?'" Babbitt said.

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to Indiana Law

Courts - Running for Supreme Court justice in Kentucky

"Supreme Court candidate's poll called slanted by foe's campaign" is the headline to an AP story this morning in the Louisville Courier Journal. The ILB read it and was thankful that Indiana replaced partisan elections of appellate judges with its own version of "the Missouri Plan" in the early 1970s. Here is the report:

LEXINGTON, Ky. -- Campaign officials for two candidates for the Kentucky Supreme Court are trading allegations over a poll conducted last weekend.

Fayette Circuit Judge Mary Noble's campaign manager, Dea Riley, accused the campaign of Supreme Court Justice John Roach of conducting a "push poll," a tactic intended to sway voters through mass telephone calls releasing inflammatory information.

Roach's campaign manager, Cary Black, said the campaign "conducted a standard, statistically valid poll" that asked a variety of standard questions. He declined to release the survey or disclose the firm conducting it.

Riley said the Noble campaign received at least 20 calls from people in Fayette, Franklin and Madison counties who complained the questions seemed biased in favor of Roach.

Lexington resident Ralph C. Brown said the questions, which lasted nearly 20 minutes, were clearly slanted in Roach's favor. Brown said he was asked if the fact that Noble does not have children would cause him to have a less favorable opinion of her.

Roach is the former executive counsel to Gov. Ernie Fletcher, who appointed him to the high court.

The Courier Journal's editorial today is titled "Into the gutter." It begins: "The trashing of the state Supreme Court's reputation is just about complete, thanks to Gov. Ernie Fletcher."

Here is a quote from Michael Stevens of the Kentucky Law Blog this morning:

Until now the watchful eye of the Fourth Estate has been focused on the courts, the candidates, and others within the system.... Now, those eyes will move to take a look at the mechanisms designed to bring systemic control and balance to the courts.

Will they work?

A call for judicial reform has been sounded here for some time with several suggestions. No takers. Yet.

Maybe the Courier-Journal will step up and urge a change to the system rather than criticism of the practices.

When you reach a tipping point, momentum gathers and change occurs. Do you let it collapse upon itself or attempt to preserve what you have and use it as a means for effecting change for the better?

Posted by Marcia Oddi on Friday, August 18, 2006
Posted to Courts in general

Thursday, August 17, 2006

Ind. Decisions - 7th Circuit rules on two Indiana cases today

In USA v. Cinergy Corp. (SD Ind., Larry J. McKinney, Chief Judge), a 9-page opinion, Circuit Judge Posner writes:

The Environmental Protection Agency sued the owner of a number of coal-fired electric power plants claiming that the owner (Cinergy) had violated section 165(a) of the Clean Air Act, 42 U.S.C. § 7475(a), by physically modifying the plants without first obtaining from the EPA a permit that the agency contends is required by EPA regulation 40 C.F.R. § 52.21 for the type of modification that Cinergy made. (Other regulations are applicable to some of Cinergy’s facilities but are materially identical to section 52.21, see New York v. EPA, 413 F.3d 3, 13 (D.C. Cir. 2005) (per curiam), and so needn’t be discussed separately.) The modifications produced increases in the nitrogen oxides and sulfur dioxide annually emitted by the plants. If the EPA prevails in the suit, Cinergy will be required to retrofit the plants with costly pollution-control equipment (“best available control technology”). § 52.21(j)(3).

Cinergy argues that the regulation does not require modifications that do not increase the hourly rate at which a plant emits pollutants, even if the modifications increase the annual rate. The EPA argues that Cinergy is misreading the regulation. The district judge agreed with the EPA but authorized Cinergy to take an interlocutory appeal from his ruling, and we have consented to take the appeal. 28 U.S.C. § 1292(b). * * *

Cinergy’s other arguments are makeweights, and we will not extend this opinion to discuss them. AFFIRMED.

Here is the Sept. 5, 2005 ILB entry on the 8/29/05 federal district court ruling, headed "Cinergy loses summary judgment motion in NSR case."

In Murdock & Sons v. Goheen General (John Daniel Tinder, Judge), an 11-page opinion, Circuit Judge Kanne writes:

Murdock & Sons Construction, Inc. (“Murdock”) was the subcontractor in a construction contract. Murdock was to perform all of the masonry work for a maximum security prison for the State of Indiana (the “State”) [to be named the Wabash Valley Correctional Institution]. Unfortunately for Murdock, its union masons did not work nearly as fast as was projected in the original bid, for reasons that were never determined. This resulted in serious delays and cost overruns; however, the State was unwilling to provide Murdock with an extension of time in which to complete the project. Murdock eventually walked off the job and filed the rarely seen constructive acceleration claim against the general contractor and the State, as well as two other claims we need not address. Following a bench trial, the district court ruled against Murdock on all claims (including a counterclaim by the general contractor not at issue here). Murdock appeals, and we affirm.

Posted by Marcia Oddi on Thursday, August 17, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Four today from the Court of Appeals

Saveen Kondamuri v. Jayasri Kondamuri

Guardianship of Dorothy C. Hollenga; Daniel J. Cook v. Gene Harris, Greg Stewart, Janet Becker, et al

In Jason Eichelberger v. State of Indiana, a 14-page opinion, Judge Vaidik writes:

Jason Eichelberger appeals the post-conviction court’s denial of his petition for post-conviction relief. Specifically, he contends that the post-conviction court erred in concluding that his trial counsel was not ineffective for failing to ensure that the jury was properly instructed as to the State’s burden of proof for both murder and voluntary manslaughter. Because Eichelberger’s trial counsel tendered a flawed instruction on voluntary manslaughter, which improperly included sudden heat as an element of the offense rather than stating that the State bears the burden of disproving its existence beyond a reasonable doubt, and failed to ensure that the jury was properly instructed that the absence of sudden heat is an element of murder on which the State bears the burden of proving beyond a reasonable doubt, which warrants a new trial, Eichelberger’s trial counsel was ineffective. We therefore reverse the post-conviction court.
After citing the 7th Circuit's opinion in Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005), reversing the district court, the opinion concludes:
Here, Eichelberger essentially made the same challenge as Sanders. That is, he argued that his trial counsel was ineffective for failing to ensure that the jury was properly instructed as to the burden of proof for both murder and voluntary manslaughter. Like the jury instruction in Sanders, the voluntary manslaughter instruction that Eichelberger’s trial counsel tendered erroneously stated that the State had to prove beyond a reasonable doubt the presence of sudden heat to obtain a voluntary manslaughter conviction. And even though the voluntary manslaughter instruction also stated that the existence of sudden heat is a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter, Eichelberger’s trial counsel failed to ensure that the jury was properly instructed that the absence of sudden heat is an element of murder on which the State bears the burden of proof. See Conner, 829 N.E.2d at 24. This is a due process violation that requires a new trial. See Sanders, 398 F.3d at 583, 584. As a result, Eichelberger has proved both deficient performance and prejudice on the part of his trial counsel. The post-conviction court erred in denying Eichelberger’s petition for post-conviction relief. Reversed and remanded.

City of Kokomo, Indiana v. Scott Kern

Posted by Marcia Oddi on Thursday, August 17, 2006
Posted to Ind. App.Ct. Decisions

Law - Interesting school ruling from Maryland

"Court Ruling Prompts Ban on Groups Sending Fliers Home With Students" is the headline to a story today in the Washington Post. Some quotes:

Montgomery County school officials announced yesterday that they are temporarily banning outside groups such as parent-teacher associations and the Boy Scouts from distributing fliers about activities and events in student backpacks.

The decision comes less than a week after a federal appeals court ruled that the school system's policy for flier distribution was unconstitutional because it gave educators unlimited power to approve or reject materials.

The case is the outgrowth of a dispute between the school system and Child Evangelism Fellowship of Maryland. The group filed suit in 2001 after the school system denied its request to distribute fliers about its Good News Club programs, in which students learn about the Bible. System officials said they were concerned because the materials were religious.

System officials said the court's decision left them with only two options until a new policy could be developed: allow all fliers to be distributed or allow none.

The court was 4th U.S. Circuit Court of Appeals in Richmond, Virginia. Here is the Post's story from April 11th. Some quotes:
A federal appeals court ruled yesterday that the Montgomery County public schools' policy for distributing fliers by community groups is unconstitutional because it gives school officials unlimited power to approve or reject materials.

The decision is the latest in the five-year battle between school officials and Child Evangelism Fellowship of Maryland, a Christian organization which sought to distribute fliers about its after-school Good News Club programs, which teach about the Bible.

In the 20-page decision, the three-judge panel of the 4th U.S. Circuit Court of Appeals wrote that the school system's policy governing flier distribution "imposes no guidelines as to how MCPS should exercise this unlimited discretion. This unbridled discretion requires that we sustain the CEF's challenge to the policy."

The school system initially rejected the group's request to distribute the fliers in 2001 because it considered the materials religious in nature. The group then sued, maintaining that the school policy discriminated against them while other organizations -- including parent-teacher groups and nonprofit youth sports leagues -- were allowed to distribute fliers to students.

Here is the 4th Circuit opinion, Child Evangelism v. Montgomery (8/10/06).

Here is information about a similar suit in Pennsylvania.

Posted by Marcia Oddi on Thursday, August 17, 2006
Posted to General Law Related

Ind. Decisions - Oral arguments scheduled by 7th Circuit in voter ID case

Oral arguments will be held on Wed., Oct. 18th at 9:30 a.m. before the 7th Circuit in the appeal from federal district Judge Sarah Evans Barker's decision in the Indiana voter ID challenge, Crawford v. Rokita.

A reader notes that the argument will be only three weeks before the general election.

The most recent ILB entry, with links to other items, is available here. Here is a link to the 7th Circuit brief bank for this appeal.

Posted by Marcia Oddi on Thursday, August 17, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Franklin school board eyes expulsion appeal process

The Indianapolis Star, in a story by Jon Murray, reports on a 2-1 Court of Appeals decision in early July, Logansport School Corporation v. P.F., and its implications.

Here is the Star's analysis of the opinion, as set out in a side-bar:

• Ruling: The Indiana Court of Appeals ruled 2-1 that school boards must hear all appeals on behalf of expelled students or none.
• Impact on schools: Many boards consider appeals on a case-by-case basis, granting them rarely. They must change their policies.
• Impact on students: Administrators' decisions would stand if a board votes to end appeals, with a court challenge the only recourse.
Here are some quotes from today's story:
The Franklin School Board shortened two high school students' expulsions in March.

The next month, it voted against hearing appeals in two other cases, letting administrators' decisions stand.
Board members have long decided whether to review expulsions on a case-by-case basis.

Now, many Indiana school boards are debating how much recourse expelled students should have after a court recently ruled that such policies violate the law.

The Indiana Court of Appeals' message last month in a case involving Logansport Schools was simple: Boards must hear all appeals requested by expelled students -- or vote not to hear any.

This Court of Appeals opinion and its implications completely slipped under the ILB's radar until now. Here is another Star story, from August 11th, written by longtime Star education reporter Howard Smulevitz. Some quotes:
Students facing expulsion from Washington Township Schools no longer will be able to appeal to the School Board.

The board voted 5-0 Wednesday to hear appeals only from the recommendations of school hearing officers -- leaving students the court system as their only recourse.

School hearing officers consider expulsion cases referred to them by school administrators.

Superintendent James Mervilde said the School Board needed to decide whether it would hear all appeals or none. He said that was the fallout of a court case in Logansport. "They really were supposed to be doing that all this time," Mervilde said of school boards in general. And if they voted to hear an appeal, they were supposed to consider whether the process was proper, and not determine it on the content of the case. But in reality, they did whatever they wanted to."

School Board President Lori Schlabach confirmed past practice: "I've listened to the tapes (of expulsion hearings) for hours, and so have other board members."

Schlabach, starting her third year on the board, said it has not granted an appeal during her term.

A previous board member said that in the past 12 years, only one or two appeals were granted in a process in which members reviewed the records of every appeal in private, then voted in public.

Although appeals no longer will be a board responsibility, Schlabach proposed the board begin a system of monitoring suspension and expulsion data and programs, and possibly adopt a policy to set out new guidelines.

Mervilde said he intends to bring updated disciplinary data to the board soon and would like the board to discuss what the district should provide to give students more alternatives to suspension or expulsion.

And here is a brief item from the Monticello Herald Journal, reported by Kevin Howell:
In the past, the board heard appeals on a case by case basis, but according to a recent court ruling cited by Superintendent Patrick McTaggart that was no longer able.

According to McTaggart, he was informed by Indiana School Board Association legal counsel Julie Slavens that the board could either choose to hear all appeals or no appeals.

McTaggart said he felt North White administrators provided for student rights and due process and recommended the board not hear appeals, of which only one has come before the board in the past four years.

North White expulsion officer Bob Carter determines if the step is necessary.
With the board's decision not to hear appeals, in the future students will take that step in the process to the court system.

[More] Ted Waggoner has sent this note to the ILB:
Interesting line-up. Our school - Rochester Community School Corp.- decided to hear all appeals, in order to provide full due process to students and administration. Vote was 7-0 as I recall (serving as school board attorney).

Posted by Marcia Oddi on Thursday, August 17, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County Superior Court judges ask for $7 million more

Will Higgins reports today in the Indianapolis Star:

The Marion County Superior Court judges dropped a bomb on the Indianapolis City-County Council on Wednesday, by asking for $7 million more than what Mayor Bart Peterson had sought for them in his 2007 budget. * * *

Presiding Marion Superior Court Judge Cale Bradford alluded to the city's rising homicide rate in appealing to council members: "In this time of violence," he said, "government leaders are lighthouses before the abyss."

Nearly half the additional money the judges seek, $3 million, would go to raise the salaries of staffers; $1.5 million would be spent to make the juvenile detention center safer by installing cameras in the building's interior; and about $1 million would go for renting space for the three new courts that are scheduled to open next year.

The judges' plan also calls for establishing a "family law division" -- four judges who would hear only family-type cases, such as divorce, domestic abuse and juvenile delinquency. A family with long-running legal troubles would always have the same judge.

Such a strategy would cost just $300,000 -- to build out adequate space in the City-County Building. It would cost another $102,000 a year in rent to the City-County Building Authority, the city agency that manages the building. * * *

"I haven't had a chance to study (the judges' proposal)," said Bart Brown, the council's financial adviser, "but that $7 million is going to be hard to find."

The council can't add money to the budget, but it can cut money or reapportion it. Anything it does is subject to the mayor's line-item veto.

Posted by Marcia Oddi on Thursday, August 17, 2006
Posted to Indiana Courts

Wednesday, August 16, 2006

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

In Black, Joseph M. v. Educational Testing Management Corp. and Margaret Spellings, Sec. of Ed., a 13-page opinion (SD Ind., ), Circuit Judge Wood writes:

The central issue in this case is whether a regulation promulgated by the Secretary of Education that allows the assessment of collection costs on defaulted student loans to be done on a formulaic basis was a permissible implementation of the governing statute, 20 U.S.C. § 1091a. The district court upheld the regulation, 34 C.F.R. § 682.410(b)(2), over the objection of a bankruptcy trustee, and accordingly allowed the claim for collection costs computed according to the regulation. The trustee appeals. We agree with the district court that the regulation was a permissible one, and we therefore affirm.

Posted by Marcia Oddi on Wednesday, August 16, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Orange County judge "leery of casino backers' petition"

An AP story posted this morning on the Indianapolis Star website reports:

PAOLI, Ind. -- A group of local residents have tried to give a judge a petition supporting Bloomington billionaire William Cook in his court fight to gain control of the $382 million French Lick casino project.

The judge overseeing the lawsuits between Orange County Holdings LLC, which is run by Cook's son, and Indianapolis-based Lauth Property Group over the project's ownership has given them until Monday to submit arguments over whether the case should be handled through arbitration or by jury trial.

Orange Circuit Judge Larry Blanton said Tuesday that local casino supporters had tried to submit the petition to him. "I told them not to give it to me," Blanton said.

Instead, the judge said he directed the group to the county clerk, who would date stamp it and deliver it to his office. But Blanton said he did not think it would be proper for him to read the petition as public opinion should not influence the court case.

"I don't want to open the envelope and look at it and see how many people there are who are my friends and neighbors," he said.

For background, see this August 1st ILB entry.

Posted by Marcia Oddi on Wednesday, August 16, 2006
Posted to Indiana Courts

Ind. Courts - "Bad checks not a good idea for Porter residents"

Jerry Davich reports today in the Munster (NW Indiana) Times:

HOBART I When Young Plumbing receives bad checks from customers, bookkeeper Karen Durham first calls the check writer and asks him or her to make good on their paper promise.

If that doesn't work, she mails a certified letter requesting the money.

If that doesn't work, and the check writer lives in Porter County, she hands the case over to the Porter County Bad Check Restitution Program.

Of the handful of checks the Hobart business has sent to the program for recovery in the past year, averaging $200, all have been recovered financially, she said.

"They handle everything," she said. "It's a great program."

The program, somewhat of a secret in Porter County, is headed by Chief Deputy Prosecutor Brian Gensel, who is responsible for its inception in 2004. * * *

The program requires victims receiving a bad check, whether it's a person or a business, to first contact the check writer by certified mail and give them 10 days to make good. If no progress has been made, the check becomes eligible for the program.

"We will then contact the check writer through a series of letters and phone calls and require them to make full restitution to the victim and attend our Checks and Balances Diversion course," Tibbetts said.

If they are still noncompliant, the complaint is reviewed for prosecution and if all criteria are met, the check writer could face charges, she said.

So far, more than 400 bad-check writers have attended the diversion class, said Tibbetts, whose job is to meet with merchants and raise the level of awareness about the program.

Leslee Wright, a pharmacy technician at Gil Drugs, in Valparaiso, said her store has used the program a dozen or so times, and most of the bad checks have been recovered. But not all.

"Some of our bad-check writers have skipped town," she said.

The story is accompanied by a side-bar titled "Tips for accepting checks."

The program also has a website: http://www.checkprogram.com/portercountyin

Posted by Marcia Oddi on Wednesday, August 16, 2006
Posted to Indiana Courts

Ind. Courts - "Bad idea: Flipping off the judge"

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

VALPARAISO | Jonathan Wilson faced no more than a fine Tuesday after failing to convince Porter Superior Judge David Chidester to throw out a speeding ticket.

That is until Wilson reacted to the unfavorable verdict by first flipping off the judge with his middle finger and then calling him an obscene name.

Wilson, 31, of San Pierre was hauled off to jail and ordered held until he writes a letter of apology to Chidester. And not just any old apology, but one that convinces the judge Wilson understands why he was found guilty and that the correct way to challenge the verdict is through the court of appeals.

Wilson is also required to agree to abide by all future court orders, including paying the original fine and obeying a 365-day license suspension.

Posted by Marcia Oddi on Wednesday, August 16, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "DNR violated public access laws "

The Gary Post-Tribune reports today, in a story by Lori Caldwell:

GARY — The Indiana Department of Natural Resources violated the state’s Open Door Law five times last month when it refused daily requests for information about an incident at Wells Street Beach, Public Access Counselor Karen Davis ruled Monday.

On July 9, a man used his personal watercraft to run over a woman in Lake Michigan after the two argued, court records state.

Beginning July 10, the Post-Tribune called the DNR office in Michigan City daily, seeking basic facts about the incident.

Public Information Officer Gene Davis refused, saying the matter was under investigation.

By Friday, investigators had presented evidence to Lake County prosecutors for review, but Gene Davis maintained he could not release any information.

“The denial of (the) request for information that was required to be maintained in the daily log was in violation of the access to Public Records Act. Any continuing denial of this record is a continuing violation of the law,” Karen Davis wrote.

In his written response to the Post-Tribune’s complaint, Gene Davis said investigators and his supervisor told him not to release any information, noting Indiana law allows law enforcement agencies to withhold investigatory records from the public.

Karen Davis said the DNR’s response, however, did not explain why the agency failed to provide basic facts state law requires it to keep as part of its daily log.

“Hopefully, they are taking into account my opinion. They are clearly a law enforcement agency and all calls for assistance must be logged,” she said.

Posted by Marcia Oddi on Wednesday, August 16, 2006
Posted to Indiana Government

Ind. Courts - "Jury hears both sides of fatal shooting"

In a story today in the Lafayette Journal & Courier, Joe Gerrety's report begins:

Michael J. Kelnhofer was defending himself and his home when he fatally shot Jamie L. Gallivan through his front door last year, Kelnhofer's attorney argued Tuesday.

A Tippecanoe Circuit Court jury began hearing evidence Tuesday in Kelnhofer's murder trial. Kelnhofer, 32, is charged in connection with the April 26, 2005, fatal shooting of Gallivan, 27.

Prosecutor Jerry Bean told jurors that Gallivan was attempting to recover a shotgun from Kelnhofer the day of the shooting. He said Kelnhofer knew Gallivan was unarmed when he fired a single shot from a .22-caliber rifle through Kelnhofer's front door, hitting Gallivan in the chest.

But Kelnhofer's attorney, Kirk Freeman, told jurors to focus on the context of the shooting.

"Michael Kelnhofer did shoot Jamie Gallivan, but he had a reason to do so," Freeman said. "He acted in self-defense. ... Michael Kelnhofer had no other alternative, and this was a case of self-defense."

The first thing the ILB thought of, when reading this, was the trial in Kentucky several weeks back, involving that state's new lethal force law, similar to Indiana's. For more, see this ILB entry from August 7th.

Posted by Marcia Oddi on Wednesday, August 16, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Court sides with couple in garage feud" with Allen County Plan Commission

Niki Kelly of the Fort Wayne Journal Gazette writes today about the Court of Appeals decision yesterday in the case of Jeff Rice, et al. v. Allen County Plan Commission (see ILB entry here - 3rd case). The lengthy story begins:

INDIANAPOLIS – The Indiana Court of Appeals on Tuesday vindicated a couple who contested a 2004 decision by the Allen County Plan Commission finding their detached garage was constructed illegally and would have to come down.

The ruling is the latest twist in a three-year saga over the barn, which neighbors in the adjoining West Autumn subdivision also refer to as an eyesore.

Jeff and Tammy Rice were elated with Tuesday’s full-scale victory.

“We have waited a long time,” Jeff Rice said.

“It was very crazy. It cost thousands and thousands and thousands of dollars to do this. But we knew we were in the right.”

The garage in question has remained up during the legal battle.

The procedural history of the case is lengthy, and the court used more than seven pages to lay it out in full detail.

[More] The same decision was reported in the Fort Wayne News-Sentinel yesterday afternoon by Ryan Lengerich. The headline: "Appeals judge rules pole barn can stay: Neighborhood dispute that has simmered since late ’90s may finally be over." Some quotes:
The legal wrangling appears over for Jeff and Tammy Rice. A state appeals court judge will let them keep a 3,600-square-foot pole barn on their Auburn Road property.

The Indiana Court of Appeals on Tuesday reversed a circuit court judge’s ruling that would have forced the Rices to tear down the $140,000 structure at 11915 Auburn Road. The decision, in effect, also requires the Allen County Plan Commission to approve the Rices’ plans to build their $225,000 dream home on their 3.6-acre property. * * *

The flap dates back to 1997, when the land where the garage sits was designated as the West Autumn neighborhood’s common area. That changed two years later when the county agreed to amend the development plan, freeing the Rices to build their pole barn.

Neighbors contended, however, they bought land in the subdivision under assurance from the developer the common land would remain untouched. About the same time, the plan commission approved Rice’s plans for his home and the detached garage. He built the garage, but months later the commission revoked its approval because construction on the home had not begun in the 60 days allotted. Rice blamed that on construction on Auburn Road, which he said hindered him from getting started.

Rice resubmitted his plans only to have the commission approve the home but specifically deny the garage and further stipulate his home would fall under the West Autumn Homeowners Association’s covenants, which forbid detached garages. The circuit court upheld that decision before the appeals court reversed it Tuesday. * * *

Rice estimates spending nearly $90,000 in legal fees and is working with [his attorney, Jim] Federoff to reclaim some of the costs.

Barring an appeal, the plans for the home and the garage, though already built, will move through the county planning department’s routing and permitting process. Under the ruling, he will not have to abide by West Autumn’s covenants.

Posted by Marcia Oddi on Wednesday, August 16, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Civil jury's verdict stands in 2004 domestic assault"

Bryan Corbin of the Evansville Courier& Press writes today on the Court of Appeals decision from August 10th in the case of Chris Allyn Becker v. Jamie Sue Fisher. Some quotes:

INDIANAPOLIS - An unusual domestic-violence case - in which the suspect was found innocent of criminal charges but ordered to pay $15,000 in damages to the victim in a lawsuit over the same incident - has taken an unexpected final turn.

The Indiana Court of Appeals let stand the civil jury's verdict last year that Chris Allyn Becker was liable for $15,000 in damages to Jamie Sue Fisher for injuries she suffered during a domestic-battery altercation in 2004.

In November, the trial court judge, Vanderburgh Superior Court Judge J. Douglas Knight, reversed the jury's verdict. Knight had concluded he erred in his instructions to the jury. But the appeals court found just the opposite: that Knight's original jury instructions were not lacking and there was no need for him to reverse the jury's verdict.

Both sides had appealed Knight's decision; but now, neither side gets a new trial. * * *

Although a jury hearing criminal charges acquitted Becker on all counts, a civil jury hearing Fisher's lawsuit found Becker liable for $15,000 in damages last Aug. 18 for battering and confining Fisher.

The defense asked the judge to recite to jurors instructions concerning comparative fault - where the amount of damages can be calculated based on a percentage of fault assigned to each side - Knight refused.

After the verdict, the defense contended that decision was grounds for reversal of the verdict. Knight agreed and acknowledged he should have read jurors that instruction. On Nov. 16, he set aside the jury's verdict and ordered a new trial.

Both sides appealed. Becker appealed both the verdict and the $15,000 in damages. Fisher, whose attorneys contended she was owed $200,000 to $500,000, appealed for a higher damages award.

Fisher's appeal also cited alleged misconduct by civil jurors, some of whom admitted to conducting an experiment during deliberations in the jury room, using estimated measurements to test whether Fisher could have fallen on a sofa and been injured in the way Becker described. Fisher's attorneys had contended the jurors' experiment was improper and should have warranted a new trial.

In a six-page decision issued Tuesday, the Indiana Court of Appeals denied requests for a new trial and upheld the civil jury's original verdict and damages.

Court of Appeals Judge Terry Crone wrote that the disputed jury instruction didn't apply in this case, so Knight omitting it last year wasn't grounds for him to later order a new trial in the lawsuit.

In the decision, Crone wrote, the jurors' experiment was not misconduct.

"... The jury was fully aware that it could not determine the correct distance, but simply wished to discover whether Becker's story was at all plausible, based on their knowledge of Fisher's height," the decision said.

Although pleased that her assailant was found liable, Fisher feels the punishment didn't fit the crime, Warzecha said.

"It doesn't send a good message at all," he said. "It makes victims much less likely to come forward and go through what is likely to be a several-year ordeal of having to relive the beating. And unless juries start to hit these defendants with prison terms and large monetary damages, these defendants are going to think it's OK to do this; and it really precludes and discourage victims from coming forward - which shouldn't be."

Posted by Marcia Oddi on Wednesday, August 16, 2006
Posted to Ind. App.Ct. Decisions

Tuesday, August 15, 2006

Law - "Katrina storm surge damage not covered by homeowners insurance, judge rules"

"Katrina storm surge damage not covered by homeowners insurance, judge rules" is the headline to this AP story posted late this afternoon by USAToday.

Here is the 13-page opinion from the U.S. District Court Southern District of Mississippi website: Leonard v. Nationwide Mutual Insurance. Co. Here is the order and judgment.

[Updated 8/16/06] Here is a more detailed AP story, via Law.com.

For background, start with this ILB entry from July 11th, and this one from July 14th.

Posted by Marcia Oddi on Tuesday, August 15, 2006
Posted to General Law Related

Courts - Connecticut's attorney general says Judicial Review Council Documents Are Public

The AP reports today, in a story in the Harford Courant that begins:

Investigative records such as those used to charge former state Chief Justice William Sullivan with violating state law and the judicial code of conduct should be made public, Connecticut's attorney general said Tuesday.

Richard Blumenthal's legal opinion was requested by Raymond Hassett, the chairman of the Judicial Review Council. Last month, the council charged Sullivan with five violations of the judicial code and state law for holding up the release of a Supreme Court opinion to help a colleague win legislative confirmation.

A public hearing is scheduled for Sept. 6.

"No legal basis or rationale exists for denying public access to investigatory records -- regardless of when obtained -- concerning complaints after there is a finding of probable cause," Blumenthal said in his legal opinion, which applies to all council investigations and did not mention the Sullivan case.

Sullivan, who retired April 15, has acknowledged that he delayed the release of a controversial court decision earlier this year, hoping to protect Republican Gov. M. Jodi Rell's chief justice nominee, Supreme Court Justice Peter Zarella. Rell has since withdrawn the nomination.

In the decision, Zarella voted with the majority to keep certain judicial records secret from the public. He was facing legislative confirmation hearings and Sullivan feared Zarella's position would anger legislators.

For background, see this July 19th ILB entry.

Thanks to How Appealing for the link to today's story.

Posted by Marcia Oddi on Tuesday, August 15, 2006
Posted to Courts in general

Ind. Law - Julian Center appeals for donations

A story by Will Higgins, posted on the Indianapolis Star website this afternoon, reports:

The Julian Center, the city’s largest shelter for battered women, has far more clients than it expected and is in dire need of cash. Executive Director Ann M. DeLaney, today made an “urgent appeal” to the public for funds and also items for the facility in the 2000 block of North Meridian Street.

Last year, the center served 1,229 women and their children who were fleeing abusive relationships. That was five percent more than the previous year. This year the center is on track for 1,525 women and children.

There were 131 clients in the center on Tuesday. It was an overflow, with staffers setting up cots in the library and in the homework room.

DeLaney said the rise in the Julian Center's numbers reflects victims' increased awareness of the center and confidence in the security it provides. Anyone entering the building must be buzzed in by security personnel, and a dozen IPD officers, domestic abuse experts, have their office in the building. * * *

Last Friday, DeLaney said, the group took out a $100,000 line of credit from a bank just to make ends meet, a first for the Julian Center.

Here is the Julian Center website. You may donate online via the "Donate Now!" button in the right column.

Posted by Marcia Oddi on Tuesday, August 15, 2006
Posted to Indiana Law

Ind. Courts - State audit clears juvenile center

"State audit clears juvenile center" is the headline to a brief story posted this afternoon oon the State audit clears juvenile center. Some quotes:

A State Board Accounts audit has found extensive accounting irregularities at the Marion County Juvenile Detention Center and Court, but no evidence of criminal or civil violations by former Juvenile Court Judge James W. Payne.

Despite the accounting problems cited in the audit released today, State Examiner Bruce Hartman said the review found no missing money and no apparent illegal activity. "Most of the things that were in this report involved bookkeeping types of things, processing issues and how work is performed," said Hartman.

Payne, who now heads the Indiana Department of Child Services, could not be reached for comment. But in a written response to state auditors he said "...all financial records, policies and procedures were in compliance with the regulations that we were aware of from the State Board of Accounts" when he left the bench.

"Because of the records not made available to you, the presence of internal controls may not be able to be determined," Payne wrote. "However, strict controls existed... All (prior) recommendations of the State Board of Accounts auditors were implemented and followed. Those written policies and procedures were available on January 7, 2005."

Posted by Marcia Oddi on Tuesday, August 15, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues four today

In Nedal Hamed v. State of Indiana, an 8-page opinion, Judge Sharpnack writes:

Nedal Hamed appeals his sentence for criminal recklessness as a class A misdemeanor. Hamed raises one issue, which we revise and restate as whether the trial court erred by including a no contact order in Hamed’s sentence. Further, the State raises one issue, which we restate as whether Hamed’s appeal should be dismissed as moot. We reverse and remand. * * *

Ind. Code § 35-50-3-2 (2004) governs the sentence for criminal recklessness as a class A misdemeanor and provides that “[a] person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year; in addition, he may be fined not more than five thousand dollars ($5,000).” By its own terms, this statute does not authorize imposition of a no contact order as part of an executed sentence. Thus, the trial court did not act within statutorily prescribed limits. The Indiana Supreme Court reached a similar conclusion in Laux, 821 N.E.2d at 819 and Jarrett v. State, 829 N.E.2d 930, 932 (Ind. 2005), where it held that sentencing statutes did not authorize the imposition of a no contact order. We decline the State’s invitation to reconsider these decisions as “[i]t is not this court’s role to reconsider . . . decisions of [the Indiana Supreme Court].” Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005).

For the foregoing reasons, we reverse the trial court’s extension of the no contact order. Reversed and remanded.

In State of Indiana v. George Metcalf, a 10-page opinion, Judge Baker writes:
Appellant-respondent State of Indiana appeals from the post-conviction court’s decision to grant relief in favor of appellee-petitioner George Metcalf. Specifically, the State claims that the post-conviction court erred in determining that Metcalf no longer had to serve a life sentence that had been imposed in 1977, following the Indiana Parole Board’s (Parole Board) decision in 1999 to grant Metcalf a “turnover”1 or discharge from serving that sentence. Put another way, the State urges that the post-conviction court erroneously concluded that Metcalf’s originally-imposed life sentence could not serve as a basis for any future parole revocation. Concluding that the post-conviction court erroneously determined that Metcalf had been discharged from serving his originally-imposed life sentence, we reverse the grant of post-conviction relief.
In Jeff Rice, et al. v. Allen County Plan Commission, a 24-page opinion with a concurring opinion on p. 24, Judge Baker writes:
Appellants-petitioners Jeff and Tammy Rice appeal from the trial court’s order affirming the decision of appellee-respondent Allen County Plan Commission (the Commission) to conditionally approve the Rices’ primary development plan (Development Plan) as to their proposed home, but not to their already-constructed garage. The Rices raise a number of arguments, one of which we find dispositive: whether the Commission’s decision was unsupported by substantial evidence. Finding that there is not substantial evidence supporting the Commission’s decision, we reverse and remand with instructions to remand this cause to the Commission with instructions to approve the Development Plan unconditionally with respect to the home and the garage. * * *

In sum, we have concluded that the Rices have established their compliance with the zoning criteria at issue of a matter of law. Furthermore, there is not substantial evidence supporting the conclusions that the garage is a “commercial” structure, that the garage presents traffic safety problems, or that the garage is incompatible with surrounding land uses. Thus, the Commission erred in concluding that the Rices failed to meet the zoning ordinance criteria for approval of their Development Plan. It also erred in refusing to approve the Development Plan with respect to the garage and in requiring the Real Estate to comply with the West Auburn restrictive covenants.7 We commend the trial court for being troubled by the posture and equities of this case and acknowledge that it believed its hands to be tied. But we have determined that the trial court did not arrive at the appropriate result and conclude, therefore, that the trial court erred in affirming the Commission’s decision.

We reverse the judgment of the trial court and remand with instructions to remand this cause to the Commission with instructions to approve the Development Plan unconditionally with respect to the home and the garage.

MAY, J., concurs.
SULLIVAN, J., concurs in result with opinion.

I concur in the reversal of the judgment and in the remand with instructions to approve the Development Plan. I do so, however, because I agree that the Rices established, as a matter of law, each of the criteria required for approval of the application.

I do not join with my colleagues in their discussion which couches the determinative analysis in terms of the sufficiency of the evidence to support the Commission’s various conclusions. That is not the proper standard of review as the majority itself observes in the last paragraph of Part I.

In Auto-Owners Insurance Company v. Bank One, a 25-page opinion, Judge Robb writes:
Auto-Owners Insurance Company (“Auto-Owners”) appeals the trial court’s order granting Bank One’s motion for summary judgment and denying Auto-Owners’ motion for partial summary judgment. Auto-Owners raises four issues for our review, which we consolidate and restate as whether the trial court properly granted Bank One’s motion for summary judgment and denied Auto-Owners’ motion for partial summary judgment. Because the discovery rule does not apply to claims for conversion of a negotiable instrument, Auto-Owners’ claims for negligence and conversion based on any checks negotiated before October 30, 1995, are barred by the statute of limitations. Bank One is entitled to summary judgment on Auto-Owners’ claims based on checks negotiated after October 30, 1995, because it proved the defense available to it under Indiana Code section 26-1-3.1-405(b), and because Auto-Owners did not show the existence of a genuine issue of material fact regarding whether Bank One failed to exercise ordinary care in taking the checks for deposit. The trial court’s order granting Bank One’s motion for summary judgment and denying Auto-Owners’ motion for partial summary judgment is therefore affirmed.

Posted by Marcia Oddi on Tuesday, August 15, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - The July-August issue of Res Gestae arrived yesterday

The July/August issue of the Res Gestae, the Journal of the Indiana State Bar Association, arrived in my mailbox yesterday, and it's looking good! This is its 50 year birthday, and it has spiffed up in celebration - with new shiny pages, a cool cover, and more.

There are a number of great articles in this issue. My favorite is one by Bill Brooks, starting on page 27, titled "A lot of things grew out of Res Gestae." Bill interviews Judge Robert H. Staton, who was responsible for putting together the very first issue, 50 years ago.

An article including biographies and photos of the five Court of Appeals judges and one Supreme Court justice who are up for retention on the November ballot, fills four pages, beginning on page 10.

The ILB plans to have much more on the judicial retention election over the coming months; for background start with this July 20th entry.

My Res Gestae column this month is titled the "General Assembly's role in making Indiana rules and statutes available to the public." It begins on page 19 and reviews the online Indiana Register (rulemaking documents) and the Indiana Code (the statutes). I announced this article and quoted from it in this July 13th ILB entry, but to me, as with many things, it looks and reads much better in print.

Posted by Marcia Oddi on Tuesday, August 15, 2006
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Courts - More on: Clark judge plan "has only a slim chance of being approved"

Updating this ILB entry from Sunday, Ben Zion Hershberg reports today in the Louisville Courier Journal, in the very last paragraph of a story that "By a 4-3 vote along party lines, the Clark County Council agreed yesterday to finance construction of a work-release center in the unfinished third floor of the new jail," that:

Also along party lines, the council voted 4-3 to reject a proposal to ask the General Assembly to create two new courts in Clark because of the large caseload clogging the county's four courts.
A second version of the same story includes more:
“Our judges have the second biggest caseload in the state,” Snelling told the council.

If the legislature approved the two new courts, the state government would pay most of the judges’ salaries and the county government would pay the salaries of their employees and most other costs — which Snelling estimated at up to $400,000 for each court.

The council discussed seeking state approval for a magistrate next July and a judge in 2009 to save on costs, but didn’t take action on the idea.

Posted by Marcia Oddi on Tuesday, August 15, 2006
Posted to Indiana Courts

Monday, August 14, 2006

Ind. Decisions - Conseco bankruptcy decision issued by 7th Circuit last Friday

Well, the ILB missed this 7th Circuit decision last Friday (and so did most everyone else, it seems). The case is ROLLIN DICK, as Trustee of the Amended Hilbert Residence Maintenance Trust and as Trustee of the Stephen C. and Tomisue Hilbert Irrevocable Trust v. CONSECO, INC. Fortunately, the Bankruptcy Litigation Blog, out of Chicago, did catch it.

Here is a link to the entry by Steve Jakubowski, titled "7th Circuit Rejects Ex-CEO Hilbert's Claim that Certain of His Perks Were Executory When Conseco Filed Bankruptcy."

Posted by Marcia Oddi on Monday, August 14, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit ruling today involves the "probate exemption" to federal courts' jurisdiction

Lois Jones v. Thomas Brennan, et al. is a 9-page opinion out of Illinois, written by Circuit Judge Posner. Some quotes (most cites omitted):

The judge dismissed the suit on the pleadings on the authority of the Rooker-Feldman doctrine. This was a mistake. The doctrine, which forbids a federal court other than the Supreme Court to entertain an appeal from a decision by a state court, is inapplicable when the plaintiff is not attacking a state court judgment. * * *

There is another jurisdictional obstacle to consider, however, and that is the “probate exception” to the federal courts’ jurisdiction. As recently clarified by the Supreme Court, the exception “reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.” Marshall v. Marshall, 126 S. Ct. 1735, 1748 (2006). The probate exception is usually invoked in diversity cases, and the courts are divided over its applicability to federal-question cases, such as this case. We think it applicable.

It used to be thought that the probate exception, like the domestic-relations exception, which denies federal jurisdiction to grant a divorce or exercise the other characteristic powers of a domestic-relations court, and is also usually invoked in diversity cases, was of constitutional dignity. We echoed that view in Dragan v. Miller, supra, 679 F.2d at 714. The thought was that Article III of the Constitution, in limiting the judicial power of the United States to cases and controversies, had confined the jurisdiction of the federal courts to “matters that were the traditional concern of the courts at Westminster.” Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., concurring). Probate and domestic relations were handled by the English ecclesiastical courts rather than by the royal courts (both the common law courts and the Chancery court) at Westminster.

The accuracy of this historical analysis has been questioned. The dominant modern view is that the exceptions are of statutory rather than constitutional origin (except insofar as some matters within the probate or domestic-relations jurisdictions do not involve disputes and therefore are not cases or controversies), and is agnostic about the accuracy of its remote historical underpinnings.

BTW, Marshall v. Marshall was the Supreme Court case last term involving former Playboy model Anna Nicole Smith.

Posted by Marcia Oddi on Monday, August 14, 2006
Posted to Ind. (7th Cir.) Decisions

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

In Gabe Keri v. Board of Trustees of Purdue University (ND Ind. - Theresa L. Springmann, Judge), a 4-page opinion to which is appended the 45-page District Court opinion, Circuit Judge Kanne writes:

Gabe Keri filed suit against the Board of Trustees of his former employer, Indiana University-Purdue University Fort Wayne (“IPFW”),1 alleging race and national origin discrimination, as well as a whole host of related federal and state law claims. The district court granted summary judgment for IPFW on all claims in a 44-page opinion, and Keri appeals. For the reasons set forth below, we affirm and adopt the thorough opinion of the district court. * * *

In rendering her opinion, Judge Springmann thoroughly and carefully analyzed all the issues raised in this appeal. Accordingly, we AFFIRM and adopt the excellent opinion of the district court. A copy of the district court’s order is attached.

Posted by Marcia Oddi on Monday, August 14, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues two today

In Rebecca Anderson v. Four Seasons Equestrian Center, Inc. and Virginia Fox, a 14-page opinion, Judge Bailey writes:

The sole issue is whether the trial court erred by granting summary judgment to the Defendants. The trial court granted summary judgment to the Defendants after concluding that they were immune under the Equine Activity Statute and that Anderson had waived any claim for the injury against the Defendants by signing the Waiver. * * *

Using this case law as our guide, we review the exculpatory clause contained in the Waiver signed by Anderson and the circumstances of her injury. Anderson agreed to release the Defendants from liability relating to her participation in equine activity, and the designated evidence reveals that Anderson admitted that she was engaged in equine activity at the time of her injury. Anderson was injured when she attempted to mount her own horse, and her complaint alleged that the Defendants were negligent in “caring for, conditioning and training” Anderson’s horse. Anderson, however, had signed the Waiver agreeing to release Four Seasons “from all tort and civil liability arising from or relating to participation in equine activity.” The Waiver explained that “equine activity” at Four Seasons included, among other things, “[r]iding, jumping, showing, trail riding, and the like . . . [t]eaching instructing, and evaluating both rider and the equine [and] . . . [r]outine care and feeding of the equine[.]” In addition, the Waiver explained that there were risks inherent in dealing with horses and enumerated some of those inherent risks, including “[t]he propensity of and [sic] equine to behave in ways that may result in injury, death, or loss to persons on or around an equine” and “[t]he unpredictability of an equine’s reaction to sounds, sudden movements, unfamiliar objects, persons, or other animals[.]”

The Waiver did not specifically and explicitly refer to the Defendants’ own negligence; however, that fact does not render the Waiver useless. As explained in Marsh, an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability—such as when a plaintiff has incurred damages that are inherent in the nature of the activity. Marsh, 707 N.E.2d at 1000; see also Avant, 826 N.E.2d at 10 (holding that an exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself). The Waiver cautioned that there were risks inherent in the nature of activity of dealing with horses and explained some of those risks, and Anderson was injured when attempting to mount her horse. Thus, we conclude that Anderson’s damages incurred were inherent in the nature of the activity of horse riding. Furthermore, similar to Moore, the alleged acts of negligence in Anderson’s complaint were exactly those for which she granted the Defendants a release of liability when she signed the Waiver. Accordingly, the trial court did not err by granting summary judgment to the Defendants based upon Anderson’s Waiver.

Because we affirm the trial court’s grant of summary judgment based upon the Waiver, we do not address the propriety of the trial court’s decision concerning immunity under the Equine Activity Statute. See Catt, 779 N.E.2d at 3 (noting that we may affirm a trial court’s summary judgment ruling on any grounds supported by the record).

Tyrone Goodman v. State of Indiana - this is a NFP decision, presumably posted inadvertently

Posted by Marcia Oddi on Monday, August 14, 2006
Posted to Ind. App.Ct. Decisions

Sunday, August 13, 2006

Ind. Decisions - Summaries of Friday's decisions completed

The ILB summaries of Friday's (8/11/06) Court of Appeals and Supreme Court rulings are now completed. Access them here and here, respectively. Check the provisions concerning attorney fee arrangements in the first of the disciplinary decisions; the second is about TROs and ex parte communications.

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Indiana Decisions

Environment - "Ohio, Michigan megafarms spur clashes over air, water pollution" [Updated]

The Toledo Blade publishes a very long and comprehesive story today about mega-dairy farms, reported by Tom Henry, and it is just the first of two parts. This is a must-read for anyone following CAFOs. Some samples:

Fifteen large-scale operations are in Hillsdale and Lenawee counties, and 30 operate or have permits within a 90-minute drive of Toledo. They are specialized, and each is home to thousands of dairy cows or hogs; chicken operations sometimes eclipse a million beaks.

One cow produces the waste of 23 to 30 humans, giving some farms the sewage challenges of small cities.

"I'm telling you these are not family farms. They are industrial farms, and they are producing industrial-sized waste," said Ron Wyss, a Hardin County farmer who is president of Citizens for Responsible Agricultural Environmental Policies. "It seems to me that all we're doing now is issuing permits to pollute." * * *

Commonly called megafarms or factory farms, CAFO is a legal term for industrial-sized livestock facilities so big that they need new rules and definitions. Such facilities pack livestock by the thousands into tightly confined facilities, with manure a main by-product.

Mr. Vander Hoff's family has stimulated the boom by expanding its own operations and running a type of employment and relocation service for the Netherlands.

Shortly after opening its Lenawee County farm in 1998, it established a second operation three miles to the west in Hillsdale County. The Vander Hoffs have 6,000 cows producing as much waste as a city of at least 138,000 people.

The Vander Hoffs also created Vreba-Hoff Development Authority, a consulting group based in Wauseon. The authority helps displaced Dutch dairy farmers start life anew on American farmland.

Many choose the tri-state region of Ohio, Michigan, and Indiana because of its affordable land, access to water, favorable climate, and simpler regulations. Farmers have been moving here from the Netherlands for a few years, in part because environmental laws in the European Union have become so stiff, according to information from the Ohio State University Extension. * * *

Ideally, large-scale operators enlist crop farmers to take manure off their hands, free of charge. If applied properly, the manure works its way into the soil and becomes a cheap fertilizer. But many of the most vocal opponents are the crop farmers themselves.

They have criticized the industry trend toward greater consolidation, questioning if state and federal officials are looking the other way and failing to protect the environment.

"They're stealing our fresh air from us," said John Zachel, who lives across the street from a hog operation and has farmed in Lenawee County for 58 years.

Some traditional family farmers see large-scale factory farming as a threat to their existence. They cite steep losses in property value and fear higher taxes as township budgets increase because of the need for more road work to support the vehicles and trailers of large-scale farming. * * *

John Rohrs, a Hardin County corn, bean, and carrot farmer, said he opened the door for the Van Durzen facility by selling 160 acres of his land. In exchange, he will be a manure recipient.

"Every other business has consolidated. Farming is just another business that has to do that to stay competitive," Mr. Rohrs said. "Everybody wants cheap food."

He said he has no fears of his groundwater becoming contaminated as long as spreaders apply manure according to state agriculture regulations.

But a recent effort to seal manure spreading records in court has some doubting the methods are solid. A lawsuit was recently filed by the Naomi and Green dairies in Wood County and the Hillbex Dairy in Sandusky County to seal documents known as manure-management plans. They contain maps that reveal the identity of manure recipients.

The state agriculture department, upon advice from the state attorney general's office, agreed the information is public record and should be revealed.

Residents say they can't independently test for contamination without knowing where the manure is heading. The dairies have claimed the information is a trade secret.

[Update] Here is the link to Part II of the story, published August 14, 2006.

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Environment

Ind. Law - More fireworks over fireworks

The Gary Post-Tribune today has a fairly damning story today about the new fireworks law. The story is written by Steve Walsh and headlined: "Fireworks law loopholes alarm area fire officials." Because the Post-Tribune does not archive its stories, here is the entire story:

A new Indiana law has allowed fireworks stores to expand without sprinkler systems they were previously required to have and has left regulators unable to enforce limits on the size of the explosives the stores sell.

Regulators have told the Post-Tribune they were overwhelmed by the surge in retailers requesting permits to sell bottle rockets, firecrackers and other explosives and weren’t able to conduct the fire safety inspections they are supposed to do before issuing such permits.

Many, if not most, of the 71 fireworks outlets in Porter and Lake counties received pre-Fourth of July permits without having been inspected for fire safety.

The new law took effect in May, allowing Indiana residents to shoot off most consumer fireworks legally for the first time. The law also created a new permit process for stores selling fireworks in the state.

A Post-Tribune check of permits certified by the state fire marshal in Lake and Porter counties found the state granted permits for many — if not nearly all — retail outlets without the fire inspection required under the new law.

The state fire marshal would document only one inspection for a permit — Midwest Vending on 37th Avenue in Hobart.

“It was an incredibly aggressive timeframe to get this up and running,” said J. Eric Dietz of Indiana’s Department of Homeland Security, which includes the state fire marshal’s office.

The state acknowledged that it has scant records that most firework outlets were inspected before they were given a permit. Dietz said a flaw in either the process or the new law didn’t require stands to send in a copy of a fire inspection with their paperwork — though the law clearly required an inspection.

He stopped short of saying the inspections weren’t completed. After lawmakers and the governor brokered a compromise in April, the state fire marshal held teleconferences with local fire departments and distributed information on the new law.

Dietz said his office believes local fire departments inspected fireworks outlets around Indiana, even though the state has no documentation of local inspections.

“In most cases around the state, we do know (they were inspected), because we worked with local fire departments,” Dietz said.

Few sites actually inspected

Local fire officials disputed Dietz’s claims. In Gary, Chief Fire Inspector Michael Gregory was given the list of state permits for Gary. He said none of them was inspected for the new law. The city has only inspected new outlets when they are referred from the city’s building commission.

The information package available on Homeland Security’s Web site advises local fire officials that “inspections are to be performed only at locations provided to local fire departments by the State Fire Marshal’s Code Enforcement Section.”

In Hammond, Chief Fire Inspector Jim Walsko said his office did not feel empowered to inspect fireworks stands. Located on the border of Chicago and its suburbs, where all fireworks are illegal, Hammond has among the highest number of stands of any Indiana city, with 21 outlets.

Aside from a packet of information, the state fire marshal did not send a list of potential certificates, he said.

“Our hands are pretty well tied,” Walsko said.

Caught on the border with Illinois, Walsko has long battled Indiana’s often ambiguous firework statutes, which allowed stands to proliferate in Hammond. Far from clearing up the problems, the new law opened new loopholes for fireworks dealers, he said.

“It was written for the fireworks industry,” he said.

The law tightens the standards for new firework outlets, setting tougher rules for tents and buildings. New buildings must have sprinkler systems for fire protection and follow many of the same standards as other buildings housing hazardous materials.

Few rules for older sites

For local fire departments, the most controversial part of the new law was a decision by the legislature to grandfather any outlet that began selling fireworks in 2003.

Though the state did not have a clear picture of the number of individual stands operating under the old law, the Department of Homeland Security says most of the stands registered before the Fourth of July were outlets grandfathered under the law, Dietz said.

Existing outlets didn’t have to add sprinklers and other safety features. At the same time, the law allowed those who operated out of the older building to raise the amount of fireworks they kept on hand.

The Post-Tribune found some local firework outlets were given permits to store up to 3,000 pounds of fireworks under the new law, even though the state Fire and Building Commission had turned down their requests to increase their limits from 500 pounds just last year because they did not have sprinkler systems.

The state fire marshal’s office released the 2005 denial of two Krazy Kaplan outlets — one at 1433 Indianapolis Blvd. in Hammond and the other on U.S. 30 in Merrillville. Last year, the fire departments in both communities fought the expansion before the state and won.

Walsko said there were others.

“We turned them down last year. This year they opened bigger than ever,” he said.

The Post-Tribune left phone messages seeking comment at the phone number Krazy Kaplan’s listed on its permit applications; the calls were not returned.

Lack of sprinklers in a warehouse full of consumer fireworks can be every bit as dangerous as it sounds. In 1996, nine people died in Ohio when a customer ignited the stock at one retail outlet. Fires at Boomtown in Merrillville in 2002 and in north Hammond this year spread quickly, and Walsko said that when they happen they are nearly impossible for firefighters to combat.

A spokesman for the Indiana Fireworks Distributors Association said the fireworks industry is not unique, in that lawmakers often exempt existing buildings from new building regulations.

“It happens in every field. If they didn’t, many people would have to close down because it’s so expensive to put these systems into existing buildings,” association spokesman Steve Graves said.

The industry is fighting a perception that fireworks explode when exposed to flame, when they burn like other flammable products, he said.

Will changes be made?

Aside from the absence of inspections, there have been other delays in enforcing the new law. The law required the state Fire and Building Commission to come up with new rules regulating the industry. More than a month after the first holiday under the new fireworks law, those rules have not been proposed, according to Indiana’s Department of Homeland Security.

Several lawmakers and Gov. Mitch Daniels have hinted lawmakers may go back to the drawing board to amend Indiana’s regulations. Some of the changes being recommended include a home rule, which would allow cities or towns to put more restrictive regulations in place.

The law as written did not not establish a cut-off for permits — and the bulk of the applications flooded the state with less than two weeks before the holiday. Homeland Security would recommended a cut-off in the spring.

“We had 200 to 300 applications come in the last week of June,” Dietz said.

But after more than two decades of attempting to work with Indiana’s fireworks laws, Walsko said his experience is lawmakers will not tighten up the existing regulation, no matter what problems arose this year.

“The fireworks industry will not be eager to give back any gains they won this year,” Dietz said.

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Indiana Law

Law - Another "Superlawyers" story

A story from the Fulton County (Georgia) Daily Report is republished by Law.com, dateline August 14. The headline: "'Super Lawyers' Still Soar in Georgia: While New Jersey restricts 'Super' lawyer ads, Georgia rule is not so strict." Some quotes from the lengthy story by Alyson M. Palmer:

Georgia's 1,234 "Super Lawyers" are free to go on touting their legal prowess. Although a New Jersey attorney ethics board has grounded its super lawyers, the State Bar of Georgia hasn't made any move to restrict such advertising.

In New Jersey, the ethics board ruled that lawyers chosen for listings in "Super Lawyers" and "Best Lawyers" can no longer boast of that designation on their Web sites. The board also said New Jersey lawyers cannot participate in the surveys that Super Lawyers and Best Lawyers say are at the heart of their selection process.

Those designations are bestowed upon lawyers across the nation by companies that compile and sell lists of the "best" attorneys and "super" lawyers. While there's no charge for being included on such lists, publishing companies sell enhanced listings -- advertisements -- to attorneys who want to call more attention to their "super" practices.

Last month's ruling by the Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey, criticized the "arbitrary selection" process for the Super Lawyers listing and said attorney advertisements that accompany the Super Lawyers and Best Lawyers listings violate professional responsibility rules against ads that compare lawyers' services or create an "unjustified expectation about results."

Jonathan Hewett, senior assistant general counsel at the State Bar of Georgia, says he's not aware of any complaints to the Bar about advertising based on the "Super Lawyer" designation or the like. But, noting that the Georgia rule contains some of the same language as the New Jersey rule, he said, "We're always concerned about advertising that creates some unjustified expectation." * * *

While Georgia's ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey's ethics rules, observers said.

The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer's services with other lawyers' services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated." [ILB - See note below re Indiana]

On that point, said University of Georgia School of Law professor Lonnie T. Brown Jr., the New Jersey rule is unique -- and possibly goes beyond the bounds of the First Amendment.

Here is a list of earlier ILB entries involving the term "superlawyers." As noted in this ILB entry from July 26th, the Indiana State Bar Association's Report of the Special Committee on Legal Advertising is available online at the ISBA site. Comments were due August 4th.

Much additional information can be found at the American Bar Association's page on Professionalism and Ethics in Lawyer Advertising.

What about Indiana? Indiana's draft rule provides this new language on p. 11 (p. 15 of the pdf document), at Rule 7.2 (c)(5):

(c) In the absence of special circumstances which serve to protect the probable targets of an advertisement from being misled or deceived or led into behavior in violation of law such advertisement shall be presumed to violate the terms of Rule 7.2(b) if it: * * * (5) compares the services provided by the lawyer or a law firm with other lawyers’ services, unless the comparison can be factually substantiated;
As the story quoted above states:
Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."
NOTE: Off the specific subject of superlawyers, but still relevant to legal advertising, I noticed that the ISBA committee's redline version of Rule 7.2 included in its list of "permissible subjects of advertising" (p. 12/p.15 of pdf), "malpractice insurance coverage." However, this language is not present in the "clean" version on p. 15/18 of pdf). Which draft is correct?

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to General Law Related

Law - Boston Globe writes on big box stores; bringing it home to Chesterton

The ILB has posted a number of entries on "big box" stores, local efforts in Indiana to zone to prevent them or further regulate them, and to deal with empty and abandoned big boxes.

In other places, efforts have been made to require better wages and benefits for big box employees. Today the Boston Globe has an article by David Barron titled "Boxed out: Big-box retailers like Wal-Mart are looking to expand into urban markets. But some cities are drawing the line--and that's a healthy sign." Some quotes:

NOT SO LONG AGO, America's big cities were so desperate to attract commercial development they gladly would have given away the store to get one. But not now, asWal-Mart and other super-retailers recently discovered. On July 25, the Chicago Board of Aldermen passed an ordinance requiring big-box retailers-those with $1 billion in sales and 90,000 square feet of shopping space in their stores-to give their employees a living wage. By 2010, the stores would have to pay workers $10 an hour and provide an additional $3 in benefits.

Despite strong support from local unions and merchants, and concerns that an influx of low-paying big-box retail jobs could do more harm than good, the mayor has threatened to veto the measure, and some are talking about asking the courts to strike it down if it's enacted. They say the new law is not only unfair but also bad policy. It would, they argue, deprive the city of sales taxes, force consumers to pay higher prices, take jobs from poor people, and push new development to the suburbs.

But whatever one thinks of the merits of this debate, the fact that Chicago is even having it is important. Other cities, including Boston, are already thinking about following the aldermen's lead: As Wal-Mart contemplates its first store in Boston, city councilors Chuck Turner and Felix Arroyo have said they plan to explore an ordinance similar to Chicago's. This surge of interest in regulating big-box retail shows that, at last, America's cities are beginning to think of themselves as choosers rather than beggars. They have emerged from decades of decline with newfound financial strength, and they are now beginning to assert their public powers to decide the kind of cities they want to be. * * *

The Chicago debate is not really just about Wal-Mart, nor is it even about how big-box retailers should be regulated. It's also about our cities-both how we should think about them and how they should think about themselves. And for those who believe that a strong nation needs strong cities-a view that a growing body of research supports-this renewal in urban self-confidence is a welcome development indeed. For that reason, efforts to strip Chicago and other cities of the legal power to make decisions like this one should be rejected. They would stifle a long-dormant debate about the future of our cities before it has even had a chance to get off the ground.

Meanwhile, the Munster (NW Indiana) Times has a story today by Bob Kasarda titled "Chesterton big box stores remain empty." He reports:
The small town of Chesterton has no shortage of options for grocery shopping.

Wiseway Superstores and Jewel-Osco have expanded their businesses by building larger stores in the community over the past five years.

But in the wake of this new development are the old buildings, which now sit vacant, along with the former Smedman's Econo-Mart at 325 S. Calumet Road.

Michigan City attorney Jeffrey Katz, who owns the former Jewel-Osco building along the south side of Indian Boundary Road, was the only owner to respond to calls about the status of the empty structures.

Katz said his building has been leased out for the past five years by Jewel-Osco, which recently entered into another five-year lease. The building, which is across the street from the new Jewel-Osco store at the northeast corner of Indian Boundary and Ind. 49, remains vacant.

When asked about the reason for the vacancy, Katz referred all further questions to officials at Jewel-Osco, who did not respond to requests for comment.

The former Wiseway store, which was vacated early last year, is at Broadway and Eighth Street.

Smedman's announced it was closing its doors in 1997. The building housed the Spike & Buddy's furniture store for several years and is now vacant.

Chesterton Planning Director Steve Yagelski said the town has not taken any steps to help fill or replace the buildings.

My sister and I grew up in Chesterton decades ago. She visited Chesterton earlier this summer and reported to me on how "tacky" it now has become. The Chesterton of old had a nice little business district consisting mainly of two streets, Broadway and Calumet Road. We shopped at the "old" Smedman's grocery, bought our newspapers at Nickel's Drugs, went to the Dime Store, walked everywhere. In the years after we left, shopping centers and big boxes began to surround Chesterton, sucking the life out of the little downtown, which went to "cutsie" souvenir shops that are now, according to Nancy's report*, mostly abandoned. So too, according to the Times story above, are the original big boxes, abandoned to be followed by second and third generations of the same.

A January 20, 2006 ILB entry is headed "Chesterton looks at 'big box’ ordinance." The entry includes this quote from the Chesterton Tribune: "Commission member Jeff Trout, who suggested the ordinance changes, described them as 'a fairly urgent issue to address.'” But I haven't seen any more on the proposal.
__________
*Nancy's report: "We drove to St. Joseph, Michigan, last weekend. What a neat little town! The beach was beautiful, the shops quaint, and, altogether, it was a "town that time forgot." Then, we stopped at Chesterton on the way home to check on Mike's family's graves. What a dumpy little town it has become. Shops were closed on Main Street and what there is there is junky. I know the school is still large, and Sand Creek has several million dollar homes, but you sure cannot tell it from Main Street."

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to General Law Related

Ind. Courts - An update on the JTAC project

Our last entry on the Supreme Court's JTAC project was the end of June -- a list of ILB entries on the project to provide a "21st Century Case Management System for all Indiana trial court and clerks" is available here.

The latest edition of the Indiana Lawyer has a brief story that reports that the weeklong presentations by the three remaining vendors are over and now:

[R]eview teams including judges, clerks, court staffers, and technical and financial experts are examining the options where the finalist systems are being used. * * *

The selection process began in 2002, when the JTAC Case Management System Executive Committee and the JTAC Statewide governing board jointly recmmmended the process based on an automation sysytem.

A vendor was selected, Computer Associates, but the project "hit the wall" in 2005 -- see March 8, 2005 ILB entry. In Sept. of 2005 the contract with Computer Associates was terminated. Subsequently, the project was rebid and that is where we are now, nearly a year later. The Indiana Lawyer article concludes its report [my emphasis]:
Four years later, more companies were proven capable of creating such systems, some of which have been implemented in other states. Indiana is looking to those as examples and will travel to those places to examine systems already in place.
I understand that one of the places that will be examined is Tippecanoe County, which uses a Maximus CMS. The three remaining vendors are Tyler Technologies, Inc. (Texas), Computer Systems, Inc. (CSI) (Fishers), and Maximus – Justice Solutions Division (North Canton, Ohio). It is the ILB's recollection that several of these companies bid and lost out to Computer Associates in the original go-around.

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Indiana Courts

Environment - "Local activists starting to fill void left by Dustins"

"The new ENVIRONMENTALISTS: Local activists starting to fill void left by Dustins" is the headline to an editorial by Stacey Stumpf in today's Fort Wayne Journal Gazette. The piece features five people, and has some nice photos. It begins:

Two names are synonymous with environmentalism in this community: Tom and Jane Dustin. The couple very literally devoted their lives to numerous environmental causes. When the Dustins passed away – Jane in November 2003 and Tom in July 2004 – many lamented the void their deaths created and wondered who would continue their battles to improve river water quality, preserve natural areas and keep a sharp eye on local officials.

No one can replace the Dustins. But a number of people in the community are stepping to the plate with creative and effective actions to ensure the future health and well-being of their neighbors. Here are a few of those people.

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Environment

Courts - Meeting the definition of "pro bono" work

While researching the entry immediately below involving Jenner & Block, the ILB ran across this fascinating story from the July 19 Chicago Tribune. It begins:

Winston & Strawn didn't get paid for defending former Gov. George Ryan in his high-profile public corruption case. Now it isn't getting any credit either.

The American Lawyer has decided that Winston & Strawn can't count the thousands of hours it spent representing the former Illinois governor as "pro bono" work for purposes of the magazine's annual rankings--even though the firm voluntarily did the work for free.

The result: Winston & Strawn ended up ranking 60th among major law firms in pro bono work, down from 39th place last year.

"The firm would have ranked higher if we had counted the Ryan hours, but for reasons we explained, we didn't think it was appropriate to count those hours" American Lawyer editor-in-chief Aric Press said in an interview Tuesday.

"It didn't seem to us to meet our definition. We went back to the firm and discussed it. They resubmitted their hours and those were the ones we published."

As previously reported, Winston devoted a team of 20 attorneys to Ryan's defense in a six-month trial that ended in a jury finding him guilty on all 18 counts. The firm's expense has been estimated at $20 million or more, most of that in forgone income from having its attorneys not working for paying clients.

When the top-drawer firm took on the case for free and appointed Dan Webb, its star litigator, to lead the defense, Winston & Strawn said it was doing so because Ryan could not afford to mount a competent defense on his own.

But others viewed Winston's unusual largess as a function of politics. The firm's chairman is James Thompson, a former Illinois governor himself. Ryan, in fact, served two terms as Thompson's lieutenant governor in the 1980s.

Some skeptics in the legal community complained that Ryan, who receives a $195,000 state pension and has a legal defense fund, was hardly poor enough in any objective sense to merit receiving pro bono legal services.

American Lawyer ended up agreeing with them. "Although Ryan needed vast resources to defend himself, the former governor . . . doesn't meet anyone's definition of `poor.' Could he afford Webb and Co.? No. But that's not the standard," the magazine wrote.

More from the story:
The Ryan case is prompting new thinking about the definition of pro bono services, legal experts said.

Traditionally, pro bono work has been defined as legal work for people of limited means or organizations that assist them. The definition used by the Pro Bono Institute, a non-profit group in Washington, D.C., also covers work on civil rights issues and for civil liberties organizations.

"We've got a definition the firms sign on to, but there's nothing that says firm can't have a different or broader definition," said Esther Lardent, the institute's president.

For instance, some firms count attorneys' work on non-profit boards as pro bono hours, but that work does not count under the Pro Bono Institute's definition, which specifies it must be legal work.

The acceptable level of a client's poverty is a gray area, Lardent said. "A `person of limited means' does not mean the federal poverty threshold. That is way, way too low, way too limited. It's not a hard line. . . . Studies have found that people who are just over the poverty threshold have more legal problems than low-income people."

Still, a person in the country's top income bracket--like Ryan--wouldn't qualify under the institute's definition, she said.

Who is poor enough to qualify for free legal services isn't always clear, says Barry Levenstam, co-chairman of the pro bono committee at Jenner & Block, a Chicago firm that ranked seventh on American Lawyer's list of pro bono providers.

"It's a judgment call and it's not always an easy call," Levenstam said.

"I tell folks around here that the standard isn't whether they can afford Jenner & Block or not," he said. "We do occasionally get requests from people who could afford competent criminal defense counsel. Indigency is easy. Most of our cases, they live in the projects. There is no job, no family."

In June the Illinois Supreme Court issued new rules that may be a reaction to the Ryan case. It clarified its view that pro bono work on behalf of individual clients should be "rendered to persons of limited means."

The court said it considers its definition to cover not only "those persons whose household incomes are below the federal poverty standard, but also those persons frequently referred to as the "working poor."

However, a lawyer need not ask his client to present a W-2 wage statement. "A good-faith determination by the lawyer of client eligibility is sufficient," the court wrote.

For more, see this ILB entry from Nov. 10, 2005 (Definition of "pro bono" at issue in Milwaukee Clean Water Act case) and this one from Nov. 15th (Winston & Strawn LLP's free defense of former Illinois Gov. George Ryan).

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Courts in general

Courts - Federal judge orders Illinois to pay legal fees in videogame ban

The AP reported yesterday, in a story interesting on several points:

SPRINGFIELD, Ill. (AP) -- The federal judge who ruled that Illinois unconstitutionally banned the sale of violent or sexual video games to minors has another message for the state: Pay up.

U.S. District Judge Matthew Kennelly this week ordered the state to pay more than $510,000 in legal fees to three business groups that sued over the Safe Games Illinois Act: the Entertainment Software Association, the Video Software Dealers Association and the Illinois Retail Merchants Association.

Gov. Rod Blagojevich and others who pushed for the measure argued that children are harmed by exposure to games in which characters use violence or engage in sexual acts. But shortly before Jan. 1, when the law would have gone into effect, the judge barred the state from enforcing it.

Kennelly ruled in December that the law would violate the First Amendment and that there was not a compelling enough reason, such as preventing imminent violence, to allow it to stand. He added that state officials came "nowhere near" demonstrating that the new law was constitutional.

The state has appealed the judge's December ruling but will pay the companies' legal fees, Blagojevich spokesman Gerardo Cardenas said.

Blagojevich complained Friday that the video game companies are being represented by Jenner & Block, a law firm that works for the state on other matters. He objected to a firm simultaneously working for the state and suing the state and said he wants to study prohibiting such situations in the future.

Blagojevich said trying to ban violent or sexual games still was the right thing to do, despite the cost.

Jenner & Block is representing the Illinois administration in the patronage suit, according to a story in the Chicago Sun-Times quoted in this May 18th ILB entry.

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Courts in general

Ind. Courts - "It's good to be the king and it's good to be a judge"

Thus spake Mayor Bart Peterson this week -- here is the report in the Indianapolis Star column, Behind Closed Doors:

Bipartisan good humor dominated Wednesday when a group of city leaders announced steps to speed up the clogged court system and staunch the flow of early releases from the county jail.

Cale Bradford, the presiding judge of the Marion Superior Court and a Republican, gave 18 "friendly orders" ranging from creation of a night court and failure-to-appear warrant team to expanding the drug court and hiring the necessary staff.

The group has been discussing reforms for years and found the will to proceed after a slew of releases and homicides turned into a crisis this past week.

Mayor Bart Peterson, a Democrat, said he would somehow find the $7 million to pay for the executive orders the group had agreed to hand down. He even gave a nod to Bradford's "juice," or what City-County Council President Monroe Gray called the power to get things done.

"It's good to be the king and it's good to be a judge," Peterson said. "You can just order these thing to happen."

Bradford responded: "It doesn't work at home."

For details on the changes to the Marion County court system, see this ILB entry from August 9th-10th, headed "Night court is coming to Marion County, on August 21."

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Indiana Courts

Ind. Courts - Clark judge plan "has only a slim chance of being approved"

On July 4th the ILB posted an entry titled "Clark ponders adding two more judges." On July 12th the entry was titled "Clark County scuttles plan for 2 more judges."

Today's Louisville Courier Journal story by Alex Davis is headlined "Clark ponders adding judges." The story begins:

The Clark County Council tomorrow will review a proposal to establish two new judgeships to ease the county's overburdened judicial system.

But it appears the plan has only a slim chance of being approved.

Republican Raymond "Monty" Snelling pitched the idea last month as a way to reduce the amount of time inmates must wait for court hearings, a key factor in jail crowding.

But the idea failed on a 3-3 party-line vote, with three Democrats opposed. Roy Everitt, a fourth Democrat who didn't attend the meeting, said he probably would not support the extra judges because of financial concerns.

Snelling said last week that he will try to persuade the council to approve the judgeships, along with necessary support staff and courtrooms.

"This is the most economical way to move people through the system," he said, adding that each court would cost about $300,000 to $400,000 annually.

Clark County's four elected judges and its single magistrate had the second-heaviest caseload of Indiana's 92 counties last year, according to the Indiana Judicial Service Report.

Clark Superior Court Judge Cecile Blau said it may be wiser for the county to consider adding another magistrate instead of more elected judges.

"There's no doubt that we could use two new courts," she said, "but there's also no doubt in my mind that given the current situation, we couldn't afford them."

[More] See also this story by Larry Thomas in the New Albany News & Tribune, headlined "Work-release, courts up for consideration again: Both initiatives failed at Clark council’s July session."

Posted by Marcia Oddi on Sunday, August 13, 2006
Posted to Indiana Courts

Saturday, August 12, 2006

Courts - Indiana used as a model by Illinois Republican gubernatorial nominee

This Sept. 20, 2004 ILB entry begins: "A 'plaintiff's paradise' is how Madison County Illinois has been described."

Today the Edwardsville (Illinois) Intelligencer reports:

As the 2006 election for Governor of Illinois creeps closer, Republican gubernatorial nominee Judy Baar Topinka made a trip to the Madison County Courthouse on Thursday morning.

Out in the courthouse plaza, Topinka conducted a press conference to voice her dissatisfaction with the Illinois court system's eagerness to allow venue shopping in the state and called for court reform.

Topinka explained that the American Tort Reform Association listed three Illinois counties among its top six "Judicial Hellholes" in the nation.

"Three Illinois counties are in the top six. Cook is the second worst venue in the nation, four and five are Madison and St. Clair," Topinka said.

In addition, she said the recent study by the U.S. Chamber Institute for Legal Reform ranks Illinois 46th in the nation of having and enforcing meaningful venue requirements.

In her discussion, Topinka talked about how venue shopping impacts the state.

Topinka said venue shopping is crowding the dockets, placing an unfair burden on Illinois taxpayers and damaging Illinois' business climate and national reputation.

She said that venue shopping in Illinois causes citizens to be put on a back-burner as residents of other states use the Illinois court system.

"Frivolous lawsuits, and many are from out-of-state. Our people's problems are pulled back and play second fiddle to out-of-state."

Also, Topinka said that venue shopping is bad for the pocketbooks of Illinois taxpayers.

"Under the current system, people are abusing our judicial system and Illinois taxpayers are footing the bill for litigants from other states who come to our courtrooms in search of financial windfalls."

Lastly, Topinka said that venue shopping hurts the status of business and the economy within the state.

"Venue shopping is anti-business," Topinka said.

"It drives up the cost of insurance rates and sours the business community that's already overtaxed. Illinois is 45th in job creation."

Topinka said surrounding states are creating jobs more effectively than the state of Illinois.

"Illinois business suffers. We come up on the short end again," she said

She noted the recent decision by Honda to build a plant in Indiana.

"With three of the six worst counties for litigation abuse right here in Illinois, it should come as no surprise that companies like Honda are choosing to expand their operations and build new plants in other states," Topinka said.

"We cannot be a player in the global economy if we are hostile to business."

In order to counter the problem of venue shopping in Illinois, Topinka called for two specific venue reforms: restrict access to Illinois courts to only those out-of-state litigants with Illinois residency or with cases where the most-significant issue in dispute occurred in Illinois; and within Illinois, restrict access to a county court to only those litigants with residency in said county or with cases where the "most significant" issue in dispute occurred in said county.

"It just makes common sense," Topinka said.

"An out-of-state litigant should not be allowed into an Illinois courtroom without some significant connection to our state. And within Illinois, litigants should not be allowed to shop their cases among different counties in search of the most favorable result."

Posted by Marcia Oddi on Saturday, August 12, 2006
Posted to Courts in general

Ind. Courts - A consultant to the Indiana Supreme Court talks in Nebraska about family court system

In this entry from August 7, the ILB quotes from an Indianapolis Star editorial proposing the establishment of a family court in Marion County.

Today, the Fremont (Nebraska) Tribune reports this story:

Frances Hill, who serves on the Indiana Family Court steering committee, offered this sample scenario Friday:

A mother is divorcing a father who faces a charge of drunken driving and also of child neglect due to their children staying in the home of his girlfriend whose children have head lice. Also, the divorcing couple's son is in juvenile court, facing his own charges.

“This is what's happening, more and more,” said Hill. “People having children without the benefit of marriage, moms moving in with boyfriends with their own kids.”

When a family's situation becomes complicated to the point of several cases pending, the family court system can be of great help, Hill said.

“A judge trying to make a custody decision may not know about other charges,” she said. With the “one judge-one family” system, that problem could be alleviated because all cases would land on the judge's desk.

But because judges tend to specialize, and because of what Hill called “turf issues,” and because of scheduling problems, information-sharing between multiple courts may be used instead to speed up proceedings and avoid manipulation of the court by defendants - some judges definitely want to avoid, Hill said .

If all parties involved - family members, attorneys, law enforcement officials, social service and probation officers - are in the same courtroom at the same time, hearing the same testimony, such manipulation can be avoided, Hill said.
* * *

The Indiana Family Court system is a cooperative effort created in 1999 by Indiana's legislature and supreme court to coordinate families with multiple cases pending before multiple judges.

Safety and stress issues unique to family litigation, the role of a family in affecting an individual's behavior, and a need for timeliness and consistency in judicial rulings involving children were all considered in the development of the system.

The family court concept maintains case coordination is necessary to avoid uninformed, inconsistent or delayed rulings for families, with parties and attorneys encouraged to fully disclose information about a family's legal cases.

Multiple-case coordination include the “one judge - one family” model; information sharing between multiple courts; and facilitation and pre-trial conferences.

Applications for family court status are offered every two years to all Indiana counties. Applications include information about the county's current judicial system and a request for a family court grant of between $100,000 and $400,000 per year, for a two-year period. Smaller counties are encouraged to form multiple-county projects to share resources and avoid “re-inventing the wheel.”

Applications are filed with the Division of State Court Administration. The Indiana Supreme Court selects the counties that will serve as pilot family court projects.

Currently, 17 Indiana counties have family court systems. Programming has expanded to include nonadversarial dispute resolution and other programming for high-risk, low-income families.

Here is a link to the family court project, from the Indiana Courts website.

Posted by Marcia Oddi on Saturday, August 12, 2006
Posted to Indiana Courts

Ind. Courts - More on: Plea agreement for Tippecanoe ex-bailiff rejected

Updating this ILB entry from April 28th, the Lafayette Journal & Courier reports today that:

DELPHI -- A former Tippecanoe County court bailiff was sentenced Thursday to house arrest and probation for padding her work hours.

Kelly M. Davis, 31, a former bailiff in Tippecanoe Superior Court 1, pleaded guilty to Class D felony theft before Special Judge Donald Currie of Carroll County.

Based on a plea agreement, Currie sentenced Davis to 30 days on house arrest, ordered her to pay $6,162.21 in restitution within 10 days and do 60 hours of community service.

According to the plea agreement, if Davis successfully completes her 11/2 years on supervised probation and pays her restitution, her conviction will be reduced to a misdemeanor.

In February, Davis entered a similar plea agreement before Judge Don Daniel of Tippecanoe Circuit Court, but Daniel rejected the deal.

In June, he granted a joint motion by special prosecutor Todd Meyer of Boone County and Davis' attorney, Jennifer Lukemeyer, asking him to appoint Currie as special judge.

Posted by Marcia Oddi on Saturday, August 12, 2006
Posted to Indiana Courts

Courts - A magnificant courthouse just over the Ohio border

The Van Wert County Courthouse is pictured today in the Fort Wayne Journal Gazette -- ceremony commemorated the landmark’s 130 years of service. Former employees attended and reminisced about working at the courthouse, which opened in 1876.

Here is the Wikipedia entry on Ven West County, Ohio, with another photo of the courthouse.

Posted by Marcia Oddi on Saturday, August 12, 2006
Posted to Courts in general

Friday, August 11, 2006

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending August 11, 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 August 11, 2006.

Posted by Marcia Oddi on Friday, August 11, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending August 11, 2006

There was no Indiana Supreme Court transfer list for the week ending August 11, 2006.

Posted by Marcia Oddi on Friday, August 11, 2006
Posted to Indiana Transfer Lists

Ind. Courts - Madison lawyer suspended for 60 days

Harold J. Adams of the Louisville Courier Journal reports today:

A Madison lawyer has been suspended from practice for failing to file a lawsuit she was hired by a client to handle and then telling the client after six years that the case had been settled for $10,000.

The lawyer, Heidi Kendall-Sage, is a partner in the firm of Alcorn, Goering & Sage in Madison.

Kendall-Sage will begin a 60-day suspension on Monday under an agreed settlement of the complaint brought against her by the client and backed by the Disciplinary Commission of the Indiana Supreme Court.

She also paid the client $165,000 last year to settle a malpractice suit.

Court documents show that Keneta May of Milton, Ky., was injured in an auto accident on Dec. 12, 1996, and hired Kendall-Sage in May 1997 to file a lawsuit against the other party.

But the statute of limitations ran out more than a year and a half later with no lawsuit filed and no word to the client, according to the disciplinary complaint.

Over the next six years May and her mother "repeatedly attempted to contact (Kendall-Sage) to discuss the status of her lawsuit, to schedule appointments or to obtain a copy of the pleadings filed on May's behalf," the complaint said.

Kendall-Sage "misrepresented (the) true status of the lawsuit and repeatedly failed to meet with May," it said.

Robert Shook, a staff lawyer for the Disciplinary Commission who prosecuted the case against Kendall-Sage, said in an interview, "She lied to her client, no doubt about it."

In March 2004, Kendall-Sage told May "that the case had been settled and a check for $10,000 was available" at the lawyer's office. Kendall-Sage paid May the $10,000 and paid May's dentist $3,576, but May was suspicious because she had not been consulted about a settlement, court documents say.

May went to the Jefferson County Courthouse in Madison in October 2004, where she discovered that no lawsuit had been filed on her behalf.

She then hired Columbus lawyer Richard Marshall to file a legal malpractice lawsuit against Kendall-Sage, which was settled in June 2005 with the $165,000 payment to May.

Patricia Adams, May's mother, said terms of the settlement prohibit her and her daughter from commenting on it.

In November 2004 Kendall-Sage "admitted to Marshall she failed to file the lawsuit on May's behalf" and lied about it, and that she paid the "settlement" and dental bill from her own funds, the documents say.

"That's a serious violation," Shook said. "To be suspended for 60 days is an attention getter."

Here is a copy of the Supreme Court's order.

Posted by Marcia Oddi on Friday, August 11, 2006
Posted to Indiana Courts

Ind. Gov't. - Do you have to be "approved" to view public records or access public meetings?

Wednesday the ILB had an entry titled "Public records for sale to the right people," about a plan to sell pubic records that the Grant County commissioners are considering. Here is a quote from the Marion Chronicle Tribue story, along with the ILB's comment:

However, Stanley said access to online documents would be limited. Users would have to fill out an online application, which the company would then review. Once information has been verified and the user had been approved, he or she would be given a user name and password. [ILB - aren't these public records? What do you have to prove to be "approved" to access public records?]
Today's story by Niki Kelly in the Fort Wayne Journal Gazette may top that. She was denied access to a public meeting of a state agency because she could not produce a photo ID. Her story begins:
You wouldn’t think you would need to remind state officials that a public meeting is open to the public. But the Department of Education appears to need a prompt.

Indiana public records and open-door laws are clear. I can attend a meeting or seek a public document without identifying who I am or why I want it. That’s because these are taxpayer-funded activities and records.

Posted by Marcia Oddi on Friday, August 11, 2006
Posted to Indiana Government

Ind. Courts - Two Porter County judges begin new program clamping down on reckless teen drivers

This story by Jery Davich appeared in the August 8th Munster (NW Indiana) Times.

PORTAGE | Porter Superior Judge Julia Jent couldn't get through to a rather apathetic teenage girl in her courtroom a few months back.

The girl appeared in Jent's court regarding a moving traffic violation and didn't appear to take the offense, or the possible fine, too seriously.

So Jent, who has teenage grandchildren, came up with a court order specifically for the high school-aged girl: Let your car keys idle for a few weeks, park your attitude and ride the school bus to class each day.

"The girl cried outside my courtroom," said Jent, who immediately realized she was onto something. "I guess I found the right button."

Since then, Jent has sent a memo to every law enforcement agency in her jurisdiction stating that all moving traffic citations involving drivers age 16 to 18 must be seen by her -- instead of having mom and dad pay a fine, or, worse, having teens pay the fine and mom and dad not know what's going on.

If the high school-aged teens were found guilty they were court-ordered to ride the school bus for a specific amount of time. If they violate the order -- Jent has been checking in with schools and bus drivers -- their driver's license will be suspended, and a fine must be paid. If they comply, the matter is dismissed.

"Kid does crime, kid does time, and mom and dad can't get them out of it and don't have to feel guilty for not helping (them)," Jent said.

Each court order is tailored to the offender, the traffic offense and, most importantly, the teen's attitude. Jent also makes a point to tell parents they cannot drive their child to school -- or they could be held in contempt of court.

Of the dozen or so teens who have received court orders so far, one was ordered to nine weeks of school-bus riding, with exceptions for certain after-school activities. Another had total driving restrictions for an entire semester.

"Oh my God, you would have thought I gave her and her mother the death penalty," Jent said.

On Monday, Porter Superior Judge David Chidester was notified by the Indiana Judicial Center in Indianapolis that it's legal to customize such court orders.

"They said it was acceptable under Indiana Code 9-30-3-16," Chidester said.

The little-known state statute allows a judge to place any infraction violator on probationary conditions, including license suspensions.

So Chidester is planning on starting a similar program in his courtroom, and he already has started the process by notifying local police chiefs and school principals.

Posted by Marcia Oddi on Friday, August 11, 2006
Posted to Indiana Courts

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

In USA v. Demaree, Rebecca S. (SD Ind., David F. Hamilton, Judge), an 8-page opinion, Judge Posner begins:

POSNER, Circuit Judge. The only question presented by this criminal appeal is whether, the federal sentencing guidelines having been made advisory by the Supreme Court in United States v. Booker, 543 U.S. 220 (2005), a change in the guidelines that expands the guidelines range for a crime is an ex post facto law and so cannot be applied to a defendant who committed his crime before the change.

The defendant in this case had pleaded guilty to wire fraud and tax offenses growing out of her embezzlement of almost $300,000. Under the 2000 version of the guidelines, in force when she committed these crimes, the sentencing range was 18 to 24 months. But under the 2004 version, which among other changes relevant to her case reflects an increase in the punishment range for wire fraud to bring it into line with punishments for similar theft and fraud offenses, U.S.S.G., App. C, amendment 617 (Supp. 2002), the sentencing range is 27 to 33 months. The judge applied the 2004 guidelines, as he was required to do by the Sentencing Reform Act, 18 U.S.C. § 3553(a)(4)(A)(ii), and sentenced her to 30 months. But he added that if the 2000 guidelines were applicable to her case instead, he would have sentenced her to only 27 months (above the guidelines range, but not quite so far above as the 30-month sentence that he actually gave her). Demaree has appealed, and the government has confessed error, but we are not required to accept its confession. E.g., United States v. Walker, 447 F.3d 999, 1005-07 and n. 7 (7th Cir. 2006).

[More] Doug Berman of Sentencing Law Blog has this to say, before quoting the first paragraph of Posner's opinion:
In what could be an extraordinarily important ruling, the Seventh Circuit today in US v. Demaree, No. 05-4213 (7th Cir. Aug. 11, 2006) (available here) essentially holds that pre-Booker ex post facto limits on the application of the most recent guidelines are no longer applicable now that the guidelines are advisory. This issue, which I raised in this post a few months ago, has not been thoroughly considered by any other circuit. But the Demaree ruling seems to cut against what nearly all district and circuit courts have been doing after Booker.

All 8 pages of Demaree are packed with highlights for sentencing geeks, and Judge Posner's opinion also has flourishes that will intrigue constitutional scholars.

[More, from 8/12/06] Berman has more today on yesterday's Demaree opinion.

Posted by Marcia Oddi on Friday, August 11, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues six today

In Angelic Davis v. State of Indiana, a 7-page opinion, Judge Baker writes:

Appellant-defendant Angelic Davis appeals from the sentence imposed on her convictions for Operating a Vehicle While Intoxicated (OVWI),1 a class C felony and Criminal Recklessness,2 a class A misdemeanor. We find that the trial court improperly used an element of the OVWI offense as an aggravating circumstance and that her sentence of eight years with two years suspended is inappropriate in light of her character. Thus, we reverse the judgment of the trial court and remand with instructions to revise Davis’s sentence to four years with whatever time remains on her sentence to be served through the Community Corrections program.
In John R. Roddie, et al. v. North American Manufactured Homes, a 9-page opinion, Judge Baker writes:
Appellants-plaintiffs John R. and Shannon M. Roddie appeal the trial court’s grant of appellee-defendant North American Manufactured Homes, Inc.’s (NAMH) motion to dismiss. Specifically, the Roddies argue that the trial court erred in finding that the contract between the parties for the construction of a modular home (Contract) required this dispute to be submitted to arbitration. Finding that the Contract is not unconscionable or illusory and that this dispute falls within the agreement to arbitrate, we affirm the judgment of the trial court.
Michael Newsom v. State of Indiana - "Because Newsom is not a “convicted person” and the juvenile court’s disposition does not constitute a “sentence,” we conclude that Indiana Code Section 35-38-1-15 is not available to Newsom as a means to challenge his juvenile disposition. * * * Therefore, the juvenile court properly denied Newsom’s motion to correct erroneous sentence."

In Thorton-Tomasetti Engineers v. Marion County Public Library, a 22-page opinion (with a concurring opinion beginning on p. 18), Judge Baker writes:

This case arises out of the renovation and expansion of the Indianapolis-Marion County Public Library (the Project). Work on the Project commenced in September 2002, and is scheduled to be completed in February 2008. The estimated cost of the Project when work began was approximately $105 million.

Appellant-defendant Thornton-Tomasetti Engineers (Thornton) appeals from the trial court’s denial of a preliminary injunction that it had sought with regard to work that it had performed for appellee-plaintiff, the Library. In particular, Thornton—the engineer involved in the Project—contends that the trial court erred in dismissing its request for a preliminary injunction because it had offered evidence on all of the elements required to obtain such relief. Thornton also maintains that the trial court erred in denying its request to enter the Library’s premises in order to conduct certain testing on the construction site, and seeks to appeal the trial court’s grant of a protective order in favor of the Library with regard to Thornton’s request to conduct the further testing.

Concluding that the trial court properly dismissed Thornton’s request for a preliminary injunction, we affirm. We also grant the Library’s motion to dismiss the portion of Thornton’s appeal challenging the denial of its request to enter the premises to conduct further testing, as well as the matters relating to the protective order that was entered in favor of the Library.

In Michael Copenhaver, et al. v. Steve Lister, et al., a 20-page opinion, Judge Baker writes:
This appeal arises from a dispute between Steve Lister and Michael Copenhaver, two well-drillers, whose business relationship dissolved in late 2001. Appellants-defendants Michael and Paula Copenhaver (collectively, the Copenhavers) appeal the judgment entered in favor of appellee-plaintiff Steve Lister, d/b/a Lister Well Drilling (Lister), regarding his claim against them for replevin of certain business assets and conversion. Specifically, the Copenhavers contend that the trial court’s judgment cannot stand because the finding that no partnership existed between the parties was based upon “mutually contradictory” evidence in the record. Thus, the Copenhavers allege that they are entitled to a new trial.

Lister also cross-appeals, claiming that the appeal should be dismissed because the Copenhavers failed to timely file their Notice of Appeal. Concluding that this appeal is properly before us, and finding that the trial court did not err in concluding that no partnership existed between Lister and Copenhaver, we affirm the judgment of the trial court.

In Robert S. Kentner v. Indiana Public Employers' Plan, Inc., a 19-page opinion (with a concurring opinion beginning on p. 18), Judge Baker writes:
Appellant-plaintiff Robert S. Kentner appeals from the trial court’s order granting the Trial Rule 12(B)(8) motion to dismiss of appellee-defendant Indiana Public Employers’ Plan, Inc. (IPEP). In particular, Kentner argues that the trial court erred in granting IPEP’s motion to dismiss because the action filed herein is not the same as an action—also involving Kentner and IPEP—currently pending in federal court. Additionally, Kentner argues that the trial court erred in dismissing his complaint pursuant to principles of comity. Finding that the Federal Rules of Civil Procedure do not trump an Indiana statute, we reverse the judgment of the trial court and remand for trial to determine whether IPEP is a public agency and Kentner is entitled to the requested documents pursuant to the Indiana Access to Public Records Act (APRA).

Posted by Marcia Oddi on Friday, August 11, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts two attorney disciplinary actions

In the Matter of Daniel B. Stephens is a 3-page per curiam decision:

Today, we admonish respondent for his attempt to circumvent the limitation on attorney fees that can be charged for recoveries from the Patient Compensation Fund. This case is before us on a Statement of Circumstances and Conditional Agreement for Discipline tendered by the parties on April 11, 2006, which calls for a public reprimand. We accept the parties’ agreement.
Page 3 has language applicable beyond this disciplinary case:
The nonrefundable retainer provision of respondent’s agreement also violated Prof.Cond.R. 1.5(a). There may be circumstances where a nonrefundable retainer is enforceable, such as where the lawyer is precluded from other representation or where there is guaranteed priority access to the lawyer’s advice, but these types of circumstances are not alleged here. See, Matter of Thonert, 682 N.E.2d 522, 524 (Ind. 1997). By locking a client to a lawyer with a non-refundable retainer, the lawyer chills the client’s right to terminate the representation.

Finally, the respondent’s second fee agreement, which gave respondent a pecuniary inter-est adverse to the client, was obtained without a separate written consent from the client. This conduct violates Prof.Cond.R. 1.8(a) (2002). Unfairly renegotiating a fee agreement is prohibited conduct. Matter of Hefron, 771 N.E.2d 1157 (Ind. 2002).

Respondent’s attempt to avoid the statutory limit on Patient Compensation Fund attorney fees was wholly improper. Not only did respondent seek to avoid the clear language of the stat-ute, but he also sought to do so by suggesting an unreasonable fee arrangement, thereby violating the Rules of Professional Conduct. In the future, violations of this nature are likely to result in discipline that is more serious.

In the Matter of Frederick B. Ettl is a 4-page per curiam decision:
The Disciplinary Commission charged the respondent with violating Indiana Professional Conduct Rule 3.5(b) by engaging in an ex parte communication with a judge. A hearing officer appointed pursuant to Indiana Admission and Discipline Rule 23 heard the matter and filed his findings of fact and conclusions of law, determining that the Commission failed to meet its burden of proof by clear and convincing evidence. The Commission filed a petition for review, respondent filed a brief in opposition, and the Commission replied. The matter is now before us for final determination. Where a party challenges the hearing officer’s report, we review the matter de novo. Final determination of misconduct and sanction rests with this Court. In re Lamb, 686 N.E.2d 113, 114 (Ind. 1997). * * *

In summary, respondent’s failure to provide notice resulted in a prohibited ex parte communication. If the respondent had attempted to notify the husband, but was not able to lo-cate him, then he should have certified, in writing, to the judge the efforts that he had made in that attempt. If respondent did indeed have legitimate reasons for not giving notice, Trial Rule 65(B)(2) required him to certify to the court, in writing, his claim that notice should not be given and the reasons supporting this claim.

Despite the statement of the requirements for obtaining a temporary restraining order set out in In re Anonymous, 786 N.E.2d 1185 (Ind. 2003), respondent, who acknowledges having a copy of that decision on his desk, did not follow its straightforward requirements. There may well have been reasons to dispense with notice in this case, but, if so, respondent did not supply them under oath to the trial court judge. We conclude that the appropriate sanction is a public reprimand.

Posted by Marcia Oddi on Friday, August 11, 2006
Posted to Ind. Sup.Ct. Decisions

Thursday, August 10, 2006

Ind. Courts - Martin County Council approves judge’s request, avoids judicial mandate

"Martin County Council approves judge’s request, avoids lawsuit" is the headline to a story dated August 9th by news editor Patricia Morrison in the Washington Times-Herald. Some quotes:

SHOALS — After several months of wrangling with Martin County’s only judge, the county council passed a motion Monday indicating it would approve additional appropriations for the public defender, bailiff and guardian ad litem in the amounts of $45,000, $12,000 and $27,500, respectively.

Auditor Cookie Taylor told the council she did not receive the most recent letter from Judge Joseph Howell in time to allow the required publishing of intent prior to Monday’s meeting.

The council voted 5-2 to approve a motion saying the council intends to act favorably on the judge’s request when it legally can. That will come at the council’s 8 a.m. meeting Aug. 14, at which time they will also hold budget hearings. Voting against the motion were Councilmen Lonnie Hawkins and Larry Shaw.

By indicating they will pass the additional appropriations in their Aug. 14 meeting, the council will avoid court action as Judge Howell had filed a mandate of funds to provide for the payment of licensed attorneys to represent persons named in mental health proceedings and those who do not have the funds to hire an attorney. The mandate also includes hiring licensed attorneys to represent juveniles charged with crimes that would be a crime if committed by an adult and in other non-criminal cases involving juveniles.

The judge was also requesting additional appropriations for paying bailiffs in the court. * * *

The judge said this morning the action by the council will end the lawsuit as the state Supreme Court had not yet appointed a special judge.

Some readers may recall the stories from early June when Circuit Court Judge Joe Howell temporarily jailed the county clerk. See this entry from June 8th and this one from June 9th, as well as this one from May 8th which gives some essential background.

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Indiana Courts

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

Updating these ILB entries from July 21st (one and two - with the latter including a link to the court's order), the Indiana Lawyer I received today in the mail has a front-page article on Judge Kim Van Valer Shilts' ruling, using it as a take-off to write on high publicity cases. As readers may recall, Judge Shilts' ruling was the subject of a NY Times story on July 21st, which reported:

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.
A quote from Michael W. Hoskins' Indiana Lawyer story, as it pertains to the fundamentals of handling publicity:
Meg Babcock, counsel for the Indiana Judicial Qualifications Commission, said judges are allowed to speak about their own feelings on publicity about a case and can discuss the case if they choose to after an order is issued. Discussing a pending or ongoing case is not allowed, she said.

Statewide, judges mostly agree that they often don't respond to publicity whether it puts them in a positive or negative light.

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Indiana Courts

Ind. Decisions - One Indiana case from 7th Circuit today

In Massey, Michael v. Johnson, Mable (SD Ind. Larry J. McKinney, Chief Judge), a 17-page opinion, Circuit Judge Ripple writes:

Michael Massey and Mickey Mills, while employed at the Vincennes University Aircraft Technology Center, wrote letters to the Indiana legislature complaining about their superiors. In the aftermath of the letters, both Mr. Massey and Ms. Mills were discharged. They then brought this federal civil rights action, see 42 U.S.C. § 1983, against three University administrators, alleging that they were harassed and terminated in retaliation for exercising their First Amendment rights. The defendants moved for and were awarded summary judgment. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Two today from the Court of Appeals

In Ruth G. Briggs, et al v. Griffin Wheel Corp., et al, a 6-page opinion, Chief Judge Kirsch writes:

Briggs raises several issues on appeal, one of which we find dispositive: whether the trial court erred in granting summary judgment to the defendants based upon the statute of repose. We affirm. * * *

IC 34-20-3-1 provides a statute of repose for products liability actions of no more than ten years after the delivery of the product to the initial user. Since Briggs is alleging that Thomas was exposed to the asbestos contained in brake shoes found at his place of employment, and he retired in 1982, it is apparent that Briggs filed her lawsuit against the defendants more than ten years after any possible delivery of an asbestos-containing product. * * *

The trial court did not err in granting summary judgment to Griffin Wheel and RFP because Briggs failed to establish an issue of fact material to a theory that avoids the defense of the statute of repose.

In Chris Allyn Becker v. Jamie Sue Fisher, a 6-page opinion, Judge Crone writes:

Case Summary. Chris Allyn Becker appeals from the trial court’s order correcting error and granting a new trial on both liability and damages; he seeks a new trial only on the issue of liability. Jamie Sue Fisher cross-appeals and seeks a new trial only on the issue of damages. We vacate the trial court’s order and reinstate the jury’s verdict.

Issue. We restate the issue as whether the trial court erred in granting a new trial.

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Nagy, et al. v. Evansville-Vanderburgh School Corporation back in local court

Nagy, et al. v. Evansville-Vanderburgh School Corporation, decided on March 30th (see ILB entry here), has led to much speculation about its meaning -- type "Nagy" in the search box to see examples.

The 4-1 decision ended:

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

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

The case is now back in the trial court, as John Martin of the Evansville Courier& Press reports today in this story. Some quotes:
To Jacquelyn Bowie Suess, the Indiana Supreme Court's ruling on the $20 fee imposed on all Evansville-Vanderburgh School Corp. students four years ago was clear.

Suess said the fee amounted to a mandatory charge for students in public schools, a form of "tuition." And as such, she argued, the fee - which the Supreme Court ruled unconstitutional - should be reimbursed to all parents who paid it.

"The school (corporation) clearly lost this case on the merits," Suess argued Wednesday in Vanderburgh Circuit Court.

EVSC attorney Pat Shoulders countered in his own argument before Judge J. Douglas Knight that the Supreme Court's March 30 ruling contained numerous ambiguities.

While conceding that EVSC lost its argument that such a fee could be universally charged, Shoulders said he understood the Supreme Court to mean that "it can be constitutional as to some (students)" who utilized services covered by the fee.

The issue, according to Shoulders, is whether the children of Frank Nagy and Sonja Brackett - the two plaintiffs who initially filed a class-action complaint against the EVSC over the fee - took advantage of those services.

"That's what we need to have a trial about," Shoulders argued before Knight, whose initial ruling upholding the fee's legality was struck down. * * *

Trying to ascertain which EVSC students did or did not utilize services covered by the $20 fee would be quite a task, Shoulders said, but "that's what the Supreme Court left us to determine."

In overturning Knight, the Supreme Court remanded the case back to Vanderburgh County. Suess, an Indiana Civil Liberties Union attorney representing Nagy and Beckett, argued for full reimbursement of the fee to parents who paid it.

She also argued that EVSC pay two plaintiffs' legal bills.

Knight took the case under advisement. He told attorneys in the case that the issues at hand are "extremely difficult and complicated," but he vowed to "do the best I can and work as quickly as I can (toward a decision)."

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Indiana Decisions

Ind. Courts - More on "Defendant's outburst interrupts trial"

Updating yesterday's story, today the Lafayette Journal & Courier's Joe Gerrety reports, in a story headlined "Ind. Courts - "Defendant's outburst interrupts trial":

After the defendant's second emotional breakdown in two days, the judge declared a mistrial Wednesday in the murder trial of Geraldine Livingston.

Minutes after a psychiatrist told Judge Don Johnson of Tippecanoe Superior Court 1 that he thought Livingston was prepared to proceed with her trial, the 43-year-old psychiatric nurse laid her head on the defense table and wailed as the first prosecution witness attempted to begin his testimony.

When the outburst occurred, Shannon Killian was describing how he found the victim, Jesse Livingston, Geraldine's estranged husband, lying in the doorway of his apartment building, bleeding and calling for help on the late morning of Oct. 21, 2004.

A similar breakdown had brought an abrupt halt to the trial on Tuesday, as prosecutors prepared to play a recording of a 911 call reporting that Jesse Livingston had been shot.

"I've had hundreds of trials, and this is the first time that this thing has happened," Judge Don Johnson of Tippecanoe Superior Court 1 said as he dismissed jurors before 9 a.m. Wednesday.

After meeting privately with the released jurors, chief deputy prosecutor John Meyers and defense attorney Bruce Graham said they'll continue to have discussions in an effort to resolve the case.

Jurors declined to be interviewed, but Graham and Meyers said jurors told them that despite being tucked away in a jury room, they could hear Livingston crying Tuesday as she was led away from the courtroom after her first outburst.

On rare occasions, the lawyers said, judges have permitted a criminal trial to proceed without the defendant present in the courtroom.

Johnson told jurors he would have done that if he thought Livingston was intentionally trying to interfere with the trial.

"I think the whole situation is just pitiful," Johnson told attorneys Wednesday while granting Graham's motion for a mistrial, with jurors out of the courtroom. "I can see the reaction of the jury. They're ashen. We can't go through with this trial." * * *

Afterward, lawyers agreed to make another attempt to hold the trial on Oct. 31. Meanwhile, they'll continue to negotiate a possible plea agreement.

Graham conceded during his opening statement to jurors that Livingston committed voluntary manslaughter when she shot her husband in the chest and back. But he denied that the act, done in the heat of passion, was murder.

"We were very, very far apart when this case started," Meyers, the prosecutor in the case, said. "It still remains pretty doubtful," he said of the prospects of resolving the case without a trial.

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Indiana Courts

Environment - News from NW Indiana

The state water pollution control board meet in Portage yesterday. The Munster (NW Indiana) Times has two reports, both frm Lauri Harvey Keagle.

"State board adopts new sewer overflow rule: Sewage discharges OK if cities provide long-term control plans" is the headline to the first story. Quotes:

PORTAGE | Communities with combined stormwater and sanitary sewers could get a break if untreated sewage overflows into waterways.

The Water Pollution Control Board on Wednesday approved a rule -- initiated by Senate Enrolled Act 620 in the 2005 legislative session -- allowing for four days of noncompliance with water pollution regulations for municipalities with combined sewer overflows after heavy rains.

In exchange for the pass on the regulations, the state will require the community to submit its long-term plan for preventing the overflows. Cities and towns can qualify for the special designation if they demonstrate their system still cannot meet water quality standards following heavy rains after the implementation of the long-term overflow control plans.

"This is not something every CSO community will want or need to do," Nancy King, an attorney for IDEM, said at Wednesday's meeting at the Northwestern Indiana Regional Planning Commission building.

King explained that some communities already have their long-term plans in to the state or have plans to separate the sewers.

There currently are 130 combined sewers in Indiana. Of those, 31 have long-term plans in place, including East Chicago, according to Bruno Pigott of IDEM. Local communities with combined sewers include Crown Point, Gary, Hammond, Lowell, Chesterton and Valparaiso.

Lee Botts, a Gary environmentalist who serves on the board, cast the sole vote against the rule, but said the board was bound by the legislative act creating it.

"No matter how much you might realize that there needs to be other approaches to dealing with CSOs, the dilemma is the Legislature has already acted, so what do we do?" Botts said.

"I'm still not convinced it's going to help with the discharges to Lake Michigan."

David Wagner, a member of the board, said he believes the plan has its benefits.

"It's one more tool for cities and towns to have in the toolbox to address the problem," Wagner said. "Is it good to have a relaxation of the rules? Probably not."

The second story is headlined: "IDEM names new NWI regional director: Commissioner says agency will keep local office." Some quotes:
PORTAGE | After a debate earlier this year on whether a local office was still needed, Indiana Department of Environmental Management Commissioner Thomas Easterly named a new Northwest regional director Wednesday.

Hala Kassis Kuss, an 11-year attorney with the agency, officially began her new duties with the Merrillville-based office on Wednesday.

"There was a question as to whether people in Northwest Indiana cared whether or not we had a Northwest regional office," Easterly said.

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Environment

Courts - Term limits for Colorado judges?

The Wall Street Journal has an opinion piece in its freely available section today titled "'Ten Years and Out' The case for term limits for judges." It is written by John Andrews, who is chairman of the Limit the Judges campaign and former president of the Colorado Senate from 2003 to 2005. Some quotes:

DENVER--Americans' concern with a court system out of control has simmered for decades, never coming to a boil. The perennial frustration with judges rewriting the laws and the Constitution is like Mark Twain's comment on the weather--everybody talks about it but nobody does anything about it. That may be about to change in Colorado, if voters pass judicial term limits this fall.

Coloradans have long favored the principle that rotation in office can help curb the abuse of power. The state, along with Oklahoma, led the nation in 1990 by imposing term limits on the legislative and executive branches of state government; citizen initiatives later extended the limits to most local officials and to our congressional delegation--though the latter was struck down by the U.S. Supreme Court.

Judicial term limits have not met a great deal of legislative success. * * * But this year, reformers have gathered petitions with about 108,000 signatures, and recently set up a November 2006 vote on "10 years and out" for justices of the Colorado Supreme Court and judges of the Court of Appeals. The ballot initiative will almost certainly be certified in the coming days. * * *

Up to 1965, Colorado was one of the many states that elected all their judges in partisan campaigns. We've since been on the so-called "Missouri merit" plan, where the governor appoints judges from a slate prepared by a nominating commission. Judges then face periodic retention elections, with "retain" or "do not retain" recommendations from a judicial performance commission. It sounds good, but fewer than 1% of all judges ever get dismissed by voters, leading to virtual life tenure with little accountability.

Our ballot issue, "Limit the Judges," would reduce the retention cycle to four years (after an appointee's first provisional term, which can be as short as two years), and cap total service at three terms, about 10 years or a bit longer depending on date of appointment. It applies only to Supreme Court justices, whose current retention cycle is 10 years, and Appeals Court judges, now on an eight-year cycle. District judges' terms are not affected.

This modest proposal has infuriated the bench and bar--aided and abetted, of course, by the media--who characterize it as radical, reckless, an assault on judicial independence and a dangerous politicizing of the courts. * * *

The judicial term limit plan has an additional provision, if the reform is approved this year, that would eject at the end of 2008 any incumbents on the two high courts who have already served 10 years or more. Limit the Judges, then, functions not only as a constitutional amendment but also a referendum on the performance of our robed policy makers.

Five of the seven state Supreme Court justices, all mostly liberal, would be gone in two years if the measure passes; likewise seven of 15 Appeals Court judges. The Colorado Bar Association bemoans a cumulative loss of 185 years' experience on the bench, but that argument may prove no more persuasive to voters in relation to the judicial branch than when it was previously deployed in vain for the legislative branch.

In my experience, term limits have helped make Colorado's legislature more respectful of the plain language of the constitution and more responsive to the sovereign will of the people. I believe term limits can yield similar benefits in our court system.

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Courts in general

Law - DOJ moves to improve immigration judges, after months of criticism

Some readers may recall this Dec. 26, 2005 ILB entry, quoting from several stories critical of U.S. immigration judges. The 7th Circuit has not been reticent in criticizing the rulings of immigration judges - see for example this ruling by Judge Posner from 12/29/05 that begins:

At the risk of sounding like a broken record, we reiterate our oft-expressed concern with the adjudication of asylum claims by the Immigration Court and the Board of Immigration Appeals and with the defense of the BIA’s asylum decisions in this court by the Justice Department’s Office of Immigration Litigation. See Benslimane v. Gonzales, No. 04-1339, 2005 WL 3193641, at *1 (7th Cir. Nov. 30, 2005), and cases cited there. The performance of these federal agencies is too often inadequate. This case presents another depressing example.
Today the LA Times has a story headed "Immigration Judges Get New Regulations: Atty. Gen. Gonzales plans to hire more jurists and improve their performance after a review of alleged abuses and incompetence." Here are some quotes from thestory:
WASHINGTON — Under pressure from human rights groups, the Bush administration announced plans Wednesday to improve the performance of immigration judges, responding to reports of intemperate and abusive jurists and complaints about how the system has dealt with a growing backlog of cases.

The moves, announced by U.S. Atty. Gen. Alberto R. Gonzales, include establishing periodic performance evaluations and implementing proficiency exams for judges who are appointed after Dec. 31.

Gonzales said that he also would seek to hire more immigration judges and to add four members to the 11-person Board of Immigration Appeals.

The moves were among 22 recommendations made by a Justice Department task force that Gonzales established in January to review the performance of the nation's 224 immigration judges, including 55 in California.

The review was ordered after immigrant-rights groups alleged that judges were wrongly deporting people or denying bids for political asylum because of erroneous evidence or incompetence.

In one instance, an appellate board found that a political asylum case involving an Albanian citizen was mishandled because the judge relied on testimony from a document expert who did not speak or read Albanian. In another case, a judge in Boston was suspended after he referred to himself as "Tarzan" during a court proceeding for a Ugandan woman named Jane.

There have also been concerns that an overhaul of the immigration appeals system, instituted in 2002 by then-Atty. Gen. John Ashcroft, denied noncitizens their rights to due process.

Ashcroft implemented measures aimed at helping the immigration appeals board reduce a backlog of more than 50,000 cases.

Responding to pressure to clear the docket, the appeals board, which traditionally worked in panels of three, began reviewing cases individually, often rendering decisions within minutes and without explanation.

The rate at which board members ruled against foreigners facing deportation soared. Those rulings, in turn, led to more appeals to the federal court system, creating another large and cumbersome backlog.

A different slant on the story is presented in this report today from the NY Times:
WASHINGTON, Aug. 9 — Attorney General Alberto R. Gonzales warned the nation’s 215 immigration judges on Wednesday that they all faced annual performance evaluations for the first time and regular scrutiny to detect high reversal rates, frequent complaints or unusual backlogs.

But the consequences of failing were not spelled out. And some of the judges said they worried that evaluations would increase pressure on all judges to make decisions faster, without weeding out the handful of judges who have drawn the most criticism.

Immigration judges, who now handle 300,000 cases a year under stepped-up guidelines, are employees of the Justice Department, not the federal judiciary. After battling for years to unionize, they ratified their first labor contract on Monday.

Performance evaluations were among several measures, most still in the planning stages, that Mr. Gonzales announced here in a luncheon speech at the judges’ annual training conference. He has been under mounting pressure to disclose the findings of a comprehensive review that he ordered last January after federal appeals courts around the country complained of a pattern of biased and incoherent decisions on asylum and rebuked some immigration judges by name for “bullying” and “brow-beating” people seeking refuge from persecution. * * *

Mr. Gonzales acknowledged that many critics attributed the problems to recent changes intended to streamline the Board of Immigration Appeals. Many federal judges say the changes, which reduced the number of judges on the board to 11 from 23, turned the board’s internal review of immigration judges’ decisions into a rubber stamp, shifting the burden of re-examination to the federal courts.

But the attorney general defended those changes, saying they had worked to reduce a big backlog, while suggesting that a few modifications might be made. He said he would seek to add four members to the board, who would also be subject to yearly evaluations, and devise a system to identify cases appealed to federal court and refer them back to the board for additional review.

Via the U of Pittsburgh's excellent law blog, Jurist, here is a copy of the DOJ's press release.

Finally for now, several papers reported earlier this week on a database of immigration judges' records. Here, for instance, is the AP story presented in the Seattle Times. Some quotes:

ALBANY, N.Y. -- In the past, immigrants could only rely on gossip to determine whether a particlular immigration judge has a tendency to rule for or against asylum.

But they gained a new tool Monday, when information on backgrounds and records of most of the nation's 200-plus immigration judges was published in one place for the first time.

The online database shows each judge's denial rates in asylum cases, giving immigrants and their attorneys new insight. They may even be inspired to try to get their cases moved to a friendlier court.

"You just have one chance," said Susan Long, co-director of the Transactional Records Access Clearinghouse at Syracuse University, which released the information. The project collects and analyzes federal government data.

"You learn a lot in court, but not in time to be helpful," Long said. "It's like a surgeon - you want one who does a good job."

The United States granted asylum to 13,520 people in 2005, according to Citizenship and Immigration Services statistics. People cam seek asylum if they fear persecution for returning to their countries because of their race, religion, nationality or political views. * * *

Individual judges have remarkable range in denying asylum, from 10 percent to more than 98 percent, according to a TRAC report last month.

Monday's release lets the public compare judges within each court or with others across the country. It also shows each judge's caseload by major nationalities.

Here is the TRAC database on immigration judges. And here is the link to to asylumlaw.org.

Posted by Marcia Oddi on Thursday, August 10, 2006
Posted to Courts in general

Wednesday, August 09, 2006

Ind. Decisions - More on today's 7th Circuit sentencing decision, overturning SD Ind.

My jaw dropped when I read today's 7th Circuit decision in USA v. Jointer (see ILB entry from earlier this afternoon here). However, I haven't been following the post-Booker federal decisions closely enough to believe I could comment adequately. Fortunately, Doug Berman of Sentencing Law Blog has now posted his take on the ruling. Some quotes:

Perhaps courts ignore statutory text all the time while claiming to be faithful to legislative choices. But I will never get accustomed to the way circuit courts are fabricating stories about federal sentencing law to justify reversing district judge decisions not to follow the crack guidelines after Booker. * * *

According to Jointer, the district court "followed neither the statutory language set out by Congress nor the applicable guidelines sections."

HUH??? What statutory language did the district court not follow? I have identified above the "statutory language set out by Congress" that the Seventh Circuit has ignored in Jointer, but I cannot for the life of me figure out what "statutory language set out by Congress" that the district court failed to follow.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Ind. (7th Cir.) Decisions

Courts - Two Seattle judges admonished for behaving fairly badly

Thanks to How Appealing for pointing out this story in the Seattle Times today. It is worth a read - one judge lead a Seahawks cheer while the jury was out in a manslaughter case:

Pierce County Superior Court Judge Beverly Grant was admonished for asking those in her courtroom to join her in a Seahawks cheer while they were waiting for a man to be sentenced for manslaughter on Feb. 3. Grant, who was appointed to the bench in 2003, filed the formal conduct complaint against herself after the cheerleading incident was widely criticized.
A second judge was "admonished for ordering a Muslim woman out of his courtroom in January after she refused to remove her head covering."

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Courts in general

Ind. Courts - Night court is coming to Marion County, on August 21 [Updated]

Michael W. Hoskins of the Indiana Lawyer is reporting late this afternoon:

Night court is coming to Marion County, along with other changes that will affect all the county's courts.

Starting Aug. 21, a newly established court will begin handling all new D-felony and misdemeanor offenses, reserve deputy sheriff cases, and other targeted felony and misdemeanor in-custody cases. The court will use available space inside the City-County building Monday through Thursday, from 5 to 9 p.m.

Former Marion Superior Judge Steve Eichholtz, who left the bench in 2000 to work for Indianapolis law firm Locke Reynolds, will preside over the night court. He is running for election as judge in November and has committed to serving as night court judge until at least January. * * *

At a news conference Wednesday afternoon, city and county officials -- including Marion Superior Judge Cale Bradford, who presides over the court -- announced the entire plan. * * *

Highlights include:

• The Marion County Prosecutor's Office is shifting eight deputy prosecutors from other areas to homicide and gun prosecution units.

• Starting Monday, a third daily docket will be added in Marion Superior Court's criminal court 20 to expedite major felony drug cases. A half-time commissioner is being transformed into a full-time position to make the change possible.

• Effective Aug. 21, an expedited probation violations docket will be established within the Marion Superior Court between 8 a.m. and 9 a.m., hearing cases involving community corrections and probation violations set for hearings in the next 24 hours.

• A warrant strike team will be established by the Marion County Justice Agency by Aug. 21, specifically in order to re-prioritize warrant duties so that felony defendants can be charged on the day of a failure to appear or issuance of a warrant.

• On or before Sept. 1, the Marion County Probation Department is ordered to produce pre-sentence investigation reports for in-custody cases within seven days of any court's request. This is expected to reduce by 50 percent the wait time before sentencing.

The order also includes a series of procedural and systematic changes that will apply to all Marion County courts, including strict timelines for continuance of cases, use of recorded statements as depositions in accordance with Indiana Trial Rules to expedite case preparation, preparation of daily abstracts of judgments, and use of the Superior Court's case management system by law enforcement to track the release of county inmates.

Read about the executive orders and what impact these will have on the legal community in the next issue of Indiana Lawyer.

[Update 8/10/06] Here is this morning's comprehensive report in the Indianapolis Star, reported by Gavin Lesnick.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Indiana Courts

Courts - Las Vegas attorney flunks breathalyzer test in open court, on camera

The Las Vegas Review Journal reports today:

After a lawyer due to defend a man against a kidnapping charge showed up to court late and smelling of booze last week, a Clark County District Court judge ordered the attorney to take a Breathalyzer test in open court, then declared a mistrial when the test confirmed her suspicions.

In a remarkable exchange captured by the courtroom's video camera, District Judge Michelle Leavitt ordered defense attorney Joseph Caramagno to submit to the test after she smelled alcohol on his breath.

The result indicated that Caramagno's blood-alcohol level was 0.075. In Nevada, it is illegal to drive with a blood-alcohol level of 0.08 or higher.

After seeing the test results, Leavitt declared a mistrial in the kidnapping trial of Caramagno's client, Dale Jakuchunas. * * *

On Thursday, Caramagno was scheduled to appear in Leavitt's courtroom for the first day of witness testimony in the trial of Jakuchunas.

Caramagno arrived about 90 minutes late in the company of a young woman wearing a black halter top and tight pants.

On the video recording, Caramagno can be heard slurring his words, and Leavitt asks him what is wrong with him.

"I'm going to tell you, to be honest with you, you don't look right," Leavitt said.

He told the judge that his car had been rear-ended by another car on Sahara Avenue, causing him a head injury.

But Leavitt said she became suspicious when details of Caramagno's accident account varied. Leavitt summoned him and prosecutors into her chambers. During this meeting, the judge said, Caramagno told her the woman who accompanied him into court was his ex-girlfriend.

But when Leavitt questioned the woman, she said she had met Caramagno about 20 minutes earlier at the nearby Courthouse Café and had never dated Caramagno.

Caramagno also referred to the woman as Christine. The woman later identified herself in court as Josephine.

"You told me she was your ex-girlfriend," Leavitt said. "Now I'm very upset with you." * * *

After another recess, Leavitt ordered Caramagno to take a breath test. He at first resisted. "Judge, I don't want to submit to it," he said.

"I don't think you really have a choice," Leavitt said. "If you come to court and you give me reason to believe you are intoxicated, you've got to submit."

Caramagno is seen on the courtroom videotape sitting down and blowing air into the Breathalyzer. After the test results were announced, Leavitt declared a mistrial. "For the record, your blood-alcohol content is .075," Leavitt said.

Thanks to the Wall Street Law Blog, which has an interesting account of the story.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Courts in general

Ind. Gov't. - Public records for sale to the right people

In today's Marion Chronicle Tribune, Teresa Auch writes:

Plans to put more public records online - but for a price - are moving forward in county government.

Tuesday, the Grant County commissioners reviewed a plan that would let people view documents from the recorder's office online.

Ryan Stanley, with Phoenix Technologies, said that under the proposed plan, a one-time search of documents from the recorder's office would cost $5. One-time users would also have to pay $1.50 for every page of a document viewed from the search.

The county would receive $1 from the charge to help pay for maintaining the records, and Phoenix would take 50 cents to operate the online engine, he said.

Users would also have the choice of signing up for more searches, paying more according to a pricing structure but getting a discount on the per-page fee.

The recorder's office used to keep images of documents online for free, but the documents contained private information, such as Social Security numbers, Recorder Dixi Fischer Conner said. All of the images have since been put under the protection of a password, available only to county employees who need access to them.

Marion resident Tim Cain told the commissioners at their weekly meeting that he thought putting any of the documents online was just inviting criminals to steal people's identities.

"Images online are just a terrible idea," he said.

Cain said he did not support putting information such as signatures, birth dates or relationships to other people online.

However, Stanley said access to online documents would be limited. Users would have to fill out an online application, which the company would then review. Once information has been verified and the user had been approved, he or she would be given a user name and password. [ILB - aren't these public records? What do you have to prove to be "approved" to access public records?]

Sensitive information, such as Social Security numbers, would be blacked out from the image, Stanley said.

Fischer Conner told the commissioners she supported the plan, except for the proposed three-year contract. She said she would prefer the contract to be just one year.

The commissioners heard a similar proposal in June from Internet company Doxpop, which currently puts the county's court information online, but have not yet voted to enter into a contract with either Doxpop or Phoenix for the service.

A side-bar shows a price schedule. It looks like the homeowner who wants to see the assessments for nearby homes, for instance, would pay a lot more per record than the big company accessing the records for commerical purposes. Here are quotes from the side-bar:
According to a proposal by Phoenix Technologies, people would be able to sign up to view documents from the recorder's office at varying pricing levels, depending on how many searches they want to conduct:

One search: $5 user fee

Two to 20 searches: $20

21 to 50 searches: $35

61 to 200 searches: $50

201 to 600 searches: $100

601 to 2,000 searches: $250

2,001 to 5,000 searches: $450

Each page view costs $1.50 for a one-time user. For other plans, each page view costs $1.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Indiana Government

Ind. Decisions - Two Indiana cases today from the 7th Circuit

In Hart, Jeffrey v. Fed Ex Ground (ND Ind., Robert L. Miller, Chief Judge), a 14-page opinion, Circuit Judge Wood writes:

After Jeffrey Hart filed suit against FedEx Ground Package System, Inc. (“FedEx Ground”), in Pennsylvania state court, FedEx Ground removed the case to federal court under the Class Action Fairness Act of 2005, (CAFA), Pub. L. 109-2, 119 Stat. 4 (2005); later, the case found its way to the Northern District of Indiana, where Hart unsuccessfully tried to persuade the district court that this case really belonged back in Pennsylvania state court, under the “home-state controversy” or “local controversy” exceptions to CAFA. Concluding that Hart had the burden of showing that these exceptions applied, the district court denied his motion to remand. Hart appeals, see 28 U.S.C. § 1453(c), asking us to resolve which party has the burden of proving whether these exceptions to CAFA apply. Although we consider the question close, we conclude that the structure of the statute logically shifts the burden of persuasion to the plaintiff to show that the general rule does not apply. We granted the petition for the appeal in an order dated June 30, 2006, and we now affirm.
In USA v. Jointer, John W. (SD Ind., Larry J. McKinney, Chief Judge), an 11-page opinion, Circuit Judge Ripple writes:
On October 7, 2005, Mr. Jointer pleaded guilty to distribution of and possession with intent to distribute cocaine base (“crack”). See 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). He was sentenced to 87 months’ imprisonment, a term below the advisory guideline range. The Government now appeals Mr. Jointer’s sentence; it submits that the district court exceeded its authority by substituting a 20:1 crack-to-powder cocaine sentencing ratio rather than the 100:1 ratio found in the United States Sentencing Guidelines. The Government further claims that the sentence is unreasonable. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand the case for resentencing. * * *

Because the district court did not follow the appropriate methodology in sentencing Mr. Jointer, and because that error certainly can not be characterized as harmless error, we must remand the case for resentencing. We have stated that, although the Guidelines are no longer mandatory, “errors in their application remain relevant,” United States v. Skoczen, 405 F.3d 537, 549 (7th Cir. 2005), and such errors may require us to remand for resentencing, see United States v. Chamness, 435 F.3d 724, 726 (7th Cir. 2006). The Mandatory Sentencing Act, 18 U.S.C. § 3742(f)(1), requires resentencing when a sentence was imposed “as a result of an incorrect application of the sentencing guidelines.” This provision of the Mandatory Sentencing Act survives Booker, and thus errors in the Guidelines application must be remanded for resentencing even post-Booker. See United States v. Scott, 405 F.3d 615, 617 (7th Cir. 2005).

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Moves toward secrecy in the Indiana trial court system?

Fortunately, one can still count the recent stories on the fingers of one hand.

An AP story by Ken Kusmer from June 8th reported "The cause and manner of 19-year-old Jill Behrman's death and other autopsy results have been sealed since December 2003 by order of Morgan Superior Court Judge G. Thomas Gray. He refused to change that stance Thursday." See the ILB entry here.

This ILB entry from August 1st reported that Orange Circuit Judge Larry Blanton had finally agreed to requests, including one by the Attorney General, that he unseal the file in a two-month-old lawsuit between companies involved in building the new French Lick casino. The judge had sealed the entire lawsuit, including the docket itself, at the request of the parties to the suit. An enterprising reporter discovered in June that the lawsuit had been filed and noted that the judge could not seal the records without a public hearing.

Today, according to a report by Abigail Johnson of the Indiana Lawyer, pretrial hearings in the Jill Behrman murder trial are being held in closed chambers:

Laura Lane, writer for the Bloomington Herald-Times, reported Tuesday that a pretrial conference in the case of John R. Myers II was over before it was scheduled to begin. Myers' is accused of murder in the May 2000 death of Jill Behrman and is scheduled to go on trial in October.

The case is before Morgan Superior Judge Christopher Burhnam; however, Dave Remondini, counsel to the chief justice, is handling media inquiries because of the attention on the case.

At issue is whether certain grand jury testimony concerning Myers' criminal history will be admissible at trial. Indiana Evidence Rule 404(b) is typically used by criminal defendants to seek exclusion of evidence about their own prior bad acts.

"I spoke to Judge Burnham after the hearing," Remondini said. "His reasons for discussing the 404(b) information in chambers with attorneys for both parties was designed to protect the jury pool."

Steve Key, counsel for the Hoosier State Press Association, said he is not certain "protecting the jury pool" is a legitimate reason to close hearings in a case.

"I can understand what the concern is," Key said. "But, there are other ways to try to ensure that you get a good jury. That's why you have voir dire. That's why you have the ability if necessary to pull jurors from other locations, or to take the case and move it to another location."

Key said a jury doesn't need to be totally ignorant of the facts of a case to be able to hear it; even with some prior knowledge of the case, jurors can make decisions based on the evidence presented in the case. Through voir dire, attorneys for both the prosecution and the defense can strike jurors from the pool during voir dire.

"To say that is the reason why there's secrecy in this part of the case, I don't think it's a good reason to close the door," Key said. "Obviously, the public has a right to know what's going on in the criminal system."

The types of information being admitted at trial can have a bearing on the direction of the case, Key said, and now that information is being taken out of play at the public level.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides three today

In Arian R. Fuller v. State of Indiana, an 8-page opinion, Judge Bailey concludes:

Fuller has not demonstrated that he was denied an impartial jury. Nor has he established that his fifty-five year aggregate sentence is inappropriate. The convictions and sentence for Murder, Intimidation and Carrying a Handgun Without a License are affirmed. We direct the trial court to vacate the conviction for Attempted Robbery.
Quality Foods, Inc., et al. v. Holloway Associates Professional Engineers and Land Surveyors, Inc. is a 14-page opinion concerning agency and apparent authority, as well as a mechanics lien. Affirmed.

Robert L. McCord v. Angela E. McCord is a 17-page opinion reversing and remanding a division of marital property.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Ind. App.Ct. Decisions

Law - Washington Post editorial provides clarity on Vermont-Virginia dispute

A Washington Post editorial today cuts to the essence of the Vermont-Virginia visitation dispute. A paragraph:

As the Vermont Supreme Court understood, this dispute isn't about whether Virginia is bound to honor same-sex unions. (The federal Defense of Marriage Act protects Virginia from that supposedly frightful consequence.) It's about the application of a federal law designed to help states -- and children -- avoid the sort of ugly tug of war that has ensnared Isabella here. Once one state's court has properly started hearing a case, the law provides, other states should stay out. Otherwise, parents who don't like the custody deal they got the first time could shop around for friendlier courts.
Here is the August 5th NY Times report, written by Adam Liptak, on the Vermont Supreme Court ruling. And here, thanks to How Appealing, is a link to the Vermont Supreme Court ruling.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to General Law Related

Law - "She skipped wedding, kept pricey ring, suit says"

The Chicago Tribune reports in a brief story today:

A Barrington lawyer sued his ex-wife Tuesday, alleging she backed out of an agreement to remarry him four years ago but has refused to return an engagement ring worth almost $100,000.

William Kaper Jr., 68, says he proposed to his former wife, Dr. Mary Ann Rosanova-Kaper of Inverness, in 1999 at a restaurant in Rosemont in front of two of their children. * * *

"As part of the marriage proposal, Kaper told Rosanova-Kaper that if she changed her mind about marrying Kaper, she was to return the ring," according to the lawsuit filed in Cook County Circuit Court. "Rosanova-Kaper agreed with this condition."

But Rosanova-Kaper broke off the engagement in 2002, and "adamantly refused" to return the 5.03-carat ring, the lawsuit says.

The ring is reportedly valued in the $90,000 range.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to General Law Related

Environment - Star writes: State regulators need to resolve violations at an Eastside coke plant.

From an editorial today in the Indianapolis Star:

One deadline after another has passed, and state environmental regulators still haven't issued a permit for Citizens Gas & Coke Utility or worked out an agreement to address scores of alleged environmental violations at the utility's Eastside coke plant.

The facility has been emitting troublesome levels of cancer-causing chemicals in surrounding neighborhoods for nearly a century.

The permit, which lays out operating conditions and air-monitoring requirements for the plant, was supposed to have been issued a decade ago. Regulators at the Indiana Department of Environmental Management once pledged it would be issued by June 30, 2004. That deadline was extended one year, then another.

July 17 was the latest deadline to come and go.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Environment

Ind. Gov't. - Vigo Commissioners broke antitrust laws, alleges lawsuit

Deb McKee of the Terre Haute TribStar reports:

The owner of Thompson’s Motorsports has filed a lawsuit accusing Vigo County Commissioners of scheming with businessman Greg Gibson to reach a pre-determined result in a land swap agreement in 2004.

The lawsuit, filed June 23 by Robert Thompson, names the Vigo County commissioners, Famco Fabrication Works LLC and Gibson individually as defendants, and alleges that each of them violated state bidding and antitrust laws. Gibson is president of Famco.

The real estate at issue includes land at First and Ohio Streets that once housed the County Highway Department, and about 121/2 acres of Famco land on the site of the former Jamax Operations Facility on Haythorne Avenue. The two properties eventually were exchanged after the county published a notice requesting proposals for a swap and Famco submitted the only bid. * * *

In the complaint, Thompson accuses county commissioners of creating terms and conditions that precluded anyone else from submitting a bid for the land at First and Ohio streets. The lawsuit claims the commissioners engaged in a scheme that favored “Famco and Gibson to the exclusion of all others.”

The document includes an allegation that Gibson and Famco manipulated the bidding process to reach a pre-determined outcome, “violating the purposes behind the competitive bidding statutes to safeguard the public against favoritism, extravagance, improvidence, and to insure honest competition.”

Thompson also claims the appraisers of the real estate underestimated the value of the property on Ohio Street and overestimated the value of the Famco property to effect the appearance of an even exchange, defrauding Vigo County taxpayers a “minimum amount of $223,500.”

Attorney for the County Bob Wright said Tuesday he does not think the county did anything wrong. “We think [the bidding process] was handled the way it was supposed to be handled; we got our advice on how to handle the transaction from [Indianapolis-based law firm] Ice Miller.

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Indiana Government

Ind. Courts - "Defendant's outburst interrupts trial"

Joe Gerrety of the Lafayette Journal & Courier reports today on a trial that began yesterday in Tippecanoe Superior Court 1. Some quotes:

An emotional outburst by the defendant interrupted a murder trial Tuesday before the first witness took the stand.

Geraldine A. Livingston began to sob as the Tippecanoe County prosecutor's staff started setting up audio equipment in preparation to play a recording of a 911 call involving the death of her estranged husband, Jesse Livingston.

Judge Don Johnson of Tippecanoe Superior Court 1 dismissed jurors from the courtroom, hoping that Livingston would calm down. But when the prosecutor's staff began playing the 911 recording to test the equipment, the defendant erupted in loud groans. * * *

Livingston, 43, is charged with murder in connection with the Oct. 21, 2004, fatal shooting of her husband, who had left her two months earlier.

Courthouse bailiffs restrained Livingston, who is in custody, while family members attempted to calm her down. But eventually, she had to be led out of the courtroom.

Johnson dismissed jurors for the day at 2:50 p.m. and will attempt to resume the trial at 8:15 this morning.

He directed the Tippecanoe County Jail staff to have Livingston evaluated by a psychiatrist overnight to see if she can proceed with the trial.

If she is unable to keep her composure, Johnson likely will have to declare a mistrial. The judge told attorneys there's too much at stake in a murder trial to allow it to proceed without the defendant present.

Before opening statements in the case, Graham already had conceded that Livingston had shot her husband. He spent much of his time during jury selection coaching prospective jurors on the difference between murder -- intentionally killing another human being -- and manslaughter, which Indiana law defines as killing another person "in sudden heat."

"It's a manslaughter -- not a murder," Graham told jurors during his opening statement. "This is not a murder. This not a hit. This is not a drive-by. This is not a sniper shooting."

But John Meyers, chief deputy prosecutor, argued there is evidence, including the fact that Livingston bought the .38-caliber handgun nine days before the shooting, that the killing was planned.

Meyers said the evidence would show that Livingston fired four shots at her husband from the doorway to his apartment. One bullet struck him in the chest; another in his back. Two others went into the apartment floor. Then she fled the scene and called her daughter.

Two passersby discovered Jesse Livingston, 29, lying in the doorway of his apartment building in the 1300 block of North 15th Street, calling for help. He died in surgery later at St. Elizabeth Medical Center.

"There's no evidence of anything that could remotely be called provocation" by Jesse Livingston, Meyers said. "His only offense was not wanting to be married to the defendant."

Posted by Marcia Oddi on Wednesday, August 09, 2006
Posted to Indiana Courts

Tuesday, August 08, 2006

Law - Sentencing at the state level

For those of you who follow sentencing at the state level, whether in Indiana or another state, Prof. Douglas Berman of the Sentencing Law Blog has a post today worth noting on resources of the National Center for State Courts, and some state surveys it has undertaken.

Posted by Marcia Oddi on Tuesday, August 08, 2006
Posted to General Law Related

Law. - "Public Pension Plans Face Billions in Shortages"

The NY Times today begins a series on public pensions, with the overall title of "Costly Promises." The intro:

This is the first article in a series that will examine actions of state and local governments that have left taxpayers with large unpaid bills for public employee pensions. The series will focus on ways in which pension funds have been shortchanged by government officials even as they have sought to enhance benefits for groups of politically influential workers.
Here are some quotes from today's front-page story:
In 2003, a whistle-blower forced San Diego to reveal that it had been shortchanging its city workers’ pension fund for years, setting off a wave of lawsuits, investigations and eventually criminal indictments.

The mayor ended up resigning under a cloud. With the city’s books a shambles, San Diego remains barred from raising money by selling bonds. Cut off from a vital source of cash, it has fallen behind on its maintenance of streets, storm drains and public buildings. Potholes are proliferating and beaches are closed because of sewage spills.

Retirees are still being paid, but a portion of their benefits is in doubt because of continuing legal challenges. And the city, which is scheduled to receive a report today on the causes of its current predicament, still has to figure out how to close the $1.4 billion shortfall in its pension fund.

Maybe someone should be paying closer attention in New Jersey. And in Illinois. Not to mention Colorado and several other states and local governments.

Across the nation, a number of states, counties and municipalities have engaged in many of the same maneuvers with their pension funds that San Diego did, but without the crippling scandal — at least not yet.

It is hard to know the extent of the problems, because there is no central regulator to gather data on public plans. Nor is the accounting for government pension plans uniform, so comparing one with another can be unreliable. * * *

Public plans are not governed by the federal pension law, the Employee Retirement Income Security Act, that companies must follow. They are not covered by the Pension Benefit Guaranty Corporation, so if they come up short, they must turn to the taxpayers. * * *

Corporate pension funds have plenty of problems of their own. But they are at least required to adhere to a uniform accounting standard, which provides information that investors can use to decide upon stocks to buy and sell. The standards, in turn, are policed by the S.E.C.

Taxpayers have no such help. For municipal plans, the accounting standards are much more flexible, a decision that was denounced, when it was issued in 1994, by the head of the very board that wrote it.

Posted by Marcia Oddi on Tuesday, August 08, 2006
Posted to General Law Related

Ind. Decisions - Two Indiana cases today from the 7th Circuit

In Tomanovich, George v. Indianapolis (SD Ind., Richard L. Young, Judge), a 21-page opinion, Circuit Judge Manion writes:

MANION, Circuit Judge. George Tomanovich sued the City of Indianapolis and the Indiana Department of Transportation, alleging that they retaliated against him for engaging in protected activity in violation of Title VII. Tomanovich also alleged that the City blacklisted him in violation of Indiana Code 22-5-3-1. The district court granted the defendants summary judgment. Tomanovich appeals. * * *

Although the City fired Tomanovich after he had filed a complaint with the EEOC, Tomanovich failed to present sufficient evidence under the direct method of a causal connection between Tomanovich’s protected activities and his firing, or the City’s subsequent refusal to provide INDOT details on Tomanovich’s work history. Tomanovich also failed to establish retaliation under the indirect method because he failed to present evidence that he was meeting the City’s legitimate business expectations or that someone who was similarly situated, but who had not engaged in protected activity, was treated more favorably. Additionally, Tomanovich’s state law blacklisting claim against the City fails because Tomanovich failed to present evidence that the City provided INDOT with false information. Finally, Tomanovich’s retaliation claim against INDOT fails under both the direct and indirect methods, because, among other reasons, Tomanovich failed to present sufficient evidence that INDOT knew of Tomanovich’s protected activities. Accordingly, the district court properly granted the defendants summary judgment. For these and the foregoing reasons, we AFFIRM.

In USA v. Drake, James Allen (ND Ind., Theresa L. Springmann, Judge), an 11-page opinion, Circuit Judge Bauer writes:
A jury found James Drake guilty of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and the district court sentenced him before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), to 103 months’ imprisonment and 3 years’ supervised release. Drake appeals, arguing that the gun should have been suppressed and that the court committed plain error when it instructed the jury regarding his two prior felony convictions. He also argues that his case should be remanded under United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). We affirm Drake’s conviction, but order a limited remand to determine whether the court would have given Drake the same sentence under an advisory Guidelines regime.

Posted by Marcia Oddi on Tuesday, August 08, 2006
Posted to Ind. (7th Cir.) Decisions

Monday, August 07, 2006

Courts - Judicial Campaign Speech Subject of ABA Mock Trial

The ABA Annual Meeting's daily journal for today, dateline Honolulu, has this report by Mark Hansen. I couldn't resist a few parantheticals, as the ILB has been following these issues for some time:

Suppose a candidate for the Minnesota Supreme Court wants to identify himself as a Republican and personally solicit and accept campaign contributions from political supporters—moves that would violate the state’s code of judicial conduct.

How would the U.S. Supreme Court rule on the candidate’s contention that those restrictions violate his First Amendment right to free speech?

That was the question presented Sunday in a mock Supreme Court argument session staged by the ABA’s Tort Trial & Insurance Practice Section.

The exercise may have been academic, but the case was not.

Gregory Wersal was a candidate for the Minnesota Supreme Court who challenged the state’s prohibitions on partisan political activities and solicitations by judicial candidates.

Last August, the St. Louis-based 8th U.S. Circuit Court of Appeals in an en banc ruling held that those restrictions violate a judicial candidate’s free speech rights. Republican Party of Minnesota v. White, 416 F.3d 738. In January, the Supreme Court without comment turned down the state’s appeal of the 8th Circuit’s ruling. [See ILB entries from Jan. 24th and Jan. 30th on the Supreme Court's turndown of Dimick.]

The Supreme Court had previously struck down the state’s prohibition against judicial candidates stating their views on controversial issues that might come before them on the bench. 536 U.S. 765 (2002).

Sunday’s exercise assumed for the sake of argument that the Supreme Court had agreed to review the 8th Circuit’s decision in White, now known as Dimick v. Republican Party of Minnesota.

Encino, Calif., appellate lawyer David Axelrad played the part of the lawyer for the state. Stanford University law professor Alan Morrison pretended to represent the candidate and the state’s Republican Party. [i.e., he played Indiana's Jim Bopp]

Acting as Supreme Court justices were 6th U.S. Circuit Court of Appeals Chief Judge Danny Boggs, 10th U.S. Circuit Court of Appeals Judge Harris L. Hartz, Nebraska Court of Appeals Chief Judge John Irwin and Hawaii Supreme Court Judge Steven Levinson.

Afterward, a panel of lawyers and professors offered critiques of the two sides’ arguments.

Axelrad argued that the campaign restrictions serve a compelling state interest in preserving the independence and the impartiality of the judiciary at a time when judicial candidates are most vulnerable to undue political pressures.

“The issue here is the state’s ability to preserve an impartial and independent judiciary through a set of minimal restrictions that don’t impair a candidate’s right to speak or raise money,” he told the mock justices.

Morrison contended that the restrictions are overly broad and don’t meet the narrowly tailored requirements of the First Amendment.

He said the restrictions do not only prevent candidates from stating facts. They also do nothing to address the influence of other special interest groups such as unions or the Chamber of Commerce.

After the arguments, the “justices” issued no decision. Irwin and Levinson said they were inclined to side with the state. Hartz said he would probably vote to affirm the 8th Circuit. Boggs declined to say how he might rule.

Posted by Marcia Oddi on Monday, August 07, 2006
Posted to Courts in general

Ind. Decisions - Two today from the Court of Appeals

In Cincinnati Insurance Company v. Monty R. Young, a 17-page opinion, Judge Riley writes:

Intervenor-Appellant-Cross-Appellee, Cincinnati Insurance Co. (Cincinnati), appeals the trial court’s grant of Plaintiff-Appellee-Cross-Appellant, Ruby Young’s, Personal Representative of the Estate of Michael Young (the Estate), Motion for Judgment Against Tri-Etch, Inc. (Tri-Etch) on Non-Party Allocation of Fault. We reverse. * * *

We find two issues raised on cross-appeal to be dispositive and restate them as follows: (1) Whether Cincinnati timely filed its notice of appeal; and (2) Whether the trial court abused its discretion by granting Cincinnati the right to intervene in the proceedings pursuant to Indiana Trial Rule 24(A)(2) after judgment had been rendered and a settlement had been reached by the parties. * * *

CONCLUSION. Based on the foregoing, we conclude that Cincinnati timely filed its notice of appeal, but that the trial court abused its discretion by granting Cincinnati’s motion to intervene for purposes of appeal pursuant to Indiana Trial Rule 24(A)(2). Reversed.

In John F. Friedline v. Anthony Thomalla, an 8-page opinion, Judge Riley writes:
Appellant-Defendant, John F. Freidline (Freidline), appeals the trial court’s grant of summary judgment in favor of Appellee-Plaintiff, Anthony Thomalla (Thomalla), holding as a matter of law that Freidline was liable to Thomalla for the judgment entered against the Land Trust No. 4810 (the Land Trust) and in favor of Thomalla. We affirm in part, reverse in part, and remand with instructions.

Freidline raises three issues on appeal, which we consolidate and restate as the following issue: Whether the trial court, in proceedings supplemental, properly decided, as a matter of law, that Freidline, as the beneficiary of the Land Trust, is personally responsible for a debt owed by the Land Trust to Thomalla. * * *

CONCLUSION. In light of the foregoing, we find that Freidline, as sole beneficiary of the Land Trust, is responsible for the Land Trust’s judgment debt to Thomalla, and we remand to the trial court with instructions to identify the specific property of the Land Trust held by Freidline, or obligations by Freidline to the Land Trust on which execution can be levied to satisfy the judgment debt. Affirmed in part, reversed in part, and remanded with instructions.

Posted by Marcia Oddi on Monday, August 07, 2006
Posted to Ind. App.Ct. Decisions

Not Law - Lafayette Journal & Courier is back, at new address

A reader informs me that the Lafayette Journal & Courier is back, available at http://jconline.com. But the link the ILB has always used to access the paper, http://www.lafayettejc.com/ remains out of commission.

Posted by Marcia Oddi on Monday, August 07, 2006
Posted to General News

Law - More on lethal-force law

Last week the ILB had two stories (here and here) on a trial in Kentucky involving that state's new "lethal-force" law, similar to Indiana's.

Today Adam Liptak of the NY Times has a front-page story titled "15 States Expand Right to Shoot in Self-Defense." Some quotes:

The first of the new laws took effect in Florida in October, and cases under it are now reaching prosecutors and juries there. The other laws, mostly in Southern and Midwestern states, were enacted this year, according to the National Rifle Association, which has enthusiastically promoted them. * * *

The Florida law, which served as a model for the others, gives people the right to use deadly force against intruders entering their homes. They no longer need to prove that they feared for their safety, only that the person they killed had intruded unlawfully and forcefully. The law also extends this principle to vehicles.

In addition, the law does away with an earlier requirement that a person attacked in a public place must retreat if possible. Now, that same person, in the law’s words, “has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force.” The law also forbids the arrest, detention or prosecution of the people covered by the law, and it prohibits civil suits against them.

The central innovation in the Florida law, said Anthony J. Sebok, a professor at Brooklyn Law School, is not its elimination of the duty to retreat, which has been eroding nationally through judicial decisions, but in expanding the right to shoot intruders who pose no threat to the occupant’s safety.

“In effect,” Professor Sebok said, “the law allows citizens to kill other citizens in defense of property.”

Posted by Marcia Oddi on Monday, August 07, 2006
Posted to General Law Related

Environment - Evansville seeks to regulate outdoor wood-fired boilers

The Evansville Courier& Press has a story today by Bryon Rohrig that reports:

Although discussion and likely passage of a ban on the heating devices won't come until late August, an ordinance outlawing them will be introduced in the Evansville City Council today.

The bottom line is that outdoor wood-fired boilers smoke too much. That could become a major environmental issue in any city, but especially one such as Evansville, where levels of particulate air pollution can reach unhealthy levels.

If you are wondering why the government now is taking aim at barbecuing meat, you're thinking of a smoker. An outdoor wood-fired boiler is something completely different. The "outdoor" boiler usually is contained in an insulated shed where it is used to heat water.

The hot water then is piped to a nearby house or other building for heat.

An article at woodheat.org explains fireboxes of most such boilers are surrounded by water jackets. Although they are a great heat-transfer concept, the cooling effect of the water on the firebox makes it impossible for the wood fire to reach a temperature where it burns efficiently. Lots of smoke also is generated when creosote, which condenses from smoke onto the boiler's steel internal surfaces, burns off.

A committee hearing on the ban is scheduled for 5:10 p.m. Aug. 28. The measure is likely to be reported out of committee, then adopted that day during the 5:30 p.m. council meeting.

The ILB has posted a number of entries on the possible regulation of outdoor wood-fired boilers by the Indiana Department of Environmental Management (IDEM). Here is a list of some of them. A call by IDEM for public comments on the possibility of regulations, the first step of a lengthly rule-making process, came under fire from southern Indiana legislators last year. The proposal is now in limbo and localities such as Evansville and Batesville are taking on the problem at the local level.

HEA 1285 passed earlier this year requires the legislative Environmental Quality Service Council (EQSC), which meets during the summer, to make findings and recommendations concerning the regulation of outdoor wood-burning furnaces.

Posted by Marcia Oddi on Monday, August 07, 2006
Posted to Environment | Indiana Government | Indiana Law

Courts - "What Do Appellate Attorneys Actually Do?"

"What Do Appellate Attorneys Actually Do?" is the title of Howard Bashman's (of How Appealing) weekly column today in Law.com. A few quotes:

One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts. Appellate courts are not only responsible for trying to reach the correct result in the cases on appeal, but their rulings often create precedents that will govern other cases that don't even exist yet. Thus, an appellate lawyer must be cognizant not only of how existing precedent will affect an appellate court's view of a newly filed appeal, but also about how the precedent created in the course of deciding the new case will affect the future direction of the law.

Another benefit from getting a fresh set of eyes involved at the appellate stage is that sometimes the lawyers who have struggled in the trial court trenches lack the ability to view the issues, and their strengths and weaknesses, with the necessary detachment. An appellate attorney may be especially well-suited to explain the facts and legal issues involved in an appeal to appellate judges who, similarly, lack any extensive pre-existing knowledge about that given case.

Posted by Marcia Oddi on Monday, August 07, 2006
Posted to Courts in general

Indiana Courts - "Families belong under one roof"

"Families belong under one roof" is the headline to this editorial today in the Indianapolis Star. Some quotes:

[A] judge would handle every matter related to a family. A child welfare or a delinquency case, for example, could be pulled off the juvenile court docket and consolidated with a divorce case. By doing so, the judge can better tailor his rulings and even authorize counseling sessions that can keep children out of juvenile court and eventually prison.

But while the family court would be able to pull child welfare cases from the juvenile court, the courts won't be combined, something opposed by juvenile court Judge Marilyn Moores.

The lack of court space within the City-County Building is one reason why Moores opposed handing off her docket to the family court. Doing so, Moores says, could force poor families to run between Downtown courts and the juvenile complex on Keystone Avenue.

Posted by Marcia Oddi on Monday, August 07, 2006
Posted to Indiana Courts

Sunday, August 06, 2006

Ind. Law - "Who should pay price for meth messes?"

"Who should pay price for meth messes? Proposed law makes property owners responsible for cleanup cost." That is the headline to a story today in the South Bend Tribune, by Anita Munson. Some quotes:

PLYMOUTH -- Methamphetamine cooks aren't always the most careful people in the world.

Meth labs can explode without warning, and chemical exposure can create its own problems, including burns, respiratory damage and worse.

Police warn those who may innocently encounter a meth lab to stay far enough away to avoid breathing any associated vapors, which can be toxic.

Sgt. Don McCay and fellow investigators in the Suppression Division of the Indiana State Police displayed frustration when they talked about cleanup of a meth lab or a dump site during a recent seminar for media. McCay said one pound of manufactured meth creates five to seven pounds of toxic waste, with cleanup a costly proposition for taxpayers.

And it could become even more so with a proposed law that would require anyone owning property on which a meth lab was discovered, or a meth dump of toxic materials, be made to pay for cleanup by a company certified by the state to do so.

Although meth is easy to make, the process for making it contaminates the property, McCay explained in the seminar that also covered meth-related crime. Anything and everything from carpeting, appliances and furniture, to drywall, insulation, plumbing and more can make a home used as a meth lab potentially hazardous to new residents if it is not properly decontaminated.

That's because, McCay said, remnants of a lab can sometimes be reactivated. If that happens, toxic fumes can be released, or a storage container could actually explode.

Specially trained environmental contractors are hired by the state, with funding provided by the U.S. Drug Enforcement Agency, to come in and properly remove the waste products from the site.

But Indiana residents have no way of knowing -- for now -- if the property they just bought or rented was ever the sight of such perilous activity.

The proposed new law -- which the Indiana Department of Environmental Management is authorized to adopt under Senate Enrolled Act 444, Section 6 -- would require environmental cleanup companies doing meth lab or meth dump cleanup to become state certified. [ILB -see discussion below for clarification]

The law would place the responsibility for paying for the cleanup squarely on the property owner's shoulders, even if he was unaware of the illegal activity.

The cleanup would be required at an apartment building, multi-family dwelling, condominium, hotel or motel, rental storage units, outbuildings accessible to children, and more where the controlled substance was manufactured, with some exceptions, before the property could be reoccupied or transferred.

Open land, on which no structure is contaminated, would be exempted.

In a letter dated June 20 to IDEM, Ryan Asberry, director of research with the Indiana Economic Development Corp. in Indianapolis, said the IEDC does not object to the fiscal impact associated with the proposed law.

Asberry wrote, "A portion of the affected property owners may be small business who would incur economic costs as a result of the rule.

The cost of complying with the rule would also be a source of revenue for contractors who provide decontamination services ... The benefit realized by the contractors may partially offset the overall economic impact borne by small businesses."

Both Asberry and IDEM admit the cost of compliance with the rule is difficult to compute.

IDEM held a public hearing in June on the matter, and the commissioner is now reviewing the issue. If approved by the commissioner, the rule will then go before the Indiana attorney general and the governor. If approved, the rule becomes law effective 30 days after filing.

What is this story about? In the 2005 session, the General Assembly enacted a law, SEA 444, that included this provision:
SECTION 6. IC 13-14-1-15 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 15. (a) The department shall maintain a list of persons certified to inspect and clean property that is polluted by a contaminant. The list may specifically note persons with particular expertise or experience in the inspection or cleanup of property contaminated by chemicals used in the illegal manufacture of a controlled substance (as defined in IC 35-48-1-9) or by waste produced from the illegal manufacture of a controlled substance.

(b) The department may specify by rule that a person who meets certain qualifications prescribed by the department is a person certified to inspect and clean property that is polluted by a contaminant.

(c) The department shall adopt rules under IC 4-22-2:

(1) to implement this section; and
(2) concerning the inspection and remediation of contaminated property.
The "department" as used here is the Department of Environmental Management.

This is odd, because this is the first time since IDEM was created in 1986 that the General Assembly has required IDEM to adopt a rule. The environmental rulemaking authority is otherwise the responsibility of the Indiana environmental boards. Special statutes govern their rulemaking procedure, laws designed to insure adequate public notice, opportunity to testify, etc. Environmental rulemaking as a result is much more prolonged than that of other state agencies, but intended to allow more input from those impacted.

The 2005 meth law, however, states that IDEM shall do the rulemaking itself. That means one hearing, conducted not in front of a board but a hearing officer -- in this case an employee of IDEM. Thereafter, the IDEM Commissioner needs simply to sign the rule.

And that is how things stands today. Here is the proposed rule, #06-125, published in one of the final issues of the Indiana Register. A public hearing was held on 6/27/06. All that remains now is for the IDEM Commissioner, after reviewing the public comments, to finalize the rule.

What does the proposed rule require? Think of a person with a rental property, or a farmer with an outbuilding, that had been turned into a meth lab without the knowledge of the property owner. The duties of the property owner are described starting on p. 6 of the document. The owner of the contaminated property shall clean up the property as required under the new rule before further use of the property or transfer of any interest in the property. (318 IAC 1-3-2) The property must be decontaminated under the supervision of a qualified inspector. (318 IAC 1-3-5)

How much is this going to cost the property owner? Nowhere in the information in pages 1 and 2 of the proposed rule does anyone venture a quess. But the cleanup contractors will make money. See this statement on p. 2:

[T]he economic impact of this rulemaking cannot be meaningfully quantified at this time. Compliance with this rule will be a significant cost to property owners affected by this rule. At the same time, compliance with this rule would allow remediation contractors, wrecking contractors, and other contractors to receive payment for services performed under this rule. The Department expects the costs to property owners to roughly balance the benefits to contractors who clean up these properties.
Well yes.

So does this proposed rule go beyond the directive set in the authorizing statute? Or is it the statute that places these responsibilities on the property owner? In either case, if not the property owner, then who should be responsible for the cost of the cleanup?

Posted by Marcia Oddi on Sunday, August 06, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Courts - Still more on: South Bend Osco Triple Murder Trial

On July 10 the ILB had an entry that began: "The ILB generally doesn't cover murder trials, but ...". The entry pointed out that this was Allen's third trial. His first trial ended in a hung jury. Then, "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" (quoting from South Bend WNDU 16). The entry, in the final sentence, noted that the South Bend Tribune had published a profile of one of the jurors, Juror No. 12, even before the new trial began.

On July 20th the ILB posted an entry quoting from a Tribune story headlined "Second hung jury for man accused of killing 3 in South Bend." The story noted: "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."

Today, this Tribune opinion piece is headlined "Should there be a fourth trial?" It begins:

We do not know whether St. Joseph County should try Christopher Allen for the fourth time on charges that in 1990 he brutally murdered three employees of the Osco drugstore on Western Avenue.

We do know that it will be a very difficult decision for Prosecutor Michael Dvorak.

And we are certain that the decision should not be treated as a political issue in the upcoming race for St. Joseph County prosecutor.

All three trials were conducted in New Castle, Ind., in Henry County, by special prosecutors. The first trial, in 2001, ended in a hung jury. Allen was convicted in the second trial, in 2002, but the conviction was overturned by the Indiana Court of Appeals. The most recent trial ended on July 20 with a hung jury.

St. Joseph County would have to pay the cost of a fourth trial, as it has the first three. That would include the cost of Allen's defense attorneys. It would be expensive, but we think that is the least of the considerations facing Dvorak.

Posted by Marcia Oddi on Sunday, August 06, 2006
Posted to Indiana Courts

Saturday, August 05, 2006

Law - "In Case of Emergency: Will Your Company Be Prepared?"

"In Case of Emergency: Will Your Company Be Prepared?" is the title of what looks to be a really useful article from the Texas Lawyer, available via Law.com.

Posted by Marcia Oddi on Saturday, August 05, 2006
Posted to General Law Related

Law - When judges' husbands run for office

Some quotes from a story today in the Washington Post:

She is smart, articulate, and accomplished and grew up in a prominent political family. Baltimore Mayor Martin O'Malley (D) could hardly ask for a spouse better suited for the campaign trail -- in fact, that's where they met.

But as the mayor runs for governor, Catherine Curran O'Malley may be the greatest asset he is not able to tap.

Besides being the mayor's wife, Katie O'Malley is a district court judge in Baltimore -- a job that effectively mutes her this political season. Like other Maryland judges, she is prohibited by a judicial code of conduct from engaging in partisan political activity. * * *

Anne Holton, first lady of Virginia, found herself in a similar spot last year when her husband, Timothy M. Kaine (D), ran for governor while she served on the bench. After Kaine won, Holton stepped down -- something Katie O'Malley said she does not plan to do. * * *

The Maryland Code of Judicial Conduct prohibits "any partisan political activity" by judges unless they are running their own campaign. But the code provides no specifics on what activity is permissible, and a judicial ethics committee has offered only limited guidance in recent decades.

"There is no clear bright line," said John H. Tisdale, a circuit judge in Frederick County who chairs the Maryland Judicial Ethics Committee. But he said there is some room for judges to act as supportive spouses. "She doesn't have to move out of the house and give up her right to associate with him."

That, O'Malley aides say, leaves a good deal of gray area to negotiate -- and generates occasional flak from Republicans who say the O'Malleys are pushing the limits.

Katie O'Malley accompanied her husband when he announced his bid for governor last fall, but she had no speaking role. Last month, she avoided a fiery campaign rally outside the State House in Annapolis on the day O'Malley filed as a candidate. But she met him and his supporters at the end of a march to state election board headquarters.

"Judge O'Malley!" a sweat-soaked mayor exclaimed, before giving his wife a hug and kiss. * * *

Although Holton chose to step down from her post, the spouses of at least three current U.S. governors are judges.

Marjorie Rendell, the wife of Pennsylvania Gov. Edward G. Rendell (D), sits on the 3rd U.S. Circuit Court of Appeals; Mary Pawlenty, the wife of Minnesota Gov. Tim Pawlenty (R), is a district judge in the state; and Gary Sebelius, the husband of Kansas Gov. Kathleen Sebelius (D), who refers to himself as the state's "first dude," is a federal magistrate judge.

A former prosecutor in Baltimore County, Katie O'Malley was appointed by then-Gov. Parris N. Glendening (D). As a district judge in Baltimore, she handles a range of cases, many related to drug use, domestic violence and traffic violations.

Posted by Marcia Oddi on Saturday, August 05, 2006
Posted to Courts in general

Ind. Law - "Sadly, the Legislature doesn't have a Stupid-O-Meter on which to test new laws"

The 2006 fireworks law changes are the subject of a column recently in the Munster (NW Indiana) Times by Phil Wieland headlined "Make state safe from Legislature." Some quotes:

Once again we have to fight the enemy there so we can be safe here. You just don't expect it to be the case when "there" is the Indiana General Assembly.

The Valparaiso City Council fired the first "smarten up" bomb at the Legislature last week, passing a resolution asking what the heck those boneheads were smoking when they passed the law legalizing the sale of every explosive short of a nuke to anyone meeting the strict requirement of being physically capable of pulling the cash from their pockets to pay for them.

Well, it doesn't actually say that. Instead, the council wants the law tweaked to give municipalities some control over when and where the terrorists can set off their fireworks. The notion is to control it through the city's nuisance ordinance. Too bad we can't control the Legislature the same way.

Thanks to the new law, instead of worrying about a handful of al-Qaida or other bat-guano crazy fundamentalist fanatics blowing up the state, we now have the potential for 5.5 million fireworks fanatics blowing up the state. The difference is that we are probably safer from the al-Qaidas of the world than from the fireworks boneheads.

Terrorists are better trained and focused on particular targets. Fireworks boneheads basically know how to light a fuse. After that, it's easier to predict where the next asteroid will hit the Earth than where those exploding rockets will land.

According to Valparaiso Councilman John Bowker, the reason the legislators passed the law was that nobody spoke against it. Sadly, the Legislature doesn't have a Stupid-O-Meter on which to test new laws, and, even if it did, it would be no guarantee against stupid laws being approved.

The Valparaiso resolution doesn't ask that the state again ban the sale of fireworks. That's not likely because the law has a tax that provides the state with millions of dollars. The legislators do realize fireworks can be dangerous, so the tax will be used to build regional fire training centers. That's like legalizing crack but taxing it to build drug treatment centers * * *.

Posted by Marcia Oddi on Saturday, August 05, 2006
Posted to Indiana Law

Not Law - Inefficiency exists outside government also

Someone at the Lafayette Courier-Journal apparently neglected to renew their doamin name. The result -- they are not currently available online -- see here.

When they renew, we will be able to read the online C-J again.

A shame, since they just recently spiffed up their site.

Posted by Marcia Oddi on Saturday, August 05, 2006
Posted to General News

Ind. Decisions - More on: Supreme Court denies transfer in the Morgan County same-sex adoption case

Cordell Eddings of the Indianapolis Star has a story today headlined: "Challenge fails: Adoption by gay couples stands State supreme court declines to hear case." Some quotes:

Same-sex couples in Indiana will be allowed to adopt children after the Indiana Supreme Court let a lower court ruling stand.

In a 4-1 decision Friday, the state's highest court declined to hear arguments against unmarried couples adopting, effectively upholding a lower-court ruling that allowed adoption by joint petition -- a procedure that gives both partners equal custody.

"This is a very important victory for children and the lesbian and gay community," said Patricia Logue, who represented Kim Brennan and Becky Hamilton.

In 2004, the Morgan County couple's adoption of a baby girl was approved by a judge in Marion County but denied by a judge in Morgan County.

Brennan and Hamilton, who could not be reached for comment, have foster and child-care experience and have lived together for more than 10 years.

Logue said the decision would mean more homes for children who wouldn't have one otherwise. She said it's also a victory over the bias against gays and lesbians.

"The facts speak for themselves," said Logue. "Two people can create a caring, stable, loving home for children without being married."

But Justice Brent Dickson wrote a three-page dissent suggesting the Supreme Court should have heard the case in order to clarify issues regarding same-sex adoption.

"The court is missing a valuable opportunity to address and resolve important questions left undecided," Dickson said. "By denying this case, we are missing a valuable and important opportunity to minimize uncertainty and confusion."

The decision also disappointed state Sen. Jeff Drozda, R-Westfield, who is opposed to same-sex adoptions. He said the courts were not representing the views of Hoosiers. He said he will introduce legislation in 2007 to bar same-sex couples from adopting. * * *

Attorney General Steve Carter, who could not be reached for comment, sought the Supreme Court review after the Indiana Court of Appeals overturned a ruling by Morgan Circuit Judge Matthew Hanson.

Hanson opposed the joint petition of Hamilton and Brennan because, he said, Indiana law limits adoption to married couples and individuals. State law prohibits same-sex marriages.

The appeals court ruled that adoptions by unmarried couples were legal and there was nothing in Indiana code that limits a lesbian couple's right to adopt.

Previously, adoptions by unmarried couples were granted only if the child was either the offspring of one partner or already had been adopted by one of the partners, rights that have been granted by other recent appellate decisions.

The appeals court ruling placed Indiana among about 25 states that allow joint adoptions by unmarried couples, Logue said.

Ashley Herer of the AP wrote this report, first posted Friday by the Chicago Tribune online, as in today's paper. Some quotes:
INDIANAPOLIS -- Indiana's Supreme Court let stand a ruling that allowed unmarried couples, including those of the same sex, to adopt children through a joint petition that gives both partners equal custody.

In a 4-1 decision posted Friday, the high court refused to hear arguments in the case that the Indiana Court of Appeals ruled on in April.

"The court acknowledged that two people can create a caring, stable, loving home for children without being married," said Patricia Logue, senior counsel for Lambda Legal's Midwest office in Chicago. "Not only is this a decision that will keep our clients' family intact, but this is a victory for the thousands of children in Indiana desperately in need of a caring home."

Logue represented a lesbian couple from Morgan County whose 2004 attempt to adopt a baby girl was approved by a judge in one county but denied by a judge in another. * * *

The earlier Appeals Court decision overturned a ruling by Morgan Circuit Court Judge Matthew Hanson, who opposed the joint petition of Becki Hamilton and Kim Brennan because he said Indiana law limits adoption to married couples and individuals. State law prohibits same-sex marriages.

The appeals court said state law requires married persons seeking adoption to petition jointly.

Justice Brent Dickson, in a three-page dissent, said the Supreme Court should have heard the case.

"This court is missing a valuable opportunity to address and resolve important questions," Dickson wrote. * * *

Hanson was conducting hearings to terminate the parental rights of the girl's birth mother when he learned that Hamilton and Brennan were living together and not married. He ordered the Office of Family of Children to look for a married couple to adopt the baby instead.

The couple turned to adjacent Marion County in their bid to keep the girl, and a probate court judge granted the adoption, saying it was in the child's best interest to be with the couple.

Hamilton and Brennan have retained custody of the child during their appeal.

Posted by Marcia Oddi on Saturday, August 05, 2006
Posted to Ind. Sup.Ct. Decisions

Friday, August 04, 2006

Ind. Decisions - Transfer list for week ending August 4, 2006

Here is the Indiana Supreme Court's transfer list for the week ending August 4, 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, August 04, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending August 4, 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 August 4, 2006.

Posted by Marcia Oddi on Friday, August 04, 2006
Posted to NFP Lists

Ind. Decisions - Correction to: Supreme Court denies transfer in the Morgan County same-sex adoption case

Please see correction to the vote in this morning's entry - scroll down or use this link.

Posted by Marcia Oddi on Friday, August 04, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Lake County scofflaw jurors do jail time

Ruth Ann Krause of the Gary Post-Tribune reports today:

CROWN POINT — A second round of jurors who failed to meet their obligation during two high-profile murder trials faced the consequences Thursday.

Lucretia Walker, who arrived late two days in a row for juror questioning in the Darryl Jeter death-penalty murder trial in May, spent three hours in a holding cell.

The Rev. Charles Jones agreed to pay a $100 fine in lieu of three hours in custody.

Two other prospective jurors will get another chance to serve.

Three people — Tiffany Finch, Tracy Kammer and Kenyon Flax — will be arrested, thrown in jail for three hours and released after they post a $100 cash bond.

Lake Superior Court Judge Thomas Stefaniak Jr. called juror scofflaws to court Thursday to explain their absence.

Curtis Johnson admitted he skipped out during a break in the Jeter jury selection and missed jury selection for the Natalie Fabian Evans murder case because he had family and work emergencies.

“In all candor, when I walked into court, it was my intention to place you in jail for contempt of court,” Stefaniak said.

The man explained, however, that he contacted jury commissioner Martin Goldman and explained his family and job emergencies. Stefaniak said the man would get another chance to serve on a jury within the next two years.

The second man, Alexander Jimenez, who will be called again for jury service, said he’d moved from his parents’ home and discovered after they returned from vacation that he was called back to court in mid-June to explain why he didn’t show up for the Jeter case.

Posted by Marcia Oddi on Friday, August 04, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues two today

In Keith Combs v. State of Indiana, a 22-page opinion (with a concur/dissent beginning on p. 18), Judge Mathias writes:

Concluding that the trial court did not abuse its discretion when it admitted the evidence obtained during the search of Combs’s vehicle, but that Combs’s sentence is inappropriate in light of the nature of the offense and the character of the offender, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion. * * *

Here, as in Myers, the narcotics-detection canine alerted to the exterior of the vehicle and the deputies believed that Combs was under the influence of methamphetamine due to his paranoid behavior, rapid speech, and dry mouth. Under these facts and circumstances, the deputies had probable cause to believe that the vehicle contained contraband or evidence of a crime. Moreover, the vehicle was “readily mobile.” Therefore, we conclude that the search of the vehicle was proper and the trial court did not abuse its discretion when it admitted the evidence obtained during the warrantless search. * * *

We agree with Combs that the trial court should not have considered the positive test result for methamphetamine as an aggravating circumstance because the State never proved the positive test result beyond a reasonable doubt. See Blakely v. Washington, 542 U.S. 296, 301 (2004) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). * * *

ROBB, J., concurs.
VAIDIK, J., concurs in part and dissents in part with opinion. [which begins]

I agree with the majority that the warrantless search of the car was proper. However, I part ways with the majority’s analysis and conclusion on the inappropriate sentence issue. I therefore concur in part and dissent in part.

In Teresa C. Mills v. Carlos Berrios, M.D. & Clarian Health Partners, an 11-page opinion, Judge Crone writes:
Case Summary. Teresa C. Mills appeals the trial court’s entry of summary judgment in favor of Carlos R. Berrios, M.D., OrthoIndy, and Clarian Health Partners d/b/a Methodist Hospital (collectively referred to as “Healthcare Providers”). We reverse and remand.

Issue. The dispositive issue is whether the trial court abused its discretion in finding that the admissible portions of the affidavit of Mills’s medical expert were legally insufficient to establish a genuine issue of material fact. * * *

We conclude that, even without the portions of Dr. Pohnert’s affidavit that refer to Mills’s affidavit, Dr. Pohnert’s affidavit is sufficient to establish a genuine issue of material fact as to whether Healthcare Providers complied with the appropriate standard of care. Thus, the trial court abused its discretion in finding that the portions of Dr. Pohnert’s affidavit that remained were legally insufficient to oppose the designation of Healthcare Providers. We therefore reverse the trial court’s entry of summary judgment in favor of Healthcare Providers and remand for further proceedings. Reversed and remanded.

Posted by Marcia Oddi on Friday, August 04, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court denies transfer in the Morgan County same-sex adoption case [Corrected]

Exclusive. The Indiana Supreme Court, apparently late yesterday, denied transfer in the Morgan County same-sex adoption case, In the Matter of Infant Girl W.

Here is the April 13th Court of Appeals ruling (3rd case).

This week's transfer list is not yet available, but the dockets show that the votes were 3 to deny transfer, 1 to grant (Dickson), and one abstention (Sullivan). Here is the 49A docket; here is the 55A docket; the cases were consolidated under the latter number.

Justice Dickson wrote a dissent, which is available here. J. Dickson references the Court's Nov. 23, 2005 decision in King v. S.B. For more on that ruling, see this ILB entry from the same date, and this one from Nov. 28, 2005.

For background, here is a list of some relevant ILB entries.

[Correction] Thanks to an unidentified caller who left me a voice-mail message, I am able to correct an error in the above report. In In re W., the 49A case out of Marion County, Justice Sullivan abstained. But in the 55A case out of Morgan County, Justice Sullivan did not abstain, and the vote was 4-1 to deny transfer.

Posted by Marcia Oddi on Friday, August 04, 2006
Posted to Ind. Sup.Ct. Decisions

Thursday, August 03, 2006

Ind. Decisions - 7th Circuit decides environmental insurance case re duty to indemnify

The case is Keystone Consolidated Industries v. Employers Ins. of Wausau, a 17-page opinion. It is an appeal from the CD of Illinois. Judge Cudahy writes:

Keystone Consolidated Industries, Inc., and Valhi, Inc.1 (collectively, Keystone) operate a number of mills that manufacture wire products, chemicals and other industrial materials, and have done so in some capacity since the early 1900s. Beginning in 1942 and continuing through the late 1980s, Keystone purchased dozens of comprehensive general liability and excess umbrella insurance policies from Employers Insurance Company of Wausau (Wausau). Keystone seeks indemnification from Wausau for approximately $13.5 million, which represents the costs it has incurred or expects to incur cleaning up environmental damage that its operations caused at four sites in Illinois and Indiana. Wausau has refused to indemnify Keystone on the theory that the policies require indemnification only when a lawsuit triggers its duty to defend. The district court agreed with Wausau and granted its motion for summary judgment. Because, under Illinois law, the duty to indemnify may arise even in absence of a lawsuit triggering the duty to defend, we reverse the judgment of the district court and remand for further proceedings. * * *

Thus, because the district court erroneously concluded that Wausau’s duty to indemnify depended on its duty to defend, it never reached the key issue whether Keystone undertook its remedial action voluntarily. The court’s incorrect interpretation of Illinois law is enough to justify reversal.

III. Conclusion
In sum, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion. [emphasis added]

Posted by Marcia Oddi on Thursday, August 03, 2006
Posted to Ind. (7th Cir.) Decisions

Law - More on: Lawyers faint, become speechless, in stories today

On March 26th, an ILB entry pointed to a story about a North Dakota assistant attorney general who became speechless during his argument before the 8th Circuit. Here are a few quotes from the AP story at the time (no longer available online) published in the North Dakota Grand Forks Herald:

After making a few remarks, Haas was able to speak only a few words at a time, standing silent at the lectern for about 20 seconds at a time before sitting down. He appeared to be stricken by stage fright. * * *

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

Indeed. According to this report today via How Appealing, the 8th Circuit has ruled in favor of North Dakota in the suit brought by the State of Minnesota. According to the March 26th AP story referenced above:
The dispute is about North Dakota restrictions on out-of-state hunters that mainly affect duck and goose hunters, but also extend to pheasants and other types of game.

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

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

Here is a link to today's 8th Circuit opinion, affirming the District Court.

Posted by Marcia Oddi on Thursday, August 03, 2006
Posted to General Law Related

Ind. Decisions - The Ind. Court of Appeals and the U.S. Supreme Court

Michael Ausbrook of INCourts.com has just posted a fascinating entry on a Court of Appeals decision on July 14th in the case of Frye v. State. The entry is titled "Frye: Controlling Precedent--Do We Care?"

The ILB admits, with some embarrassment, that it skipped over (3rd case) Frye the day it came out because it looked boring.

Here is a sample from Michael's entry:

Back on July 18th, the Court of Appeals came out with Frye v. State. It's a Crawford case decided a month after the U.S. Supreme Court, in Hammon v. Indiana--the companion case to Davis v. Washington--, reversed the Indiana Supreme Court's decision in Hammon v. State.

The Court of Appeals does something in Frye that I don't think I've ever seen before: it goes through the Indiana Supreme Court's Hammon analysis, using it for precisely the proposition that SCOTUS rejected and reversed on 29 days previously. And I do not know whether it makes it better or worse that the Court of Appeals drops a footnote saying that it is aware of the SCOTUS decision, but the testimony at issue, it thinks, is non-testimonial within the meaning of the SCOTUS decision.

Here is the June 19 ILB entry reporting the U.S. Supreme Court's reversal of Hammon.

Posted by Marcia Oddi on Thursday, August 03, 2006
Posted to Ind. App.Ct. Decisions

Courts - More on: Kentucky judge criticizes lethal-force law

On July 28, the ILB posted an entry quoting from an AP story that began:

LEXINGTON, Ky. — A judge has criticized a new Kentucky law that allows people to shoot home intruders without being charged with a crime.
The entry noted that Indiana's General Assembly passed a similar law earlier this year.

Here, thanks to the Kentucky Law Blog, is another story on the case, this one from yesterday's Lexington Herald-Leader, reported by Brandon Ortiz. Some quotes:

Continuing confusion over Kentucky's new "home intruder" law led prosecutors to negotiate a last-minute plea offer with James Adam Clem, who is on trial on murder charges, they said in court yesterday evening.

Prosecutors, defense attorneys and a judge struggled to write jury instructions to conform with the recently enacted law, which grants immunity to homeowners who use deadly force to defend themselves against a robber or attacker.

It is thought to be the first murder case in the state where the new law has come into play.

Clem, 27, says he killed Keith Newberg, 25, in self-defense after Newberg allegedly attacked him after entering Clem's apartment on Aug. 9, 2004. Clem acknowledged that he had let in Newberg, who had come to collect on a drug debt, according to witnesses.

The home intruder law, also called the castle doctrine, broadly expands the right of self-defense. Some prosecutors and the judge hearing Clem's case, Sheila Isaac, have criticized it as being poorly written, confusing and vague.

One problem, Isaac said yesterday, is that the law provides no guidance for what happens once a case has already reached the courts.

After making little progress on how to explain the law to jurors, defense attorney Russell Baldani said, "I got an idea. Let's talk about a plea offer."

"You go to the victim's family and say this case is likely to be litigated forever," Baldani said. "There's a chance he could be found not guilty. I told (the prosecution) that from the start."

With the courtroom empty but in-house cameras rolling, the judge and attorneys candidly discussed a plea agreement. The discussion could be viewed on a closed-circuit TV provided for reporters.

Defense attorneys and Isaac said it was really a second-degree manslaughter case, with a murder conviction unlikely.

Prosecutors agreed, but expressed doubt that their boss, Commonwealth's Attorney Ray Larson, would approve a plea deal. The conservative prosecutor has a policy against negotiating with accused murderers, though he occasionally makes exceptions. * * *

The law was passed this spring after lobbying by the National Rifle Association.

University of Kentucky law professor Robert Lawson, the primary author of Kentucky's penal code, has said the new law is unnecessary because Kentuckians have had the right to self-defense since a 1931 court decision.

Contrary to the claims of the legislation's supporters, the state has never required homeowners to retreat before resorting to self-defense, Lawson said.

Other critics have worried it will encourage people to shoot first and ask questions later.

During testimony yesterday, prosecutors played an audio recording of an 80-minute police interrogation in which a detective grilled Clem for leaving Newberg to die in his Belleau Wood apartment.

Jurors also saw gory crime scene photos.

After bashing Newberg's head five times with a bronze lamp, Clem nailed a sheet over a window so outsiders could not see how messy it was inside, he said. Clem said he then threw a moving truck's furniture pad over Newberg -- who was still breathing -- washed his hands, put on pants, grabbed a pitcher of Kool-Aid and Newberg's cell phone and headed for nearby woods. He never called 911.

Posted by Marcia Oddi on Thursday, August 03, 2006
Posted to Indiana Courts

Ind. Decisions - Two today from the Court of Appeals

In Michael Dedek v. Mary Dedek, a 9-page opinion, Judge Vaidik writes:

Because of Michael Dedek’s (“Father”) disability, his children received a lump sum payment of retroactive Social Security disability benefits as well as monthly benefits going forward. Father sought to have this lump sum payment credited against his rather substantial child support arrearage, and the trial court refused to do so. In light of the Indiana Supreme Court’s recent opinion in Brown v. Brown, we hold that Father is entitled to a credit against his arrearage, but only for the arrearage accumulated after he filed his petition to modify his child support based on his disability. We also hold that the trial court erred by applying direct payments Father made to his ex-wife Mary Dedek (“Mother”) to the children’s educational expenses rather than to his child support arrearage. We therefore reverse and remand.
In Richard Rolland v. State of Indiana, a 10-page opinion, Judge Sullivan writes:
Following a jury trial, Appellant, Richard Rolland, was convicted of two counts of Theft as Class D felonies1 and one count of Fraud on a Financial Institution as a Class C felony. Upon appeal, Rolland presents the following issues for our review: (1) whether the trial court abused its discretion in admitting into evidence a document under Indiana Evidence Rule 803(6), the business records exception to the hearsay rule, and (2) whether the evidence on the issue of identification is sufficient to support his convictions. We affirm.

Posted by Marcia Oddi on Thursday, August 03, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Vigo County Clerk’s office relocates, but not without controversy

The Terre Haute Tribune-Star reports, in a story by Howard Greninger:

The Vigo County Courthouse will close its doors to the public Friday as workers move the county clerk’s office to a new location as part of the building’s $10.5 million interior renovation.

Courts will be closed since the clerk’s office is a integral part of the court system, said Clerk Patricia Mansard.

When the courthouse reopens Monday, public access no longer will be from the north side of the courthouse, but from its permanent new entrance on the west side, facing Terre Haute’s City Hall.

The move is not without controversy, as Mansard has misgivings over functionality and use of space for her office. Much of the clerk’s office will be moved to the ground level from the second floor, while some offices will be moved back to the second floor as the renovation project nears completion.

Today, the clerk’s marriage license office and the absentee voter office will be relocated to the ground level. On Friday, the main office, administration office and the election services for the clerk’s office are moving to the ground floor.

“This is a large, complex office,” Mansard said. “We have all kinds of computer systems, those that are linked to the statewide voter registration, to a judicial computer system, and the state child support system.

“It is more than just a few desks and packing up personal belongings. We also have massive amounts of records,” the clerk said.

Mansard said she “had never been offered the opportunity” to talk to county commissioners about functionality of space, adding her new office will be spread throughout several floors of the courthouse.

“We have talked to the architect and that was a long time ago. I think [the architect] was under the impression that under a record scanning project that all records would go away and we would not need space for records,” the clerk said.

“I appreciate that this is a massive undertaking, but I think treating people with respect and trying to communicate could go a long way in ensuring the project works out well,” Mansard said.

Vigo County Commissioner Paul Mason said the clerk, as well as county judges, have been included in previous meetings about the interior project. To make room for a new sixth court, Mason said, the clerk’s office was moved to the ground floor, called the first floor.

“The first floor is the most convenient location for the public to just walk into the courthouse, do their business in the clerk’s office and leave,” Mason said.

The clerk’s office will gain nearly 2,000 square feet of office space when renovation is complete, plus a heated and cooled storage space on the fifth floor, said John M. Hanley, operations manager for Construction Technology Associates, overseeing the renovation project.

Posted by Marcia Oddi on Thursday, August 03, 2006
Posted to Indiana Courts

Wednesday, August 02, 2006

Law - Boston Globe 4-part series titled "Debtors' Hell"

This Boston Globe series, with the 4th and final part today, is an "investigation into the world of consumer debt in the United States [in which the Globe] found a system where debt collectors have a lopsided advantage, debtors are often treated shabbily by collectors and the courts, and consumers can quickly find themselves in a life-upending financial crisis."

Access the main page for the series here.

Posted by Marcia Oddi on Wednesday, August 02, 2006
Posted to General Law Related

Law - What now with Blakely-Booker?

Here is a June 23, 2004 ILB entry about a judge in Massashusetts who had issued a 177-page sentencing memorandum, declaring the federal sentencing guidelines unconstitutional, one week before the Supreme Court's decision in Blakely v. Washington.

That was the beginning of a sentencing law roller coaster ride that hasn't stopped yet. Along the way, the roller coaster swept up Law Prof. Douglas Berman, who started his Sentencing Law Blog to track Blakely and its ramifications and "clarifications" and along the way became the chronicier of Blakely and all it has wrought, and his blog became the must-read resource to whom all turn.

The judge, Chief Judge William Young, USDC, District of Mass., this week issued another sentencing memorandum, albeit only 141-page long. He begins by quoting Professor Berman:

“What is overlooked in post-Booker discussions is the fact that, for seventeen years, federal courts had been sentencing offenders unconstitutionally.”
A quote from pp. 8-11 of the ruling:
II. A “Muddled” Legal Landscape: The Two Faces of Booker

Eighteen months ago the Supreme Court issued its decision in United States v. Booker. 543 U.S. 220 (2005). The case had promised to be the culmination of a reinvigoration in the criminal defendant’s Sixth Amendment right to trial by jury, which the Court had begun several years before in Apprendi v. New Jersey. In Apprendi, the Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

The consequences of Apprendi for the Federal Sentencing Guidelines were immediately apparent. Though the facts of Apprendi involved legislatively enacted statutes, the constitutional rule of that case seemed equally to apply to all judge-based, determinate sentencing schemes. This Court so held on June 18, 2004, in United States v. Green, 356 F. Supp. 2d 259 (D. Mass. 2004), which ruled the Guidelines unconstitutional. Green’s reasoning was confirmed days later in Blakely v. Washington, 542 U.S. 296 (2004), which invalidated the State of Washington’s nearly identical sentencing apparatus. Though the Supreme Court officially reserved the question, after Blakely it was quite obvious to many other observers that the Guidelines were unconstitutional. As soon as “the [Supreme] Court could get before it a case properly presenting the constitutionality of the mandatory [federal] Guidelines”, they likewise were invalidated. Booker, 543 U.S. at 313 (Scalia, J., dissenting in part).

Booker could have been the simple, logical extension of the Supreme Court’s Apprendi jurisprudence. Instead, the Court produced a fractured, 124-page decision with two majority opinions and four dissents. What remained after the verbal cannonades was this:

  • One majority opinion (“Constitutional Booker”) which ruled that the Guidelines violated the Sixth Amendment. This opinion was written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg.
  • Another majority opinion (“Remedial Booker”) which ruled that the way to rectify the constitutional infirmity was to make the Guidelines advisory rather than mandatory. This opinion was written by Justice Breyer and joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg.
How logically to implement these two majority opinions has been a question with which the lower federal courts have been grappling ever since.

Posted by Marcia Oddi on Wednesday, August 02, 2006
Posted to General Law Related

Law - "The penal code shall be founded on the principles of reformation, and not of vindictive justice."

"The penal code shall be founded on the principles of reformation, and not of vindictive justice." So reads Article 1, Sec. 18 of the Indiana Constitution.

That language came to mind today as I was reading an education column by Samuel G. Freeman in today's NY Times. The column is titled "Tasting Freedom’s Simple Joys in the Barnes & Noble." It is about prisoners:

[making] the transition from inside, where every waking moment is regimented, to outside, where freedom is formless, Ms. Link has the job of introducing the inmates to recreational activities other than addiction and mayhem.

For all the bravado, the rap sheets and the tattoos, these men had lived what Darryl Hooper, the director of Tully House, called a “narrow existence.” Most had never filed a tax return, managed a checking account, gone to a baseball game, worn a coat and tie, read aloud to their children. Ms. Link taught them how to throw a Frisbee and fly a kite, acts of almost surreal innocence.

The idea of going to a bookstore first came up nearly three years ago, during a discussion of leisure. A couple of the men then said they wanted to learn new things. Someone else said he wanted to do research. Ms. Link thought of the Barnes & Noble bookstore 15 minutes west of Tully House.

Posted by Marcia Oddi on Wednesday, August 02, 2006
Posted to General Law Related

Law - An error in the Deficit Reduction Act spurs suits

The National Law Journal reports today, via Law.com, a story that may interest only legislative geeks (myself included):

An error in President Bush's Deficit Reduction Act has proven a Pandora's box, triggering lawsuits that question the legality of everything from new Medicare reimbursements to increases in court filing fees.

At the center of this legal snafu?

A typo that caused the House and Senate to approve slightly different versions of the bill before it was signed into law. The mistake dealt with reimbursements for medical equipment rentals for Medicare patients.

The Senate version included 13 months of funding, but a clerk mistakenly changed the wording to read 36 months, which is what the House approved. Bush signed the 13-month version. The mistake has caught the attention of lawyers and lawmakers, who, if successful in proving the act unconstitutional, can nullify the act, including parts they wish to alter.

Plaintiffs -- who in order to file suit have to prove that they were affected by the act -- include an Alabama lawyer who believes that the law will hurt his elderly clients; 11 Democratic congressmen who are challenging the constitutionality of the act; and Public Citizen, a consumer watchdog group upset over the $100 filing fee increase for federal civil litigation. The U.S. Department of Justice has declined comment on any litigation involving the act. * * *

"The Constitution requires that both houses of Congress pass exactly the same bill," said Murray Klein of Reed Smith's Princeton, N.J., office, who is challenging the act on behalf of 15 Tennessee hospitals. "Plus, the president knew when he signed that bill that it had not passed both houses ... but he signed the bill anyhow." * * *

In court documents, the government has defended the constitutionality of the law, arguing that it has been signed by the leaders of both the House and Senate.

"Once an enrolled bill has been attested to by the Speaker of the House and President of the Senate -- as both sides agree is the case with the Deficit Reduction Act -- its authentication as a bill that has passed Congress should be deemed complete and unimpeachable," the government argued in court documents.

The government also has asserted that the courts should not "look behind an enrolled, certified bill to evaluate the inner workings of Congress.

"Courts must instead defer to the attestations of congressional leaders as to what has been duly enacted, out of respect for the coequal legislative branch of government," the government said.

What about Indiana? In a number of cases over the years, the Indiana Supreme Court has followed the enrolled act doctrine. See this 8/25/03 entry from the "old" ILB, titled "Indiana follows the Enrolled Bill Rule (Enrolled Act Doctrine) – doesn’t that mean that the Court can’t look into internal legislative procedures, such as when a bill was returned by the Governor?"

Posted by Marcia Oddi on Wednesday, August 02, 2006
Posted to General Law Related

Courts - "N.Y. Panel Disbars Attorney for Forging Judge's Name"

The New York Law Journal has a story today, via Law.com, that reports:

An appeals court in Brooklyn has disbarred an attorney who was convicted of criminal contempt for forging the signature of a Family Court judge during a post-divorce proceeding against her ex-husband.

A unanimous panel of the Appellate Division, 2nd Department, said that it could not offer a lesser sentence for the attorney, Mary K. Henning, despite her otherwise unblemished record.

"Notwithstanding the mitigation advanced by the respondent, inasmuch as her misconduct goes to the heart of the judicial system, the respondent is disbarred," the court wrote in Matter of Henning, 2004-06838.

Henning denies that she forged the signature, despite the findings of a Supreme Court justice and the 2nd Department, according to a phone message from her attorney, Michael G. Santangelo. He said she had moved to Massachusetts and is no longer practicing law. * * *

Ritz said that Judge Joan O. Cooney, the supervising judge of the family courts in the 9th Judicial District, had not signed the stipulation when it was given to him. But Henning later gave the document to school authorities as proof of residence, so she could collect a $16,750 refund for out-of-district tuition. The document had what looked like a "J" on Judge Cooney's signature line.

Supreme Court Justice Robert A. Spolzino, in one of his last rulings before being appointed to the 2nd Department bench, found that Henning had forged the order, though he said there was no "direct evidence" of her crime.

But Justice Spolzino noted that Henning, in a letter to school authorities, described the document as a "stipulation and order," which must include a judge's signature.

"As a litigating attorney, the plaintiff is undoubtedly familiar with the distinction," Spolzino said. Henning testified that she was a litigator, but denied making the mark. * * *

In seeking to limit her punishment, Henning submitted a character letter from Lori A. Sullivan, an attorney who has known Henning for more than 21 years, both personally and professionally.

Sullivan urged the 2nd Department to consider that Henning's misconduct "resulted from extreme emotional and financial pressures causing an uncharacteristic lapse in judgment," the court wrote.

Presiding Justice A. Gail Prudenti and Justices Anita R. Florio, Howard Miller, Robert W. Schmidt and David S. Ritter rejected that argument.

Posted by Marcia Oddi on Wednesday, August 02, 2006
Posted to Courts in general

Ind. Decisions - "Man should stand trial for drunken driving"

"Man should stand trial for drunken driving" is the headline to a story today in the Munster (NW Indiana) Times by Patrick Guinane, reporting on the Court of Appeals decision yesterday in the case of State of Indiana v. Stephen Augustine.

The ILB entry yesterday (3rd case) described it only as "a 9-page opinion, [where] Senior Judge Hoffman concludes: 'The trial court erred by granting Augustine’s motion to suppress. Reversed.'" Today's story provides much more detail:

A Valparaiso police officer didn't need to witness erratic driving before initiating a July 2004 investigation that led to drunken-driving charges against a Porter County man, the Indiana Court of Appeals ruled Tuesday.

Responding to an anonymous caller, an officer found Stephen Augustine parked in his driveway with his engine still running, his speech slurred and with a strong odor alcohol. According to court documents, Augustine admitted to drinking and driving, failed field sobriety tests and later registered a blood-alcohol concentration of 0.22, or nearly three times the legal limit.

The case went out the window when a Porter County judge agreed to suppress the evidence, ruling police had violated Augustine's constitutional protections against unreasonable search and seizures.

But the appellate court reversed that ruling, asserting that Augustine voluntarily rolled down his car window to speak to the officer. The officer's observations, coupled with the earlier tip of an erratic driver with Augustine's plates, were enough to initiate an investigation, the court said.

The ruling means Porter County prosecutors can refile their charges against Augustine.

Posted by Marcia Oddi on Wednesday, August 02, 2006
Posted to Ind. App.Ct. Decisions

Courts - Cincinnati proposes full-time county housing court to eliminate lead hazards

The Cincinnati Enquirer reports today:

The chairman of the city's health committee Tuesday proposed that the city help create a full-time county housing court and use the city's Buildings and Inspections Department to eliminate dangerous lead hazards.

Cincinnati City Councilman Chris Monzel made the suggestions in a motion presented at council's Education, Health and Recreation Committee meeting.

It comes after three public hearings in which the committee heard from lead experts, housing representatives, doctors and parents of children with lead poisoning.

The suggestions will be forwarded to doctors, researchers and landlords for review. It's a template for the city's new lead laws.

Monzel hopes legislation will come before council in September.

"We can't just write a report and throw it on the shelf," Monzel said. "We have to come up with a plan that will be utilized."

He pointed out that the National Centers for Disease Control and Prevention wants lead hazards eliminated by 2010. * * *

Monzel began pursuing lead reforms after publication of "Lead's Dangerous Legacy," a report in The Enquirer that looked at thousands of properties where children have been poisoned with lead.

The stories showed that the Health Department was doing little to prosecute uncooperative landlords.

Hamilton County already has a one-day-a-week housing court presided over by Hamilton County Municipal Court Judge Guy Guckenberger.

Property owners - most of whom have ignored repeated requests to fix their properties - are brought to the court. If they ignore the judge, they could go to jail and rack up daily fines.

Monzel said one day is not enough. The county needs a full-time court, one similar to housing courts in Cleveland and Columbus.

Currently, the Cincinnati Health Department is responsible for making landlords comply with state and city lead laws. Monzel wants to expand the Buildings and Inspections Department's role in lead abatement.

Specifically, he wants to:

Add peeling paint to the inspectors' check lists and make non-compliance a safety violation for housing built before 1978, the year lead-based paint was banned for houses.

Forbid the issuance of building permits for properties with open citations.

Enforce lead-safe renovation work practices in the city, which would include banning uncontained power washing of buildings with lead paint. Those buildings would have to be surrounded with tarps to catch falling paint.

Readers may recall the ILB entry from last Friday qquoting from an Indianapolis Star, headed "Environment - US EPA accuses local woman of failing to disclose possible lead-paint hazards to tenants and buyers."

Posted by Marcia Oddi on Wednesday, August 02, 2006
Posted to Courts in general | Environment

Ind. Courts - Tippecanoe County courthouse security still evolving

Two stories today in the Lafayette Journal & Courier on Tippecanoe courthouse security. The first reviews the courthouse bombing eight years ago. Some quotes:

Eight years later, Tippecanoe County magistrate Norris Wang can still feel the humidity in the air, can still smell the diesel fumes and smoke. He still remembers the feeling of relief.

He was up watching the 11 p.m. news the Sunday night of Aug. 2, 1998, when he first found out that someone had crashed a bomb-laden pickup truck through the Fourth Street doors of the Tippecanoe County Courthouse, lit a fuse and fled.

Wang, the deputy prosecutor who prepared charges in felony cases at that time, had to go downtown to see it for himself.

Into the predawn hours of Monday morning, Aug. 3, 1998, Wang joined dozens of police and fire officials crowded in a conference room at the Lafayette Police Department two blocks away from the courthouse. They brainstormed about who might have been motivated to commit such a crime.

"It never occurred to me that it'd still be unsolved today," Wang said recently.

Investigators suspect the building's sprinkler system put out the fuse before a homemade bomb detonated or ignited several drums of flammable liquids in the bed of the truck.

By all outward appearances, the investigation into the unsuccessful attempt to blow up the courthouse has been stagnant for years. But the legacy of the attack -- the effort to protect the building, its workers and visitors from violence -- is evolving even to this day.

The second story is headlined "County courthouse security still evolving.": Some quotes:
For the past four years, the general public has had to enter the Tippecanoe County Courthouse through the ground-floor entrance off Fourth Street -- the same entrance that a truck bomb rammed in 1998.

The attempted bombing and a series of bomb threats to the courthouse that followed the Sept. 11, 2001, terrorist attacks led to a series of security upgrades. The most extensive of them involved closing seven of the courthouse's eight entrances.

But the flow of visitors to the courthouse will change later this month, after contractors finish rebuilding the Columbia Street entrance. Workers are installing automated doors and a wheelchair ramp to make the south-facing entrance the point of public access.

Chuck Molter, head courthouse bailiff, said the X-ray machine and metal detectors currently operated by bailiffs at the Fourth Street entrance will be moved to the south entrance. Workers also are installing new, high-tech cameras to help bailiffs stationed at Columbia Street monitor the locked, restricted-use entrances at Third and Fourth streets.

Courthouse employees and local attorneys still will be permitted to enter and exit the building at those doors without going through security by swiping a card.

The Fourth Street access primarily will serve as a prisoner entrance.

The primary purpose of all of the changes is to reduce interaction between the public and jail inmates making court appearances, Molter said.

Posted by Marcia Oddi on Wednesday, August 02, 2006
Posted to Indiana Courts

Tuesday, August 01, 2006

Courts - Judge's pet peeves

The WSJ Law Blog has an interesting entry titled "Pet Peeves from the Bench—L.A. Vioxx Judge Sums Them Up." The entry links to

a scalding, no-holds-barred article penned for the Los Angeles County Bar Association, [in which] Judge Victoria Gerrard Chaney, currently hearing the premier Vioxx trial in the Golden State, dishes on the unnerving things lawyers do in the courtroom. Closing arguments in the Vioxx trial start today and the lawyers for both sides might want to make a little pet peeve crib sheet.
And here is the link to Judge Chaney's article.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Courts in general

Ind. Decisions - 7th Circuit decides two from Indiana today

In Patton, Brenda v. Keystone RV Co (ND Ind., Robert L. Miller Jr., Chief Judge), an 11-page opinion, Judge Kanne writes:

This appeal requires us to determine whether the facts of this employment discrimination case constitute an objectively hostile work environment supporting a claim of constructive discharge. The district court thought the case fell short of a hostile work environment, and, therefore, granted summary judgment for the employer. We disagree, and remand for trial. * * *

We think this case, while possibly falling short of the conduct in Taylor and Brooms, meets the standard for a constructive discharge. The picture painted here is not that of an employee offended by a boorish supervisor, or even that of an employee having his or her emotional resolve seriously chipped away on a daily basis by a working environment riddled with sexual harassment. This case presents more: a reasonable fact finder could agree with Patton’s fear that her supervisor was an obsessed man who—based on previous acts showing no regard for Patton’s right to control who could touch intimate areas of her body—was capable of, and desirous of, physically assaulting her in a serious way. We need not conclude that a rape or other assault was likely, but only whether a reasonable fact finder could find that Patton should have quit immediately to protect herself. We think the answer is yes.

III. CONCLUSION
Accordingly, we REVERSE the grant of summary judgment and REMAND for trial.
In Grigsby, Anthony v. Cotton, Zettie (SD Ind., John Daniel Tinder, Judge), an 11-page opinion, Judge Manion writes:
In 1988 an Indiana state court enhanced Anthony Grigsby’s sentence for attempted armed robbery to 50 years’ imprisonment because the court found he was a habitual offender. He had pleaded guilty to armed robbery in 1978 and had been convicted of burglary in 1986. Grigsby filed this petition for a writ of habeas corpus, 28 U.S.C. § 2254, in April 2004, alleging, as relevant to this appeal, that his 1978 guilty plea was unconstitutional because the state failed to provide him counsel during his juvenile waiver hearing (Grigsby was 16 years old when he was arrested). Thus the conviction, he argued, could not properly have been used to enhance his 1988 sentence. The district court denied the petition and this court granted Grigsby a certificate of appealability. See Grigsby v. Cotton, No. 04-3356 (7th Cir. Apr. 14, 2005). We affirm the denial of relief.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals posts four today

Rob Ferguson, DVM v. Sandra Stevens and Donald Stevens, a 7-page opinion, is a factually interesting case about carriage horses in Nashville, Indiana and their veterinary "work certificates." Judge Vaidik writes:

Rob Ferguson, D.V.M., appeals the trial court’s decision to set aside a default judgment in his favor. We find that when service is by publication and the defendant has no actual notice of the default judgment, under Trial Rule 60(B)(4) a showing of a meritorious defense is required before the trial court can set aside the judgment. Because the trial court properly set aside the judgment, we affirm.
In Randy Tony v. Elkhart County, a 16-page opinion (with a dissent beginning on p. 15), Senior Judge Barteau writes:
Plaintiff-Appellant Randy Tony appeals the trial court’s order granting Elkhart County’s motion to dismiss the complaint filed by Tony for retaliatory discharge. We reverse and remand. * * *

MAY, J., concurs.
FRIEDLANDER, J., dissenting with separate opinion:

In this case, the majority creates a new cause of action in Indiana: the doctrine of constructive retaliatory discharge will support a claim of retaliatory discharge for a party who can show he or she was forced to resign as a result of exercising a statutorily conferred right. I believe this constitutes an unwarranted expansion and therefore respectfully dissent.

In its decision, the majority’s analysis focuses to a large extent upon two cases: Frampton v. Central Indiana Gas Co. , 260 Ind. 249, 297 N.E.2d 425 (1973) and Cripe, Inc. v. Clark, 834 N.E.2d 731 (Ind. Ct. App. 2005). In the former, our Supreme Court established, under the public policy exception, a narrow exception to the employment-at-will doctrine for situations in which the employer discharges the employee for refusing to commit an illegal act for which the employee would be personally liable. In the latter, we declined a request to expand the exception by recognizing the constructive discharge doctrine.

The majority, however, embraces Judge Robb’s dissenting views in Cripe as the framework for its analysis in the instant case. This writer was in the majority in Cripe. Although we did not reject the doctrine of constructive discharge out of hand, it may be fairly said that we viewed it with skepticm * * *.

I believe it is the Supreme Court’s province alone to expand the parameters of the “tightly defined exception” it created in Frampton in such a way as to include the situation presented in the instant case. In the twenty-plus years that have passed since that decision was handed down, the Supreme Court has not seen fit to do so. Until it does, I continue to believe that the doctrine of constructive discharge has no application in a case premised upon the retaliatory discharge exception to the employment-at-will doctrine. I would affirm the trial court.

In State of Indiana v. Stephen Augustine, a 9-page opinion, Senior Judge Hoffman concludes: "The trial court erred by granting Augustine’s motion to suppress. Reversed."

In Burl Grayson, et al v. Union Federal Savings & Loan, a 10-page opinion (including a dissent beginning on p. 8), Senior Judge Hoffman concludes:

Therefore, on the basis of the record presented to this court, the trial court’s nunc pro tunc order claiming to dispose of the personal property was made in error. There is nothing before this court to establish that disposition of the personal property was made at the time of the original order, but simply was not included in that original order. Consequently, we must reverse the trial court’s order granting Union Federal’s motion to correct order nunc pro tunc. We remand this matter to the trial court for a trial on the issue of the disposition of the personal property involved.

When this matter is before the trial court, Union Federal can then either account for the personal property, or produce the personal property for disposition in a commercially reasonable sale. See Walker v. McTague, 737 N.E.2d 404, 409-411 (Ind. Ct. App. 2000). Reversed and remanded.

NAJAM, J., concurs.
BARNES, J., dissents with separate opinion. [which concludes]

For these reasons, I do not agree with the majority that this matter should be remanded “for a trial on the issue of the disposition of the personal property involved.” Slip op. at 7. I would affirm the denial of the motion to correct error because the Graysons have neither argued nor established that the trial court improperly made the nunc pro tunc correction to the order.

[Note:] On July 24th, near the end of an entry, I wrote: "BTW, I hadn't known until recently that senior judges write opinions, but don't vote."

Well, apparently I misunderstood what I heard, because in the above opinion, written by Senior Judge Hoffman, the vote is 2-1 if you count Judge Hoffman, but 1-1 if you don't. I just looked in the rules to see what they said about senior judges voting, but found nothing. Was I totally off-base? Let me know.

Thinking back, I don't believe I've seen an opinion where a senior judge is on the panel, but doesn't write the opinion -- i.e. simply votes. Maybe that is the basis of my confusion.

More - After I wrote the above, I read the other three cases issued today. It must be senior judge day, because there is a second opinion today written written by Senior Judge Hoffman, and one by Senior Judge Barteau. The latter is also a 2-1 decision.

Perhaps this would be a more accurate statement: "BTW, I hadn't known until recently that senior judges write opinions, but don't simply vote."

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Ind. App.Ct. Decisions

Courts - Juror was blogger who blogged on case before he was named to jury

The Boston Globe reported on July 21st (thanks to How Appealing for bringing this up last evening, citing a blog titled Stubborn Facts):

CONCORD, N.H. --New Hampshire's Supreme Court is considering whether a convicted rapist got a fair trial after a man who posted disparaging comments about the case on the internet later became foreman of the jury that voted for the conviction.

Stephen Goupil is serving at least 35 years in prison after being found guilty of leading a home invasion in Laconia in April 2004 and repeatedly raping a 24-year-old woman at knifepoint. He was convicted of five counts of rape and one of theft.

Goupil's lawyer argued to the high court on Thursday that Scott Vachon should not have been allowed to sit on the jury because statements he posted on a website that Goupil's lawyer said showed Vachon did not understand the legal system's presumption of innocence.

Goupil's lawyer, Mark Sisti, said the trial court should have set aside the verdicts after learning that Vachon, a member of the Laconia School Board, referred to defendants as "local riff raff" on a personal Web blog four days before jury selection.

Vachon also is said to have posted a statement in which he said he was frustrated to have to serve on a jury that would require him to spend time listening to defendants trying to prove they were innocent.

Sisti told the Supreme Court the comments showed Vachon had prejudged the case and raise questions about Vachon's respect for the American legal system's principle that defendants don't have to prove they are innocent -- the prosecution has to prove they are guilty.

Vachon did not post any comments specific to Goupil, but Sisti said the postings proved he was unfit to judge the fate of his client.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Courts in general

Law - "Superlawyers" and "Best Lawyers," the publications, will fight back

From the New Jersy Law Journal, via Law.com this morning, is this lengthy report that begins:

Super Lawyers and Best Lawyers in America have retained attorneys with gravitas to attempt to reverse an ethics opinion that put them out of business in New Jersey.

Super Lawyers' parent company, Key Professionals Inc. of Minneapolis, hired John Gibbons and Kevin McNulty of Newark's Gibbons, Del Deo, Dolan, Griffinger & Vecchione. Gibbons is a former chief judge of the 3rd U.S. Circuit Court of Appeals.

Best Lawyers in America turned to Stuart Hoberman, immediate past president of the State Bar Association, and Frederick Dennehy, both of Wilentz, Goldman & Spitzer in Woodbridge.

The firms were hired last week to reverse or win modification of Opinion 39 of the state Supreme Court's Committee on Attorney Advertising, published July 24 [185 N.J.L.J. 360]. It bars lawyers from advertising they are in the "Best Lawyers" or "Super Lawyers" rankings and participating in the voting for such honors.

"Best" and "super" are manufactured titles that could lead unwary consumers to believe lawyers so described are superior to other lawyers, a violation of rules against misleading ads, the opinion says.

Lawyers at Gibbons Del Deo and Wilentz Goldman are in both surveys and their advertising reflects their inclusion.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to General Law Related

Law - Authorship gets lost on Web

"Authorship gets lost on Web: Some bloggers don't give credit where it's due" is the headline to a story today in USAToday, picked up by How Appealing. Some quotes:

The Internet is becoming a cesspool of plagiarism.

Steve McKee, a partner at Albuquerque advertising agency McKee Wallwork Cleveland, found that out in June after he wrote his monthly column for BusinessWeek.com.

The column, entitled “Five Words Never to Use in an Ad,” was one of his more popular pieces. A search revealed that 36 blogs had picked it up and posted it to their sites, something that is usually considered to be fair use in the blogosphere. However, to McKee's annoyance, 13 of those took credit for writing it as their original prose.

“They're like cockroaches,” McKee says. “Ideas are our assets, and it's frustrating when people take them from you without shame.” * * *

A new twist is software used by spammers to automatically and intentionally grab original content to post on blogs and Internet sites. Authors are byproduct victims of an attempt to draw traffic to the content so that readers will click on deceiving links that take them to advertising.

The ILB has been the victim of the latter -- I've found ILB entries on numerous fakes blogs that are nothing more than a string of entries from real blogs, obviously computer-generated, accompanied by ads. The fake blogs can be readily located via Technorati. It used to be I could type "indianalawblog.com" into the Technorati search box and find other bloggers who had mentioned the ILB. Now Technorati is practically useless for that purpose -- what I get is mostly links from fake blogs, many of which are not obvious without clicking on them.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to General Law Related

Ind. Decisions - "Court rejects property seizure based on trash search "

An AP story today reports on the Court of Appeals decision Monday in the case of George Membres, III v. State of Indiana. (See ILB summary here - last case.) Some quotes:

INDIANAPOLIS (AP) -- The government might have to give back more than $57,000 in confiscated money and property as a result of a bad tip.

A judge approved the transfer of $57,060 in cash plus jewelry and firearms to federal authorities after it was seized during a drug raid in Indianapolis.

But the state Court of Appeals overturned the judge's order on Monday, finding that the case against George Membres III was based on an unconstitutional search of his trash.

The judges ruled 2-1 that police didn't have good enough reason to search Membres' trash in March 2005, when Marion County Sheriff's Deputy Scott Wildauer found plastic bags, possible marijuana remnants, rolling papers and other evidence that led a judge to issue a search warrant. * * *

While police can legally search a person's trash, Judge James S. Kirsch wrote, they cannot search people's trash indiscriminately.

"There is, however, a question as to whether Deputy Wildauer had reasonable suspicion to search Membres trash," Kirsch wrote in the 11-page ruling. "If Deputy Wildauer did not have reasonable suspicion to search the trash, he could not legally have found the marijuana evidence in the trash and could not have used that evidence to establish probable cause for the search warrant of Membres residence."

The informant's statement that he was "pretty sure" Membres was selling marijuana was not specific enough to justify the search, the court ruled, and police did not sufficienty demonstrate the informant's reliability.

"The information was not based on any observations of criminal activity by the informant; he only told Deputy Wildauer that he was "pretty sure" that Membres was dealing marijuana in an unknown quantity in excess of twenty pounds," the ruling said.

Judge L. Mark Bailey dissented, saying that he believed police had acted in good faith.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Two former Indiana lawyers, two different charges of money laundering

"Ex-attorney fights money laundering conviction" is the headline to this story by Joe Carlson in today's Munster (NW Indiana) Times. Some quotes:

HAMMOND | A former attorney wants the U.S. Supreme Court to rule that he was the victim of vindictive prosecution when he was found guilty of money laundering.

Jerry T. Jarrett, of Hammond, was stripped of his law license after he was convicted in 2004 of helping two drug dealers launder their profits through a novelty business he ran selling items for left-handed people.

But U.S. District Judge William Lee overturned the conviction five months later after Jarrett raised questions about federal prosecutors' motives and the suspicious timing of his indictment. * * *

The 7th Circuit Court of Appeals reversed the judge in May, saying Jarrett had not produced actual evidence of bad-faith prosecution.

Jarrett said Monday he is petitioning the U.S. Supreme Court to review the appellate decision, which failed to "give proper credence" to Lee's decision overturning the conviction.

"Former South Bend attorney pleads guilty in money laundering" reports the South Bend Tribune in a story by Marti Goodlad Heline. Some quotes:
SOUTH BEND -- A former attorney has pleaded guilty to lying to federal agents about his knowledge of financial matters involving a phony investment scheme organizer.

Christopher Warter, 54, of South Bend, entered into a plea agreement rather than go on trial this week on a money laundering charge.

Warter gave up practicing law in 1995 after he pleaded guilty to a similar offense. * * *

U.S. District Judge Allen Sharp set Warter's sentencing in his latest offense for Dec. 15. The maximum sentence for the charge is up to five years in prison and a fine of up to $250,000.

In 1995, Warter was sentenced to four months in prison and four months home detention after pleading guilty to a similar offense.

In that case, he was accused of structuring financial transactions in a way to evade the requirement for banks to report amounts over $10,000.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Indiana Courts

Ind. Decisions - "State court throws out $9 million health club verdict"

Bob Kasarda of the Munster (NW Indiana) Times writes today on the Court of Appeals decision yesterday in Reliable Development Corp. d/b/a The Fitness Barn v. Christopher Berrier. (See the ILB summary here.) Some quotes:

VALPARAISO | The state appellate court Monday threw out a $9 million jury verdict stemming from an accident nearly eight years ago at The Fitness Barn in Portage Township.

The ruling said the lower court went too far when it prohibited defense attorneys from questioning medical experts about prior injuries suffered by Christopher Berrier, who was awarded the huge verdict.

Berrier has the option of seeking a new trial.

Berrier's attorney, Kenneth J. Allen, disagrees with the ruling and said it was important for Senior Judge Thomas Webber to keep jurors focused on the issues pertinent to the case. * * *

Webber had upheld the verdict last summer, rejecting concerns about the relevance of the prior injuries. He said the club failed to provide any independent medical evidence indicating the treadmill injuries had anything to do with the prior incidents.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Ind. App.Ct. Decisions

Courts - "Judges need to join the fight to save the courts"

"Bench-Clearing Brawl: Judges need to join the fight to save the courts" is the headline to an important article published Friday in Slate, paralleling what the ILB has been saying (much less concisely) over the past few years. Some quotes (but I urge you to read the whole article):

A lot of state judges will be staying up election night this November, and not just because many of them will be on the ballot. One of the most overlooked political stories of 2006 is a cluster of state ballot initiatives designed to hobble courts. Their backers seek the aura of Mr. Smith Goes to Washington. But the measures look more like On the Waterfront: They point toward a political intimidation racket benefiting special interests that want courts to deliver results, not justice.

In Colorado, there's a push for retroactive term limits for appellate judges. The measure would write pink slips for 12 judges in the near future and clear off most of the Supreme Court in just a couple of years. In Montana, where every judge already runs for office, Constitutional Initiative 98 would create a new layer of recall elections to oust judges over specific decisions. An Oregon measure seeks to throw out justices from Portland by creating geographical districts for the Supreme Court. And in South Dakota, a "J.A.I.L. 4 Judges" initiative would amend the state constitution to create a fourth branch of government: a special grand jury to sue judges and others for their decisions.

Crusades against independent courts are sprouting like mushrooms. It's time for judges and everyone else who cares about judicial independence to stop hoping that dignified silence will win the day. Enemies of impartial justice are energized and organized. But judges have the tools they need to fight back and win—if they're willing to roll up their robes and explain in plain language why interest groups must not take America's system of fair and impartial courts hostage. * * *

What can friends of the courts do in the face of angry radicals masquerading as populists? They must start by listening. Buried beneath the angry bluster are real values and concerns. Americans want their courts to be independent and accountable. For years, too many judges, bar leaders, and good-government types have fretted that judicial accountability is too mushy and complicated to defend in a public debate. Courts are just different, they mumble, and then retreat to the Federalist Papers and sermons about judicial independence.

In the meantime, court-bashers have been busily framing their anger in accountability terms that resonate with American values. That's why wishing away the accountability debate is a huge mistake. Independent courts have always coexisted with American populism, and citizens of all stripes are right to insist that courts must be accountable. The judicial establishment can't afford to treat ordinary Americans like ignorant cousins at the family picnic. Judges are the sleeping giants in the national debate over the courts, and if they don't wake up soon, they'll find themselves lashed down.

It's also time for courts and those who care about them to embrace the notion of judicial accountability and define it properly instead of letting court-bashers corrupt it beyond recognition. Friends of the court need to remind the public that courts are already accountable and proud of it—accountable to the law and the Constitution, not to politicians, special interests, and rage campaigns. It's not an overstatement to say that the road to independence runs through accountability.

In the longer term, it's time to invest more time, money, and energy in educating Americans about how courts work. Americans who understand the role of precedent, appeals, and constitutional review are most likely to reject attempts to weaken the courts. Indeed, knowledge often trumps ideology. The special role that courts play in a democracy reminds people of core constitutional values that they treasure more than their anger over the debate of the day.

Read the whole article!!!

[More] The article was authored by Bert Brandenburg, who is "the executive director of the Justice at Stake Campaign, a nonpartisan national organization working for fair and impartial courts."

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Courts in general | Indiana Courts

Ind. Courts - More on: Judge unseals records in French Lick casino dispute today

A number of stories today on the French Lick casino dispute, but they focus on the details of dispute, rather than the action of the judge in sealing the entire lawsuit, including the docket itself, for nearly two months, and his reversal yesterday of that action.

Mike Smith of the AP has this updated story, that concludes:

The partners had sought to keep the court documents confidential, but several newspapers asked Judge Blanton to make the lawsuits and records pertaining to them public. Although some information was redacted, most was not.

Blanton set an Aug. 14 hearing to determine whether he will decide ownership interest or leave it to arbitration.

Lesley Stedman Weidenbener's story in the Louisville Courier Journal includes these quotes:
Court documents say that gives William Cook every right to be on the property, overseeing the spending of more than $100million he has personally invested in the project.

But Lauth has asked Orange Circuit Judge Larry Blanton to issue an injunction, stopping Cook's involvement and keeping him off the property.

The request, lawsuits and other court documents had been kept confidential since June, when Blanton granted the companies' requests to seal them.

However, at a hearing yesterday, attorneys for The Courier-Journal, several other newspapers and Attorney General Steve Carter argued that the records should be opened because it serves the public interest. Blanton agreed.

"I think everybody agrees this was the right decision," said Jeremy Rogers, an attorney representing The Courier-Journal.

The documents released yesterday fill in the details of a dispute that Yelton first acknowledged in early June, when he said that Lauth and Orange County Holding were in mediation to resolve some differences about control of the project.

Yelton said yesterday that the commission is investigating the allegations in the lawsuits and other documents filed with the court. * * *

Lauth and Orange County Holding are next scheduled to appear in Orange Circuit Court on Aug. 14, when Blanton will decide whether he will determine the ownership interest in Blue Sky or whether that will be left to arbitration.

Here, from the Bedford Times-Mail yesterday, is some focus on the issue of the sealing and unsealing of the records. Roger Moon writes:
PAOLI - Court documents involving two Orange County casino lawsuits were made available for public review in a decision that came this morning in Orange Circuit Court.

Orange Circuit Court Judge Larry Blanton had sealed the records in early June.

He said today, “I took the unusual and unprecedented action for a variety of reasons.” One reason, Blanton said, was to allow him more time to research the law. He said, “I acted with an overabundance of caution.” * * *

At the parties' request, the documents were sealed, meaning closed to the public. Lauth and Cook have agreed not to discuss the lawsuits publicly.

Steve Ferguson, chairman of the Bloomington-based Cook Group, Inc., said after the hearing, “Of course, you would like to keep this kind of dispute between the two parties, but we clearly understand what the law says.”

Today's ruling came after attorneys for newspapers argued that the records should be made public and that neither Cook nor Lauth representatives had met the burden of proof on why the cases should remain sealed.

Angela Parker, an attorney representing a number of newspapers, including the Times-Mail and its sister newspaper, the Herald-Times of Bloomington, said in court, “The public wasn't informed and didn't know why (the cases were sealed). The need to speculate put the public at a disadvantage.”

Arguments for opening the case also were presented by the Indiana Attorney General's office. Attorney General Steve Carter, in a statement released over the weekend, said, “Judicial proceedings regarding gambling should be subject to public observance and review. The public's interests are likely to be impacted by litigation between these two private entities. Any time there is government involvement with respect to the gambling industry, it should be subject to heightened public scrutiny.”

Attorneys for Merit Gaming also spoke at today's hearing. Merit Gaming has a pending lawsuit that claims partners in the Blue Sky Casino venture had “tortuously interfered” with the process that culminated in Blue Sky being chosen to operate the casino. Merit Gaming had been interested in applying for the contract and maintained it was forced out of the process.

The Merit attorney argued, “We have action pending against both of these. We would like to examine the filings in this matter to see if they would contain admissions that would be pertinent to our litigation.”

Blanton, in his decision to seal the files in June, cited Indiana law that allows certain information - including records containing trade secrets and confidential financial information - to be sealed.

Today's hearing came after a number of newspapers requested that pleadings and other papers filed in the matters be made available to the public.

As I wrote yesterday, the Bloomington Herald-Times may have been giving excellent coverage on this important story, but no one except its subscribers (and the ILB is not a subscriber) has had access to it. If you are a subscriber, you've probably already read the most recent story at breakfast. If not, here is the link.

For a detailed story on the lawsuits, see the combined efforts of J.K. Wall, Mary Beth Schneider, Theodore Kim and Vasanth Sridharan in today's Indianapolis Star. Business columnist John Ketzenberger adds a feature on Bill Cook, including this:

It's not hard to see why both sides asked the judge to keep their fight secret. There's plenty of lawyerly nastiness tucked into the filings. The court and the Indiana Gaming Commission will sort things out, so I won't presume judgment.

Clearly the partners are fighting for control of the project. As I read it, Lauth Group's taking a buttoned-down approach, looking to cash in for all it can on the state's last gambling license by spending only what's in the casino project's budget. That is, if Lauth can get financing.

Cook Group's got plenty of money. And it's got Bill Cook's passion. Why stop at mere trim in the hotel if you can have gold leaf for $600,000 more? In Cook's view, it costs only a little more to go first class. * * *

The West Baden Springs Hotel was literally crumbling when Historic Landmarks of Indiana called Cook in the early 1990s and asked for help.

Now that it's on the verge of being fully restored, Cook has a lot more than $34 million in the project. He obviously has his heart in it, too. Now he can envision couples strolling the formal gardens that surround the hotel, something that was nearly impossible to imagine up there on the roof with us seven years ago. What once captured his fancy is now nearly real.

Who knows how this legal brawl will end. The court will solve that. But when it comes to finishing the project, you can take this to the bank: Bill Cook will get 'er done.

Posted by Marcia Oddi on Tuesday, August 01, 2006
Posted to Indiana Courts