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Wednesday, January 31, 2007

Ind. Gov't. - More on: Three CAFO bills to be heard by Senate committee today

Following up on yesterday's followup, check out this article from Hoosier Ag Today with Gary Truitt headed "Miller Backs More Inspections for Pork Operations." Some quotes:

“We need to be the first to point out a problem not the last” was the advice given to Indiana Pork Producers by Andy Miller, Director of the State Department of Agriculture. In a frank and to the point address at the group’s annual meeting on Tuesday, Miller warned producers that they need to be the ones to clean up the few “bad actors” in the state. With this in mind, he said his department is supporting Senate Bill 431 that increases the number of inspections of hog operations by the state and gives the Indiana Department of Environmental Management (IDEM) the authority to revoke the permits of operations that repeatedly violate environmental regulations. Sponsored by Sen. Beverly Gard, the bill is currently before the Senate Environmental Committee.

Miller also warned that the Indiana Pork industry is engaged in a fight to save Confined Animal Feeding Operations (CAFOs). He said there are well-funded and well-organized forces that are working hard to shut down CAFOs in the state. He told the gathering of about 50 producers that the Governor remains committed to the pork industry and will not support a bill, currently in the General Assembly, that would mandate a moratorium on CAFO construction.

Miller took the opportunity to announce that ISDA will be holding a series of Livestock Forums across the state. He said there is a great deal of mis-information about the livestock industry and these forums will be designed to inform County leaders and local citizens about the truth about livestock production in the state. Locations and dates will be announced in a few weeks.

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to Environment | Indiana Government

Ind. Gov't. - Continued coverage of Governor's Illiana and Commerce Connector proposals

Before the Indiana news, take a look at this story by Jeff Parrott of the South Bend Tribune that reports on a toll road project in Texas. Here is a quote:

One of the foreign firms leasing the Indiana Toll Road is drawing suspicion from some Texans after announcing plans to acquire a chain of small newspapers there.

Australia-based Macquarie Media Group last week said it will pay $80 million for American Consolidated Media, which publishes 40 community newspapers and shopping publications serving nine communities in Texas and Oklahoma.

Macquarie's sister company, Macquarie Infrastructure Group, last year joined with the Spanish conglomerate Cintra to lease the Indiana Toll Road for the next 75 years. Republican Gov. Mitch Daniels championed the deal, heralding the $3.8 billion in instant revenue it brought the state, although 60 percent of Hoosiers opposed it, according to opinion polls.

Likewise, several grass-roots groups in Texas are battling that state's Republican governor, Rick Perry, and his plan to convert existing freeways to toll roads and build a new toll road, the Trans-Texas Corridor, that would stretch from the Mexican border to Oklahoma.

Cintra and Macquarie Infrastructure Group, which also jointly operate a toll road in Toronto, are expected to be among many groups bidding on about $250 billion in Texas road work and toll road administration over the next decade.

Through eminent domain, the Trans-Texas Corridor, largely paralleling the existing Interstate 35, would force people to sell off their land for the project. Small papers in rural communities along the route have aggressively reported on opposition to that plan, said Sal Costello, founder of the nonprofit political action committee, Texas Toll Party.

"It sure would make it a lot easier for their business if they weren't being torn up in the newspapers every week," Costello said of Macquarie.

The newspaper chain includes five dailies, 19 weeklies and 16 "shoppers," which are comprised entirely of ads.

"The big (Texas) newspapers have written about (public opposition to the Trans-Texas Corridor), but the smaller newspapers have really dug into it," Costello said. "By them buying these papers in one fell swoop ... they'll be able to suggest to writers that they not dig into it. It's editorial independence we're talking about here."

Here are the stories on the Illiana since this updated ILB entry from Tuesday.

From the Evansville Courier & Press, dated 1/31/07, by Bryan Corbin, headlined "Change removes I-69 roadblock." It begins:

INDIANAPOLIS - A change made by a Democratic senator from Gary, Ind., gave a needed boost to the plan to fund the Interstate 69 extension through Southwestern Indiana.

The plan, Senate Bill 1, cleared its first hurdle Tuesday when the Senate Transportation Committee passed it 8-3.

To allow I-69 to be a freeway, not a tollway, its entire distance, Senate Bill 1 would bankroll the unfunded portion of I-69 construction, using proceeds from leasing and operating a privatized toll road through the Indianapolis suburbs.

Specifically, Senate Bill 1 transfers the tolling authority from I-69 to two new privatized toll roads the governor has proposed: the Illiana Expressway in northwestern Indiana and the Indiana Commerce Connector around the east and south sides of Indianapolis. That bill will be heard next by the full state Senate. * * *

The governor's proposed Illiana Expressway would sweep through Porter and Lake counties, connecting Michigan City, Ind., to the Chicago suburbs. Rogers said northwestern Indiana legislators take no position on whether the Commerce Connector should be built in central Indiana to fund I-69. But since northwestern Indiana officials have been pushing for Illiana for 25 years, they likely would oppose using toll proceeds from Illiana to fund I-69 in the Southwestern corner of the state, Rogers said. "I'd hate to have to make that case in northwest Indiana," she said.

From the NWI Times, dated 1/30/07, by Keith Benman, headlined "NIRPC and Forum: Illiana route search comes first. Groups stop short of Daniels plan, for now." Some quotes:
PORTAGE | Two leading development groups on Monday endorsed important first steps in getting the Illiana Expressway built, but stopped short of giving blanket approval to the governor's drive to make it a private toll road.

The Northwest Indiana Forum and the Northwestern Indiana Regional Planning Commission both endorsed legislation that would authorize a feasibility study and corridor protection for the Indiana portion of the 63-mile roadway.

"We feel this study gives us the greatest opportunity to flush out all the facts needed to do a major infrastructure project of this type," Rex Richards, Greater Valparaiso Chamber of Commerce president, said.

"We need to make sure we separate emotion from facts."

The study would come first, said Leigh Morris, NIRPC chair and City of LaPorte Mayor. If it is determined the expressway is needed, then corridor protection would be put in place.

Morris, who serves as NIRPC chairman, started the meeting by crumpling up and throwing away a map portraying an Illiana Expressway route as a broad blue swath cutting through Lowell and up to Michigan City.

"I want to make certain that no one in this room believes that the map ... you've seen in various publications, bears any relationship to reality," Morris said.

That map has alarmed residents of some communities as well as residents of rural areas.

Though NIRPC and Forum representatives at Monday's presentation were careful to say they were only endorsing the study and corridor protection, their enthusiasm for getting the Illiana Expressway built was obvious.

From the Gary Post-Tribune, dated 1/31/07, by Christin Nance, headlined "Gov. Daniels: No support, no Illiana Expressway." Some quotes:
Gov. Mitch Daniels says he is simply responding to the will of the people when it comes to the proposed Illiana Expressway.

"I've made 57 trips, I think it is, to Lake County alone ... I guarantee you on two-thirds of these trips somebody asked me about this idea," Daniels said. "I have no interest in doing it if it's not seen as in the long-term interest of the region." * * *

The bill that provides for a feasibility study made its way out of a General Assembly committee on Tuesday. Daniels said it contains an amendment that creates a legislative review committee to oversee the transaction and the selection of the route.

The study will examine the 12-mile swath on an Indiana Department of Transportation map as well as areas farther south.

"Nobody has any fixed idea about where the road should be so that it is the least disruptive, least expensive, least environmentally difficult," Daniels said.

"It needs to be shaped by people who, we hope, will benefit from it and who will live with whatever improvement is made."

From the NWI Times, dated 1/31/07, by Patrick Guinane, headlined "Lawmakers add advisory panels to Illiana process." Some quotes:
Legislation paving the way for an Illiana Expressway made it past an initial roadblock after some tweaks Tuesday, but Democrats say the measure still grants too much power to Republican Gov. Mitch Daniels.

The Senate Transportation Committee advanced the legislation on an 8-3 vote, with Sen. Earline Rogers, D-Gary, joining Sen. Vic Heinold, R-Kouts, and six other Republicans.

Before the vote, the committee adopted a Rogers amendment that would create legislative review committees to advise Daniels and the Indiana Department of Transportation on planning and construction of the Illiana and another proposed downstate tollway. Democrats, both locally and at the Statehouse, argued that oversight provision is too weak and should instead require Daniels to go back to the General Assembly for another vote building the roads.

"If the Legislature doesn't have oversight it means nothing," said Porter County Commissioner Bob Harper. "They're giving away their control."

Daniels has insisted that public input will guide the future of the projects, and Heinold and Rogers say they take the governor at his word.

"I do trust that INDOT and governor's office will make decisions that will be in the interests of my constituents and in the interests of the state," Rogers said.

Daniels sent Heinold a letter Tuesday promising to include the senator's route suggestions in a forthcoming study of the Illiana Expressway. In a letter Monday, Heinold had recommended the state hold the route south of Hebron and Kouts and have it touch Starke County before arching north to end east of LaPorte.

An exact route is probably at least three years away. But preliminary plans have the highway starting at Interstate 57 in Illinois and passing between Cedar Lake and Lowell on its way toward I-65 and I-94. The governor, in Gary Tuesday for an unrelated event, welcomed Rogers' plan to create an advisory panel.

"I think its a very good idea," Daniels said. "This decision really rests with the people of the area and their elected representatives."

Republican Senate leadership had not yet decided Tuesday whether to send the tollway legislation, Senate Bill 1, to another committee for more hearings or speed up the process by bringing it before the full Senate as soon as next week.

Heinold said he anticipates bipartisan support from the full Senate. But Democrats signaled opposition, primarily for the Indiana Commerce Connector, a tollway south and east of Indianapolis that Daniels proposed in November.

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to Indiana Government

Law - A revisionist view of Robert Moses, the power broker and master builder

This entry is filed under "law" because the fact I remember most about Robert Moses, from Robert Caro's opus, The Power Broker, is near the beginning (i.e. only a few hundred pages into the massive tome), where Caro is described as the "best biller drafter in Albany." His skills in drafting authorizing legislation for his massive public works projects played a large part in his accomplishments.

The NY Times had a fascinating story Jan. 23rd headed "Rehabilitating Robert Moses." The lengthy piece, by Robin Pogrebin, begins:

FOR three decades his image has been frozen in time. The bulldozing bully who callously displaced thousands of New Yorkers in the name of urban renewal. The public-works kingpin who championed highways as he starved mass transit. And yes, the visionary idealist who gave New York Lincoln Center and Jones Beach, along with parks, roads, playgrounds and public pools.

This is the Robert Moses most of us know today, courtesy of Robert A. Caro’s Pulitzer Prize-winning biography from 1974, “The Power Broker,” which charts Moses’ long reign as city parks commissioner (1934-60) and chairman of the Triborough Bridge and Tunnel Authority (1946-68). A 1,286-page book that reads like a novel, it won a Pulitzer Prize and virtually redefined the biographical genre by raising the bar for contemporary research. Today it remains the premier text on the evolution of 20th-century New York, a portrait of a man who used his power without regard for the human toll.

But according to the Columbia University architectural historian Hilary Ballon and assorted colleagues, Moses deserves better — or at least a fresh look. In three exhibitions opening in the next few days — at the Museum of the City of New York, the Queens Museum of Art and Columbia University — Ms. Ballon argues that too little attention has been focused on what Moses achieved, versus what he destroyed, and on the enormous bureaucratic hurdles he surmounted to get things done.

There is more. The New York Observer has an equally interesting piece, "Robert Moses Returns: Power Broker Spurs Caro-Jackson Bout," but it is aimed more at Robert Caro than Robert Moses.

Harvard Prof. Edward Glaeser has a thoughtful article headed "New York - Great Cities Need Great Builders," that begins:

Robert Moses still bestrides New York like a colossus. More than three decades have passed since Jane Jacobs and Robert Caro tore down Moses's once pristine public image, but his physical legacy remains standing. Our New York is Moses's New York. He built 13 bridges, 416 miles of parkways, 658 playgrounds, and 150,000 housing units, spending $150 billion in today's dollars. If you are riding the waves at Jones Beach or watching the Mets at Shea Stadium or listening to 'La Traviata' at Lincoln Center or using the Triborough Bridge to get to the airport, then you are in the New York that Moses built.

If we are to realize Mayor Bloomberg's plans for a city of 9 million people with newer, greener infrastructure, then New York will again need to embrace construction and change. We will need again builders like Moses, who can put the needs of the city ahead of the opposition of a neighborhood. Yet Moses's flaws, which were emphasized so eloquently by Jacobs and Mr. Caro, have led many to see nothing but evil in Moses and his works. Moses's supposed villainy has established its place in the iconography of the preservationists who stand against growth.

The opening of a three-part exhibition on Moses - at the Queens Museum of Art on January 28, at the Wallach Art Gallery of Columbia University on January 31, and at the Museum of the City of New York on February 1 - gives us a chance to reappraise his achievements. We should avoid the excesses of Moses's early hagiography or his later vilification. The successes and failures of this master builder teach us that great cities need great builders, but that we must check their more Pharaonic excesses.

The lessons of Moses's life are taught by his projects. His best work, such as the parks and pools that had large benefits and modest costs, happened early in his career. When he was starting as Governor Smith's park tsar, Moses could get public funding for his projects only if they were popular. The need to build support didn't stop Moses from taking risks. Indeed, Smith accused Moses of wanting to 'give the people a fur coat when what they need is red flannel underwear,' but Moses's bold vision was just what the public wanted. Society was getting richer, and those parks and pools helped New York succeed as a place of consumption and as a center of production.

Most of Moses's bridges and expressways are also major successes. New York is a city of islands. The city's waterways were ideal in the ages of sail and steam, but they became a major headache in the age of the car. Despite his lack of a driver's license, Moses understood that New York needed to adapt to the automobile. His bridges made it easier for cars to cross between the city's islands. His parkways made it more pleasant to drive into New York. Boston's Big Dig should remind us that it is hard to retrofit a pre-car city for the automobile. By comparison, Moses's achievements look cheap and effective.

Some say Moses was wrong to build for the car. Some say the city should have bet exclusively on public transportation that would better serve the poor. But those critics ignore the millions of people who fled the older cities that weren't car friendly. Every one of the 10 largest cities in the country in 1950 - except for Los Angeles and, miraculously, New York - lost at least one-fifth of its population between 1950 and today. Moses's bridges and highways helped to keep some drivers living and working in New York. Those middle-class drivers helped New York to survive and grow, while every other large, cold city in the second half of the 20th century shrank. Not all of Moses's transportation projects were winners. To build the Cross Bronx Expressway, Moses took thousands of apartments using the power of eminent domain. Neighborhoods were shattered as the highway smashed through a once-vibrant area. I cannot tell whether the benefits to the millions who have used the expressway outweigh the costs to the thousands who were evicted, but I am sure that the process was deeply flawed.

To any friend of liberty, Robert Moses's use of eminent domain represents big government at its most terrifying. At the stroke of a pen, entire communities can be wiped out because someone in government thinks that this removal is in the public interest. Without eminent domain, however, large-scale projects will either flounder or cost as much as the Big Dig. Mayor Bloomberg's dream of a renewed New York will need eminent domain.

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to General Law Related

Courts - Ind. "cameras in courtrooms law" cited in New York paper

"Court cameras pushed in N.Y." is the headline to this story today by Larry Fisher-Hertz in the Poughkeepsie (NY) Journal. Here is how the story begins:

Accused murderer John R. Dean stood in a courtroom in Evansville, Ind. last July and told a judge he had fatally beaten a man after breaking into his home in December 2005.

Only a handful of spectators were in the courtroom that morning to witness the proceedings. But thanks to a recently enacted Indiana law, citizens throughout the Evansville area were able to watch and listen to Dean’s account of the brutal attack.

The law, adopted last year, permits Indiana newspapers and television stations to cover certain court proceedings using video and still cameras. Cameras from an Evansville TV station were on hand to cover the plea proceeding, and the prosecutor in the case said he was glad they were there.

“The more the public knows about how we do our jobs, the better off we all are in government,’’ said Vanderburgh (Ind.) County Prosecutor Stan Levco. “We have nothing to hide.”

While reporters and photographers — and some judges — say the new law has flaws, it affords Indiana citizens far more visual coverage of court proceedings than the citizens of New York are getting. New York is one of only 15 states that prohibit visual coverage of trials and most other court proceedings. Cameras have been all but banned from virtually all courtrooms in the state since 1997, when a 10-year law permitting them expired.

Well, there are a few errors in this story, the most egregious of which I have highlighted.

Here is how the story ends, with the almost right phrase highlighted.

A judge in South Bend, Ind. who was designated as one of eight jurists to allow cameras under the new Indiana law, said the experiment wasn’t working as well as he had hoped because cameras aren’t permitted unless both the prosecutors and the defense attorneys in criminal trials consent. As a result, cameras have been permitted only at a few pre-trial proceedings and some plea and sentencing proceedings.

“I’d like to see cameras allowed for some trials,” said St. Joseph County Circuit Judge Michael Gotsch. “I’m certain we could run a fair trial.”

As most Indiana ILB readers know, there is no Indiana law. In an announcement May 9th, 2006, a release from the Indiana Supreme Court stated in part that it had:
authorized a pilot project to test the use of still and video news cameras and tape recorders in Indiana's trial courts.

The Supreme Court's decision came in response to a request from the Indiana Broadcasters Association and the Hoosier State Press Association. The 18-month pilot project will involve eight trial judges who have agreed to participate in the project.

“I hope that this experiment will help inform the public about the workings of the judicial system and remove any mystery about what happens in a courtroom. The ultimate success of the project will be determined by how much the public benefits from this greater access afforded the working press,” said Chief Justice Shepard.

A list of all the ILB "cameras in courtrooms" entries is available here.

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to Courts in general

Ind. Law - Senate Bill 24 would ban executions of mentally ill

In an ILB entry from Jan. 18 on the staying of the Timberlake execution, a Fort Wayne Journal Gazette editorial is quoted which mentions:

Senate Bill 24, sponsored by Michigan City Democrat Anita Bowser, would establish a procedure for determining whether a defendant charged with murder is mentally ill and would prohibit a sentence of life imprisonment or the death penalty if the defendant is determined to be mentally ill.
Mike Smith of the AP wrote more on the bill yesterday, when it was considered in a Senate committee. The story begins:
The state would be prohibited from executing people who were severely mentally ill at the time they committed murder under legislation a Senate committee is considering.

The Senate Committee on Corrections, Criminal and Civil Matters heard about an hour of testimony on the bill by Democratic Sen. Anita Bowser of Michigan City but did not vote.

Sen. Brent Steele, a Bedford Republican and committee chairman, said the bill involved "weighty" issues and he wanted members to give more thought to them.

He also said the panel might want to forgo any action until the U.S. Supreme Court issues a ruling that could change the standard for executing mentally ill persons by offering a new interpretation of the Eighth Amendment, which bans cruel and unusual punishment.

The Indiana Supreme Court stayed an execution earlier this month for a convicted murderer who said his life should be spared because of his mental illness. Norman Timberlake was scheduled to die Jan. 19 for the 1993 slaying of a state trooper, but the state's highest court said it wanted to wait for the U.S. Supreme Court ruling.

Indiana law prohibits executions of those who are mentally retarded, which is primarily tied to a person's IQ. Indiana also prohibits executing those who were 17 years old or younger at the time they committed murder.

Bowser's bill defines a mentally ill defendant in capital cases as someone who has a severe mental disorder or disability that significantly impairs the person's capacity to appreciate the nature, consequences or wrongfulness of his or her conduct; to exercise rational judgment in relation to that conduct; and to conform the conduct to requirements of the law.

It would not include a disorder manifested primarily by repeated crimes or attributed solely to the acute use of alcohol or other drugs.

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to Indiana Law

Ind. Courts - Report on Supreme Court oral argument at IU Bloomington Law

Updating this ILB entry from Jan. 29th, Alisha Chaudhary of the Indiana Daily Student reports today:

Offering law students the opportunity to witness a hearing, the Indiana Supreme Court held an oral argument Tuesday in the Moot Court Room of the IU School of Law.

Five Indiana Supreme Court justices heard the appeal in Richard Brown v. State of Indiana, a 2004 case from the Marion Superior Court. * * *

"This is a rare case," said Joel M. Schumm, Brown's attorney. "The question here is not whether the person committed the crime or not. The question is if what the person did is even a crime or not." * * *

"A reasonable person of ordinary intelligence would know that duping a person to come to your house and undress, at the behest of an automobile, is a crime," said Indiana Solicitor General Thomas M. Fisher. "The Supreme Court makes sure that the law is upheld and a fair hearing is given. That is why they took this case." * * *

The hearing provided an opportunity for IU law students to observe and analyze arguments and proceedings. The audience was also given the opportunity to ask questions at the end of the hearing.

"I would be surprised if they don't find the verdict going in the favor of the defendant," law student Joel Campeau said. "I don't think the prosecutor's case was strong enough. I really appreciated the interaction and demeanor of the justices; they were very helpful. At one point, Justice (Frank) Sullivan even asked the defendant's attorney to emphasize his strongest point."

The oral argument is available online, even though it was held in Bloomington, rather than in the Statehouse Courtroom. Access it here.

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Non-compete clause likely valid, court says"

Central Indiana Podiatry, P.C. v. Kenneth J. Krueger, et al - a Jan. 9th decision of the Court of Appeals, is the subject of a story today in the Indianapolis Star by James A. Gillaspy. Some quotes:

The Indiana Court of Appeals has ruled that a podiatry practice in Central Indiana has a valid case against a dismissed Carmel practitioner who began working for a nearby competitor despite a prior agreement barring it.

In overturning the decision of Hamilton Superior Court Judge Daniel Pfleging, the appeals court said non-compete provisions of Kenneth J. Krueger's employment contract with Central Indiana Podiatry P.C. were likely enforceable.

The three-member panel of judges ruled this month that Pfleging should have made the podiatrist stop working pending trial after the company sued Krueger for violating his contract's restrictive covenants in 2005. * * *

"Dr. Krueger will have to cease practicing podiatry in the prohibited territory, which is certainly Marion and the surrounding counties and some of the counties adjacent to those," said James Knauer, the plaintiff's attorney.

The lawsuit by the state's largest podiatry group maintained Krueger had failed to adhere to non-compete restrictions, which bar him from working near its network of offices for two years.

In reversing Pfleging, the appellate judges said, the lower court "abused its discretion" by refusing Central Indiana Podiatry's request for a preliminary order preventing Krueger from practicing podiatry in more than a dozen counties identified as the firm's market area.

The lawsuit showed Krueger began working for Meridian in late 2005, after being terminated by Central Indiana Podiatry for misconduct involving his treatment of office staff.

The suit complains that Krueger gave Meridian a list of Central Indiana Podiatry patients in the company's Nora office, then contacted those patients and notified them of his new employment with nearby Meridian.

In an opinion explaining the reversal, on appeal, Judge Carr Darden noted: "Indiana courts have generally found covenants not to compete valid when they protect an employer's interest in the good will generated between a customer and a business, and/or the employer's interest in confidential information."

Darden said Pfleging's ruling and Krueger's arguments lacked the factual evidence needed to overcome the legal standard.

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Judge declares mistrial when juror brings newspaper into jury room

Not only a newspaper, but a paper with a photo of the defendant on the front page, according to this story by Ruthann Robinson in today's NWI Times. It begins:

CROWN POINT | Before hearing a word of opening statements in a child molestation trial Tuesday, the judge dismissed the jury because one of them disregarded his instructions.

Lake Criminal Court Judge Clarence Murray declared a mistrial for Brett Zagorac, 23, the former substitute teacher accused of molesting a student in 2003.

A bailiff saw a juror carry a newspaper -- with Zagorac's picture on the front -- into the jury room, Murray said. As a rule, all judges instruct jurors, upon swearing in, to not learn about the case outside the courtroom. That means not talking to anyone, reading papers, watching TV accounts or looking details of the cases up on the Internet.

When the bailiff asked the juror what he was doing, all the jurors in the room smiled, the bailiff told Murray.

At that point, Murray discussed the situation with both prosecution and defense lawyers. All agreed with the judge that even if he polled jurors individually about what they may or may not have seen, they would "be less than candid," Murray said.

"I feel the jurors have been compromised," Murray said in open court. "This is not an indictment against the media. They are just doing their job."

Ruth Ann Krause of the Gary Post-Tribune reports that the it was the Post-Tribune that the juror was reading: "[Judge] Murray said his chief bailiff, Tom O'Brien, informed him a juror had brought into the jury room a copy of Tuesday's Post-Tribune, which on the front page included a photo of Zagorac, 24, of Munster, and information about pending cases in Illinois."

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 13 NFP)

(Link to Cases):

For publication opinions today (6):

J. Bradley King and Krisi Robertson in their official Governmental capacities as Co-directors of the Indiana Election Division, et al. v. Leo T. Burns, et al. is a case about which the ILB posted a number of entries late last year. Here is a quote from a Mix 102 story out of Logansport dated Sept. 25, 2005:

Cass County Circuit Court Judge Julian Ridlen has issued a permanent injunction that translates into Democrat Leo Burns' name being placed onto the fall election ballot.

Burns is running for Circuit Court judge, but filed suit in Ridlen's court after his candidacy was not certified by the Indiana Election Division. The state office claimed that the necessary paperwork for Burns' candidacy was filed in the wrong office.

The paperwork was filed in the Cass County Clerk's Office by Democratic Chairman Matt Meagher, not in Indianapolis, where the information is supposed to be filed.

In the 8-page Court of Appeals ruling today, Judge Barnes concludes:
There is no allegation here of any fraud in Burns’s candidacy or in the November 7 general election, nor any assertion or evidence that he failed to comply with every statute governing elections and qualifications for a circuit court judge, save one. However, nothing in Indiana Code Section 3-13-1-15 expressly states that a failure to strictly comply with it voids the result of an election or that the place of filing of the CAN-29 form is an essential element of an election. Instead, it is apparent that the statute’s primary purpose is to provide a means for orderly and timely preparation of ballots for a general election. Once the ballots are in fact prepared and an election is held using those ballots, it would defeat the purpose of elections laws generally to overturn the results of the election and disenfranchise the voters who used the ballots.

Burns clearly was the Democratic Party’s chosen candidate for Cass County Circuit Court judge. That choice was communicated accurately to Cass County voters. They elected Burns to office. He is qualified to hold that office. The “eminently practical doctrine” formally know as “‘de minimis non curat lex’ . . . proclaims that the law does not redress trifles.” D & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 900 (Ind. 2003). “[I]t is the courts’ way of saying ‘So what?’” Id. If there is no “what” and no practical consequences flowing from the technical violation of some law, the courts do not provide relief to ordinary litigants. Id. At this point, the Division can point to no practical consequences of Burns’s CAN-29 form having been filed with the Cass County clerk rather than the Division. Under the holdings of cases such as Lumm and Roeschlein, as well as the general doctrine of “de minimis non curat lex,” we decline to reverse the trial court’s granting of the permanent injunction requiring Burns’ placement on the ballot, the effect of which would be also to reverse the results of the November 7, 2006 general election.

Conclusion. We decline to disenfranchise the voters of Cass County by overturning their decision that Burns should be their circuit court judge, based on a technical violation of a law that had no practical effect on the validity of the November 7, 2006 general election. We affirm.

Note that D&M Healthcare, cited in the above opinion, is a Supreme Court case the ILB wrote quite a lot about in 2003, a case where the validity of a Governor's veto and whether it complied strictly with the requirements of Constitution (i.e. the letter of the law), was at issue. Here is a list of the ILB's 2003 entries, unfortunately they will not be accessible again until the ILB does some tweaking.

Michael M. McCalment v. Eli Lilly and Company - employment issues, more coming

Marietta Squibb v. State of Indiana, ex rel. O. Wayne Davis, Indiana Securities Commissioner

Stephen Alter v. State of Indiana - "Indeed, none of the Criminal Rule 4(C) provisions by which the State may charge certain delays to the defendant occurred in the instant case, yet the State and trial court permitted this case to languish for more than seven months following the initial trial date. We therefore conclude, pursuant to the provisions of Criminal Rule 4, that any delays in Alter’s case were chargeable to the State, and that the trial court therefore erred in denying Alter’s motion for discharge on the basis that the State failed to try him within one year. See Young, 765 N.E.2d at 678-79. The judgment of the trial court is reversed, and the cause is remanded with instructions to the trial court to grant Alter’s motion for discharge."

Randy L. Adams v. Sand Creek, Inc., et al. - more coming

Bruce Carr v. Joseph Pearman - "Major stands for the proposition that an attorney may be entitled to quantum meruit recovery for his or her work despite the fact that the attorney has violated the Rules of Professional Conduct by failing to obtain a written contingency fee agreement. Nowhere does Major hold that an oral contingency fee agreement, which violates the Rules of Professional Conduct, is illegal or void. Rather, the majority in Major holds that such an agreement is “invalid” but that the attorney may recover under quantum meruit."

NFP civil opinions today (4):

Anne Elizabeth Keeney v. Robert O. Caruthers, Jr. (NFP)

Involuntary Term. of Parent-Child Rel. of F.D., O.D. S.D., and Angela Drake and Timothy Drake v. Miami Co. Dept. of Child Services (NFP)

David A. Wittenstein v. The Indianapolis Motor Speedway, LLC (NFP)

Roger D. Edwards v. Mary L. Edwards (NFP)

NFP criminal opinions today (9):

David McGuire v. State of Indiana (NFP)

Jerry Johnson v. State of Indiana (NFP)

James Williams v. State of Indiana (NFP)

Walter Williams v. State of Indiana (NFP)

Tim L. Godby v. State of Indiana (NFP)

Althirty Hunter v. State of Indiana (NFP)

Gerald Osborne v. State of Indiana (NFP)

James Sapp v. State of Indiana (NFP)

Frank C. Biederstadt v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 31, 2007
Posted to Ind. App.Ct. Decisions

Tuesday, January 30, 2007

Law - New Bush executive order gives the White House much greater control over the rules and guidance documents.

The NY Times today has in the prime spot on its from page a lengthy and important article by Robert Pear that needs careful reading to appreciate fully. Here are a few samples:

WASHINGTON, Jan. 29 — President Bush has signed a directive that gives the White House much greater control over the rules and policy statements that the government develops to protect public health, safety, the environment, civil rights and privacy.

In an executive order published last week in the Federal Register, Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president’s priorities.

This strengthens the hand of the White House in shaping rules that have, in the past, often been generated by civil servants and scientific experts. It suggests that the administration still has ways to exert its power after the takeover of Congress by the Democrats. * * *

Typically, agencies issue regulations under authority granted to them in laws enacted by Congress. In many cases, the statute does not say precisely what agencies should do, giving them considerable latitude in interpreting the law and developing regulations. Here is OMB's Jan. 18th memo to agencies.

The directive issued by Mr. Bush says that, in deciding whether to issue regulations, federal agencies must identify “the specific market failure” or problem that justifies government intervention.

Besides placing political appointees in charge of rule making, Mr. Bush said agencies must give the White House an opportunity to review “any significant guidance documents” before they are issued.

The Office of Management and Budget already has an elaborate process for the review of proposed rules. But in recent years, many agencies have circumvented this process by issuing guidance documents, which explain how they will enforce federal laws and contractual requirements. * * *

Business groups have complained about the proliferation of guidance documents. David W. Beier, a senior vice president of Amgen, the biotechnology company, said Medicare officials had issued such documents “with little or no public input.”

Hugh M. O’Neill, a vice president of the pharmaceutical company Sanofi-Aventis, said guidance documents sometimes undermined or negated the effects of formal regulations.

In theory, guidance documents do not have the force of law. But the White House said the documents needed closer scrutiny because they “can have coercive effects” and “can impose significant costs” on the public. Many guidance documents are made available to regulated industries but not to the public. * * *

Under the new White House policy, any guidance document expected to have an economic effect of $100 million a year or more must be posted on the Internet, and agencies must invite public comment, except in emergencies in which the White House grants an exemption.

The White House told agencies that in writing guidance documents, they could not impose new legal obligations on anyone and could not use “mandatory language such as ‘shall,’ ‘must,’ ‘required’ or ‘requirement.’ ”

The executive order was issued as White House aides were preparing for a battle over the nomination of Susan E. Dudley to be administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget.

Here is more, from Cindy Skrzychi, who until recently wrote about regulation for the Washington Post and now apparently is working for Bloomberg. She begins:
Jan. 30 (Bloomberg) -- On Jan. 18, while the headlines in the U.S. focused on the war in Iraq, the new Democratic Congress, and actress Lindsay Lohan's alcohol problem, the Bush administration rewrote the book on federal regulation.

President George W. Bush issued an executive order curbing the power of agencies to regulate industry through ``guidance'' - - informal advice that falls short of official rules yet can still cost companies millions of dollars to comply with. The order, which also calls on agencies to project the cost of new rules, among other demands, gives the White House more power to review how they regulate corporate behavior.

This is followed by quite a long, detailed, and valuable discussion of guidance documents, that concludes with:
Congress should be paying attention to the president's action because he is usurping the authority the lawmakers gave the agencies to regulate, according to Peter Strauss, a professor at Columbia University law school.

``It's maybe not surprising that having lost control of the Congress, the president is doing what he can to increase control of the executive branch,'' Strauss said.

Here it is - the OMB's "Final Bulletin for Agency Good Guidance Practices," in the Jan 25, 2007 Federal Register, plus a companion memo to the agencies.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to General Law Related

Courts - PBS series on U.S. Supreme Court begins tomorrow

"Suprme Court History" airs January 31 and February 7, 2007 9 pm EST. Here is the PBS site for the show.

Here is a review by Legal Times' Tony Mauro headed "PBS Series Spotlights the Supreme Court's Past and Present Personalities."

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Courts in general

About this blog - Don't miss updates

FYI - A number of today's entries (3 so far) have been updated with new information - scroll down to find them - there will be a notation in the heading, and the update should be at the end of the entry.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to About the Indiana Law Blog

Ind. Courts - Greene County Courthouse work hits snag

Nick Schneider of the Daily World reports, in a lengthy story that includes the following:

Weddle Brothers Construction Company, Inc. - the general contractor for the Greene County Courthouse Addition/Renovation project - has walked off the job because of an apparent dispute over outstanding claims not paid.

Weddle Brothers - based in Bloomington - ceased work on the courthouse project at 5 p.m. on Monday, due to what the company called “the lack of a formal response to outstanding monetary claims for its Phase II work on the project.”

The Phase II claims for payment, which amount to $710,399, are fully attributable to design changes that occurred after Greene County officials fired its initial design team, according to Don Turner, spokesman for the construction company.

“We really don't have a choice,” Turner said in a formal statement issued to area news media Monday evening. “Quite frankly, the last thing Weddle wants is yet another delay on this project, but our company and many of our subcontractors have had to unfairly bear the cost of the county's numerous design changes for more than seven months.

“When the county's attorneys recently told us we would have to wait until the project was completed before they would even respond to these costs issues, we had no other recourse but to take this action. Additionally, the county does not have the right to unilaterally increase the scope of the work in our original contract and then not pay us for it.” * * *

The project has been through a several other delays - including more than a year in 2003 while a new design team figured out a way to stabilize the foundation and have safety concerns of the contractor resolved. The project also had a recent delay late last year while asbestos and lead abatement was done on the second of third floors of the old courthouse structure which are being renovated to new office space.

Last month, project manager Corey announced that he anticipated remodel work on the second and third floors would be completed by late April.

Weddle Bros. has been involved in the work since the project started more than five years ago. The original architect - DLZ of Indiana - and structural engineer - United Consulting Engineers - were dismissed from the project, and Greene County has filed suit against them in December 2004. Weddle was named to this suit almost a year later. The suit is set for trial in Owen Circuit Court in July 2007.

The ILB has posted a number of other entries on the Greene County Courthouse - access them here.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Indiana Courts

Ind. Courts - Defendants now can be arraigned using video feed"

Jason Miller of the Michigan City News-Dispatch reported today in a story that begins:

Defendants now can be arraigned using video feed.

Sitting behind a large, brown table inside the LaPorte County Jail on Monday morning, some 20 orange-clad defendants answered questions posed by Judge William Boklund. The defendants were not looking into Boklund's eyes, but into a camera lens.

“It cuts down on transportation problems and it sure helps with security,” LaPorte County Deputy Prosecutor Steve Fenton told the courtroom shortly before 9 a.m. Monday as he prepared for the county's first video arraignment.

Monday's introduction of arraignment by camera was a long time coming, according to Boklund, who said the county had been looking into it since 2004.

LaPorte County lagged behind Michigan, which has arraigned incarcerated defendants by video for nearly a decade, and Porter County, which began the process when its new jail was built in 2002.

Defendants not in jail still appear in the courtroom, which is the way Boklund likes it. He said Monday after his first session he felt things went well, although he'd prefer to have defendants stand in front of him.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 11NFP)

(Link to Cases):

For publication opinions today (0):

NFP civil opinions today (6):

Coachmen Industries, Inc. v. Ker-Wood, Inc. (NFP) - breach of contract case; affirmed

Paternity of W.A.K. and J.N.K.; Crystal Feichter v. Jason Kochensparger (NFP)

In the Matter of A.M., Antonio Long v. Marion Co. Dept. of Child Services (NFP)

In the Matter of T.B. & W.M., Willie Buckley v. Lake Co. Dept. of Child Services (NFP)

In the Matter of J.L., Amanda Lutz v. Marion Co. Dept. of Child Services (NFP)

Carl Jones v. Kimberly Collins (NFP)

NFP criminal opinions today (5):

Christopher Gordon v. State of Indiana (NFP)

John Ray Maggert v. State of Indiana (NFP)

Derry L. Vaughn v. State of Indiana (NFP)

Dean Blanck v. State of Indiana (NFP)

Fred Landers v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit: "We are, however, distressed at the sloppiness with which the case has been handled by both sides." [Updated]

The 7th Circuit has issued an opinion today in an Indiana case. The facts [emphasis added]:

At 3:00 a.m. one morning, the defendant and his girlfriend left the Guvernment Bar and Lounge, a nightclub in downtown Indianapolis. The club was on the verge of closing for the night and other patrons were leaving, though we do not know how many. The front entrance to the club is on Market Street, and the couple left by that entrance and walked to an “alley” behind the club, though the satellite photograph appended to this opinion suggests that it is actually a parking lot. While there, the defendant fired six shots from a gun described in the record only as an FN Herstal pistol that holds 20 rounds of ammunition that can “penetrate up to 14 levels of body armor.” The shell casings were found in the parking lot. No one was injured. The club is only a couple of blocks from Monument Circle, the Times Square of Indianapolis (but a very tame and quiet Times Square), and is situated among buildings. There is no indication of the bullets’ trajectory or where they landed, though it seems undisputed that the defendant fired the shots into the air.

In U.S. v. Boyd (SD Ind., Judge Barker), a 10-page opinion, including a google satellite photo of a section of downtown Indianapolis furnished by the Court, Judge Posner writes:

The defendant pleaded guilty to being a felon in possession of a gun and was sentenced to 46 months in prison. The sentence was influenced by the district judge’s determination that the defendant had used the gun to commit another felony. A person who, “while armed with a deadly weapon,” “recklessly . . . performs . . . an act that creates a substantial risk of bodily injury to another person” (“recklessly” being defined as committing the act “in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct”) is guilty of a felony under Indiana law. Ind. Code §§ 35-41-2-2(c), 35-42-2-2(b), (c). * * *

[W]e do not think the judge committed a clear error or misinterpreted Indiana law in ruling that the defendant’s reckless action created a substantial risk of bodily harm.

We are, however, distressed at the sloppiness with which the case has been handled by both sides. Neither party attempted to quantify the risk created by the defendant’s conduct; and vague words such as “substantial” are not a satisfactory substitute for data, as we remarked in United States v. Chambers, No. 06-2405, 2007 WL 60874 (7th Cir. Jan. 9, 2007). Our Rutherford opinion, quoted earlier, examined statistics concerning the risks created by drunk driving, and there are published statistics on accidents from random shooting. See, e.g., Lawrence W. Sherman et al., “Stray Bullets and ‘Mushrooms’: Random Shootings of Bystanders in Four Cities, 1977-1988,” 5 J. Quantitative Criminology 297 (1989).

Less forgivably—for the enormous variety of the circumstances in which random shooting occurs may defeat efforts to estimate the probability that a given incident would result in injury—no satellite photo (available free of charge from Google) was placed in evidence to indicate the physical surroundings. Nor does the record specify the model FN Herstal that the defendant was using or the type of ammunition the gun contained. The judge made no finding concerning the number of persons on the streets near the shooting (another conflict in the evidence that she did not try to resolve) or whether any persons were in the alley when and where the shooting took place. There was also no evidence on whether there are apartment buildings as well as office buildings in the vicinity of the shooting.

Despite these gaps, we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute.

[Update] Don't miss Prof. Doug Berman's discussion of this decision in the Sentencing Law Blog.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Judge tosses lawsuit over school finances" [Updated]

The AP is reporting:

A judge dismissed a lawsuit Monday that accused Indiana of violating its constitution by failing to provide enough money for all children to have a fair chance to learn.

Marion Superior Court Judge Cale Bradford said the Indiana State Teachers Association improperly sued the governor and the superintendent of public instruction, who are not responsible for the state formula that determines school aid. The formula is determined by the General Assembly.

However, Bradford also dismissed the portion of the lawsuit that named the Indiana State Board of Education, which carries out the formula.

"A closer examination of plaintiffs' claim seems to be, in reality, dissatisfaction with how the formula is weighed and implemented by the state Board of Education, not the formula itself," Bradford wrote.

The lawsuit was filed last April on behalf of nine children and their families from eight school districts. The families were willing to be original plaintiffs in the lawsuit, which claims that the state is not adequately funding schools so they can meet academic standards and performance mandates placed on them.

The Associated Press left a phone message seeking comment Monday at the Boston office of Michael Weisman, who represented plaintiffs in the suit. It was not immediately clear whether ISTA would appeal.

Staci Hupp of the Indianapolis Star also has a story.

This ILB entry from July 13, 2006 is a good place to start for more information on the case, Bonner v. State, including a copy of the 7/13/06 motion to dismiss.

The ILB would be pleased to post Judge Bradford's ruling, if anyone can provide a copy.

[Updated] A reader has forwarded me this copy of Judge Bradford's ruling in Bonner.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Still more coverage of Governor's Illiana and Commerce Connector proposals [Updated]

The Senate Committee vote is expected this morning on SB 1.

The Gary Post Tribune and the NWI Times both have stories today on amendments which may be proposed by Senator Vic Heinhold of Kouts. From the Post-Tribune:

State Sen. Vic Heinold, R-Kouts, said he expects significant amendments to be added to Senate Bill 1 today at a hearing.

Heinhold's amendment would add legislative review to the choice of exact routes for the Illiana Expressway and the Indianapolis-area Indiana Commerce Connector, Heinold said.

From the Times, this story by Patrick Guinane:
State Sen. Vic Heinold, R-Kouts, wants the state to consider a longer Illiana Expressway that would be less intrusive to Porter County while steering commerce toward Starke County.

Heinold shared his vision with reporters Monday, ahead of today's initial vote on legislation that would allow Gov. Mitch Daniels to recruit private builders for the Illiana Expressway and a second tollway in central Indiana.

"I'm drafting a letter to the governor asking that he instruct the (Indiana) Department of Transportation to look at what I think is a more logical route, which would put the least impact on residents and probably have the most economic impact on my (Senate) district," Heinold said.

No exact route exists, but the state's conceptual map shows the highway curving northward along the southeastern edge of Valparaiso. Heinold said he would like to flatten out the route so that it touches only Porter County's southernmost townships -- Boone and Pleasant -- and then grazes northwest Starke County before curving north to end east of LaPorte.

"We've got Morgan Township (in Porter County) that's grown up," Heinold said. "We've got Porter Township, even north of Boone township that's all grown up. Bringing that corridor to Starke County could probably be the biggest economic impact that county has seen ever."

It's not clear how many miles Heinold's concept would add to the Illiana Expressway. As proposed by Daniels, the highway would span 63 miles, starting at Interstate 57 in Illinois, running east to Interstate 65 and then curving northward to connect with Interstate 94 near Michigan City.

The Senate Transportation Committee plans to vote today on Senate Bill 1, which would give Daniels permission to build the Illiana Expressway, along with the proposed Indiana Commerce Connector outside Indianapolis.

State Sen. Earline Rogers, D-Gary, today will propose the creation of a legislative oversight panel to advise the governor at various steps along the road-building process.

"What my amendment does is to provide a mechanism to keep us involved and informed throughout the entire process," Rogers said. Her plan would require that legislators from Lake, Porter and LaPorte counties be included on the oversight panel.

If the Transportation Committee approves SB 1 today, it will go the Tax & Fiscal Policy Committee for further review.

[Updated 12:17 p.m.] Theodore Kim of the Indianapolis Star is reporting:
A key Senate committee today passed a bill aimed at paving the way for Gov. Mitch Daniels to pursue privately operated toll roads in Central and Northwestern Indiana.

The 11-member Homeland Security, Transportation and Veterans Affairs Committee voted 8-3 to pass Senate Bill 1.

Before the vote, the committee adopted an amendment by Sen. Earline Rogers, D-Gary, to create two eight-member legislative committees to periodically review the progress of each project. But the committees would have no authority to stop the projects if they wanted to do so.

One project, known as the Indiana Commerce Connector, would start somewhere in Pendleton and run southwest around Indianapolis to the Plainfield area.

A second, the Illiana Expressway, would run from I-94 near Michigan City to I-55 in Illinois.

The bill now moves to the Senate Tax and Fiscal Policy committee.

The Committee Roll Call and the text of Senator Roger's amendment are not yet available. When they are, you will find them here.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Indiana Government

Ind. Law - Sex offenders must move

Ken Kosky of the NWI Times has a story today that begins:

The local sex offenders who had been legally living within 1,000 feet of area schools -- who were arrested after police said they failed to move once Indiana's sex offender laws were strengthened July 1 -- were court-ordered to move if they want to bond out of jail.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Indiana Law

Ind. Gov't. - More on: Three CAFO bills to be heard by Senate committee today

Following up on yesterday's ILB entry, here is the lengthy front-page report today by Bill Ruthhart of the Indianapolis Star on yesterday's CAFO hearings, headlined "Jousting starts over livestock megafarms: Pollution, smell spur bids to delay growth, raise fees." The story begins:

A battle over the fate of Indiana's largest livestock farms got under way Monday, as lawmakers debated whether to impose a three-year moratorium and new, higher fees on the operations.

Called confined-feeding operations because the animals never leave the barn, these farms are part of Indiana's growing agricultural economy. They're also the center of a growing number of complaints from neighbors who say the stench and pollution of the farms ruin their property values and quality of life.

Backers of the farms say most are environmentally responsible and play a key role in feeding Hoosiers and growing the state's economy.

The two sides squared off in an emotional, five-hour hearing Monday before the Senate's environmental affairs committee.

"I've seen swing sets, houses and laundry lines covered in manure from these farms," said Roxanna Hanford, a commissioner in Newton County, which she estimates has about two dozen of the confined-feeding operations. "They're terrible."

Studies in North Carolina and Iowa have found that people living near such large farms complain of fatigue, headaches, sore throats and respiratory problems. Purdue University is studying Indiana's farms for evidence of the same.

Statewide, there are about 2,200 of the large livestock farms, which must have at least 300 cattle, 600 swine or sheep or 30,000 fowl to be classified as a "confined-feeding operation."

About 575 of those are large enough to fall into a separate category called "concentrated animal-feeding operations." Those have at least 10,000 swine, 1,000 young cattle or veal calves or 125,000 fowl.

The Senate committee heard testimony on three proposals: one bill that would place additional fees on the farms, a second that would place a three-year moratorium on any new operations and a third that would prohibit counties from adopting ordinances that go beyond state law.

The report ends:
Kari Evans, the policy adviser on the environment and natural resources for Gov. Mitch Daniels, said the governor does not support a moratorium on the farms but does support the concept of Gard's bill to increase fees to allow for more inspections.

The committee took no action Monday. Another hearing is expected before a vote.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Indiana Government

Law - More on efforts to receive compensation for land taken to build Kentucky Camp Breckenridge

The ILB has had three entries, in 2004 and 2005, about Kentucky families' "long legal fight to get compensation for land taken from their families by the federal government to make way for a World War II training camp."

Today the Louisville Courier Journal has this story by Jim Adams headlined "O'Connor may mediate dispute." Some quotes:

Retired U.S. Supreme Court Justice Sandra Day O'Connor has told a federal court that she is willing to mediate a decades-old dispute over the government's taking of nearly 36,000 acres in Western Kentucky for an Army training camp during World War II.

More than $30 million appears to be at stake in the highly unusual case, in which about 1,000 former landowners and heirs complain that the federal government wrongly benefited from the sale of oil, gas, coal and other mineral rights under the land of the old Camp Breckinridge. The camp sat astride Union, Webster and Henderson counties.

The dispute was aired most recently in a class-action suit before Judge Susan G. Braden of the U.S. Court of Federal Claims in Washington, D.C. To encourage a settlement, Braden proposed in December that Fred J. Fielding, who was counsel to President Ronald Reagan from 1981 to 1986, serve as mediator.

But on Jan. 9, President Bush announced that Fielding was returning to the White House as his general counsel.

Braden then asked O'Connor to consider mediating the case and, according to an order Braden entered last Friday, the recently retired justice agreed to do so.

Multiple legal issues remain unresolved, and Braden's order proposes that O'Connor serve as mediator "for a term of 120 days to ascertain whether a settlement may be achieved." * * *

Early in World War II, the government decided the farmland immediately east of Morganfield was prime real estate for an Army training site. So between 1942 and 1944, it initiated six condemnation actions in U.S. District Court, taking the property of hundreds of landowners.

The government paid them about $3.1 million for 35,849 acres, and Camp Breckinridge eventually held as many as 45,000 soldiers at a time.

By the 1950s, if not earlier, the government became aware of substantial oil, gas and coal reserves beneath the property -- and by the 1960s was selling off the mineral rights and the land itself.

The former landowners complained that the government sold the land in blocks too large for average individuals to buy. Such an action, they claim, violated verbal understandings at the time of the sales that the former owners would have the option of buying back their farms, should the government ever sell the property.

In addition, they argue that it was unfair for the government to profit as it did from more than $30 million in the sale of mineral rights.

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to General Law Related

Ind. Courts - "Mary Beth Bonaventura to talk about MTV series filmed in her courtroom"

Ruthann Robinson reports today in the NWI Times:

Lake County Juvenile Court Judge Mary Beth Bonaventura has hit the big time.

Bonaventura is scheduled to be interviewed today on NBC's "Today" show by host Ann Curry about her participation in the MTV series "Juvies," shot entirely in the judge's Lake County courtroom.

The interview is set to run live during the show's 7 a.m. hour. After that, Bonaventura is scheduled to go to the Court TV studio of Catherine Crier to be interviewed at 4 p.m.

On the way to the airport Thursday, Bonaventura tried to calm the butterflies she was feeling.

"I've never been on national TV, and I'm not sure how I'll react to seeing people who are famous around me," Bonaventura said.

She wasn't too nervous to joke, however.

"I saw that today, Harry Connick Jr. was on, and I thought, 'Darn, why couldn't he be on Tuesday?' "

Pre-interview questions focused on her longevity on the bench and what made her agree to allow the filming in her court.

The series, produced by South Bend native Karen Grau's Calamari Productions, was filmed over several weeks last winter. Filmmakers tracked the progress of 17 local teens in trouble with the law.

Bonaventura said she wanted to be a part of the series because she thought it was a good idea for teens to see what really happens when they are accused of wrongdoing.

The Indiana Supreme Court gave Grau, who now lives in Indianapolis, unprecedented access to juvenile court proceedings in 1998.

The payback for the courts is the camera catches teachable moments. All footage Grau shoots is available for judge, lawyer and court volunteer training.

From the South Bend Tribune Sunday:
The documentary on MTV, which begins Thursday and runs for eight weeks, is the brainchild of executive producer Karen Grau, who grew up in a tidy mom-and-pop family in Mishawaka.

Since 1998, Grau has taken the camera into turf in Indiana that is legally forbidden to the media -- kids in foster care and/or detention -- and aired it nationally on NBC's "Dateline" and on MSNBC and PBS.

Her passion for TV work began at Mishawaka High School, where Grau, a 1980 graduate then known by her maiden name Furore, took a TV production class with teacher Bruce Chamberlin. Hooked, she became a TV reporter in Indianapolis, feeling constrained by doing stories in just "a minute 30 (seconds)."

She took time off when she was pregnant with her son in 1995. While helping her husband, a consultant, with a court research project, she sat in on court cases. Her first one was a hearing to terminate parental rights.

"I could not believe what I was hearing," she says. "From that moment, I thought about how I can produce a documentary. I let the idea fester for a couple years."

She petitioned the Indiana Supreme Court for a waiver to allow her into the courts that rule on abused, neglected and delinquent kids and their families. It was granted. She found judges willing to let her into their courts in Marion, Monroe and Lake counties.

Without a buyer for her film, Grau and her husband took out a huge loan on their house and went through a "financially excruciating" period to front the money for cameras and crews.

As the first piece aired, it gained a lot of responses from people who wanted to help the kids. That opened doors for her to do more, David Remondini says.

Grau has to petition the courts for access with each new project. The counsel to Chief Justice Randall T. Shepard of the Indiana Supreme Court, Remondini says Grau wins it because she takes a deep look. He recalls another request from an Indianapolis TV reporter to open the courts for an isolated case. It was denied.

Grau's Indianapolis-based Calamari Productions did "Washington Wives" for the A&E network, and other topics, but it's most known for filming kids and families in the system, which she calls "one of the biggest fishing holes" for stories.

"MTV Juvies" targets MTV's demographic, 12- to 34-year-olds, especially the teens. She wants kids to see "what juvie is and what happens to you when you have to spend time in detention." Adults will find it gripping, too. * * *

The judge who permitted "MTV Juvies" in her courtroom and detention center one year ago, Mary Beth Bonaventura, is proud of the project.

"I didn't want the show to trivialize or minimize what we do," Bonaventura says. A judge for 25 years, she loathes the trend to reality shows and admits she had jitters just before filming began, but she noticed the seriousness of the crew: "Things I do every day, they were back there crying."

Grau says she talks extensively with each kid and parent in her projects and gains their permission. And she's kept in touch with all of the kids she's filmed so far.

"That was my promise to the judges," she says. "I'm not here to expose these kids and their families. ... To me, (staying in touch) helps me to show how the system does or does not help kids. ... I relay all of that information back to the courts."

Carolina Proctor of the Gary Post-Tribune has this story, headlined "MTV Series Goes Behind The Walls of Lake County 'Juvie'".

For background, start with this ILB entry from Oct. 3, 2006,

Posted by Marcia Oddi on Tuesday, January 30, 2007
Posted to Indiana Courts

Monday, January 29, 2007

Ind. Gov't. - Recent coverage of Governor's Illiana and Commerce Connector proposals

Updating the ILB's most recent entry on these proposals, which was Jan. 25th, here are newer stories, oldest first:

[More] Here is a pro-expressway editorial from last Sunday's Gary Post-Tribune. A quote: "Sen. Vic Heinold, R-Kouts, said he wants legislative oversight on the final path of the highway. We think that would only mire the process, since not everyone is going to be in agreement on the route. ... There will be ample time for public input during the impact studies. It is the Legislature's job to authorize the project, not micromanage it. The last thing needed is a delay during this legislative session. We must proceed; we should have 30 years ago."

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Indiana Government

Ind. Courts - Monroe County Courthouse needs new roof

James Boyd of the Bloomington Herald Times (not available online) reports today:

For the first time in several generations, the Monroe County Courthouse dome will look shiny again within the next few months. But it won’t last forever.

Repairs to the 99-year-old dome are now under way, and are expected to be finished up sometime by early summer.

“It’s an exciting project,” County Commissioners Executive Director Jane Marie Lind said. And, she said, one that has to be done. “We’re not doing it because (the dome) is going on 100 years old; we’re doing it out of necessity.”

The roof has begun springing a few leaks over the past few years. “Leak, leak, leak, leak, leak,” Lind said. “We can’t afford enough buckets!”

The county can afford the $384,220 the entire project is expected to cost. * * *

“The fact that we’re doing the dome is important to us,” Jeff Lyman, a project manager for Midwest Maintenance said. “We’ve been lucky enough to work (at the courthouse) about four times, so this place means a lot to us and our involvement with the county.” The Piqua, Ohio-based firm began setting up for construction last week.

Lyman said the ornament on top of the dome will be removed within the next few weeks, and then, the green patina dome will be taken off, panel by panel. “We’ll be putting on a rubberized membrane to keep it watertight,” he said. The move is necessary to protect not only the roof, but the things it covers. “There’s some really pretty artwork on the inside,” Lyman said. * * *

Lyman said it’s too hard to tell how long the copper finish will last.

“It’ll start to turn (patina green) within the first year,” Lyman said. “It’ll dull down and won’t be as bright. For a lot of people, the brightness is what draws their attention, but it doesn’t really last. Some like it, some don’t. Either way, it’ll start to turn in about a year.”

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

(Link to Cases):

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (6):

John Hatcher v. State of Indiana (NFP)

Michael Scott v. State of Indiana (NFP)

Montress D. Brown v. State of Indiana (NFP)

Keith Hosea v. State of Indiana (NFP)

Candy Joann Hill v. State of Indiana (NFP)

In the Matter of A.S. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Ind. App.Ct. Decisions

Courts - Indiana Supreme Court to Hold Oral Argument Tomorrow at IU Law-Bloomington

From the release:

The Indiana Supreme Court will hold an oral argument in the Moot Court Room of the Indiana University School of Law in Bloomington at 12 p.m. on Tuesday, January 30, 2007, Chief Justice Randall T. Shepard announced today.

The appeal being heard is Richard Brown v. State. Following a jury trial in the Marion Superior Court, Mr. Brown was convicted of three counts of class D felony criminal confinement and three counts of class D felony identity deception in connection with the appellant's telling victims they would win a prize if they would leave their clothing at the appellant's residence. The Court of Appeals reversed the confinement convictions and affirmed the others in Brown v. State, 848 N.E.2d 699 (Ind. Ct. App. 2006), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal.

Attorney Joel Schumm, of Indianapolis, will represent Mr. Brown and Deputy Attorney General Kathryn Stein will represent the State of Indiana.

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Ind. Sup.Ct. Decisions

Law - Citing Wikipedia, or the Internet in general - the concerns

The NY Times has an article today by Noam Cohen headlined "Courts Turn to Wikipedia, but Selectively." It begins:

When a court-appointed special master last year rejected the claim of an Alabama couple that their daughter had suffered seizures after a vaccination, she explained her decision in part by referring to material from articles in Wikipedia, the collaborative online encyclopedia.

The reaction from the court above her, the United States Court of Federal Claims, was direct: the materials “culled from the Internet do not — at least on their face — meet” standards of reliability. The court reversed her decision.

Oddly, to cite the “pervasive, and for our purposes, disturbing series of disclaimers” concerning the site’s accuracy, the same Court of Federal Claims relied on an article called “Researching With Wikipedia” found — where else? — on Wikipedia. (The family has reached a settlement, their lawyer said.)

A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term “booty music” as played during a wet T-shirt contest.

More from the article:
Many citations by judges, often in footnotes, are like Judge Posner’s, beside the main judicial point, appear intended to show how hip and contemporary the judge is, reflecting Professor Sunstein’s suspicion, “that law clerks are using Wikipedia a great deal.” * * *

As opposed to these tangential references, Wikipedia has also been used for more significant facts.

Such cases include a Brooklyn surrogate court’s definition of the Jewish marriage ceremony and the Iowa Court of Appeals’ declaration that French is the official language of the Republic of Guinea. In 2004, the Court of Appeals for the 11th Circuit, in Georgia, referred to a Wikipedia entry of the Department of Homeland Security’s threat levels in a ruling concerning magnetometer searches of antiwar protesters.

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.

Recognizing that concern, Lawrence Lessig, a professor at Stanford Law School who frequently writes about technology, said that he favored a system that captures in time online sources like Wikipedia, so that a reader sees the same material that the writer saw.

He said he used www.webcitation.org for the online citations in his amicus brief to the Supreme Court in Metro-Goldwyn-Mayer Studios v. Grokster Ltd., which “makes the particular reference a stable reference, and something someone can evaluate.”

I have highlighted some provisions in the article that I think are very important. Citing Wikipedia (where the infomation relied on may not always be accurate) is only part of the issue.

Citation to anything on the web is nothing more than a link to the location of a document on a server located somewhere in cyberspace. The document can be removed, the server can be taken down. That is one set of problems. They are addressed by sites such as WebCite.com, which describes iitself as "an archiving system for webreferences (cited webpages and websites)." More from the site:

Authors increasingly cite webpages in medical and scientific publications, which can "disappear" overnight. The problem of unstable webcitations has recently been recently referred to as an issue "calling for an immediate response" by publishers and authors.

The other set of problems involves the fact that the document may be changed, with no indication, meaning that the citation now leads to something other than that which the judge or author intended, and who is to know? Or the document may indicate it has been corrected or revised, but give no clue to what it said before. These are problems, as the ILB has written before, inherent in the Indiana General Assembly's website, as it relates to the Indiana Code, the Acts of Indiana, and the Indiana Register.

[More] The Wall Street Journal Blog has also referenced the NYT story - see the entry here, along with readers' comments.

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to General Law Related

Court - Only woman on U.S. Supreme Court fears the message now is that a woman justice is a "one-at-a-time curiosity, not the normal thing."

Joan Biskupic of USA Today reports on her interview with Justice Ruth Bader Ginsburg. Some quotes:

WASHINGTON — It's been a year since Sandra Day O'Connor retired from the Supreme Court after a quarter-century tenure and left Ruth Bader Ginsburg as the lone woman on the nine-member court. Although it's unclear how O'Connor's departure will affect the law, this much is certain: Ginsburg misses her friend, and worries about the message court visitors get when they see only one woman on the bench. * * *

For now, O'Connor's absence is more symbolic. In court, the sight of Ginsburg — a slight figure in a tall, black leather chair, flanked by eight men — contrasts with the rising prominence of women in Congress. The number of female judges also is rising: Of the 875 federal judges, 201 are women.

Ginsburg is encouraged by such numbers, but disconcerted by the look of her own court. She said with O'Connor, the message was: "Here are two women. They don't look alike. They don't always vote alike. But here are two women." The former women's rights lawyer fears the message now is that a woman justice is a "one-at-a-time curiosity, not the normal thing."

And of course Indiana has had a woman on its Supreme Court only once, for a brief time, nearly a decade ago.

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Courts in general

Ind. Courts - "With legal reform on its docket, Japan looks to Indiana courts"

"With legal reform on its docket, Japan looks to Indiana courts: Judge visits Indianapolis as part of Asian nation's effort to introduce juries to courts" is the headline to this story by Jon Murray in today's Indianapolis Star. It begins:

A trial by jury. Reasonable doubt.

They're new concepts for modern Japan, ones that are sending judges to Indianapolis and other far-flung cities as the island nation tries to inject citizen participation into its criminal justice system.

Judge Goichi Nishino, of Kobe, Japan, was in Indianapolis for the past two weeks, sitting in on court actions, talking to state and federal judges, and observing how the jury and trial system works.
He left Saturday for stops in Evansville and Kentucky, and then will report back on how jurors are selected and their roles in trials.

Juries, alongside judges, will start their work in Japan starting in 2009. Japan's National Diet (equivalent to the U.S. Congress) passed the law creating the "saiban-in" system -- meaning "lay judges" -- in 2004. Judicial officials still are figuring out the finer points.

"We're very interested in how to deal with lengthy and complex cases," Nishino said.

Unlike the U.S. system, which often uses a dozen jurors, Japan will try its most serious criminal cases with six lay judges to supplement the three professional judges. Majority votes will decide the conviction and sentence, but at least one professional judge must agree.

Nishino said one difficulty is that trials -- now decided by three-judge panels -- sometimes stretch out over weeks and months with sporadic sessions.

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Indiana Courts

Ind. Gov't. - Three CAFO bills to be heard by Senate committee today

Rick Callahan of the Gary Post-Tribune reports:

Three wide-ranging bills targeting the state's largest livestock farms are expected to draw spirited testimony Monday from supporters and opponents when they go before a Senate panel.

Sen. Beverly Gard, who chairs the Senate's environmental affairs committee, is sponsoring the most sweeping of the bills --one that would significantly increase permit fees for new livestock farms to help the state hire more inspectors to monitor the farms for violations.

Her bill contains several other provisions, the most significant of which would require the State Chemist's Office to train farm workers in applying animal waste on cropland as fertilizer -- the most common method of disposing of the large amounts of manure the farms generate.

Gard, R-Greenfield, said the single biggest complaint she hears about the farms arises from problems with land application of the manure they produce. Improper application of the nutrient-rich waste can threaten drinking water or kill fish.

Right now, she said Indiana has only enough farm inspectors to inspect each of the state's roughly 2,200 big livestock farms once every six or seven years.

Gard said the goal would be to hire enough additional inspectors so that each farm could undergo annual inspections.

''Confined feeding farms are a valuable industry and I believe they can coexist with everybody else, but it's a matter of how you manage them,'' she said.

Her bill has already generated opposition from agricultural groups because it would raise permit fees for large livestock farms up to 30-fold to help the state hire more inspectors.

''That's causing a little bit of an issue because it's a pretty big sticker shock,'' she said. * * *

Aside from Gard's bill, her committee will also hear testimony Monday on legislation sponsored by Sen. Allen Paul, R-Richmond, that would impose a three-year moratorium on new CAFOs from being built in Indiana.

Paul's east-central Indiana district has seen a large number of CAFOs built in recent years, prompting complaints that farm odor and runoff are hurting property values and quality of life.

The third bill on Monday's agenda would forbid county ordinances from adopting provisions beyond those specified under state law. The bill, sponsored by State Sen. Bob Jackman, R-Milroy, would take effect after May 15, 2007.

Here is the Committee notice:
AGENDA FOR: Energy and Environmental Affairs

MEETING: January 29, Upon Adjournment [ILB - Note that the Senate is set to convene at 1:30 p.m. today - Mon.] , Senate Chamber

CHAIR: Senator Gard

MEMBERS: Riegsecker R.M., Bray, Dillon, Drozda, Hershman, Miller, Hume R.M.M., Errington, Lanane, Tallian

AGENDA: SB 0431 SB 0447 SB 0570

NOTES: 1 hr. information, 1 hr. CAFO opposition & 1 hr. CAFO support

ILB - You may be able to watch this hearing online (but only while it is in progress). Check this link later today.

In a related matter, the Muncie Star-Press has this story today by Seth Slabaugh, headed "Pork producer negotiating plea deal." Some quotes:

MUNCIE -- Criminal and civil complaints against a pork producer who allegedly violated environmental management laws are likely to be settled without trials.

"We are still negotiating a plea agreement," said Eric Hoffman, a Delaware County deputy prosecutor, which is the same thing he said in August.

Jacobus "John" Tielen, 38, rural Eaton, faces three class D felony counts of violating environmental laws filed Oct. 12, 2005, dismissed on April 4, 2006, and re-filed the next day.

He is accused of knowingly or intentionally failing to maintain the required minimum freeboard of two feet in a lagoon holding 12 million gallons of hog manure. Freeboard is the distance between the manure level in the lagoon and the top of the lagoon.

On June 8, 2005, the Indiana Department of Environmental Management filed a lawsuit against Tielen to restrain him from further swine breeding and to address his "brimming manure lagoon." The breeding ban was later lifted.

Since 1999, Tielen has been fined more than $21,000 for spilling manure, failing to report a manure spill, killing fish and other violations. Authorities claim he has continually shown contempt for laws, rules and orders governing manure management.

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Environment | Indiana Government

Ind. Decisions - Pike County judge rules marriage invalid and denies motion to dismiss criminal charges against woman

A story by Katie Harp in the Princeton Daily Clarion reports:

PETERSBURG-A Pike County judge decided last week that the marriage between Misty Davis and triple murder suspect, Nicholas Harbison is not valid, according to the ruling released Friday, and he denied a motion to dismiss criminal charges against the 23-year-old woman.

In a six-page ruling, Pike County Circuit Court Judge Jeffrey Biesterveld denied a motion submitted by the defense for the court to dismiss two counts filed against Davis - a decision that her attorney Steve Whitehead said he will appeal.

Whitehead asked the court on Oct. 13, 2006 to dismiss charges of assisting a criminal against Davis, claiming that she and Harbison had been married in Kentucky in 2002. He presented the court with a Kentucky marriage license that said the couple had been married June 11, 2002 in Owensboro, Ky.

Under Indiana law, a person who is a spouse, parent or child of a suspect cannot be charged with assisting a criminal.

But in his ruling, Biesterveld decided that the 2002 marriage was invalid because Davis claimed to be 18 on the marriage certificate, when she was actually only 17. Davis would have needed parental consent to be married when she was 17 - which she did not provide - thus making the union void, the judge wrote in his decision. * * *

Pike County Prosecutor Darrin McDonald said the case against Davis is one step closer to going to trial. “It's good to get through the first hurdle,” he said.

But McDonald said he anticipates that Whitehead will appeal the judge's decision to deny his motion to dismiss the charges because a precedent has not been set in a case similar to this one.

Whitehead said he intends to file a petition in the next couple of weeks in Pike Circuit Court asking Biesterveld for permission to appeal the marriage's validity to the Indiana Court of Appeals.

For the judge's decision to be appealed, Biesterveld has to certify the appeal and the court of appeals must agree to hear the case.

In his ruling last week, Biesterveld also declined to grant dismissal on the defense's contention that the charges against Davis were filed in the incorrect venue.

In his motion, Whitehead argued that crimes have to be tried in the county where the offense was committed. Whitehead contended that none of the offenses Davis is accused of were committed in Pike County.

But the judge disagreed, citing Indiana law which states that if a person committing an offense is located in one county and the victim in another, the case may be tried in either county.

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Senator Sue Errington writes weekly column

"Week in Review at the Indiana General Assembly" is the title of a weekly column by Senator Sue Errington, published in the Muncie Free Press. Here is how this week's column begins:

The filing deadline for the introduction of bills this session has now passed. The Senate has begun its review of 583 bills introduced by its members and the House is considering 837 proposals. Committee activities have gained momentum in the Senate and many bills have begun to make their way to the chamber floor for consideration by the full body. This brief summary highlights some of the legislative action taken last week.
The ILB thought it had posted last week's column, but apparently not, so here is the link. It began:
Senate and House committees are now underway as legislators begin to work their initiatives through the first step of the process. All standing committees hold public hearings so legislators can carefully review each bill and hear public testimony before advancing legislation to the full House or Senate chamber for further consideration. This brief summary discusses several bills that have been introduced and highlights of other legislative activities that took place last week.
Readers will recall that Sue Errington, Democratic Senator representing Muncie, was mugged in a Northside Indianapolis CVS parking lot at 119 W. 56th Street. But, as shown by her columns, this unfortunate and no doubt very frightening event does not seem to have slowed her down.

Posted by Marcia Oddi on Monday, January 29, 2007
Posted to Indiana Government

Sunday, January 28, 2007

Law - Indiana reportedly handles auto salvage problem better than other states

Here is a story the ILB located from today's Austin Texas Statesman, headlined "State Farm still facing problems from salvage title controversy: Scores of lawsuits target failure to disclose that vehicles had been wrecked." Some quotes from the lengthy story (my emphasis):

Paula Garcia, a 73-year-old widow in the North Texas town of Haskell, got a shock when she went to the county tax office in October to renew the registration on her 1996 Pontiac Grand Am.

Garcia paid $6,000 for the car in 2001 — an in-the-ballpark price at the time — and said it always ran well except for the front end pulling slightly to the right. What she didn't know was that in 1997, State Farm Mutual Automobile Insurance Co. had determined that the car was totaled and sold it at auction without disclosing that fact.

The tax office told her the state of Texas had flagged her car as a totaled vehicle and she needed to turn in her title for one branded "rebuilt — salvage."

"I thought I was going to have a heart attack," Garcia said. "The lady at the tax office said, 'Paula, we never have this problem.' Since I've been by myself, I've bought two or three vehicles and never had a problem. I tell you, I was disappointed and I was upset and I was nervous."

Her car was one of 9,451 wrecked vehicles in Texas that State Farm resold with an improper title from June 1997 through 2002. Nationwide, State Farm admitted selling at least 30,000 such vehicles.

Without accurate titles, the buyers almost certainly overpaid and didn't know about potential hidden damage or safety problems. Consumer Reports says rebuilt salvage vehicles can be worth half of the book value or less.

In January 2005, the attorneys general of every state but Indiana reached a settlement with State Farm. So far, the insurer has paid $41 million to nearly 17,000 vehicle owners, including $6.7 million to Texas consumers, although only 2,756 Texans participated in the settlement.

Owners who junked their cars and sold to another party weren't eligible for the settlement.

Two years later, State Farm faces increasing fallout from the deal. According to lawyers who specialize in "lemon law" cases, people who didn't take State Farm's offer have filed more than 100 lawsuits against the company and the dealerships where they bought the vehicles, for not disclosing the damage. * * *

Indiana wasn't in the settlement because of an existing court order against State Farm.

In 1998, after a two-year investigation by the State of Indiana, State Farm agreed to buy back 1,400 vehicles it had declared totaled and sent into the marketplace with a clean title.

Unlike the multistate deal, where State Farm came forward with an estimate of wrongly titled vehicles, Indiana started its investigation after a tip from a Greenfield, Ind., car dealer.

The result was a much better deal than the 49 other states negotiated. State Farm bought vehicles from Indiana owners who wanted to turn them in, paying the book value at the time the consumer purchased it, the cost of any repairs and finance charges on loans.

[Austin lawyer Joe Longley, an insurance and consumer specialist,] said the 49 attorneys general should have negotiated this type of settlement.

Posted by Marcia Oddi on Sunday, January 28, 2007
Posted to General Law Related

Ind. Gov't. - More on: Two lucrative offices issue raised again

Updating this ILB entry from Jan. 4th, the NWI Times reports today, in a story by Susan Brown:

HAMMOND | With the City Council having reached no conclusion about whether 1st District Councilman Mark Kalwinski is holding dual offices in violation of the state constitution, Councilman Robert Markovich last week urged the council to get a legal opinion on the mayor's latest appointments to the Hammond Human Relations Commission.

Markovich was unsuccessful, and the council later approved the appointments of Controller Barbara Cardwell and Deputy Building Commissioner Kelly Kearney.

In recent weeks, the constitutionality of the council's practice of appointing its own to the Port Authority has been questioned. Under the state constitution, officeholders may not hold two lucrative offices. Currently Kalwinski, who earns about $22,000 as a councilman, receives an additional $6,100 for serving on the Port Authority. If found to be holding dual offices, Kalwinski could lose his council seat.

Human Relations commissioners earn only $50 per meeting and meet only once a month, but Markovich said the prohibition against holding dual offices involves more than money. It also addresses potential conflict of interest, he argued.

Markovich had raised the issue because Cardwell, though unpaid, also serves on the Board of Public Works and Safety. The controller, the city engineer and the city corporation counsel all serve on the board by ordinance. * * *

Financial consultant Ed Krusa, who acts as the administration's liaison to the council, angrily dismissed Markovich's suggestion the council seek legal advice on the appointments. The appointments are within the authority of Mayor Thomas McDermott Jr. and approved by City Attorney Kris Kantar, Krusa said.

The council's own attorney, Robert Berger, said he had not researched the controller's position regarding the constitutional question, only the council's. Nevertheless Berger said he believed the rule would not apply to Kearney, the second-in-command of the building department.

Later in the week, Kantar said Cardwell was not likely to face a conflict because police and fire services are unionized and discrimination complaints would be handled through an internal grievance process.

In addition, Hammond's commissioners never hear employment issues, she said.

"Their main function is to assist with housing discrimination, and they do an admirable job of that," she said.

Posted by Marcia Oddi on Sunday, January 28, 2007
Posted to Indiana Government

Ind. Gov't. - Fix property assessments first, opines Journal Gazette

"Fix property assessments" is the headline to today's Fort Wayne Journal Gazette editorial that begins:

As lawmakers begin to consider comprehensive changes to Indiana’s property tax system, a word of caution from a fiscal watchdog is in order. Before anything is done, the state must fix its broken property value assessment system.

That’s the warning from the Indiana Fiscal Policy Institute, the independent organization that analyzed results of the state’s first general reassessment under a market-value based system. The 2005 analysis found that Indiana’s 92 counties did not uniformly adhere to data standards.

“In terms of assessments, we found almost a systematic inconsistency,” said Mark Brown, the institute’s research director and author of the equalization report. “There were some homeowners with assessed valuations as little as 65 to 75 percent of market value, others with 130 to 135 percent of market value.”

Tremendous inconsistencies were found between the state and counties. Within counties, assessors and auditors often used different data procedures and systems, resulting in the flawed values. Because a property owner’s tax levy is determined by the total of a taxing district’s assessed valuation, under-assessed or over-assessed properties skew the base figure and, in turn, the tax rate. Under-assessed properties result in a higher tax rate and higher tax bills.

Any tax system that overcharges or undercharges taxpayers is inequitable and must be corrected.

Here is a link to the Indiana Fiscal Policy Institute; here is a direct link to the Property Tax Equalization Study.

Posted by Marcia Oddi on Sunday, January 28, 2007
Posted to Indiana Government

Ind. Law - Explaining Indiana's sentencing structure

Niki Kelly of the Fort Wayne Journal Gazettee has a valuable article today explaining Indiana sentencing structure, by way of reporting that "[w]ith lawmakers eyeing precious cash reserves for education improvements and property tax overhaul, the price tag on several proposals to keep criminals in prison longer may prove a hurdle too large to overcome." More:

The state sentencing structure was established by the General Assembly in 1976 and includes three time classes.

The vast majority of the state’s 23,000 inmates are placed in Time Class I, which means they earn a day of credit for every day served, requiring them to serve only 50 percent of their sentence if they behave.

Fewer than 1,000 inmates usually are in Time Class II, which means they earn a day of credit for every two days they serve. And even fewer offenders are in Time Class III, where no additional credit is granted for time served.

When offenders break institution rules, prison officials can demote them to a different time class and take away good time they have already earned.

[Sen. Jim Merritt, R-Indianapolis] and others want offenders of some of the most serious crimes to serve at least 85 percent of their sentence under legislation that would create a fourth time class.

“The more possible time served, I think, provides a deterrent. If a criminal knows he gets eight but serves four, that’s not much of a deterrent,” he said. “I think victims would love the increase, almost a doubling of what a criminal serves.”

What do other states and the feds do?
Nationally, Indiana is one of only four states to have a 50 percent good-time requirement. At least 29 other states meet the federally recognized 85 percent rule, according to a Bureau of Justice Statistics report.

Federal sentences require inmates to serve 85 percent of their sentence, and many states over the years have followed a similar standard.

In the early 1970s, states used indeterminate sentencing in which a convict received, for example, four to 20 years, and a parole board decided when an offender would be released. Pressure for longer sentences and uniform punishment led to mandatory minimums and sentencing guidelines in the 1980s, the report said.

Then in 1994, Congress authorized financing for additional state prisons and jails when states moved toward truth in sentencing and the 85 percent standard.

There theoretically could be funding available for Indiana as well, though Congress would have to reauthorize it, said state Sen. Jeff Drozda, R-Carmel.

And none of the proposals so far deal with all offenders. Drozda’s Senate Bill 2 is expansive, covering 57 offenses from murder and rape to destroying a handgun and maintaining a common nuisance.

Calculations related to additional operating costs and capital costs are attached to the proposed legislation indicate the changes will be costly. For instance, more than 700 new beds would be needed in 2008 alone. Those plus additional operating expenses bring the cost in that year to $52 million.

And the numbers will grow dramatically, with an estimated cost of $260 million cost in 2060.

In general, it costs an average of $58.99 a day or $21,531.35 a year to keep an adult inmate incarcerated in Indiana.

Merritt’s legislation is slimmer, covering just 15 of the more heinous crimes, from kidnapping and rape and child molesting and criminal deviate conduct.

The costs are cut in half in the bill – reaching $131 million by 2060.

There is much more to Kelly's report today.

Posted by Marcia Oddi on Sunday, January 28, 2007
Posted to Indiana Law

Ind. Gov't. - Tracking what is happening in the General Assembly

Bryan Corbin of the Evansville Courier & Press has another excellent rundown today of legislative activities from last week, headlined "Legislature to consider toll road, marriage bills."

I'm told this is to be a weekly feature in the C&P during the session. Here is a link to earlier articles.

Today's article concludes with this look ahead at the Legislature's fourth week:

Here are links to the Senate Commitee Schedule, and the House Committee Schedule.

To follow bills already out of committee, here are the House and Senate calendars for Monday of bills on Second and Third reading.

Posted by Marcia Oddi on Sunday, January 28, 2007
Posted to Indiana Government

Saturday, January 27, 2007

Ind. Courts - Costs of David Camm retrials lead to legislation

Lesley Stedman Weidenbener of the Louisville Courier-Journal writes today:

INDIANAPOLIS -- The state would pay for criminal retrials ordered by Indiana appellate courts under legislation filed by a New Albany lawmaker frustrated by a case that has cost Floyd County millions of dollars.

Rep. Bill Cochran said last year's retrial of David Camm, convicted a second time of killing his wife and their two children at his Georgetown home in 2000, cost the county more than $1 million.

The total cost of the case -- including both of Camm's trials and the trial of co-defendant Charles Boney -- is about $2.9 million, said Floyd County Auditor Teresa Plaiss.

Cochran said: "Some counties would be devastated, broke, even unable to open the doors facing that kind of cost. It's just time the state took over the responsibility whenever a case is remanded by the Appeals or Supreme Court."

House Bill 1692 would require the state to pick up criminal retrial costs -- regardless of what kind of charges are involved or why the case was sent back. That includes expenses incurred by the trial court, prosecuting attorney and public defender, including the costs for expert witnesses and the sequestering of juries. It would not reimburse for the salaries of any judicial officials. * * *

"It's to solve a problem that happens whenever there's a high-profile murder case," [Larry Landis, executive director of the Indiana Public Defender's Council] said. "When that burden falls on a small or medium-size county, there's all this unfunded liability that's not been included in the budget process. It's almost like counties need catastrophic crime insurance to pay for the cost of dispensing justice."

House Speaker Pat Bauer, D-South Bend, said lawmakers are interested in looking at proposals to incorporate more court costs into the state budget. He said Cochran's idea could be folded into broader court-related legislation.

Yesterday David Mann of the New Albany News & Tribune wrote:
[Rep. Bill] Cochran introduced House Bill 1692 on Friday; a piece of legislation that would require the state of Indiana to foot the bill when local courts are ordered to re-try criminal cases. The legislator evoked the name of David Camm in justifying the bill.

"A Floyd County jury found Camm guilty in March 2002, only to see the appeals court grant him a new trial," Cochran said. Camm, a former Indiana State Trooper was found guilty for a second time earlier this year of murdering his wife and children. "A second trial took place in 2006 and jurors reached the same conclusion as four years before: guilty," he said.

Cochran pointed out that the price tag for both of the trials ended up being close to $2.9 million. Most of that cost, he said, came as a result of the re-trial.

"Many people, myself included, have a hard time understanding why we have to pay that kind of money to reach the conclusion in two separate trials." Cochran called the burden on small counties such as Floyd "financially devastating" to hold a costly criminal trial. "Where is the justice for the local people who had to live through this nightmare a second time, then find out that they're paying for it through the nose?"

Here is an entry from April 3, 2006 on the costs of the three Camm trials; this entry from Dec. 20, 2006 is on the costs of the three Osco trials.

Posted by Marcia Oddi on Saturday, January 27, 2007
Posted to Indiana Courts

Ind. Courts - "Pro Bono Commission honors Vigo judge"

Crystal Garcia of the Terre-Haute Tribune-Star writes:

TERRE HAUTE — When Judge Phillip I. Adler of the Superior Court, Division 2 became the judicial appointee for the Pro Bono Corp. of District 7 in 1997, he didn’t know he would become the longest-tenured judge in the state for pro bono.

“It was supposed to be a two-year appointment, and as it’s turned out, it’s now grown into almost eight years,” he said.

Members of the Indiana Pro Bono Commission gathered Wednesday night in the Kahn Room of the Rose-Hulman Institute of Technology Student Union to for their annual event to honor Adler for his service.

District 7 includes Vigo, Clay, Parke, Putnam, Sullivan and Vermillion counties.

Adler’s plan for the district became the first in the state and has sparked an interest for other districts in the state to follow as well as other states such as New Mexico, Maryland and New York, said Indiana’s Chief Justice Randall T. Shepard.

“Judge Adler has a remarkable career of public service that among other things has reflected concern about the legal rights of individual citizens,” he said. “He seemed not only a natural at a project aimed at individual citizens, but eager to try something new.”

Posted by Marcia Oddi on Saturday, January 27, 2007
Posted to Indiana Courts

Ind. Courts - "New Castle City judge steps down for mayoral campaign"

The Muncie Star-Press reports:

NEW CASTLE -- For the second time in as many years, the judge of New Castle City Court has resigned to run for another political office.

Jim Small this week resigned his judgeship when he announced he would be a Republican candidate for mayor in this year's city election.

Small was appointed as judge last year by Gov. Mitch Daniels after Democrat David Sadler had resigned from the bench to run for the Indiana House seat representing District 54.

Posted by Marcia Oddi on Saturday, January 27, 2007
Posted to Indiana Courts

Law - Another case of a lawyer-impersonator caught in the act

Yesterday the ILB quoted from a WSJ story that mentioned a paralegal who had been arrested for practicing law without a license. Today the Chicago Sun-Times reports, in a story by Eric Herman:

George Robotis had a busy law practice.

There was only one thing missing, authorities say: a law license.

Robotis, 44, is charged with impersonating a lawyer in several cases -- civil and criminal -- in Cook County Circuit Court. He has appeared in courtrooms at the Daley Center, the Criminal Courts Building and branch courts such as Maywood and Skokie, according to Sheriff Tom Dart's office. He even did business in Indiana.

"This guy has been representing clients for at least a year," said Penny Mateck, a spokeswoman for Dart.

Judge John Kirby at the Criminal Courts Building caught on to Robotis, Mateck said. On Jan. 16, Robotis appeared before Kirby as the lawyer for Terrance Banks, who is charged with possession and delivery of marijuana, according to court documents.

Robotis wore a sport coat and sweater but no tie that day, a source said. He filed a document with Kirby's clerk stating he was Banks' lawyer. But when Kirby called the case, the judge noticed Robotis had not included his attorney number on the form.

When the judge asked about it, Robotis said, " 'Oh, I'm not an attorney,' " according to a source who was in the courtroom.

Kirby held Robotis in contempt of court and ordered him taken into custody. Robotis is being held in Cook County Jail on $75,000 bond for the contempt charge, for which he faces a sentence of one to six months. He is also being charged with three counts of impersonation of an attorney. Each count carries a potential sentence of up to three years, Mateck said.

Posted by Marcia Oddi on Saturday, January 27, 2007
Posted to General Law Related

Indiana Courts - "Judge is given probation for drunken-driving offense"

The Indianapolis Star reports this morning:

A Marion Superior Court judge was sentenced to one year on probation Friday after pleading guilty to drunken driving.

Judge John Hanley, 51, was arrested Dec. 4 after an Indianapolis police sergeant pulled over his car on East 52nd Street. His blood-alcohol level tested at 0.16, police said, twice the limit at which an Indiana driver is considered drunk.

Hanley pleaded guilty to a misdemeanor charge, and Boone Circuit Judge Steve David gave him a one-year suspended jail sentence to be served on probation, said J. Jeffrey Edens, Boone County's chief deputy prosecutor.

Davis also suspended Hanley's license for 90 days and fined him $100. The sentence Hanley received is typical for a first-time offender in Marion County.

David was appointed as a special judge after several Marion Superior Court judges removed themselves from their colleague's case. The Indiana Supreme Court still could reprimand Hanley.

See also this earlier ILB entry from Dec. 7, 2006.

Posted by Marcia Oddi on Saturday, January 27, 2007
Posted to Indiana Courts

Friday, January 26, 2007

Ind. Courts - Reports on bills of interest to the Judiciary discussed this week

The Indiana Judicial Center has just posted its reports on bills of interest to the Judiciary discussed this week. Access them here.

Posted by Marcia Oddi on Friday, January 26, 2007
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending January 26, 2007

Here is the Indiana Supreme Court's transfer list for the week ending January 26, 2007.

Nearly three 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, January 26, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

(Link to Cases):

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (4):

Nicholas M. Wigand v. State of Indiana (NFP)

Trey Richardson v. State of Indiana (NFP)

Shawn Colwell v. State of Indiana (NFP)

William Dixson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 26, 2007
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Howie mooooves!" [Corrected]

"Howie mooooves!" is the headline to this story today* by Heather Augustyn in the NWI Times. The story also includes this song penned by Mayor Jon Costas:

Howie, Howie, a cow so tall
You grew too big for our zoning law,
Howie, Howie, we can't let you go,
You're the symbol of protein in Valparaiso
What is the story behind this? Read on:
VALPARAISO | Those driving by might have thought it was a stampede.

Nearly 200 people on Saturday afternoon herded into Kelsey's new parking lot on U.S. 30 and Sturdy Road to see the moooooove of a two-story fiberglass steer, known to locals as Howie. The Lake County Pipe and Drums Corps gave a drum roll as Howie's four hooves touched the cement block where he was blow torched into permanent place.

"He's a landmark," said Paula Sheets, who came with her camera to document the event for her grandchildren in North Carolina. "It was a big deal to get him over here," she said.

And Sheets should know, since she was one of Howie's supporters, signing a petition of more than 1,800 names and attending a Valparaiso Board of Zoning meeting with 100 of her allies to persuade the board to allow Howie's presence despite zoning laws requiring a smaller monument sign. The zoning board granted a variance for the move to occur. * * *

Ken Blaney Sr. and his son, Ken Jr., own the restaurant with their family and said the cow has been an icon of their restaurant since 1994. They bought the item from Howard & Sons Meats in Merrillville. Before that, it was at the meat market in its Munster location.

"It's a big thing for Valpo," said Ken Blaney Sr. "He's kind of an institution here," he said, as his cow handlers lowered the steer into place using a crane hoist.

Howie will remain at Kelsey's third location in Valparaiso and Ken Blaney Jr. told the applauding crowd, "We're going to be around for a long time."

[Correction] *As a reader has quickly pointed out, the "Big Cow" story is NOT in today's news, it is from Oct. 30, 2005. Sorry for the error (but glad to see there are alert readers on a Friday afternoon).

Posted by Marcia Oddi on Friday, January 26, 2007
Posted to Indiana Government

Law - "Law schools rarely teach students how to be lawyers"

An opinion piece in the Wall Street Journal today, available here, begins:

The recent arrest of Anderson Kill & Olick paralegal Brian Valery for practicing law without a license raises a number of questions about how the ersatz Fordham graduate could have gotten away with representing corporate clients in complex litigation--without ever having gone to law school. The more salient question, however, is: Would it have mattered if he had?

Legal education has been taking a beating recently. This month the Carnegie Foundation for the Advancement of Teaching issued a report criticizing the Socratic case method that dominates law-school teaching. According to the report, it does little to prepare lawyers to work with real clients or to resolve morally complex issues. Several months ago Harvard Law School announced a reform of its first-year curriculum to require classes in "problem solving," among other things. There appears to be an emerging consensus that although law schools may teach students how to "think like a lawyer," they don't really teach them how to be a lawyer.

It is hard not to agree. One of the biggest problems with the current state of legal education is its emphasis on books rather than people. By reading about the law rather than engaging in it, students end up with the misperception that lawyers spend most of their time debating the niceties of the Rule Against Perpetuities rather than sorting out the messy, somewhat anarchic version of the truth that judges and courts care about. When they graduate, young lawyers rarely know how to interview clients, advocate for their positions, negotiate a settlement or perform any number of other tasks that lawyers do every day. In short, they are woefully unprepared to be lawyers, despite the outrageous hourly fees charged for their services.

Posted by Marcia Oddi on Friday, January 26, 2007
Posted to General Law Related

Law - "N.C. is 11th state to halt lethal injections"

The LA Times reports today:

A judge Thursday blocked two executions in North Carolina, creating a de facto moratorium on capital punishment in the state until it changes its lethal injection procedure.

The ruling by Superior Court Judge Donald W. Stephens in Raleigh means that 11 states, including California, have now halted executions stemming from challenges to lethal injection.

Thursday's decision is perhaps the strongest example of the complications that have arisen from attempts by prison officials around the country to "medicalize" the execution procedure, said Fordham University law professor Deborah Denno.

North Carolina, like 36 other states, uses a three-drug combination to execute inmates who are strapped to a gurney. A North Carolina law mandates that a doctor be present at executions — in part to make sure that the condemned person is fully anesthetized before being put to death. But professional medical associations and ethics boards nationally and in many states, including North Carolina, have strongly advised physicians not to participate in executions.

Physicians, until recently, helped monitor a patient's vital signs at the execution chamber at Central Prison in Raleigh.

Last week, however, the state medical board said that although a doctor could be present, any other participation violated its ethics policy. On Wednesday, state corrections officials attempted to get around that problem by telling Judge Stephens that the doctor would be present but would not supervise or participate in the injection of any drugs or the monitoring of the prisoner's medical condition. They said the key roles would be played by a registered nurse and an emergency medical technician.

But Stephens, a former prosecutor, ruled that the state's "current position is different" than the one it has taken in past executions. "This current procedure and protocol eliminates the physician's participation in an execution," and consequently it violates state law, the judge ruled. He said prison officials could not simply change the protocol for executions without the approval of the governor and other state officials.

Stephens' ruling came one day before the state was to execute Marcus R. Robinson and two days after 30 North Carolina legislators asked Gov. Mike Easley to declare a death penalty moratorium until the state thoroughly reviewed its lethal injection procedure. Easley had no immediate comment.

A challenge to lethal injunction administration was also pending before Indiana federal Judge Richard L. Young at 9:30 on January 17th (the date the Indiana Supreme Court ordered a stay on other grounds - see here) challenging the use of lethal injections - my understanding is that it was postponed, but I have no details.

Posted by Marcia Oddi on Friday, January 26, 2007
Posted to General Law Related

Ind. Law - Law addressing elibilitiy of convicted felon to run for office to be challenged

Deborah Laverty of the NWI Times writes today:

MERRILLVILLE | Town Councilman David Uzelac said he intends to fight for his right to run for another term despite a state legal opinion saying otherwise.

On Thursday, Uzelac filed with the Lake County election board his intent to run for the Town Council 4th Ward seat he has held since 1998.

At the same time, he also filed with the Lake County Circuit/Superior Court a 48-page injunction in the event someone challenges his right to run for office because of his 23-year-old felony theft conviction that later was reduced to a misdemeanor.

Uzelac's right to run for office is being challenged by state Rep. Chet Dobis, D-Merrillville, who said he asked for and received a legal opinion from Indiana Attorney General Steve Carter.

Here is a link to Official Opinion 2006-4 of the Attorney General, with a Jan. 25, 2007 cover letter. More from today's story:
The state law was amended in 2005 to address the eligibility of candidates and officeholders who have been convicted of a felony or who have had a felony conviction reduced to a misdemeanor.

In an opinion also released Thursday, Carter said, "The state statute is very clear in its intent and its language that people convicted of felonies cannot assume or run for public office, and they are disqualified from running if the felony is later reduced to a misdemeanor."

Uzelac disagrees.

"We all know this is an issue that stems back to when I was a dumb, young teenager of 19. I did something that was stupid, but I paid my debt to society. ... I'm 42 now, and it's continued to be held against me," he said.

He said he and his attorney are basing their argument on his constitutional rights.

"If you can vote, you can run. ... I'm not a convicted felon," he said. * * *

Uzelac faced a similar challenge in 1999, but a judge ruled then that Uzelac's guilty plea to the Jan. 1, 1984, theft of cash from the former Captain D's restaurant on U.S. 30 didn't disqualify him from public office because the crime had been reduced from a felony to a misdemeanor.

The ILB has had several past entries on variations to the theme - see this one from Jan. 14, 2005, and this one from Oct. 4, 2006.

Posted by Marcia Oddi on Friday, January 26, 2007
Posted to Indiana Law

Ind. Courts - Wabash County now has a functioning, certified drug court

"Wabash County now has a functioning, certified drug court," reports the Wabash Plain Dealer. Another quote from the story:

It is not a separate court but a function of the Wabash Superior Court, using existing personnel and, in theory, not costing the taxpayers an extra dime.

Wabash County is apparently the 27th county in Indiana to have a certified drug court. The object is to separate the nonviolent, nondealing drug offenders who have the best chance of cleaning up their act and giving them intensive treatment and supervision for at least a year.

Posted by Marcia Oddi on Friday, January 26, 2007
Posted to Indiana Courts

Ind. Gov't - Serial meeting bill passes House, but with questions

Niki Kelly writes today in the Fort Wayne Journal Gazette:

INDIANAPOLIS – The Indiana House voted overwhelmingly Thursday to outlaw the practice of public officials using “serial meetings” to take official public action behind closed doors.

The 89-7 vote in support of House Bill 1129 sends the legislation to the Senate for consideration. A similar bill is also being heard in that chamber. * * *

But several lawmakers had questions about the practical effect of the bill, including whether a mayor could have one-on-one meetings with city council members to give them information on a proposal or plan.

After some confusion, the author clarified that the bill allows for such action.

Rep. Dave Wolkins, R-Winona Lake, also said that the bill does not address phone calls and e-mails.

“Do you really think this will change how boards do things?” he asked. * * *

“There are a lot of questions on what constitutes official action,” [Rep. Matt Bell, R-Avilla] said. “It could put well-meaning people in a bad light.”

From the Evansville Courier & Press:
The Indiana House passed a bill Thursday that would prohibit so-called "serial meetings" - separate gatherings of less than a quorum of government officials to conduct official business behind closed doors.

House Bill 1129, approved 89-7 and sent to the state Senate, would close what proponents call a loophole in Indiana law that allowed Indiana University's board of trustees to meet without public notice to discuss basketball coach Bob Knight's fate shortly before his firing in September 2000.

A loophole in Indiana's Open Door Law allows such meetings, but they would not be permitted under the bill. It was authored by state Rep. Russ Stilwell, D-Boonville, and co-authored by House Speaker Patrick Bauer, D-South Bend, and three others.

Take a look at HB 1129 yourself, especially pp. 3-4.

Posted by Marcia Oddi on Friday, January 26, 2007
Posted to Indiana Government

Thursday, January 25, 2007

Law - Indiana DNA evidence solves cold case in Las Vegas

A Las Vegas TV station (KLASTV.com) is reporting that DNA is helping to solve cold cases, but there is also a DNA backlog of samples from convicted felons. A quote from the story:

This week, two men convicted for crimes they did not commit walked out of prison. One man spent 21 years in prison for rape and a jury convicted the other for murder in 1991.

What got them out of jail was DNA evidence not available when their cases went to court. But in an I-Team report, that same kind of evidence could be helping to convict felons on cold cases -- if the evidence wasn't backlogged at the Las Vegas Crime Lab.

Two years ago, the lab had 2,000 cases waiting to be processed. Last August, that number had climbed to 4,600 DNA samples.

They are samples that could connect a convicted criminal to other crimes. Despite those numbers, Metro's forensic scientists are making headway.

Last month, an Indiana jury found 44-year-old Kevin Hampton guilty of rape and murder.
The crime was just one of three rape and murder cases tied to Hampton through DNA evidence. But that is just in Indiana.

Metro Detective Melissa Wilds said, "When Indiana solved their case with DNA in their state, they called us and San Diego and let us know who the suspect was."

Through the national DNA-database called CODIS, detectives in Las Vegas, San Diego, and Terre Haute, Indiana linked Hampton to five unsolved crimes. One was a Las Vegas rape from 2000.

Metro Detective Melissa Wilds said that case had gone cold.

"It would still be an unsolved case. We woulndn't have been able to solve this case," said Wilds.

That time the CODIS system worked. But there is curently a kink in CODIS. And it starts at Metro's forensic laboratory. There, criminalists are drowning in DNA.

Posted by Marcia Oddi on Thursday, January 25, 2007
Posted to General Law Related

Ind. Courts - More on: Proposal filed to require all St. Joseph Superior Court judges to be elected by voters

South Bend WSBT 2 TV's Troy Kehoe reports:

A local state lawmaker introduced a bill Wednesday to stop juvenile cases from being heard in St. Joseph County's probate court system.

State Representative Craig Fry (D, Mishawaka) says the probate system doesn't adequately address the needs of young people in trouble. He says that's because it's run by a man who is too concerned about -- what he calls "building an empire with a fancy palace, at the expense of county taxpayers." * * *

Representative Fry says House Speaker Pat Bauer (D, South Bend) hasn't assigned the bill to a committee yet. And because of that, he doesn't expect it to move to the full House floor for a vote.

He says his broader goal is to simply draw attention to a system he says is failing the citizens of St. Joseph County.

Fry says St. Joseph County Prosecutor Michael Dvorak and County Commissioner Steve Ross support the election of Superior Court judges, although he wouldn't go so far as to say they support a change in the probate court system.

See yesterday's entry on HB 1571 here. BTW, HB 1571 isnt available via the General Assembly site; the reason may be that which is pointed out in today's story -- it hasn't been assigned to a committee.

Posted by Marcia Oddi on Thursday, January 25, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

(Link to Cases):

For publication opinions today (4):

State of Indiana and Indiana Department of Natural Resources v. CCI, LLC d/b/a Carpet Corner of Indianapolis - "The State of Indiana and the Department of Natural Resources (collectively, “the State”) appeal a judgment for CCI, LLC d/b/a Carpet Corner of Indianapolis. The State argues CCI is entitled neither to judgment on a theory of unjust enrichment nor to attorney fees. CCI argues the State improperly retained funds belonging to Voils Construction, including funds Voils owes CCI. Because CCI concedes the State was not unjustly enriched and because CCI did not prove Voils owns the retained funds, the trial court erred by ordering the State to pay CCI. Accordingly, we reverse and remand."

The Hartford Casualty Insurance Company v. Evansville Public Library - "Concluding that as a matter of law, the Library’s losses are excluded under the policy’s General Exclusion, we reverse and remand for proceedings consistent with this opinion."

David D. LePore a/k/a Donald LePore v. Norwest Bank Indiana, N.A. - issue of proper service of process, affirmed.

John D. Cline, Jr. v. State of Indiana

NFP civil opinions today (1):

Invol. Term. of Parent-Child Rel. of I.B. and I.D., Lakeisha Dillard, Michael Brown, and Delaney Wright v. Marion Co. Dept. of Child Services and Child Advocates, Inc. (NFP)

NFP criminal opinions today (7):

Francisco J. Martinez, Sr. v. State of Indiana (NFP)

Deatron Lee v. State of Indiana (NFP)

Bryant T. Rogers v. State of Indiana (NFP)

Shellie Foard v. State of Indiana (NFP)

Durrell T. Howard v. State of Indiana (NFP)

Timothy J. Kowalski v. State of Indiana (NFP)

Andre L. Phinisee v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 25, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Goshen City Court judge announcement

The most recent ILB entry on the Goshen City Court was Dec. 19, 2006, which reported that the city court had received a stay of execution from its projected closing the end of 2007.

Yesterday the Elkhart Truth had this report, that began:

GOSHEN -- Goshen City Court provides a vital service to residents, and Gretchen Hess Lund said she'd make sure the court isn't closed in the next four years.

Lund announced Tuesday that she will run for Goshen City Court judge in the city elections this year. If elected, Lund would replace Judge Cecelia McGregor.

"My goal would be to make sure the issue doesn't come up," she said about the closing of the court. As city judge, Lund said she would monitor the cost of the court and how efficiently the county handles cases each year.

In 2006, at the request of Mayor Allan Kauffman, the Goshen City Council debated whether it should close city court by the end of this year. In December, the council decided to leave the court open at least for another four years.

Posted by Marcia Oddi on Thursday, January 25, 2007
Posted to Indiana Courts

Ind. Gov't. - Even more on: Governor's Illiana and Commerce Connector proposals under fire

A story by Theordore Kim posted shortly after noon today on the Indianapolis Star website reports:

Facing mounting concerns about Gov. Mitch Daniels’ proposal for a privately-operated toll bypass near Indianapolis, Senate leaders today defended the project and said opposition is typical when any new highway is first proposed.

“Historically, if you look at what’s happened with other interstates around Indiana and nationally, there’s a lot of public discussion and some concerns from those whose homes and farms are where this road might ultimate be built,” Senate President Pro Tempore David Long, R-Fort Wayne, said at a Statehouse news conference today.
Long said the project would spur a new wave of economic development and help Indiana catch up with growing traffic demand.

But in the end, Long said the legislature and governor would listen to the public and could abandon the project if they did not believe the support is there.

Sen. Tom Wyss, R-Fort Wayne, is sponsoring Senate Bill 1, which would allow the Daniels administration to pursue separate privately-built toll roads in Central and Northwestern Indiana. He said private toll roads have emerged as one of the few options available to lawmakers to build roads at a time when federal and state gas tax revenues are not keeping up with the need for new projects.

The senators’ defense of the project came following a week during which the Indiana Department of Transportation held a number of area meetings to glean public comments about the 75-mile toll bypass, which Daniels calls the Indiana Commerce Connector. A second bypass, called the Illiana Expressway, would be built in Northwest Indiana.

Hearings in Greenfield, Anderson and Franklin drew hundreds of people --- many of whom vehemently opposed the connector project.

Not surprisingly, some feared they would be uprooted from their land. But many said the Daniels administration has yet to build a case, through studies and data, as to why the road should be built.

“Why has this been originated by the government and not the people?” Charles Canary, a Johnson County councilman, asked Tuesday at the Franklin hearing. “The underlying thing is that people don't want this.”

From a story today by Jim Stinson in the Gary Post Tribune:
The Illiana Expressway needs feasibility and environmental studies, but the concept is a good one, regional leaders said.

Leaders from the Northwest Indiana Forum and the Northern Indiana Regional Planning Commission met in Indianapolis on Wednesday night to meet with state legislators at the Downtown Marriott.

While public meetings in Northwest Indiana have brought out hundreds of opponents to the Illiana plan, supporters say plans are still years away and conceptual lines showing a connection between Interstate 94 to Interstate 65 are not indicative of where the road will be. [ILB- see comment below]

Leaders stressed corridor protection, so future growth does not limit possibilities of where the conceived toll road would go.

"I think we should study it," said Porter County Councilman Matt Murphy, R-3rd. "I'm looking out 20 years."

The issue has drawn concern from Porter and LaPorte representatives, although LaPorte Mayor Leigh Morris supports the route study.

At the joint reception held by the Forum and NIRPC, state Sen. Vic Heinold, R-Kouts, said he believes there will be compromise on legislative oversight of the route.

The proposal, Senate Bill 1, is sponsored by state Sen. Thomas Wyss, R-Fort Wayne, and state Sen. Sue Landske, D-Cedar Lake. It would authorize new toll roads for the Northwest Indiana and Indianapolis regions to divert traffic and it would make a proposed southwestern leg of Interstate 69 a freeway, undoing last year's toll-road label.

RE the "conceptual lines", here is the map of the proposed Illiana route announced on the Indiana Dept. of Transportation web site December 12, 2006. What has been the impact of the property values of land in the path of this "conceptual route"? The same goes for the Commerce Connector route.

Posted by Marcia Oddi on Thursday, January 25, 2007
Posted to Indiana Government

Economic Development - More on the Minnesota iron nuggets plant

This ILB entry from May 2004 began:

The "iron nuggets plant" issue - whether a plant to process iron ore into nuggets, which can be used in mini-mills, will be built in Indiana (where the mill is and where the environmental permit process is said to be quicker) or in Minnesota (where the ore is) - an ongoing story that has been covered in detail here in the Indiana Law Blog, but not, as far as I've seen, in any of the Indiana papers, is a classic example of a state trying to balance economic development and environmental issues.
The ILB has a number of entries on the iron nuggets plant in 2004. Eventually, as this May 20, 2004 ILB entry reports, the State of Minnesota "played its hand" and the plant was built there, rather than at the Steel Dynamics location in Fort Wayne, Indiana.

So it was with great interest that I read this AP report this afternoon that the Minnesota nuggets plant had gone bankrupt and that "Fort Wayne-based SDI now will be the driving force in the project."

HOYT LAKES, Minn. (AP) -- Two months after the Mesabi Nugget plant was virtually called off, the proposed $215 million project received some new life Wednesday when officials announced that Indiana-based Steel Dynamics Inc. purchased the plant site.

The land sale brings renewed hope that at least 100 permanent jobs and 1 million man-hours of construction work will come to the area.

"It was a milestone day," said Larry Lehtinen, Mesabi Nugget LLC president.

Officials expect to get the construction go-ahead from the Minnesota Pollution Control Agency, and a modest construction schedule was set to begin Saturday at the 4,458-acre property, the former LTV Mining Co. site at Hoyt Lakes.

Fort Wayne-based SDI now will be the driving force in the project.

Cleveland-Cliffs Inc. abandoned the project in November, but sold 3,000 acres of the 4,458 acres involved to SDI.

"We have secured the land for the permits. It's just great," Lehtinen said. The land sale was critical for construction to start before Monday - when environmental permits for the project would have expired.

The project would use advanced technology to produce iron nuggets of about 97 percent purity, which could be used in newer electric-arc furnaces for making steel. The old taconite pellets contained about 65 percent iron content, for use in older-style blast furnaces.

Posted by Marcia Oddi on Thursday, January 25, 2007
Posted to Environment | Indiana economic development

Ind. Courts - Governor appoints Marion County Superior Court Judge

From a release:

Governor Mitch Daniels announced today the appointment of Annie Christ-Garcia as judge of the Marion County Superior Court. She succeeds Judge Jane Magnus-Stinson, who is resigning effective January 26.

Christ-Garcia has served as the Marion County Superior Court Commissioner for the past 12 years. She received her undergraduate degree from the University of Colorado and her law degree from Indiana University – Bloomington.

“Annie is already an excellent judge. Her experience as a court commissioner for a decade makes her ready on day one, and I have no doubt she will serve with distinction,” said Daniels.

Christ-Garcia’s appointment will be effective January 29.

Posted by Marcia Oddi on Thursday, January 25, 2007
Posted to Indiana Courts

Wednesday, January 24, 2007

Ind. Gov't. - Still more on: Governor's Illiana and Commerce Connector proposals under fire

Here are some of the newspaper reports on yesterday's Senate committee meeting on SB 1 (for background start with this entry from yesterday):

Here are reports on Tuesday's public meeting on the Commerce Connector in Franklin:

Posted by Marcia Oddi on Wednesday, January 24, 2007
Posted to Indiana Government

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

(Link to Cases):

For publication opinions today (4):

Ronald Lee Blake, Jr. v. State of Indiana

C.D.H. v. State of Indiana

Michael Robertson v. State of Indiana

Dentric L. Vance v. State of Indiana

NFP civil opinions today (5):

In Re the Visitation of M.S. and K.S. by Next Best Friend Beverly R. Newman (NFP)

Jerry Staton v. Michael Lewitz (NFP)

Paul Rutan v. State of Indiana (NFP)

Florene Patterson v. University Park Associates (NFP)

In Re the Matter of Adoption of T.E.D.F., Justin Niedbalski v. Charity Beckham and Eric Beckham (NFP)

NFP criminal opinions today (4):

Samuel L. Hobbs, Jr. v. State of Indiana (NFP)

Timothy Manges v. State of Indiana (NFP)

Ivan I. Grossman, Jr. v. State of Indiana (NFP)

William Roger Zeider v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 24, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana civil cases decided by 7th Circuit today

In Mayer, Deborah v. Monroe County (SD Ind., Judge Barker), a 6-page opinion, Chief Judge Easterbrook writes:
Deborah Mayer worked for one year as a probationary elementary-school teacher in Monroe County, Indiana. When the school district did not renew her contract for a second year, Mayer filed this suit under 42 U.S.C. §1983, maintaining that the school system let her go because she took a political stance during a current-events session in her class, thus violating the first amendment. The district court granted summary judgment to the defendants, so we must accept Mayer’s version of events—which is that she answered a pupil’s question about whether she participated in political demonstrations by saying that, when she passed a demonstration against this nation’s military operations in Iraq and saw a placard saying “Honk for Peace”, she honked her car’s horn to show support for the demonstrators. Some parents complained, and the school’s principal told all teachers not to take sides in any political controversy. Mayer believes that this incident led the school system to dismiss her; we must assume that this is so. * * *

How much room is left for constitutional protection of scholarly viewpoints in post-secondary education was left open in Garcetti and Piggee and need not be resolved today. Nor need we consider what rules apply to publications (scholarly or otherwise) by primary and secondary school teachers or the statements they make outside of class. See Vukadinovich v. North Newton School Corp., 278 F.3d 693 (7th Cir. 2002). It is enough to hold that the first amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system. AFFIRMED

Sims, Daniel v. EGA Products (ND Ind., Judge Simon) - affirmed

Posted by Marcia Oddi on Wednesday, January 24, 2007
Posted to Ind. (7th Cir.) Decisions

Law - "Big Insurer Will Pay 640 Katrina Claims"

The NY Times and a number of other papers are reporting today that State Farm has reached a settlement with the Attorney General of Mississippi in a number of Katrina storm damage cases. The ongoing settlement negotiations were referenced in this Jan. 12th entry re a jury award where the federal judge had ruled "when both wind and water damaged or destroyed a house, it was the burden of the insurance company to prove how much of the loss was because of water and pay for any wind damage." Today's story relates:

State Farm got a vivid picture of the hostility toward it in the first jury trial a little more than a week ago. Judge Senter abruptly declared that State Farm had failed to prove its case and the jury quickly came back with a decision requiring the company to pay $2.5 million in punitive damages to a couple in Biloxi who lost everything in the storm. The judge also awarded the couple the full value of their insurance policy: $223,000. State Farm had maintained that it owed them nothing.

Randy J. Maniloff, a lawyer at White & Williams in Philadelphia who represents insurance companies, said yesterday that it was clear that the bad publicity had been a big factor in State Farm’s decision to settle. “They spent 80 years building up a brand,” he said, “and the adverse publicity from these lawsuits has been clearly doing damage to the brand. It just flies in the face of their portrayal of themselves as good neighbors.”

The settlement deals only with the Mississipi's 70-mile coast, "The agreement does not apply to New Orleans, where the failure of the levees left much of the city underwater for days. Lawyers and insurers say no similar settlement talks are in progress there."

Posted by Marcia Oddi on Wednesday, January 24, 2007
Posted to General Law Related

Law - More on the Kentucky Fen-Phen story

The ILB entry from last weekend quoted a Louisville Courier Journal story on how the three lawyers accused of plundering Kentucky's $200 million Fen-Phen settlement allegedly "tore up or burned" notes showing how much they paid themselves and their clients.

This morning the Wall Street Journal Blog has this entry that begins:

The Louisville Courier-Journal recently profiled plaintiffs’ lawyer Stanley Chesley, “dubbed the ‘master of disaster’ and ‘prince of torts.’” Chesley’s involvement in the Kentucky fen-phen diet-pill litigation has cast a spotlight on the famed lawyer, who lives in Cincinnati in a 25-room, 27,000-square-foot French chateau with his wife, federal judge Susan Dlott (check out the photo of her and her two Cavalier King Charles Spaniels, who were reportedly sworn in as honorary federal marshalls).
The ILB apparently missed that "prince of torts" profile, which appeared on the same day (/1/21/06) as the "torn up notes" story. Here is the link.

Oddly, however, the same storiy was published in the LCJ on May 29, 2006 (see ILB entry here).

Posted by Marcia Oddi on Wednesday, January 24, 2007
Posted to General Law Related

Ind. Law - Firm in storm-damaged downtown Indy office tower featured

The Indianapolis Star today has a feature in its Business Section by Jim Lindgren about business disaster plans. Featured is, according to a caption under his photo, a "[c]ompany with a heart: Jim Richardson is managing partner of law firm Brinks Hofer Gilson & Lione, which had to close temporarily after an April storm. Brinks Hofer's employees were paid, despite the shutdown." A few more quotes from the story:

When a business closes temporarily because of a natural disaster or contagious illness, it can be an inconvenience to its customers and lost income for the owners. But for hourly workers, it can mean not being able to pay the bills.

Jim Richardson, managing partner of Brinks Hofer Gilson & Lione, was sympathetic to his employees' plight in such a situation.

His law firm and other businesses had to close temporarily when a powerful storm on April 2, 2006, tore open the north side of the office tower at the Indiana Square building in Downtown Indianapolis.

Brinks Hofer's offices were closed five days, but no one, including five hourly clerical workers, lost income.

"We paid them anyhow. It was certainly not their fault they couldn't work," Richardson said.

Posted by Marcia Oddi on Wednesday, January 24, 2007
Posted to Indiana Law

Law - No court consensus on voter ID laws

USA Today has a story by Joan Biskupic on voter ID laws, including a nice map showing the status of each state. Some quotes from the story:

Voter identification laws, adopted by states in recent years amid concerns about fraud, are getting mixed reviews as courts weigh whether they unconstitutionally keep some people from the polls.

State courts in Georgia and Missouri last fall invalidated laws that required voters to show photo ID each time they cast ballots. Georgia and Missouri are among 11 states that have passed such laws since 2003, inspired partly by allegations of voter fraud raised in Florida and elsewhere during the 2000 elections.

The Georgia law, blocked by federal and state judges, required people to show one of six government-issued forms of photo identification, such as a driver's license or passport. In the most recent challenge to the law, brought by voters who said they couldn't cast ballots because they did not have photo IDs, a judge ruled in September that Georgia's requirement put an unconstitutional condition on voting. Previously, state polling places had long accepted utility bills, bank statements and other types of non-photo ID as proof of residency.

In October, Missouri's Supreme Court struck down the state's requirement that registered voters show a state or federal photo ID to cast a ballot. The judges said the law was an illegal hurdle for poor, elderly and disabled residents.

Elsewhere, however, federal appeals courts have not been as willing to reject voter ID laws.

On Jan. 4, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit upheld Indiana's law requiring voters show photo ID in each election. Voting 2-1, the panel rejected claims by the state Democratic Party and others that the law violates the voting rights of those without easy access to such IDs.

Even as they upheld Indiana's law, Judge Richard Posner, joined by Judge Diane Sykes, cited the politics surrounding voter ID laws. "Most people who don't have photo ID are low on the economic ladder and … are more likely to vote for Democratic than Republican candidates," Posner wrote. He noted, however, that it's difficult to maneuver today without a photo ID and that "the vast majority of adults" have one.

Dissenting Judge Terence Evans sharply criticized the law: "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage Election Day turnout by certain folks believed to skew Democratic."

Local attorney Bill Groth, who represents the plaintiffs in the Indiana case, has an article on the status of the Crawford v. Rokita here, at the American Values Alliance website.

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

[BTW, the 7th Circuit has continually made its case links impossible to use. What works one day often does not work the next. Neither Groth's nor my links to the 7th Circuit opinion in the documents above appear to work now. This link (which indicates it is a temporary link) DOES work, at least as of this writing.

Posted by Marcia Oddi on Wednesday, January 24, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Proposal filed to require all St. Joseph Superior Court judges to be elected by voters

Cory Havens of the South Bend Tribune reports today on the proposal - here are some quotes:

State Rep. Craig Fry, D-Mishawaka, has filed a bill that would require all St. Joseph Superior Court judges to be elected by voters rather than be selected by a panel of attorneys and appointed by the governor.

House Bill 1571, if it became law, would also move control of the juvenile justice system away from the county's Probate Court.

Both moves are necessary to provide accountability for St. Joseph County residents, Fry said.

"This legislation would restore some credibility to a court system that has acted like a royal kingdom far too often in the past few years," Fry said in a written release Tuesday afternoon. "I cannot see why the Superior Court judges should act as though they have no accountability to the residents of St. Joseph County. I certainly see no reason why justice should be dispensed by a group of judges who are not beholden to the people of St. Joseph County."

Superior Court judges are elected in 90 of Indiana's 92 counties, all but St. Joseph and Lake. That fact was among the issues explored in a series of articles published in September by The Tribune called "Judging the Judges: Who decides whether justice is being served?" (You can still read the series for free on the Special Reports section of our Web site.)

Once a judge is appointed, they stand for a retention vote every six years. No judge has ever been removed in a retention vote in St. Joseph County.

"These judges should be required to stand before the public and justify their record on the bench, just like any other officeholder," Fry said in the release. * * *

St. Joseph County Prosecutor Michael Dvorak supports electing judges in the county, according to the release.

"Our county is one of only two in the state that does not elect Superior Court judges," Dvorak was quoted as saying. "They are responsible for the administration of civil and criminal courtrooms, and the efficiency and fairness to anyone who comes into their courts. The Superior Court judges in St. Joseph County should be accountable to the public they serve, just as they are in the rest of Indiana."

HB 1571 has not yet been posted to the General Assembly website. When it is, it may be accessed via this link.

Posted by Marcia Oddi on Wednesday, January 24, 2007
Posted to Indiana Courts

Tuesday, January 23, 2007

Ind. Law - Still more on: Remonstrances decision leads to legislation

As the ILB reported on Jan. 10th, "The General Assembly is now weighing in on the Court of Appeals ruling in Bruce Jones v. Martha Womacks that "The petitioning process used to determine local support for schools to borrow money through bonds is unconstitutional because it only includes property owners." (An earlier quote from an AP story). (Here is a list of earlier ILB entries on remonstrances.)

Today an AP story reports, in a story headlined "Bill to expand bond petitions clears Senate":

INDIANAPOLIS - All registered voters in affected taxing jurisdictions could take part in a petition process to decide whether school districts or local governments can borrow money for bonded projects under legislation that cleared the Senate Tuesday.

The Senate approved the bill 47-1 in hopes of ultimately complying with an Indiana Court of Appeals ruling that said limiting the petition and remonstrance process for school bond projects was unconstitutional because only property owners could participate.

The state's petition and remonstrance process allows those for and against a bond worth $2 million or more to finance school or other local government projects to collect signatures from property owners, with the side collecting the most prevailing. But the appeals court said the process was a de facto election and therefore cannot be limited only to property owners.

Senate Tax Chairman Luke Kenley, R-Noblesville, says the legislation would put the state in line with the appeals court ruling.

Sen. Frank Mrvan, D-Hammond, said the bill allows for more public input and opens the process to more people.

"The more that voices are heard in government, the better," he said.

The appeals court ruling dealt with a parent of two children who attend Indianapolis Public Schools. The parent did not own property and wanted to participate in the remonstrance process, but was not allowed since he rented an apartment.

Well, yes, it would be good to identify the bill in the story. It is SB 132.

Posted by Marcia Oddi on Tuesday, January 23, 2007
Posted to Indiana Government

Environment - 28-year battle over proposed Mallard Lake Landfill featured in IBJ

Chris O’Malley of the Indiana Business Journal has comprehensive coverage of the Mallard Lake Landfill battles in an article dated 1/23/07. Access it here - I'm not sure how long it will be available online. It begins:

ANDERSON—World War II could have been fought seven times over since Ralph Reed and sons got their first big, odiferous whiff of free enterprise.

Even though they’ve yet to build the Mallard Lake Landfill, the Reeds’ dream of big cash from trash has wrinkled the noses of hundreds of residents in subdivisiondotted fields northeast of town since the family asked Madison County to rezone their 254-acre farm in the 1970s.

“This is the 28th year,” said Reed, fresh off of his latest—but in the past always temporary—victory in the courts. “Nobody wants it in their back yards.”

Whether the Reeds finally have won the decisive battle that would allow the landfill’s construction is the big question festering here since last month. That’s when Marion Superior Court Judge Michael Keele upheld an environmental law judge’s 2004 ruling that the Reeds should be allowed to continue seeking a landfill permit.

The lengthy article includes a sidebar with a complete chronology of the effort.

Here is a list of ILB entries on Mallard Lake. This entry from Dec. 13rd references last month's ruling, although I don't have a copy of Judge Keele's ruling.

Posted by Marcia Oddi on Tuesday, January 23, 2007
Posted to Environment

Ind. Gov't. - More on: Governor's Illiana and Commerce Connector proposals under fire

Theodore Kim of the Indianapolis Star reported this afternoon on this morning's Senate Commitee meeting on SB 1 (see this morning's ILB entry here):

A key Senate committee is expected to vote next week on legislation, SB 1, that would allow the Daniels administration to pursue private toll roads in Central and Northwest Indiana.

At a Statehouse hearing today, the Senate Homeland Security, Transportation and Veterans Affairs committee took about two hours of testimony from supporters and opponents of the two projects.

One project, the 75-mile Indiana Commerce Connector, would begin around I-69 near Pendleton and run clockwise east and south of Indianapolis to I-70 near the Indianapolis International Airport.

A second effort, the Illiana Expressway, would begin at I-94 near Michigan City and run in a clockwise loop to I-55 in Illinois.

Daniels wants to have private companies pay for, build, operate and collect tolls on the roads. Both projects require legislative approval.

A parade of business and government officials offered support for the projects today.

"Senate Bill 1 is a bold initiative and it is right on the money," said Karl Browning, commissioner of the Indiana Department of Transportation.

But opponents raised environmental concerns, questions about whether the projects would encourage sprawl and other fears.

Rebecca Morrison, a 50-year-old Franklin literacy coach, said she thought the tolls on the commerce connector would repel, rather than attract, traffic.

"I personally avoid toll roads like the plague," she said.

The meeting of the Homeland Security, Transportation & Veterans Affairs turned out to be viewable online via steaming video, but unfortunately the Senate does not archive any of its video, so if you didn't catch it this morning, you are out of luck.

I did watch it, but only because I thought at the least minute that I'd check to see if it was online, and there it was. It lasted for several hours. Senate Wyss does a nice job as a commitee chair insofar as giving everyone an opportunity to speak. However, he did schedule the "pro" speakers first, so there was about one and a half hours of mayors, local economic development types, and many many unions and trades speaking in favor of the two expressways. By the time that was over most of the committee members had stepped out.

The citizens speakers were mostly, if not all, from central Indiana. One noted that she didn't know citizens could speak at these meetings, and had only found out at the last minute. (Unfortunately, many committee meetings are held in small crowded rooms where citizens may not even be able to find standing room, much less an opportunity to testify.)

Many complained of the "new terrain" or "greenfields" routes selected for both proposed new toll roads. Members of the public also referenced the route for completion of I-69 and last year's sale of the Indiana Toll Road.

Legal issues brought up by citizens included the language in the last year's Toll Road law limiting the construction of nearby competing roads, and language in SB 1 that provides that once the legislation has been approved, the General Assembly will have no further involvement in the projects. One speaker called this an end run around the democratic process.

Reacting to the earlier speakers in favor of the roads who talked of the new jobs that would come in the building of the highways, a citizen remarked that they were talking about a temporary job for a bull-dozer driver vs. putting a family of farmers out of business forever.

After the testimony, some of the committee members asked questions of the INDOT representative.

Senator Wyss concluded the meeting, indicating that the commitee would reconvene on SB 1 next week, at which time a vote would most likely be taken. He asked members to get any proposed amendments in in plenty of time for the other members to review them.

Posted by Marcia Oddi on Tuesday, January 23, 2007
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

(Link to Cases):

For publication opinions today (0):

NFP civil opinions today (3):

Cheryl A. Wise v. Steven K. Wise (NFP)

Tamara Bonebrake v. Michael Bonebrake II (NFP)

Robert L. Fickle v. Rae M. Fickle (NFP)

NFP criminal opinions today (1):

Tracey James v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 23, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Indiana Supreme Court rules on taking claim against Indianapolis International Airport

In Biddle v. BAA Indianapolis, a 15-page, 5-0 opinion, Chief Justice Shepard writes:

Homeowners near Indianapolis International Airport contend that noise from airplanes passing over or near their property amounts to a taking within the meaning of the Fifth Amendment. The homeowners also say the Airport should be compelled to offer them financial settlements similar to those offered to earlier litigants. The trial court granted summary judgment for the Airport, and we affirm.

Posted by Marcia Oddi on Tuesday, January 23, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Governor's Illiana and Commerce Connector proposals under fire

[Opinion piece] The ILB tries always to remain nonpartisan, but coming from Chesterton in Porter County, the farms of many of my friends are directly in the path of the Governor's recently unveiled plan to take by eminent domain a long swath of prime farmland from Lake through Porter through LaPorte counties in NW Indiana, to be used by a consortium of private investors to build a toll road to divert truck trafffic through the rural southern part of those counties. The Illiana Expressway would be privately build and operated, with some of the profits going to the State, which by a number of reports would use the toll money to assure that tolls need never be charged on the south leg of I-69. The Commerce Connector to be built around Indianapolis follows the same plan.

There were three public hearings in NW Indiana last Saturday. There was little notice given for the hearings. But many hundreds of people turned out in Lake, Porter, and LaPorte Counties to protest the scheme. The hearing went on for hours before the INDOT/Governor's office people finally brought them to a close.

Senate Bill 1 is to be heard today in the Committee on Homeland Security, Transportation & Veterans Affairs. Authors include Senators Landske, Wyss, Becker, Delph, Howard, Merritt, Jr., Rogers, Tallian. Senator Wyss of Fort Wayne also chairs the Committee.

Jim Stinson of the Gary Post-Tribune has this report today, headlined "Illiana road route in doubt: Route may be redrawn today." The story reads:

The governor's plans to build the Illiana Expressway have hit a fork in the legislative road. After contentious public hearings Saturday, legislators are rethinking how to build the expressway.

State Sen. Vic Heinold, R-Kouts, could attempt a change in the road's route with an amendment today.

"I'm concerned about the authority Senate Bill 1 gives," Heinold said. "As I interpret Senate Bill 1, this is not a small step, this is a giant leap."

Senate Bill 1, which authorizes construction of the Illiana Expressway and the Indiana Commerce Connector in Indianapolis, will be heard by the Senate Transportation Committee today.

The Indiana Department of Transportation conducted public hearings Saturday regarding Illiana.

The hearings brought out hundreds of opponents who decried the road's design.

The plans seem to mean something different to various public officials. Gov. Mitch Daniels' likely plan includes a joint Indiana-Illinois toll road from Interstate 57 in Illinois to Interstate 94 in LaPorte County.

That plan could cut south of Valparaiso and wind through prime agricultural territory in Porter and LaPorte counties. That has Rep. Ed Soliday, R-Valparaiso, very nervous.

Soliday said Illiana plans, as discussed for decades, usually ran from I-57 to Interstate 65. The eastward leg to LaPorte County has jolted many, even though it is still conceptual.

Both Illiana and the Commerce Connector are being pushed as public-private partnerships, or leased toll roads. The idea is to ease longtime congestion.

Soliday said the Northwest Indiana delegation was told by the governor if the Illiana Expressway proves unpopular, it won't be built. But the speed at which the process has moved already concerns Soliday.

"I've never heard of it until a couple weeks ago," said Soliday. "I think the study is a good idea. The problem is when you read the bill ... the bill doesn't say that. It just takes the stuff from last year and inserts Illiana and the Commerce Connector."

Here are some reports from Saturday's meetings. Some have photos, giving some indication of the size of the crowds.

From the LaPorte Herald-Argus, a story about the LaPorte hearing headlined: "Not so fast: Granted a public forum, county residents waste no time voicing concerns about proposed Illiana Expressway." From the Post-Tribune, a story about the Lake County hearing that begins:

Most of the 200-some people attending a meeting on the Illiana Expressway appeared to agree: The proposed new road is good in theory, but not at the expense of the problems it would bring to south Lake County.
From the Michigan City News-Dispatch, another story about the LaPorte hearing.

From the NWI Times, another story about the Crown Point hearing in Lake County. A quote:

Many residents said they are concerned about the power of eminent domain, which the government might use to obtain land for the highway. Some of them worried their farms could be in the path of the road and questioned the economic value of the proposed tollway.

"We already have an economy, and it’s called farming," one resident said.

Others, like Lois Kinch, said she feared the road would bring exactly the kind of development her family wanted to avoid when it moved to Lakes of the Four Seasons.

I've seen no stories as of yet about the hearing in Valparaiso in Porter County, but I've heard from those who attended that it was more of the same - large attendance and all against the proposal except for the "politicians" in the crowd. One reason that I've seen no published report from Porter County may be that the reporter from the Chesterton Tribune who usually covers these stories had to recuse herself because her family's property is in the path of the proposed Expressway.

[Update] Also today the Indianapolis Star has a story about the hearing Saturday in Johnson County on the proposed Commerce Connector, headlined "Legislators get earful about proposed toll road."

Bryan Corbin of the Evansville C&P reports today in a story headed "Indiana Commerce Connector would help finance I-69" that begins

INDIANAPOLIS - Officials will get an earful today from people supporting and opposing a plan to bankroll the rest of Interstate 69 construction through Southwestern Indiana, using proceeds from a proposed private tollway in the Indianapolis suburbs.

This morning, Senate Transportation Chairman Thomas Wyss will hold a bill hearing on a central piece of Gov. Mitch Daniels' agenda: the Indiana Commerce Connector.

Under the governor's proposal, the state could reap perhaps $1 billion by letting a private entity pay for the rights to build and operate the suburban tollway. That money then would be used to fund construction of the rest of the I-69 extension through Southwestern Indiana - and allow I-69 to be a freeway, not a tollway, for its entire distance.

Daniels has said his Commerce Connector proposal is his "Plan B" to ensure that I-69 is toll-free its entire distance. If the Legislature does not pass the proposal this session, then Daniels has said he would have to come up with a "Plan C."

An editorial today in the same paper, that begins "As it turns out, tolls are a possibility for Interstate 69, should Gov. Mitch Daniels' proposed Indianapolis bypass fail to garner legislative approval" gives some indication of how the Governor's proposals are pitting the north, central, and south thirds of the State against each other, as well as urban against rural.

Posted by Marcia Oddi on Tuesday, January 23, 2007
Posted to Indiana Government

Courts - The upshot on: Kentucky Supreme Court carries out records purge

Updating the story of the mass destruction of misdemeanor records in Kentucky's Jefferson County last year (for background, start with this Dec. 22 ILB entry), Jason Riley of the Louisville Courier Journal reports today in a story that begins:

Jefferson County's electronic court records from old cases were destroyed in November despite an order to preserve them, according to the chief of staff for Kentucky Chief Justice Joseph Lambert.

Yesterday, Jason Nemes told a panel of court officials investigating the purge that he was unsure why his directions weren't followed, but blamed himself for any miscommunication.

"Maybe I need to take the blame for not communicating that clear enough," said Nemes, who is now interim director of the Administrative Office of the Courts.

Local prosecutors and judges have complained that the purge of microfilm and microfiche records on Nov. 29 endangered the public and undercut the prosecution of spouse abusers and other offenders.

Commonwealth's Attorney Dave Stengel has said prosecutors lost a key tool used in sentencing and bond hearings, as well as in trials, to show that an offender has a pattern of misconduct.

Last month, Lambert appointed a panel of local judges and court officials to investigate and issue a report on whether the state's document-retention policy needs to be changed.

Posted by Marcia Oddi on Tuesday, January 23, 2007
Posted to Courts in general

Ind. Decisions - More on "Court tosses challenge to hunter harassment law"

The First Amendment Center has picked up the AP version of the hunter harassment law story, posted here on Jan. 18th by the ILB. But the Center adds links to related stories from 1999 where both New Jersey and Illinois appeals courts upheld hunter harassment laws, and to a story from 2002 headlined "Connecticut high court deals blow to anti-hunting activists." Here is some interesting language from the 2002 AP story:

The case dates back to 1991, when a group of anti-hunting activists followed a bow hunter into a state forest in Hartland on the first day of archery season.

As the hunter drew his bow, the activists formed a semicircle around him and refused to get out of his line of fire. A conservation officer arrested the protesters when they refused to leave the park.

The activists argued that by suppressing their anti-hunting protests, the hunter harassment law violated their rights to free speech and assembly. The defendants also argued the law treated them unfairly because other groups, including religious ones, were allowed to use the parks for various ceremonies and gatherings.

Kathleen Eldergill, the attorney for the protesters, said the statute is written so broadly that a hunter could claim that anyone else in the woods, no matter if they were standing in the line of fire or just waiting in hopes of meeting up with hunters, was interfering with their hunting.

"The way it's written and enforced, it really does seem to leave the forest in control of hunters," said Eldergill.

In a 5-0 ruling, the Supreme Court judges said the law did not infringe on free speech and assembly because the forests where hunting is allowed are not intended for public assembly and do not contain facilities for public interaction.

"Like mailboxes and airports, the mere fact that state forests and undeveloped state parks are appealing locations for those seeking to convey a message does not make them public fora," Chief Justice William Sullivan wrote in the opinion.

The high court drew a distinction between undeveloped parks and developed ones such as Greenwich Point, a beach that was the center of a recent state Supreme Court decision. In that ruling, the court said the beach functioned much as a town common or municipal park, and therefore was a public forum.

Recall that according to the coverage of the Indiana case, "Hunters taking part in a town-authorized deer cull in 2001 complained to police that the Shugers drove down a Beverly Shores road honking their car horn and allowing their dog to bark out the window."

Posted by Marcia Oddi on Tuesday, January 23, 2007
Posted to Environment | Ind. App.Ct. Decisions

Monday, January 22, 2007

Law - Public Records: "How to Bury a Secret: Turn It Into Paperwork"

On Dec. 31, reported the Washington Post on Jan. 16, something profound happened:

Some 700 million pages of secret documents became unsecret. No longer were they classified. They became . . . public. Imagine it: Some 400 million formerly classified pages at the National Archives, another 270 million at the FBI, 30 million elsewhere, all emerging into the sunshine of open government, squinting and pale, like naked mole rats.

This would seem a victory for freedom of information, just as President Bill Clinton envisioned when he signed Executive Order 12958 in 1995 (affirmed by President Bush in 2003), which mandated that 25-year-old documents be automatically declassified unless exempted for national security or other reasons.

But it is not so simple. There is a dirty little secret about these secrets: They remain secreted away. You still can't rush down to the National Archives to check them out. In fact, it could be years before these public documents can be viewed by the public.

Fifty archivists can process 40 million pages in a year, but now they are facing 400 million. The backlog, inside the National Archives II facility in College Park, measures 160,000 cubic feet inside a massive classified vault with special lighting and climate controls to preserve old paper. Row upon row of electronically operated steel shelves, all a pale gray, hold hundreds of thousands of document boxes buffered to fight destructive acidity. The place feels like the set of a science fiction movie, all pristine and orderly and hushed.

So begins this lengthy and very interesting story.

Posted by Marcia Oddi on Monday, January 22, 2007
Posted to General Law Related

Ind. Law - Capital punishment

The Evansville Courier & Press editorial today is about the death penality in Indiana. Some quotes:

The flawed process of deciding who on Indiana's death row shall be executed and who shall be spared continues to be a work in progress.

The inmate deemed sane enough to be executed today may be deemed insane enough tomorrow to be spared.

Indeed, such minute interpretive differences between life and death decisions only add to the list of reasons why Indiana should ban capital punishment in favor of life in prison without parole. * * *

The entire process of capital punishment in Indiana takes too long - causing undue pain to survivors and unnecessarily high costs to taxpayers.

And yet, when the courts and Legislature decide what is right and what is wrong, it may be, as the justice said, too late.

Too long or too late. Either way, Indiana should ban capital punishment.

The Fort Wayne News-Sentinel this weekend ran an entire series by McClatchy Newspapers - a special report on the death penalty with a number of different stories. Access the main page here.

Posted by Marcia Oddi on Monday, January 22, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

(Link to Cases):

For publication opinions today (0):

NFP civil opinions today (2):

John Murphy v. Tami Murphy (NFP)

In the Matter of J.J. (NFP)

NFP criminal opinions today (6):

Gregory C. Ragland v. State of Indiana (NFP)

Billy Ray Adams v. State of Indiana (NFP)

Sidney E. Gates v. State of Indiana (NFP)

Marco Santiago v. State of Indiana (NFP)

Erick Moore v. State of Indiana (NFP)

John Ballinger v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 22, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In Omega Helathcare Investors v. Res-Care (SD Ind., Judge Young), a 20-page opinion, Judge Kane writes:

This diversity case concerns the lease and administration of a residential healthcare facility in Lexington, Kentucky. The appellant, Omega Healthcare Investors, brought suit against Res-Care alleging, among other things, breach of contract. The parties filed cross-motions for summary judgment, and the district court granted summary judgment in favor of Res- Care. Omega appeals. For the reasons set forth below, we reverse the judgment of the district court and remand for further proceedings. * * *

In summary, Robert Petrie, and later Res-Care as his successor, agreed to rent a fully-functional, fully-occupied, and fully-staffed medical facility from Omega. Recognizing that much of the residual value of the facility would depend on its return in substantially the same condition, Omega included certain protections in the lease. Omega required that the facility would be managed in a particular way, specifically requiring that the people who were entrusted with the facility not do anything that would result in its de-certification. The terms of the separate Management Agreement were properly incorporated into the Lease. Any deviation from them, or any termination of the agreement, constituted a breach of the lease. Any failure to surrender the premises at the end of the lease period constituted a separate breach of the lease. Res-Care, as Petrie’s successor in the lease, inherited those obligations. Even viewing the facts in the light most favorable to Res-Care, it is clear that Res-Care breached paragraphs 23, 25, and 36 of the lease. Omega is entitled to judgment as a matter of law, however the question of adequate damages is not properly before this court.

Posted by Marcia Oddi on Monday, January 22, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Still more on zoning, churches, and the RLUIPA

The ILB has had a number of entries on the federal RLUIPA, particularly with respect to its impact on local zoning. Yesterday Peter Applebome of the NY Times had a column on the impact of:

the Religious Land Use and Institutionalized Persons Act of 2000 (known by its acronym, Rluipa, and pronounced ar-LOO-pah) [on a New York community]. Enacted by Congress to “protect religious liberty and for other purposes,” it says municipalities must be able to show a “compelling” public interest in rejecting land-use proposals by religious groups.

Critics say Rluipa has become not a shield but a hammer, used by religious groups around the country to force communities to approve projects at odds with local land-use regulation. Proponents say that the law appropriately protects religion and that local communities can’t enact zoning codes that deny religious groups the ability to pursue their faith. * * *

Rluipa is not the whole ballgame. State laws are favorable to religious uses, too.

But one local lawmaker, Joseph Meyers, a trustee in Airmont, has called for local governments to pass a resolution calling for Rluipa to be repealed, saying it has become a legal bludgeon costly enough to crush small villages like Pomona. Municipalities must pay their own legal fees and, if they lose a suit, the plaintiff’s legal fees as well.

In Indiana, a bill proposing a religious freedom restoration act.has been introduced - HB 1152.

Posted by Marcia Oddi on Monday, January 22, 2007
Posted to Indiana Government

Ind. Gov't. - Open meetings and more funding for Indiana's public access counselor

Open meetings and more funding for Indiana's public access counselor was the gist of Indianapolis Star editor Dennis Ryerson's Sunday column. A quote:

Among other open-government items on the list before me is a proposal to increase the budget for Indiana's public access counselor. That office was established in 1998. It's a small office with just a couple of staff. Yet it has a big job, responding to hundreds of questions, and requests for rulings on whether an official document should be made public, or whether some group should be meeting in public.

You might think that most of those questions and requests come from the media. But it's the public that makes the most use of the public access counselor. The next largest user? Public officials themselves, seeking clarifications of the law. The media come in third.

The office is hard-pressed to keep up with demands for its services. A tiny budget increase would provide a big boost to the cause of open government.

See also this ILB entry from this weekend on the opening meetings proposal, HB 1129, and this ILB entry from Oct. 5, headed "Goshen paper opines 'Boost budget of state access counselor'".

Posted by Marcia Oddi on Monday, January 22, 2007
Posted to Indiana Government

Law - "An NCAA committee wants to ban the widespread use of male practice players in women's sports"

On March 5, 2004, the ILB had an entry headed "Not law but interesting - A feature on the practice players for the UConn women's team." It quoted from a NY Times story that began:

Their classmates notice that they are invited to the popular athletes' parties on campus. They wear exclusive athletic logo apparel, and they hang around the athletic complex. Once in a while, they even sign an autograph.

So it is natural when a classmate eventually asks: What sport do you play?

''And that's when I tell them I'm a practice player on the women's basketball team,'' Mike Cofrancesco, a junior at the University of Connecticut, said. ''I get the weirdest looks. People say: 'But you're a guy? Is that allowed?' ''

Well, now it has become a "law" issue, as the NCAA's Committee on Women's Athletics last month:
issued a position statement calling for a ban on the grounds the spirit of Title IX is being violated "contrary to the association's principles of gender equity, non-discrimination and competitive equity."
That quote is from this comprehensive story today by Steve Ballard in the Indianapolis Star. Another quote from the story, which should be read in full:
Michigan State coach Joanne P. McCallie said she never has had a player who didn't benefit from competing against males or one who complained about losing practice time to them.

"This is political correctness gone awry," she said. "To suggest opportunities are being taken away from women is coming from someone who does not coach, has never been to a practice and has not played."

Today's story is accompanied by a good "Point-Counterpoint" sdiebar.

See also this April 2, 2006 ILB entry headed "NCAA Leadership Isn't Matching the Talent of Its Women Players."

Posted by Marcia Oddi on Monday, January 22, 2007
Posted to General Law Related

Sunday, January 21, 2007

Ind. Decisions - "State appeals twin girls' adoption by N.J. man"

"State appeals twin girls' adoption by N.J. man: At issue is whether infants born to surrogate were 'hard to place'" is the headline to a lengthy, featured story by Kevin Corcoran on the front-page of this Sunday's Indianapolis Star. It begins:

Months after a Hamilton County judge decided in closed court to allow an unmarried New Jersey man to adopt twin girls over the objection of child welfare officials, the state is appealing the decision.

The state's notice to the Indiana Court of Appeals indicates officials will challenge whether the blond, blue-eyed girls, born six weeks early to a surrogate mother at Methodist Hospital in April 2005, had special needs making them hard to place.

That's a requirement before residents of other states can adopt in Indiana.

Attorneys for the Indiana Department of Child Services say the adoptions also violated interstate laws meant to ensure that children adopted across state lines end up in safe homes, according to the court filings, which the appeals court clerk has refused to publicly release.

James W. Payne, Indiana's top child-welfare official, acknowledged he authorized appealing the adoptions by Stephen F. Melinger, 60, Union City, N.J.

"We think there are issues that are significant to the business of child welfare and child safety," Payne said.

Payne declined to answer any specific questions, citing warnings from Hamilton Superior Court Judge William J. Hughes to the parties involved not to discuss the adoptions. Payne said he was worried about being found in contempt if he says too much.

Melinger's attorney, Steven C. Litz, filed an emergency motion in Hamilton County last week seeking a hearing on whether parties in the case should be held in contempt for violating confidentiality orders.

Litz's motion also asked for an emergency restraining order against The Indianapolis Star prohibiting it "from publishing further articles relating to this matter, including the filing of this motion." Hughes denied that motion Thursday.

Posted by Marcia Oddi on Sunday, January 21, 2007
Posted to Ind. Trial Ct. Decisions

Law - The three lawyers accused of plundering Kentucky's $200 million fen-phen settlement "tore up or burned" notes

The ILB has posted many past entries on the Fen-Phen lawyers and judges scandal in Kentucky. Another incredible, and lengthy, story today in the Louisville Court Journal, by Andrew Wolfson, begins:

The three lawyers accused of plundering Kentucky's $200 million fen-phen settlement "tore up or burned" notes showing how much they paid themselves and their clients, according to one of the lawyers.

Depositions obtained by The Courier-Journal include Lexington attorney Melbourne Mills Jr.'s description of a secret meeting that he said he and lawyers William Gallion and Shirley Cunningham Jr., also of Lexington, held at Gallion's house in 2001 to divvy up an extra $10 million beyond what they'd already paid themselves from the settlement.

"Did Mr. Gallion or anyone else talk about discussing that information with anybody else?" Mills was asked by attorney Angela Ford, who now represents the three lawyers' former clients.

"We all agreed to keep it a secret," Mills said. "I think we either tore up or burned the pages it was written on."

Ford alleges that Mills' description is a "dramatic indication of a cover-up."

She has asked that those lawyers and another attorney, Stan Chesley of Cincinnati, who helped negotiate the settlement, be forced to surrender $62.6 million in funds they allegedly misappropriated -- as well as $59.5 million they paid themselves in fees.

"Given the damage that these attorneys have done to the profession, allowing them to keep any portion of their fees would be truly unconscionable," she said in a motion to be heard Feb. 12 in Boone Circuit Court.

Kentucky courts have never required a lawyer to "disgorge" or return a fee for misconduct, but courts in other states have done so, according to Ford's motion.

Posted by Marcia Oddi on Sunday, January 21, 2007
Posted to General Law Related

Law - "Super Lawyers/Best Lawyers Buoyed by N.Y. Advertising Rule"

Henry Gottlieb reports in the New Jersey Law Journal that begins:

The New York courts have amended advertising rules to allow attorneys to tout their "bona fide professional ratings" -- another example that New Jersey could be out of step if it adopts a proposed ban on services like Super Lawyers and Best Lawyers in America.

In rules effective Feb. 1, New York's Appellate Division presiding justices added bona fide professional ratings to the list of things lawyers can mention in their ads, along with education, writings and bar and professional society memberships.

"I think it signals to New Jersey that New York is not going to follow in their attempts to limit lawyer advertising and the ability to mention their Super Lawyer or Best Lawyer designation," Super Lawyers' president William White says. "It kind of says to New Jersey, 'You're out there on your own.'"

To be sure, the New York rule does not mention Best Lawyers in America or Super Lawyers. Nor does it define a bona fide rating service. But it certainly doesn't prohibit inclusion of Super Lawyers or Best Lawyers ratings in ads, as the New Jersey Supreme Court's Committee on Attorney Advertising did last July in Opinion 39.

A list of past ILB entries on "Superlawyers" is available here.

Posted by Marcia Oddi on Sunday, January 21, 2007
Posted to General Law Related

Ind. Law - New flood maps will impact insurance rates

Rebecca S. Green reports in the Fort Wayne Journal Gazette today, in a story headlined "Allen, Adams residents get chance to see new flood maps: Meetings slated to preview changes, updated boundaries," that:

Allen and Adams county residents will have a chance to view the counties’ new FEMA flood maps at a series of upcoming meetings.

The new flood maps and the Flood Insurance Study, developed by the Federal Emergency Management Agency, will not become effective until at least November, but residents who suddenly find themselves in a flood plain, or suddenly outside the flood plain, can use the upcoming months to handle flood insurance matters.

The information will be used to help public officials make decisions in permitting development in the flood plain, according to a release from FEMA.

According to Rodney Renkenberger, head of the Maumee River Basin Commission, the new maps have a number of new homes added to the flood plain.

Until the maps become effective, homeowners in the new portion of the flood plain can buy federal flood insurance at a lower rate than they will be able to when the maps are officially adopted, he said.

When the maps are adopted, flood insurance for the newer areas will be offered at a premium rate, he said.

The maps come not long after new flood plain maps were adopted in 2003. Renkenberger said it’s unusual for FEMA to revisit flood plain maps so soon after others were created.

But Renkenberger and Allen County officials lobbied for the new maps when more accurate information became available.

The 2003 maps used 10-foot topographical data, but the new maps were created using 2-foot topographical data, which more accurately defined the flood plain, he said.

“We can zero in on where that flood plain boundary is within a foot (vertically),” he said.

Posted by Marcia Oddi on Sunday, January 21, 2007
Posted to Environment | Indiana Law

Courts - More on: Indiana appeals court now a leader in making all rulings accessible to public

This ILB entry from Jan. 6th noted Howard Bashman's column headlined "It's Time to Abolish 'Invisible' State Appellate Court Rulings" and then pointed out that Indiana had taken that step forward last August.

This week an attorney in Madison County, Illinois writes in the Madison Record (apparently a legal newspaper focusing only on Madison County) that it is time for Illinois to post both its precedential and non-precedential opinions online. A quote:

In Illinois' Fifth District Appellate Court, the number of decisions posted online is dwarfed by the number of cases actually disposed.

For instance, in 2004 there were approximately 77 opinions made available on the court's website, yet 812 cases - criminal and civil -- were disposed of that year. In 2005, approximately 56 opinions were posted online compared to 751 disposed of criminal and civil cases. The number of cases disposed of in 2006 is not available on the court's website, however approximately 67 opinions were issued online last year.

Fifth District Appellate Court Clerk Louis Costa said court opinions are written and available for public view. By specifying a particular case, those not posted on the Internet may be obtained from the clerk's office at a cost of 25 cents per page, he said.

BTW, this Sept. 20, 2004 ILB entry begins: "A 'plaintiff's paradise' is how Madison County Illinois has been described."

Posted by Marcia Oddi on Sunday, January 21, 2007
Posted to Courts in general

Ind. Courts - Randolph County may renovate courthouse after all

Joy Leiker of the Muncie Star-Press reports today, in a story that begins:

WINCHESTER -- Randolph County is 34 months away from a renovated and expanded courthouse.

That is, if officials stick to a preliminary project timeline presented Saturday by Commissioner David Lenkensdofer during a special joint meeting of the county council and board of county commissioners. It was the county's first courthouse discussion since last spring.

All 10 members of those two boards attended the special session, and there were no objections to Lenkensdofer's schedule.

"If we don't set deadlines we'll never get it done," said Dick Wise, a county council member and the lone Democrat on either board.

The ultimate goal, Lenkensdofer said, is to proceed in a reasonable fashion with local taxpayers in mind.

Of course, that was the goal 18 months ago when Lenkensdofer was the odd man out in a 2-1 vote to tear down the courthouse. One tumultuous election year and reversal vote later, and Lenkensdofer, a restoration proponent, is leading the charge to proceed.

And now it appears most of his elected cohorts are willing to go along with him. Saturday there was no outward opposition to either the restoration of the current courthouse, which was built in 1875 and completed in 1877, or to expansions on both the north and south sides.

But no plans are final. In fact, there are no plans.

A sidebar to today's story goes through the entire 18-month history since officials voted to demolish the Randolph County Courthouse.

Check here for a list of MANY earlier ILB entries mentioning the Randolph County Courthouse.

Posted by Marcia Oddi on Sunday, January 21, 2007
Posted to Indiana Courts

Ind. Gov't. - Tracking what is happening in the General Assembly [Updated]

Bryan Corbin of the Evansville Courier & Press has an excellent rundown today of legislative activities last week, headlined "Second week a busy one for state Legislature." Hopefuly, this will be a weekly feature in the C&P.

To keep track specifically of bills affecting the courts and matters which may come before them, check out the Indiana Judicial Center's new Legislative Updates blog.

[Updated 6:30 pm] Yes, the C&P is planning to run a weekly update every Sunday during the session. Here's the link to last week's installment.

Posted by Marcia Oddi on Sunday, January 21, 2007
Posted to Indiana Government

Saturday, January 20, 2007

Courts - Motion to reconsider filed by both sides re local Louisiana school board prayer decision by the 5th Circuit

David J. Mitchell of The Advocate of Baton Rouge, Louisiana today reports:

In court petitions filed Friday in the three-year legal battle over prayers at Tangipahoa Parish School Board meetings, both sides asked the 5th U.S. Circuit Court of Appeals to reconsider its divided decision.

On Dec. 15, a three-judge appeals court panel left open the possibility for nonsectarian prayer at board meetings but ruled that four sample School Board prayers were unconstitutional. Three of the four prayers mentioned “Jesus.”

But the lead opinion by Judge Rhesa Barksdale didn’t decide which legal precedent should apply and only “assumed” one for the purposes of the case. The other two judges, Carl Stewart and Edith Brown Clement, were divided in the 2-1 decision.

In their motions, the American Civil Liberties Union, which represents the plaintiffs, and the School Board each have asked the entire court to determine which legal standard should apply.

“Essentially, the split opinion has left everyone in a quandary respective to the constitutionality of prayer at the beginning of board meetings,” ACLU attorneys Ronald Wilson and Katie Schwartzmann wrote.

The School Board had appealed a February 2005 decision by U.S. District Judge Helen G. Berrigan that blocked all religious prayers at board meetings.

In October 2003, the ACLU sued the board over its prayer practices on behalf of an unnamed parent and his two children.

As the litigants are, the appeals court panel was divided over whether and how one of two Supreme Court cases should apply: Lemon v. Kurtzman or Marsh v. Chambers.

The first case, decided in 1971, lays out the three-part “Lemon” test, which sets forth when government action meets First Amendment muster.

Berrigan used it to determine sectarian prayers at School Board meetings violate the First Amendment’s Establishment Clause by excessively entangling government activity with religion. The ACLU and Stewart support this view, court filings show.

The second case, Marsh, which dates from 1983, found that the Nebraska Unicameral Legislature’s use of a paid chaplain to lead opening prayers was constitutional.

The opinion cited more than 200 years of congressional history of similar practices and held that sectarian prayers were fine in that instance if the government didn’t advance or proselytize religion.

The School Board and Brown support this view and want it applied to school boards.

Neither side went with the reasoning of Barksdale, who determined the board prayers were overly sectarian and unconstitutional so he didn’t need to say whether Marsh applied, court filings show.

School Board attorney A. Kirk Gasperecz said Friday the appeals court generally considers quickly whether to rehear a decision. If it does, he said, the court may require parties to resubmit briefs, which could take time.

[Thanks to How Appealing for the link.]

The ILB wasn't aware of the original Dec. 15, 2006 5th Circuit opinion. Here is an AP report at the time. Some quotes:

NEW ORLEANS — A divided federal appeals court panel has issued a ruling that may allow the Tangipahoa Parish School Board to begin its meetings with a nonsectarian prayer, and opened up a new chapter in a long dispute between school officials and the American Civil Liberties Union.

The three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Dec. 15 in Doe v. Tangipahoa Parish School Board that the school board should be treated like other elected bodies, which are allowed to invoke nonsectarian and non-proselytizing prayers at their meetings.

But the panel upheld a district judge's view that the Tangipahoa board's previous practice of prayer violated the constitutional ban on government promotion of religion. Since that ruling in February 2005, the school board has not opened its meetings with a devotional.

"In so holding, this opinion takes no position on whether another form of prayer is permissible at Board meetings," U.S. Judge Rhesa Barksdale wrote for the majority. "Instead, it holds only that prayers of the type included in the stipulations do not pass constitutional muster."

The panel sent the case back to U.S. Judge Helen G. Berrigan, who had barred the school board from opening its meetings with prayers. The appellate court told Berrigan to amend her injunction considering the new ruling. * * *

"If it is like it seems, you can pray, but only generally," said Sandra Bailey-Simmons, the school board president. "It looks like censorship."

She said the majority of people in Tangipahoa are Christians and want the board to be able to invoke Christianity at its meetings. She said she was interested in appealing the decision.

Likewise, Joe Cook, the executive director of the Louisiana branch of the ACLU, said the ACLU might seek a rehearing or appeal.

He said the panel "avoided dealing with the central issue of whether school boards in general" should be allowed to hold prayers. The ACLU has argued that school boards are not like legislative bodies because they are an extension of the school system they oversee.

"How can they do something that they don't allow anywhere else in the school system?" Cook said. "They're supposed to be role models for the students, teachers and administrators in the system."

Oral arguments were held in Indiana's legislative prayer lawsuit on Sept. 7, 2006, in Hindricks v. Bosma, before the 7th Circuit . The ILB is anticipating a decision by the 3-judge panel any day now.

Posted by Marcia Oddi on Saturday, January 20, 2007
Posted to Ind. (7th Cir.) Decisions

Courts - An entertaining entry for the weekend reader

This article by Mike McKee of The Recorder, syndicated by Law.com, titled "The Record of Achievement No Lawyer Wants," reports:

As he has done for years, California Supreme Court Clerk Frederick Ohlrich warned attorneys just before oral arguments last week to be sure they got the justices' names correct when addressing them.

He had forgotten to give that warning before arguments the day before, Ohlrich said, and, sure enough, one lawyer wound up referring to Justice Ming Chin as Justice Ming.

"Ming is his first name, not his last," Ohlrich said, laughing at the mistake.

Even worse, he said, at oral arguments in Los Angeles last month, an attorney referred to Chief Justice Ronald George as Justice Lucas -- as in Malcolm Lucas, George's predecessor who left the bench in 1996.

"Chief Justice Lucas has been gone for 11 years now," Ohlrich chuckled on Wednesday. "I don't know how counsel got that, but that's what he said."

But no one in California, Ohlrich noted, has gotten close to butchering names as badly as the Miami attorney who argued for Florida's secretary of state in Bush v. Gore, 531 U.S. 98, the U.S. Supreme Court case that decided the outcome of the 2000 presidential election. During that high-profile argument, Ohlrich noted, the lawyer misnamed four of the high court's nine justices.

Ohlrich said that's a record that could last as long as Joe DiMaggio's 56-game hitting streak has stood.

"It will likely," he said, "never be broken."

Posted by Marcia Oddi on Saturday, January 20, 2007
Posted to Courts in general

Courts - From Kentucky: "New local trial on tap because of drunken juror"

Andrew Wolfson writes in the Louisville Courier Journal today in a story that begins:

A Jefferson Circuit Court judge has ordered a new trial in a traffic accident suit because one juror drank so much vodka during the trial last September that a deputy sheriff heard her screaming in the jury room.

Although Kentucky's high court twice ruled decades ago that there is nothing wrong with jurors taking a nip, Judge Geoffrey Morris last week set the verdict aside and ordered a retrial.

Morris did so even though the inebriated juror voted in favor of the plaintiff, who claimed she was injured when a garbage truck ran into her car. The jury had awarded her $15,550, which was reduced to $3,825 because jurors found she was partially at fault and to reflect money she'd already been paid.

Morris conceded in his order that new trials may be granted only in the most "extreme of circumstances," but he said, "the inexcusable, disruptive behavior of this juror was so extraordinary as to render this relief appropriate."

This is somewhat reminescent of this ILB entry headed "Questions of Jury Behavior in Myers Murder Trial" from Nov. 29, 2006, albeit with a different outcome.

Posted by Marcia Oddi on Saturday, January 20, 2007
Posted to Courts in general

Ind. Decisions - Still more on: Timberlake Execution Stayed

Harold J. Adams of the Louisville Courier Journal has a well-worth reading story today expanding on the legal issues in the Timerlake case, touched on in Adams' story Thursday (see ILB entry here). The story begins:

The legal definition of insanity as it applies to death row inmates -- which lies at the heart of the debate over whether to execute convicted murderer Norman Timberlake -- is a shaky one.

That, at least, is the opinion of two Indiana Supreme Court justices who dissented twice over the past two years from majority opinions in favor of executing mentally ill inmates.

This week, however, they prevailed in another decision.

The two -- Theodore Boehm and Robert Rucker -- joined with Justice Brent Dickson in deciding Wednesday to halt Timberlake's execution, which had been scheduled for yesterday.

The ruling came after the U.S. Supreme Court decided this month to take another look at the definition of insanity as it pertains to those condemned to die.

The U.S. high court agreed to consider a Texas case, in which this question has been posed:

"Does the Eighth Amendment (to the U.S. Constitution, prohibiting cruel and unusual punishment) permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of a severe mental illness … does not appreciate that his execution is intended to seek retribution for his crime?"

For more on death penalty issues, including links to other resources, see this entry from Prof. Doug Berman's Sentencing Law and Policy Blog.

Posted by Marcia Oddi on Saturday, January 20, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Bill to ban serial meetings passes House committee"

From an Evansville Courier & Press editorial yesterday:

The push to make it illegal for government boards to hold secret "serial" meetings received a significant boost this week with the endorsement of an Indiana House committee.

The bill sponsored by state Rep. Russ Stilwell, D-Boonville, was passed out of the House Government Regulatory Reform Committee on an 8-1 vote.

It was just a year ago that a similar measure could not even get a hearing in the House. That bill, sponsored by state Sen. Beverly Gard, R-Greenfield, passed the Senate 48-2, but could garner no support in the House.

That was baffling, because it raised the question, why would any conscientious lawmaker support a loophole to the Open Meetings Law that permitted government boards to meet in secret in small groups? While the meetings may not have violated the letter of the law, they clearly violated the spirit of the law, which is intended to ensure Hoosiers access to the proceedings of their government.

Yet with serial meetings, boards can conduct public business in private and then take action in public meetings, without allowing the public to be privy to their deliberations. That could change soon, given the momentum of Stilwell's bill.

Also significant is that House Speaker Pat Bauer and Majority Caucus Chairman Dale Grubb have signed on as co-sponsors of Stilwell's bill. * * *

According to Courier & Press staff writer Bryan Corbin, opposition to the measure is coming from the Association of Indiana Counties, the Indiana Association of Cities and Towns, and the Indiana School Boards Association, each of which represents groups of local government officials.

Corbin wrote that Frank Bush of the school board group told lawmakers that the serial-meeting ban would have several unintended consequences. For example, he said, could a school board president meet with and provide orientation to a newly elected board member?

It just doesn't balance that Indiana should allow government boards the out of meeting legally in secret just to guard against situations such as that described by Bush. The target here is stealth government, not the orientation of new officials.

Stilwell's bill has on its side the principle that Indiana government should be fully open and accessible to all Hoosiers. That trumps all other concerns in the consideration of this legislation.

The editorial unfortunately does not give the bill number. It is HB 1129.

Posted by Marcia Oddi on Saturday, January 20, 2007
Posted to Indiana Government

Law - "High court to review campaign finance law"

David Savage of the LA Times wrties today:

WASHINGTON — The Supreme Court set the stage Friday for striking down a part of the McCain-Feingold campaign finance law that bars the broadcast of corporate and union-funded ads just prior to an election.

Three years ago, the justices narrowly upheld the McCain-Feingold Act of 2002 and its rule against corporate-funded broadcast ads, which was adopted to prevent powerful interests from using their money to sway elections in the final weeks of a campaign. The now-retired Justice Sandra Day O'Connor cast a deciding vote in favor of the law.

On Friday, the justices announced they would hear a free-speech challenge to the rule in April, this time before a court that is likely to be more skeptical of laws that restrict election-related spending.

Although advocates of campaign funding laws say they are trying to limit the influence of big money in politics, critics say the measures unconstitutionally restrict people and groups from voicing their political views.

The critics include Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. They voted to strike down the McCain-Feingold Act as unconstitutional. If Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. join them, they will have a majority to limit or strike the rule against corporate-funded broadcast ads.

That would open the door to more special interest ads on radio and TV prior to the 2008 primary and general elections. * * *

James Bopp Jr., an Indiana lawyer
who represents free-speech and anti-abortion causes, brought a test case on behalf of the nonprofit Wisconsin Right to Life Inc. He proposed to run radio ads during the summer of 2004 that criticized Democratic Sens. Russell D. Feingold and Herb Kohl, both of Wisconsin, for refusing to approve all of President Bush's pending judicial nominees. Feingold, a co-sponsor of the campaign funding law, was then seeking reelection.

The Federal Election Commission said these ads would be illegal. Bopp sued, citing the 1st Amendment and arguing these ads amounted to "grassroots lobbying" of a federal office holders, not an election ad. In December, a three-judge panel in Washington agreed with Bopp and said "genuine issue ads" are protected as free speech.

Supporters of the campaign-funding law, including Sen. John McCain (R-Ariz.), fear that if the ruling is upheld, it would open a large loophole. Though Bopp represents a small, nonprofit group, large corporate interests could broadcast ads that fault candidates for their positions on important issues.

Bopp argues that the restrictions on campaign spending allow lawmakers to shield themselves from criticism. "Politicians should not be able to use campaign finance laws, like McCain-Feingold, to prohibit citizen groups from engaging in grass roots lobbying," he said Friday.

The justices voted to hear two appeals raising the same basic issue. They are Federal Elections Commission vs. Wisconsin Right to Life and McCain vs. Wisconsin Right to Life. The cases will be decided by late June.

Other papers covering this story today include the Washington Post, which reports:
At issue in the case is the question of whether so-called issue advocacy ads paid for by the general funds of special interest groups and broadcast in the period before a federal election may mention specific candidates. A three-judge panel in Washington last month overturned that prohibition, which is one of the key provisions of the law known formally as the Bipartisan Campaign Reform Act.

"The stakes are enormous," said Michael E. Toner, a Federal Election Commission member who served on President Bush's campaign in 2000. "We're watching this case very closely."

The specific rule against naming a candidate -- 30 days before a primary and 60 days before a general election -- is one of the bright lines in the act governing the role special interest groups may play in the election and, to its supporters, one of the act's virtues.

"One of the advantages of McCain-Feingold is that it's clear," said Trevor Potter, an adviser to Sen. John McCain (R-Ariz.), the law's namesake, and president of the Campaign Legal Center.

If the justices uphold the lower-court ruling, Potter predicts additional disputes in the courts and at the FEC about when an independent group's commercial would be considered legitimate issue advocacy, and when it would be considered an attempt to influence the outcome of an election.

"You will have endless challenges to see where the line should be," he said.

But James Bopp Jr., the Indiana attorney and Republican National Committee member who brought the case on behalf of Wisconsin Right to Life, said the current prohibition cracks down on groups that are merely intending to influence lawmakers in the manner encouraged by the First Amendment.

The right to petition the government, Bopp said, should not be limited simply because it makes campaign finance laws too complicated.

"The court is perfectly capable of drawing a sensible and reasonable line between grass-roots lobbying and influencing an election," Bopp said.

and the NY Times. Here is Linda Greenhouse's story. Check the Election Law Blog for added coverage and links.

Posted by Marcia Oddi on Saturday, January 20, 2007
Posted to General Law Related

Ind. Law - "Gary Roberts named Dean of Indiana University-Indianapolis School of Law

"Sports-law expert to lead IU-Indianapolis law school" is the headline to a story by Staci Hupp in today's Indianapolis Star. Some quotes:

Gary Roberts is billed as the nation's premier sports-law scholar. So it's fitting that he was picked to run a law school in a sports hub like Indianapolis.

Indiana University officials named Roberts dean of Indiana University School of Law-Indianapolis on Friday. His ties to Indianapolis date back several years, mostly through NCAA committees. Roberts also has advised the NFL, minor-league baseball teams and the European Soccer Federation.

Most recently, Roberts has been deputy dean of Tulane University's law school in New Orleans. He was a pioneer in teaching about sports industry law, including labor, tort, contract and antitrust issues.

"When we sat down as a committee and we established criteria for what we would like to see in a new dean, it turns out that Gary checks every single box," said Andrew Klein, associate dean for academic affairs at the school. "Not only is he an experienced administrator at another law school, he has a real connection professionally with Indianapolis."

Roberts, 58, will be paid $259,000 a year when he replaces interim Dean Susanah M. Mead on July 1. Former Dean Anthony Tarr left in 2005.

Sports Law Blog also has an entry on the appointment:
Congratulations to Gary Roberts, Deputy Dean of Tulane Law School and Director of the Tulane Sports Law Program, on being named Dean of Indiana University School of Law in Indianapolis. Gary, who co-authors a leading sports law case book with Harvard Law School professor Paul Weiler, has extensive experience in sports law, including serving as President of the Sports Lawyers Association from 1995 to 1997. It appears that he will continue to engage in sports law, as his new school's Executive Vice Chancellor and Dean of the Faculties, Uday Sukhatme, says, "Sports law will continue to be a focus of Roberts' scholarly work at IUPUI, and this is most appropriate given the strong sports presence in Indianapolis."
The textbook is: Sports and the Law: Text, Cases and Problems

Posted by Marcia Oddi on Saturday, January 20, 2007
Posted to Indiana Law

Law - "Lawyers Balance Public Service, School Loans"

NPR has a piece on Morning Edition yesterday about how the high cost of repaying student loans is making it difficult for young lawyers to become prosecutors or public defenders. The story has now been transcribed so that you now have the choice of listening to it, or reading it. It begins:

The cost of law school continues to be a burden for many public defenders and prosecutors. Some reluctantly leave public service for the private sector in order to pay back their loans.

Perla Tirado loves being a public defender. She earned her law degree at DePaul University and passed the bar exam a year and a half ago. Now she defends those accused of domestic violence crimes who can't afford a lawyer.

Tirado does it for $52,000 a year, which is dwarfed by the size of her student loans. They total about $150,000. Tirado, 31, figures she'll be close to retirement when she's done paying off the loans.

And things aren't any better for prosecutors. Julian Brevard, who works in the child protection division of the Cook County State's Attorney's Office, has debts totaling about $90,000. He started two years ago after earning his law degree at Catholic University in Washington, D.C.

Posted by Marcia Oddi on Saturday, January 20, 2007
Posted to General Law Related

Friday, January 19, 2007

Ind. Decisions - Transfer list for week ending January 19, 2007

Here is the Indiana Supreme Court's transfer list for the week ending January 19, 2007.

Nearly three 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.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access the list here. (If you find this list useful, I'd appreciate hearing from you; and will continue to update it.)

Posted by Marcia Oddi on Friday, January 19, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and _3 NFP)

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP) (link to cases):

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3)

Brian Anthony McGhee v. State of Indiana (NFP)

Jason Steury v. State of Indiana (NFP)

Mose T. Bowling v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 19, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Porter County eyeing juvenile drug court

Bob Kasarda reports today in the NWI Times that begins:

VALPARAISO | County officials are considering starting a juvenile version of the successful adult drug court program.

Porter Circuit Court Judge Mary Harper said funding has been located for training, but many questions and challenges remain.

Among the top concerns is how to fund the effort.

Grant money has been shrinking, which is both jeopardizing and forcing changes among the four existing juvenile drug court programs in the state, said Kathy Timberlake, drug court coordinator in Tippecanoe County.

"You have to be very passionate and you have to be very committed," she said.

Posted by Marcia Oddi on Friday, January 19, 2007
Posted to Indiana Courts

Environment - Still more on: A state panel plans public hearings this month on its model rules for local regulation of large livestock farms

The revived Indiana Land Resources Council (ILRC) has been holding public hearings on local zoning for CAFOs.. Seth Slabaugh of the Muncie Star-Press reports today on the hearing in Noblesville. The story begins:

NOBLESVILLE -- State officials are recommending that counties require concentrated animal feeding operations (CAFOs) to be located at least 600 feet from residences.

But residents who attended a listening session presided over by Andy Miller, director of the state department of agriculture, said that was not far enough.

"If you think it's fun to live there, just come out and see how fun it is," said Corvin Coats, a retired farmer from Randolph County, which led Indiana with 13 new swine CAFO permits in 2006. "You need five miles to be safe (from air pollution)."

The Indiana Land Resources Council (ILRC), of which Miller is chairman, is suggesting that counties revise their zoning ordinances because of increasing conflicts between rural residences and new CAFOs. Indiana permitted 91 swine CAFOs housing 513,111 swine last year statewide.

"The use of atmospheric air to dilute odors from livestock facilities by appropriate setback distances is still the most popular and cost-effective strategy to reduce odor nuisance," ILRC reported in one of its proposed model ordinances for local governments.

"If this is the most popular method of dealing with odors, the setback will have to be a lot more than 600 feet," said Gary Alexander, a real-estate appraiser and farm owner from Eaton, at Wednesday night's session.

"Your setbacks are way off," said Richmond resident Barbara Cox, who owns farm land in Randolph County. "You can't start off at 600 feet."

The story also reports on an interview with Mr. Kelly (ILRC member and chairman of the urban planning department at Ball State University) held after the meeting:
The ILRC is not trying to preempt local decision-makers, Kelly said.

"We're just trying to give them a tool to use, not tell them what to do," he said. "We don't think our numbers are unreasonable, but if a county thinks 1,200 feet is a better setback distance, that's what they ought to do."

But if a county thinks a five-mile setback is in order, "then it ought to be honest and vote to ban animal agriculture," Kelly said. "I think an Indiana county can say it is not in favor of animal agriculture, or it could ban particular types of animal agriculture," such as confined feeding operations that house more than a certain number of animals.

"Counties ought to make their own decisions," he said. "But they need to lay out a policy and live with it. I don't see any useful purpose in forcing every single (CAFO) operator to go through a public hearing. The only reason to have a public hearing on each one is to gather enough support to get each one turned down. If you're going to do that, you should just ban it entirely."

But there is another side to this issue, Kelly noted. There are people, including Miller (Andy Miller, director of the state department of agriculture), who believe that CAFOs are the future of agriculture and a key strategy to the economic comeback of rural Indiana.

Posted by Marcia Oddi on Friday, January 19, 2007
Posted to Environment

Environment - Indianapolis attorney to aid in East Chicago dredging project

Steve Zabroski of the NWI Times reports today:

EAST CHICAGO | The local sponsor of the Indiana Harbor and Ship Canal dredging project has added a second attorney to handle financial negotiations with the U.S. Army Corps of Engineers.

On Wednesday, East Chicago Waterway Management District board members approved hiring Thomas John, a partner with the Indianapolis law firm John Lewis and Wilkins, to assist city Corporation Counsel Carmen Fernandez with representing the district.

The Army Corps plans to dredge 4.6 million cubic yards of contaminated sediment from the waterways and permanently store the toxic material at a 186-acre former refinery site along Indianapolis Boulevard. The Corps has been waiting a year for an audit of funds spent over the past decade by the local waterway board.

The project has been all federally funded since May 2005, and the Corps wants an accounting prior to that time to determine what money is available.

John was hired at $285 per hour to conduct an audit on behalf of the board, as well as to work on appraisals of property around the sediment storage site owned by the waterway management district.

Last month, board members approved paying John $26,000 from its 2007 budget of $224,604 for his work.

Posted by Marcia Oddi on Friday, January 19, 2007
Posted to Environment

Ind. Courts - "Randolph officials to discuss courthouse"

A brief item in the Munice Star-Press today announces:

WINCHESTER -- Randolph County officials will restart the discussion of what to do with the aging courthouse Saturday during a special joint meeting of both the county council and board of county commissioners. * * *

In June 2005, after more than a year of discussion, the Randolph County Board of Commissioners voted 2-1 to demolish the three-story courthouse, which was building in 1875-77.

After much controversy -- over an issue that appeared to impact the outcome of races in last year's county election -- the decision to tear down the building was rescinded.

Posted by Marcia Oddi on Friday, January 19, 2007
Posted to Indiana Courts

Ind. Courts - Although IU students make up 54% of Monroe County, few are on juror lists

Paige Ingram of the Indiana Daily Student has a very interesting story today titled "Monroe County courts might not provide a true 'jury of peers' ". It begins:

IU students facing trial in Monroe County might not be opposite a jury of their peers.

A Jan. 1, 2003, Indiana Supreme Court ruling changed how jury pools were selected within the Hoosier state. Before, jurors were drawn solely from voter registration.

The law allows for Monroe County to pull names from the Indiana Bureau of Motor Vehicles and property tax records, said David J. Remondini, counsel to the chief justice of the Indiana Supreme Court.

But some are worrying whether the jury system is fair for students, who, based on census data, make up about 54 percent of the population in Monroe County.

Remodini said the new lists are thought by the court to be "representative of 99 percent of the population."

However, after taking student population into consideration and consulting with those who completed the study that led to this statistic, Remodini eased away from the claim.

"It's entirely possible that Monroe County's list does not include students unless the students have changed their addresses on their driver's licenses," Remodini said. "I don't think anyone ever thought of that."

Posted by Marcia Oddi on Friday, January 19, 2007
Posted to Indiana Courts

Thursday, January 18, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

Court of Appeals issues 2 today (and 12 NFP) (link to cases):

For publication opinions today (2):

Kevin Mathis v. State of Indiana - "Mathis argues that the trial court erred in admitting the testimony of a police officer and that the evidence was insufficient to support his convictions. Concluding that the trial court’s admission of the police officer’s testimony was not reversible error and that the evidence was sufficient to support his convictions, we affirm the trial court’s judgment."

[From dissent] "A witness who has “calmed down” and “gained control” of her emotions is no longer under the stress of the startling event and has had time for reflection and deliberation. Accordingly, I believe it was error to admit the challenged statement under the excited utterance exception."

Larry C. Maynard v. State of Indiana - "Maynard raises one issue on appeal, which we restate as follows: Whether the trial court appropriately denied Maynard’s Motion to Dismiss based upon his claim that the officer issuing the information that led to Maynard’s arrest was neither wearing a distinctive uniform nor a badge of authority pursuant to Indiana Code section 9-30-2-2."

NFP civil opinions today (2):

Gordon B. Dempsey v. George C. Carter and Oleva Gay Carter (NFP) - "We restate the issues before us as: I. whether Dempsey’s appeal ought to be partially dismissed because of flagrant violations of the Indiana Appellate Rules; II whether the trial court properly refused to set aside the foreclosure sale."

Roger Edwards v. Bloomington Parking Management, LLC (NFP) - "As previously observed, we will not develop arguments for an appellee that has elected not to file an appellee’s brief. United Consulting Engineers, 810 N.E.2d at 354. Furthermore, speculation or conjecture does not constitute sufficient evidence to support an award of damages. Noble Romans, Inc., 760 N.E.2d at 1140. The judgment of $130.00 must be reversed due to a lack of sufficient evidence of record to support the damages award. Reversed."

NFP criminal opinions today (10)

Richard Dobbs v. State of Indiana (NFP)

James Frawley v. State of Indiana (NFP)

Dawn Verdegan v. State of Indiana (NFP)

Michael Schidler v. State of Indiana (NFP)

John Hill v. State of Indiana (NFP)

Delfino Mondragon v. State of Indiana (NFP)

Jessica Stamps v. State of Indiana (NFP)

Edward Miller v. State of Indiana (NFP)

Santos Irizarry, Jr. v. State of Indiana (NFP)

David A. Donlan v. Sara Donlan (NFP)

Posted by Marcia Oddi on Thursday, January 18, 2007
Posted to Ind. App.Ct. Decisions

Courts - "New Internet Kiosks Make Courts More User-Friendly"

The Washington Post reports today that:

[I]f you're at D.C. Superior Court and you want to figure out how to file an appeal, track down a probate form or pay that D.C. parking ticket before the fine doubles, the new Internet kiosks should make such tasks a little easier.

Installed at the courthouse over the past few months, the five metal-encased computer stations provide unlimited access to the Web portals of the District government and the District courts.

Each of the five kiosks has a touch screen as well as a mouse and keyboard. Each also has a built-in printer, so users can take copies of whatever seems useful. And for those who cannot find the information they're after, the kiosk telephone can connect them directly to the courthouse information desk.

Provided by the D.C. government, the computer terminals are part of an effort by D.C. Superior Court and the D.C. Court of Appeals to increase public access to court information, and, eventually, to court records.

Posted by Marcia Oddi on Thursday, January 18, 2007
Posted to Courts in general

Ind. Courts - A constitutional amendment to prevent judges from mandating funds for the operation of their courts?

Bill Dotson, reporter for the Crawfordsville Journal Review, has a story today on new state senator Phil Boots. Some quotes:

Boots (R-Crawfordsville) officially began his duties as the District 23 State Senator Jan. 8 when the 2007 legislative session began. It is scheduled to continue through April 29.

Boots succeeds State Sen. Joseph Harrison (R-Attica) in District 23. Harrison announced his decision last year to retire from the senate seat he'd held for 30 years. After winning a crowded Republican primary race last spring, Boots ran unopposed in the general election last fall.

Now here is the part that caught my eye:
He also is proposing two bills dealing with judges' mandates: one would be a constitutional amendment to prevent judges from mandating funds for the operation of their courts. If that one fails, the other would require that if the matter goes to trial, the state attorney general would take the judge's case rather than allowing the hiriing of private counsel.
Here are the proposals:

Posted by Marcia Oddi on Thursday, January 18, 2007
Posted to Indiana Courts

Ind. Decisions - "Former police chief to appeal judge's ruling"

A story today in the NWI Times by Vanessa Renderman begins:

ST. JOHN | A former St. John Police Chief will appeal a judge's decision that St. John and its Police Commission had the authority to remove him from his job nearly three years ago.

In March 2004, Joseph Guzik filed suit against the town of St. John and the town's Metropolitan Police Commission, alleging he was improperly removed as police chief and discharged.

Guzik was the town's police chief for the 10 years before being removed.

In his suit, Guzik alleged that a letter of resignation was waiting for his signature during a closed-door meeting with the police board on March 19, 2004. Guzik said he was told if he didn't sign it, the board would publicize unsubstantiated allegations about him.

In December, Jasper County Judge J. Philip McGraw found in favor of the town and police commissioners.

McGraw's ruling stated that because Guzik was appointed to his position as chief and was not a rank-and-file officer, he was not entitled to a hearing before being removed as police chief.

This suit recalls to the ILB an earlier Lake County suit involving the Town of Merrillville and its former Sheriff John Shelhart. The ILB posted a number of entries on this dispute (see list here) because of the interesting question that was initially posed: "Can a council grant a multiyear employment contract that extends beyond the terms of a majority of its members?" A petition to transfer was denied in this case 12/8/05, but as I recall, the multiyear contract issue was never addressed by the Court of Appeals.

Questions about the validity of multiyear contracts continue -- see for example the ILB entry from this weekend on the legality of the ten-year welfare privatization contract.

Posted by Marcia Oddi on Thursday, January 18, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - More on: Timberlake Execution Stayed

Updating yesterday's ILB entry on the Supreme Court's order staying the Timberlake execution, Harold J. Adams of the Louisville Courier Journal writes:

The U.S. Supreme Court decided Jan. 5 that it would review its existing sanity definition through the case of Scott Panetti, who was sentenced to death by a Texas court for killing his wife's parents.

The current definition — the so-called Ford standard — says someone is sane if the person understands he or she is about to be executed and why. The justices will decide in Panetti whether that standard is adequate under the U.S. Constitution.

The court will take up the question of whether the constitution bars the execution of an inmate who knows those things but, "because of a severe mental illness, has a delusional belief as to why the state is executing him, and thus does not appreciate that his execution is intended to seek retribution for his crime."

Courts in Indiana and Texas respectively have ruled that Timberlake and Panetti, while mentally ill, are nonetheless aware that execution looms because of their crimes, and are therefore sane. * * *

The potential harm in granting Timberlake a stay "is minimal compared to the irreparable harm in denying the stay" and later learning that the U.S. high court considers his execution unconstitutional, Dickson wrote.

Dickson had been in the 3-2 majority that set the execution date after determining that Timberlake was not likely to be able to meet the Ford standard for insanity.

In yesterday's decision, he joined justices Theodore Boehm and Robert Rucker, who dissented in the December ruling. Chief Justice Randall Shepard and Justice Frank Sullivan sided against Timberlake in both rulings.

An editorial today in the Fort Wayne Journal Gazette concludes:
At Timberlake’s trial, no mental health testimony was presented, even though his schizophrenia has been observable since his arrest. Likewise, no evidence of his illness was presented to the jury weighing the death sentence.

“Of course, shooting a police officer is one of the most heinous crimes that can be committed,” Kathleen Bayes, executive director of NAMI Fort Wayne, wrote in a letter to the editor protesting Timberlake’s execution. “But executing a severely delusional and psychotic man who does not even understand the execution process or exactly why he is being executed is unconscionable. Indiana should not join these ranks.”

In August 2005, Gov. Mitch Daniels commuted the death sentence of Arthur Baird II to life without parole three days before he was to be executed for killing his parents. As with the Timberlake case, Baird’s lawyers argued he was mentally ill, but the state Parole Board had voted to recommend that the execution be carried out as scheduled.

Senate Bill 24, sponsored by Michigan City Democrat Anita Bowser, would establish a procedure for determining whether a defendant charged with murder is mentally ill and would prohibit a sentence of life imprisonment or the death penalty if the defendant is determined to be mentally ill.

Indiana law put an end to executions of the mentally retarded. It’s time to do the same in cases of mental illness.

Posted by Marcia Oddi on Thursday, January 18, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Court tosses challenge to hunter harassment law"

Reporting on yesterday's Court of Appeals 2-1 decision in Frederick S. & Roseanne Shuger v. State of Indiana (see ILB entry here, 4th case), Patrick Guinane of the NWI Times writes:

INDIANAPOLIS | A Beverly Shores couple's challenge to a state law against harassing hunters came up short Wednesday, but the case could be headed to the Indiana Supreme Court.

Frederick and Rosanne Shuger were sentenced to 15 days of community service in 2005 after a Porter County jury found them guilty of violating Indiana's Hunter Harassment Act.

Hunters taking part in a town-authorized deer cull in 2001 complained to police that the Shugers drove down a Beverly Shores road honking their car horn and allowing their dog to bark out the window.

The Shugers, who were known for protesting similar deer culls at Indiana Dunes State Park, each were convicted of two misdemeanor counts of violating the anti-harassment law. They appealed, arguing the law violates free speech protections and that prosecutors didn't do enough to prove guilt.

The Indiana Court of Appeals upheld the hunter protection law as constitutional Wednesday, ruling it regulates only the place and manner of speech.

The Shugers had compared the Hunter Harassment Act to a law against flag burning that was struck down by the federal courts. That comparison does not apply, the appeals court ruled, because the hunter harassment law does not restrict the content of speech.

The court also rejected arguments that the law was overly vague as to what actions could be considered "intentionally interfer(ing) with the legal taking of a game animal."

James Morsch, a Chicago attorney who took the case on a pro-bono basis, said he is fairly certain the Shugers will appeal to the Indiana Supreme Court.

"Obviously we're very disappointed in the results," he said. "I'm very disappointed with the court's logic."

Posted by Marcia Oddi on Thursday, January 18, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Chief Justice Shepard to Deliver 20th State of the Judiciary Address this afternoon [Updated]

Bryan Corbin of the Evansville Courier & Press has a story today on Chief Justice Shepard's State of the Judiciary speech yesterday, focusing particularly on the CJ's proposal to change the way public defenders are funded. Some quotes:

INDIANAPOLIS - Tucked into Indiana Chief Justice Randall T. Shepard's State of the Judiciary speech Wednesday was brief mention of a big idea: taking the burden of public defender and probation services off of county taxpayers and paying for them at the state level instead.

Shepard, who has been chief justice of Indiana for 20 years, addressed a joint session of the Legislature, spelling out goals for the judicial branch of state government.

Shepard, an Evansville native and former Vanderburgh County judge, discussed public defender services for indigent defendants, as well as probation and community corrections services for those convicted - both of which now operate largely at the county level and are overseen by county judges and other officials.

"In both of these, Indiana still operates a relative patchwork, in which there are various hands on the lever, financed partly through local property tax and partly by fees and partly by the state General Fund," Shepard told lawmakers.

"We would represent indigent defendants better on the one hand, and we would save money, frankly, at the Department of Correction on the other, if instead these elements of court-related work were budgeted by the state."

Vanderburgh County has a public defender's office, which represent needy clients in criminal cases. In most Indiana counties, judges appoint local attorneys to represent defendants who can't afford to hire their own lawyers.

Without specifically predicting the tax impact if public defender and probation services were absorbed by the state, "I mention these today because of the upcoming discussion about property-tax relief," Shepard said.

"Neither of these services represents a big enough item that it constitutes property-tax relief by itself, but they would be respectable parts of a larger package - in part because the burden falls very equitably and evenly across all counties in the state."

State Rep. Trent Van Haaften, an attorney and former Posey County prosecutor, found Shepard's proposal interesting.

"But we get back to a little bit of that state control versus local control," said Van Haaften, D-Mount Vernon. "A lot of county judges would prefer to have more oversight of the local public defender system, rather than making it an independent arm that's dictated by (state government in) Indianapolis. There is always the concern in terms of what is it going to cost."

In some counties, judges sometimes must request additional appropriations from their county councils in order to pay public-defender legal fees for indigent defendants.

If Shepard's proposal became reality, such funding would come through the state.

"This is an issue that's always tough: You do want some type of local control; but at the same time, you want that independence on the defender side of it, to demonstrate that an indigent individual being represented is not connected with the court or the (prosecution) or anything of that nature, and is getting true representation," Van Haaften said.

Bill Ruthhart of the Indianapolis Star features technology in his coverage. Some quotes:
Thanks to technology, Indiana courts are making progress in tracking traffic violators and fighting domestic violence, Indiana Chief Justice Randall T. Shepard said Wednesday.

In his 20th State of the Judiciary address, Shepard told legislators technology is making the job of county, city and town courts easier.

Shepard first applauded the improvement of the Indiana Bureau of Motor Vehicles' electronic traffic violation system. In 2005, just 33 of the state's 200 courts where most traffic cases are heard could transmit violations electronically, he said.

"But since the beginning of 2006, that number has increased from 33 to 156, and the other 40 are right behind them," Shepard said to a round of applause.

Then he gave an example of why having that information electronically is so important.

"Under the paper system, it took seven weeks for data from local courts to show up in the state's computers," Shepard said. "So, the fellow who got arrested for drunk driving, had his license suspended pending trial, could leave the courthouse in his car, run a red light on his way back to the tavern and be turned loose because the information available to the officer showed he had a license in good standing. Those days will soon be gone."

Shepard also highlighted a new program to register protective orders online. He said that effort, which has been started in Blackford and Tippecanoe counties, would allow officers in one county to determine whether someone has filed a protective order in another county.

To watch the 2007 State of the Judiciary address, or to read the transcipt, use this link.

[Updated 1/22/07] The Indianapolis Star has an editorial today on court technology upgrades.

Posted by Marcia Oddi on Thursday, January 18, 2007
Posted to Indiana Courts

Wednesday, January 17, 2007

Ind. Decisions - City of Carmel v. Martin Marietta Materials, Inc.

Tomorrow at 9 a.m. is the long anticipated oral argument before the Supreme Court in City of Carmel v. Martin Marietta Materials, Inc.

Gravel pits have been a big issue recently in Carmel and Martinsville. See this ILB entry from July 5, 2005, about the Court of Appeals ruling upholding a trial court's injunction over a Carmel ordinance to exercise more control over a local mining operation. Here is the summary from the Court site:

The Hamilton Superior Court granted Martin Marietta’s request for a preliminary injunction preventing Carmel from enforcing an ordinance that regulates mining operations. The Court of Appeals affirmed, holding that the trial court acted within its discretion by issuing the preliminary injunction. City of Carmel v. Martin Marietta Materials, Inc., 849 N.E.2d 1197 (Ind. Ct. App. 2006), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorneys for the City of Carmel;Alan S. Townsend and Paul D. Vink, Indianapolis, IN. Attorneys for Martin Marietta: Thomas E. Mixdorf, Zeff A. Weiss, and Abigail B. Cella. Indianapolis, IN . H. Wayne Phears, Norcross, GA .
Here is a list of earlier ILB entries on gravel pit controversies.

Watch the oral argument online tomorrow at 9:00 am or catch it later, both at this link.

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Gibson County to re-bid Courthouse work

Andrea Howe of the Princeton Daily Clarion reports today:

County Commissioners rejected three bids for rehab work at the Gibson County Courthouse and will start from scratch, hoping for a lower price this time.

Tuesday morning, Commissioner Bob Townsend said architect Tim Henning recommended rejecting the bids and re-bidding metal restoration work.

Commissioners budgeted $800,000 budgeted for courthouse restoration in their Economic Development Income Tax revenue spending plan, and have a $100,000 Rainy Day Fund pledge from the Gibson County Council to work on the building.

Late last year the board accepted a $284,000 bid for major masonry and waterproofing work, but bids for more restoration work ranged from $733,240 to $915,000.

The initial bid specifications called for replacing copper downspouts, flashing and other metal restoration at and above the cornice, including work on the clock.

Gibson Superior Court Judge Earl Penrod got permission to move ahead on interior remodeling in the old basement law library to convert the space into more court office space.

Shoultz Construction will do drywall, window and door work for $11,893.93. Penrod estimated electric work at $2,000, computer work at $5,500 and additional work for heating and air conditioning.

Last year he told commissioners he needed space so badly he's willing to pay for rent or remodeling out of court user fee revenue, but qualified the offer with the observation that he finds it odd that his is the first county office to pay for its own space.

“If you don't have the money I'll find the money,” he said. “I didn't want to make that offer because I knew you would stop looking,” he smiled.

“If he wants to pay for it, he can, but if he doesn't, we'll find a way,” said Commissioner Don Whitehead.

“It looks like the commissioners' project is apparently now becoming my project,” Penrod mused.

“We're always happy to delegate responsibility and we believe we've delegated it to a good man,” smiled commissioner Sherrell Marginet.

On a less costly note, Penrod reported the courthouse attorney's conference room is getting new furniture, courtesy of an Evansville attorney.

Bob Zoss practices in Evansville, but is a member of the Gibson County Bar Association. Judge Penrod said Zoss offered to buy new furniture and have it delivered if the county would consent to removing the furniture in the room.

Penrod said another local attorney purchased a mirror to place over the fireplace in new Gibson Circuit Judge Jeff Meade's office.

Commissioners accepted the donations.

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Indiana Courts

Ind. Courts - Steuben bans cell phones

WLKI Angola reports today:

An ordinance which bans cell phones and recording devices from the Steuben County Courthouse was adopted yesterday on all three readings by County Commissioners. Circuit Court Judge Allen Wheat and Superior Court Judge William Fee instituted the ban after part of a closed court hearing was recorded last month. County Attorney Don Stuckey said the ordinance language reflects the wishes of the judges. The order bars cell phones, cameras and recording devices of any kind in the courthouse. An exception would be made on election nights. Employees of the courthouse and attorneys will not be covered by this policy. Violators could be charged with a Class C infracture and face a fine of up to $500.

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 8 today (and 13 NFP)

Many opinions today... (link to cases):

For publication opinions today (8):

In Jill Scott v. Jeremy Irmeger, a 12-page, 2-1 opinion with a dissent beginning on p. 10, Judge Mathias writes:

Jill Scott (“Scott”) brings this appeal challenging the Carroll Circuit Court’s order awarding Jeremy Irmeger (“Irmeger”) attorney’s fees under the qualified settlement offer statute when Irmeger did not personally pay the attorney’s fees. Concluding that a defendant may incur attorney’s fees even though a third party pays such fees on the defendant’s behalf, we affirm. * * *

Based on similar public policy arguments, “Indiana courts have repeatedly held that a party is not required to personally pay the bills for his representation to be eligible for an award of attorney’s fees.” * * * Based on similar public policy arguments, “Indiana courts have repeatedly held that a party is not required to personally pay the bills for his representation to be eligible for an award of attorney’s fees.” * * *

Our supreme court held in Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992) that it was not an abuse of discretion for the trial court to award appellate attorney’s fees, even though defendant’s attorney testified he would not charge her any fees for his work done on appeal. Our supreme court first examined the policy behind Indiana Code section 31-1-11.5-6,3 which allowed courts to award attorney’s fees in dissolution actions where a party could not otherwise afford an attorney. Id. at 443. The court then concluded that this “public policy would be undermined if [it] were to hold that a party must be personally obligated to pay attorney fees before the trial court could order the other party to pay those fees.” Id. “Such a policy might, in some circumstances, effectively eliminate the right to appeal in dissolution proceedings,” the court determined.

We likewise conclude that the public policy of persuading plaintiffs to carefully evaluate the merits of their claim before insisting on proceeding to trial would be undermined if we were to hold that the QSO Statute does not permit a defendant’s recovery where a third party has paid the attorney’s fees on his or her behalf. Furthermore, we find no support in our case law analyzing similar recovery provisions that interprets the word “incurred” as “personally paid.” Accordingly, we conclude that the trial court appropriately awarded Irmeger attorney’s fees under the QSO Statute. Affirmed.

KIRSCH, C. J., concurs. SHARPNACK, J., dissents with separate opinion. [which begins] I respectfully dissent because I conclude that the trial court erred in its interpretation of Ind. Code § 34-50-1-6, the Qualified Settlement Offer statute (“QSO statute”). I conclude that under the plain language of the statute Irmeger did not incur attorney fees and is not entitled to an award of $1,000 under the QSO statute.

Roger & Shirley Ashbaugh v. Kathy Horvath - "We conclude that as a matter of law, the evidence shows that the Moores did not exercise their option to purchase upon the terms specified in the lease option agreement within the twelve-month period after the addendum was signed. Therefore, we reverse the trial court’s entry of summary judgment on behalf of Horvath and instruct the trial court to enter summary judgment on behalf of the Ashbaughs. As Horvath is no longer a prevailing party, we vacate the trial court’s award of her attorney’s fees."

In Scott B. Carneal v. State of Indiana, a 9-page, 2-1 opinion with a dissent beginning on p. 8, Judge Crone writes:

Scott Carneal appeals the sentence imposed after the revocation of his probation. Raising an equitable argument, Carneal asserts: “The trial court erred when it failed to grant [him] credit for time served in Illinois, because [he] had entered into a contract with Illinois, which provided that his Indiana sentence would run concurrent with his Illinois sentence.” We affirm.

Judge Sharpnack concurs, Judge Sullivan dissents with opinion [which states in part] : The clearly stated determination made by the Illinois court was that the Indiana sentence and the Illinois sentence were to be served concurrently. The principle of judicial comity calls for the courts of one state to “give effect to the laws and judicial decisions of another.” * * *

The doctrine of comity should be applied in this case. To order only a portion of the suspended Indiana sentence, in effect giving credit for having served his Illinois sentence, would violate no Indiana law nor would it do injury to any other Indiana citizen. I would reverse and remand with instructions to modify the judgment in accordance with this opinion.

Frederick S. & Roseanne Shuger v. State of Indiana is an 18-page, 2-1 opinion, with the dissent beginning on p. 18. It involves Indiana's Hunter Harassment law and an incident that took place in Beverly Shores where a jury found defendants guilty "for interfering with a town-sanctioned deer kill in 2001." See this May, 2, 2006 ILB entry. Judge Mathias states the issues as: "Whether Indiana’s Hunter Harassment Act is constitutional; and Whether the State presented sufficient evidence to support the Shugers’ convictions under the Hunter Harassment Act. We affirm."

The constitutionality was challenged on First Amendment grounds, along with vagueness, and overbroad. The decision concludes; "We conclude that Indiana’s Hunter Harassment Act is constitutional and that there was sufficient evidence presented at trial to support the Shugers’ convictions for violating the Act."

Chief Judge Kirsch dissents:

I respectfully dissent. While I agree with my colleagues that Frederick and Rosanne Shuger had the requisite intent to prevent or hinder the legal taking of deer, I find no evidence in the record that either they or their dog disturbed or tended to disturb or otherwise affect the behavior of any deer. There is no evidence that any particular deer left the area or took any other action in response to their actions. In the absence of such evidence, I believe the State failed to make its case. Accordingly, I would reverse the convictions. Because I would reverse on evidentiary grounds, I do not reach the Shugers’ constitutional arguments.
Bruce L. Moreton and Janet F. Moreton d/b/a AHR Construction & Remodeling v. Auto-Owners Insurance, as Subrogee of Jackie A. Gentry and Bill Gentry - "Bruce and Janet Moreton d/b/a AHR Construction & Remodeling (“AHR”) appeal the denial of their motion for summary judgment in a lawsuit filed against AHR by Auto-Owners Insurance. Auto-Owners is the insurer of the home of Bill and Jackie Gentry and is the partial subrogee of the Gentrys’ claim against AHR for damages occurring to the Gentrys’ home following work by AHR. Because Auto-Owners, as the Gentrys’ insurer and subrogee, was not bound by Gentry’s counterclaim for his uninsured damages in AHR’s small claims action against Gentry for payment of the contract price, we affirm the denial of AHR’s summary judgment motion and remand for further proceedings."

State of Indiana v. Kevin J. Lucas & Matthew S. Winkle - "The State of Indiana brings this interlocutory appeal from the Shelby Superior Court’s grant of suppression motions filed by Kevin J. Lucas and Matthew Winkle (collectively “the Defendants”). The State raises one issue: whether the trial court erred when it granted Defendants’ motions to suppress evidence discovered in a locked container inside a stolen van the Defendants were traveling in. Concluding that the trial court properly suppressed the evidence recovered from the locked metal box, we affirm. * * *

"As the trial court aptly noted, the officers “had control of the locked box and could have easily obtained a search warrant to open it, just as they did to investigate the contents of the cell phone and computer diskettes five days after the Defendants’ arrest.” Appellant’s App. p. 86. We agree. Under these facts and circumstances, we conclude that the warrantless search of the locked metal box was unreasonable under Article I, Section 11 of the Indiana Constitution."

Charles Brown v. State of Indiana - "Charles Brown appeals his conviction of attempted obstruction of justice. He argues the evidence against him was insufficient to establish his statements amounted to coercion. Because Brown’s statements were not declarations of consequences that would follow for failure to comply with his request, we reverse."

In Cletus Jones v. State of Indiana, a 13-page, 2-1 opinion (with the dissent beginning on p. ), Judge Sharpnack writes:

The first issue is whether the trial court properly denied Jones’s Batson challenge. “The exercise of racially discriminatory peremptory challenges is constitutionally impermissible.” McCormick v. State, 803 N.E.2d 1108, 1110 (Ind. 2004). “Upon appellate review, a trial court’s decision concerning whether a peremptory challenge is discriminatory is given great deference, and will be set aside only if found to be clearly erroneous.” Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001). * * *

Jones offered no argument to the trial court as to why the State’s explanation for striking Johnson should be disbelieved and found to be pretext, masking a discriminatory intent for striking Johnson from the jury. 3 Therefore, we are unable to find that the strike was improper. See, e.g., Williams v. State, 818 N.E.2d 970, 974 (Ind. Ct. App. 2004) (holding that trial court’s decision was not clearly erroneous where the trial court overruled Batson objection based on the State peremptorily striking an African-American juror due to his “dismissive attitude with respect to the case”) vacated in part and summarily aff’d in pertinent part by Williams v. State, 838 N.E.2d 1019 (Ind. 2005). * * *

Mathais, J. concurs; Kirsch, C.J., dissents with separate opinion: I respectfully dissent.

Since the decision of the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), our subsequent jurisprudence has largely eroded what seemed at the time to be a landmark decision. Today, few prosecutors or other trial counsel are so inept that, when faced with a Batson challenge, they are unable to utter an explanation that is facially racially neutral for striking all members of a cognizable racial group from a prospective jury panel. And, the burden of showing purposeful racial discrimination has proved largely unsustainable within the confines of any individual jury selection process. As a result, two decades after Batson, its goal of ensuring “that no citizen is disqualified from jury service because of his race” remains elusive. * * *

Here, the trial court here utilized an improper standard -- That the challenger must show a pattern of racial discrimination. It then found a racially neutral reason for “at least one” of the peremptory strikes, but failed to make a determination as to the other. The majority concludes that the trial court’s methodology was improper, but it then proceeds itself to make the determinations that the prosecutor’s reason for the second peremptory challenge was racially neutral and the challenger failed to show purposeful racial discrimination.

Here is where I part from my colleagues. I think that only the trial judge can determine whether the peremptory challenge is racially motivated and only the trial judge can decide whether purposeful discrimination has been shown. I do not think that we should make these determinations from reviewing a cold record. Accordingly, I would reverse Jones’ conviction and remand for a new trial.

NFP civil opinions today (5):

Stephen J. Engel v. The Strang Family Trust, Earl Strang and Donna-Belle Strang (NFP)

Diane Myers v. Elkhart Community Schools (NFP)

Jack Runion v. Acuity, A Mutual Insurance Co. (NFP)

Term. of Parental Rights of A.L.D., Crystal H. Dumas v. Carroll County DCSK (NFP)

Sharlene Haven v. Jasper County Department of Child Services (NFP)

NFP criminal opinions today (8)

Charles D. Lain v. State of Indiana (NFP)

State of Indiana v. Michael Shaw (NFP)

Michael Ryan McGill v. State of Indiana (NFP)

Daniel Farabee v. State of Indiana (NFP)

Ryan L. Berry v. State of Indiana (NFP)

Michael T. Paille v. State of Indiana (NFP)

State of Indiana v. Raymond Gregory (NFP)

David I. Franklin v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Chief Justice Shepard to Deliver 20th State of the Judiciary Address this afternoon

Per the press release on the Court site:

Indiana Chief Justice Randall T. Shepard will deliver his 20th State of the Judiciary address to a joint session of the Indiana General Assembly on Wednesday, January 17, 2006 at 2:00 p.m.

The annual address in the chambers of the Indiana House of Representatives is required by Article 7, Section 3 of the Indiana Constitution and will last about an hour. The Chief Justice will discuss the Court's ongoing projects, accomplishments and future plans.

Internet users will be able to watch a live webcast of the speech by going to www.in.gov/legislative/session/video.html and clicking on “Watch Video From the House.” A video of the speech will be available on the Internet after the address. To view it after the speech or to read the full text, go to: www.IN.gov/judiciary/supreme/state_jud.html

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Indiana Courts

Ind. Decisions - Timberlake Execution Stayed [Updated]

Here is a copy of the order filed this morning by the Indiana Supreme Court, staying the execution of Norman Timberlake.

(Unfortunately, it is a scanned document, meaning one cannot reproduce quotations without totally retyping them.) [Note: Late this afternoon the Court posted a version with selectable text - access it here..]

The 5-page order is signed by Acting CJ Dickson, J Boehm and J Rucker.

CJ Shepard dissents with opinion: J Sullivan dissents with opinion in which CJ Shepard joins.

The majority opinion states in part that:

A recent development suggests that the Supreme Court of the United States may soon revisit and address the application of the Eighth Amendment to claims that mental illness bars execution. On January 5, 2007, the Supreme Court granted certiorari to the Court of Appeals for the Fifth Circuit in Panetti v. Drake. * * *

Timberlake's situation is sufficiently similar to Panetti's that a stay of Timberlake's impending execution is appropriate.

Here is the ILB entry on the Dec. 15, 2006 Supreme Court order declining Timberlake's petition and providing that an execution date would be set. The vote at that time was 3-2. It is Justice Dickson who has changed his vote in today's order staying the execution.

Here is a list of the earlier ILB Timberlake entries.

[More] The AP has coverage here in the Chicago Tribune.

I've seen no word yet on the bench trial that was to be held before federal Judge Richard L. Young at 9:30 today challenging the use of lethal injections.

[Updated at 11:53 am]
Jon Murray and Vic Ryckaert of the Indianapolis Star now have more extensive coverage of the order, including this:

In today’s Indiana Supreme Court decision, Chief Justice Randall Shephard and Justice Frank Sullivan Jr. dissented. Shephard wrote that previous court evidence has shown Timberlake is competent and that Timberlake’s demeanor in his Parole Board interview last week also does not suggest he is insane.

Attorneys for Timberlake and the Indiana attorney general are in U.S. District Court today for a hearing on a lawsuit arguing Indiana’s lethal injection procedures risk causing unnecessary harm.

Judge Richard L. Young will decide that case. Last week, in a separate case, Young ruled against Timberlake on the mental illness grounds.

Today’s Indiana Supreme Court decision noted Young’s hands were tied by a federal law that allowed him only to review the legal basis for the state court’s decision. But the state court can revisit its own decisions, Justice Brent Dickson wrote in the majority opinion.

[Still more] Retyped by ILB from p. 3 of today's order:
The potential harm in granting Timberlake a stay of execution and later finding out that the Supreme Court's decision in Panetti was inapplicable to Timberlake is minimal compared the irreparable harm in denying the stay of execution, allowing Timberlake to be executed, and possibly learning a few months later that Timberlake's execution may have violated a new Supreme Court interpretation of the Eighth Amendment to prohibit execution of a class of mentally ill persons that included Timberlake. In short, until Panetti is decided and it s effort on Timberlake's case can be determined, Timberlake's execution should be stayed.

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Ind. Sup.Ct. Decisions

Law - Eli Liily moves in federal court today to enjoin online posting of Zyprexa documents

This morning NPR's Morning Edition has a story by Snigdha Prakash titled "Documents Leaked to Web Prompt First-Amendment Debate." The blurb:

A federal court will hear a first-amendment debate over online postings. The case revolves around a liability case involving drugmaker Eli Lilly. Documents sealed from public inspection wound up on the Web.
Listen to the story here. The lead-in describes it as a case involving the rights of bloggers vs. the rights of the established media - is John Doe a full-fledged member of the press?

Yesterday's NY Times story referred to in the NPR story is available here. Some quotes:

It is a messy plot that pits Eli Lilly, the pharmaceutical giant at the center of several articles in The New York Times suggesting that the company tried to hide or play down the health risks of its leading antipsychotic drug, Zyprexa, and lawyers representing various individuals, organizations and Web sites — all arguing that their online speech has been gagged. * * *

[C]opies of the documents ended up on various Web servers — and when that happened, things changed. While surely painful for Lilly, the online proliferation began flirting with some bedrock principles of free speech and press, as well as some practical realities that looked a fair bit like toothpaste out of its tube.

Nonetheless, last month, United States District Judge Jack B. Weinstein ordered Mr. Gottstein to provide a list of recipients to whom he had distributed the contraband pages, and to collect each copy back.

The Times, which politely declined to oblige, has since been left out of the legal wrangling, but on Dec. 29, the court temporarily enjoined an expansive list — 14 named individuals, two health advocacy groups (MindFreedom International and the Alliance for Human Research Protection), their Web sites, and a site devoted to the Zyprexa issue — not just from “further disseminating these documents.” They were specifically ordered to communicate the injunction to anyone else who had copies, and enjoined from “posting information to Web sites to facilitate dissemination of these documents.”

That’s right — it appeared that even writing on their Web sites something like, “Hey, there’s a site in Brazil where you can get those Zyprexa documents,” would run afoul of the injunction.

The order was extended by Judge Weinstein on Jan. 4, and tomorrow the court will revisit the issue at length.

As Mr. von Lohmann and the Electronic Frontier Foundation see it, the injunction is simply untenable. Whatever the legal merits of Lilly’s claims against Mr. Gottstein and Dr. Egilman for violating the seal, the court’s power to stifle the ever-growing chain of unrelated individuals and Web sites who, after one or two degrees of remove, had nothing to do with the Lilly litigation, cannot extend to infinity. Very quickly, Mr. von Lohmann argues, you are dealing with ordinary citizens who are merely trading in and discussing documents of interest to public health.

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to General Law Related

Environment - More on: A state panel plans public hearings this month on its model rules for local regulation of large livestock farms

Following up on this ILB entry from last Sunday on the "revival" of the Indiana Land Resource Council and its plans for public hearings this month on its model rules for local regulation of large livestock farms, the Fort Wayne Journal Gazette has this editorial today, titled "Controlling CAFOs":

An effort from the recently reconvened Indiana Land Resource Council could give local governments needed tools to control confined-animal feeding operations, or CAFOs, in Indiana. Better control over large livestock operations will help grow Indiana’s agricultural economy while protecting property values and the environment.

The council is holding three public meetings across the state to gather opinions about proposed model ordinances for cities and towns to adopt. The council wants to hear from farmers and residents before making final recommendations to local officials.

CAFOs present a tricky problem. When farmers run the operations responsibly, they can be a boon for the local economy. But if a CAFO operator fails to manage animal waste appropriately, the operation becomes an environmental concern for neighbors. A Steuben County dairy, for example, faces sanctions from the U.S. Environmental Protection Agency because inspectors from the EPA and the Indiana Department of Environmental management found the dairy violated numerous environmental standards, including possible illegal waste discharges.

IDEM has authority to regulate water pollution that large agricultural operations produce. But local governments, not IDEM, regulate odor, traffic or other zoning and land-use issues.

“Land use in Indiana is fundamentally a local matter,” said Eric Kelly, acting chairman of the urban planning department at Ball State University and a member of the land resources council. The state has little say on zoning, and local governments often lack the resources to regulate agricultural operations. “But one of the things we can do is try to give local governments better tools,” Kelly said.

One of the proposed ordinances that localities could adopt calls for multiple zoning designations for different types of agriculture, similar to the way cities zone other industries. The other ordinances provide specific standards for animal agricultural permits to determine whether a specific operation’s proposal will work on a particular site.

This is the first initiative from the land resource council, which Gov. Mitch Daniels previously sought to disband when he took office. Kelly, who was also appointed by Gov. Frank O’Bannon to serve on the previous land resource council thinks the support from the Daniels administrations is significant.

“They reassembled us because they needed us. Previously they just inherited us,” Kelly said. “I think we will have much more influence because they realized they needed us and are more likely to listen to us.”

The council’s recommendations are a good step toward giving local communities the ability to protect the environment without unnecessarily hampering economic development in Indiana’s agricultural industry.

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Environment

Ind. Courts - Wabash Valley businessman accused of falsifying federal documents will not go to trial until later this year

The Terre Haute Trib-Star reports today:

INDIANAPOLIS — A Wabash Valley businessman accused of falsifying federal documents will not go to trial until later this year, according to court documents.

The United States District Court for the Southern District of Indiana on Jan. 10 granted a continuance requested by defendant Derrik Hagerman, who cited the need for additional time to complete discovery. A jury trial was scheduled to begin Tuesday, after an initial trial date in November.

The new date has been set for May 21 at 1:30 p.m.

U.S. District Judge David F. Hamilton will preside. Hagerman, president and owner of Wabash Environmental Technologies LLC, was indicted in September on 36 felony violations of the federal Clean Water Act for allegedly creating false reports of analytical results of wastewater discharged into the Wabash River.

Hagerman, who initially was represented by William Dazey, an attorney with the Office of the Indiana Federal Community Defender, has retained William E. Marsh and James McKinley in his defense. Marsh and McKinley also are members of the Indiana Federal Community Defenders’ office.

What is the Indiana Federal Community Defenders’ office? A U.S. Courts page has a good explanation. Some quotes:
There are two types of federal defender organizations: federal public defender organizations and community defender organizations.

Federal public defender organizations
are federal entities, and their staffs are federal employees. The chief federal public defender is appointed to a four year term by the court of appeals of the circuit in which the organization is located. The Congress placed this appointment authority in the court of appeals rather than the district court in order to insulate, as best as possible, the federal public defender from the involvement of the court before which the defender principally practices.

Community defender organizations are non-profit defense counsel organizations incorporated under state laws. When designated in the CJA plan for the district in which they operate, community defender organizations receive initial and sustaining grants from the federal judiciary to fund their operations. Community defender organizations operate under the supervision of a board of directors and may be a branch or division of a parent non-profit legal services corporation that provides representation to the poor in state, county, and municipal courts.

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Courts - "Marion County judges pick Executive Committee"

The Indianapolis Star reports today:

Marion Superior Court judges selected new Executive Committee members Tuesday for two-year terms.

A change in state law last year expanded the committee from three to four members, with two members from each party. The Democratic judges selected Gerald S. Zore and Tanya Walton-Pratt, and the Republicans chose Robert Altice and Gary Miller.

Posted by Marcia Oddi on Wednesday, January 17, 2007
Posted to Indiana Courts

Tuesday, January 16, 2007

Law - If you are a lawyer, get it in writing!

Thanks to Decision of the Day for the link to Perles v. Kagy (D.C. Cir., Jan. 16, 2007), which begins like the set-up for a John Grisham novel:
KAVANAUGH, Circuit Judge: Like a contentious corporate merger or a sizable family inheritance, a large contingency fee in a successful lawsuit sometimes leads to nasty controversy over who gets what. This case is a fine example.

From 1994 to 1999, recent law school graduate Anne-Marie Kagy worked as an attorney for solo practitioner Steven Perles. Among her other work, Kagy assisted Perles with two wrongful death actions brought by Perles’s clients against the Government of Iran (the Flatow and Eisenfeld cases). Perles’s clients eventually obtained verdicts of more than $200 million in each case. Congress used frozen Iranian assets to compensate the victims for the compensatory portions of the damages awards (more than $20 million in each case). As a result, attorney Perles received millions of dollars in contingency fees. Perles and Kagy had no written contract on how Kagy would be paid for her work on these two cases, but Kagy claims they had an oral contract entitling her to a one-third share of Perles’s fee in each case. After a bench trial, the District Court concluded that the parties had an express oral contract entitling Kagy to onethird of Perles’s ultimate fee with respect to the Flatow case (meaning more than $1.3 million for Kagy for her work on that case), but not with respect to the Eisenfeld case. We conclude that Perles and Kagy did not enter into a contract with respect to Kagy’s work on either case.

Posted by Marcia Oddi on Tuesday, January 16, 2007
Posted to General Law Related

Law - Pro bono representation of Guantanamo detainees

I saw this opinion piece in the Wall Street Journal earlier today, but it wasn't freely available. Now How Appealing has located an alterntive link to it.

The background is that Defense Department official Charles Stimson gave an interview last week decrying the fact that some of the best law firms in the country were doing pro bono work, representing detainees. Stimson called for corporate clients to fire them. Here is the initial NYT report, from 1/13/07.

The reaction was immediate and appeared in many of the major national law blogs including the Wall Street Journal blog.

Today Harvard Law Professor Charles Fried has an op-ed piece in the Wall Street Journal (available via this Harvard law school link) that begins:

Defense Department official Charles Stimson showed ignorance and malice in deploring the pro bono representation of Guantanamo detainees by lawyers in some of the nation's leading law firms, and in calling on their corporate clients to punish them for this work.

That some of the law firms Mr. Stimson singles out represent large employers defending discrimination and disability suits, major corporations accused of price fixing, securities fraud and pollution is not because the right hand -- so to speak -- does not know what the left is doing, nor because these firms are major-league hypocrites. On the contrary, they act in the best traditions of the profession -- traditions that are ignored in today's China or Putin's Russia.

It is the pride of a nation built on the rule of law that it affords to every man a zealous advocate to defend his rights in court, and of a liberal profession in such a nation that not only is the representation of the dishonorable honorable (and any lawyer is free to represent any person he chooses), but that it is the duty of the profession to make sure that every man has that representation. So, for instance, it is only the ideologically blinded who would criticize the great John W. Davis for having presented the case for school segregation to the Supreme Court in Brown v. Board of Education, or the ignorant who did not know that he had denounced the Ku Klux Klan and, as Solicitor General, had defended the voting rights of African-Americans.

I've checked back on found this ILB entry from 2004 when big firms had just begun to take these cases, quoting from a NY Times story headlined "THREATS AND RESPONSES: THE ADVOCATES; Scrappy Group of Lawyers Shows Way for Big Firms." Although the story is no longer available via the NYT link, it may be accessed here.

Posted by Marcia Oddi on Tuesday, January 16, 2007
Posted to General Law Related

Ind. Decisions - 7th Circuit issues one Indiana decision today

In Keith, Kenneth v. Barnhart, Jo Anne, Comm. of Soc.Sec. (SD Ind., Judge Young), a 16-page, 3-0 opinion, Judge Coffee writes:
Kenneth Keith filed a sixth application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”), in June of 1993, alleging that he had been disabled under the Act since March 10, 1977, due to his back problems and postpolio impairments. After a hearing, the administrative law judge (“ALJ”) determined that Keith was not disabled at any time prior to his loss of insured status in 1982, and denied his application. Thereafter, he sought review, filing an action in the district court pursuant to 42 U.S.C. § 405(g), alleging that he was entitled to a new hearing as his right to due process had been violated due to the ALJ’s bias against him. The district court dismissed his claim. We disagreed, holding that the ALJ’s overall actions raised the appearance of bias, reversed the decision and ordered that the case be remanded to the Social Security Administration for further proceedings.

Having received a second hearing before another administrative law judge, and after his application for benefits had been denied and his appeals exhausted, Keith is once again before us alleging that the denial of his application was the product of the ALJ’s bias against him rather than based upon a proper consideration of the evidence. We affirm.

Posted by Marcia Oddi on Tuesday, January 16, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Allstate Insurance Company v. Patricia Zdonek (NFP)

Donn Olson v. Alick's Drugs, Inc. and Georgia Luks-McFarland (NFP)

Cathy Marie Allen v. St. Joseph County Office of Family and Children (NFP)

NFP criminal opinions today (1) (link to cases):

Anthony J. Anderson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 16, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Fajardo v. State, an 11-page, 5-0 opinion, Justice Dickson writes:

The defendant, Eligio C. Fajardo, appeals his convictions on each of two counts of Child Molesting, one as a class C felony and the other as a class A felony. The trial court ordered concurrent sentences of two years and twenty years, respectively. The Court of Appeals, in a memorandum decision, affirmed the convictions. We granted transfer and now affirm the defen-dant's conviction for class C felony Child Molesting, but we reverse the class A felony conviction. * * *

Applying the rule for distinguishing between amendments to matters of form and those of substance, we find that the addition of Count 2 charging a new separate offense constituted an amendment to matters of substance. The defendant's evidence addressed to disputing the occur-rence of the original charge would not be "equally applicable" to dispute the date nor the specific conduct alleged in the separate additional charge sought to be added by the amendment. And because the amendment charges the commission of a separate crime, it also is unquestionably essential to making a valid charge of the crime, and thus it is not disqualified from being consid-ered an amendment to a matter of substance.

Because the challenged amendment in this case sought to modify the original felony in-formation in matters of substance, it was permissible only up to thirty days before the omnibus date. Ind. Code § 35-34-1-5(b). The amendment was not sought by the State, however, until seven days after the omnibus date, and thus failed to comply with the statute. The defendant's objection should have been sustained and the amendment denied. The conviction and sentence for Count 2, Child Molesting as a class A felony, must be vacated. * * *

Having reviewed the trial transcript, we find that the testimony of the eleven-year-old witness was not so incredibly dubious or inherently improbable that no reasonable person could believe it. While equivocations, uncertainties, and inconsistencies appear, they are appropriate to the circumstances presented, the age of the witness, and the passage of time between the incident and the time of her statements and testimony. And there is clear, unequivocal testimony from the child that establishes the necessary elements of the charged offense. We decline to invoke the incredible dubiosity rule to impinge on the jury's evaluation of the evidence in this case and conclude from the evidence that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.

Posted by Marcia Oddi on Tuesday, January 16, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Indiana Supreme Court rules forensic diversion is discretionary

Updating this Jan. 3 ILB entry on the Indiana Supreme Court's decision in Ruble v. State, the Muncie Star-Press has this story today, which has been picked up by a number of other papers. Some quotes:

The Indiana Supreme Court has ruled a Delaware County judge had the right to send a Muncie man with 16 prior criminal convictions to jail after he was convicted of driving after a lifetime suspension.

The Supreme Court recently overturned a state appeals court's ruling that Delaware Circuit Court 3 Judge Robert Barnet Jr. should have granted convicted felon James F. Ruble's request for a suspended sentence. * * *

Ruble asked the judge to place him in the local court system's forensic diversion program, which allows some offenders to receive suspended sentences provided they seek treatment for mental illness or addictions.

Barnet declined to do so, noting Ruble's lengthy history of arrests and three prior placements on probation. The judge imposed a five-year prison sentence with three years suspended.

The Indiana Court of Appeals later overtuned Barnet's sentence, ruling Ruble should have been placed in the diversion program for at least part of his sentence.

In a ruling this month, however, the state Supreme Court reinstated the sentence.

Posted by Marcia Oddi on Tuesday, January 16, 2007
Posted to Ind. Sup.Ct. Decisions

Environment - SB 154 "What is ‘recycling’?" Plus the ILB's environmental rulemaking concerns

"What is ‘recycling’?" is the question asked by this Fort Wayne Journal Gazette editorial today. Some quotes:

[P]roposed legislation to review and potentially revise state environmental rulemaking policies has raised some concerns among environmental advocates – and for good reason.

They’re worried that the study will lead to a new definition of recycling in Indiana that could include incineration as an approved recycling method. Adding incineration to the definition of recycling could encourage companies to incinerate waste rather than recycle. The change could hurt recycling programs by shifting grant money to incineration programs and away from traditional recycling. * * *

Melissa Kriegerfox, the recycling and reuse director of the Monroe County Solid Waste Management District and president of the Indiana Recycling Coalition, said the recycling coalition supports the legislation. But the coalition has serious concerns about one sentence near the end of the proposed bill that includes investigating the addition of “waste to energy” in the definition of recycling. She thinks that sentence could redefine Indiana’s recycling policy, harm traditional curbside recycling programs and allow polluting companies to garner recycling credits for choosing to incinerate their refuse rather than recycling. She says this could encourage companies from other states to bring their waste to Indiana for cheap disposal.

“For Indiana to even consider including waste incineration in the definition upsets the recycling hierarchy and could really hurt the perception of recycling,” Kriegerfox said. She said recycling is very clearly defined by the U.S. Environmental Protection Agency and there is not a need for the state to redefine it.

The legislation is supposed to go to Energy and Environmental Affairs committee today. Kriegerfox said she spoke with Sen. Beverly Gard, the sponsor of the legislation, and asked her to change the language in the bill.

Gard, who has a reputation for being an environmental steward, appears willing to listen to the recycling coalition’s concerns.

IDEM should study recycling in Indiana and determine whether the state’s recycling programs are working. But there is not a need to redefine recycling, especially if it opens the door for incineration under the guise of a waste to energy program.

The proposal at issue is Senate Bill 154.

The ILB has concerns about other provisions in this legislative proposal.

Over the years, the environmental rulemaking process has become more and more complex, as one new requirement after another has been added to the process. Some of these were safeguards to assure an opportunity for transparency in public input at every step in the process, others were intended to ensure that the fiscal impact of the proposals was taken into consideration, etc. The result is that in many cases a new environmental rule or rule change has taken 18 months to two years to complete.

Now efforts are being made to shorten the process. However, this is a case where the cure (or, as here, cures) may be worse than the disease.

One reason for this is that the changes made just this last July in the publication process for rulemaking already has cut months off the length of the process.

The impact of these changes has not yet been fully understood
. Under the current notice and comment environmental rulemaking process, notices are to be published in the Indiana Register, followed by comment periods, followed by hearings.

Before the July changes in the IR publication schedule, the Indiana Register was only published once a month, and documents to be published in the next month's issue had to be submitted by the 10th of the preceding month. Thus, if a notice of a 30-day comment period was submitted on Aug. 10, it would be published on Sept 1, and the comment period would end no sooner than Oct. 1.

Now, however, a notice submitted Aug. 10 could be published as soon as Aug. 11, and the 30-day comment period could end in early September. The various comment periods and public hearing notices involved in any particular rulemaking have thus rolled by very rapidly since July without much awareness on the part of those who may be impacted by the changes.

Add to this the Indiana Department of Environmental Management's move to aggressively use what are called the "section 7" and "section 8" (IC 13-14-9-7 and 8) already existing exceptions to the rulemaking law whereby the IDEM commissioner determines that the options available are so limited that (under sec. 7) public notice and comment would provide no substantial benefit, or (under sec. 8) that a federal provision is being incorrporated into Indiana law. In the former case, the first public comment period is eliminated, in the second case, both public comment periods are eliminated.

I say "aggressive" use because, for instance, of the last 10 new air rulemakings proposed by IDEM, only four will go through the 1st and 2nd notice and comments periods. Four will skip 1st notice and comment; two will skip both 1st and 2nd notice and comment.

As a result of these combined changes, several proposals which were first "published" October 11, 2006, will now be eligible for final adopton at the Air Board meeting set for Feb. 7, 2007. (And they could have been adopted in early January, if that meeting had not been cancelled.)

My point: Rather than make the additional changes to the environmental rulemaking process proposed by SECTIONS 1 through 4 of SB 154, give 2006's changes a little time to settle. SECTION 5 of the bill provides in part that:

(a) The environmental quality service council established under IC 13-13-7 shall study and make findings and recommendations concerning the following:
(1) Shortening the environmental rulemaking process for rules adopted under IC 13 by considering the following:
(A) Other state and local agency rulemaking processes.
(B) Other state environmental rulemaking processes.
(C) Negotiated rulemaking.
(D) Steps and requirements of rulemaking.
This is an excellent approach and would give the opportunity to assess the impact of the current changes before attempting to layer more on top of them.

Posted by Marcia Oddi on Tuesday, January 16, 2007
Posted to Environment | Indiana Government | Indiana Law

Courts - Newspaper appeals $7 million libel verdict awarded to Illinois chief justice

The Chicago Sun-Times reports today:

Attorneys representing the Kane County Chronicle have filed an appeal of the $7 million libel verdict awarded to state Supreme Court Justice Bob Thomas.

The appeal challenges both the amount awarded to Thomas and the outcome of the case, saying the jury was incorrectly barred from seeing pertinent facts during the two-week libel suit that concluded in November. Jurors found that columns published in the Kane County Chronicle during 2003 caused damage to Thomas' future earnings, reputation and emotional well-being.

The jury found that the articles written by former Chronicle columnist Bill Page were false, and that they were published recklessly by Chronicle editors. The columns used entirely anonymous sources to accuse Thomas of trading his votes for political favors in the contentious disbarment of then-Kane County state's attorney Meg Gorecki.

"This lawsuit, with its troubling history ... will forever be defined by what happens next," the brief filed by the Chronicle says. "Public confidence in the fair and impartial administration of justice now depends upon Illinois judges who serve under the Chief Justice honoring their higher constitutional duty to conduct an independent review of the jury verdict."

The post-trial brief challenges the "unthinkable" $7 million libel verdict that was reached within "the friendly confines of the court system he oversees," according to the brief. If the lawsuit stands, lawyers for the Chronicle claim it will be the largest final award in a media defamation or privacy case in the history of Illinois -- more than twice as large as the runner-up -- and the seventh largest in U.S. history. As it stands now, it is the second largest Kane County award ever handed out.

The story also addresses the issue of what court will hear the appeal:
Thomas, as chief justice, is technically the boss of all Illinois judges, so where an appeal would be headed is somewhat unclear.

The appeal was filed in the 2nd Appellate Court District -- which includes Kane County -- where Thomas was a judge from 1994 to 2000. In the appeal, the case could be handed over to another appellate district.

The next step would be the state Supreme Court. But most of the High Court justices were involved as key witnesses in the libel trial.

Here is a list of earlier ILB entries on this case.

Posted by Marcia Oddi on Tuesday, January 16, 2007
Posted to Courts in general

Monday, January 15, 2007

Ind. Gov't. - Bloggers in Some States Get Press Credentials

The January issue of State Legislatures, a publication of the National Conference of State Legislatures (NCSL), has a story titled "Bloggers Press for Power: Whether bloggers qualify for press credentials is getting a lot of attention in state capitols." Here are some quotes:

Eileen Smith, who blogs on InthePinkTexas.com, believes treating “qualified” bloggers as press is in the best interest of the legislature. “A known, credible blogger on the floor is better (and far less dangerous) than an unknown anonymous blogger in the gallery,” Smith says. She suggests considering a blogger’s education, experience and even legislative background when deciding who is “qualified.” Bloggers deserve consideration, Smith says, if for no other reason than their power.

“My statewide readership consists of influential political insiders, decision makers, motivated individuals, elected officials and their staff, lobbyists and voters,” Smith says. “I would contend that the reason traditional media outlets are granted press credentials is not because of their inherent objectivity, but because they have political power, influence and a direct line of communication to the public.”

Smith covered the 2006 session and plans to ask for credentials in 2007. At press time, Texas officials were working on a policy that would apply to bloggers.

Martin Kennedy, an economics professor at Middle Tennessee State University, will be new to legislative blogging this session with his Legislative Report. He, too, plans to request credentials. Why? “Credibility and access,” Kennedy says. “To make contacts more easily, to spread the word about the blog.”

Officials in the Tennessee legislature say he’ll likely get his wish. It’s easy in Tennessee. He just has to rent space in the press room.

Bill Hobbs, a media relations and blogging consultant who publishes the personal political blog BillHobbs.com, believes even Tennessee’s policy should be updated to be fair to “grassroots journalists” who may not be able to afford to rent space.

Letting bloggers have credentials would give the public another way to follow the legislature, Hobbs says.

“Journalists covering the state capitol can’t cover every piece of legislation that’s filed, but bloggers can focus on specific topics. I cover tax-type stuff, and I don’t cover legislation that may affect abortion rights,” he says. “Bloggers provide a second, larger set of eyes and ears and can find stories the news media missed.” * * *

Scott Gant is a lawyer in Washington, D.C., whose book, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age, will be released in June. Are bloggers journalists? is a big question, but Gant takes a step further back and asks whether professional journalists should get preferential treatment at all.

Gant’s argument goes back to the Bill of Rights. He says the Supreme Court has never found that the “freedom of the press” provision of the First Amendment grants any rights that “freedom of speech” doesn’t apply to all citizens.

“Giving special privileges to established news organizations might violate the federal Constitution’s guarantee of equal protection,” Gant says. “There hasn’t been enough attention to that issue.”

Christine Tatum, national president of the Society of Professional Journalists, says newspapers are the “Fourth Estate”—another check and balance on our three branches of government. It would be wrong, Tatum says, not to save space for professional reporters.

“We’re talking about helping advance and promote an informed citizenry, which I contend is one of the cornerstones of democracy,” Tatum says. “We have to make room in these places for people who represent news organizations to be there. That’s how news organizations have traditionally functioned. They’re the ones who are willing to sit and listen to the blather and the grandstanding.”

The article goes on to look at topics for legislators such as six suggestions on how to reach out to blogs, and a discussion of where to draw the line: "All blogs shouldn’t be credentialed just because they exist, experts say."

The Thicket, also from the NCSL, describes itself as "a blog about the state legislative institution and federalism written by and for legislative junkies. Contributors are among the nation's foremost statehouse observers at the National Conference of State Legislatures."

Today Nicole Moore at The Thicket , the same writer who wrote the article in State Legislatures magazine, updates the story:

At press time, Texas, California and Tennessee were about to be faced with the question of whether to grant a blogger press credentials.

Tennessee has since said yes. Martin Kennedy, an economics professor at Middle Tennessee State University who blogs at Legislative Report, says he is a "proud member of the Plaza Press Corps." So he might be the first blogger to have press credentials in a legislature. But it's really not that difficult in Tennessee. You just have to rent space in the Capitol.

Stay tuned for updates on California and Texas as they become available. We'd also love to know if there's movement on this issue in other states.

Posted by Marcia Oddi on Monday, January 15, 2007
Posted to Indiana Government

Ind. Decisions - Transfers granted table updated

The table of cases for which the Supreme Court has granted transfer and which thus are pending disposition is now updated - access it here.

If you find this list useful, I'd appreciate hearing from you.

Posted by Marcia Oddi on Monday, January 15, 2007
Posted to Indiana Transfer Lists

Ind. Courts - MASH approach relied on for heavy court calls in Porter County

The NWI Times' Bob Kasarda has a report today on the Porter Courts' approach to workloads. The story begins:

VALPARAISO | Porter Superior Court Judge David Chidester said his and the other two county division courtrooms have been compared to military MASH units.

"Get them in, patch them up and get them out," he said.

While he attempts to give each defendant individualized attention and is confident each receives justice, Chidester and judges Jeffrey Thode and Julia Jent in Portage are assigned a disproportionately large number of cases each year.

The three courts were assigned 31,922 new cases last year, compared with 7,599 cases assigned to the superior division courts of judges Roger Bradford, Bill Alexa and Mary Harper, according to year-end statistics compiled by the county.

The county courts disposed of 29,246 new and existing cases during the year, which once again topped the 6,927 cases disposed of by the superior division courts.

These statistics, however, only tell part of the story.

The cases assigned to the superior division courts are generally higher level offenses, which require more court time, Bradford said. The state assigns a certain number of minutes for each type of case and based on that formula, the caseload is distributed pretty evenly among the county's six judges and three magistrates, he said.

The superior division courts handle all C felony cases and more serious crimes plus D felonies other than driving violations and major civil suits, he said.

The county division courts are assigned small claims cases, misdemeanor cases and D felony cases involving driving violations and traffic infractions, Bradford said.

Traffic infractions accounted for 20,153 of the 31,922 new cases last year at the county division level, according to the annual statistics.

Posted by Marcia Oddi on Monday, January 15, 2007
Posted to Indiana Courts

Sunday, January 14, 2007

Environment - Reverse the blanket exemption from nuisance liability for CAFOs

Marty Lucas of BigEastern.com had a very good post this week titled "Time to restore nuisance law property rights." Marty would like to see "a roll-back of a key state statute on nuisance law to the pre-2005 language." He explains:

By specifying that changes in size, ownership and technology cannot be considered a 'change' under the statute, the 2005 amendment [ to IC 32-30-6-9(d)] created a blanket exemption from nuisance liability for CAFOs. Said another way, building a CAFO is defined as a continuation of existing agriculture regardless of any change in the 'size' and 'technology' of the operation. So when huge barns, manure pits and dead critter compost piles replace a bean field, nothing has changed within the eyes of the law. It's just more farming. Justice, in this case is not only blind; it also has a poorly developed sense of smell.
He continues:
I'm not opposed to 'right-to-farm' legislation that doesn't unduly erode common law property rights. The concept that one can't complain when one moves to a nuisance has long been recognized. Therefore codifying that concept to protect farmers engaged in conventional agriculture from nuisance lawsuits is reasonable. However, the 2005 change went beyond that, granting to CAFO operations an easement to damage their neighbors property. No reasonable person could honestly say a CAFO isn't a significant change from a bean field in terms of its impact on neighboring properties.

Ask IDEM officials whether they regulate odor. The answer is 'no'. In fact, there is no regulation of odor at all in Indiana. Ask IDEM whether they regulate activities likely to result in a plague of flies. I'm pretty sure the answer is 'no'. But I don't want to be dependent on IDEM anyway. Give us back our property rights -- in this case, the right to sue an operator who is unreasonably impacting his neighbors. Property rights are in the hands of citizens, and we need more grass-roots action to help rural communities grow and prosper. If the hog facility next door becomes a problem, you should have the right to seek redress -- and not in Indianapolis, but in a court in your own county where people actually might care about your community and your home.

Recently, CAFO operators have been quoted in numerous press accounts saying the concerns about their operations are not based in facts. They say they can control odors and be good neighbors. That would be great. If that's true and if the operators really believe that, then they shouldn't need legislation taking away their neighbors' rights. If CAFO operators want to prove they will be good neigbhors they should support amendment of Indiana's right to farm statute to remove the free ride for CAFOs. If they feel they need special protection from nuisance lawsuits, well, the conclusion is obvious.

If you're concerned about the impact of CAFOs on rural Indiana, please consider passing that concern along to your elected representatives. I feel Indiana's legislators have been slow to sense how widespread concern about this issue really is; I suppose most live in areas far from CAFOs. Democrats can demostrate they care about all the people, including rural homeowners, by restoring this important property right. The right-to-farm law as it existed before 2005 was adequate to protect farmers from unreasonable lawsuits. Better IDEM oversight would be a good idea, but the place to start is restoration of property owners' nuisance rights.

Some related ILB entries are available here, from Jan. 23, 2005, and here, from June 16, 2004.

Posted by Marcia Oddi on Sunday, January 14, 2007
Posted to Environment

Environment - A state panel plans public hearings this month on its model rules for local regulation of large livestock farms

An AP story today reports:

MUNCIE – A state panel plans public hearings this month on its model rules for local regulation of large livestock farms.

The model ordinances from the Indiana Land Resources Council would guide local officials as they consider regulating concentrated animal feeding operations, or CAFOs, each of which can have as many as thousands of animals such as swine and cows.

Proposals for new livestock farms have frequently sparked opposition from neighbors worried about pollution, odors, noise and additional traffic.

Land council member Eric Kelly, an urban planning professor at Ball State University, said many local zoning ordinances were outdated and the model ordinance creates new zones dedicated to general agriculture and large livestock operations.

“Right now in Delaware County and other counties, we have one agriculture zone,” he said. “It allows residential subdivisions and row crops and animal agriculture. Those are a whole range of different activities. One thing we try to do is separate incompatible uses.”

The public hearings are set for:

• Wednesday, 7 p.m., at the Hamilton County Fairgrounds in Noblesville

• Thursday, 7 p.m., at the Elkhart County Fairgrounds in Goshen

• Jan. 22, 7 p.m., at Scottsburg High School

Julie Alexander, a rural Delaware County resident who opposes large livestock farms, said she planned to attend the session in Noblesville to learn about the proposals.

“The last thing we want is a CAFO across the road from us polluting this land,” she said. “We own 500 acres that we’ve had through generations. We have a lot invested. They keep thinking opposition to CAFOs is coming from city folks, and it’s not.”

The land council is headed by state Agriculture Director Andrew Miller.

See also this longer story by Seth Slabaugh in the Muncie Star-Press.

The story is interesting on several levels:

First, of course, that the state, through its Dept. of Agriculture, is now involving itself in local agricultural zoning.

Second, that the Indiana Land Resources Council has been reincarnated. Check this Muncie Star-Press story as quoted in the Jan. 18, 2005 ILB:

MUNCIE - Gov. Mitch Daniels has suspended the activities of the Indiana Land Resources Council, which was created by the state Legislature in 1999 to address open space protection, farm land preservation, urban sprawl, downtown redevelopment, forest preservation, and planning and zoning.

The move mystified Ball State University urban planning professor Eric Kelly, a member of the council, which was soon planning to submit a smart growth proposal to Lt. Gov. Becky Skillman.

Andy Miller, a Weaver Popcorn Co. executive whom Daniels appointed as assistant commissioner of agriculture, asked Kelly and the seven other members of the council to submit letters of resignation. Miller also asked the council's paid staff person, Joe Tutterrow, to resign. He plans to do so.

But Kelly said he would not resign. "Just asking doesn't do it," he said. "If he's got a reason, I'll consider it. Asking us to resign without finding out what we've been doing or hope to do is a little strange. I don't understand why they did not call us together to discuss this. They didn't even bother to ask."

During his campaign for governor last year, Daniels said state government had hundreds of boards and commissions of questionable value, and he promised to eliminate those that were ineffective after a thorough review.

See also this ILB entry from March 3, 2005, which discusses farmland preservation and the dissolving of the farmland preservation commission. It includes quotes from the Indianapolis Star, including this:
During the 1990s, Indiana took steps to protect farmland from development. Gov. Frank O'Bannon created the Hoosier Farmland Preservation Task Force in 1997, and its lone recommendation -- to create the Indiana Land Resources Council, which helped local planning agencies craft land use policies -- was enacted two years later.

But Gov. Mitch Daniels dissolved the council about a month ago because the state didn't have the money to run it.

"It was a good start," said Jane Jankowski, Daniels' press secretary, "but what we want to do is create a mechanism that is more cost-efficient and effective, realizing that land use is the number one issue facing farmers in rural communities."

Eric Damian Kelly, professor and acting chairman of the Department of Urban Planning at Ball State University, is a founding member of the council. Having just drafted a growth policy recommendation, Kelly expected to meet with the new administration, but a planned January meeting never happened.

"I thought we were going to make progress," Kelly said, adding that he has not turned in his resignation from the council. "Maybe we still will."

This March 3rd ILB entry also includes a number of links to farmland preservation sites.

An AP story quoted in this April 26, 2005 entry includes this:

The new department [of agriculture] consolidates several agencies and functions into a single entity. Among other things, the department will handle the soil and conservation functions once overseen by the Department of Commerce. Entities such as the State Fair Board and Land Resources Council also now fall under the department's umbrella.
The law creating the Indiana Land Resources Council is, with some changes still on the books, at IC 15-7-9. Rep. Ryan Dvorak had an entry on his blog dated June 21, 2006, noting that Governor Daniels would be "repopulating" the Council within a few months.

The original Indiana Land Resources Council had quite a useful website. Of course, it is gone now. However, through the wonders of the web, you can see it again, as it existed in 2004, by going to this site.

Posted by Marcia Oddi on Sunday, January 14, 2007
Posted to Environment

Ind. Decisions - "Speaker's was voice of reason on prayer issue"

Matt Tully, of the Indianapolis Star, has a quite good column today on Speaker Bauer's handling of the legislative prayer issue. A quote:

Someone also must have prayed for common sense, because Bauer showed plenty of it during his prayer and during the start of the legislative session. It was quite a turn from 2006, when the then-GOP majority overreacted to a court's ruling that some House prayers had crossed into proselytizing.

Instead of making a scene by suspending official House prayers, as the GOP did last year, Bauer read an inclusive, four-sentence prayer that covered all the bases -- humility, responsibility and a plea for guidance. It wasn't a prayer to remember, but that's why we have churches and synagogues.

Instead of exaggerating and prohibiting official prayer, as Republicans did in 2006, Bauer went for compromise. He said the carefully worded offering, which the state attorney general had looked over, would have to do while an ongoing challenge of past prayers winds through the courts.

Unlike some, Bauer understands that a federal judge prohibited prayers advancing a specific religion, not all prayers.

Of course, there was some grumbling from those who miss the revival-like days of past House sessions. But most of Bauer's colleagues appreciated the time he spent crafting a logical compromise.

"There was an effort to exaggerate this (last year) for political purposes," said Rep. David Orentlicher, D-Indianapolis. "There was also the misperception that we weren't allowed to pray. The (court's) limitation was in fact a very small one."

Here is a link to earlier ILB entries on the lawsuit, Hindricks v. Bosma. Oral arguments on the legislative prayer lawsuit took place before the 7th Circuit on Sept. 7, 2006. The ILB is anticipating a decision by the 3-judge panel any day now.

Posted by Marcia Oddi on Sunday, January 14, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Remonstrances: Who should decide bond issues’ fate?

Karen Francisco of the Fort Wayne Jounral Gazette has a long and comprehensive opinion piece today on the remonstrances issue, titled "Who should decide bond issues’ fate?" But the piece goes further than that, concluding with a discussion of reducing or eliminating property taxes. A quote:

The immediate issue is whether all registered voters or only property owners should have the right to approve or reject major property-tax backed bond issues. But how it plays out in the long run is ultimately the question: Isn’t there a better way to pay for school buildings, jails, libraries and other major projects than sticking local property taxpayers with the entire bill?
For background, see this list of earlier ILB entries.

Posted by Marcia Oddi on Sunday, January 14, 2007
Posted to Ind. App.Ct. Decisions | Indiana Government | Indiana Law

Ind. Decisions - More on 7th Circuit's decision upholdng Indiana voter ID law

The Terre Haute Trib-Star has a strong editorial today titled "Will state ever admit to voter ID law’s real intent?" Some quotes:

Disappointed but not surprised.

That pretty much sums up our reaction to the ruling this past week by the 7th U.S. Circuit Court of Appeals on Indiana’s voter ID law. In a 2-1 split, the three-judge panel ruled that, while the 1-year-old law likely would not affect many voters, its potential inclines toward helping rather than harming.

Potential was all the panel had to go on. Neither the plaintiffs — the American Civil Liberties Union and Indiana’s Democratic Party — nor the defendants — the state — could come up with a Hoosier who had been prohibited by the law from voting or an incidence of voter fraud that would have been derailed by a photo ID. * * *

“Let’s not beat around the bush,” [Judge] Evans wrote in dissent]. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”

We would like to echo Judge Evans’ assessment. We would also urge Ken Falk, the legal director of the Indiana ACLU, to press his clients, as he said he would, to file for a rehearing of the case before the full 7th Circuit Court panel.

A bad law upheld by two judges does not make a good law. Indiana’s photo voter ID requirements, which are the most cumbersome in the 50 states, may be legal for now, but they aren’t right. * * *

A Harvard Law School grad and former U.S. Court of Appeals law clerk, [Sepncer] Overton compared the spate of new voter ID laws (almost always passed by GOP bodies) to gerrymandering.

“This is not about individuals, it’s about reducing voter turnout in particular pockets, and that is affecting elections,” he said.

Unlike the two 7th Circuit Court judges, Overton sees the potential for harm in laws such as Indiana’s far outweighing the potential for help. So does Judge Evans, and so do we.

If it takes a trip to the U.S. Supreme Court, so be it. Maybe by then, even Indiana’s legislators will have studied the bona fide evidence, not just half-baked anecdotes, and agree with Overton that photo ID requirements “throw out the baby with the bath water because there is a drop of bath water on the baby’s arm.”

Posted by Marcia Oddi on Sunday, January 14, 2007
Posted to Ind. (7th Cir.) Decisions

Courts - Kentucky senior judge program sparks many objections

Andrew Wolfson and Jason Riley of the Louisville Courier Journal have a lengthy story today on problems with Kentucky's senior judge program. It begins:

Lawyers routinely gave her by far the worst marks in bar surveys. And in November, Jefferson County voters removed her from office after eight years in District Court.

But Paula Fitzgerald is back -- as a senior judge, one of 42 retired judges statewide who work part time to help handle the Kentucky courts' growing caseload.

To Fitzgerald's critics, her appointment undermines the voters' will and points out the lack of merit screening that other states have in place for selecting senior judges.

"The voters threw her out, and now she doesn't have to answer to the voters anymore," said Jefferson Commonwealth's Attorney Dave Stengel, who protested Fitzgerald's appointment to Kentucky Chief Justice Joseph Lambert. "There is no accountability."

Stengel said Fitzgerald's behavior in court was "eccentric to the point of being bizarre." He said she refused to enter the results of cases in a courtroom computer and to fax approval for search warrants to police or prosecutors.

Lambert said that he was aware of the criticism of Fitzgerald but that he has no discretion to exclude judges from the program, as long as they meet the age and service requirements and have no pending disciplinary complaints.

Later in the story:
Unlike some states, Kentucky has no merit screening of appointments for senior judges, who are assigned to fill vacancies around the state and agree to serve 120 days a year for five years. In exchange, they receive enhanced retirement benefits usually worth several thousand dollars a year.

In Indiana, applicants must apply to a commission and submit the names of three lawyers who appeared in their court. In Tennessee, the Supreme Court must determine that an applicant's service "would promote the effective administration of justice."

Posted by Marcia Oddi on Sunday, January 14, 2007
Posted to Courts in general

Saturday, January 13, 2007

Ind. Law - More on: Legality of state welfare privatization contract questioned

This Jan. 10th ILB entry included a quote from the Attorney General's office, as reproduced in the Indianapolis Star:

"During this process, we specifically reviewed the applicability of IC 12-15-30-4 [ILB - with its 4-year limit on Medicaid contracts] regarding the administration of Medicaid claims, and are satisfied that it does not apply to the work to be performed by IBM regarding eligibility."
In the entry, I asked whether any specific reasons were given to explain "why IC 12-15-30-4 is not applicable to the welfare privatization contract."

The following day, Jan. 11th, a reader in a position to know sent me this:

FYI - Here's why the statutue in question doesn't apply to the contract.

The statute specifically refers to the "office" several times. The definition of "office" in the article is the the Office of Medicaid Policy and Planning established by IC 12-8-6-1.

But that is not the office that signed the contract. It was the Division of Family Resources.
So I took a look at the 180-page contract. It is Gov. Mitch Daniels himself who signed the 180-page contract, on behalf of the State. The contract by its own terms is "by and between the State of Indiana, acting on behalf of the FSSA, and IBM."

A look at the FSSA organization shows that it is made up of the Div. of Disability and Rehabilative Services, the Div. of Aging, the Div. of Family Resources, the Div. of Mental Health, and the Office of Medicaid Planning and Policy.

The contract with IBM is for services to determine eligibility for public assistance programs: Food Stamps, Temporary Assistance for Needy Families (TANF), and Medicaid.

IC 12-15-30-4, with the 4-year limitation on contracts, is part of 12-15, the Medicaid article.

Issue: If the Medicaid article says "A contract to administer any part of the Medicaid program may be for an original term of not more than four (4) years", can the State get around the statutory limitation simply by having the contract that includes determination of Medicaid eligibility signed by the Governor on behalf of FSSA?

[More] A press release dated Jan 11th from Sen. Vi Simpson reads in part:

INDIANAPOLIS – Determined to ensure that future generations of Indiana taxpayers aren’t hamstrung by long-term contracts, State Senator Vi Simpson, (D-Ellettsville) said today that she has filed legislation to limit gubernatorial administrations’ ability to enter into such agreements.

Specifically Simpson’s bill, Senate Bill 425, seeks to restrict current and future administrations and state agencies from entering into private service contracts that are longer than four years in length.

“The members of the Indiana General Assembly are not allowed to tie the hands of future legislatures, so why shouldn’t our governors live by the same standard,” Simpson questioned.

“Entering into these long-term contracts can severely hamper how the state operates,” added Simpson. “We don’t and can’t know what the landscape will look like 10, 20 or even 75 years down the road. This legislation ensures that future governors, general assemblies and Hoosiers don’t have to pay for the mistakes of the past.”

Simpson cited the 10-year contract to outsource services provided by the Indiana Family and Social Services Agency, the 75-year lease of the Indiana Toll Road, the potential 30-year lease of the Hoosier Lottery and the variety of contracts to outsource state government programs and services as examples of this trend.

“The current statute governing Medicaid contracts has a four year limit,” added Simpson. “In that law, which the FSSA contract may violate, the state is barred from entering into a contract for longer than four years. That same limitation should apply to all other contracts.”

There is already a 4-year limitation on many state contracts. The limits are set out in IC 5-22-17, part of the law governing public purchasing. IC 5-22-17-3(c) limits contracts for supplies to 4 years. "Services" are not specifically mentioned; however, section 7(c) of the same chapter provides:
Notwithstanding section 3 of this chapter, a contract for remediation of a hazardous waste site may be entered into for any period not to exceed ten (10) years. The other provisions of section 3 of this chapter apply to a contract for remediation of hazardous waste.
Another interesting exception to the 4-year limit on contracts in section 3 of the chapter is found in section 8:
Sec. 8. (a) As used in this section, "division" refers to the division of family resources established by IC 12-13-1-1.
(b) As used in this section, "EBT program" refers to an electronic benefits transfer program.
(c) Notwithstanding section 3 of this chapter, the division may enter into a contract for supplies and services to implement an EBT program for an initial period not to exceed five (5) years. The division may renew the contract for any number of successive periods not to exceed two (2) years each.
The fact that this language even exists might be read to imply that the 4-year limit of section 3 was considered by the General Assembly to apply to all contracts for "supplies and services" entered into by the division of family resources, unless a statutory exception, such as this, was enacted.

Posted by Marcia Oddi on Saturday, January 13, 2007
Posted to Indiana Government

Ind. Law - The Indiana Coalition for Open Government launches a new web site

About ICOG: "The Indiana Coalition for Open Government, a non-profit citizens advocacy group, promotes legislative reform and protects the Constitutional rights of access to public records and meetings."

Take a look at the ICOG's new website. Among other items, it mentions in its first entries:

(1) The problems associated with the halt to publication of the Indiana Register, with links to the Indiana Law Blog.
(2) A great national FOIA blog, run by Scott Hodes, a D.C. FOIA attorney with "more than a decade of experience in federal agencies, including Department of Labor, Department of Justice and the FBI."

Posted by Marcia Oddi on Saturday, January 13, 2007
Posted to Indiana Law

Ind. Law - "Don’t mean to whine, but fix law"

"Don’t mean to whine, but fix law." That is the headline to an "Uncorked" column by Dan and Krista Stockman in the Fort Wayne Journal Gazette. Some quotes:

Last year was a crazy whirlwind of court opinions, lawsuits, proposed legislation, lobbying and deal-making, all of it related to wine and how Hoosiers are allowed to buy it.

Here’s the short version: A U.S. Supreme Court decision ruled that states that allow their own wineries to ship wine directly to consumers but not outside wineries are breaking the law. Wine lovers rejoiced, thinking they would be able to buy directly from small wineries that don’t have national distribution systems. Instead, every state tackled the level-playing field requirement differently, and the national picture is more confusing than ever.

In Indiana, wineries proposed a law that would let them ship directly to customers – as they had been doing for decades – only to have it gutted and co-opted by the liquor lobby, which had it changed to prohibit wineries from shipping at all. Eventually, a compromise was reached, allowing in-state and out-of-state wineries to ship directly to Hoosier wine drinkers if they jump through several hoops.

How many hoops? Too many to keep at least one winery in business: Terre Vin Winery, in Rockville north of Terre Haute, closed recently. The Tribune-Star says a sign at the winery cites the new law as one of the reasons for closing, and the winery’s Web site says the law “imposes time-consuming and expensive regulations on the wineries if they want to ship their wines. As a very small winery, we don’t have the staff and time to keep all the required records.”

So our wish for the new year is this: legislation that makes sense.

There is much more to this exellent column; take a look.

Posted by Marcia Oddi on Saturday, January 13, 2007
Posted to Indiana Law

Law - The expanding impact of dog sniffs, drug wipes, and other "pin-point search" capabilities

This article from the January 2007 issue of Reason, written by Julian Sanchez and titled "The Pinpoint Search: How super-accurate surveillance technology threatens our privacy," reports that "The new style of noninvasive but deeply revealing detection—call them 'pinpoint searches'—will require rapid adjustments in both legal rules and social mores." Some quotes:

The original pinpoint search, the drug dog’s sniff, has built-in limits. A German shepherd is a cumbersome piece of biotechnology, making suspicionless sweeps during routine traffic stops the exception rather than the rule. But chemists and engineers are developing a variety of electronic sniffers that are competing to make Fido’s schnoz obsolete.

DrugWipes, for example, are small, swab-tipped devices. Wipe the tip along a surface, or a sample of sweat or saliva, and in two to five minutes a simple indicator window reveals whether drug residue is present. Manufactured by the German firm Securetec, DrugWipes have been used by more than 2,000 law enforcement agencies in the U.S. since the late 1990s, and they’re increasingly popular among schools and private employers as well. * * *

[R]esearchers are developing ever faster, cheaper, and more sensitive electronic noses.

Among the technologies in the offing is the desorption electrospray ionization scanner. It uses charged droplets to lift particles from a surface and into a mass spectrometer, which can break down and analyze the components of any substance down to the molecular level. It’s currently a desktop-sized machine, but its creators, a team of researchers at Purdue University, hope to develop a portable version that can fit in a backpack within a few years. The Purdue team’s head, Graham Cooks, guesses such a device might cost about $4,000. That’s not exactly cheap, but it’s thousands of dollars less than a well-trained drug dog costs. * * *

[This long article ends by examining three legal approaches and concluding:] But the debate over how to strike that balance must begin now, before today’s prototype rolls off tomorrow’s assembly line. These new technologies are too powerful to use thoughtlessly. We’re already entering a pinpoint-search world. Now we must decide how to live in it.

Posted by Marcia Oddi on Saturday, January 13, 2007
Posted to General Law Related

Friday, January 12, 2007

Ind. Decisions - Transfer list for week ending January 12, 2007

Here is the Indiana Supreme Court's transfer list for the week ending January 5, 2007.

Nearly three 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.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access the list here. (With luck, will be updated shortly.)

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions

Now that the Court of Appeals is posting its NFP opinions alongside its "for publication" rulings, it no longer appears to be necessary to post a list of the NFPs each week.

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to NFP Lists

Ind. Law - More golf cart stories

The ILB has had a long list of entries on the subject of use of golf carts on streets and roads, a subject seemingly growing more pressing as the baby boomers age.

From a HeraldTimesOnline story by Emily Thickstun:

Streets, dredging, noise pollution, buses, annexation, crime, B-line Trail, recycling and being mayor.

Mayor Mark Kruzan addressed these topics and more in a chat Thursday on HeraldTimesOnline.com.

Of the record-setting 30 questions, there was only one question to which Kruzan didn’t know the answer. But he promised to follow up on whether or not golf carts are allowed on city streets.

Meanwhile, from South Carolina's The State.com, this report:
The House has overridden its first veto of the session, approving a bill that allows golf carts to be driven on Richland County roads.

The bill, sponsored by Rep. Todd Rutherford, D-Richland, would allow tailgaters at Williams-Brice Stadium, for instance, to drive a golf cart on main roads within a half-mile of the stadium. The carts would be required to use headlights and taillights at night.

Gov. Mark Sanford vetoed the bill, which applies only to Richland County, in October.

The vote to override was unanimous. If the local senators follow suit, the bill will become law despite Sanford’s objection.

"The vote to override was unanimous." This story, as well as the ILB entries listed previously, may give a pretty good indication of the public interest in use of golf carts on public ways.

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to Indiana Law

Ind. Gov't. - Put the General Assembly on TV? Not yet. Not until the laws and rules are reliably and readily available to the public

WISH-TV's Jim Shella reports today:

INDIANAPOLIS - The new President Pro Tem of the Indiana Senate wants to open up state government. Right now you can watch the state legislature conduct business over the Internet. Sen. David Long thinks you should also be able to witness government action on your television.

The Indiana House of Representatives first began video streaming floor action over the Internet two years ago. You can now watch House committee meetings from home too. The state Senate has been slow to follow suit until now.

"I've never understood why we couldn't explore having a C-SPAN type station for state government, which would show the most important committees, or all of them actually," Long said.

Long wants to know what it would cost to create a state government channel. He instructed Sen. David Ford to find out.

"So we're going to be trying that and some other ways that we think are modern ways of communications, pod-casts perhaps," said Ford.

The ILB has written in detail about the General Assembly's video record several times. See this entry from Feb. 8, 2006 on the importance of maintaining an archive of the videocasts of the House and Senate, and this ILB entry from Nov. 8, 2006, titled "Suggestions for the new legislative leadership - Part I: The Video Archives."

Here again are the ILB's "Recommendations to the Indiana General Assembly" on this issue:

First, both Houses should stream their session days live, plus archive the videos, permanently. Currently the House archives during the session, but does not retain the videos once the next session starts. The Senate doesn't even go that far -- you can only watch the Senate session online as it happens; nothing is preserved.

Second, all committee meetings should be streamed live, plus archived. Right now, the public cannot even get a seat in a committtee hearing that allows them to see and hear what is going on.

Third, "archived" means make permanently available online. Look again at Ohio - you can watch Ohio proceedings online live or archived, going back through 1997, plus order DVD or VHS videos. Their plan is soon to make video-podcasts downloadable also.

Fourth, the House and Senate daily sessions should be indexed (eg SB #238 - Third Reading), as in Ohio, allowing the viewer to go immediately to the desired position. (It might be possible to do this in conjunction with the Journals.) In fact, the entire Ohio setup should be studied, as they seem to be light years ahread of Indiana, tech-wise!

Fifth, the process - archiving the videos, access, prohibitions against editing out portions - should be detailed in statute or in the joint rules.

The recommendations concluded with:
In 1851 the debates and journals of the Indiana Constitutional Convention were carefully and laboriously preserved for the ages. We continue to use and reference them today. Recording and preserving today's sessions of the General Assembly is a very simple thing. But we are not doing it very well.
Note that these recommendations DO NOT include creating a new C-SPAN-type broadcast at this point.

Before the General Assembly begins telecasting the law-making process, the ILB strongly believes that the General Assembly needs to make the laws themselves (i.e., the Indiana Code, the Act of Indiana, the Indiana Administrative Code, and the Indiana Register) accessible again to its citizens. As the ILB has noted in a number of earlier entries, the General Assembly had done a very good job of this over the years, up until the past half-dozen or so years.

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Dean Maust, II v. Estate of Matthew B. Bair, a 12-page opinion, Judge Baker wrties:

Appellant-defendant Dean Maust, II appeals the trial court’s denial of his motion for pauper counsel and the trial court’s order granting the Estate of Matthew B. Bair, by Personal Representative Melody Bair (the Estate), and Alexander Matthew Gene Bair’s (Alexander) (collectively, the Plaintiffs) motions for default judgment. Finding no error, we affirm the trial court’s judgment. * * *

Maust, who had the burden of showing that he met the statutory requirements for the appointment of counsel, has failed to meet that burden. Indeed, the trial judge that denied Maust’s pauper counsel motion was the same judge that presided over Maust’s criminal case wherein Maust was convicted beyond a reasonable doubt of murdering Bair; thus, the trial judge’s notation that counsel would not be assigned at the public’s expense can be considered an indication that Maust had sufficient means—specifically, that Maust would not require appointed counsel given that the particular issue presented in the wrongful death action was whether Bair’s death was caused by a wrongful act of Maust—and that Maust did not have a colorable bona fide dispute over issues warranting the expense of counsel in this case claiming that Bair’s death was caused by a wrongful act of Maust. To be sure, Indiana Code section 34-10-1-2(d)(2) provides that the trial court “shall deny” an applicant’s motion for pauper counsel where the applicant is unlikely to prevail on his defense. Accordingly, we conclude that the court did not err by denying Maust’s motion for appointed counsel. See, e.g., Parks v. Madison County, 783 N.E.2d 711, 727 (Ind. Ct. App. 2002) (holding that “even a cursory reading of Sholes vindicates the trial court’s ruling” declining to appoint pauper counsel even though it granted the applicant’s motion for waiver of the filing fee because the trial court determined that the defendant’s claims were without merit); Boring v. Boring, 775 N.E.2d 1158, 1163 (Ind. Ct. App. 2002) (affirming the trial court’s determination that the incarcerated husband had sufficient means to proceed without appointed counsel where the nature of the incarcerated husband’s dispute was not complex). The judgment of the trial court is affirmed.

In Estate of Juliana Robertson; James Nye v. Lynn D. Robertson, a 14-page opinion (including a dissent by Judge Robb beginning on p. 12), Judge Sullivan writes:
Appellant-Petitioner, James Nye, challenges the trial court’s order invalidating a testamentary trust provision in his mother’s will as an illegal restraint of marriage and awarding his step-father, Appellee Lynn Robertson, a life-estate in the real estate at issue. Upon appeal, Nye argues that the trial court’s invalidation of the provision and award of a life estate to Robertson was an error of law. We affirm. * * *

BARNES, J., concurs.
ROBB, J., dissents with opinion: I dissent because the majority’s analysis of Nye’s third argument appears to elevate form over substance, which goes against Indiana’s record of decrying legal arguments that do so in various contexts. * * *

I acknowledge Indiana’s recognition of the difference between conditions and limitations, as well as the importance of classifying language in an instrument transferring property as either a limitation, marking the period that determines an estate, or a condition, rendering an estate liable to defeat. However, the distinction is only drawn where it is logical to do so, which is not presently the case. Here, the clause “or until he remarries” is a restraint of marriage, and void in light of public policy against such restraints. Regardless of how the instrument is worded, or whether the restrictive language is classified as a condition or a limitation, Lynn gets only a life estate.

In Citizens Insurance Company v. Cletus Ganschow, Louis Pipito, II and Standard Mutual Insurance Company, a 16-page opinion, Judge Baker writes:
This case involves the interpretation of two automobile insurance policies. Although both insurance companies agree that an injured passenger qualified as an insured under both policies, they disagree as to the amount of damages that each should pay. * * *

Because Standard Mutual’s named insured was the owner of the vehicle involved in the accident, the condition required to trigger the excess provision of Citizen Insurance’s “other insurance” clause was satisfied. And Standard Mutual’s was not. That said, it is apparent that the policies’ respective provisions in this case are capable of being harmonized and permit us to give effect to the parties’ intent. Indeed, the parties and the trial court all agree that the excess provision set forth in the first paragraph of Standard Mutual’s “other insurance” clause does not apply, but Citizen Insurance’s does. Appellant’s App. 11, 31-32. Hence, contrary to Standard Mutual’s contention that the “other insurance” clauses at issue establish a conflict, it is apparent that Standard Mutual provides UM coverage for Ganschow’s claims on a primary basis and Citizens Insurance’s UM covers the excess.

In accordance with such an application of the policies’ terms, Citizens Insurance’s excess coverage is not reached in this case in light of Standard Mutual’s $100,000 limit of primary UM coverage. Thus, because Citizens Insurance’s $50,000 limit of liability is less than Standard Mutual’s $100,000 primary UM coverage limit, the “excess” coverage provision of Citizens Insurance’s policy is not implicated. As a result, we conclude that the trial court erred in granting Standard Mutual’s motion for summary judgment and prorating UM coverage between the two companies.

The judgment of the trial court is reversed and this cause is remanded with instructions to enter judgment for Citizens Insurance with respect to Ganschow’s UM coverage claim.

Randolph County v. Leanne Chamness - "Appellant-defendant Randolph County, Indiana (Randolph County), brings this interlocutory appeal from the trial court’s denial of Randolph County’s motion to transfer venue. In particular, it argues that Randolph County is the preferred venue pursuant to the Indiana Trial Rules. Finding that the injury complained of by appellee-plaintiff Leanne Chamness occurred in Randolph, rather than Delaware, County, we reverse the judgment of the trial court and order it to grant the motion to transfer venue." There is a dissent.

NFP civil opinions today (1):

Cathleen Quigley v. Town Council, Town of Whitestown, Indiana, et al (NFP) - judicial immunity.

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

State of Indiana v. Paola Demucha (NFP)

Kevin Parrish v. State of Indiana (NFP)

Charles Brown v. State of Indiana (NFP)

Anthony C. Renshaw v. State of Indiana (NFP)

Jeffrey B. Shelton v. State of Indiana (NFP)

Eugenia Crowe-Phillips v. State of Indiana (NFP)

Joseph L. Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to Ind. App.Ct. Decisions

nd. Law - More on: Remonstrances decision leads to legislation

Following up on Wednesday's ILB entry titled "Ind. Law - Remonstrances decision leads to legislation," here is a story in the Gary Post-Tribune by Jim Stinson headed "State petition process faces ax." A quote:

On Thursday, House Republicans weighed in, asking for legislation that would allow voters within the district to take part in a referendum to support or oppose bonds for projects.

Earlier in the week, Porter County Clerk Dale Brewer testified before the Senate Tax Committee about opening up the petition process to registered voters. The only change from the Senate bill would allow registered voters to take part, and would use county clerks' voter rolls for verification, as opposed to the old system of using county auditors' tax files.

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to Indiana Law

Ind. Courts - "Baitz named top clerk in Indiana"

The Noblesville Ledger reports:

Tammy Baitz was named 2006 Circuit Court Clerk of the Year at the Indiana Election Division's conference in December.

The award is given to the clerk whose dedication to the election process reaches beyond local boundaries to help election officials in local counties throughout Indiana by working for improvements for administering elections. Nominees come from the state's 92 county court clerks. * * *

Baitz, a Republican beginning her eighth and last year as clerk, also won the Marlene Sutton Clerk of the Year award in June 2004 for her overall efforts as clerk.

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to Indiana Courts

Ind. Law - Mail your unsolicited faxes to the Attorney General!

Last year I kept my fax turned off because of unsolicited faxes, switching it on only long enough to receive a fax I was expecting.

As of January 1, 2007, my fax machine has been turned on. Every unsolicited fax I receive will be mailed to the Attorney General Carter, along with a copy of the official Unsolicited Fax Complaint Form, available here.

As explained on the Attorney General's "About the Do Not Fax Law" page, recipients of unsolicited faxes may bring suit themselves in small claims court:

The TCPA allows recipients of unsolicited faxes to sue the fax sender in small claims court. You can recover either your actual monetary loss or up to $500 in damages for each violation. If you prove the sender willing or knowingly committed the violation, you can recover $1500 per fax. Contact your county clerk’s office to file a claim in small claims court.
This could become quite lucrative. Or, alternatively, you can send you complaint to the Attorney General:
The Attorney General can file a lawsuit in state court to enjoin unsolicited faxes and obtain on behalf of the state civil penalties in the amount of $500 for each violation or $1,500 for a knowing or intentional violation.

In the alternative, the Attorney General can file a lawsuit in federal court to obtain an injunction and damages in the amount of $500 for each violation or $1,500 for a knowing or intentional violation.

In either type of action, any moneys obtained are paid to the State and not to individual consumers.

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to Indiana Law

Law - Still more on: Flood insurance issues now on trial

The ILB has posted a number of entries on insurance coverage of the Katrina storm surge damage, and water vs. wind damage. Here is a list of many of the entries.

Today a number of stories report on a Mississippi federal jury award that may impact ongoing settlement negotiations between State Farm and the Mississippi Attorney General. From the NY Times, a long report that includes:

A federal jury ordered State Farm insurance yesterday to pay a $2.5 million penalty for refusing to cover damages to a Mississippi couple’s house that was destroyed in Hurricane Katrina, throwing into question settlement talks intended to resolve hundreds of lawsuits filed after the 2005 storm.

The eight jurors in Federal District Court in Gulfport, Miss., reached a unanimous decision yesterday less than three hours after Judge L. T. Senter Jr. ruled that State Farm failed to prove that the damage to the house in Biloxi had come from surging floodwaters and, thus, was not covered by the homeowner’s policy.

Lawyers for the homeowners, Norman and Genevieve Broussard, had argued that the house was knocked off its foundation and torn apart by high winds — a hazard covered as a fundamental part of home insurance coverage — and that a wall of water driving in from the Gulf of Mexico had scattered the debris.

In a statement from the bench, Judge Senter said that State Farm had presented no “legal or arguable reason for refusing to pay the plaintiffs’ claim,” Bloomberg News reported.

The judge then ordered State Farm to pay the full value of the policy, $233, 292, and told the jury to determine whether the insurer should pay punitive damages and, if so, how much. The homeowners had sought $5 million in addition to their coverage.

Yesterday’s decision was the first by a jury in a sprawling dispute that sprang up after thousands of homes were damaged or destroyed by Hurricane Katrina and the insurers were accused of narrowly interpreting coverage and vastly underpaying claims. More than 2,000 lawsuits have been filed.

The verdict came as State Farm acknowledged it had started settlement talks with 639 other homeowners in Mississippi. The Broussard lawsuit was not included in those discussions. Those talks continued yesterday amid signs that progress was being made. * * *

After Hurricane Katrina, State Farm and other insurers balked at paying claims, arguing that much of the damage to houses was caused by flooding, which is not covered by a typical homeowner policy. Many insurers also contended that if any damage to a home had come from water, it nullified the basic coverage for wind damage.

Judge Senter agreed in a ruling that the insurers were not obligated to pay for flood damage. But he said that when both wind and water damaged or destroyed a house, it was the burden of the insurance company to prove how much of the loss was because of water and pay for any wind damage. [ILB- emphasis added]

A clerk for Judge Senter said in a telephone interview from Gulfport that experts for State Farm acknowledged in court documents that some damage to the Broussard’s home had come from wind. But, he said, “they did not offer evidence during trial” showing how much of the damage was from water and how much from wind, as Judge Senter had required.

Ultimately, he said, the judge ruled that State Farm was liable for all the damage because the insurer had not provided enough evidence “the jury could use to segregate” the wind from the water damage. * * *

State Farm would not comment on the impact of the verdict. But lawyers who have been following the talks said they expected strong reactions from the participants that could accelerate the negotiations or to blow them apart. * * *

Many lawyers and insurance executives have said in interviews that a settlement by State Farm, the largest insurer in Mississippi and the nation, would probably lead other insurers to follow suit. That would potentially bring hundreds of millions of dollars into the hands of homeowners to start rebuilding.

A settlement would probably yield less money than many homeowners thought they could get from a jury, but with the huge number of pending cases, it could be years before they got their day in court.

The Mississippi attorney general, Jim Hood, has filed a civil lawsuit against State Farm and other insurers and had began investigating possible criminal charges against State Farm for the way that it handled claims.

These quotes from this AP lengthy story from Tuesday helps put today's report in perspective. It begins:
GULFPORT, Mississippi (AP) -- A jury heard opening statements Tuesday in one of hundreds of insurance lawsuits filed by policyholders of State Farm Fire & Casualty Co. after Hurricane Katrina, even as the attorney general negotiated a separate potential settlement with the insurer.

A lawyer for State Farm policyholders Norman and Genevieve Broussard, whose case is not directly related to the settlement talks, told jurors that the company invented a new "protocol" after the August 2005 storm to deny the couple's claim and many others like it.

State Farm and other major insurers maintain that their policies don't cover damage that could have been caused by a combination of wind and flood waters, even if hurricane-force winds preceded a storm's rising water.

William Walker, the Broussards' attorney, said the company invoked that provision to refuse to pay for any damage to homes that Katrina reduced to slabs, including his clients' residence in Biloxi.

"They denied (the couple's claim) based on this wind/water protocol, this thing that's not in the policy," Walker told jurors. "This is a case in which State Farm promised to do something. This is a case in which State Farm decided not to follow those promises." * * *

State Farm, Mississippi's largest home insurer, is negotiating a multimillion dollar settlement in the state to resolve thousands of lawsuits and other disputed policyholder claims related to Katrina, people with direct knowledge of the negotiations told The Associated Press on Monday.

Lawyers for Bloomington, Illinois-based State Farm met with Hood as recently as Friday to discuss a possible settlement, which would resolve a civil lawsuit Hood filed against the company for refusing to cover damage from Katrina's storm surge 16 months ago.

A mass settlement would be the first of its kind to follow the wave of litigation spawned by Katrina.

Hood, through a spokeswoman, declined to be interviewed Monday. But he issued a statement that said: "I am working day and night attempting to get our coastal residents a fair shake in the insurance litigation. It would not help our negotiations to disclose any details at this time."

Posted by Marcia Oddi on Friday, January 12, 2007
Posted to General Law Related

Thursday, January 11, 2007

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

Robert Gleaves v. State of Indiana - Sentencing decision. See footnote on p. 9 re "advisory" vs. "presumptive" sentences.

NFP civil opinions today (2):

The Uniform House, Inc. v. Scrubs To Go, Inc., et al. (NFP) - "Regarding UH’s claim for breach of contract, we find that the restrictive covenant which forms the basis of that claim is overbroad and unenforceable. Furthermore, the restrictive covenant cannot be cured by application of the blue pencil doctrine because it is not clearly separated into divisible parts. As to UH’s claim for misappropriation of trade secrets, we conclude that none of the information allegedly misappropriated by Defendants constitutes trade secrets. Finally, we find no error in the trial court’s grant of summary judgment in favor of Defendants on UH’s claims for tortious interference with business relationships, conversion, and unfair competition. We therefore affirm the trial court’s grant of summary judgment in favor of Defendants on all of UH’s claims."

Ken Fryar Buildings, Inc. v. TGI Development, L.L.C. (NFP) - "TGL raises the additional issue of whether Fryar has waived all issues by failing to follow the rules of appellate procedure. Finding that Fryar substantially complied with the rules of appellate procedure, we address the merits of its appeal. However, we affirm, concluding that the evidence supports the trial court’s judgment, and that the trial court’s award of damages was proper and should not be reduced."

Footnote 2 on p. 5: "We also reiterate that we have a “preference to resolve cases that come before us on their merits where possible.” Foley v. Manor, 844 N.E.2d 494, 496 (Ind. Ct. App. 2006). Also, “[a]ny party’s failure to include any item in an Appendix shall not waive any issue or argument.” Ind. Appellate Rule 49(B)."

NFP criminal opinions today (3) (link to cases):

State of Indiana v. Walter E. Cantrell, Jr. (NFP) - "Walter Cantrell was charged with Class C felony possession of cocaine. Cantrell filed a motion to suppress evidence seized by police after a routine traffic stop. The trial court granted the motion, and the State appeals the trial court’s decision. Concluding that the traffic stop was not unreasonably prolonged by a dog sniff search of the car, we reverse."

Steven L. Newville v. State of Indiana (NFP)

Fairy K. Wann v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 11, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Capp may succeed Van Bokkelen

Joe Carlson of the NWI Times reports:

HAMMOND | For the second time in his career, Deputy U.S. Attorney David Capp could take the top job at the federal prosecutor's office until a new president is elected.

President Bush nominated U.S. Attorney Joseph Van Bokkelen on Tuesday night to become a U.S. District Court judge, replacing sitting Judge Rudy Lozano, who plans to move into semiretirement in July.

Van Bokkelen's nomination to the judgeship must be approved by the Senate Judiciary Committee, which could happen this spring, before he gets a vote in the full Senate later this year.

If Van Bokkelen's nomination is approved, the second-in-charge at the U.S. attorney's office -- Capp -- would likely serve as acting U.S. attorney through the remainder of President Bush's second term, said Andy Fisher, spokesman for U.S. Sen Dick Lugar, who nominated Van Bokkelen for the judgeship.

"That is what most people assume will happen," Fisher said. "There is precedent for that process."

Posted by Marcia Oddi on Thursday, January 11, 2007
Posted to Indiana Courts

Ind. Courts - "High court panel rejects local prosecutor’s bid to clear record"

Dionne Waugh of the Fort Wayne Journal Gazette reports today:

The Indiana Supreme Court Disciplinary Commission denied a local deputy prosecutor’s request Friday to expunge a more than 20-year-old private reprimand.

Jack E. Roebel, a local civil law attorney and Allen County deputy prosecutor, filed a petition with the court in October asking judges to remove the 1985 disciplinary action because of his good record since then and because it prohibits him from ever being a candidate for Allen Superior Court judge.

Roebel’s request included details of his legal career throughout the past 22 years, four letters of reference and the fact that he’d never been cited for misconduct since 1985.

Roebel, who has been an attorney for 29 years, did not return phone calls seeking comment.

According to court records, Roebel was disciplined by the Indiana Supreme Court on June 26, 1985, for violating the code of professional responsibility for attorneys at law. * * *

The reprimand, Roebel wrote, had a “unique impact” on his career because it restricts him from applying for judgeship in Allen Superior Court. According to Indiana code, candidates for Allen Superior Court judgeships are not allowed to have any disciplinary sanction imposed upon them. But the reprimand does not restrict Roebel from being a judge in Allen Circuit Court, U.S. District Court or the Indiana or federal Court of Appeals.

In the opinion issued Friday, Chief Justice Randall T. Shepard of the Indiana Supreme Court wrote despite Roebel’s “exemplary” conduct since his reprimand, the court has no procedures to expunge a lawyer’s record of professional misconduct. Further, he wrote that Roebel’s petition was essentially a request for judicial relief from the statutory restrictions imposed by the legislature on candidates for judge in the Allen Superior Court.

“Since this is a legislatively imposed restriction, we feel constrained by the General Assembly’s directive,” he wrote. “This court now finds that the … petition to expunge (his) private reprimand is hereby denied.”

According to the Disciplinary Commission, attorneys can be disciplined in a variety of ways, ranging from a private or public reprimand to suspension to permanent disbarment.

The Supreme Court's 1/5/07 order is available here.

Posted by Marcia Oddi on Thursday, January 11, 2007
Posted to Indiana Courts

Ind. Decisions - Still more on: Federal Judge allows Timberlake execution, but has not yet ruled on lethal injection issue [Updated]

Updating this ILB entry from yesterday, the Indianapolis Star has this brief item this morning:

A U.S. District Court judge will hear arguments next week in a lawsuit challenging the scheduled execution of Norman Timberlake.

Judge Richard L. Young has scheduled a bench trial at 9:30 a.m. Wednesday. Timberlake's lawsuit argues the chemicals and process used by Indiana in lethal injections creates a risk that he will feel unnecessary pain during the execution.

He is scheduled to die just after midnight Jan. 19 for the 1993 murder of Indiana State Police Master Trooper Michael E. Greene during a traffic stop on I-65 in Indianapolis.

Earlier this week, Young ruled against Timberlake in a separate suit asking for a stay of execution because the inmate is mentally ill. Timberlake also has requested clemency from Gov. Mitch Daniels.

Meanwhile, today's Missouri papers have several stories on a challenge to the lethal injection process in their federal courts. This AP story reports:
ST. LOUIS - A federal appeals panel Wednesday questioned whether a judge intruded too far in state affairs by requiring certain reforms to Missouri's lethal injection procedures.

The three-judge panel of the 8th U.S. Circuit Court of Appeals said requiring the Corrections Department to sign death logs on executed prisoners might be construed as "micromanaging."

U.S. District Judge Fernando Gaitan Jr. had ordered the reforms to Missouri's lethal injection procedures, including the use of a doctor specializing in anesthesia.

The attorney for condemned killer Michael Taylor, who came within hours of being executed in February, argued Wednesday that the state can't be trusted to carry out executions humanely without federal oversight. * * *

Gaitan initially required the state to have a board-certified anesthesiologist oversee executions, but the American Society of Anesthesiologists fiercely opposed the order.

The panel that heard the case Wednesday did not indicate when it might rule.

The lethal injection debate centers on how three drugs are administered in succession. Opponents say they can constitute cruel and unusual punishment if given improperly.

Missouri is among nine states that have put executions on hold as they grapple with whether lethal injection is inhumane.

A story on the same Court of Appeals hearing appearing in the St. Louis Post-Dispatch puts a different light on the issues. The report begins:
Missouri corrections officials came under heavy fire from a condemned inmate's lawyers Wednesday and some pointed questioning by federal appeals judges considering whether to allow the state to resume executions.

Judge William Jay Riley said the state's lawyers initially misrepresented the execution procedures to both a lower court and the 8th U.S. Circuit Court of Appeals, which heard oral arguments in St. Louis.

A decision may be months away.

Judge David R. Hansen asked James Layton of the Missouri attorney general's office whether state officials could now be trusted to implement revised procedures imposed after problems were revealed.

he changes have already been made, Layton responded, saying there "is simply no basis" to question whether Department of Corrections Director Larry Crawford will properly supervise execution staff.

Layton said Crawford had been unaware of problems until the issue "exploded" with the case of Michael A. Taylor.

The death penalty has in effect been on hold since last year, when lawyers for Taylor, on death row for the 1989 slaying of a teenage girl in Kansas City, argued that the lethal injection process could pose unconstitutionally cruel pain.

Taylor's suit revealed that the corrections director was not fully aware of the procedure, and didn't know that the physician in charge —called Joe Doe in court documents but identified by the Post-Dispatch as Dr. Alan Doerhoff — decided on his own to halve the amount of sedative that begins the lethal three-drug cocktail. The first drug shields the condemned person from potential pain of the other two.

Doerhoff admitted in a hearing last year that he is dyslexic and sometimes makes mistakes mixing drugs. The Post-Dispatch revealed that he has been reprimanded by the state Board of Healing Arts and denied staff privileges by two hospitals. The state has refused to bar him from doing more executions.

[Thanks to How Appealing for the Missouri links.]

[Updated] Tom Coyne of the AP reports today:

SOUTH BEND, Ind. — Norman Timberlake, a New Albany man condemned to die Jan. 19 for killing a state trooper, has asked the state Supreme Court to delay his execution until the U.S. Supreme Court decides a similar case regarding a mentally ill Texas man.

Timberlake's request contends the state should not be allowed to execute him until the U.S. Supreme Court decides whether Scott Louis Panetti, who killed his estranged wife's parents in 1992, should be spared the death penalty because he has suffered from severe mental illness for 25 years.

The U.S. Supreme Court decided in 1986 that executions of the insane are unconstitutional.

In a concurring opinion, Justice Lewis Powell concluded that "the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it."

But in the Panetti case, his lawyers argue that "awareness" is not synonymous with "rational understanding."

Timberlake's attorney, Brent Westerfeld, said the same argument stands for his client.

Posted by Marcia Oddi on Thursday, January 11, 2007
Posted to Ind Fed D.Ct. Decisions

Law - Not much has changed with eminent domain

The Wall Street Journal has a freely-available opinion piece this morning titled "Let There Be 'Blight' Welcome to the post-Kelo world" that is well worth a read. It begins:

SEATTLE--The city of Burien, Wash., recently decided that a piece of property owned by the seven Strobel sisters that had long housed a popular diner-style restaurant was not upscale enough for the city's ambitious "Town Square" development, which will feature condos, shops, restaurants and offices. Rather than condemn the property for a private developer and risk a lawsuit, Burien came up with a plan--it would put a road through the property, and the city manager told his staff to "make damn sure" it did. When a subsequent survey revealed that the road would not affect the building itself, but only sideswipe a small corner of the property, the staff developed yet another site plan that put the road directly through the building. A trial court concluded that the city's actions might be "oppressive" and "an abuse of power"--but allowed the condemnation anyway. The Washington Court of Appeals affirmed, and the Washington Supreme Court refused to hear the case.

Welcome to the post-Kelo world. The U.S. Supreme Court's 2005 decision made clear that the federal courts would not stop local governments across the country from condemning private property for economic development. While the court noted that states were free to provide greater protections for homes and small businesses if they chose, Washington state stands as evidence that a strong state constitution means little if the courts do not enforce it and local governments disregard it.

The author of the opinion piece is William R. Maurer:
Mr. Maurer is executive director of the Institute for Justice, Washington chapter, and the author of "A False Sense of Security: The Potential for Eminent-Domain Abuse in Washington," recently published by the Washington Policy Center. The Institute litigated the Kelo case and represents Bart Didden in his appeal to the U.S. Supreme Court.

Posted by Marcia Oddi on Thursday, January 11, 2007
Posted to General Law Related

Wednesday, January 10, 2007

Ind. Law - Legality of state welfare privatization contract questioned

Tim Evans of the Indianapolis Star reports via the paper's website today:

Responding to concerns raised by a Democrat state senator about the validity of a $1.16 billion welfare privatization contract signed last month by the governor, Attorney General Steve Carter says the contract complies with all state laws.

"During its review of the state contract between FSSA and vendor IBM, the Attorney General's office specifically considered the applicability of the statute that governs the terms of contracts," Carter said in a statement issued by his office. "We have concluded that the contract meets legal standards and signed the contract for form and legality on December 27th."

Sen. Vi Simpson, D-Ellettsville, sent a letter to Carter on Tuesday questioning the legality of the deal because its 10-year term exceeds what she believes is a four-year limit outlined in the Indiana Code.

In a letter to Simpson, Gregory F. Zoeller, chief deputy in the AG's office, wrote: "This contract was approved by the Office of the Attorney General for form and legality on December 27, 2006. We reviewed the contract as it was being drafted -- a process which took many months.

"During this process, we specifically reviewed the applicability of IC 12-15-30-4 regarding the administration of Medicaid claims, and are satisfied that it does not apply to the work to be performed by IBM regarding eligibility."

Interesting. Here is the statute at issue:
IC 12-15-30-4. Term of contracts; extensions

Sec. 4. (a) A contract to administer any part of the Medicaid program may be for an original term of not more than four (4) years.

(b) At the option of the office, the term of the contract may be extended for a term of not more than two (2) additional years.

(c) An extension may be granted for a contract that is in effect.

As added by P.L.2-1992, SEC.9.

Perhaps during its period of review, the Office of the Attorney General prepared an opinion lettter for its client, the Governor, detailing, inter alia, specifically why IC 12-15-30-4 is not applicable to the welfare privatization contract.

Posted by Marcia Oddi on Wednesday, January 10, 2007
Posted to Indiana Government

Ind. Courts - French Lick casino disputes continue to be aired in Orange Circuit Court

Laural Lane reports in the Bedford Time-Mail:

PAOLI — Lawyers outnumbered spectators Tuesday during a daylong Orange Circuit Court hearing further delving into the bitter dispute between the partners that developed the French Lick Springs Resort Casino.

Orange Circuit Judge Larry Blanton let both sides know he wished they could settle their differences outside the courtroom.

“Sometime, someplace, someone from Cook and someone from Lauth is going to have to sit down and bring some common sense and resolution to this matter,” the judge said. “What we have here is an economic and financial divorce in the making. Let’s either get on with it, or kiss and make up.” * * *

[dispute details omitted]

And [Judge Blanton] let the lawyers know, again, that with so much at stake, it would benefit everyone involved to work together to find common ground.

“What I would prefer, and I’m not holding my breath until it happens, is for all of you to sit down and work out a framework about how you are going to resolve your disputes,” he told the seven lawyers.

“You are all very capable and learned attorneys, but there has to come a time and a place where you have to tell your clients, ‘This is what we are going to do.’”

Posted by Marcia Oddi on Wednesday, January 10, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 12 NFP)

For publication opinions today (6):

Arthur Scott v. State of Indiana - "Based on the evidence, charging informations, final instructions, and arguments of counsel, we do not find it reasonably possible that the jury at the first trial convicted Scott of resisting law enforcement based upon the evidence that he agitated and pushed two very large and vicious dogs toward the officers. Therefore, Scott’s claim that his conviction must be reversed based upon a violation of Indiana’s Double Jeopardy Clause fails."

Heath Eshelman v. State of Indiana - "In light of these circumstances, we conclude that the search of Eshelman’s trash was reasonable under either pre or post-Litchfield principles. Similarly, when considering the evidence that was seized from Eshelman’s trash, along with the information that Trooper Smith received from Deputy Harp and the jail inmate, we conclude that the issuance of the search warrants was proper. As a result, the evidence seized in the searches was properly admitted at Eshelman’s trial."

Daniel David Orlich v.Valerie Faye Orlich n/k/a Valerie Faye Colville - "Concluding that Father did not meet his burden of proving Sarah is emancipated, but that the trial court should have given Father credit toward his child support obligation for social security benefits received by his children because of his disability, we affirm in part, reverse in part, and remand."

In Re: D.H., J.H., J.B.H., L.H. and N.H. - "For the foregoing reasons, we reverse the trial court’s judgment that the Children are CHINS."

Heritage Lake Property Owners Association, Inc., et al. v. Kevin York - "Appellants-defendants Heritage Lake Property Owners Association, Inc., et al. (the Association) appeal the trial court’s judgment in favor of appellee-plaintiff Kevin York, which determined that York was authorized to call for the removal of a director of the Association. In essence, the Association maintains that York was prohibited from requesting the removal of a director under its bylaws unless he could establish that there was just cause for the removal. Concluding that the trial court properly determined that York could call for the removal of the Association’s directors in accordance with its bylaws and Indiana statutory law, we affirm."

Monroe Guaranty Insurance Company v. Engineered Roofing Systems, Inc. - "Monroe Guaranty argues that the trial court abused its discretion in providing relief to ERS and permitting a counterclaim brought by ERS against it to proceed because the record shows that a prior summary judgment order that had been issued by the trial court constituted a final appealable judgment that disposed of all claims in the action. Concluding that the trial court’s order on summary judgment amounted to only a partial summary judgment with respect to the original claim that Monroe Guaranty advanced against ERS, we affirm the trial court’s grant of relief in favor of ERS and remand this cause to the trial court for further proceedings as to ERS’s counterclaim against Monroe Guaranty."

NFP civil opinions today (7):

In the Matter of the Involuntary Termination of J.T. (NFP)

Jeannine R. Rowe v. Frank E. Kelley (NFP)

In the Matter of the Estate of Audrey A. Konkey (NFP)

Amy Malcolm v. Connie Erck (NFP)

Dennis P. Pflughaupt v. Sharon Pflughaupt (NFP)

Dorsetts Auto Sales, Inc. and Dorsett LLC. v. C.H. Garmong & Son, Inc. (NFP)

Brucker Enterprises v. John King (NFP)

NFP criminal opinions today (5) (link to cases):

Tracy L. Lloyd v. State of Indiana (NFP)

Marco A. Camacho v. State of Indiana (NFP)

Frank Henninger v. State of Indiana (NFP)

Pamela Coomer v. State of Indiana (NFP)

Bruce Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 10, 2007
Posted to Ind. App.Ct. Decisions

Law - Interesting federal decisions on laches

Decision of the Day today has a very interesting entry on the question of "When Does Laches Bar an Otherwise Timely Federal Claim?"

It reminded me of the 2005 SMDfund case, where our Supreme Court ruled that laches barred a constitutional challenge: "In short, laches bars the plaintiffs’ claim. Because we hold that the plaintiffs’ claim is barred by laches, we need not address the statute of limitations issue which was the basis of the trial court’s ruling reaching the same result."

Posted by Marcia Oddi on Wednesday, January 10, 2007
Posted to General Law Related

Ind. Courts - Still more on: Judge Van Bokkelen? Lugar recommends prosecutor to succeed Judge Lozano

President Bush makes confirms the story reported in this Nov. 8th entry by appointing "U.S. Attorney Joseph Van Bokkelen Tuesday to the federal judgeship in Hammond that Rudy Lozano plans to vacate this summer." According to this report by Joe Carlson in the NWI Times:

Van Bokkelen, the region's top federal prosecutor for the past five years, was among the first round of judicial nominations submitted by President Bush to the new Democratic-led Senate.

The Senate must give its consent before Van Bokkelen can take the post.

"I think we begin a new Congress with a clean slate," said Andy Fisher, spokesman for U.S. Sen. Dick Lugar, R-Ind., who recommended Van Bokkelen for the job. "We'll work very closely with the members of the Judiciary Committee and the Senate members to get the nomination through."

Van Bokkelen said he "absolutely" intended to accept the nomination if approved by the Senate.

"I'm very flattered that the president would nominate me," Van Bokkelen said. "I just hope that I can live up to the high tradition of the judges in this area."

It is the second time that Bush and Lugar have recommended Van Bokkelen for a federal post.

Five years ago, they nominated the Highland lawyer to his current job as U.S. attorney, in which Van Bokkelen has built a reputation for leading a string of high-profile public corruption cases, as well as a steady stream of gun, drug and gang prosecutions.

The nomination will go to the Senate Judiciary Committee, chaired by U.S. Sen. Patrick Leahy, the Vermont Democrat who also was chairman when Van Bokkelen was appointed U.S. attorney in 2001. The approval for U.S. attorney in 2001 took about six months. * * *

Lozano is expected to become a senior judge -- a position of semi-retirement -- in July.

Posted by Marcia Oddi on Wednesday, January 10, 2007
Posted to Indiana Courts

Ind. Decisions - More on: Federal Judge allows Timberlake execution, but has not yet ruled on lethal injection issue

In the ILB entry last evening on Jon Murray's Indianapolis Star report on the decision of federal district Judge Young dening Norman Timberlake's plea for a stay of execution, I noted that the ruling did not appear to be posted yet on the federal court site. However, the Star this morning has posted the ruling on its own site; the opinion is available here, along the final version of the story.

Posted by Marcia Oddi on Wednesday, January 10, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Remonstrances decision leads to legislation

The General Assembly is now weighing in on the Court of Appeals ruling in Bruce Jones v. Martha Womacks that "The petitioning process used to determine local support for schools to borrow money through bonds is unconstitutional because it only includes property owners." (earlier quote from AP story). Here is a list of earlier ILB entries. As readers may recall, the opinion in Womacks concludes with:

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.
Niki Kelly writes today in the Fort Wayne Journal Gazette:
INDIANAPOLIS – Some legislators say a bill to include registered voters in decisions about large school and government capital projects could disenfranchise property owners.

The Senate Tax and Fiscal Policy Committee on Tuesday unanimously passed Senate Bill 132, which now moves to the full Senate for consideration, while conceding the issue is more complicated than initially thought.

The bill’s author, Sen. Luke Kenley, R-Noblesville, didn’t know until Tuesday that a lawsuit involving the issue is still alive.

Currently, when a school or governmental entity wants to issue bonds to construct, renovate or expand public buildings using property tax dollars, landowners can try to stop the project via dueling petition drives in which the side with more verified signatures wins. This process is called a remonstrance. * * *

But the Indiana Court of Appeals ruled in August that the petition and remonstrance process is unconstitutional because it is a de facto election, and the state cannot restrict traditional elections or referendums to property owners.

The case was brought by the parent of two children in Indianapolis who did not own property but wanted to participate in the process.

In September, Indiana Attorney General Steve Carter chose not to appeal the case, and several lawmakers filed legislation this session so that all registered voters of a taxing district can sign the petitions.

But Jodie Woods, general counsel for the Indiana Association of Cities and Towns, told the panel Tuesday that her organization was granted the right to intervene in the case and on Monday asked the Indiana Supreme Court to accept an appeal. * * *

“We don’t believe it’s an unconstitutional election,” Woods said, noting that landowners pay the additional property taxes. “Our preference is the status quo.”

Others argue that the current process leaves out renters and other non-property owners.

Allen County Clerk of Courts Therese Brown testified Tuesday that a new process allowing only registered voters to participate could disenfranchise Amish property owners as well as landowners who live in another taxing unit.

“I think it’s sort of ironic that the court said we had to bring in voters, but it turns out we are disenfranchising property owners,” said Sen. David Ford, R-Hartford City. “There ought to be a way to make sure that the people who pay the bills also have a voice in this.” * * *

Kenley noted that the petition and remonstrance process is in lieu of a full referendum, in which voters would cast ballots for or against projects. Several lawmakers in recent years have been pushing a move to referendums, but Kenley has resisted.

“I think we ought to salvage this,” he said.

Lawmakers could amend the bill on the Senate floor to include both registered voters and property owners.

Lesley Stedman Weidenbener of the Louisville Courier Journal also has a thorough report on the Senate Tax and Fiscal Policy Committee meeting on the bill. A quote:
As passed unanimously by the tax committee yesterday, SB 132 leaves the signature-collection process in place. But it designates registered voters -- rather than property owners -- as those eligible to participate.

Several people who testified before the committee raised questions about that change. Allen County Clerk Therese Brown, representing the Indiana State Clerks Association, said yesterday that the bill could disenfranchise Amish people, who are property owners but don't register to vote.

Katrina Hall, lobbyist for the Indiana Farm Bureau, said some landowners who pay taxes to support such projects might actually live in another place. Under the bill, therefore, they wouldn't be registered to vote in the affected area and couldn't have a say in whether the project is approved.

Hall also said that lawmakers also should authorize other kinds of taxes -- those paid by a broader range of residents -- to support bonds that finance construction projects.

Sen. Tom Weatherwax, R-Logansport, authored the original petition law -- passed in 1995 -- and told the committee yesterday that it was meant to give property owners a tool to help control their tax bills. Still, he said, lawmakers at that time debated who should be allowed to participate.

"We finally decided that those who pay the bill ought to have the say," he said.

But Weatherwax acknowledged yesterday that others indirectly pay property taxes as well -- through their rent.

He suggested adding language to the bill that would allow either property owners or registered voters to participate in the signature contest. Kenley said yesterday he would consider that change.

Groups representing schools backed the bill, saying they thought it was a reasonable change in light of the court's decision. Some fear that if lawmakers can't find a way to make the signature process work, they would switch to voter referendums -- something that in other states has led to the defeat of many projects.

In general, the signature process results in a win for those seeking the construction projects about half the time.

Posted by Marcia Oddi on Wednesday, January 10, 2007
Posted to Ind. App.Ct. Decisions | Indiana Law

Ind. Courts - Governor fills three slots on the Indiana Judicial Nominating Commission

The Indiana Commission on Judicial Qualifications / Judicial Nominating Commission are central to Indiana's judicial branch of government:

The purpose of the Indiana Commission on Judicial Qualifications is to investigate complaints alleging judicial ethical misconduct, to prosecute violations of the Code of Judicial Conduct when warranted, and to advise judges and judicial candidates about their ethical obligations.

The purpose of the Indiana Judicial Nominating Commission is to select nominees to fill vacancies on the Indiana Supreme Court, Court of Appeals, and Tax Court, to select the Chief Justice of Indiana, and to certify former Indiana judges as Senior Judges.

The Indiana Commission on Judicial Qualifications and the Indiana Judicial Nominating Commission are two constitutionally-established commissions comprised of the same seven members. The Chief Justice of Indiana is the ex officio Chair of the Commissions. The Chief Justice serves five-year terms. The other six members are three lay citizens appointed by the Governor and three lawyers elected by other lawyers, all to three-year terms.

The Judicial Nominating Commission recruits and interviews applicants to fill vacancies on the Supreme Court, the Court of Appeals, and the Tax Court, and the Governor appoints one of the Commission's three nominees for each vacancy. Additionally, the Nominating Commission selects the Chief Justice of Indiana from among the five Justices on the Indiana Supreme Court. Finally, the Nominating Commission certifies former Indiana judges as Senior Judges to serve in Indiana 's courts.

In an ILB entry dated Dec. 12, 2006, I wrote in part:
Who is on the judicial nominating commission? This Court webpage, which indicates it was last modified 6/13/06, lists the members, but does not distinguish between attorney members, elected by the bar, and citizen members, appointed by the Governor. From p. 5 of my paper, "Analysis of another effort to alter the Indiana judicial selection and retention process":
The three attorney members on the current Commission were elected for three years rather than six, and their terms do not expire at the same time. Rather, the term of James O. McDonald, Terre Haute (First District), ends December 31, 2006; the term of James H. Young, Indianapolis (Second District), ends December 31, 2007; and the term of Sherrill Wm. Colvin, Fort Wayne (Third District), ends December 31, 2008.

The citizen members of the Commission, appointed by the Governor, also now have three-year terms rather than six-year terms. The term of Derrel E. Zellers, Tell City (First District), ends December 31, 2007; and the term of Payton Wells, Indianapolis (Second District), ends December 31, 2006.

The citizen commissioner slot for the Third District has been vacant since March 2005 when the serving commissioner resigned. That three-year term for the Third District expired December 31, 2005. The opening is now in a new cycle that runs through December 31, 2008. Although IC 33-2.1-4-1(e)17 requires that “vacancies in the office of non-attorney commissioners shall be filled by the governor within sixty days after he has notice of such vacancy,” the Third District spot has been unfilled now for approximately one year.

As far as the ILB knows, the Governor still has not filled the vacant 3rd District citizen posiition, vacant now since March 2005.
The Governor now has made appointments, but they do not seem to have been announced anywhere (although they do now show on the Court page, which now indicates it was last modified 1/3/07 - and, if I may say so, could provide a little more information about the members' terms). In addition, the members of the bar in the First District have elected a new atttorney member. Here is the current makeup of the Commission.

Attorney members, elected for 3-year terms by members of the bar of their district:

Citizen members, appointed for 3-year terms by the Governor:

[Note that under IC 33-27-2-1(e) [formerly IC 33-2.1-4-1(e)], "The term of the nonattorney commissioner appointed to fill the vacancy is for the unexpired term of the member whose vacancy the new nonattorney commissioner has filled."]

Why are these appointments particularly important? Court of Appeals Judge Patrick D. Sullivan has announced he is retiring later this year. At least one other member of the Court of Appeals is approaching age 75, which is the retirement age for appeals court judges in Indiana.

[Thanks to K. Paul Mallasch of http://www.kpaulmedia.com for alerting me to these changes.]

Posted by Marcia Oddi on Wednesday, January 10, 2007
Posted to Indiana Courts

Tuesday, January 09, 2007

Ind. Decisions - Federal Judge allows Timberlake execution, but has not yet ruled on lethal injection issue

Jon Murray of the Indianapolis Star reports last this afternoon:

A U.S. District Court judge today denied Norman Timberlake a stay of execution and dismissed his claim he should not be executed because he is mentally ill.

In a 10-page written decision, Judge Richard L. Young said Indiana courts handled Timberlake's appeals properly. The judge denied his petition for a writ of habeas corpus. "The Indiana Supreme Court was correct in observing that at this point Timberlake is presumed to be competent to be executed," Young wrote.

Timberlake is scheduled to die by lethal injection Jan. 19. Young still has not ruled in another lawsuit brought by Timberlake that argues Indiana's lethal injection procedures don't prevent an executed inmate from feeling unnecessary pain, constituting cruel and unusual punishment.

Here is a list of earlier ILB entries on Timberlake.

I was unable to find the ruling on the SD Ind. website this evening.

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to Ind Fed D.Ct. Decisions

Law - Women Litigators Battle Adversaries and Stereotypes

The Wall Street Journal Blog today picks out the "illuminating quotes and tales" from an article by Amy Kolz in The American Lawyer.

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to General Law Related

Ind. Decisions - 7th Circuit case out of Wisconsin offers cautionary lesson

In Treiber & Straub v. UPS, a 13-page opinion, Judge Wood begins:

Treiber & Straub, Inc. (“Treiber”), a fine-jewelry store in Wisconsin, needed to return a diamond ring to a California jewelry wholesaler. It turned to United Parcel Service, the world’s largest package delivery company and, using the UPS website, it arranged to send the package via “Next Day Air.” As part of the transaction, it purchased $50,000 in insurance, the maximum permitted.

The ring was worth more than double that $50,000 limit—a fact that gave rise to Treiber’s problems here after UPS lost the package. Treiber reimbursed the wholesaler for the full loss and then filed this lawsuit against UPS and UPS Capital Insurance Agency, Inc., a wholly owned subsidiary of UPS that administers UPS’s excess value insurance program. (For simplicity, we refer in this opinion to both defendants as UPS.) Treiber wanted to collect the $50,000 for the lost package to which it believed it was entitled. UPS denied liability, pointing to the disclaimer found in its “Terms and Conditions,” its shipping tariff, and its insurance policy. These documents warn (repeatedly) that when customers ship items of “unusual value,” defined as those worth more than $50,000, there is no liability at all.

Finding federal jurisdiction proper because the case arose under the rules of federal common law that apply to lost or damaged goods shipped via air freight, the district court granted summary judgment for UPS. The court found that the company’s disclaimers gave reasonable notice and were enforceable; it declined to reach Treiber’s state law breach-of-contract theory, rejecting UPS’s argument that it too arose under federal law because of field preemption. Both UPS and Treiber appealed. We affirm the district court’s grant of summary judgment for UPS on the federal common law claim, and we modify the court’s decision dismissing the state law claims without prejudice to a dismissal with prejudice.

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues 4-1 ruling in child support case

In Kathy L. Whited v. Kenneth B. Whited, a 12-page, 4-1 decision, Chief Justice Shepard's majority opinion begins:

The parties before us have spent considerable time and money litigating the amount of child support due from the 1990’s. The trial court gave the obligor/father both too much and not enough. It wrongly permitted him a retroactive modification of support for a period in which he should have fully paid an “order in gross” for three children, but it also ordered him to pay support after two children were emancipated and the third had come to live with him, in what was a de facto change of custody.
Justice Boehm's dissent begins:
I respectfully dissent. The husband and wife in this case worked out an adjustment to their changed family circumstances that was acceptable to both for over twenty years. The wife first asked the court to assess arrearages in this case eleven years after the last support payment had been made. More importantly, her request came eleven years after the last child left the nest, so this dispute has nothing to do with the level of funding available for the children. Only the financial interests of the husband and the wife are affected by the result. Arrangements the parties have worked out between themselves should be honored where their interests, and theirs alone, are at stake. Under these circumstances, I would find that the wife is estopped from seeking court relief to readjust a financial arrangement that both parties had lived with, and come to rely upon, for more than a decade.

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

Supervised Estate of Edith Alice Scholz/Kenneth Scholz v. Lorraine Kirk - "Ken Scholz (“Ken”) appeals the trial court’s order that granted the objection of Lorraine Kirk (“Lorraine”) to the final accounting he filed as personal representative of the estate of Edith Alice Scholz (“Mrs. Scholz”) and ordered him to pay annual cash rent of $12,000 to farm the estate’s real property. We affirm."

Central Indiana Podiatry, P.C. v. Kenneth J. Krueger, et al - "Central Indiana Podiatry (“CIP”) appeals the trial court’s order denying a preliminary injunction to CIP on its action asserting that Kenneth Krueger, D.P.M., violated the restrictive covenants contained in the employment contract between CIP and Krueger. We reverse."

Anna H. Cochran v. State of Indiana - "Anna H. Cochran appeals the judgment rendered by the trial court, which overruled her objections and denied her motion to dismiss the State of Indiana’s complaint for the appropriation of her real estate pursuant to the power of eminent domain conferred upon the Indiana Department of Transportation (“INDOT”). She raises one issue, which we restate as: whether the trial court erred in determining that the State has the right pursuant to IC 8-23-6-2 to acquire real estate interests for a drainage system needed in a reconstruction project on an existing state highway. We affirm."

Donald Ware v. State of Indiana - "We conclude that the trial court properly admitted the evidence obtained pursuant to the search and arrest, and the evidence that the State did not disclose prior to trial. We further conclude that sufficient evidence exists to support Ware’s convictions. Finally, we conclude that Ware’s sentence is not inappropriate in light of his character and the nature of the offense. We affirm."

[Update] The Indianapolis Star has posted a brief report on this decision, here, that begins: "The Indiana Court of Appeals today upheld an Avon man's conviction for fatally shooting a teen who had thrown eggs at his truck."

In Austin Elliot, et al v. Allstate Insurance Co. , a 22-page opinion (with a dissent beginning on p. 20), Judge Riley writes:

Issue. Whether Allstate’s policy for uninsured motorist coverage (UIM) confines Appellants’ negligent infliction of emotional distress claim to a single “each person” limit of liability.

[ILB - From pp. 7-11, the opinion covers "The development of Indiana case law on the tort of negligent infliction of emotional distress," which, it notes, "has been vigorous, to say the least," ending with the Court of Appeals 11/17/06 decision in State Farm Mutual Automobile Insurance Company v. Jakupko.]

As we are presented with a very similar scenario as to the Jakupkos’ situation, we will analyze Austin’s and Amber’s claim for negligent infliction of emotional distress in light of Jakupko’s holding. * * *

Conclusion. Based on the foregoing, we hold that the definition of bodily injury in Allstate’s policy includes negligent infliction of emotional distress that is susceptible to medical diagnosis and can be proven through medical evidence even when not accompanied by physical manifestations of that distress. Accordingly, we find that Amber’s claim is covered under Allstate’s policy. Pursuant to Jakupko, we also determine that Austin’s claim falls within the policy’s definition of bodily injury. Furthermore, Appellants negligent infliction of emotional distress claims are subject only to the “each accident” limit of liability. Therefore, we conclude that the trial court erred when it granted summary judgment in favor of Allstate.

Reversed and remanded for further proceedings.
KIRSCH, C.J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which concludes]

I believe Tozer was correctly decided on this point and would apply it here. The majority, however, rejects Tozer in favor of Jakupko, which reached a contrary conclusion on the question of whether emotional distress is a bodily injury within the meaning of policy language such as is before us here. We are left, then, to decide which view is better. I part ways with the majority and conclude that emotional distress under these circumstances is not a bodily injury within the meaning of the policy, and therefore that Austin’s and Amber’s claims for emotional distress “result from” Amanda’s injuries. Having already paid the policy limits for Amber’s injuries, Allstate’s liability on claims derivative of those injuries is exhausted. See Allstate Ins. Co. v. Tozer, 392 F.3d 950. On this basis, I would affirm the grant of partial summary judgment in favor of Allstate.

[ILB - In a footnote on p. 11, the majority expressly declines to follow Tozer: "Because the trial court in the instant case relied on Tozer, we find it noteworthy to expressly decline to follow the Seventh Circuit as we conclude that Jakupko reaches the better result."

If Jakupko seems familiar, it may be because of an ILB entry from Dec. 20, headed ""Insurer Groups, State Trade File Joint Amicus with Supreme Court" - available here.]

NFP civil opinions today (3):

Marlan C. Bonds v. Sheriff Michael Books and Greg Eash (NFP)

In Re the Termination of the Parent-Child Relationship of K.L. (NFP)

Jeffrey L. Mahan v. American Standard Insurance Company (NFP)

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

State of Indiana v. Michael E. Kasten, Jr. (NFP) - "The State appeals a reserved question of law subsequent to the acquittal of Michael E. Kasten, Jr. We reverse. Issue. Whether the trial court erred when it found insufficient corpus delicti to admit Kasten’s admission that he was driving his vehicle at the time it crashed into a utility pole."

Eric Carpenter v. State of Indiana (NFP)

Stephen Jack v. State of Indiana (NFP)

Michael Ferrell v. State of Indiana (NFP)

Steven A. Wrightsman v. State of Indiana (NFP)

Sylvester Bellamy v. State of Indiana (NFP)

Jerry W. Lock v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court splits on transfer grant in case concerning forced medication

In J.S. v. Center for Behavioral Health, a 20-page opinion issed 5/12/06, Judge Sharpnack concludes:

Although the trial court’s conclusion that J.S. is dangerous is not supported by clear and convincing evidence, we affirm the trial court’s conclusion that J.S. is gravely disabled. Further, the trial court’s forced medication order meets the guidelines set out by the Indiana Supreme Court in M.P., 510 N.E.2d at 647-648. Thus, the trial court’s order for commitment and forced medication are reasonable and supported by clear and convincing evidence. For the foregoing reasons, we affirm the trial court’s order granting commitment and forced medication.
Today the Supreme Court has failed to grant transfer to the case, splitting 3-2. Justice Rucker's 7-page "Dissent from Denial of Petition to Transfer from the Indiana Court of Appeals" is available here. Some quotes:
Addressing the circumstances under which a mental health patient can be forced to take anti-psychotic drugs against the patient’s will, this Court announced among other things that the “indefinite administration of these medications is not permissible.” In re the Mental Commitment of M.P., 510 N.E.2d 645, 648 (Ind. 1987). In this case the Appellant seeks transfer contending that the trial court’s order requiring Appellant to take medication over her objection is in direct conflict with the foregoing precedent. I agree and therefore would grant transfer. * * *

The Court of Appeals in this case acknowledged that the trial court’s order “did not specify a time period for the forced administration of the medications.” J.S., 846 N.E.2d at 1115. According to the court “the statutory review requirement exists regardless of whether the trial court’s order mentions it.” Id. The court reasoned that the periodic review for commitment orders provided by Indiana Code section 12-26-15-1(a)3 rendered the Forced Medication Order here not indefinite. I have a much different view than that of my colleagues. * * *

In sum, Indiana Code section 12-26-15-1(a), like its predecessor Indiana Code section 16-14-9.1-10, does not provide protection against the indefinite administration of anti-psychotic drugs against a patient’s will. That can only be accomplished by careful trial court oversight and the entry of an appropriate order imposing a precise time limit. See, e.g., In re the Commitment of J.B., 766 N.E.2d 795, 801 (Ind. Ct. App. 2002) (concluding that the trial court’s forced medication order was erroneous, in part because it failed to impose a definite time limit on the medications that were to be administered). I would therefore grant transfer in this case, reverse the Forced Medication Order, and remand to the trial court to enter an order that curtails the time period within which J.S.’s forced medication can be administered.

Sullivan, J., concurs.

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to Ind. Sup.Ct. Decisions

Law - Pennsylvania equivalent of our LSA refuses to publish rule

Here is an amazing story, from the AP, published in the Washington Post yesterday, about Pennsylvania's equivalent of the Indiana Legislative Services Agency apparently way overstepping its bounds:

HARRISBURG, Pa. -- An obscure state agency is blocking the implementation of new restrictions on mercury pollution by refusing to print the rule in a record of administrative actions.

The Legislative Reference Bureau has sided with opponents of Gov. Ed Rendell's proposed rule and says it will not publish the text in the Pennsylvania Bulletin. Publication puts an administrative rule into effect.

Rendell has sought to force the state's coal-fired power plants to cut mercury pollution by 90 percent by 2015. If it becomes official, Pennsylvania would become the nation's largest coal-mining and coal-burning state to approve a tougher-than-federal rule.

Once fully enforced, the rule could transform Pennsylvania from one of the biggest sources of mercury pollution into one of the cleaner coal-burning states. The state's 36 coal-fired plants send roughly five tons of mercury into the air each year.

Attorney General Tom Corbett's office certified the rule Dec. 29, after which the Rendell administration sought to publish it in the bulletin.

The state Senate voted last June to adopt the federal government's less strict mercury rule, and insists that it still has time to review the governor's proposal. But the governor's administration says that review period expired Nov. 30.

"We believe the regulations should be posted and that the Legislative Reference Bureau has overstepped ... the scope of its authority by not posting them," press secretary Kate Philips said Monday.

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to General Law Related

Ind. Law - Jeffersonville bans sex offenders from parks

Ben Zion Hershberg of the Louisville Courier Journal reports today:

The Jeffersonville City Council voted unanimously last night to adopt an ordinance banning convicted sex offenders from city parks.

The law will take effect 30 days after Mayor Rob Waiz signs it, as he has said he will do soon. * * *

"I believe it raises constitutional issues," Ken Falk, the legal director of the Indiana Chapter of the American Civil Liberties Union, said yesterday in an interview.

He thinks such "blanket bans" violate rights guaranteed by the Indiana Constitution.

Larry Wilder, the lawyer who wrote the ordinance, has said he believes it would withstand a legal challenge.

Wilder said 96 people on the Indiana Sex Offender Registry live in Jeffersonville and about 280 live in Clark County.

Wilder told the council in December, when it took the second of three required votes on the ordinance, that Falk's argument against the ban has lost in at least two cases from other Indiana counties that were appealed to the 7th U.S. Circuit Court of Appeals in Chicago.

Wilder also said a more recent case is pending in Marion County in which U.S. District Court issued a preliminary injunction against an ordinance saying sex offenders could be no closer than 1,000 feet to parks and other facilities children might use.

The district court's preliminary ruling said the ordinance would make it impossible for a sex offender to even travel through Marion County, and a final ruling is expected soon.

Falk said two sex-offender cases which he lost on appeal in recent years -- one in Michigan City and one in Lafayette -- involved bans on one individual in each community.

"No blanket ban has been upheld in Indiana," he said.

For background, see this Nov. 19, 2006 ILB entry.

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to Indiana Law

Ind. Decisions - More on "Sentence reversed in infant death"

Following up on the lengthy story it published Dec. 29, 2006 (see ILB entry here) on the Court of Appeals decision Dec. 27th in the case of Misty Marie Howell v. State of Indiana, the Evansville Courier & Press has this editorial today headed "Legal Hairsplitting: Appeals court reverses sentence in infant death case":

The state attorney general should appeal the latest short-sighted decision from the Indiana Court of Appeals that reversed the sentence of an Evansville woman who admitted to giving her infant a lethal overdose of cold medicine.

Misty Marie Howell pleaded guilty last year to reckless homicide for giving her 7-week-old son, Kyle Howell, more than three times the lethal dose of Dimetapp, which contains pseudoephedrine, in February 2004. Because it was an "open plea" agreement, the sentence was not decided with the prosecutor beforehand; and sentencing was left up to Vanderburgh Superior Court Judge Robert Pigman. On May 12, Pigman gave Howell the maximum for a Class C felony, eight years.

At issue here is the landmark 2004 U.S. Supreme Court case Blakely v. Washington. It says that judges can no longer find that most "aggravating factors" exist to lengthen a defendant's sentence; only a jury can find such factors, unless the defendant admits them under oath. The Blakely precedent unleashed a flurry of prisoner appeals, so much so that in 2005 the Indiana Legislature passed a new law, Senate Enrolled Act 96, to circumvent it. But Blakely still was in effect at the time of the Howell case.

Among the aggravating factors Judge Pigman used to justify giving Howell the maximum eight years instead of the standard four years was the fact that the victim was younger than age 12, Howell's position of trust over the victim and Howell's criminal record (five misdemeanors).

In court, Pigman read the indictment to Howell - reciting the allegation, Kyle's age and date of birth and the fact that Kyle was in Howell's care.

"Do you understand that charge?" Pigman asked Howell, according to the transcript. Howell replied with one word: yes.

For anyone in the courtroom that day, it was clear Howell was admitting to the entire allegation in the reckless-homicide indictment. But the appeals court, relying upon the transcript, didn't see it that way: "Howell did not admit to the facts contained in the trial court's question. Rather, Howell just admitted that she understood the charge," Appeals Court Judge John Sharpnack wrote in the decision. That cannot be used to justify using Kyle's age as an aggravating factor requiring a longer sentence, Sharpnack added. Appeals court Chief Judge James Kirsch and Judge Paul Mathias concurred, sending the case back to Pigman for resentencing.

This is hypertechnical legal hairsplitting. There never was any dispute about the child's age and Howell clearly acknowledged that fact in court.

So now Howell gets a new sentencing hearing. And theoretically, her right to have a jury decide whether her dead child was indeed younger than age 12 still applies. Absent the aggravating factors, she could receive less than eight years.

In our view the eight-year sentence was fair given the disturbing circumstances of Kyle's death, but the appeals court never considered the appropriateness of the sentence itself, just the legality of the aggravating factors.

Vanderburgh County prosecutors don't get to decide whether to appeal the Howell ruling up to the Indiana Supreme Court; that decision is up to Indiana Attorney General Steve Carter. We hope Carter will agree to appeal it. A bad precedent by an appeals court panel that misunderstood the events of the sentencing should not be allowed to stand.

Posted by Marcia Oddi on Tuesday, January 09, 2007
Posted to Ind. App.Ct. Decisions

Monday, January 08, 2007

Ind. Decisions - 7th Circuit decides 2 Indiana cases, Friday and today

Boyer v. Belavilas (ND Ind., Judge Springmann) - bankruptcy

In Clark, Merry v. State Farm Mutual (SD Ind., Judge Tinder), a 12-page opinion, Judge Manion writes:

Merry Clark, on behalf of her two minor children A.C. and S.C., sued State Farm Mutual Auto Insurance Company (“State Farm”), alleging that State Farm breached the terms of its insurance policy’s underinsured motor vehicle (“UIM”) provision when it denied the Clark children’s UIM claims. The district court concluded that the driver of the automobile that injured the Clark children was not operating an underinsured motor vehicle as defined by Indiana’s underinsured motorist statute. Accordingly, the district court held that the Clark children were not entitled to recovery under the terms of the policy’s UIM provision and granted summary judgment in favor of State Farm. The Clark children appealed. We affirm. * * *

The district court granted summary judgment in favor of State Farm because Akers was not operating an underinsured motor vehicle as defined by Indiana Code § 27-7-5-4(b), since the Clarks’ collective recovery from Akers’ insurer was equal to the UIM per-accident liability limit in State Farm’s policy. The district court’s analysis was in accord with Indiana case law interpreting § 27-7-5-4(b), and it was reinforced by the Court of Appeals of Indiana’s recent decision in Grange Insurance Co. v. Graham, 843 N.E.2d 597 (Ind. Ct. App. 2006). Accordingly, the district court’s grant of summary judgment is AFFIRMED.

Posted by Marcia Oddi on Monday, January 08, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Motion for rehearing filed re workplace bullying case [Updated]

Jeff Swiatek of the Indianapolis Star reports late this morning:

A former St. Francis Hospital staffer has asked the Indiana Court of Appeals to reconsider its rejection last month of a $325,000 verbal assault judgment he won against a heart surgeon.

Joseph E. Doescher, a former heart and lung machine operator at the Indianapolis hospital, filed for the rehearing late Friday.

Doescher's request alleges that the appeals court misquoted his attorney, Kevin Betz, when it said he asked a Marion Superior Court jury in closing arguments for "a verdict against workplace bullying and against the workplace bullying incident."

Betz actually asked the jury to return "a verdict against a workplace bully and against the workplace incident," according to the rehearing petition, which included a transcript of the 2005 trial that led to a civil jury award of $325,000 against Dr. Daniel H. Raess, former chief heart surgeon at St. Francis.

The rehearing request, which asks the court to reinstate the jury award, also says the appeals court wrongly raised a new legal issue in its ruling that wasn't argued by either side.

Earlier ILB entries on this case are available here.

[Updated 1/9/07] From the expanded story published today in the Star:

The appeals court picked up the misquote from a brief filed by Raess' attorney, the rehearing petition says.

The quote was a key issue in the appeals court ruling, which held that the jury might have been confused and misled by the use of the non- legal term "workplace bullying." The quote was emphasized in the court's ruling by the use of italic type.

Karl L. Mulvaney, an attorney for Raess, said the quote cited in his brief and by the court might be inaccurate, but he contended Betz used the phrase "workplace bullying incident" at least once in part of his closing argument to the jury. "Those words were used," Mulvaney said.

Read the opinion in Raess v. Doescher yourself here - the disputed italicized words, which are claimed to be based upon a misquote from Raess' attorney's brief, are found on pp. 6-7.

Posted by Marcia Oddi on Monday, January 08, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "Court battle over, garage can stay"

Updating this ILB entry from Jan. 5, the Fort Wayne News-Sentinel opines today:

When Jeff Rice finally builds his dream home to go with his much-disputed pole barn, Allen County owes him a bottle of champagne for the christening.

Odds are, Allen County will owe Rice more than the price of a bottle of champagne. But at least county government’s dead-end legal campaign to raze his pole barn is over, after the county spent more than $23,000 suing and Rice spent more than $50,000 on his defense.

Last week, the Indiana Supreme Court declined to hear Allen County’s appeal of a lower court decision that supported Rice’s right to build on his land. We won’t rehash the details of the dispute. Instead, let us stipulate (as the lawyers say) that the county and Rice have both spent too much on this wrongheaded legal attack by the county.

Now Rice says he intends to sue the county for his attorney fees and for emotional damages.

We don’t claim to be the kind of legal braniacs who’ve kept this case huffing and puffing along for more than three years. But we do have a suggestion: Wouldn’t this be a good time for county officials to make nicey-nice with Rice and negotiate a reasonable settlement outside the courts?

Posted by Marcia Oddi on Monday, January 08, 2007
Posted to Ind. App.Ct. Decisions

Environment - "Indiana's outdoors vanishing quickly"

Phil Potter of Tri-State Outdoors in the Evansville Courier & Press writes about how Indiana compares unfavorably with Illinois in "trying to provide key habitat and roaming room for critters and humans for years to come.":

llinois even works with private landowners on how to protect and manage key natural areas. The management also applies to public lands, where intensive work is done to keep ecosystems healthy.

Now let's take a peek at Indiana. According to surveys, Indiana ranks 46th in the nation for the amount of state and federal land set aside for recreation. Plus, Hoosiers are in the unenviable position of being 48th on environmental issues.

As far back as 1995, surveys showed Indiana had set aside less than 4 percent of the state's lands for conservation and recreation.

This is a slap in the face to the nearly 50 percent of Hoosiers who claim they hunt, fish or watch wildlife. If they'd speak up, the roar of disapproval would really get lawmakers' attention.

After Indiana became a major farming state, little concern was given to the accelerated demise of woods and wetlands. It has been estimated that the net loss of Hoosier forests has been 78-89 percent while wetlands have shrunk 80-87 percent.

The prairie that once started in Indiana and rolled across to Illinois is virtually extinct. Except for a sparse handful of places such as Connor Prairie, Indiana has lost at least 98 percent of these once verdant plains.

Not everyone is content to see it vanish forever. About 75 percent of all Hoosiers say they'd favor a yearly $10-$25 tax increase if that money was spent on land buying.

On a daily basis, Indiana's landscape morphs into a concrete jungle, mainly because no legislation exists to prevent urban sprawl from enveloping farm and recreational lands.

This really applies to Indianapolis. In 1968, the city was inside Marion County. Today, Marion County is Indianapolis, which is spreading into two more counties.

But not all is lost as more and more states choose to save what's left of the past to protect the future.

Indiana conservation groups, wildlife watchers, farmers, hunting clubs and interested anglers need to rally in defense of wild places and the environment.

Send petitions or visit the legislature in groups. Just do something before the land you used to live off of and enjoy becomes another highway, subdivision or shopping mall.

Posted by Marcia Oddi on Monday, January 08, 2007
Posted to Environment

Sunday, January 07, 2007

Ind. Courts - More on: Indiana Supreme Court loses case on allowing judicial candidates to express views

The Fort Wayne Journal Gazette has an editorial today supporting federal Judge Allen Sharp's ruling in Indiana Right to Life v. Shepard, which granted a permanent injunction against provisions of the Indiana Code of Judicial Conduct that prohibited state court judicial candidates from responding to a questionnaire asking their views on legal and political issues. (For background, see this ILB entry from 11/14/06.)

The editorial, titled "Removing muzzle from campaigns," reads:

A federal judge has rightly removed the muzzle that unconstitutionally restricted the free speech rights of judicial candidates campaigning for office.

The ruling by the judge, Allen Sharp of U.S. District Court, has potential to help voters become better informed about their choices when they cast ballots for judges.

But the ruling also increases the importance for candidates to be responsible in their comments and for voters to be wary of candidates pandering for “tough on crime” votes.

Sharp in November struck down Indiana ethical canons that forbid a judicial candidate from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office” and “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

Those rules effectively prohibited candidates from saying much of anything during their campaigns about their approach to justice other than to promise to be impartial. The limits make it difficult for voters to choose between judicial candidates on any basis other than name recognition.

Sharp’s ruling follows the intent of a 2002 U.S. Supreme Court decision that threw out similar guidelines in Minnesota prohibiting candidates from stating their views on disputed political and judicial issues. The Indiana Supreme Court changed some rules in light of that decision, but Sharp determined the state court did not go far enough.

Regrettably, the defendants – including Indiana Chief Justice Randall Shepard and other members of the Indiana Commission on Judicial Qualifications – are appealing the ruling. The federal judge’s decision supporting free speech rights best serves the public and should prevail.

Sharp’s ruling also implies consequences for candidates who go too far in their pre-election pronouncements. He upheld the ethical guideline stating “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” So judicial candidates still must be cautious to avoid statements that show a bias toward a particular side or face the need to recuse themselves from later cases.

The ruling came in a case filed by Indiana Right to Life, which sent questionnaires to judicial candidates asking their views on abortion and assisted suicide, among other issues. Some candidates told the organization they felt constrained by the ethical rules from answering the questions.

Significantly, Sharp also emphasized that while his ruling allows candidates to respond to such questions, it in no way requires or even encourages responses.

The ruling rightly applies free speech rights to judicial candidates and gives them more discretion in the promises and criticisms they use in campaigning. Voters may become better informed – while they make their own judgments on how candidates use that discretion.

Posted by Marcia Oddi on Sunday, January 07, 2007
Posted to Ind Fed D.Ct. Decisions | Indiana Courts

Ind. Decisions - Former East Chicago city worker loses federal suit against Mayor Pabey re political firing

Joe Carlson of the NWI Times reports today:

One year into the litigation, East Chicago has won the first of more than two dozen separate lawsuits pending against the city for alleged political firings by Mayor George Pabey's administration.

In the first judicial order in any of the cases, U.S. District Judge Philip Simon wrote that former city worker Ericka Lewis did not have a case because she could not prove that the mayor specifically knew that she opposed him in the 2004 election.

"It is not enough to show that the plaintiff was of a different political persuasion than the decision-makers," Simon wrote. "To prove that (the city was) improperly motivated by political affiliation, plaintiff must first prove that (the city) in fact knew of her affiliation."

Posted by Marcia Oddi on Sunday, January 07, 2007
Posted to Ind Fed D.Ct. Decisions

Law - Kentucky Law Blogs surveyed

Brandon Ortiz of the Lexington Herald-Leader has a good story today on the half-dozen Kentucky law blogs - note these are not "political" blogs but, like the ILB, are law blogs. Entries from two of these blogs, and I would consider them to be the leading two, have been featured frequently in the ILB (and are permanently listed in the ILB's right-hand column as resources): The Kentucky Law Blog and the Kentucky Divorce and Family Law Blog.

I recommend the story to you. In addition, both Michael Stevens, and Diana Skaggs, of the two Kentucky blogs mentioned above, have entries on their own sites today with some "behind the scenes" remarks about the Herald-Leader story.

Posted by Marcia Oddi on Sunday, January 07, 2007
Posted to General Law Related

Ind. Law - 'Where does the Indiana Constitution say that?'

I thought we'd put this old saw to bed! But the Indianapolis Star's Mary Beth Schneider writes today on the paper's front page:

Will lawmakers revolt against Gov. Mitch Daniels' privatization plans? Will cigarettes cost more? Will the Republican governor and the Democratic House speaker get along?

Those questions and others will take center stage Monday when the 115th session of the Indiana General Assembly convenes.

The session, which ends April 29, will address education, property taxes, health care and many other issues that affect every Hoosier -- their schools, their jobs and their wallets.

But only one job is a must-do, mandated by the constitution: passing a new two-year state budget.

And to ask yet again: "Where in the constitution does it say that?"

The ILB posed this question a number of times in 2005, when variations of the supposed mandate, including Pat Bauer's "That’s really our only constitutional duty,” were repeated, without question, in a number of reporters' stories.

Posted by Marcia Oddi on Sunday, January 07, 2007
Posted to Indiana Law

Saturday, January 06, 2007

Courts - Indiana appeals court now a leader in making all rulings accessible to public

Howard Bashman's commentary for Law.com this week is headlined "It's Time to Abolish 'Invisible' State Appellate Court Rulings." His column begins:

Our government, to the greatest extent practicable, should conduct its business in the open. That principle is central to the proper operation of a democracy. Yet in many state court systems, one particular class of public documents -- non-precedential appellate court rulings -- remain all but inaccessible to the general public, locked away in court filing cabinets but unavailable over the Internet, on Lexis or on Westlaw.

The time has come for state appellate courts to abolish their practice of hiding from public view the vast bulk of their rulings. In the not-too-distant past, some federal appellate courts were likewise guilty of this reprehensible practice of hiding from public view their non-precedential rulings. But then, the United States Congress passed into law the E-Government Act of 2002.

That law required all federal appellate courts to make available over the Internet not only their precedential opinions, but also their non-precedential ones. As a result, anyone with online access can now browse all federal appellate court rulings that issue each day.

Unfortunately, at the state court level, progress toward making non-precedential appellate court rulings more readily available has varied from slow to non-existent.

I strongly agree with everything Howard says in his column, with one exception. There has been progress, at least in Indiana.

Howard has forgotten that since mid-August of this year, our Indiana Court of Appeals Not-for-Publication opinions have been posted on the Indiana Courts website, alongside the for-publication opinions. (For background see this Dec. 9, 2006 ILB entry, which BTW was referenced in How Appealing and, more specifically, see this Aug. 23rd ILB entry including Chief Judge James S. Kirsch's e-mail to me announcing the policy change.)

Also, this paragraph by Howard may be true in other jurisdictions, but has never been the case in Indiana:

Judges are creatures of habit, and appellate courts' longstanding practice in general is to issue non-precedential opinions only to the parties and the trial court judge. Non-precedential rulings don't receive the time and attention that for-publication rulings get, and judges are often reluctant to facilitate access to work that is not their best. In addition, judges may be concerned that providing easy access to non-precedential rulings will encourage lawyers and litigants to cite to such decisions, in violation of state court rules that may discourage or prohibit doing so.
In Indiana, whether for publication or not, every decision issued is a full-fledged, extensively reasoned and carefully drafted, opinion. As the judges up for retention on our Court of Appeals this fall responded to an ILB question on NFP opinions:
The Court of Appeals of Indiana is one of a few intermediate appellate courts that decide every case by a full written opinion decided by a three-judge panel. You are right that there is no significant difference between an opinion that is designated for publication and one that is not. Usually, no decision is made regarding publication until after the opinion is completely drafted. This results in the quality of the not for publication opinions being substantially the same as the for publication opinions.

In some cases, we will know from the outset that a particular case will be decided by a published opinion because it clearly falls within the criteria in the rule. In other cases, the decision is made after the opinion is written and circulated to the panel. In all cases, the writing judge makes a recommendation to the other members of the panel regarding publication.

If the recommendation is to publish the opinion, the recommendation will be made by a publication memorandum setting out the reason publication is recommended with reference to the appropriate provision of App. Rule 65.

Sometimes, one of the other members of the panel will suggest publication for a case that the writing judge did not originally designate as a for publication case. We occasionally have a situation where somebody writing a dissent feels that a case should be published because of the nature of the opinion expressed in the dissent. Also on occasion, a member of the Court who is not on the panel will suggest publication. The decision to publish or not publish is made by a majority vote of the panel.

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Courts in general

Ind. Courts - "Man who spent $40,000 on lottery sues to get money back"

Cordell Eddings' story today in the Indianapolis Star includes a link to the 8-page "Plaintiff's class action complaint," a bonus that the ILB hopes the Star will continue.

The suit itself is interesting; here is the gist:

The lawsuit claims the lottery overstated the number and amount of prizes in the Cash Blast game by as much as $8 million from May 2005 to July 2006.

Frazer and Koehlinger complain that the lottery's advertising misled them into thinking the odds were on their side at the time they bought the scratch-off tickets.

"As the game wrapped up, the last 10 to 20 percent of the tickets being left, virtually all the prizes were still available," Frazer, 51, a real estate contractor, said Friday.

"And that's where a gamble becomes an investment. When you know every couple of tickets is going to be a nice winner, that's when you play hard," he said.

He said he doesn't often play lottery games. When he does, he said, he focuses on those with many prizes and few tickets remaining, winning several thousand dollars that way. "That's the way that you play the lottery when you know you can't lose," he said.

This time he lost. Confused and suspicious that there may have been a problem with the tickets, he and Koehlinger separately contacted the lottery repeatedly by phone and e-mail about their concerns, but they say they were ignored.

When the problem with the ticket printing was discovered, both men received apologies from the lottery by e-mail, but the lottery refused to refund the money they spent on tickets.

Both men say lottery officials told them that despite the defective tickets, the losses could've been coincidence. The two men weren't convinced and contacted Waples, who fought and won a case last year against Hoosier Lottery regarding a man whose winnings were not paid when he presented his ticket.

The men want a court to order the lottery to refund money to anyplayer affected by the problems in the scratch-off game and award any other appropriate compensation and attorney fees.

Frazer said he wonders, "If they did it with this game, how do we know they don't do it in other games? It's come down to a situation where, if they didn't know, they should've known."

Here is another state lottery legal story, from June 23, 2006, titled "Huge lottery payout - for lawyers."

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Indiana Courts

Environment - Another view on ethanol [Updated]

An earlier ILB entry today cited a NY Times story about how the demands of new ethanol distilleries is driving up the price of corn and thus inevitably increasing retail prices of meat, poultry and dairy products.

Today's Wall Street Journal has an equally interesting story in a column called "breakingnews.com" on page B14. It says that the way to reduce dependence on OPEC is to open up the borders to imported ethanol, rather than subsidizing U.S. ethanol production. It points out that in Brazil a gallon of ethanol made from sugar cane produces 10 times the energy needed to produce it, while in the U.S. "a gallon of soybean ethanol produces three times the energy it costs to prduce it, while corn-based ethanol makes a pathetic 1.3 times its cost of production."

[Updated 1/8/07] See this Christian Science Monitor story from 1/5/07 headlined "New prospect for US: glut of ethanol plants."

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Biotech | Environment | Environmental Issues

Law - "6 Ohio Cities Rush to File Suits Against Makers of Lead Paint" [Updated]

From today's NY Times, this story:

CINCINNATI, Jan. 5 — Racing against a proposed state law that would limit paint manufacturers’ liability for lead poisoning in aging neighborhoods, Cincinnati has joined five other Ohio cities in filing suits that seek millions of dollars from the companies to clean up lead paint.

Ohio is the latest front in a battle that pits paint companies against cities and states struggling to overcome problems associated with lead poisoning.

The problems include learning impairment in children, high blood pressure in adults and, at high levels of exposure, seizures, comas and deaths.

Municipal and county governments in California, Mississippi, Missouri, New Jersey and Texas have also sued major manufacturers seeking what would amount to billions of dollars in damages.

Whether responsibility rests primarily with paint companies, landlords who let paint deteriorate or cities that fail to enforce housing codes remains an open question.

Rhode Island broke new ground in February by winning a jury trial that found that three paint companies had created a public nuisance and had to clean up lead-paint contamination throughout the state at an estimated cost of $1.37 billion to $3.74 billion.

The companies are seeking a new trial there and trying to fend off litigation throughout the country. They are Sherwin-Williams, based in Cleveland; NL Industries, part of Valhi of Dallas and whose predecessor National Lead made Dutch Boy paint; and Millennium Holdings of Hunt Valley, Md., a successor to a company that owned Glidden Paint, originally based in Cleveland.

“The movement is gaining steam,” Jack McConnell, the lead lawyer in the Ohio lawsuits and a participant in the Rhode Island trial, said. “We’ve seen it both in the Rhode Island trial and in three or four appellate court decisions, all of which have ruled against the lead-paint industry.” * * *

In Ohio, Gov. Bob Taft decided on Friday to allow a bill to become law without his signature that will ban future suits like those filed by the cities that are based on public nuisance grounds. Plaintiffs will instead have to rely on product liability law, which requires proof linking lead paint in a given home to a specific manufacturer. Noneconomic damages, including punitive damages, will be capped at $5,000 a consumer, instead of being unlimited. Mr. Taft said that provision prevented him from signing the bill because the cap was too low.

See this April 2nd, 2006 ILB entry on "How paint companies [in Rhode Island] lost a multi-billion dollar lead paint suit."

[Updated 1/7/07] Here is an earlier article from the Cincinnati Enquirer that I had misplaced, dated 12/27/06, written by Sharon Coolidge. Some quotes:

Paint manufacturers should pay to clean up the thousands of Cincinnati properties with peeling paint filled with toxic lead particles, city officials say.

The city filed a lawsuit this week against nine paint manufacturers - including Cleveland-based Sherwin Williams - asking that the companies be required to clean up all lead hazards in properties in the city, pay for a public awareness campaign about lead's dangers and repay the city for years of testing and investigating lead hazards. * * *

The paint manufacturers are fighting back.

Sherwin-Williams filed a lawsuit in U.S. District Court in Columbus last fall against several cities, including Cincinnati, claiming the plaintiffs conspired with lawyers who want to fleece the company.

The company argues that property owners, not the manufacturer, should be held liable for lead hazards. * * *

The suit comes a week after the legislature moved to curb product liability lawsuits.

Senate Bill 117 caps non-economic damages for lawsuits brought under the Consumer Sales Practices Act at $5,000 and extends protection to manufacturers of lead-based paint. The bill is now under review by Gov. Bob Taft. It would not affect lawsuits already filed.

"The legislative maneuvering and Sherwin-Williams' pending lawsuit ... does little to solve our common problem: the health of Ohio's children," Mallory wrote Tuesday in a letter to the paint manufacturers. "The citizens of Ohio and Cincinnati deserve better. The city of Cincinnati has no choice but to file a lawsuit now to preserve its ability to address the public health crisis caused by lead poisoning."

Canton filed a similar suit in Stark County Common Pleas Court on Thursday.

Cincinnati and Canton follow Columbus, East Cleveland, Lancaster and Toledo in filing civil suits to hold paint manufacturers liable for damages.

Earlier this year, a Rhode Island jury found Sherwin-Williams, NL Industries and Millennium Holdings liable for creating a public nuisance by manufacturing and selling a toxic product.

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to General Law Related

Ind. Courts - "Newbie slips on robe, takes bench for first time"

Don't blame me, that is the headline today in the Marion Chronicle Tribune. The subhead to the story by Barry William Walsh reads: "Judge Spitzer presides over first hearing Friday in Grant County Courthouse." It begins:

"I still haven't brought myself to introduce myself as Judge Spitzer. On the phone, it's always just Mark," Spitzer said, relaxing behind one of the lawyer's tables in the Grant Circuit courtroom Friday afternoon. "For a while, if somebody said judge, I'd be looking around to see who they were talking to."

Adjusting to being addressed as "Judge Spitzer" or "your honor" is just one of the many adjustments that Spitzer, 41, had to make during his first week in office. Spitzer, who was sworn into office on Monday, replaced Judge Thomas Hunt, who retired after 26 years.

"It's definitely a different feeling," Spitzer said. "I had a significant amount of courtroom experience. You are always the advocate as the attorney, but as the judge, you are supposed to be impartial and make decisions based on what the law says."

Spitzer, who spent 16 years as an attorney working at Spitzer, Herriman, Stephenson, Holderead, Musser & Conner, said his first court hearing proved to be the tipping point from attorney to judge.

"The first time you put on the robe and walk into the courtroom and see people sitting at the counsel table and waiting for you to resolve (their problems) one way or another ... that's when it really hit," Spitzer said. "... You are making a decision that you are hoping is going to be the right one."

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Indiana Courts

Ind. Law - "Sporting an Indianapolis Colts bib with her hot-pink sleeper, newborn Anne Therese Felts left Riley Children's Hospital on Friday"

Updating this ILB entry from Thursday, headed "Two Indianapolis attorneys' new baby is a tiny miracle," the Indianapolis Star has a story today by T.J. Banes, reporting on the happy, continued progress of baby Anne Therese Felts, new daughter of Indianapolis attorneys Chris and Paje Felts.

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Indiana Law

Ind. Courts - "Porter's public defenders overwhelmed"

So reports Robyn Monaghan of the NWI Times, in a story that begins:

VALPARAISO | Beneath the rows of digits on Porter County Public Defender Kathy Evan's caseload report is a bright blue Post-It note.

"HELP!" is written on it in huge hand-written print.

The numbers show that Evans handled more than 1,200 juvenile status hearings in 2005 -- about six times the 200 recommended by American Bar Association standards.

Despite her SOS, Evans won't be getting help from the County Council -- at least until next year. The council last week turned down Chief Public Defender James Tsoutsouris' request for a $25,000 salary to add another attorney to his staff of 12 mostly part-time attorneys. They commonly juggle twice the number of cases recommended in American Bar Association caseload standards.

A new opinion on public defender caseloads issued by the American Bar Association's Ethics Committee last spring compels public defenders and department supervisors to turn down appointments if they know they have too many cases to prepare an adequate defense.

Tsoutsouris is worried the county might be leaving itself open to lawsuits from defendants who claim their court-appointed attorney had too many cases to prepare an effective defense. In Clark County, Calif., a court held the county responsible for assigning inexperienced and untrained lawyers to capital offenses. It might put Tsoutsouris in the hot seat, as well, leaving him open to litigation for knowingly allowing his staff to accept more cases than it can handle.

Larry Landis, executive director of the Indiana Public Defender's Council, sees the ABA case control opinion as a "major milestone in the evolution of right to council." It could be enforced through a decision by the state Supreme Court, he said.

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Indiana Courts

Ind. Courts - "Former Clay Circuit Court Judge Pell honored by County Commissioners"

Jason Jacobs of the Brazil Times writes:

Last Friday Clay County Commissioners presented former Clay County Circuit Court Judge Bob Pell with the first-ever Service of Distinction Award.

The award honors Pell for all the work he has done for Clay County, both professionally and in community service.

Pell is so respected in the community and among his peers that during the swearing in ceremony at the Clay County Courthouse on Sunday, he received a standing ovation from those in attendance.

“It was very gratifying and heartwarming to receive the award and the ovation, especially with everyone from the courthouse there to share the honor with me,” Pell said.

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Indiana Courts

Ind. Decisions - Still more on the voter ID ruling by the 7th Circuit

Law prof. Rick Hasen of the Election Law Blog had an entry yesterday headed "Initial Thoughts on the Seventh Circuit Indiana Voter Identification Decision." He starts with:

I just want to throw out a few initial reflections here that I don't think have been aired yet: (1.) In the face of little evidence of either voter fraud or voter burden, does resolution of this case turn on whether the judge is a Democrat or a Republican? * * *
Law prof. Eugene Volokh's blog, the Volokh Conspiracy had this long post Thursday, followed by many comments, and another today.

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Ind. (7th Cir.) Decisions

Environment - Ethanol, CAFOs, and Insurance

Ethanol. "Rise in Ethanol Raises Concerns About Corn as a Food" is the title of an important story in yesterday's NY Times by Alexei Barrionuevo that looks at the growth of ethanol plants and some of the world-wide economic implications, including increased retail prices of meat, poultry and dairy products.prices.

CAFOs. There have been several CAFO stories recently:

"Steuben dairy farm faces EPA sanctions" is the headline to a story from Friday by Kara Lopp that begins:

A Steuben County dairy has been found in violation of numerous environmental standards, including allowing illegal waste discharges, a report from the Environmental Protection Agency said.

At DeJong Dairy Leasing LLC, 5409 E. Ray Clark Road, outside Fremont in northern Steuben County, inspectors found farmworkers had the ability to discharge wastewater from a pond on the property into the County Road 550 East ditch, located about a half-mile from the farm. The ditch flows into Pigeon Creek, which is a tributary to the Pigeon River and the St. Joseph River, which flows to Lake Michigan.

During the inspection, a verbal agreement with the dairy’s owner was made to permanently plug the drain tile outlet from the pond.

The 39-acre, 900-cattle dairy was inspected Oct. 19 by officials from the U.S. EPA and the Indiana Department of Environmental Management, the report said.

The dairy is owned by Vreba-Hoff Dairy Development, LLC, based in Wauseon, Ohio.

Local operator Simon DeJong, who moved to Steuben County from the Netherlands, declined to comment Thursday, saying he hadn’t received a copy of the report.

The farm received county approval in June 2005 to expand from about 550 cattle to 900. A request to bump that number up to 1,200 was denied last year by the county commissioners.

Inspectors also found the dairy couldn’t properly inspect manure storage areas because depth markers used to judge when the waste is in danger of running off were never installed.

Here is an EPA press release on De Jong Dairy LLC Fremont, Ind.

From Friday's Gary Post Tribune, a story by Carrie Napoleon that begins:

Despite strong protest from nearby residents, Wolf Creek Calf Co. was given permission to proceed with plans to convert the Schuringa Poultry Farm into a 10,000-head calf farm.

The special exception was approved with conditions 4-1 by Jasper County officials at a Board of Zoning Appeals meeting before about 250 residents last week. Board member Michael Kozuch, a Wheatfield resident, voted against the measure.

"They had several qualifications they placed," Donald Shelmon, attorney for Wolf Creek, said Wednesday.

Among the conditions the board required was limiting the number of calves allowed in hutches outside the existing barns at the site, he said.

The property can have a maximum of 3,000 hutches for the calves.

A hutch is about 5-feet by 10- feet and is for one calf. The remainder of the animals must be housed in the barn.

Shelmon said his clients had originally planned for about 8,000 hutches. The hutches enable workers to provide one- on-one attention to the animals and better care for and managing the herd.

All of the calves housed at the property will be a couple days old to 90 days old.

"The more huts you have, the better the survival rate," Shelmon said.

Board member John Korniak said Thursday the conditions were put in place to help ease resident concerns.

He said he expected the calf farm would not be much different than the chicken farm, which has been operating for almost 40 years.

"I don't think people will see a change whatsoever," Korniak said. "It's surrounded by trees. They are not building any new buildings. There's going to be more screening planted on the west side of those buildings."

Korniak said he does not expect the calf farm to affect the value or desirability of homes in the area because the existing chicken farm did not.

He said people have to understand this is a farming community.

"If people want to live in farming communities, they will have to put up with a little bit of farming, be it crops or livestock," he said.

Environmental Insurance. This story by Joe Carlson in today's NWI Times is worthy of note:
Melody Cleaners, facing orders to remove groundwater pollution on four properties in East Chicago and Hammond, is suing to force its insurer to pay for the cleanup.

The retail dry cleaning company must remove the toxic chemical "perc" from the ground around its four stores following discovery of the chemical in 2004. The chemical "migrated" to a neighboring property in at least one case, state environmental spokeswoman Amy Hartsock said.

Perc is the common name for perchloroethylene, a suspected carcinogen that breaks down into an even more dangerous chemical over time, Hammond Environmental Director Ron Novak said.

"This is a dangerous substance. It needs to be handled carefully. You don't want it in your groundwater," Novak said.

Drinking water in Hammond and East Chicago comes from Lake Michigan, not wells, but the chemical could find its way into residential drainage systems if not removed, Novak said.

The owners of Melody Cleaners reported the contamination to the state Department of Environmental Management. The company claims the Peoria-based insurer should pick up the cost to remediate the land.

Melody filed a civil lawsuit in U.S. District Court in Hammond against Argonaut Great Central Insurance Co. of Peoria, which issued several insurance policies to Melody between 1988 and 1995. A spokeswoman for Argonaut declined to comment.

Filings in the lawsuit state that the company's policy typically only covers the costs of environmental cleanup if the chemicals were released by a natural act, such as fire, lightning, sinkholes or vandalism. The policy was limited to $10,000 in damages.

But Novak said that type of argument may not fly in Indiana, which has the nation's strictest laws to hold insurers liable for environmental cleanup costs.

"These pollution-exclusion things can be cut through very easily by an attorney who knows the law in Indiana," Novak said.

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Environment

Ind. Courts Update on "Montgomery County judges issue mandate for staff raises"

The Paper of Montgomery County's Web site had a report Thursday by Barry Lewis:

The wheels of justice continue to churn - albeit slowly - in the Judges Salary Mandate case.

According to Dan Taylor, lawyer for the Montgomery County Council, the county will file its first brief with the Indiana Supreme Court today. The judge's legal counsel will then have 30 days to respond and that will be followed by a 15-day period when the county will have a chance to send a reply brief.

If that timetable is followed, it could be sometime in February before all the briefs are filed. Following that, the Supreme Court could rule, send the two sides to mediation or schedule oral arguments.

In a December County Council meeting, Taylor said it could be June or July before the case is settled.

The mandate ordered increases for all nine court employees in August of 2005. The mandate is seeking pay increases of $31,200 for court reporters (up from $23,638), $31,200 for administrative assistants (up from $21,068) and $27,200 for secretaries and bailiffs (up from $19,142).

Should Ridlen's ruling stand, the county would be looking at a little more than $170,000 in back pay since the judges argued the mandate was retroactive to the date it was filed (Aug. 16, 2005) and would also face having to pay combined legal fees which are well above $100,000.

The ILB has had a number of entries on this mandate case - see the list here.

Posted by Marcia Oddi on Saturday, January 06, 2007
Posted to Indiana Courts

Friday, January 05, 2007

Ind. Decisions - Transfer list for week ending January 5, 2007

Here is the Indiana Supreme Court's transfer list for the week ending January 5, 2007.

Nearly three 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.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access the list here. (With luck, will be updated shortly.)

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court issues one today

In J.D. v. State of Indiana, a 7-page, 5-0 opinion, Justice Dickson writes:

In appealing the trial court judgment adjudicating her to be a delinquent child for com-mitting disorderly conduct, a class B misdemeanor when committed by an adult, J.D. asserts that her conduct was an exercise of free speech protected by the Indiana Constitution, that the trial court should not have admitted evidence of her statements, which were made without Miranda warnings, and that the trial court's dispositional order was excessively harsh. Conclud-ing that J.D. was engaged in protected political speech, the Court of Appeals reversed. J.D. v. State, 841 N.E.2d 204, 209-10 (Ind. Ct. App. 2006). We grant transfer and affirm the trial court.

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Loren Cooper, Brenda Cooper, et al v. Town of Van Buren (NFP) - "On appeal, the Town argues that the Coopers failed to file their Notice of Tort Claim within the required time. In response, the Coopers contend that they did not discover that the Town was responsible until June 25, 2001, and therefore, their claim did not accrue until that time. The parties agree that the Coopers filed their Notice on November 9, 2001. * * * We conclude that the Coopers’ own statements support the reasonable inference that their claims accrued more than 180 days prior to their filing a Notice of Tort Claim."

NFP criminal opinions today (0) (link to cases):

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to Ind. App.Ct. Decisions

Law - Bush signing statement on postal bill seems to defeat its purpose

The ILB has posted a number of entries dealing with Presidential signing statements - here is a list of some/most of them.

A Washington Post story this morning reported:

President Bush signed a little-noticed statement last month asserting the authority to open U.S. mail without judicial warrants in emergencies or foreign intelligence cases, prompting warnings yesterday from Democrats and privacy advocates that the administration is attempting to circumvent legal restrictions on its powers.

A "signing statement" attached to a postal reform bill on Dec. 20 says the Bush administration "shall construe" a section of that law to allow the opening of sealed mail to protect life, guard against hazardous materials or conduct "physical searches specifically authorized by law for foreign intelligence collection." * * *

A White House official, who was not authorized to speak on the record, said the signing statement, first revealed by the New York Daily News, was intended only to make clear that the new law would not limit the ability of the president or attorney general to open mail under emergency provisions of the 1978 Foreign Intelligence Surveillance Act, which governs spying in the United States. That law allows authorities to conduct searches and surveillance without warrants in emergency situations, although they must apply for a warrant later.

"The point was that because Congress was passing this anew, the concern was that there would be some confusion," the official said. "The law that's been around since 1978 still allows you to conduct warrantless physical searches under some circumstances, and nothing changes that authority."

The debate over the signing statement comes after disclosures over the past year that Bush authorized a program that allows the National Security Agency to monitor telephone and e-mail communications between the United States and other countrieswithout court oversight. The administration has strongly defended the legality of the NSA spying program, arguing that Congress authorized it as part of the war on al-Qaeda and, even if it had not, that the president has the power to order such surveillance.

In addition to searching for a bomb or other hazardous device, postal officials are legally allowed to open letters that cannot be delivered as addressed, but only to find a correct destination for the parcel. The FBI and other law enforcement agencies are also allowed to obtain authority from postal inspectors to track mail without opening it.

The latest statement caused a small ruckus on Capitol Hill yesterday just as Democrats were taking control of Congress. Charles E. Schumer (D-N.Y.), a member of the Senate Judiciary Committee, called the statement a "last-minute, irregular and unauthorized reinterpretation of a duly passed law."

Sharp limits have been placed on the government's power to open mail since the 1970s, when a congressional committee investigating abuses found that, for three decades, the CIA and FBI had illegally opened hundreds of thousands of pieces of U.S. mail. Among the targets were "large numbers of American dissidents, including those who challenged the condition of racial minorities and those who opposed the war in Vietnam," according to a report by the Senate panel, known as the Church committee. Also surveilled was "the mail of Senators, Congressmen, journalists, businessmen, and even a Presidential candidate," the report said.

Here is a link to the signing statement.

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to General Law Related

Ind. Decisions - Still more on: Appeals court to hear Lawrence utilities case

This ILB entry from Dec. 13th quoted an Indianapolis Star story that included this:

A controversial water company deal that prompted a federal investigation and left Lawrence residents paying some of the highest rates in the metro area appeared to be nearing an end Tuesday.

As the FBI closed its investigation without charges, Lawrence and Citizens Gas & Coke Utility officials announced they want to form a public charitable trust that would own and operate Lawrence's water and sewer utilities.

Today Kevin Corcoran of the Star reports in a story that begins:
A judge Thursday approved the sale of Lawrence's waterworks to a charitable trust, but the settlement is drawing fire from enough City Council members to block the deal.

A majority of council members say they would support hiring an appraiser to value the water and sewer assets in an effort to determine whether the $51.3 million purchase offer is fair. That's required by law before a sale can occur.

So is an affirmative vote by two-thirds of the council. And some council members say they want to examine other options before transferring ownership of the city's largest assets to a nonprofit operator.

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to Ind. App.Ct. Decisions

Courts - "Running for Judge" becomes a book title

Over the past few years, the ILB has posted a number of entries with a title that begins "Running for judge," followed by the locality, such as "Running for judge in Kentucky," etc. Here is a list (albeit with a few extraneous entries). Most of these entries deal with the impact of the Supreme Court's 2002 decision in Republican Party v. White upon judicial elections.

Professor Rick Hasen has now announced on his Election Law Blog, the publication of a forthcoming NYU Press book, titled Running for Judge (Matthew Streb ed., forthcoming April 2007), and I can't wait to read it. Hasen himself has contributed a chapter to the book, titled "First Amendment Limits on Regulating Judicial Campaigns." You may read the absract of the chapter and/or download the chapter in its entirety here.

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to Courts in general

Ind. Decisions - "Court battle over, garage can stay"

"Court battle over, garage can stay: Indiana Supreme Court turns down case, appeals court ruling stands" is the headline to this just posted story from the Fort Wayne News Sentinel, written by Ryan Lengerich. The ILB has posted a number of entries on this case, access the list here.

From today's story:

The pole barn, detached garage – whatever it’s called – can stay.

Jeff Rice can build his dream home.

A more-than-three-year battle between Rice and the Allen County Plan Commission ended – mostly – Thursday when the Indiana Supreme Court announced it would not consider the county’s appeal to have the garage torn down. The decision means Rice can keep his 3,600-square-foot garage at 11915 Auburn Road and build his $225,000 dream home as well.

“I am very happy that we won,” Rice said. “The ruling that we had today, it shows the plan commission had no case against us.”

That’s what the Supreme Court judges found unanimously, as well. The plan commission must now approve the Rices’ development plan for the house and garage at its Jan. 29 meeting, said Jim Federoff, the Fort Wayne-based attorney for Rice.

Robert W. Eherenman, the Haller & Colvin attorney on retainer for the plan commission, did not return calls placed to his office Thursday. * * *

The county has paid Haller & Colvin $23,320 for 170 hours of work related to the case since July 2004, based on documents from the Allen County Auditor’s Office.

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on the voter ID ruling by the 7th Circuit

Theodore Kim of the Indianapolis Star has this story today. Some quotes:

A federal appeals court on Thursday found little evidence that Indiana's photo ID law has posed a problem for voters at the polls, a decision that could help shape similar laws in other states.

Passed by the Republican-controlled General Assembly in 2005, the law requires voters to present a government-issued photo ID before they can vote.

In its 2-1 decision, the 7th U.S. Circuit Court of Appeals in Chicago said the plaintiffs, who included Indiana Democrats and civil liberties activists, failed to demonstrate that the law hindered voting. The court also concluded the law protects the state against voter fraud, an argument made by Indiana Secretary of State Todd Rokita.

"There is not a single plaintiff who intends not to vote because of the new law," Judge Richard Posner wrote for the three-judge panel that heard the case. * * *

An April ruling by U.S. District Judge Sarah Evans Barker had upheld the Indiana law.

Kenneth Falk, legal director for the American Civil Liberties Union of Indiana, one of the plaintiffs, said they soon would decide whether to ask the court for a rehearing. They have 14 days to do so.

"We believe the justices certainly had evidence that there were quantifiable instances of impingement," Falk said.

Rokita characterized the decision as "a victory for Hoosier voters and for election reform across the country."

Falk predicted the decision could have a ripple effect in states such as Arizona, Georgia and Missouri, where lower courts have rejected comparable laws as unconstitutional.

Deanna Martin of the AP has a report in the LCJ that concludes: "Ken Falk, legal director of the ACLU of Indiana, said he will recommend his clients request a rehearing before the entire 7th Circuit."

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: "University of Saint Francis has begun exploring the possibility of opening a law school"

Supplementing yesterday's story from the News-Sentinel, the Fort Wayne Journal Gazette has a story today by Krista J. Stockman headed "Saint Francis studies law school: Program could start in 2010 if committee finds plan feasible." Some quotes:

Opening a law school in Fort Wayne would certainly be convenient for those living in the area, said Maclyn Parker, a partner with Baker & Daniels and a member of the committee. The only law schools in Indiana are at the University of Notre Dame, Valparaiso University, Indiana University and Indiana University-Purdue University Indianapolis.

“The nearest law school (now) would be Notre Dame or Valparaiso,” he said. “I don’t believe Indiana compared to other states has nearly the number of schools as other states do.”

Ohio and Illinois each have nine law schools while Michigan has six.

There is not a shortage of lawyers in the area, Parker said, but having a law school in Fort Wayne could keep more graduates in northeast Indiana.

Mitch Harper of Fort Wayne Observed also had a post on the proposed new school yesterday - access it here.

A couple of intereesting, and perhaps somewhat related, facts:

(1.) The most recent (Dec. 2006) issue of Res Gestae has several interesting articles by Bill Brooks on the Annual Meeting of the ISBA. The writeup of "Res Gestae and the Practice of Law: 50 Amazing Years" makes me wish there was a podcast of the session available. It begins:

Fifty years ago, students paid $300 a year in tuition and fees to attend Indiana University School of Law. That number rose to $840 a year by 1976 -- but has skyrocketed to $12,480 a year today.
(For what it's worth, my tuition and fees were less than $500 per year , but it seemed like a lot at the time.)

(2.) Each year U.S. News puts out a list of "the top 100 law schools", as determined by U.S. News. Tiers 1 and 2 are ranked, leading to much anxiety every year. (See, for example, this ILB entry.) In this most recent list, IU Bloomington is #37, IU-Indianapolis is #77. Notre Dame is #22.

Law schools from 101 to approximately 200 are also listed: Tier 3 and Tier 4 are not ordered by rank, but alphabetically within the tier. Valparaiso is in Tier 4. You will recognize the names of many of the Tiers 3 and 4 schools.

(3.) How many law schools are there in the U.S? According to this ABA site: "As of December 2006, a total of 195 institutions are approved by the American Bar Association."

The ABA site also shows the number of law schools by region. In the Great Lakes Region: Wisconsin has 2, Minnesota has 4 (note that many pinheads identify more than one school), Indiana has 4, Michigan has 6, Illinois has 9, and Ohio has 9.

Posted by Marcia Oddi on Friday, January 05, 2007
Posted to Indiana Law

Thursday, January 04, 2007

Courts - "States Letting Lawyers Provide 'A La Carte' Menu of Legal Services"

Unbundled legal services are coming to some states, according to this lengthy AP story by Katharine Webster. Some quotes:

[S]tarting in 1999 with Colorado, states began adopting rules allowing lawyers to provide a menu of limited legal services to people who can't afford an attorney from soup to nuts. Maine, New Hampshire, California and Florida are among them, and most other states are considering such rules.

The change is driven partly by judges and bar associations trying to help the overwhelming number of people representing themselves in court, or appearing pro se.

"It's a response to the pro se dilemma throughout the country: Let's try to get you some help when you need it, when you want it and in a manner that you can afford," said John Norton, a Keene, N.H., attorney who worked on his state's new rules and corresponding ethics rules for lawyers.

About 70 percent of family law cases in Maine and New Hampshire involve at least one person without a lawyer, court officials and lawyers say. The National Center for State Courts says there are no national statistics, but some states and other jurisdictions report comparable numbers, especially in family law and probate cases.

Consumers also are able to get more legal information online, while lawyers are facing the fact that most potential clients can't afford a full-service divorce, said Jeanne Charn, a senior lecturer at Harvard Law School who advises the American Bar Association's Committee on the Delivery of Legal Services.

Starting in the mid-1990s, courts began responding. They put forms and rules in plain English and online; set up self-help centers at courthouses; and hired mediators, neutral evaluators or case managers to guide people. Lawyers adapted.

"One of the things lawyers began to offer was, 'We'll help you with your issues, we'll help you decide, we'll prepare you, we'll go to court with you if you want.' But they broke it down into discreet fees for each service," Charn said. "In some sense, it's a consumer-oriented movement." * * *

New Hampshire's rules took effect July 1 and apply to all civil cases. Even at the state Supreme Court, 25 percent to 30 percent of appeals are filed by nonlawyers, Associate Justice James Duggan said. Most are in landlord-tenant actions, small-claims cases, petitions filed by prisoners and post-divorce disputes.

"A lot of them are handwritten. I mean, people do the best they can, but our concern is people may have a good issue and they don't raise it," Duggan said. "What we hope is those people who are representing themselves will go to a lawyer to help them with a significant piece of the litigation, and that will help the courts."

The new rules also protect lawyers, said Amherst, N.H., attorney Honey Hastings. If a lawyer starts a full-service divorce and the client runs out of money, the lawyer has to get a judge's permission to withdraw if the client objects.

Now lawyers and clients can sign a contract specifying exactly what they will and won't do and how much it will cost. If the client stops paying, the lawyer can stop working.

"Before, if the client stopped paying you -- and they might be into you for thousands of dollars -- you might not be able to get out of the case," Hastings said. "It made lawyers say, 'I'm not going to take a case,' or, 'I'm going to have to charge more money,' and I think that priced some people out."

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Courts in general

Ind. Decisions - Two from 7th Circuit, including voter ID

In Crawford, William v. Rokita, Todd (SD Ind., Judge Barker), a 2-1, 15-page opinion, the 7th Circuit upholds Indiana's voter ID law. Judge Posner writes:

Perhaps the Indiana law can be improved—what can’t be?—but the details for regulating elections must be left to the states, pursuant to Article I, section 4, of the Constitution, which provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.” “To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes. The Constitution does not require that result, for it is beyond question ‘that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.’ ” [citations omitted]

Judge Sykes concurs.
Judge Evans' dissent begins: Let’s not beat around the bush: The Indiana voter photo ID law is a not-toothinly- veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic. We should subject this law to strict scrutiny—or at least, in the wake of Burdick v. Takushi, 504 U.S. 428 (1992), something akin to “strict scrutiny light”—and strike it down as an undue burden on the fundamental right to vote.

In K., Farzana v. IN Dept Educ Munster (ND Ind., Judge Lozano), an 8-page opinion, Chief Judge Easterbrook concludes:
Rule 5(e) will serve its function best if “proper form” covers all matters regulated by the rules of procedure. Clerks thus must take in whatever is tendered to them; a document may be rejected later if a judicial officer finds a problem, but the initial filing ensures that the process of vetting papers for compliance with the rules does not prevent satisfaction of time limits. An e-filing system likewise must accept every document tendered for filing; it cannot reject any paper that the clerk must accept.

Long before Rule 5(e) was amended to limit the clerk’s power to reject documents tendered for filing, the Supreme Court held that a complaint (actually) filed in the wrong court generally satisfies a federal statute of limitations, provided that suit is re-filed in the right court promptly after the misadventure in the wrong forum ends. See Burnett v. New York Central R.R., 380 U.S. 424 (1965); Herb v. Pitcairn, 325 U.S. 99 (1945). These decisions are not directly applicable; recall that we have been proceeding on the assumption that state rather than federal law supplies the period of limitations. Still, it would be odd if Rule 5(e), a part of federal law that governs how to file even when the time to file comes from state law, were deemed less favorable to plaintiffs than Burnett and Herb.

Counsel tendered a complaint for filing on July 6; it should have been accepted even though its deficiencies required amendment to show that a new suit was being initiated. Because the complaint was timely, and verification is unnecessary, the district court’s judgment is vacated and the case remanded for decision on the merits.

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "University of Saint Francis has begun exploring the possibility of opening a law school"

Nichole Lee of the Fort Wayne New-Sentinel reports today:

It’s still early in the process, but the University of Saint Francis has begun exploring the possibility of opening a law school. A task force comprising Saint Francis personnel, judges, lawyers and community members was formed in December, and the group plans to submit a feasibility report in May to USF President Sister M. Elise Kriss, according to spokeswoman Jan Miller.

A law school at Saint Francis would be the first in northeast Indiana.

“The university is always exploring potential for new programs, especially those that can be of service to the community,” said Dr. Dominic Aquila, task force chair and dean of the university’s School of Liberal Arts. “A law degree is among many of the ideas currently under consideration.” Miller said Kriss was unavailable for comment.

A law school in Fort Wayne would increase the available pool of talent for local firms, said Cindy A. Wolfer, president of the Allen County Bar Association and a lawyer at Rothberg Logan & Warsco in Fort Wayne.

Though she is not on the task force, Wolfer said residents wanting to pursue a law degree but who can’t afford to commute to other parts of the state would greatly benefit if Saint Francis moves forward.

“It could be helpful to students who want to live at home and go to law school,” she said, adding that the bar association has 15 to 20 student members. The bar association has some 750 members overall. * * *

The University of Notre Dame in South Bend, Valparaiso University in Valparaiso and the Bloomington and Indianapolis campuses of Indiana University currently operate the only law schools in the state.

This is a proposal for a private law school. See this ILB entry from Dec. 25, 2005, titled "Idea that landed with biggest thud of the year," for discussion of Indiana State University's efforts in 2005 for another publicly-funded law school.

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Indiana Law

Ind. Courts - Newly elected Lawrence County prosecutor Michelle Woodward

Diana Wires of the Bedford Times-Mail reports:

Newly elected prosecutor Michelle Woodward has had a year of experience in the prosecutor’s office, but Tuesday marked her first official day of leading that office.
“I am a hard worker and I have been the past year,” the newly elected prosecutor said. “I will do the best I can do.”

One change Woodward will notice is a switch of courts. As a deputy prosecutor, she covered the majority of cases in Lawrence Superior Court I. Now she will transfer to Lawrence Circuit Court. As of Friday, she will be working both jobs until another deputy prosecutor will be hired.

Woodward already has her sights set on the biggest problems in the county: drunken drivers, bad checks and battery cases. * * *

Woodward was very thankful of Callahan for allowing her to work in the office for the past year, making this transition smoother. Previously, she was a public defender for nine years.

“I think it will feel a little bit different in the whole office, but not that different,” Woodward said on Friday.

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Indiana Courts

Ind. Courts - Hamilton County's new Superior Court 6 opens for business today [Updated]

From a story by Katie Merlie in the Topics:

NOBLESVILLE -- Cases will start being assigned to Hamilton County's new court, Superior 6, today.

Judge Gail Bardach, who won the November election for the bench and who will be sworn in today, said she's ready for cases to come across her desk.

"We could have hearings on Jan. 2 (today)," Bardach said Thursday after attending the swearing-in ceremony of Paul Felix, who succeeds her as judge of the Carmel City Court. Bardach had a year left on her term. She had been city court judge since 1993.

Court administrator Ollie Schierholz, who handles administrative tasks for judges as well as the Prosecutor's and Clerk's offices, said a wide variety of cases will be heard in Superior Court 6. They can include small claims, misdemeanors, divorces, collections and traffic tickets. "They can hear anything, even murder trials," Schierholz said. * * *

[Judge Bardach] joins Superior Court Judges Steve Nation, Daniel Pfleging, William Hughes, J. Richard Campbell and Wayne Sturtevant and Circuit Court Judge Judith Proffitt.

[Updated 7:00 PM] Here is another story, this one from the Noblesville Daily Times, reported by Jonathan Babalola:
As the county’s newest judge settles into her position, Gail Bardach said she is ready to make her mark on the county’s newest court.

Bardach was elected two months ago to preside over Hamilton County Superior Court 6 — which opened Tuesday — and the former Carmel City Court judge said it is a transition that she is prepared for.

“I worked long days in Carmel, and I will work longer hours here,” said Bardach, as she sat in her spacious office in the Hamilton County Government & Judicial Center. “But it’s all part of the job. … I understand that, and I look forward to the challenge.”

She said she has two-thirds of her staff completed — with the rest to be hired in the next week or so – and with cases being assigned and a full session of night court slated Jan. 10, the judge said things are moving quickly. “We’re making all the adjustments, creating the new court and keeping busy,” Bardach said.

Bardach said her court will work in tandem with Superior Courts 4 and 5 and take some of the county’s caseload. Superior Court 6 will take over a third of Class D felonies (the lowest class of felonies), a third of criminal misdemeanor cases, a third of the traffic cases, a third of the small claims cases, all of the protective orders and various civil cases, according to the judge.

“I’ve had the benefit of experience with almost 14 years (as a city judge) with some of the same kind of cases,” Bardach said. “I’ve done criminal misdemeanors and traffic infractions, so some of the cases I’ve had before, and some will be new, so it’s all part of the broader experience as a county judge.”

Bardach also pointed out in her new position she will be one of a collection of seven – as opposed to her tenure as Carmel judge where she flew solo. She added the other judges have treated her well in the short time she has been in the position.

“(As a city judge) I didn’t have other people who I could consult with on a regular basis,” Bardach said. “Here, I’m one of seven and the other six judges have been extremely helpful and extremely generous with advice, so that’s important and it’s a big benefit to have.”

The other judges are confident she will fit right in. “We help each other regardless of whether the judge is new or not,” said Judge William Hughes, who presides over Superior Court 3. “But we’ve had several conversations with Judge Bardach, and we think she’ll do just fine. We look forward to working with her.”

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Indiana Courts

Ind. Courts - Steuben Courthouse to ban cells in court [Updated]

Kara Lopp of the Fort Wayne Journal Gazette reports today:

The ban, which starts Wednesday, comes in response to the misuse of a cell phone during a private juvenile hearing about two weeks ago in the county’s Circuit Court. Cameras and other recording devices will also be banned.

Circuit Court Judge Allen Wheat and Superior Judge William Fee will enact the policy and have asked county commissioners to pass an ordinance similar to the one that bans weapons, including pocket knives, from the Courthouse.

Courthouse employees and attorneys will not be under the ban. Other county employees will have to remember to leave their cell phones behind when they enter the building, Wheat said.

Unauthorized people caught with a cell phone in the Courthouse can be arrested and charged with contempt of court. But most likely, both Wheat and Fee said the phones will be confiscated at the door by Courthouse security officers and returned when residents leave.

A possible problem was first realized about two weeks ago, when Wheat was presiding over a private hearing, which involved a neglected and abused child victim. A member of Wheat’s court staff received a call from someone in LaGrange County who had received a phone call and could hear the court proceedings.

Wheat declined to identify the caller or who made the call. No charges will be filed in the matter, he said.

Although they don’t know whether the call was an accident or had malicious intentions, the judges said the notion that private hearings could no longer be private scared them into adopting the policy.

[Updated 2:15 PM] The AP has now picked up this story, with a report that begins:
ANGOLA - Judges have decided to ban cell phones, cameras and other recording devices from the Steuben County Courthouse after someone was able to hear a juvenile court proceeding during a cell phone call.

Steuben Circuit Judge Allen Wheat and Superior Court Judge William Fee announced Wednesday that the electronic devices would no longer be permitted in the courthouse as of Jan. 10.

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Indiana Courts

Ind. Law - Two Indianapolis attorneys' new baby is a tiny miracle

"Rare surgery renders a tiny miracle: Riley surgeons remove life-threatening tumor from infant's heart a day after her birth" is the headline to a story with a thankfully happy ending today in the Indianapolis Star. Some quotes from the story by Barb Berggoetz:

Swaddled in a red and white blanket, Ann Therese Felts slept soundly at Riley Hospital for Children on Tuesday, unaware a rare, life-threatening tumor removed from her heart will afford her a place in medical journals.

Her parents, Paje and Chris Felts, have endured more since the tumor was discovered in October than many parents experience in a lifetime, culminating with surgery Friday to remove the racquetball-size tumor the day after her birth.

"I think she's an absolute miracle," Paje Felts said Tuesday, admiring the 6-pound baby, who's on a ventilator. She's only been able to hold her child once, right before the surgery.

Cardio-thoracic surgeon John Brown said the tumor was 11/2 to two times the size of the baby's heart -- which is about as big as a plump strawberry. Only 46 other similar cases, called cardiac teratoma tumors, have been recorded in medical history, said Brown, who led the operating team. * * *

Initial tests showed the tumor to be benign, and any microscopic tumor cells left generally won't grow, said Brown, chief of cardiac surgery at Clarian Health Partners and Indiana University School of Medicine. "Her future should be very positive." * * *

Calling the ordeal a "gigantic episode" in their lives, Chris Felts, an attorney for Barnes & Thornburg in Indianapolis, said they were very confident with the care we were getting at Riley.

They also felt buoyed by the support of friends and their Catholic faith. "I don't know how anyone can do it without faith," said Paje Felts, an attorney and lobbyist for the Indiana State Bar Association.

The Feltses, who have 5-year-old twins and a 2-year-old daughter, named the baby after St. Theodore Guerin, whose given name was Anne-Therese.

Paje Felts, who graduated from St. Mary-of-the-Woods College near Terre Haute, which was founded by St. Theodore, said the sisters prayed hard for her daughter. "I think she's one of Mother Theodore Guerin's miracles."

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Indiana Law

Ind. Decisions - More on: Appeals decision too little too late for Crown Point developer

Updating the story referenced in this Dec. 13th, 2006 ILB entry, Marisa Kwiatkowski writes today in the NWI Times:

CROWN POINT | Assistant City Attorney Pat Schuster is filing a petition to transfer developer Tim Heidbreder's court case against Crown Point to the Indiana Supreme Court.

The city wants to challenge last month's appeals court ruling that declared Mayor Dan Klein did not have the power to veto the City Council's approval of a special-use permit for a Redi-Mix concrete plant in Heidbreder's industrial park.

"The city feels the appellate court improperly stripped the mayor of the veto powers he has by statute," Schuster said.

Crown Point's pursuit of the case puts another hitch in Heidbreder's plans.

"The first thing I plan on doing is cancelling my order for the third time on the Redi-Mix trucks, and then we'll let the cards fall where they fall," he said.

Heidbreder's plans for a Redi-Mix concrete plant fell through the first time in 2005 when Klein vetoed a resolution approved by the City Council. The resolution would have allowed petitioner Prairie Material special-use zoning to build the concrete plant on Millennium Drive, south of the Brookside subdivision. Nearby residents vehemently opposed the development.

The City Council failed to secure a two-thirds majority to override Klein's veto.

Heidbreder's application for a building permit to begin construction on the plant was denied by the city in June 2005. His petition to overturn the denial failed in Crown Point's Board of Zoning Appeals.

Heidbreder challenged the city's decision in Lake Superior Court but lost.

Last month Indiana's Court of Appeals reversed the lower court's ruling, saying the Lake Superior Court erred when it found that the general zoning statute governing counties did not apply to municipalities such as Crown Point. The appeals court also found special use had been granted to Heidbreder and that Klein did not have the power to veto the City Council's approval of the permit.

Klein said he felt the court of appeals' ruling wasn't clear on the veto issue, and he authorized Schuster to move the case to the state Supreme Court.

The appeals court's decision meant Heidbreder could build the concrete plant in his industrial park, but he already sold some of the land upon which the plant was to be built. The Crown Point Plan Commission unanimously approved a rezoning request and site-development plan Dec. 11 for a 13-unit strip mall on that same slice of property.

Heidbreder declined to talk about specific plans for the land that is left, but he said a good portion of it is still useable.

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Two lucrative offices issue raised again

A June 6, 2006 ILB entry began:

The old bugaboo, the "dual lucrative offices" prohibition in the Indiana Constitution, simple in concept but difficult in application, has raised its head in Vanderburgh County.
Well, today it has raised its head in Hammond, according to this story in the NWI Times. The story by Susan Brown begins:
First District Councilman Mark Kalwinski could lose his council seat if his position on the Port Authority is challenged in court and ruled unconstitutional.

Court rulings indicate officeholders who accept appointments to another lucrative office automatically forfeit the first office.

With their pay raise this year, council members earn $21,917 and are eligible for health benefits. Port Authority board members earn a flat $5,000 and also may receive health benefits.

Attorney General Steve Carter has a guide on the question of dual officeholding, available here.

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Indiana Government

Courts - Wisconsin Right to Life sues re questionaire to judges

A law suit similar to that filed in Indiana and several other states has now been filed in Wisconsin. As reported here in the Wisonsin State Journal:

Wisconsin Right to Life is suing two state agencies, alleging that rules prohibiting judicial candidates from expressing their views on "cases, controversies and issues" likely to come before them are unconstitutional.

The anti-abortion group is seeking to overturn state Supreme Court rules that prohibit judges and judicial candidates from freely expressing their views, saying the prohibitions violate candidates' constitutional rights to free speech and association.

The rules are enforced by the Wisconsin Judicial Commission and, for attorneys running for judgeships, by the state Office of Lawyer Regulation. * * *

Wisconsin Right to Life is asking U.S. District Judge John Shabaz to immediately suspend the rules to allow the group to quiz judicial candidates for the upcoming spring elections.

In its suit, Wisconsin Right to Life said it was unable to use its survey in 2006 because six of seven judicial candidates questioned declined to give their views, citing the Supreme Court rules. The group is asking for an immediate lifting of the rules to allow it to publish judicial candidates' answers to its questions.

For background, start with this ILB entry from Nov. 14, 2006 titled "Indiana Supreme Court loses case on allowing judicial candidates to express views."

Posted by Marcia Oddi on Thursday, January 04, 2007
Posted to Courts in general

Wednesday, January 03, 2007

Ind. Gov't. - Metal detectors, gun ban in Statehouse postponed [Updated]

WRTV 6 reported this evening (apparently there is no story online) that the State Department of Administration was postponing its new rule re metal detectors and a gun ban in the Statehouse and state office buildings.

This is contrary to what was reported last year (see this Dec. 9, 2006 entry) titled "Visiting Statehouse? Keep the heat at home." Some quotes from the NWI Times story by Patrick Guinane from that date:

The state is getting ready to purchase metal detectors and x-ray baggage scanners that will be installed at Statehouse entrances in Indianapolis early next year. And new rules, which drew no opposition at a public hearing Friday, will prohibit visitors from bringing knives, stun guns and firearms into the Capitol, adjoining Government Center offices and nearby parking garages. * * *

State employees have been issued electronic ID badges that give them access to the Capitol after hours and on weekends. The metal detectors and the rules against guns will be implemented in February or March, said Kevin Ober, deputy commissioner for the Indiana Department of Administration, the state agency that oversees the Statehouse and surrounding properties.

Not a single opponent, he said, showed up Friday at the Indianapolis hearing on the new rules, which still must be signed by the attorney general and Gov. Mitch Daniels.

All that was left of the rulemaking was for the DOA Commissioner to approve the rule and send it on to the Attorney General and Governor for approval - it would take effect 30 days later unless it declared a different (including an earlier) date in its body. That timing corresponds with the "February of March" quoted in Guinane's story.

According to the Channel 6 report tonight, the DOA Commissioner has put a hold on the rule.

[Updated 7:46 p.m.] An ever alert reader has pointed me to this "Cancellation of the Solicitation 061-7-2936 for Walk-Through Metal Detectors" posted by the DOA with a date of Dec. 22, 2006. Here is the essence:

The Indiana Department of Administration Procurement Division has canceled the above requisition and (RFQ/ITB—061-7-2936) with no award being made. A new solicitation should be released within the next 4 to 6 weeks or sooner. When it is released you will receive a notification via email again, so please be sure to go to the website and download it.
[Kudos also to TDW, which mentioned the cancellation yesterday; remarking "TDW can't tell from the cancellation notice if these were the new metal detectors for the Statehouse."]

Posted by Marcia Oddi on Wednesday, January 03, 2007
Posted to Indiana Government

Ind. Courts - More on "Questions of Jury Behavior in Myers Murder Trial"

Updating this ILB entry from Nov. 29th, Keith Rhoades of the Martinsville Reporter-Times reports today:

Morgan County Superior Court II Judge Christopher Burnham denied a motion Tuesday filed by Attorney Patrick Baker for John R. Myers II to depose jury members, court staff, and security personnel.

While leaving most of the motion for correcting errors intact, the judge ruled Tuesday morning that the defense’s request for the deposition was not allowable as stated, denying that part of the motion. The state has until the middle of January to file a response to the rest of Baker’s motion. * * *

After his conviction, Myers’ attorney filed several motions with the court. The last motion, filed Friday, was to correct errors and for the court to grant a new trial for Myers.

Baker alleges the prosecution withheld information from the defense, which could have changed the jury’s verdict. Baker also alleges the jury and court personnel acted improperly during the trial. * * *

Baker said despite his repeated requests, the court refused to grant a change of venue for the case and selected a jury from Morgan County residents.

Baker said he was assured the jury would be sequestered and that his client would receive a fair trial. He said the court assured him the jury would not have access to outside information that could compromise their verdict.

Baker said before the jury began deliberations, the court received information the jury might have received information from outside sources about the case. Baker said the court had done an investigation to determine if the jury had been compromised.

Baker said he was unhappy the court had assigned Morgan County Detective Sergeant Garry Long to the investigation because Long was also one of the guards assigned to the jury.

According to Long’s report filed with the court, Baker said, the son of Juror No. 3 dropped off a TV at the motel where the jury was staying.

Baker said that Long’s report also says the court bailiffs allowed cell phone use by jury members, which was a violation of the court’s instructions.

Baker said he was also unhappy the court allowed the jury to have two alcoholic beverages with their evening meals.

Posted by Marcia Oddi on Wednesday, January 03, 2007
Posted to Indiana Courts

Ind. Decisions - Still more on Timberlake execution date and process

This Dec. 28th ILB entry quoted a LCJ story that:

Lawyers for a New Albany man scheduled to be put to death next month for the 1993 murder of an Indiana state trooper have asked a federal court to delay the execution.

The filing asks the U.S. District Court in Indianapolis to consider whether Norman Timberlake, 59, is insane and therefore does not qualify for the death penalty.

The entry also quoted from a letter in the Indianapolis Star which noted that execution by lethal injection had recently been halted in several other states.

Today the AP is reporting:

A New Albany man facing execution this month for the shooting death of a state trooper has filed a federal lawsuit claiming he would suffer unnecessarily during the lethal injection procedure.

Attorneys for Norman Timberlake, 59, filed the lawsuit Friday in U.S. District Court in Indianapolis. The suit asks for a preliminary injunction and restraining order stopping the execution, which is scheduled for Jan. 19 at the Indiana State Prison in Michigan City. * * *

The lawsuit claims that the three-drug cocktail commonly used by Indiana in lethal injections is not calibrated according to the inmate’s size or medical history, so Timberlake could suffer unnecessarily.

The South Bend Tribune today has a letter that begins:
In recent weeks, a botched execution caused the governor of Florida to halt executions there and order an investigation into Florida's lethal injection process; a federal court in California found that state's lethal injection process violates the U.S. Constitution's ban on cruel and unusual punishment, effectively imposing a moratorium; and Maryland's highest court ordered that state to open its lethal injection protocols for public scrutiny. These developments follow a study that found some of those executed by lethal injection were probably subjected to excruciating pain.
See also this report from the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, January 03, 2007
Posted to Ind. Sup.Ct. Decisions

Not law but interesting - What is the purpose of a public library?

That question is asked in a Wall Street Journal story today ("In the Fray: Should Libraries' Target Audience Be Cheapskates With Mass-Market Tastes?" - not currently freely available online) that asks:

What are libaries for? Are they cultural storehouses that contain the best that has been thought and said? Or are they more like actual stores, responding to whatever fickle taste or Mitch Albom tearjerker is all the rage at this very moment? If the answer is the latter, then why must we have government-run libaries at all?
The WSJ article was prompted by this article that ran yesterday in the Washington Post, headlined "Hello, Grisham -- So Long, Hemingway? With Shelf Space Prized, Fairfax Libraries Cull Collections." Some quotes from the story by Lisa Rein:
You can't find "Abraham Lincoln: His Speeches and Writings" at the Pohick Regional Library anymore. Or "The Education of Henry Adams" at Sherwood Regional. Want Emily Dickinson's "Final Harvest"? Don't look to the Kingstowne branch.

It's not that the books are checked out. They're just gone. No one was reading them, so librarians took them off the shelves and dumped themAlong with those classics, thousands of novels and nonfiction works have been eliminated from the Fairfax County collection after a new computer software program showed that no one had checked them out in at least 24 months.

Public libraries have always weeded out old or unpopular books to make way for newer titles. But the region's largest library system is taking turnover to a new level.

Like Borders and Barnes & Noble, Fairfax is responding aggressively to market preferences, calculating the system's return on its investment by each foot of space on the library shelves -- and figuring out which products will generate the biggest buzz. So books that people actually want are easy to find, but many books that no one is reading are gone -- even if they are classics. * * *

As Fairfax bets its future on a retail model, some librarians say that the public library may be straying too far from its traditional role as an archive of literature and history.

Arlington County's library director, Diane Kresh, said she's "paying a lot of attention to what our customers want." But if they aren't checking out Rachel Carson's "Silent Spring," she's not only keeping it, she's promoting it through a new program that gives forgotten classics prominent display.

"Part of my philosophy is that you collect for the ages," Kresh said. "The library has a responsibility to provide a core collection for the cultural education of its community." She comes to this view from a career at the Library of Congress, where she was chief of public service collections for 30 years.

The Journal article today notes:
As recently as a century ago, when Andrew Carnegie was opening thousands of libraries throughout the English-speaking world, books were considerably more expensive and harder to obtain than they are right now. Carnegie always credited his success to the fact that he could borrow books from private libraries while he was growing up. His philanthropy was meant to provide similar opportunities to later generations.
These articles raise a number of interesting issues.

Posted by Marcia Oddi on Wednesday, January 03, 2007
Posted to General News

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (0) (link to cases):

Love v. State - "We conclude that Love’s attorney was not ineffective and that the alleged newly-discovered evidence does not require a new trial. Affirmed."

Posted by Marcia Oddi on Wednesday, January 03, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Indiana Supreme Court rules forensic diversion is discretionary

In Ruble v. State, a 4-page, 5-0 opinion, Chief Justice Shepard writes:

Appellant James F. Ruble pled guilty to operating a vehicle after his driving privileges had been suspended for life, a class C felony. On appeal, he has contended that the trial court should have assigned him to serve his sentence through forensic diversion. The Court of Appeals held that the Indiana Code mandates he be assigned to diversion, and reversed. We conclude otherwise and affirm the trial court.

Posted by Marcia Oddi on Wednesday, January 03, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Judge halts public access to Shine divorce papers"

The Fort Wayne Journal Gazette reports today:

A special judge has sealed the divorce filings of Allen County Republican Party Chairman Steve Shine.

LaGrange Circuit Judge J. Scott VanDerbeck granted Shine’s request, issuing an order sealing the file Dec. 22. VanDerbeck was appointed special judge in the case after Shine’s wife, Laura Beth, filed for divorce Dec. 4 and asked that a special judge be appointed because of her husband’s local political clout. * * *

In court documents, Steve Shine’s attorney, Stephen Rothberg, wrote that Laura Beth Shine’s motive was to damage her husband and help her attorney, Mike Loomis, carry out a “vendetta” against her husband.

The ill will between Loomis and Steve Shine dates to 2001, when Shine endorsed current Allen County Prosecutor Karen Richards in the Republican primary. Loomis also was a candidate for prosecutor. Loomis, a former Allen County chief deputy prosecutor, later sued Shine for defamation in connection with statements he made during the campaign, a lawsuit Shine eventually won in 2005.

Loomis could not be reached for comment Tuesday, but in a previously filed response to Rothberg, Loomis wrote that the Shine children already knew of the filings and that the public’s right to know was more compelling than Steve Shine’s “personal/political need” to seal the file.

This brings to mind a 2003 story involving a divorce filed in Hamilton County. See this April 15, 2003 ILB entry, along with the 6/16/2004 ILB entry on the decision in Ernst & Young, et al. v. Indianapolis Star (6/16/04 IndCtApp). For even more, see this June 18, 2004 entry on the release of divorce records, discussing a California case, and this one from Jan. 5, 2006 regarding a New Hampshire ruling. Note that most of these cases involve financial records.

Posted by Marcia Oddi on Wednesday, January 03, 2007
Posted to Indiana Courts

Ind. Courts - Even more on: "Allen courts to ban cell phones, all electronics"

Dionne Waugh of the Fort Wayne Journal Gazette reports today in a story headlined "Cell phones are hot potatoes in court: 1st day of ban catches some people by surprise." I love the way the story begins:

Jacqui Dowdell thought it would be a good idea Tuesday to be what she described as a “public servant.”

That’s why she stood outside the Bud Meeks Justice Center, where misdemeanor and traffic court is conducted, and offered to hold people’s cell phones for $5 while they were in court.

“I think it’s totally outrageous. I think there are other alternatives than a complete ban on cell phones,” she said as she watched many people walk into the building only to step out moments later, look around grimacing and wonder what to do with their phones.

The ILB has had several entries on this topic, including this one yesterday quoting WANE's suggestions as to "the story behind the ban." More from today's story:
While dozens of people cursed or groused about the ban before running back to parked cars, some people were seen calling someone to return to the court building and pick up their phone.

Others took a chance and hid their cell phones somewhere outside.

“I knew about the ban in the Courthouse, but not here,” said one man, who declined to give his name, but said he hid his cell phone inside a partly crushed cup under the nearby train trestle a short distance away from misdemeanor and traffic court.

“I was a little nervous about leaving it. I turned it off so no one would hear it.”

The phone was still there when he went to retrieve it.

About 10 feet away, another person had stashed a cell phone under a rumpled brown bag. * * *

County judges made the decision in late November, saying cell phones they were disruptive and a safety concern when people used them to take pictures and video of jurors, witnesses, victims and attorneys. * * *

Outside traffic court, Dowdell started her public service efforts by offering to hold phones for $1, but then upped it to $5 after calculating the value of her time.

In the nearly two hours she waited, she had only one taker – Chris Thomas, 36.

“I had to trust. Sometimes you have to do what you have to do and not be late for court,” said Thomas, who didn’t give Dowdell any money for holding his phone and got it back a short time later.

“I think (the ban) is not right because they’re a way of life nowadays. We need them to communicate.”

Posted by Marcia Oddi on Wednesday, January 03, 2007
Posted to Indiana Courts

Tuesday, January 02, 2007

Ind. Courts - Still more on: "Allen courts to ban cell phones, all electronics"

The Dec. 29th story on the Fort Wayne courts' cell phone ban, reported in this ILB entry, did a good job explaining how the ban will work, but did not tell the story behind the ban.

News Channel 15 (WANE) does that today, according to this story:

Banning cell phones in Allen County court buildings has more to do with safety than avoiding interuptions.

Newschannel 15 discovered people are using cell phone cameras to photograph people on the witness stand, judges, and attorneys. This can be dangerous, especially in cases when identities need to remain confidential.

There are several web sites where people will post these pictures. One we found lists descriptions and details about informants; things like pictures of people's cars and their reasons for becoming an informant. Police will sometimes use confidential informants to infiltrate a criminal inner circle. The people who do this are often criminals themselves, and use that to gain trust and lead police to a larger target.

While on one web site we found more than 20 different listings for Northeastern Indiana. They all involve people who got busted and now work for the police. Again this is the main reason behind banning cell phones in court buildings. They don't want people taking pictures of confidential sources testifying in court and posting them on the internet as a snitch.

"With the technology, having cameras, streaming video, audio recordings there's not a need for those things to be in the courtroom. Those proceedings are between the judge, the jury and people on the stand," Allen County Sheriff's spokesman Steve Stone said.

Posted by Marcia Oddi on Tuesday, January 02, 2007
Posted to Indiana Courts

Law - "Keep your eye on the attorneys"

"Keep your eye on the attorneys" warns the Fort Wayne News-Sentinel in an editorial brief:

We need to pay close attention to the legal system. Any of us could find ourselves in the middle of it in one way or another, so we need to know the problem people we might run into, either from the prosecutorial side or the defense side. We’ve seen examples of each lately.

Locally, attorney Charles James Rathburn Jr. [see 12/28/06 ILB entry] has been hit with an 18-month suspension of his right to practice by the Indiana Supreme Court’s Disciplinary Commission, which found he neglected his clients. One complaint said he took no action on a client’s case for two years and did not return any of the client’s phone calls. In two other cases, the court said, he took fees from clients he did not help.

On the prosecutorial side, the North Carolina bar has filed ethics charges against Mike Nifong, the district attorney who has behaved so outrageously in the Duke lacrosse sexual assault case, continuing to press the case despite the obvious lack of a case, saying scurrilous things about the defendants to the press and withholding crucial evidence from the defense. The punishment could range from admonishment to disbarment, the latter being far preferable if he can’t actually be thrown in jail.

Posted by Marcia Oddi on Tuesday, January 02, 2007
Posted to General Law Related

Law - More on: Wisconsin Judge won't throw out suit over release of bill drafts

On May 3d, the ILB posted a brief entry about a public records case in the State of Wisconsin where: "A judge has refused to throw out the attorney general's lawsuit aimed at classifying bill drafts as public records once lobbyists have seen them."

Yesterday the Milwaulkee Journal Sentinel reported:

Madison - A case over whether lawmakers can share drafts of legislation with allies while keeping them from opponents has grown into a colossal fight over the power of the Legislature that has already cost taxpayers almost $260,000.

The fate of the case is unclear as Democratic Attorney General Peg Lautenschlager gives up her office to Republican J.B. Van Hollen, who has shown skepticism toward the state's suit against GOP lawmakers.

Sen. David Zien (R-Eau Claire) asserts in court documents that he did not have to give a draft of a bill that would have allowed people to carry concealed weapons to Lautenschlager because the Senate alone determines how it conducts its business - even if it conflicts with state law.

"While the attorney general may dislike how the Senate chooses to formulate and introduce legislation, frankly it is 'none of (her) business,' " Zien wrote in a court filing, quoting from another court case.

Lautenschlager sued Zien and Rep. Scott Gunderson (R-Waterford) in September 2005 after they refused to give her drafts of the bill they had shared with the National Rifle Association and others. The lawmakers say the draft was exempt from the open records law at the time because it had not yet been introduced.

She received the records once the bill was introduced but is continuing her suit in an effort to keep legislators from withholding drafts in the future. * * *

Generally under Wisconsin law, a state document is not public until a final version of it is completed. But if an early draft is given to people not working on it, the draft becomes available to anyone who seeks it. But Zien and Gunderson - backed by legislative leaders from both parties - say drafts of bills remain secret, even if they are shared with others. * * *

Lautenschlager argued in court papers that giving some people early peeks at bills gives them an unfair advantage in trying to sway the Legislature.

Lawmakers say the matter is moot because the records became public once the bill was introduced. But Lautenschlager says the delayed release of the records highlights ongoing problems with bills being kept from opponents until the 11th hour. * * *

Donald Schneider, who served as Senate chief clerk from 1977 to 2003, said in an affidavit that bill drafts had always remained confidential, even when they were shared with third parties. He said lawmakers would be reluctant to raise new ideas if drafts did not remain secret.

Under the rules governing legislative procedure, Senate rules and practices trump state statutes, Schneider said.

Like Schneider, Zien said it would inhibit innovation because lawmakers would not seek expert advice as often.

"Because the Senate has a rule of proceeding requiring that bill drafts remain confidential until introduced, the court may not inquire into the wisdom or question the validity of the (confidentiality) rule . . . ," Zien wrote in an October court filing.

Lautenschlager countered: "This is not a lawsuit against an entire legislative body and its rules of proceedings, but against two specific custodians of public records."

She said the lawmakers were trying to make the case unnecessarily complex.

"The basic argument asserted by the defendants so far in this case in a nutshell is that they are above the law . . . If the court accepts this argument, then the Legislature is free to pick and choose with which laws it wishes to comply," Lautenschlager wrote.

Posted by Marcia Oddi on Tuesday, January 02, 2007
Posted to General Law Related

Ind. Decisions - More on: "Judge gives RiverPlace green light: Ruling doesn't address issue of project's effect on White River"

The ILB has now obtained a copy of Marion Superior Court Judge Michael D. Keele's 8-page ruling in Hoosier Environmental Council v. Ind. Dept. of Natural Resources and Centre Properties, first discussed in this ILB entry from Dec. 23rd. Access it here.

Posted by Marcia Oddi on Tuesday, January 02, 2007
Posted to Ind. Trial Ct. Decisions

Law - Interesting reading for the new year about the elite New York firms

Those of you who followed the link in this Dec. 15th ILB entry titled "Unofficial table of elite NY law firm associates' 2006 bonuses and total compensation." will also be interested in this article from the New York Post, dateline Dec. 30th, 2006, that begins:

The city's largest, most prestigious law firms are suffering from serious brain drain.

Young, Gen-X lawyers in their third to fifth year in the business are walking away from their $200,000-a-year positions in record numbers - at times without another job in view.

The reason? They are unhappy with their Blackberry lifestyle - being tethered to the job 24/7 and having to rush back to the office at a moment's notice when e-mail orders pop up on the ubiquitous PDA.

The exodus of law firm associates is unprecedented, according to the National Association of Law Placement, or NALP, which found that 37 percent of associates leave large firms within the first three years.

A whopping 77 percent of associates leave within five years, according to NALP's latest survey.

That is up sharply from recent years, and the resulting brain drain is wrecking havoc on law firms.

Posted by Marcia Oddi on Tuesday, January 02, 2007
Posted to General Law Related

Ind. Decisions - More on "Lilly wins major Zyprexa patent case."

Updating this Dec. 27th ILB entry (including a link to the Court of Appeals for the Federal Circuit 23-page opinion), here is a link to Dennis Crouch's Patent Law Blog that deftly analyzes the Court of Appeals ruling.

Posted by Marcia Oddi on Tuesday, January 02, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: "Judge orders school to reinstate teddy-bear attack filmmakers"

The Indianapolis Star today has a front-page story by Jon Murray headlined "Court reinstates 2 teens expelled over amateur film: Indiana boys whose movie was seen as threatening will be back in class this week." Some quotes:

Two expelled Knightstown students will be reinstated this week over the objections of educators who say a horror movie parody the teens helped produce amounted to a threat against one of its teachers.

U.S. District Judge Sarah Evans Barker granted a preliminary injunction last month, forcing C.A. Beard Memorial School Corp. to let Cody Overbay, 16, and Isaac Imel, 15, back into school. They also must be allowed to make up assignments missed during more than two months they were out of school.
But Barker's ruling won't apply to two other students, Charlie Ours and Harrison Null. The two 16-year-olds had larger roles making the amateur movie but didn't sue the district after they were expelled.

U.S. District Judge Sarah Evans Barker granted a preliminary injunction last month, forcing C.A. Beard Memorial School Corp. to let Cody Overbay, 16, and Isaac Imel, 15, back into school. They also must be allowed to make up assignments missed during more than two months they were out of school.
But Barker's ruling won't apply to two other students, Charlie Ours and Harrison Null. The two 16-year-olds had larger roles making the amateur movie but didn't sue the district after they were expelled. * * *

The mothers of Null and Ours say they are disappointed with how the district reacted to the movie, even though they agreed its content was raw and unseemly.

Tricia Ours has been talking to an attorney with the American Civil Liberties Union of Indiana and wants Barker's order applied to her son. Jill Null said she won't seek to have her son return to school before next fall, since he is taking online courses through Brigham Young University in Utah. But she's worried about the blemish on his record.

"I feel (the movie) was a discipline issue between me and my son," Null said. "I don't think that was something that needed to be played out in the whole community."

After Barker's ruling, the school district still could press for a full hearing, but a judge's preliminary order often signals the likely outcome.

Jackie Suess, an ACLU attorney representing Imel, said she hoped the district now would settle the case.

See this ILB entry from Dec. 24th for earlier coverage, plus a link to Judge Barker's opinion.

Posted by Marcia Oddi on Tuesday, January 02, 2007
Posted to Ind Fed D.Ct. Decisions

Monday, January 01, 2007

Ind. Gov't. - Suggestions for the new legislative leadership - Part II: The Budget

On Nov. 8, 2006, the ILB posted "Suggestions for the new legislative leadership - Part I: The Video Archives," available here.

I hadn't expected to post Part II today, until I read this article in this morning's NY Times, headlined "Spitzer Arrives With Mandate, but Faces Challenges." What caught my eye in the story by Danny Hakim about the new Governor of the State of New York was not this section, which certainly has a resemblance to Governor Daniels' efforts two years ago:

In his effort to change the culture of Albany, Mr. Spitzer said that upon taking office, he would issue “a slew” of executive orders “relating to ethics, procurement and the behavior of the leadership in the agencies where a governor has unilateral control.”

The orders will mirror those he recently outlined for his own staff, which included a ban on gifts of more than nominal value and a prohibition on members of the executive branch from lobbying any part of the executive branch for two years after they leave their posts.

More daunting will be his efforts to push lawmakers to pass a number of measures early in the legislative session as he seizes on his landslide victory and the recent corruption scandals to push his agenda.

but rather this paragraph of the story:
Already, Senate Republicans have embraced Mr. Spitzer’s proposal to delineate all spending items in the state budget, ending the practice by the Legislature and Gov. George E. Pataki of writing large blank checks into the budget that they could later spend, largely in secret.
What would this kind of change mean in Indiana?

First, start with the Indiana Constitution, which states at Art. 10, Secrtion 3: " No money shall be drawn from the Treasury, but in pursuance of appropriations made by law."

Next, look at HEA 1001, the state budget passed in 2005. The state budget is subdivided by agency, with specific line item appropriations per each year of the biennium, broken down by "personal services" and "other operating expense." Generally, the source of the appropriation is specified, i.e. "from the General Fund," from the "motor vehicle highway account," etc. So we have, for instance (picking an appropriation at random):

From the General Fund
1st yr: 3,428,470 --- 2nd yr: 3,431,292
From the Department of Insurance Fund (IC 27-1-3-28)
1st yr. 2,363,439 --- 2nd yr. 2,363,439
Augmentation allowed from the Department of Insurance Fund.
What does that last phrase mean? It is defined in Sec. 1 of the bill:
(a) The following definitions apply throughout this act:
(1) "Augmentation allowed" means the governor and the budget agency are authorized to add to an appropriation in this act from revenues accruing to the fund from which the appropriation was made.
Now looking at another section of the state budget, the portion titled FOR THE GENERAL ASSEMBLY, following specific line-item appropriations, we find, with careful reading, phrases such as the following:
If the funds appropriated for the house and senate expenses and legislative salaries are insufficient to pay all the necessary expenses incurred, including the cost of printing the journals of the house and senate, there is appropriated such further sums as may be necessary to pay such expenses.

If the funds appropriated for legislators' subsistence are insufficient to pay all the subsistence incurred, there are hereby appropriated such further sums as may be necessary to pay such subsistence.

If the funds above appropriated for the legislative council and the legislative services agency and legislator and lay member travel are insufficient to pay all the necessary expenses incurred, there are hereby appropriated such further sums as may be necessary to pay those expenses.

If the above appropriations for the printing and distribution of documents published by the legislative council are insufficient to pay all of the necessary expenses incurred, there are hereby appropriated such sums as may be necessary to pay such expenses.

Notwithstanding IC 4-12-1-11(b), the salary per diem of the legislative members of the budget committee is an amount equal to one hundred fifty percent (150%) of the legislative business per diem allowance. If the above appropriations are insufficient to carry out the necessary operations of the budget committee, there are hereby appropriated such further sums as may be necessary.

The state budget also uses the "such further sums" language in other sections, such as for Medicaid (albeit with a slightly different twist):
Subject to the provisions of P.L.46-1995, if the sums herein appropriated for Medicaid current obligations and for Medicaid administration are insufficient to enable the office of Medicaid policy and planning to meet its obligations, then there is appropriated from the general fund such further sums as may be necessary for that purpose, subject to the approval of the governor and the budget agency.
So we have at least three different types of examples in Indiana where specific dollar appropriations may be supplemented, and without any dollar limitation, when the General Assembly is not in session, and thus when the state budget itself may not be reopened.

Could these be instances of what is described in the NYT story as: "writing large blank checks into the budget that they could later spend, largely in secret"? Does the Indiana budget's use of phrases such as "augmentation" and the open-ended "there are hereby appropriated such further sums as may be necessary" run afoul of the Indiana constitution prohibition that "No money shall be drawn from the Treasury, but in pursuance of appropriations made by law." Or would a budget law that said simply "There is hereby appropropriated such sums as are necessary to fund the operation of state government for the 2005-2007 biennium" meet the constitutional requirement?

To conclude, the ILB's second suggestion for the new legislative leadership is -- delineate all spending items in the state budget, by dollar limitation.
For background, see this ILB entry from Dec. 14, 2004, which dealt with another New York issue -- who has the authority to propose a budget in New York, is it the Governor or the General Assembly?

The entry ends with a recommendation to check out my 2003 paper, "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," particularly pp. 17-22, dealing with the State Budget Agency and the Budget Committee. The paper is available here]. The pages referenced discuss whether the state budget committee (made up of legislators appointed by the House and Senate leadership), which works with Indiana's Governor (and his state budget agency) during the interim between sessions of the General Assembly to develop the next budget bill, to approve state construction projects, and to approve supplemental "appropriations", runs afoul of Indiana's separation of powers.

Posted by Marcia Oddi on Monday, January 01, 2007
Posted to Indiana Government

Courts - "Los Angeles County's court system is making millions of dollars charging for online access to records"

The LA Times reported Sunday, in a story by Jeffrey L. Rabin that begins:

Los Angeles County's court system is making millions of dollars charging for online access to records, turning its management of public information into a profit center.

No other major urban county in California charges for online access to court records that can help someone learn whether a doctor was sued for malpractice, a contractor was accused of shoddy work, or a prospective tenant had a habit of skipping out on the rent.

There is no charge for an electronic search of civil lawsuits filed in Orange, San Diego, Riverside, San Bernardino, Ventura, and Santa Barbara counties. An identical search is also free in most counties of the San Francisco Bay Area, as well as in Sacramento, San Joaquin, Fresno, and Kern counties.

Tapping into the civil index "ought to be free," said Michael Roddy, executive officer of the San Diego County Superior Court, the second-largest trial court in California.

Roddy and court officials in other counties said providing Internet access to court records is more efficient because the public doesn't have to drive to a courthouse, park, stand in line, and ask court clerks for assistance. "I prefer you don't have to come down to the courthouse," Roddy said.

And yet, the Los Angeles County Superior Court imposes a $4.75 fee for each name searched on the court's website, http://www.lasuperiorcourt.org .

Although the public pays, lawyers and law firms among the 22,000 members of the Los Angeles County Bar Assn. can get free access to the civil case information.

Los Angeles County court officials say comparison with other jurisdictions is unfair because the county's system is the largest in the nation.

Even so, the fee charged by the L.A. County court for online searches of public records is out of line with major courts around the country.

The second-largest state court in the nation — Chicago's Cook County — offers online searches of civil cases without a fee.

And it is possible to do an online search of a master index of cases filed in most federal district, bankruptcy, and appellate courts across the country for eight cents a page. To view and print a document filed in federal court also costs eight cents a page.

By comparison, Los Angeles County charges a minimum of $7.50 to view a document of up to 10 pages online. Additional pages cost seven cents a page. Each new document costs at least $7.50.

"We set what we believe to be a reasonable fee schedule," said Allan Parachini, spokesman for the Los Angeles Superior Court. "We made a business decision to charge for the service," he said. "It costs money. We're recovering money."

In fact, the court is making money.

Posted by Marcia Oddi on Monday, January 01, 2007
Posted to Courts in general

Ind. Courts - Story reports several possible conflicts re LaPorte Circuit Court/City Council

Jason Miller of the Michigan City News-Dispatch had an interesting story Saturday, including the following:

Despite reservations from her new boss about representing two separate governmental entities, LaPorte County Council Attorney Krista Smith-MacClennan has asked to be re-appointed to the position.

“I told her I'd prefer she not do that, but she called me and I got several calls from council members,” LaPorte Circuit Court Judge-elect Tom Alevizos said Friday. “I'm not going to be in the middle of their affairs. If she gets it, I'll have to meet with her about how it will work. I still have some concerns.”

Alevizos said earlier in the week he'd asked Smith-MacClennan - whose full-time job is Juvenile Court Services director - to resign as council attorney because he was uncomfortable with her representing both the council and court. * * *

By resigning from her position as council attorney, Smith-MacClennan would have given up $16,000 a year in salary. She makes $42,400 per year as director of juvenile services, a position she has held under retiring Circuit Judge Robert Gilmore, whom Alevizos is succeeding.

As recently as Thursday, Alevizos felt the situation was rectified.

“I was uncomfortable with one of my employees serving as the County Council attorney because she essentially was representing one branch of government while working for mine,” Alevizos said Thursday. “It's a separation of powers situation.”

The story also reports that:
[Judge] Alevizos also will replace juvenile court magistrate Kim DeWitt with Richard Stalbrink, who currently serves as a juvenile prosecutor. He said he's making the change because DeWitt lives in Illinois.

“I don't think an Illinois resident should sit on the bench in Indiana,” Alevizos said. Stalbrink, Alevizos said, is a LaCrosse resident. His father is director of transportation for LaPorte Community Schools.

Posted by Marcia Oddi on Monday, January 01, 2007
Posted to Indiana Courts

Environment - Changes to federal mine reclamation law impact Indiana

John Lucas of the Evansville Courier&Press had a story yesterday that began:

Agencies in Indiana and surrounding states responsible for overseeing reclamation of abandoned coal mine lands are still assessing the anticipated impact of a long-sought bill signed into law earlier this month by President Bush.

The new law will give states more money to repair environmental damages caused by long-ago mining. At the same time, it will reduce the amount of reclamation fees paid by currently operating coal companies.

Since enactment of the federal Surface Mining Control and Reclamation Act of 1977, coal companies have been assessed a fee for each ton of coal marketed to help repair environmental and other damages caused by older, abandoned mines.

The companies have paid 35 cents a ton on surface-mined coal and 15 cents a ton for underground-mined coal into a fund administered by the U.S. Department of Interior's Office of Surface Mining.

The 24 coal-producing states and some Indian tribes have squabbled for years over how that fund has been administered, with the federal agency holding money collected and doling it out to the states in annual allotments. With most of the older mine sites located in the East, Western states that have seen an increase in mining in recent years have questioned why they should pay for cleaning up the older sites.

Mine companies have also sought a reduction in the severance fees.

The new legislation addresses how the money collected is paid out and lowers the fee collected by 20 percent by 2021.

States are expected to receive a windfall in 2008 when the legislation requires the Office of Surface Mining to return money collected but held at Washington to the states.

Indiana, which is expected to receive $4.5 million from the fund for abandoned mine reclamation in 2007, is forecast to get $11.1 million the next year. Kentucky, which normally receives a little less than $14 million a year from the fund, will receive, $32 million, and Illinois $11.9 million, up from $7.3 million in 2007.

Posted by Marcia Oddi on Monday, January 01, 2007
Posted to Environment

Ind. Courts - Three Circuit Judges mark final day

LaPorte Circuit Judge Gilmore was the subject of a story earlier this week by Danielle Gingerich in the Herald-Argus. Some quotes:

During an emotional farewell speech to those in attendance in court Friday, LaPorte Circuit Court Judge Robert Gilmore said farewell after 12 years on the bench.

“As I look back on it, I’ll never forget it,” Gilmore said of his time serving LaPorte County.

Gilmore, 62, will be retiring to South Carolina. Judge-elect Tom Alevizos, 45, will replace him.

As he spoke, Gilmore, holding back tears at points, gave special kudos to the “overworked” and “understaffed” LaPorte County Prosecuting Attorney’s Office.

“We deal with the dregs of society,” Gilmore said. “There aren’t a lot of success stories, but (the employees of the prosecuting attorney’s office) are here day in and day out.”

“They do it for the love of their job,” he added, pausing for a moment to hold back tears, “and for the belief that people can make changes -- and they do.”

In spite of all the negatives, Gilmore decided Friday to concentrate on the positives of the job.

“To save a human being is worth it,” he said to those in the courtroom. “Remember the people you’ve helped.”

Gilmore also had a few words about those who persist on “court bashing, judge bashing and prosecutor bashing.”

“When the day’s done, the job of the judge is not to satisfy the masses,” he said. “It’s to follow and observe the law as it is written in the state of Indiana.”

Stan Maddux of the Michigan City News-Dispatch also has a story, which included this:
Gilmore said the most difficult aspect of his job was having to constantly remind himself to ignore his emotions in determining an offender's punishment. Sentences must always be calculated under the guidelines provided by the law, he continued, not merely reflect what the public feels is right or just. “That is our job,” he said.
From today's Fort Wayne Journal Gazette, Rebecca S. Green has a story headlined "Huntington judge closes the book on 20-year career." It begins:
Huntington Circuit Judge Mark McIntosh intended to close out his 20 years on the bench at the end of 2006, but an illness forced the 73-year-old from the post in March.

It was not the ending McIntosh had planned, nor was it one many in the community believed he deserved after years of dealing with some of northeast Indiana’s most notorious criminal cases.

Those cases included the 1989 murder of car collector Eldon Anson by high school junior Jarrod Wall; then 14-year-old Donna Ratliff setting fire to her house in 1995, killing her mother and sister; and the death in 2000 of 3-year-old MicKenzie Brown at the hands of her father and stepmother.

His colleagues describe McIntosh as a judge known for dealing with lawyers, victims, criminals and suspects with civility and respect, though not a soft touch.

Here is a long story from the Dec. 31 Logansport Pharos-Tribune by Dave Kitchell about Cass Circuit Court Judge Julian Ridlen's 30 years as an elected official. It begins:
As he looks back at a career in government, Julian Ridlen sees nothing but full years behind him.

The two-term Cass Circuit Court judge left the bench Friday. He will continue to accept appointments as a senior judge appointed in some cases, but he will likely never serve in elected office again.

After serving most of two terms as judge of the former Logansport city court, two terms as state treasurer and two terms as Circuit Court judge, Ridlen leaves public life with nearly 30 years on his resume as an elected official. * * *

Ridlen succeeded Frank Tolbert as city judge, and he won election to a full four-year term in 1971. He was re-elected in 1975.

“The only thing it really did was handle the police blotter,” Ridlen said of the city court.

He recalled spending about 5 percent of his work week as a judge in the City Building. The rest he spent practicing law with his father-in-law, former Indiana Secretary of State Leland Smith.

“I think he probably gave me a fair picture of what it would be like in a county seat type of practice,” Ridlen said of his father-in-law. “He had an interesting approach toward the law, thinking about the law. I always remembered he said, ‘It is not necessarily what the law is, but what the law should be.’ There was that opportunity then for applying equitable principles to the law and considering that the law is an elastic body that is subject to change over time. I think it’s good guidance to have that approach.”

Ridlen still remembers the first case he ever handled in city court.

“It was a driving under the influence case,” he said. “The fee was $25 and I’m not sure I ever collected it.”

Posted by Marcia Oddi on Monday, January 01, 2007
Posted to Indiana Courts