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Monday, April 30, 2007

Ind. Decisions - Appeals Court upholds strict Lottery secrecy [Updated]

Reporting on the Court of Appeals decision today in William C. Foreman v. State of Indiana (see ILB entry here, 6th case), Jon Murray of the Indianapolis Star writes:

The Indiana Court of Appeals today upheld the constitutionality of a state lottery secrecy law that sets a penalty of up to 50 years in prison for violators.

The case was brought by William C. Foreman, a former Hoosier Lottery security official who is facing charges in Marion Superior Court including disclosure of confidential information relating to the lottery, a Class A felony.
Foreman appealed a February 2006 ruling by Judge Grant Hawkins denying his motion to dismiss that charge. His attorney, Jack Crawford -- himself a former Hoosier Lottery director -- argues the stiff penalty violates the Indiana Constitution because it is disproprotionate to the offense. It carries a sentence of 20 to 50 years in prison.

The three-judge appeals panel unanimously rejected Crawford's argument.

[Updated 5/1/07] In an updated story this morning, Joh Murray reports:
A three-judge Indiana Court of Appeals panel ruled unanimously Monday that disclosure of confidential information relating to the lottery deserves to be a Class A felony, more severe than other financial crimes.
"It's the same penalty for attempted murder of a police officer or child molesting," said Jack Crawford, Foreman's attorney and a former lottery director.
Judge Ezra H. Friedlander wrote that the crime rises above other white-collar offenses because it likely would involve a Hoosier Lottery employee and could affect revenue for programs benefiting many residents.
The decision upheld Marion Superior Court Judge Grant Hawkins' February 2006 ruling denying Foreman's motion to dismiss the charge.
Here, from Feb. 17, 2006, is the report on the trial court ruling.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Ind. App.Ct. Decisions

Law - U.S. Supreme Court rules on high speed chases

Lyle Denniston of SCOTUSblog has an entry just posted titled " A flat new rule on high-speed chases." It begins:

Though two Justices tried hard in separate opinions to ease the impact of the Supreme Court's rulng Monday on high-speed police chases, the fact remains that the main opinion had the unqualified support of five Justices and did lay down a hard-and-fast constitutional rule. Here is how the Court phrases the rule it established: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." Given the inherent dangerousness of most high-speed chases, this flat rule -- the "Scott v . Harris" rule, as it may come to be known -- appears to validate as "reasonable" any intentional police tactic of ending the chase by causing a wreck. The only apparent limitation on the choice of any specific tactic is the option that police have to adopt, or not to adopt, it.
Scott v. Harris is the case with the attached videotape I posted about earlier today ("Inclusions in Court Opinions".)

It turns out that Marty Lederman of SCOTUSblog has also posted an entry on the inclusion - access it here.

Here is a list of some other obervations, as collected by Howard Bashman of How Appealing.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 9 today (and 11 NFP)

For publication opinions today (9):

Robin England v. April England - Judge Robb: "Robin England (“Husband”) and April England (“Wife”) were divorced in 2006. As part of the decree of dissolution, the trial court valued the marital assets, including the value of living on the property on which the marital residence sits, and divided them equally between the parties. Husband now appeals, contending that the trial court erred in including a defeasible interest in real property as a marital asset and in its valuation of that interest. Concluding that the trial court properly considered the value of Husband’s continued use and occupancy of what was the marital property in dividing the marital assets, and also concluding that the value the trial court assigned to Husband’s interest is supported by the evidence, we affirm. * * * The trial court did not abuse its discretion in considering Husband’s continued residence on the Rumpke property in dividing the marital assets, or in valuing that interest at $152,437. The judgment of the trial court is affirmed."

Chi Yun Ho, M.D. v. Loretta M. Frye - "Under such circumstances, res ipsa is applicable. [cite omitted] The Fryes met their burden of showing a prima facie case of negligence against Dr. Ho. IThe burden then shifted to Dr. Ho to explain how he met the standard of care. Dr. Ho responded by designating evidence that he met the appropriate standard of care and that the surgery nurse reported to him that the sponge counts were correct. In essence, Dr. Ho contended that he did not breach his duty to Frye because the nurse had the duty to count the sponges and miscounted. However, under Funk, a surgeon cannot “delegate the absolute authority and responsibility to a nurse or nurses to account for sponges and to thus escape responsibility himself.” [cite omitted] As in Cox, Dr. Ho’s explanation is “not free of the inference of negligence,” and Dr. Ho failed to carry his burden of proof. [cite omitted] The Fryes were, therefore, entitled to partial summary judgment on their claim against Dr. Ho. We reverse and remand for a new trial on the Fryes’ damages."

Wayne Township, Marion County, Indiana v. Indiana Dept. of Local Government Finance, and Martha Womacks

Lokmar Y. Abdul-Wadood v. Capt. Batchelor, et al - "Lokmar Y. Abdul-Wadood, pro se, appeals the dismissal of his complaint against three employees of the Indiana State Prison: Captain Batchelor, and Lieutenants Kruper and Pittman (collectively, “the defendants”). We affirm. * * * Abdul-Wadood filed his complaint in the trial court a mere six months after the events alleged to have violated his rights. This suggests he did not see any administrative proceedings through to a final conclusion. Therefore, the trial court did not have jurisdiction over his complaint and properly dismissed it."

Indiana State Board of Education v. Brownsburg School Corp., Board of School Trustees - "In this case, the trial court’s order resolved the sole question presented for review—“whether Indiana Code section 20-8.1-3-17.3(b) [(recodified as Indiana Code § 20-33-2-12(b))] bestows upon [Brownsburg] the discretion to deny students from non-public, non-accredited, or non-approved schools, including home educated students, to enroll in less than a full time schedule unless an IEP is in effect.” Appellant’s App. p. 19. The trial court answered the question affirmatively, and nothing remained for further determination by the agency. Moreover, the children who initiated this appeal are no longer seeking part-time enrollment. Thus, the trial court acted appropriately in not remanding the case for further proceedings."

In William C. Foreman v. State of Indiana , a 14-page opinion (in a case where the record shows Jack Crawford, former lottery commissioner, represents the defendant), Judge Friedlander writes:

In this interlocutory appeal, William C. Foreman appeals the trial court’s order denying his motion to dismiss. Foreman presents the following issue of first impression: Does the penalty for Indiana Code Ann. § 4-30-14-4 (West 2002)—disclosure of confidential information relating to the lottery, a class A felony—violate article 1, section 16 of the Indiana Constitution? * * * Here, the legislature classified the penalty for disclosure of confidential information relating to the lottery as a class A felony. Given the historical backdrop of when I.C. § 4-30-14-4 was enacted, the expressed intent of maintaining the integrity of the lottery, the potential effect the commission of the crime could have on citizens of this state, and the difficulty in detecting the crime, the legislature could have reasonably determined that a severe penalty was required for the offense of disclosing confidential lottery information. Furthermore, we are not free “to set aside the legislative determination as to the appropriate penalty merely because it seems too severe.” State v. Moss-Dwyer, 686 N.E.2d at 112. In light of the presumption of constitutionality of statutes, and the heavy burden on the party asserting unconstitutionality, we are not convinced that the penalty for disclosure of confidential lottery information violates the proportionality provision of the Indiana Constitution."
Cameron M. Niemeyer v. State of Indiana - "Niemeyer’s twelve-year sentence was not inappropriate in light of his character and the offense. We accordingly affirm."

Russell Prewitt v. State of Indiana - Sharpnack: "Because the trial court only had the statutory authority to do one of the three options in Ind. Code § 35-38-2-3(g), not two of the options, we remand for resentencing."

Crone, concurring: "I reluctantly agree with the majority’s reliance on Sharp and its interpretation of Indiana Code Section 35-38-2-3(g) in reversing the trial court’s sentencing order. * * * I write separately to observe that our supreme court’s opinion in Stephens v. State, 818 N.E.2d 936 (Ind. 2004), which was issued subsequent to Sharp, emphasizes the importance of flexibility in probation proceedings."

Steve Markland v. State of Indiana - "Appellant-defendant Steven E. Markland appeals his conviction for Theft,1 claiming insufficiency of the evidence. Markland also argues that the trial court erred in ordering him to make restitution for costs relating to the disinterment and cremation of a body. Finding no error, we affirm the judgment of the trial court."

NFP civil opinions today (5):

In the Matter of the Termination of Parent-Child Relationship of M.H.; April Hill v. Putnam County Department of Child Services (NFP)

In the Matter of the Parent-Child Relationship of L.A.P., Barbara Parsons and Willie Parsons v. Elkhart County Department of Child Services (NFP)

Dennis Ray Peterson v. Dennis Meyer, et al. (NFP)

Brandy Chase, Inc. v. Big Rock Development, LLC (NFP)

Michael M. Cubel v. Debra A. Cubel (NFP)

NFP criminal opinions today (6):

Randy VanArsdale v. State of Indiana (NFP)

Bryan K. Catlett v. State of Indiana (NFP)

Rodney Plumley v. State of Indiana (NFP)

David D. Barany v. State of Indiana (NFP)

Charlie Herbst v. State of Indiana (NFP)

William H. Klinger v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Ind. App.Ct. Decisions

Courts - Inclusions in court opinions

Last week the 7th Circuit issued an opinion (see ILB entry here from April 26th) that included what appeared to be a completely gratuitous color photo on page 2 of the downed plane after it had come to rest on a city street. I mentioned it at the end of the entry.

Earlier recent 7th Circuit opinions have included satellite photos from Google (see here and here). I have assumed that these are not pieces of evidence and have wondered what the point was.

Today this entry from Howard Bashman of How Appealing notes that;

"The Court's opinion today in Scott v. Harris, No. 05-1631 -- a dispute about the lawfulness of a high-speed police chace captured on video -- appears online at the Supreme Court's web site with this 91.7 MB RealPlayer video file."
I have not yet reviewed the opinion to see what the point is here - is this a piece of evidence, or what? The U.S. Supreme Court in the past has strongly made the point that it speaks only through the words in its opinions, and that therefore allowing video access to its oral arguments would be unwarrented. But what is the point of this wave of "inclusions" in federal court opinions, if not to better explain the opinion?

[More questions] Some other questions: What do these audio-visual materials come from. Are the part of the trial record? Were they part of the appellants' briefs? Did the Court secure them on its own -- e.g. log on to Google and locate and download a satellite photo?

For more on this
, see this later ILB entry today.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Courts in general

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

Angela Mapes of the Fort Wayne Journal Gazette reports today that the remonstrance bill did pass. Find it in SEA 287 - note that the Enrolled Act is not yet available on the General Assembly's site. From the story:

Senate Bill 287 also will allow any registered voter – not just property taxpayers – to participate in the petition and remonstrance process.

Under current law, property taxpayers who want to stop a renovation or building project of a public building can conduct a petition drive in which the side with more wins.

The General Assembly created the remonstrance system in 1995.

The Indiana Court of Appeals ruled in August that the current process is unconstitutional because it is a de facto election – which the state can’t restrict to just property taxpayers.

For background, start with this ILB entry from April 25th.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Law

Ind. Courts - Another county bans cell phones in Courthouse

In today's Marion Chronicle-Tribune, Teresa Auch reports:

A move to ban cell phones in the Grant County Courthouse has proved irritating to visitors, but courthouse officials say security concerns override any complaints.

Signs popped up in March announcing that cell phones were banned - not just from courtrooms.

Circuit Court Judge Mark Spitzer said the four county judges agreed to institute the ban partly because cell phones would go off during trials.

"If you have somebody who has an important issue that's being heard in the court, and that's interrupted by someone's cell phone going off, that's annoying to say the least and causes everybody to lose focus," Spitzer said.

The main concern, though, was that people would use their cell phones to take pictures. Cameras are barred from most Indiana courtrooms.

"That opens up the ability, for instance, for one side to take pictures of another side's witness while they're on the stand as sort of an intimidation tactic," Spitzer said.

Spitzer said he did not know of any instances of this happening in any of the Grant County courtrooms, but that the judges had heard of it happening elsewhere in Indiana. They decided, then, to stop the problem before it became one.

By applying the ban to the courthouse, instead of just the courtrooms, officials can catch the phones as people go through the metal detector at the entrance, said Grant County Sheriff's Department Capt. John Cook, who is in charge of courthouse security.

Allen and Steuben Counties have also banned cell phones from the Courthouse, as reported in earlier ILB entries.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Courts

Ind. Courts - Demise of Shelby County judges greatly exaggerated

From the Shelbyville News, a story by Ron Hamilton begins:

You'll be glad to know that - despite rumors to the contrary - all three Shelby County judges are fine, fit as a fiddle and conducting business as usual at the county courthouse.

The confusion and phone calls started last weekend. Mysterious rumors began circulating around the county that Superior Court II Judge Russell Sanders had committed suicide when he discovered he had Alzheimer's disease.

"Not true," said Sanders. "I'm healthy, alert and feeling quite well."

By Tuesday morning, it was Superior Court I Judge Jack Tandy who was "dead" of a self-inflicted gunshot wound to the head, depressed over financial problems that had forced him into bankruptcy.

"Absolutely no truth to that whatsover," Tandy said. "How in the world do things like that get started?"

Not to be spared the rumor mill, Thursday morning there was "liars' table" talk around the various diners, restaurants and coffee shops in the county that Circuit Court Judge Charles O'Conner had taken his life, depressed over personal issues.

"I'm surprised rumors are circulating about me," O'Conner said. "I lead a very boring life."

Thursday afternoon, the three county judges decided it was time to quell the gossip and stop the rumor mill. They graciously agreed to be photographed at the courthouse, holding copies of the day's headlines. All three judges have taken the strange suicide rumors in stride and with a self-effacing sense of humor.

The story is accompanied by a photo of the three judges, holding up cpies of the latest edition of The Shelbyville News, to prove their viability.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Courts

Law - "Trials are on the verge of extinction - replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions"

Adam Liptak's weekly NY Times column about the legal world this week focuses on the demise of trials. A quote:

Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop — until you consider that the number of cases has quintupled in the meantime.

In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962.

The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare.

A very interesting article, unfortunately you have to buy the paper or be an online TimesSelect customer to read it in full.

However, How Appealing provides a "TimesSelect temporary pass-through link" that may work.

[More]
I've had a chance now to closely read this article, and I highly recommend it.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to General Law Related

Ind. Decisions - Transfer list for week ending April 27, 2007

There was no transfer list last week - the Court did not have conference last week.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Transfer Lists

Ind. Law - Budget passes, General Assembly adjourns

The papers are reporting that the budget (HB 1001, CCR v. 2) did pass last evening, before the General Assembly adjourned for the year.

The bill continues to include the new legislative "bonuses" for various members of the Senate discussed in the previous ILB entry. They are located on p. 7 of the PDF version of CCR v. 2, beginning on line 46.

In addition, as Niki Kelly points out in her story today in the Fort Wayne Journal Gazette, the bill includes:

State reimbursement on new trial costs when the Indiana Court of Appeals or Indiana Supreme Court calls for a new trial.
To see that language, go to p. 121 of the PDF version of CCR v. 2, starting on line 23. Here is subsection (d), starting on line 42:
(d) The office division of state court administration (IC 33-24-6-1) shall administer a program to pay claims for reimbursement under this section. The maximum amount that may be reimbursed for all proceedings and all offenses arising out of the same facts is fifty thousand dollars ($50,000). The maximum amount that may paid in any particular year for all expenses otherwise eligible for reimbursement under this section is one million dollars ($1,000,000). If the total of all claims that would otherwise be eligible for reimbursement under this section exceed the maximum amount that may be reimbursed under this subsection, the division of state court administration shall prorate reimbursement of eligible expenses, as determined by the division of state court administration.
Read Kelly's long and detailed story here, in conjunction with Patrick Guinane's coverage from the NWI Times, Bryan Corbin's coverage from the Evansville Courier & Press, Mike Smith's AP coverage, and Theodore Kim's Indy Star coverage. Kim's story concludes:
The 225-page budget, which was first provided to the public early Sunday, offered some last-minute surprises. The budget contained a provision giving additional raises to Senate leaders, including $500 for Senate President Pro Tempore David C. Long, R-Fort Wayne.

The bonuses would come on top of the pay raise legislators are already getting under a bill signed into law by Daniels last week, which takes their base pay from $11,600 to more than $20,700 and also guarantees annual raises whenever state employees get one.

Long said he would give "the small $500" that he gets to charity. [Note that the Star reported yesterday: "Long said the increases were “primarily” for committee chairmen. Currently, most committee chairmen do not receive additional pay. Under the provision, most would receive a $1,000 bonus."]

One wonders, though, if any of these Senate "bonuses," which are intended to be effective in FY 2007-2008 (i.e. during the currently elected General Assembly), are valid. Recall that the overall pay raise is keyed to go into effect in 2009. Why? Because of Art. 4, Sec. 29 of the Indiana Constitution:
The members of the General Assembly shall receive for their services a compensation to be fixed by law; but no increase of compensation shall take effect during the session at which such increase may be made.
"A rose by any other name ...".

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Law

Sunday, April 29, 2007

Ind. Law - "Budget threatened by new legislative pay provision" [Updated]

Apparently not satisfied with their new pay raise, legislators are adding pay "bonuses" for themselves in the budget bill, according to a story just posted a few minutes ago by Mary Beth Schneider and Karen Eschbacher of the Indianapolis Star. Here are some quotes in what may be a fast-changing story:

Contentious provisions — including bonuses for key lawmakers — threatened to derail passage of the state budget today, with lawmakers facing a midnight deadline to complete work.

Failure would force a special session.

A draft copy of the budget — House Bill 1001 — which was released this morning, shows it still contains a stipulation that would force Gov. Mitch Daniels to appoint Democrats to the Ivy Tech Community College board of trustees. House Ways and Means Chairman Bill Crawford, D-Indianapolis, who is on the Ivy Tech payroll, had said Saturday that that provision was removed. [See yesterday's Star story on this here.]

Today, Crawford said he was shocked to discover this morning that it still is in the budget, buried deep in the 225-page draft. Asked whether it will be removed, he said: “Possibly.”

In addition, the budget contains a provision giving additional raises to Senate leaders, including $500 for Senate President Pro Tempore David Long, R-Fort Wayne.

Those bonuses are on top of the pay raise legislators are already getting under a bill signed into law by Daniels last week, which takes their base pay from $11,600 to more than $20,700 and also guarantees annual raises whenever state employees get one.

With the additional leadership pay, Long, for instance, would get an extra $7,000 a year, up from $6,500. The speaker of the House, B. Patrick Bauer, D-South Bend, would still receive $6,500.

Long said the increases were “primarily” for committee chairmen. Currently, most committee chairmen do not receive additional pay. Under the provision, most would receive a $1,000 bonus.

“It’s a small thank-you for what they do,” he said. “It’s a phenomenal amount of work to do it right. They deserve to be compensated for it.”

But the Ivy Tech and extra-pay provisions threatened to implode budget negotiations, which must conclude today, the final day of the 2007 legislative session.

Those of you who have been following the pay bill in the ILB may not be surprised at this story. For background on the non-transparent legislative pay provisions incorporated in the budget bill, see this ILB entry from April 10th and its links, as well as this entry from April 15th and this one from April 24th.

And there is more. A "companion bill" was passed, along with the legislative pay bill, last week. The ILB admits that it knew nothing about this bill, and read nothing about it in the press until after it had passed.

The bill is SB 501. Part of it makes some sense. State employees who are eligible for state retirement but not yet eligible for Medicare (i.e. not yet 65) are often hesitant to take early retirement because it means they lose their access to affordable group insurance coverage (after the 18-months of Cobra access has terminated).

SB 501 is apparently designed to address that problem. I had not written about it yet because I have not had a chance the review it. My immediate question is, how does providing some extra money to early retirees resolve the access to affordable insurance problem? A related question is - why exactly should legislators who are leavng the General Assembly before they turn 65 be included in this "bonus"?

Here is how Niki Kelly of the Fort Wayne Journal Gazette described the new health care benefit in an April 25th story:

The governor also signed Senate Bill 501, a companion bill that establishes a retirement medical benefits account for state employees of all three branches of government as well as elected and appointed officers.

Legislators previously had authorized a special state-supported retirement health plan for only themselves. But it became a sensitive political issue, and they officially repealed it in the pay raise bill.

As a result, though, the General Assembly decided to set up a similar plan for all retiring state employees or elected officials who have served at least 10 years.

It requires the state to make annual contributions to the account based on the age of the employee, from $500 for employees younger than 30 to $1,400 for employees 50 or older.

In addition, there is a “catch-up” provision for any state employee retiring with at least 15 years of service or elected officer with at least 10 years of service. This supplemental contribution – meant to beef up the account in the first 10 years of existence – would be $1,000 for every year of service.

The catch-up would expire in 2018.

Money in the account can be used for health care costs of all kinds after retirement, including insurance premiums. If there is a balance in the account when the employee reaches 65, the money can be used to supplement Medicare coverage.

Senate President Pro Tem David Long, R-Fort Wayne, said although legislators would be eligible “this is really more for state employees” to bridge the gap between retirement and Medicare coverage.

Rep. Mike Ripley, R-Monroe, voted against the bill in the House, noting he couldn’t vote for a cash benefit for himself. He is serving his 11th year in the legislature.

Ripley said the plan is a great perk for state employees but that he doesn’t “know of any private corporation with a program like this.”

Several Democrats who voted against it said the plan didn’t go far enough.

“You can put money in for 20 years and still not have enough money to buy insurance for two years,” said Rep. Craig Fry, D-Mishawaka.

The new program will cost the state $55.7 million in the first year, with that number staying in that range before dropping substantially in 2018 after the 10-year catch-up provision expires.

So add another piece to the so-called "transparent" legislative benefits package. The ILB hopes at some point to put together a spread-sheet on legislative compensation, that would be able to produce the real amount any specific legislator is receving for his or her legislative service in any year. I don't expect it to be any easy task.

Finally, the Indianapolis Star had an editorial today on legislative ethics rules. A little late. Where were they (and other state papers) on this issue during the session, and why are they still not talking about the real issues of "part-time" legislators heading committees that reflect their real life employment, and "part-time" legislators holding important, highly-paid policy positions at Ivy Tech?

Recall this ILB entry from April 17th, about an Alabama paper winning a Pulitzer Prize this month for its series of stories about a number of their state legislators who worked for Alabama's community college system. In Alabama, according to the story:

Legislators defended the payments they received from the two-year college system, noting they need to earn a living. The lawmakers said they receive just over $30,000 a year in part-time salary and expenses from the Legislature.
From The Birmingham News' announcement of the Pulitzer:
Mr. Blackledge, 43, won for his work exposing extensive corruption and cronyism in Alabama’s network of 26 two-year colleges and training schools.

Mr. Blackledge’s reporting has led to the chancellor’s dismissal and to a move by the governor to ban the hiring of any state legislator by any of the colleges.

[Updated at 6:15 pm] More information on Ivy Tech, Indiana's community college system, has been added to the end of the online Star story this afternoon:
The outgoing Ivy Tech president, Gerald Lamkin, has been at Speaker of the House] Bauer’s office throughout much of the final hours of the session.

Bauer and [House Ways and Means Chairman Bill] Crawford are both employed by Ivy Tech. Bauer is vice president of external partnerships and Crawford is manager of community relations and outreach programs

For more, see this Oct. 8, 2006 ILB entry, headed "Should legislators should be allowed to serve as officers or directors of state universities and schools?"

The newly updated Star report states that:

One of two contentious issues that carried the potential to derail a new state budget was defused this afternoon, just hours before the General Assembly’s midnight adjournment deadline. The other, involving bonuses for key Senate lawmakers — remained unresolved.

The first of the two problem provisions, which would have required Gov. Mitch Daniels to appoint Democrats to the Ivy Tech Community College board of trustees, was removed from the budget.

Here is the revised CCR for HB 1001 (i.e. v.2).

Posted by Marcia Oddi on Sunday, April 29, 2007
Posted to Indiana Government | Indiana Law

Ind. Gov't. - How wrong is your tax assessment in an era of falling home prices?

"Homeowners Wage a Tax Rebellion: Rising Property-Value Assessments Drive Up Appeals as House Prices Decline" is the headline of a freely-available article in this weekend's edition of the Wall Street Journal. Moreover, the article uses three examples, one of them being a homeowner in Fort Wayne, Indiana. Some quotes from the story by Jeff D. Opdyke:

The problem: Tax assessments didn't keep pace with soaring property values in recent years. Now, assessments are catching up at the worst possible time, just as property prices soften. In theory, municipalities are supposed to roll back tax rates to offset rising property assessments. But many don't do it regularly, or do so to a lesser degree than they should, says Kenneth Wilkinson, the appraiser for Lee County.

"In today's market, I'd be lucky to get within $30,000 or $40,000 of my assessed value," says Jack Shearer, a real-estate broker in Fort Wayne, Ind., who a month ago began the process of appealing a recent reassessment that valued his home at $245,000. Mr. Shearer says he brokered the $185,000 sale of a house in his neighborhood four months ago, yet the assessed value on that house recently came in at close to $220,000.

Under Indiana law, assessments are based on sales data that is two years old. Thus Mr. Shearer's house was valued based on data from 2004-05, when, he says, prices "were much stronger."

Indeed, Allen County, home to Fort Wayne, has seen a surge of appeals in recent years, sparked by a statewide move in Indiana, as with other parts of the country, to assess properties based on current market value instead of cost.

That is leading to "sticker shock," says Stacey O'Day, Allen County's assessor. The system "is capturing in one swoop the increase in market value that happened over five years."

It is happening despite the fact that lawmakers in states such as Florida, New Jersey and Nebraska are proposing to cut property taxes or cap increases, or are offering rebate checks to homeowners to take some of the sting out of rising property reassessments.

Because property taxes are a local affair, national data are tough to come by. The National Taxpayers Union, an advocacy group in Washington, estimates that 30% to 60% of all homes are overassessed. The group says homeowners who lodge appeals win a reduction in their home's assessed value 30% to 50% of the time.

The reassessment mania has spawned a mini-industry of consultants and mass-mailings offering to help people cut their bills. Last month, Protest, a property-tax consulting firm in Arlington, Texas, sent mailers to its clients and others, reminding them that they have just 30 days to challenge their latest assessment.

The firm charges a $150 fee, plus a "success fee" of between 50 cents and 75 cents per $100 of market-price reduction on a home. Tim Spoonemore of Protest says that while most people "can do this on your own, it's time-consuming when you have a hectic schedule."

Indeed, tax experts generally say there is little reason to hire help when appealing an assessment, particularly given that the fee can wipe out much of any first-year savings.

Posted by Marcia Oddi on Sunday, April 29, 2007
Posted to Indiana Government

Law - Courts in three other states have found traffic restrictions bearing similarities to Louisville's Broadway cruising plan to be unconstitutional

From a story today Jim Adams in the Louisville Courier Journal:

Courts in three other states have found traffic restrictions bearing similarities to Louisville's Broadway cruising plan to be unconstitutional, the attorney for the west Louisville businesses challenging the plan has argued in a new brief in U.S. District Court.
What is the plan?
The city plans to restrict traffic between Ninth and 28th streets to those bearing passes, and to close Broadway from 28th to 34th streets to essentially all but residents. Louisville Metro Police intend to station 410 officers, roughly a third of the department, along Broadway on Friday and Saturday nights. Louisville police and attorneys have argued that violence during cruising, including one murder in 2005, justifies the restrictions.

The plaintiffs, however, argue that the plan is discriminatory and will cost them up to $150,000 in sales.

More from the story:
Ramon McGee -- the attorney representing the Justice Resource Center, a civil-rights group, and a dozen minority-owned businesses on or near West Broadway -- called attention in the brief to controversies over traffic plans in three cities:

In 1999, a federal judge issued a preliminary injunction preventing Daytona Beach, Fla., from implementing bridge closings and a system of granting vehicle access passes to residents, business owners and registered hotel guests during the weekend when tens of thousands of people attended the annual Black College Reunion. Among other things, the court found that the pass system "does not comport with the First Amendment's guarantee that the right of assembly will not be tied to an individual's economic status or residence."

In 2001, the Supreme Court of Connecticut struck down a 24-year-old Greenwich, Conn., ordinance that limited access to a beachside park to residents and their guests by a system of passes. The court said the ordinance, among other things, "does not pass federal constitutional muster," in large part because it denied rights of assembly.

In 2006, the U.S. District Court for South Carolina granted a preliminary injunction prohibiting Myrtle Beach, S.C., from enforcing a traffic plan for Black Bike Week, which is attended by thousands of African-American motorcyclists. The plan differed substantially from the city's plan for Harley Week, which mostly draws white motorcyclists. The Black Bike Week plan required one-way travel on, and limited access to, a five-mile section of Ocean Boulevard, while the Harley Week plan allowed two-way travel. The court found, among other things, that plaintiffs challenging the plan were likely to prevail on their claim that the plan violated the constitution's equal protection clause by treating similar groups differently on the basis of race. Myrtle Beach failed to show "a compelling basis for treating the two motorcycle events differently," the court said.

The LCJ also provides links to the plaintiffs' initial and amended complaints.

Posted by Marcia Oddi on Sunday, April 29, 2007
Posted to General Law Related

Ind. Law - Status of fireworks, serial meeting, and CAFO bills

Fireworks. Angela Mapes of the Fort Wayne Journal Gazette writes today in a story that begins:

Local governments can regulate the use of fireworks 352 days a year under a bill that passed Saturday after weeks of tweaking by state lawmakers.

While giving municipalities authority the majority of the year, Senate Bill 9 creates 13 “holy days” centered on major holidays with protected hours. * * *

But some lawmakers worried that the bill would just create confusion if the fireworks regulations varied greatly from one municipality to another. * * *

Under the new bill, local governments can’t limit the use of fireworks between 5 p.m. and two hours after sunset from June 29 through July 9, except on July 4. On July 4, fireworks usage is protected from 10 a.m. to midnight.

From 10 a.m. Dec. 31 to 1 a.m. Jan. 1, fireworks use also is protected, according to the approved bill.

If local governments don’t place their own regulations on fireworks displays, they will remain under the broader state law.

See also the ILB entry from April 26th headed "An improvement to the current fireworks law?"

Serial meetings. From the Evansville C&P:

Lawmakers have passed the so-called "Bob Knight rule" to close the serial-meetings loophole in the Indiana Open Door law and prohibit elected officials from breaking into small groups, behind closed doors, to conduct official business in private that should be conducted in public.

The House on Friday voted 89-6 for the legislation, Senate Bill 103, before the Senate approved it 43-2, sending it to Gov. Mitch Daniels for his consideration. * * *

Although the Knight case was the best-known example, bill author Sen. Beverly Gard said other serial meetings have occurred on elected councils, commissions and boards elsewhere in the state. She recalled one example in her district where council members held a series of impromptu nonpublic gatherings to correct an oversight in a budget they had previously passed.

"That's not the way you do things," Gard said. "I don't think it was a deliberate attempt to circumvent the public process; I think it was expeditious on their part, because they were down to the wire. I think they just didn't think it through."

Rep. Russ Stilwell, D-Boonville, said the Senate bill now incorporates provisions from a similar serial-meetings bill he got passed in the House.

Under the bill, Indiana's Open Door Law would be violated if the following criteria were met:

- One of the gatherings is attended by at least three members of a governing body but less than a quorum, and the other gatherings include at least two members.

- The total number of members attending the gatherings equals a quorum.

- All the gatherings concern the same subject matter and are held within seven days.

- The gatherings are for the purpose of taking official action, which includes receiving information, deliberating, making decisions or taking final action.

Serial meetings would include in-person gatherings or telephone conversations but not e-mail. They would not include such things as social gatherings, a political caucus to discuss strategy, or gatherings to discuss an industrial or commercial prospect that did not result in recommendations or decisions.

Senate Bill 103 would allow anyone who alleges that serial meetings had occurred to file a lawsuit in court seeking to invalidate any policy or decision that was made based in whole or in part on such behind-closed-door gatherings.

Confined Feeding. Angela Mapes writes in the Fort Wayne Journal Gazette:
A bill that would increase inspections required for confined animal feeding operations has come under threat because lawmakers can’t agree on a key point.

A House version of a bill brought by Rep. Phil Pflum, D-Milton, included a prohibition against new confined operations locating within 1 mile of a city or school.

Pflum wants that provision included in Senate Bill 431, the one confined feeding bill still alive before the legislature, but Senate leadership is balking at the idea.

Confined and concentrated feeding operations raise hundreds to thousands of cows, pigs and chickens in a small area and store treated waste in lagoons or apply it to acreage.

Sen. Beverly Gard, R-Greenfield, chairwoman of the Senate Energy and Environmental Affairs Committee, believes applying a 1-mile setback to all confined feeding operations would be a mistake.

Local governments should regulate where confined feeding operations locate, Gard said Friday.

A one-size-fits-all approach would be impractical at best and dangerous to the environment at worst, said Gard, a former biochemist. Geography specific to application locations, such as aquifers, can affect whether an application site is suitable for a confined feeding operation.

City and counties can pass zoning regulations on confined feeding operations, including where the operations can locate, although many communities have not done so.

If Pflum won’t sign off on the bill because of the setback issue, he will keep the other beneficial parts of the bill from passing, Gard said.

By increasing fees, the proposal gives the Indiana Department of Environmental Management resources to inspect confined feeding operations more often.

The approximately 2,300 operations in Indiana now are inspected about once every seven years, or in response to specific complaints.

The bill also would require applicants to disclose past environmental violations. Pending applications would be included in the requirement, Gard said. * * *

But to Pflum, the entire point is the setback and what he believes it would do to protect homeowners – protection many local governments don’t currently offer.

“Our home is our sanctuary,” he said. “It’s all about location.”

Rep. Thomas Saunders, R-Lewisville, agreed, saying the state already regulates how close sex offenders can locate near schools – and regulates setbacks related to landfills and liquor stores –and that a setback for confined feeding operations is no different.

Posted by Marcia Oddi on Sunday, April 29, 2007
Posted to Indiana Government | Indiana Law

Saturday, April 28, 2007

Law - Federal law says creditors can't take Social Security and Veteran's benefits to pay debts, but the practice is widespread

The Wall Street Journal has a troubling front-page story today ($$$) that begins:

Heart surgery halted Viola Sue Kell's work sewing carpets in a rug mill in 2001. It was the end of 40 years of cleaning motel rooms, restaurant jobs, "just hard stuff," says Mrs. Kell, a 64-year-old widow. She applied for Social Security disability, and her monthly $827 benefit now is her only income.

But when Mrs. Kell tried to pay her mortgage and electric bills in 2004, her checks bounced. Every cent of the Social Security check, which went straight to her bank each month, had been taken by a debt collector that had garnished her bank account.

[More] Here is the pull-quote from the printed version of the story:
Direct deposit of Social Security checks, meant to make them secure, can leave benefits vulnerable.

Posted by Marcia Oddi on Saturday, April 28, 2007
Posted to General Law Related

Ind. Law More on "Gary Curfew law on solid ground, council says"; ICLU approval

Andy Grimm of the Gary Post-Tribune had a story today on northwest Indiana towns "taking a second look at curfews." This follows on a story from the Tribune earlier this week - see ILB entry here - on the curfew ordinance passed Tuesday by the Gary City Council. Some quotes:

In Gary, police and city attorneys are working out kinks in a plan for strict summertime enforcement. Police could detain curfew violators and require their parents to pick them up at the station, write the teens a $50 ticket and give them a date for a juvenile court hearing.

"I cannot wait to start enforcing it," said juvenile officer Darlene Breitenstein. "A lot of people get hurt and a lot of people get in trouble during those forbidden curfew hours."

In Porter, police commission members have asked the Town Council to draft a curfew ordinance in part to help them deal with petty crimes committed by idle youths, Police Chief James Spanier said. * * *

Teens roaming around Northwest Indiana said they didn't know anything about their town curfews, but most said their parents took care of the curfew rules.

Adam Kabella, 16, of Hebron, Dylan Newhouser, 15, of Lowell, and Jake DeWees, 16, of Lowell, said their parents gave them no curfew and would protest a town ordinance.

"We probably would have a bunch of kids sign something, and bring it to the government," Newhouser said. "We'd protest."

Joshua Cervantez, 14, of Merrillville, said a town-established curfew wouldn't hamper his lifestyle, as his parents have already done their damage.

"My parents want me to be home at 10:30," Cervantez said. "By the latest."

Chesterton police haven't enforced the curfew law since the constitutional challenges began in 2000, and they seldom need to.

Teens, and anyone else, can be thrown out of most public parks at 10 p.m. -- and sooner, if a patrolman hears too much noise or witnesses vandalism.

Still, in his small town, they also have noticed teens out before the 5 a.m. curfew hours.

"You'll see a couple kids walking down the road at 3 a.m.," he said. "Nine times out of 10, they were going fishing. And they'd have their poles to prove it."

Curfew laws had gone on and off the state books three times since 2000, passed by legislators and swiftly struck down by court challenges. Local curfew ordinances, usually just stricter versions of the state statute, likewise were unenforceable.

The most recent, constitutionally sound version of the state law the city ordinance is modeled on protects the First Amendment rights of those under 18 to attend protests, and to be out with parents' permission or in an emergency, said Ken Falk of the Indiana Civil Liberties Union.

Falk questions whether the curfew hours established by the state, or even earlier hours settled by a municipality, will reduce youth crime but says the new law won't face a challenge from the ICLU.

Posted by Marcia Oddi on Saturday, April 28, 2007
Posted to Indiana Law

Ind.Decisions - Yet more on "Gay-rights article stirs debate over student freedoms" [Updated]

The Fort Wayne Journal Gazette has both a story and an editorial today on the settlement reached Thursday between Amy Sorrell, "a teacher at Woodlan-Junior Senior High School in Allen County who was suspended in March after a column appeared in the school newspaper calling for tolerance toward gays" (description from the Ind. Star) and the East Allen County Schools (EACS). Both today's story and editorial should best be read in full. The editorial begins:

Administrators at East Allen County Schools had an opportunity to demonstrate compassion and tolerance in reaching an agreement with teacher Amy Sorrell. Instead, they used the occasion to continue their attacks on her character and professional judgment and to leave little doubt that defense of their own reputations takes precedence over creating a supportive environment for teaching and learning.

The bitter remarks contained in statements presented by Superintendent Kay Novotny and Assistant Superintendent Andy Melin suggest they did not support the settlement agreement that allowed Sorrell to continue teaching, albeit at a different high school. What looked initially like a compromise in which both the district and Sorrell gave up something and prepared to move on appears to be the first salvo in an effort to create a hostile environment for the teacher.

Melin lauds the district’s willingness to settle as demonstrating “an exceptional level of compassion and fairness.” On the contrary, their statements and the entire episode have demonstrated a rigid and undiscerning allegiance to administrative prerogative.

Here, from the news story, are some of the comments to which the editorial refers:
As part of the settlement, Sorrell had to issue an apology stating that she did not intend her actions or comments over the last three months to suggest that administrators were intolerant toward homosexuality. The settlement also dictated Sorrell and East Allen issue a joint statement in which Sorrell acknowledged that EACS has the right to regulate school-sponsored publications and EACS acknowledged students have certain rights under the First Amendment.

[Superintendent Kay Novotny] said administrators accepted Sorrell’s apology.

“(We) assume that her statement of apology was sincere and heartfelt and not some shallow, insincere statement made, with her fingers crossed behind her back, in order to save her job,” Novotny said.

Regarding Sorrell’s acknowledgement of the district’s authority over student publications, Novotny said, “Had Mrs. Sorrell displayed this newfound wisdom earlier, there would have been no personnel matter to precipitate this recent controversy.”

The editorial today concludes:
At the district’s request, the settlement was made public and allowed either party to comment on its terms – seemingly to ensure that administrators would have the last word. Their last words should make it clear to East Allen students, parents, faculty and staff that administrators have learned nothing from the case. Their attempts to blame the media for the controversy ignore the district’s own bungled handling of the situation that included the board refusing to allow discussion about the First Amendment at a public meeting.

Their caustic response to the settlement clearly shows that those who attempt to exercise their rights risk a personal and professional ordeal.

Friday’s statements were an unfortunate ending to what should have been a constructive discussion of student press issues and an unfortunate beginning to a talented teacher’s reasonable attempt to move on.

(For background, start with this ILB entry from April 26th.)

[Updated Saturday evening] The afternoon Fort Wayne News-Sentinel contains a story by Ese Isiorho that begins:

At least one apology has been issued in the matter of Amy Sorrell vs. East Allen County Schools, and district officials hope it’s not the last.

“Although Mrs. Sorrell’s apology is the first one received, it should not be the last apology East Allen County Schools and its administrators should receive on this matter,” said Superintendent Kay Novotny at a news conference Friday morning.

The story includes a detailed timeline.

Posted by Marcia Oddi on Saturday, April 28, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Daniels vetoes film industry bill" - Concerns about maintaining a permanent historical record

"Daniels vetoes film industry bill" is the headline to a brief story by Bill Ruthhart on the Indianapolis Star website:

Gov. Mitch Daniels vetoed his first bill in more than two years Friday, rejecting a measure that would provide tax incentives to the film industry.

House Enrolled Act 1388 allowed for tax and other financial incentives to encourage film and media productions in the state.

In a letter to House Speaker B. Patrick Bauer, D-South Bend, Daniels said he disagreed with the legislation's provision to allow unlimited refundable tax credits for all media productions under $6 million and a 15 percent credit to other production-related expenses.

I have expressed concerns in the past about the lack of preservation of Indiana governors' signing statements, veto messages, and related materials.

See "Executive Orders, Signing Statements, and Veto Messages, Part One," 49 Res Gestae 8 (Apr. 2006), pp. 35-37". The article is accessible here. See particularly the section titled "State signing statements," beginning on p. 4. and the section on "Veto messages" on p. 6.

So where is the Governor's veto message?
And where is the "letter to House Speaker B. Patrick Bauer, D-South Bend" expressing the Governor's concerns? NOT where they would have been found during the terms of past governors, on the monthly calendar of press releases.

And how have the signing statements and veto messages of our more recent governors, which had been at one time available online, been preserved?

Posted by Marcia Oddi on Saturday, April 28, 2007
Posted to Indiana Law

Friday, April 27, 2007

Ind. Decisions - Supreme Court rules on application of the Wage Payment Statute to school corporations

In Naugle v. Beech Grove Schools, a 13-page, 5-0 opinion, Justice Boehm writes:

We hold that the term “days” as used in the Wage Payment Statute refers to business days and not calendar days. We also hold that (1) our reasoning in Brownsburg Community School Corp. v. Natare Corp., 824 N.E.2d 336 (Ind. 2005) does not prevent the application of the Wage Payment Statute to school corporations; (2) there is no school powers statute that precludes application of the Wage Payment Statute to school corporations; (3) there is no generic good faith defense to the Wage Payment Statute; and (4) there is no requirement within the Ten-Day Rule of the Wage Payment Statute that the employee request or demand wages. * * *

The Wage Payment Statute provides that “[p]ayment shall be made for all wages earned to a date not more than ten (10) days prior to the date of payment.” Ind. Code § 22-2-5-1(b). * * *

Beech Grove contends that this case is controlled by the reasoning of this Court in Brownsburg Community School Corp. v. Natare Corp., 824 N.E.2d 336 (Ind. 2005), reh’g denied. Beech Grove contends that it is a public school and therefore it is not subject to the Wage Payment Statute because the General Assembly did not intend for public school corporations to be subject to statutory liquidated damages. The trial court agreed with that argument, and the Court of Appeals affirmed. Naugle, 840 N.E.2d at 858-59. We do not agree that Brownsburg applies to this case. * * *

We conclude that the Wage Payment Statute applies to school corporations. This holding is consistent with a number of pre-Brownsburg opinions from the Court of Appeals that assumed without specific discussion that the Wage Payment Statute applied to governmental employers. [citations omitted] The failure of the legislature to change the statute to exclude governmental employers in light of these decisions also supports this interpretation of the statute. * * *

Finally, Naugle and Cain argue that this interpretation of “days” under the Ten-Day Rule will produce adverse consequences under other Indiana statutes that refer to “days.” Our interpretation of “days” in the Ten-Day Rule of the Wage Payment Statute is based on the language and purpose of this statute. It has no particular force in other contexts.

Conclusion. For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Beech Grove.

Posted by Marcia Oddi on Friday, April 27, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - 7th Circuit Bar Association meeting May 6-8 in Milwaukee

The 7th Circuit Bar Association is meeting May 6-8 in Milwaukee. Take a look at the agenda for Monday morning, May 7, 2007, on "The Evolution of Media Coverage of the Supreme Court," featuring two panels, one of "traditional media," and one of "bloggers." I'd love to be there to hear the panelists:

9:00 AM Welcome and Introductions
Honorable Frank H. Easterbrook, Chief Judge, United States Court of Appeals for the Seventh Circuit, and Dan Conley (Quarles & Brady), President, Seventh Circuit Bar Association

9:15 AM – 9:45 AM Opening Address: The Evolution of Media Coverage of the Supreme Court
Joan Biskupic, USA Today, Supreme Court reporter and author

9:45 AM – 10:45 AM Traditional Media’s Coverage of the Supreme Court
Moderator: Mike Gousha, Distinguished Fellow in Law & Public Policy, Marquette University Law School
Panelists: Joan Biskupic (USA Today); David Savage (LA Times); Stephen Henderson (Washington Bureau of McClatchy Newspapers); Professor Jonathan Turley (George Washington Law School); Dean Joseph D. Kearney (Marquette University Law School)

10:45 AM – 11:00 AM Morning Break

11:00 AM – 12:15 PM The “New” Media: Bloggers and the Courts
Moderator: Honorable Diane S. Sykes, Circuit Judge, United States Court of Appeals for the Seventh Circuit
Panelists: Professor Ann Althouse, University of Wisconsin Law School (“Althouse”); Howard Bashman, Law Offices of Howard J. Bashman (“How Appealing”); Professor Jason Czarnezki, Marquette University Law School (“Empirical Legal Studies”); Professor Richard Garnett, University of Notre Dame Law School (“Prawfsblog”); Professor Christine Hurt, University of Illinois College of Law (“Conglomerate”); and Professor Eugene Volokh, UCLA Law (“The Volokh Conspiracy”)

Posted by Marcia Oddi on Friday, April 27, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

Virginia Meister v. State of Indiana and the City of Union City, Indiana - "Virginia Meister appeals the trial court’s judgment forfeiting her truck, which was seized after her son, John Wymer, drove her truck, was arrested for driving while suspended, and had methamphetamine in the truck." Affirmed.

John L. Brimhall and Courtney Brimhall v. Jeffrey A. Brewster and Autumn Brewster - "John and Courtney Brimhall appeal the trial court’s grant of Jeffrey and Autumn Brewster’s Motion for Relief from Entry of Judgment, filed pursuant to Ind. Trial Rule 60(B)(8). The Brimhalls present the following consolidated and restated issue for review: Did the trial court properly grant the Brewsters’ T.R. 60(B)(8) motion, which reinstated the Brewsters’ cause of action against the Brimhalls? We affirm."

James H. Higgason, Jr. v. Indiana Department of Correction - "Under I.C. § 34-58-1-2, a trial court may dismiss an offender’s claim if it determines the claim is frivolous, not a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from liability. Here, the trial court dismissed Higgason’s Complaint pursuant to I.C. § 34-58-2-1, which provides that if an offender has filed at least three civil actions in which a state court has dismissed the action or claim under I.C. § 34-58-1-2, the offender may not file a new complaint or petition unless a court determines that he is in immediate danger of serious bodily injury. * * * Higgason has filed more than a hundred complaints in his thirty-plus years of incarceration, and has occupied valuable time and resources of the trial court, this court, as well as our supreme court. Furthermore, we find nothing in the record to substantiate Higgason’s claim that he is immediate danger of serious bodily injury. * * * Based on the foregoing, we conclude that the trial court properly dismissed Higgason’s Complaint pursuant to I.C. § 34-58-2-1. Affirmed.

NFP civil opinions today (2):

In the Matter of the Involuntary Termination of Parent-Child Relationship of J.L.: Erica Lockett v. Marion County Office of Family and Children (NFP) - termination, affirmed.

Indiana Patient's Compensation Fund v. Ruth Hoeflin-Oakley, Robert Oakley, and Faith Oakley (NFP) - "Here, neither Ruth nor Robert was the actual victim of the malpractice, and they may not recover under their own statutory caps. As Faith has already been awarded the statutory maximum recovery for her injury, her parents cannot recover additional excess damages from the Fund. The trial court’s separate awards to Ruth and Robert are, therefore, reversed."

NFP criminal opinions today (4):

State of Indiana v. Kelly Fowler (NFP)

Tameka Cathey v. State of Indiana (NFP)

Jody Lee Sinclair v. State of Indiana (NFP)

Todd Eugene Trumann v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 27, 2007
Posted to Ind. App.Ct. Decisions

Thursday, April 26, 2007

Courts - "The Lottery Giveth and The Lottery Taketh Away"

Decision of the Day had a summary yesterday of a very interesting 8th Circuit decision involving an Iowa law, in Hawkeye Commodity Productions, Inc. v. Vilsack, 06-2406 (8th Cir., Apr. 24, 2007)>. From the summary:

Here’s an interesting constitutional challenge from the Eighth Circuit involving Iowa’s decision to cancel a popular new lottery game. To reverse a pattern of budget shortfalls in 2000 and 2001, Iowa turned to “TouchPlay,” a machine that dispensed lottery tickets with all the bells and whistles of a slot machine. After TouchPlay’s successful 2003 launch, plaintiff Hawkeye Commodity Promotions responded to the lure of flashing dollar signs by investing almost $7 million to put TouchPlay machines in stores all over Iowa.

But Hawkeye’s gamble failed in a big way. Just as Hawkeye was ramping up its operations, the Iowa legislature was debating the evils of gambling. In 2006, Iowa decided to cancel the all-too-successful TouchPlay program. Hawkeye sued, arguing that the decision violated its rights under the Contracts, Equal Protection, Takings, and Due Process clauses of the Constitution, but the district court rejected its claims. On appeal, the Eighth Circuit affirms, explaining that lottery programs are always subject to revocation, so investors should beware.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Courts in general

Ind.Decisions - Even more on "Gay-rights article stirs debate over student freedoms" [Updated]

More today on Amy Sorrell, the faculty sponsor of a high school paper that published an opinion piece by a student urging tolenance for gay students. (For background, start with this ILB entry from April 6th.)

This afternoon Rob Schneider of the Indianapolis Star writes in a brief story:

A teacher at Woodlan-Junior Senior High School in Allen County who was suspended in March after a column appeared in the school newspaper calling for tolerance toward gays, has accepted a settlement with the school district.

Amy Sorrell, 30, said the agreement was to be finalized this afternoon. It calls for her to be transferred to another high school where she will teach English. The agreement bars her from teaching journalism for three years.

Officials of the East Allen County Schools could not be immediately reached for comment.

Sorrell was placed on paid leave on March 19, two months after the school newspaper ran a column by a student about a friend who was gay.

School officials said the column’s content wasn’t suitable for the school paper.

Ese Isiorho of the Fort Wayne Journal Gazette has a somewhat longer story, headed "Settlement allows Sorrell to continue teaching."
Amy Sorrell will continue teaching, but not journalism and not at Woodlan Junior-Senior High School.

East Allen County Schools Superintendent Kay Novotny put her on paid leave March 19, two weeks after her journalism class refused to print a new district policy in the paper making principals publishers and all material subject to review. The policy was implemented after a column from sophomore Megan Chase published in the school newspaper Jan. 19 urged tolerance of homosexuals.

Sorrell was scheduled to have a public hearing Saturday to explain why she should be allowed to keep her job.

Instead, her lawyer, Pat Proctor, and EACS attorney, Tim McCaulay, agreed this week to settle the matter. Sorrell would only say she’s glad it’s over, and that part of the settlement allows her to teach English at Heritage Junior-Senior High School. She taught journalism and English at Woodlan.

Sorrell has yet to sign the settlement, but said she expected to sometime today.

The school board was supposed to decide Tuesday whether Sorrell would be allowed to keep her job at Woodlan.

[Updated 4/27/07] Krista J. Stockman has an informative story today in the Journal Gazette that reads in part:
Embattled Woodlan Junior-Senior High School journalism teacher Amy Sorrell will continue teaching under an agreement reached Thursday with East Allen County Schools.

The agreement places Sorrell on paid administrative leave for the rest of the school year and requires her to serve a five-day unpaid suspension, said her attorney, Patrick Proctor of Eilbacher Fletcher Attorneys.

The settlement also relocates her to Heritage Junior-Senior High School in the fall. Sorrell’s exact position hasn’t been determined, but it will not be teaching journalism, he said.

“I do not agree with the reprimands that have been issued against me. However, due to my personal financial circumstances, I am not in a position to contest the disciplinary action contained in the written settlement agreement between myself and the school administration,” Sorrell said in a written statement.

Sorrell has been on paid leave since March 19 from her position at Woodlan, where she taught newspaper, yearbook and English, including Advanced Placement English.

She was a popular teacher but lost favor with administrators after a student opinion column suggesting tolerance for homosexuality ran in the student newspaper in January. Shortly after the column ran, Woodlan Principal Ed Yoder notified Sorrell that all newspaper content had to be approved by him prior to publication, and she was given a written warning alleging she ignored her job responsibilities by exposing students to material that may be inappropriate for their age level.

Two months later, on March 19, Sorrell was placed on paid leave and a week later notified that her contract might be terminated for not following directives from Yoder regarding publishing the newspaper, altering the curriculum, placing the district in a false light by issuing false or misleading statements to the media and other allegations.

The board was to decide her fate Tuesday after hearing from both sides during a public hearing scheduled for Saturday. With the settlement, the hearing has been canceled. * * *

The move to Heritage places Sorrell at the high school where she graduated in 1995 and was once the editor of the newspaper.

“I look forward to working with the administration, teachers and the students at Heritage Junior-Senior High School,” Sorrell said. “Heritage is an exceptional school, and I am certain that teaching there will be a rewarding experience.”

The settlement was a matter of choosing between what is best for her own family and the students at Woodlan, said Jack Groch, the Indiana State Teachers Association representative for East Allen County Schools. Sorrell and her husband have two children.

“Amy made the right decision,” he said. “Any good that’s come out of this situation is that Heritage High School is gaining a great teacher. Unfortunately, Woodlan High School and its students are losing a great teacher. I share their sorrow and their pain.”

The ordeal also placed tolerance and freedom-of-speech issues in the forefront in East Allen, and the organizations that supported Sorrell won’t forget that, Groch said.

EACS attorney Tim McCaulay declined to comment on the settlement Thursday, but the district has a news conference scheduled for this morning to talk about the issue.

The AP has this story today. Some quotes:
The agreement calls for school officials to try to find a high school-level English teaching position for Sorrell at Heritage and for her to teach there for at least three years, he said.

Although the settlement does not specifically bar Sorrell from teaching journalism at Heritage, Proctor said the agreement essentially means she will not be teaching such courses for the next three years if she remains at the school.

"The school administration has said in no uncertain terms that she's not going to be given a journalism position. There's also no vacant journalism position at Heritage and the agreement does state that she can't bid out of the position that they give her for three years," he said. * * *

Part of the four-page agreement Sorrell signed with school officials is a written reprimand that states Sorrell neglected her duties as a teacher and was insubordinate in refusing to obey school officials' orders.

In a statement released yesterday, Sorrell said she does not agree with the reprimands but is not financially able to fight the matter.

"Due to my personal financial circumstance, I am not in a position to contest the disciplinary action contained in the written agreement between myself and the school administration," she said in the statement.

Sorrell said she is "very proud" of the student who wrote the editorial, and the paper's other writers and editors.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on Judge Young allows 2 to join federal lawsuit challenging Indiana's lethal-injection procedures [Updated]

Jon Murrary of the Indianapolis Star has an update this afternoon on the hearing today in federal court challenging Indiana's lethal injection procedure. See the earlier ILB entry here.

[Updated 4/27/07] Jon Murray reports today on yesterday's hearing. Some quotes:

A doctor testifying Thursday in a lawsuit challenging Indiana's use of lethal injections in death penalty cases called state practices "catastrophically flawed." * * *

With Woods' execution looming, U.S. District Judge Richard L. Young is expected to rule soon on Woods' request for a preliminary injunction. Young heard testimony during Thursday's daylong hearing. * * *

Doctors don't take active roles in executions because of ethical concerns voiced by national medical associations. But during Indiana's executions, [Prison Superintendent Ed Buss] said, a physician watches 7 feet away from the gurney, behind a window, and can intervene if there is a problem.

The inmates' attorneys countered with testimony from Dr. Mark Heath, an anesthesiologist at Columbia University in New York, who has testified in about 10 death penalty cases.

He said the three-drug combination used by nearly every state with lethal injection -- including Indiana -- is poorly calibrated, increasing the risk that the anesthetic won't take hold or other problems will crop up.

Heath also questioned whether Buss and others viewing the execution are trained to judge whether a prisoner is adequately sedated.

Officials have recently changed execution plans. For Woods, they plan to double the dose of anesthetic and will place an ammonia tablet under his nose to verify that he's sedated.

"We looked at experts' testimony in other states," Buss said, and decided the new amount, 5 grams of sodium pentothal, was certain to be effective.

"It's an increased safety margin," Heath said of the higher dose. "But in the absence of verifying the anesthetic depth in a meaningful way, it doesn't matter."

Heath said the second paralyzing drug -- used to keep the inmate from convulsing -- could prevent one who isn't adequately sedated from grimacing or showing other signs of consciousness.

Concerns about lethal injection have prompted 11 states to suspend executions, by court order or on their own. But Buss and other officials defend Indiana's procedures.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: Supreme Court issues 43-page opinion affirming post-conviction court’s denial of relief

More on the Indiana Supreme Court's decision earlier today in John Stephenson v. State of Indiana (see ILB entry here). Bryan Corbin of the Evansville Courier & Press writes this afternoon in a story titled "Indiana Supreme Court upholds Warrick death sentence":

The appeal of death-row inmate John Matthew Stephenson of Warrick County was rejected today by the Indiana Supreme Court.

In a 43-page decision, the state's highest court today denied Stephenson's petition for post-conviction relief. The unanimous decision affirmed an earlier decision by Warrick Superior Court Judge Robert Aylsworth.

A decade ago, Stephenson was convicted in the March, 28, 1996, slayings of Brandy Southard, 21, John "Jay" Tyler, 29, and Kathy Tyler, 29. The jury found Stephenson guilty of three murders and he was sentenced to death.

Stephenson's trial lasted eight months and is believed to be the longest and most expensive trial in Indiana up to that time.

Among the nine issues Stephenson's appellate attorneys raised was the fact that some jurors knew that Stephenson was made to wear a stun-belt restraint device during his trial. The supreme court found that was not grounds to reverse Stephenson's conviction or death sentence.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Joseph Rich v. State of Indiana , a 5-page opinion, Judge May writes:

Joseph Rich appeals his conviction of public intoxication as a Class B misdemeanor. He claims the court should have suppressed the testimony of the arresting officer. We reverse. * * *

Based on the evidence the State presented in response to Rich’s motion to suppress, we have no choice but to suppress the remainder of Deputy Gray’s testimony. Evidently, the State did not request the presence of Detective Daniel at Rich’s trial, and Detective Daniel was the only person who could explain the facts and circumstances that led to his stop of Rich. Without his testimony, we have no basis for holding an ordinarily prudent person would have believed criminal activity was afoot. Therefore, we must reverse.

CONCLUSION The trial court erred when it determined Rich’s challenge to Deputy Gray’s testimony was untimely. Because the State failed to demonstrate Detective Daniel had reasonable suspicion to justify his stop of Rich, we must suppress Deputy Gray’s testimony regarding Rich’s condition. Therefore, we reverse.

In Timothy Jones v. Indiana Bell Telephone Company , an 8-page opinion, Judge Vaidik writes:
In this negligence case, Plaintiff Timothy Jones appeals the trial court’s grant of Defendant Indiana Bell Telephone Company’s d/b/a Ameritech (“Indiana Bell”) Motion for Judgment on the Evidence following Jones’s presentation of the evidence. Concluding that Indiana Bell owed Jones a duty of reasonable care but that Jones’s evidence in this case is not sufficient to establish a breach of that duty, we affirm the trial court’s grant of Indiana Bell’s motion for judgment on the evidence. * * *

Applying the policy considerations behind Sowers to this case, we conclude that Indiana Bell owed a duty of reasonable care to its invitees, which included Jones, and that this duty did not include the duty to inspect and warn. However, to the extent that Indiana Bell learned of dangerous conditions on its poles, it had a duty to warn its invitees. The evidence in this case is that as Jones, an experienced cable installer, climbed the telephone pole on December 18, 1997, he did not detect any problems with either the telephone line or the clamp, nut, and bolt. In addition, there is no evidence that Indiana Bell knew that there was anything wrong with the pole, telephone line, or clamp, nut, and bolt prior to Jones’s fall. As such, the evidence is not sufficient to prove the element of breach. Because the evidence does not allow reasonable people to come to differing conclusions on the issue of whether Indiana Bell breached its duty of reasonable care to Jones by not inspecting the pole, telephone line, and hardware in the absence of information that there was anything wrong, the trial court properly entered judgment on the evidence in favor of Indiana Bell.

NFP civil opinions today (6):

Francis W. Splittorff v. Jerry Aigner, Pam Aigner, Beverly Childs and Warrick County (NFP) - "Because Splittorff’s challenge to the issuance of a tax deed was not timely, the trial court properly granted the County’s and the Aigners’ motions for summary judgment. We affirm."

In the Termination of the Parent-Child Relationship of A.C.; Steven Conley v. Floyd County Department of Child Services (NFP) - termination, affirmed.

In Re the Marriage of Jeffrey W. Morrow v. April B. Morrow (NFP) - "Here, both Husband and Wife received hundreds of thousands of dollars in assets in the dissolution. That said, the trial court found that from 2003 to 2005, Husband’s self-reported average gross income was nearly two and one-half times that of Wife’s well-documented average gross income. We also note that the trial court ordered Husband to pay less than one-third of Wife’s attorney’s fees. Under these circumstances, we find no abuse of discretion."

In the Matter of the Involuntary Termination of Parent-Child Relationship of M.C. and S.C.; Betty Parker and Steven Christener v. Adams County Department of Child Services (NFP) - termination, affirmed.

Rocky L. Smith v. Beverly Smith (NFP) - "Respondent-Appellant Rocky L. Smith appeals from the trial court’s issuance of a writ of assistance in favor of Petitioner-Appellee Beverly Smith. We reverse and remand with instructions. * * * The following issue is dispositive: whether the trial court erred in issuing a writ of assistance when possession was relinquished to the purchaser of property."

In the Matter of the Termination of the Parent-Child Relationship of C.V.; April Vessels and Michael Vessels v. Tippecanoe County Department of Child Services (NFP) - "The evidence demonstrates Mother and Father, although capable of complying with services, were unwilling to do so. They continue to live in unsafe housing, they continue to use illegal drugs, they continue to put their needs above C.V.’s needs, they still have sexual boundary issues, and Father still has difficulty managing his anger appropriately. In light of that evidence, termination was not based solely on mental disabilities and termination was in C.V.’s best interests. Therefore, we affirm."

NFP criminal opinions today (7):

Spencer Nunn, Jr. v. State of Indiana (NFP)

Rex A. Aschliman v. State of Indiana (NFP)

Savanah Brown v. State of Indiana (NFP)

Kaylene D. Almy v. State of Indiana (NFP)

Anthony D. Hogan v. State of Indiana (NFP)

Lee Gilliam v. State of Indiana (NFP)

Jason Michael Mall v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues 43-page opinion affirming post-conviction court’s denial of relief

In John Stephenson v. State of Indiana, a 43-apge opinion, including a one-page separate concurring opinion by CJ Shepard that is joined by J. Dickson, Justice Boehm concludes:

The post-conviction court’s denial of relief is affirmed.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit tosses Midway crash to Illinois state courts

In Bennett et al v. Southwest Airlines, et al, a 10-age opinion today, Chief Judge Easterbrook writes:

Southwest Airlines flight 1248 landed in a snowstorm at Chicago Midway International Airport on December 8, 2005. Conditions were near the federal minimum for safe landings on Midway’s Runway 31C, which at 6,522 feet is among the shortest main runways at a commercial airport. A successful landing of the Boeing 737-700 depended on the pilot’s ability to come in at a moderate speed, touch down near the start of the runway, and apply the thrust reversers promptly. As things turned out, however, the wheels touched down 2,000 feet into the runway and thrust reversers did not deploy until 18 seconds later, when the plane was only 1,000 feet from the runway’s end. The plane smashed through a barrier and a fence; it came to rest in a street, where it crushed a car and killed one of the occupants. Twelve other people on the ground were injured, though the plane’s 98 passengers and five crewmembers were safe.

Tort suits filed in state court have been removed by the defendants (Southwest, Boeing, and Chicago) on the theory that plaintiffs’ claims arise under federal law. See 28 U.S.C. §1331, §1441(a). The district court denied a motion to remand but certified the decision for interlocutory appeal, which we accepted. 28 U.S.C. §1292(b). Defendants’ early theory that federal law occupies the field of aviation safety and thus “completely preempts” all state law has been abandoned. We must decide whether plaintiffs’ claims arise under federal law because federal aviation standards play a major role in a claim that Southwest (as operator of the flight), Boeing (as manufacturer of the airframe), or Chicago (as operator of the airport) acted negligently. * * * The defendants do not contend, nor did the district court find, that resolution of this suit revolves around any particular disputed issue of federal law. For all we can see, everything will depend on a factbound question such as whether the pilots should have executed a missed approach or, having elected to land, exercised adequate diligence in activating the thrust reversers; whether Boeing should have told air carriers not to count on thrust reversers when calculating how much runway they need; or whether Chicago should have closed the airport because of bad weather. The meaning of federal statutes and regulations may play little or no role. As defendants (and the district court) saw things, however, this does not matter: all suits about commercial air travel belong in federal court because the national government is the principal source of rules about safe air transportation, and uniform application of these norms is desirable. So put, the argument would extend Grable and the arising-under jurisdiction well beyond the scope the Justices are willing to tolerate. * * *

This circuit has held many times that claims related to air transport may be litigated in state court. [cites omitted] Grable does not change this conclusion. That some standards of care used in tort litigation come from federal law does not make the tort claim one “arising under” federal law. [cites omitted] No court of appeals has held either before or after Grable that the national regulation of many aspects of air travel means that a tort claim in the wake of a crash “arises under” federal law. Abdullah v. American Airlines, Inc., 181 F.3d 363, 375-76 (3d Cir. 1999), strongly implies that the “arising under” jurisdiction is unavailable; we now hold that this is the right conclusion.

The judgment is reversed, and the case is remanded to the district court with instructions to remand the litigation to state court.

Note that the decision on page 2 includes an apparently completely gratuitous color photo of the downed plane after it had come to rest on a city street. The opinion does not reference the photo. The bottom of the photo notes on the left side "copyright NTSB" and on the right side "aviation-safety.net." A check of that site indicates: "The Aviation Safety Network is a private, independent initiative founded in 1996. On line since January 1996, the Aviation Safety Network covers accidents and safety issues with regards to airliners, military transport planes and corporate jets." The presence of this photo raises a number of questions in my mind, which I may pursue in a later entry.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind. (7th Cir.) Decisions

Law - Dueling surveys rank various states' "legal climates"

"The State of Liability, State By State" is the heading to a Wall Street Journal Blog entry listing rankings of the U.S. Chamber of Commerce's Institute for Legal Reform, and The American Association for Justice (the group formerly known as the American Trial Lawyers Association).

Indiana ranks 8 with the Chamber; and makes the AAJ's list of "The 10 Worst States to get Sick or Injured in."

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to General Law Related

Ind. Law - An improvement to the current fireworks law?

Last year's lenient fireworks law, which set off complaints all over the state, but particularly in urban areas, and caused many to ask "What were they thinking?", looks to be replaced this year by changes that may confuse everyone, everywhere.

Lesley Stedman Weidenbener of the Louisville Courier Journal writes today:

Key lawmakers have reached an agreement on a bill that lets local governments curtail the use of fireworks, but the measure still needs final approval by the House and Senate.

A conference committee seeking the resolution finalized language yesterday that would let cities or counties ban fireworks except for 12 days each year, many of them on and around Independence Day.

The legislation comes a year after lawmakers voted to legalize fireworks use every day.

The new restrictions don't go as far as some had hoped. Earlier in the session, lawmakers debated bills that would have all but eliminated fireworks. * * *

The bill provides communities with significant latitude to determine what days and times fireworks will be permitted. Communities could decide, for example, to continue allowing their use daily but ban them only after 9 p.m.

Another city might decide to eliminate their use on all but the 12 days specified in the legislation. Those are June 29-30, July 1-9, and Dec. 31.

Here is a list of earlier ILB entries mentioning "fireworks."

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Indiana Law

Ind. Courts - David Leon Woods appeals to U.S. Supreme Court

From a story late yesterday by Tom Coyne of the AP:

SOUTH BEND, Ind. - Attorneys for an Indiana inmate sentenced to die by lethal injection next week asked the U.S. Supreme Court on Wednesday to block the execution, challenging the state Supreme Court's method of determining whether he is mentally retarded.

David Leon Woods, 42, is scheduled to die early May 4 for the 1984 slaying of his neighbor, Juan Placencia, in the northeastern Indiana town of Garrett. The state Parole Board voted Monday against recommending clemency for Woods.

"Indiana's refusal to articulate its own uniform definition of mental retardation makes it impossible for persons to know what standard they must meet in order to establish that they belong to the classification of people who are exempt from executions," said the petition filed with the high court Wednesday.

William Van Der Pol Jr., one of Woods' attorneys, said in a telephone interview Wednesday that the problem is the Indiana Supreme Court keeps changing the definition of how to measure mental retardation.

Woods attorneys contend that in finding Tommy Pruitt of Martinsville competent to be executed, the state court said in 2005 that standardized test scores were not enough. It said the IQ tests should be considered in conjunction with "other evidence of intellectual functioning."

But Woods attorneys said the Indiana Supreme Court refused to consider other evidence in Woods' case, claiming "nearly every examiner found evidence of serious brain damage, brain dysfunction, or at a minimum, a learning disability."

Woods has tested both above and below the generally accepted level of mental retardation, just as Pruitt had, said Van Der Pol, who represents both men.

"I don't think there's any question the Indiana Supreme Court is making some sort of distinction between Pruitt and Woods under identical circumstances. I just can't figure out what in the world the differences are," Van Der Pol said.

More from the story:
Also Wednesday, Woods asked U.S. District Judge Larry McKinney for the right to appeal the judge's ruling last week that he had no jurisdiction to hear arguments in the case because it was a "successive" petition.

Woods' attorneys argue that at the time of his first petition in 1999, the U.S. Supreme Court had not ruled that executing the retarded is unconstitutional. That 2002 ruling left it to the states to define retardation.

On Thursday, U.S. District Judge Richard Young is scheduled to hear Woods' request for a preliminary injunction to stop the scheduled execution because he contends the state's lethal injection method constitutes cruel and unusual punishment.

Woods contends the method "creates a substantial and unnecessary risk that Wood will be fully conscious and in agonizing pain for the duration of the execution process."

The state, however, contends that Woods did not first exhaust his administrative remedies and that he filed his request for preliminary injunction too late.

See earlier ILB entries on Woods here.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Indiana Courts

Courts: More on: "States urged to get abused kids' lawyers," Indiana receives "F"

Updating this ILB entry from Tuesday, which included this quote from an AP story by David Clary:

NEW YORK — Fifteen states get failing grades on a first-of-its-kind report card assessing the legal representation provided to abused and neglected children as courts make potentially fateful decisions about whether to separate them from their families. * * * The 15 states receiving an F were Alaska, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Maine, Missouri, Nevada, New Hampshire, North Dakota, Rhode Island, South Dakota and Washington.
David Clary of the AP has a new story today, this time carried in the Fort Wayne Journal Gazette, which goes into more detail about Indiana. Some quotes:
Although Indiana law used to give courts the option of whether to appoint a guardian ad-litem or a volunteer from a national program called Court Appointed Special Advocates, that law changed in July 2005. Now, courts must appoint one or the other. Part of Indiana’s failing grade was based on the previous law, which didn’t require an appointment of an attorney or CASA volunteer.

The report assigned grades based on several criteria, most importantly whether legal counsel for children is mandatory and whether that attorney is required to advocate for the child’s expressed wishes. Other criteria included requiring specialized training in child-advocacy law, the attorneys’ ethical responsibilities and the child’s right to attend key court hearings.

Adding to the AP story is a side-bar by Indiana reporter Dionne Waugh, who writes:
Allen Superior Family Relations Court Judge Charles Pratt said the report follows a dangerous trend he’s seen recently – making family court more adversarial by pitting the child against the parents and the very agencies there to protect the child.

“It starts to erode the protective powers that the juvenile court process was designed to provide to children,” Pratt said.

The children are also not often old enough, mature enough and objective enough to understand their protection, he said.

In Allen County, children have been represented by a CASA volunteer or guardian ad-litem for the past 22 years without the requirement, said Rex McFarren, director of the Allen County CASA program.

McFarren said they receive 30 hours of court-approved training and, even without the law degree, can do things attorneys can’t.

“I would rather have an energetic, caring individual with time to spend to go out and get to know the people than (one with) a legal background in the majority of my cases,” he said, “because they’ll get to know the people.

“So it takes time, … and the only way you really get that is firsthand knowledge. I’m not saying attorneys aren’t very useful and necessary, but on lot of our cases, it’s more important to have a human interest.”

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Indiana Courts

Wednesday, April 25, 2007

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Frank L. Gray v. Patryk Kosow, George Kosow, and K. Tronix (NFP) - "Gray was not denied procedural due process. The award of damages was within the evidence presented to the trial court. Finally, the trial court did not err in finding for Kosow upon Gray’s negligence claim against him."

NFP criminal opinions today (4):

State of Indiana v. Paola Demucha (NFP)

Robert Lee v. State of Indiana (NFP)

James D. Woody v. State of Indiana (NFP)

Jimmie Campbell v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 25, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Nominating commission selects six semi-finalists for Judge Sullivan's Court of Appeals seat

Here is the release:

The Indiana Judicial Nominating Commission announced Tuesday that it selected six of the twenty applicants for the upcoming vacancy on the Indiana Court of Appeals to return on May 11, 2007 for second interviews. The decision was made after two days of public interviews. The six semi-finalists are:

1. Hon. Cynthia J. Ayers, Marion Superior Court (Civil Div. 4)
2. Hon. Cale J. Bradford, Marion Superior Court (Civil Div. 1)
3. Mr. Randall C. Head, Cass County Deputy Prosecutor
4. Hon. William J. Hughes, Hamilton Superior Court 3
5. Hon. Kenneth H. Johnson, Marion Superior Court (Civil Div. 2)
6. Hon. Robyn L. Moberly, Marion Superior Court (Civil Div. 12)

The 30-minute interviews on May 11, 2007 will be open to the public, after which the Commission will nominate to the Governor the three most highly qualified candidates. Within sixty days after the formal nomination, the Governor will appoint one of the nominees to succeed Judge Patrick Sullivan, who is retiring August 1, 2007 after nearly 38 years on the Court of Appeals.

Here is an April 5th ILB entry listing the 20 applicants for the position.

Posted by Marcia Oddi on Wednesday, April 25, 2007
Posted to Indiana Courts

Law - What is the law when a passenger jumps or falls from a vehicle and dies?

In Indiana, the case of Michael Armstrong v. State of Indiana went all the way to the U.S. Supreme Court, which denied cert. Here are quotes (Evansville C&P) from initial press coverage of the Indiana Court of Appeals ruling in 2004:

In May 2003, when Michael C. Armstrong failed to stop his car after his teenage passenger, Craig Mobley, fell from the moving vehicle and died, the 23-year-old Armstrong was charged with leaving the scene of a fatal accident.

But Armstrong's attorney, Ivan Arnaez, argued that while his client may have had a "moral duty" to stop at the scene, he didn't have a legal duty to do so, because what happened that day didn't constitute an "accident" under strict interpretation of Indiana law. He moved for the felony charge to be dismissed. On Tuesday, the Indiana Court of Appeals agreed with Arnaez, ruling that the charge against Armstrong should be dropped, but also ruling that anyone caught in a similar situation in the future could be charged with a crime.

The Indiana Supreme Court granted transfer (see this March 2, 2005 ILB entry).

On June 15, 2006, the Supreme Court ruled (see ILB entry here):

We hold today that a driver of a vehicle who leaves the scene of an accident resulting in injury or death may be held criminally responsible even if the driver’s vehicle did not strike the injured or deceased party. * * *

Considering the wording of the statute along with this Court’s assessment of the statute’s predecessor, Armstrong had fair warning that his conduct—failing to stop after an accident resulting in death—was criminal. Therefore the Due Process Clause of the Fifth Amendment does not bar Armstrong’s prosecution for this offense. We affirm the judgment of the trial court.

This ILB entry from June 19, 2006 is headed "Evansville attorney disturbed by Supreme Court decision." Quotes from a story in the Princeton Daily Clarion included:
The Court of Appeals agreed with [trial judge] Penrod's view that being involved in an accident doesn't require that a vehicle hit another person or object, but just that a vehicle be involved in the accident. But the appellate court stopped short of applying the new interpretation to Armstrong's case retroactively, and ordered the case dismissed.

Gibson County Prosecutor Rob Krieg asked the Indiana Attorney General's office to take the case to the Indiana Supreme Court, and the court agreed to vacate the appellate court's decision in April 2005.

In the Thursday ruling, the high court held that a driver of a vehicle who leaves the scene of an accident resulting in injury or death may be held criminally responsible even if the driver's vehicle didn't strike the injured or deceased party. * * *

Following the Indiana Supreme Court's decision, Armstrong's case is set to return to Gibson Superior Court for a July 25 hearing, but [Evansville defense attorney Ivan] Arnaez said at that time he will inform the court that he intends to file a petition for the U.S. Supreme Court to hear questions in the case.

“We will file a federal question asking whether a law can be applied retroactively to convict someone,” he said. “If they grant the petition that means the court merely agrees to hear arguments. But if they say they want to hear (arguments) it may be a good sign it could reverse the decision of the Indiana Supreme Court.

On Nov. 2, 2006, according to this ILB entry, again quoting the Daily Clarion, "The United States Supreme Court on Monday declined to hear an appeal from attorneys representing a Gibson County man facing charges related to a 2003 incident that resulted in a man's death, according to the court's on-line docket sheet."

What happened next? The Daily Clarion charges $5.00 to see a back story, so here is the "teaser" from the archives:

Armstrong to plead guilty, his attorney says
Staff writer PRINCETON-In November, the U.S. Supreme Court declined to hear his appeal. And so the case against Michael C. Armstrong continues in Gibson County. But now after almost four years of legal wrangling, his attorney is indicating that ...
5.0K - Mar. 8, 2007; scored 1000.0
And all this is relevant how? It came to mind this morning when I read this entry in Mitch Harper's Fort Wayne Observed:
Fort Wayne man now only facing misdemeanor charges in Kentucky

Early in February, it was noted in a post that Kerry Swygart of Fort Wayne had been arrested in the death of a fellow worker who fell off a truck Mr. Swygart was driving in Louisville, Kentucky. Authorities in Louisville charged him with murder at the time.

It was an unusual charge.

Last week, a Kentucky Grand Jury declined to indict Mr. Swygart on the more serious offenses. He now faces two misdemeanor charges.

Posted by Marcia Oddi on Wednesday, April 25, 2007
Posted to General Law Related

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

What is happening with the bill to revise the remonstrance process? Recall that: "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.'" (See Jan. 23, 2007 ILB entry)

According to an editorial today in the Fort Wayne Journal Gazette:

The Indiana General Assembly is expected to improve the remonstrance process with legislation that would rightly allow registered voters – not just property owners – to sign petitions in support of or opposition to property tax-backed projects.

The change comes at the direction of the Indiana Court of Appeals. It ruled last year that the 10-year-old remonstrance procedure was unconstitutional because it amounts to a de facto election and, as such, could not be limited to property owners. The American Civil Liberties Union of Indiana challenged the law on behalf of a parent who lived in an apartment but wanted to participate in the petition drive over Indianapolis Public Schools’ building project.

The court delayed the effective date of the ruling to give legislators the chance to fix the law. Senate Bill 132 was approved in the Senate and the House Ways and Means Committee but didn’t make it to a House floor vote. The bill’s language is expected to be revived in either S.B. 287 or S.B. 500 – both of which deal with property tax measures.

Emphasis added by ILB.

Posted by Marcia Oddi on Wednesday, April 25, 2007
Posted to Indiana Government

Tuesday, April 24, 2007

Ind. Gov't. - Governor announces he will sign legislative pay raise

No surprises here. Mary Beth Schneider of the Indianapolis Star is reporting this afternoon:

Gov. Mitch Daniels said today he will sign a bill that gives lawmakers -- as well as the governor and other state officials -- a pay raise.

"All things considered, I think it’s acceptable," Daniels told reporters. "One raise in 20 or 21 years is probably not excessive. It wasn’t a priority of mine, but this is a legislature in which we have to be flexible and accommodate the interests of everyone.”
As the story clarifies later, it is NOT their first pay raise in 20 years, the legislators have been raising their pay right along, but not the officially designated "salary" amount set out in the statutes. The story continues:
Legislators currently get a base pay of $11,600 -- although the average pay in 2006 was $40,359, as legislators also receive in-session and out-of-session expense pay and leadership bonuses.

The new law would tie legislators' base pay to 18 percent of trial judges' salaries starting in 2009. That would mean a jump in base pay to more than $20,700 initially. Judges' pay in turn goes up every time state employees receive a raise.

That means that legislators' pay, and that of statewide officeholders including the governor, will continue to go up without lawmakers having to cast politically sensitive votes on the issue.

In addition to the pay increase, the new law eliminates some controversial perks, including a generous health insurance package and a pension plan that gave them $4 in taxpayer funds for every $1 they put int. Under the new law, legislators will receive benefits on a par with what other state employees receive.

However, the members will continue to receive the per diem allowances provided in a separate law for every day there are in session, and every day they are not in session, the travel allowance, and the various "leadership" bonuses, etc., all on top of their increased "salary" amount. This year these "extras" totalled about $29,000, on top of the "salary," the health insurance, and the pension.

For background, start with this ILB entry from April 15th.

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Indiana Government

Ind. Courts - New version of jury pool list now available

From a press release today on the Indiana Courts site:

An updated version of the Indiana Supreme Court's Jury Pool Master List is now available to all Indiana counties free of charge. * * *

In addition to being the most diverse and inclusive list available, the new updated Jury Pool master lists are also the most accurate, reducing the amount of returned mail and saving counties time and money.

The list uses data from the state Department of Revenue and Bureau of Motor vehicles, so anyone who drives, has a state ID card or pays taxes is included. The updated list eliminates duplicates and corrects addresses and was also matched against Indiana State Department of Health records to remove the names of citizens who are underage or deceased. Those who are not U.S. citizens, according to records at the Department of Revenue and the Bureau of Motor Vehicles, were also removed from the list. * * *

The master lists are available to counties on CD-ROM and can also be formatted to send jury summonses and make mailing labels. Each county Jury Pool master list will be updated annually to ensure continued accuracy.

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Indiana Courts

Law - Important campaign finance cases to be argued tomorrow before U.S. Supreme Court

"FEC v. Wisconsin Right to Life, McCain v. Wisconsin Right to Life, Does the First Amendment Protect Political Speech?" That is the title of an oral argument "debriefing" available to watch live tomorrow at 12:15 pm via the CATO Institute. The participants will be James Bopp Jr., James Madison Center for Free Speech; Kathleen M. Sullivan, Stanford University Law School; Richard L. Hasen, Loyola Law School, Los Angeles; and Martin S. Lederman, Georgetown University Law Center.

Check here for more information. Here is an ILB entry from Jan. 20th giving background on tomorrow's arguments.

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In John T. Irish v. F. Lawrence Woods, a 14-page opinion, Judge Najam writes:

John T. Irish appeals the trial court’s judgment dismissing Count I of his original complaint and Count I of his amended complaint for failure to state a claim upon which relief can be granted under Trial Rule 12(B)(6). Irish raises two issues for our review, which we consolidate and restate as whether the trial court erred when it held as a matter of law that Woods does not have common liability as a cosurety with Irish but is a subsurety under the documents Irish attached to his complaints. We affirm. * * *

Conclusion. The plain text of Note III, Woods’s guaranty of Note III, and the facts alleged in Irish’s complaints demonstrate that Irish, as a borrower and accommodation party to the L.L.C. on Note III, is both a primary obligor and the principal surety on that Note for any debt owed in the event of a default by the L.L.C. And Woods’s guaranty demonstrates that his liability on Note III is secondary to that of both the L.L.C. and Irish. Under those circumstances, Irish, the principal surety, is fully liable for the cost of performance while Woods is a subsurety liable only in the event the L.L.C. or Irish should fail to perform. See id. § 53(3). Hence, Irish is not entitled to contribution from Woods. See id. § 59 cmt. a. Nor may Irish recover from Woods as a holder merely by purchasing Note III. See id. § 21 cmt. i. Thus, Irish has failed to state a claim upon which relief can be granted. Affirmed. MAY, J., and MATHIAS, J., concur.

In Kyle Hamilton v. State of Indiana , an 11-page opinion, Chief Judge Baker concludes:
Here, Hamilton cites no authority in support of her contention that the mistrial, the State’s subsequent motion to reset the trial, and the trial court’s grant of that motion failed to afford her clear notice of the other two causes. To the contrary, Hamilton was given more than adequate notice of the charges. Indeed, the fortuitous occurrence of a mistrial placed Hamilton in the advantageous position of being able to anticipate what evidence might be presented at the second trial. However, her failure to seek replacement counsel and the unwarranted assumption that she no longer faced those charges nullified any advantage that she may otherwise have had. While the trial court could have specifically referred to the charges in all three cause numbers at the omnibus hearing, we cannot agree that such an omission negated Hamilton’s notice of the charges and her opportunity to answer those charges. Therefore, Hamilton’s due process argument fails. The judgment of the trial court is affirmed.
In Lemuel Rosendaul v. State of Indiana, a 10-page opinion, Judge Vaidik writes:
Lemuel Rosendaul appeals his conviction for theft as a Class D felony. Specifically, he argues that the trial court violated his due process rights by interrogating him during his bench trial about some of the filings he had signed in this case. Because the trial court’s interrogation of Rosendaul aided the court in its fact-finding responsibilities and gave Rosendaul an opportunity to explain these filings, Rosendaul cannot establish a due process violation. We therefore affirm the trial court. * * *

The only other option for the trial court would have been to not question Rosendaul about the filings he had signed, thereby giving him no opportunity to explain, and then find him not credible as a result. Here, Rosendaul was given an opportunity to deny that he authored these filings. Given that this was a bench trial, Rosendaul cannot establish fundamental error in the trial court’s interrogation of him because it aided the court in its fact-finding responsibilities, was done in an impartial manner, and gave him an opportunity to explain why the filings he had signed were not dated in “military style.” We therefore affirm the trial court.

NFP civil opinions today (6):

James Loomis v. Barbara Loomis (NFP) - complex child support.

James Michael Miklos v. Alice May Miklos (NFP) - dissolution decree, affirmed.

Mallory Homola v. Richard M. Helton (NFP) - "Given that the evidence supports a conclusion that, for the rest of his life, the tingling and numbness will affect Helton on a daily basis, interrupting his work and home life, and that during the first two weeks following the accident he was unable to work or take part in family activities, we conclude that the jury did not abuse its discretion in awarding Helton $40,000. The judgment of the trial court is affirmed."

Murray Franklin Jacks v. Marla D. Jacks n/k/a Marla D. Valenta (NFP) - Child support, reversed in part.

Brian K. Lonneman v. Carole A. Lonneman (NFP) - dissolution decree, affirmed.

Termination of Parent-Child Relationship of I.E.A.T.; Destiny (Wooten) Jackson v. Tippecanoe County Department of Child Services (NFP) - Termination of parental rights, affirmed.

NFP criminal opinions today (6):

Jeremy A. Ratliff v. State of Indiana (NFP)

Justin Nicholas Shinabarger v. State of Indiana (NFP)

Henry Lewis v. State of Indiana (NFP)

Ricky R. Slusher v. State of Indiana (NFP)

Tyrone Bradshaw v. State of Indiana (NFP)

Reginald Durr v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In George Row v. Holly Holt, Herbert Houseworth, Town of Osgood, Indiana, et al, an 11-page, 5-0 opinion written by Justice Boehm, the Court holds:

1) An arrest by a law enforcement officer without probable cause can give rise to civil liability for false arrest under Indiana common law.

2) Probable cause for purposes of civil liability for an arrest by a law enforcement officer is governed by the same standard imposed by the Fourth Amendment with respect to unlawful seizures and is evaluated in light of the information and circumstances available to the arresting officer at the time of the arrest.

3) An officer reasonably relying on information furnished by other officers is not civilly liable for false arrest even if the officer furnishing the information was not justified in considering it reliable. * * *

Conclusion The trial court’s grant of summary judgment in favor of the defendants is reversed as to Holt and the town of Osgood and affirmed as to the county defendants. This cause is remanded to the trial court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Indy man is angry that '05 order for his release was wrongly put in storage"

Tim Evans of the Indianapolis Star reports today:

An Indianapolis man wrongly imprisoned 11 years for a rape he didn't commit was cleared but languished in prison for two more years because of a paperwork mistake.

Harold Buntin, 38, walked out of prison Friday after a judge and commissioner corrected the 2005 mistake and cleared the Indianapolis man of robbing and raping a woman in 1984.

The Marion County prosecutor agreed to drop all charges against Buntin and, based on the DNA test results, did not oppose his release, said Matthew Symons, spokesman for the prosecutor.

Elated to finally be free, Buntin said he remains upset and frustrated that misplaced paperwork delayed his release for so long.

"I'm going to move on and take care of my business," he said Monday. "But I feel like somebody has to answer for that. I never should have been in jail -- and I spent two more years there after they knew I was innocent." * * *

Buntin is among about 200 convicts in the United States -- at least five in Indiana -- who have been exonerated by DNA evidence since 1989, according to The Innocence Project, an independent nonprofit organization that works to free innocent people through use of DNA evidence. * * *

Repeated requests for a review of his case based on the test results finally paid off in April 2005, when a judge exonerated him. But Buntin -- and the rest of the justice system -- wouldn't find out about the decision for two more years.

A bailiff or clerk failed to properly enter and distribute the order clearing Buntin, court officials found, leaving him stuck in prison.

Because no order was sent to him or his attorney, Buntin believed the court had not ruled on his petition. At first he waited, but records show he filed follow-up documents with the court in August and November 2005.

The problem was discovered after Buntin and family members pressed his attorney to file a "lazy judge" complaint because of the delay in the ruling. Court officials began an investigation and found the original order in Buntin's court file, which had been placed in storage.

"Whether the bailiff failed to follow the provided directions or whether the deputy clerk assigned to this court failed to discharge her responsibilities, the order was never entered of record and copies were never distributed to the interested parties," Judge Grant W. Hawkins and Master Commissioner Nancy L. Broyles wrote in a notice explaining the delayed ruling. "Rather, the file was closed and archived as if the court's order had been properly entered into the record."

This story brings to mind this Dec. 19, 2006 ILB entry headed "Supreme Court censures Judge Newman, Jr., Judge of the Madison Superior Court No. 3," where the Supreme Court wrote: "As a result of Respondent’s failure to execute an appropriate order for Dawson’s release and to provide proper supervision and instruction to his court reporter, Dawson unnecessarily spent over one year incarcerated with the DOC and one year on supervised parole."

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Appeals court sides with doctor"

The Court of Appeals decision Friday in Linda Palmer v. Comprehensive Neurologic Services (see ILB entry here) is the subject of a story today by John Tuohy in the Indianapolis Star. Some quotes:

The doctor who treated a Hendricks County Council member before he died in 2000 will not have to pay damages, the Indiana Court of Appeals ruled.

A Hendricks County jury had awarded $375,000 to the estate of H. Hunt Palmer following a malpractice lawsuit against Dr. Mark A. Muckway, Avon, in September 2005.

But Judge Jeffrey Boles reduced the amount to zero because Palmer’s family had reached two out-of-court monetary settlements with other defendants in the lawsuit before the trial. Terms of those settlements were not made public.

Under a malpractice provision known as “set-off,” Boles ruled that Muckway gets credit for those agreements and that Palmer’s claims are satisfied by them. The appellate court agreed, even though the jury found that Muckway and Comprehensive Neurological Services, Avon, had erred in treating Palmer.

The appeals court affirmed Boles’ ruling in an 18-page opinion Friday.

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Ind. App.Ct. Decisions

Environment - Several recent stories

"IDEM boss kicks off Porter County Earth Day" was the headline to a long story yesterday by Vicki Urbanik in the Chesterton Tribune. Some quotes:

Indiana Department of Environmental Management Commissioner Tom Easterly kicked off the local Earth Day celebration on Sunday with a positive message about the state of the environment in the region.

Easterly told his audience, gathered in a barn at the Sunset Hill Farm County Park, that he can recall driving through the region and wondering how people survived here. But since then, significant progress has been made cleaning up contaminated sites and improving the air quality.

Clean air in Northwest Indiana “is not the perception most people have” of the region, Easterly said. But he pointed out that federal officials just recently designated LaPorte County as in full compliance with ozone standards, and that they will next consider re-designating Lake and Porter counties as well. * * *

Easterly emphasized that land use decisions are local decisions, and that local people the best ones to decide if a specific project is wanted in their community. The role of the IDEM when issuing permits is to focus only on whether a specific project meets environmental criteria, he said.

“That’s way different than what most people want us to do,” he said.

He noted that he has heard complaints about some permits IDEM has issued. Though he didn’t give an example, IDEM’s issuance of a permit for a waste transfer station on the Porter-LaPorte County Line Road has prompted criticism. [ILB - that would be the Pines transfer station - for background start here]

But Easterly said permit issues are not the same as land use decisions, which should be made by local officials, not the state. Just because IDEM determines that projects meet environmental standards, “doesn’t mean you should allow them,” he said.

On another environmental topic, last Friday the Indianapolis Star ran an editorial headlined "Tough foreman needed over 'factory farming'", urging passage of SB 431:
Now in conference committee, the legislation would substantially hike permit fees for the farms in order to pay for more frequent and more thorough inspections and governance by the Indiana Department of Environmental Management. Only 16 IDEM inspectors are available to monitor the large operations, meaning inspections are six or seven years apart. Gard wants, among other measures, to make those inspections annual.

Never an easy sell given the financial clout of the industry, legislation is hung up now on the issue of local option. Some pro-CAFOs lawmakers wish to prohibit counties and municipalities from imposing stricter rules than the state's on such matters as the distance farms must keep between themselves and, for example, schools. Gard opposes this "one-size-fits-all" approach and hopes the final bill will allow local communities the discretion to enhance safeguards according to their peculiar geology, population and other factors.

Gard also insists that confined-feeding farms are generally well run and that a more aggressive IDEM will discourage the "few bad apples" who make for bad neighbors by failing to control wastes and odors.

As public testimony has dramatized, many of those neighbors and many experts on rural ecology and economics see a much larger threat. They have called for a moratorium on new permits while the highly controversial phenomenon of CAFOs is studied. That bid failed in this session and deserves to be brought up again. A Purdue University study now under way will be a welcome addition to the discussion.

Meanwhile, first things first: Pass SB 431, and don't hogtie local communities that wish to protect themselves.

Hoosier AG Today with Gary Truitt responded with a piece titled "The Indianapolis Star Attacks Indiana Livestock Producers."

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Environment

Courts: "States urged to get abused kids' lawyers," Indiana receives "F" [Updated]

An AP story today by David Crary reports:

NEW YORK — Fifteen states get failing grades on a first-of-its-kind report card assessing the legal representation provided to abused and neglected children as courts make potentially fateful decisions about whether to separate them from their families.

The report, being released at a Capitol Hill briefing Tuesday by the Washington-based child advocacy group First Star, is sharply critical of states which do not require all children in these proceedings to be represented by their own attorneys.

It also says more states should join the 17 that require lawyers in these cases to represent the child's expressed wishes and ensure that those preferences are heard in court.

"In these proceedings the family of a child can be created and or destroyed based on the determination by the court," the report says. "And too often, the child, although most impacted by the court, has the least amount of input."

Since 1974, Congress has required states to appoint a representative — often known as a guardian ad litem — for any child involved in abuse and neglect proceedings. However, states have interpreted the federal law in varying ways; the First Star report said 16 do not have statutes requiring that these children be represented by their own attorneys in all child-protection proceedings.

"If you or I have a traffic accident, we can hire an attorney to represent our interests," said First Star's chief executive, Deborah Sams. "If a child has been the victim of abuse and neglect, they deserve the same right."

The report assigned grades based on several criteria, most importantly whether legal counsel for children is mandatory and whether that attorney is required to advocate for the child's expressed wishes. Other criteria included requiring specialized training in child-advocacy law, the attorneys' ethical responsibilities, and the child's right to attend key court hearings,

Only five states earned A grades: Connecticut, Louisiana, Mississippi, New York and West Virginia.

The 15 states receiving an F were Alaska, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Maine, Missouri, Nevada, New Hampshire, North Dakota, Rhode Island, South Dakota and Washington.

Here is the press release from First Star.

[Updated 4/25/06] The Kentucky Law Blog writes on this today, but somehow they have different scores !

Here is the 128-page report, now available. Check out pages 10 and 11. Unfortunately, overall, Indiana has an "F", Kentucky has a "D".

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Courts in general

Ind. Decisions - Still more on: "New trial ordered for woman convicted in triple slaying"

The Indiana Court of Appeal's August 31st, 2006 decision in Charity L. Payne v. State of Indiana concluded (see ILB entry here):

Based on the foregoing, we find that (1) the trial court erred by admitting into evidence Payne’s statement which was obtained in violation of her Miranda rights; (2) the trial court erred by admitting into evidence Payne’s letter to her former boyfriend; and (3) the trial court erred by admitting into evidence a testimonial statement given by an unavailable co-defendant. Reversed and remanded for a new trial.
Find press coverage at the time in ILB entries here and here.

Today the South Bend Tribune has a long story by Jeff Parrott, headed "Lakeville Triple-murder defendant free: Plea agreement is approved after appellate court's reversals in Lakeville case." Some quotes:

St. Joseph Superior Judge William Means approved a plea agreement in which Payne admitted to committing Class B felony burglary, while prosecutors agreed to drop murder charges in connection with the September 2000 slayings of Wayne Shumaker, 58, Lynn Ganger, 54, and Corby Myers, 30, in Lakeville.

The Indiana Court of Appeals in August threw out three key pieces of evidence that a jury had considered in convicting Payne of murder.

"I know for the victims' families this has been a long and very painful ordeal," Means said. "You wonderful people should not be put through another trial."

Snickers could be heard from the victims' loved ones.

"I think Mrs. Payne has paid a price," the judge continued. "Reasonable minds can differ on (that) ... but this is something she's going to have to live with for the rest of her life."

Means also took a dig at the appeals court ruling that struck down his evidence admissibility rulings: "In all candor I have some thoughts about the conclusions the Court of Appeals reached, but I will not comment on them."

As the victims' relatives had chastised Payne in court, she had displayed little emotion. But as bailiffs led her from the courtroom, she began to cry.

"It's a little late for tears, a little late," Carol Hunsberger, Shumaker's ex-wife, said loudly to Payne as she was led out.

Once she was out in the courthouse rotunda, Payne began wailing loudly. She was later released from the county jail. She declined to speak with reporters.

After the hearing, Prosecutor Michael Dvorak said the victims' families agreed that a jury would never convict Payne of murder without the stricken evidence.

"The victims' families understand the legal argument we're making," said Dvorak, who inherited the case from the previous administration of Prosecutor Christopher Toth. "Because of the tragic loss they've suffered, they're not necessarily accepting what happened today, nor should they. But intellectually they understand it."

Don't count Arthur Sears in that group. Sears, on whose property the men were murdered, called Payne's plea agreement "a continuation of our disappointment in the judicial system in St. Joseph County, the state of Indiana and even America.

"I would hope the voters of our county, our state and our country will remember this the next time they vote."

Payne's plea agreement brings what should be an end to the 6-year-old case, which also saw triggerman Phillip Stroud receive a life term with no chance for parole; 275 years in prison for Tyrone Wade; 180 years for Korel Seabrooks; and 45 years for Ronald Carter. Carter turned state's evidence in a plea agreement and testified at the trials of the others.

A story from Mark Peterson of WNDU South Bend headed "Convicted Murderer Set Free" concludes:
A statement Payne had given police shortly after the crimes was thrown out by the Indiana Court of Appeals because of a mistake made by police.

Officers waited until seven hours into the questioning before they advised Payne of her rights.

By the time Payne returned to court today in shackles, it was arguably the prosecution that was handcuffed.

"All the evidence that supported the murder convictions has been thrown out by the Indiana court of appeals and the Indiana supreme court,” said St. Joseph County Prosecutor Michael Dvorak who offered the plea agreement on the burglary charge.

“At least we were able to get out of this a conviction for a felony,” Dvorak said.

Dvorak said that the family was “emotionally devastated,” and while they intellectually understand the Court of Appeals, Supreme Court decision, “they’re not happy with the result.”

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Indiana ACLU sues over no fees being attached to "God" plate [Updated]

The Indianapolis Star this morning has a link to the 5-page complaint in this suit. Access it here.

From the story reported by Richard D. Walton:

Mark Studler has nothing against people expressing their religious beliefs, even on their license plates.

But the Allen County man says he also believes those folks should be treated like Hoosiers who use their vehicle tags to promote education or the environment and are charged an extra fee to do so.

Studler and the ACLU of Indiana went to court Monday to challenge a law allowing Hoosier motorists to acquire "In God We Trust" plates at no additional cost.

Backers of the plate that was introduced this year counter that it offers residents a chance to affirm the nation's religious heritage while practicing their right to free speech.

Studler, 49, paid $40 for a plate depicting an eagle and the word "environment." Of that, $25 went to a state trust to buy land set aside for conservation or recreational purposes. The remaining $15 went to the state as an administrative fee.

The $15 fee is not charged for the "In God We Trust" plates.

"I'm into the environment. I wanted to make a statement," Studler said. "And for them to just come out and put out a free plate that's a special plate" seems unfair. "Everybody should either have to pay the fee or they should all be free," he said.

The Bureau of Motor Vehicles offers dozens of specialty plates, supporting organizations from the Indianapolis Colts to arts groups. The "In God We Trust" plate is the only generally available specialty plate exempt from any fee, said Ken Falk, legal director for the ACLU of Indiana, which filed the suit on Studler's behalf in Marion Superior Court.

"We're not complaining about the message," Falk said. "This isn't about religion."

But Curt Smith, president of the Indiana Family Institute, called the challenge misguided. The phrase "In God We Trust" is the national motto, he said, and appears on U.S. currency. "We mention God in the Declaration of Independence and in many of our founding documents, and so I think it's very appropriate and legitimate to encourage the dissemination of this phrase."

Rep. Woody Burton, R-Greenwood, led the effort in 2006 that created the plate. He has said that judges are chipping away at the Judeo-Christian foundation of America, and he backed the plate to give like-minded residents the chance to show their concern.

Here is yesterday's ILB entry.

[Updated 4/29/07] The LA Times has a story today on the Indiana suit.

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Indiana Law

Ind. Decisions - Fort Wayne lawyer gets 4 years on DWI

Dionne Waugh reports today in the Fort Wayne Journal Gazette:

A judge sentenced a local attorney Monday to four years in prison for driving drunk and injuring a motorcyclist.

Douglas O. Beerbower, 56, of the 4200 block of Winding Way Drive, was originally charged with criminal recklessness, operating a vehicle while intoxicated causing serious bodily injury and being a habitual offender.

As part of a plea agreement, Beerbower pleaded guilty last month to the charge of operating a vehicle while intoxicating causing serious bodily injury. In return for his plea, prosecutors agreed to dismiss the other charges and recommend Beerbower serve no more than four years in prison.

Beerbower, who has three prior misdemeanor convictions for drunken driving, has been one of the in-house attorneys for Lincoln National Life Insurance for nearly 20 years.

Posted by Marcia Oddi on Tuesday, April 24, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - More on: U.S. Supreme Court to hear Lake County definition of "money laundering" case

Joe Carlson of the NWI Times writes today, in a story that begins:

AST CHICAGO | The case of East Chicago's illegal "bolita" lottery, which once raked in hundreds of thousands of dollars in annual profits from city taverns, might wind up helping the nation's prosecutors define money laundering.

The U.S. Supreme Court agreed Monday to take up the case of Efrain Santos, also known as "Puerto Rican Frankie," the organizer of an illegal lottery that Santos admits broke ties with Chicago organized crime in the late 1960s.

Santos admits running the lottery and did not appeal his five-year prison sentence on that charge. But he disputes that any money laundering was involved and is appealing his 17-year sentence for that conviction.

The case the Supreme Court has agreed to hear stems from the varying definitions of money laundering employed by federal prosecutors in different parts of the country. Though Santos' activities are considered money laundering within Chicago's Seventh Circuit, the same activities do not fit the same crime in circuit courts on the East Coast.

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

Monday, April 23, 2007

Ind. Decisions - U.S. Supreme Court to hear Lake County definition of "money laundering" case [Updated]

Lyle Denniston of SCOTUSblog reports today:

The Supreme Court agreed on Monday to clarify the scope of the main federal money laundering law. It will spell out whether the ban on use of "proceeds" of a crime to promote or conceal it -- that is, "laundering" the proceeds -- applies to the total amount of money, or only the profits, if any, that remain after expenses. The Seventh Circuit, in conflict with other Circuit Courts, has ruled that, if there were no profits, the law does not apply. The case is U.S. v. Santos (06-1005, petition), involving a federal prosecution for using money from an illegal lottery in Indiana to pay runners, collectors and winners of the betting.
For background, see this ILB entry from Nov. 25, 2006, quoting from a lengthy story in the NWI Times by Joe Carlson.

In addition, here is the ILB entry on the Aug. 25th, 2006 7th Circuit opinion in Santos, Efrain v. USA.

[Updated 5:30 pm] Pete Yost of the AP writes this afternoon, in a story that begins:

The Supreme Court agreed Monday to review a case that could undercut the federal money-laundering law, an enforcement weapon the government considers vital in going after outlaw gamblers and drug traffickers.

The Justice Department wants the court to overturn a standard set by a federal appeals court that complicates the task of prosecutors in securing money-laundering convictions.

The law makes it a crime to conceal proceeds from illegal activity or to use them to promote the activity. The 7th U.S. Circuit Court of Appeals in Chicago says that in order to convict, the proceeds must be profits rather than gross receipts.

How, the government asked in court papers, is it supposed to find hard evidence of profits when criminals rarely keep accounting records, much less accurate ones?

Posted by Marcia Oddi on Monday, April 23, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Indiana ACLU sues over no fees being attached to "God" plate

Ken Kusmer of the AP writes:

A legal complaint filed Monday challenges the constitutionality of the year-old law that created the "In God We Trust" specialty license plate, saying its supporters receive preferential treatment not available to supporters of other specialty plates.

The lawsuit filed in Marion Superior Court in Indianapolis claims motorists who request the "In God We Trust" plates receive preferential treatment because they do not have to pay a $15 administrative fee that the Indiana Bureau of Motor Vehicles collects. * * *

The plaintiff bringing the case, Mark Studler, said he pays an additional $40 for one of the popular environmental plates depicting an eagle above the word "Environment." Of the total fee, $25 goes to a state trust to purchase land set aside for conservation or recreational purposes and the remaining $15 is for the administration fee.

The 2006 law establishing the "In God We Trust" plate waives the administrative fee.

"Therefore, those who obtain an 'In God We Trust' license plate are afforded the opportunity to make an affirmative statement through display of the plate without any additional cost while Mr. Studler must pay additional fees for his environmental license plate," the complaint said.

Posted by Marcia Oddi on Monday, April 23, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Chad A. Jeffries v. State of Indiana (NFP)

Lynn Wilson v. State of Indiana (NFP)

Robert Dewayne Porter v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 23, 2007
Posted to Ind. App.Ct. Decisions

Not law but important - Yet more on negotiating medical bills [Updated]

"Clarian Health has price guide for patients" is the headline to a story that appeared last Friday on the front page of the Indianapolis Star. Daniel Lee reports:

Clarian Health Partners has launched a Web site -- clarian.org/priceguide -- that it says provides patients with pricing and other information on 75 medical procedures and services, from a simple cholesterol test to a heart transplant.

The site, a first for a major Indianapolis hospital system, tells you what you can expect to pay if you have traditional insurance, Medicare or Medicaid.

The new Web site puts Clarian at the forefront of a push for greater disclosure of prices at a time when many consumers are being asked to pay more of their medical costs through higher premiums or deductibles.

The day when consumers can comparison-shop for medical services, however, may be a long way off because other hospitals do not offer similar information, and the prices quoted by Clarian are only broad ranges and averages.

In one example, a Clarian hospital would charge about $343 for a bone-density test, recommended for many women to check for osteoporosis, according to the site.

A patient with commercial insurance, such as Anthem or Aetna, would pay an average of $80 but could pay as much as $202. A person covered by Medicare would pay $14, while a Medicaid patient would pay nothing.

Unfortunately, an annoying audio comes on whenever you log on to the site.

The ILB has posted a number of earlier entries on negotiating medical costs. Here is a list. Here is a story from the April 4th Gary Post-Tribune headed "Area hospitals don't make it easy to shop for health care." See also this ILB entry from March 14th.

[Updated at 12:30 pm] Well, I take it back. I just wasted 20 minutes on the new Clarian site. I still have not a clue as to how you find out the prices of various procedures, so I can't recommend it. I did see a lot of Clarian promotional material.

[Updated 4/30/07] The Star has a story today headlined "Surfing for health care: Need surgery? Or an MRI? Anthem's Web site lets you check area hospitals for the right price." A quote:

The health insurer, part of Indianapolis-based WellPoint, today unveiled an Internet tool, available at Anthem.com, that allows members to search what dozens of medical procedures cost at specific hospitals across Central Indiana. * * *

This month, Clarian Health introduced its own pricing site, clarian.org/priceguide. That site provides estimated out-of- pocket expenses and total expenses for dozens of procedures at Clarian hospitals.

Other insurers, such as UnitedHealth, also have online tools to estimate health-care costs.

Anthem's site offers the benefit of side-by-side cost comparisons for dozens of providers.

Posted by Marcia Oddi on Monday, April 23, 2007
Posted to General News

Ind. Law "Gary Curfew law on solid ground, council says"; ICLU approval

Jon Seidel of the Gary Post-Tribune reported last Friday:

GARY -- With no challenges to state law on the horizon, a curfew ordinance passed Tuesday by the City Council seems to be on solid legal ground.

The ordinance, which builds upon state law, sets a curfew of 10 p.m. on weeknights and midnight on weekends for kids under 18.

It will go into effect as soon as it's signed by Mayor Rudy Clay.

It doesn't apply to anyone who is accompanied by a parent or guardian, or anyone going to work, school, sporting or religious events. * * *

Ken Falk, legal director of the Indiana Civil Liberties Union, said Thursday that he sees no problem with Indiana's curfew law as it is written.

The ICLU already led two successful efforts to strike down Indiana's curfew law. It was struck down the first time, Falk said, because of First Amendment violations.

If a child wanted to protest a death penalty case at midnight, Falk said as an example, it would have been a violation of the curfew law.

The second time, Falk said, the law had not left proper room for parental exemptions.

"Parents have a fundamental right to engage in the raising of their children," Falk said.

Indiana's law was amended in 2006, and Falk said no more challenges are being prepared by the ICLU.

"It's our estimation that the current state curfew law is constitutional," Falk said.

Here is a list of earlier ILB entries on curfew laws and ordinances.

Posted by Marcia Oddi on Monday, April 23, 2007
Posted to Indiana Law

Ind. Courts - "Lawyers give Hammond judge unfavorable rating"

Bill Dolan of the NWI Times reported Friday:

Lake County lawyers delivered a rebuke this week to Hammond City Judge Jeffrey Harkin as he competes for votes in a re-election bid.

A Lake County Bar Association survey of judicial candidates in the May 8 primary election gave Harkin its lowest overall appraisal while giving higher marks to his challenger, Hammond attorney James Foster. Both Harkin and Foster are Democrats.

The survey, which represents the opinion of 231 lawyers practicing in municipal courts, rated eight other municipal judges who are unopposed in the spring primary as qualified to hold office. * * *

The two-term judge made it clear Thursday he holds the survey in contempt.

"To get a low rating from the criminal defense bar means I'm doing a good job," Harkin said. "I have been endorsed by the Fraternal Order of Police, the Hammond Firefighters Political Action Committee and the Hammond Democratic precinct organization."

Foster said he was gratified by the favorable results. He said lawyers probably were critical of Harkin for wasting tens of thousands of dollars to create a court specializing in drug offenses that lacked federal approval and never got off the ground.

Posted by Marcia Oddi on Monday, April 23, 2007
Posted to Indiana Courts

Sunday, April 22, 2007

Courts - Prisoner wrongly freed from Kentucky state facility based on a faxed, forged "court order"

"Prisoner wrongly freed from state facility" is the headline in the Lexington Herald-Leader of an AP story from this weekend. Some quotes:

HICKMAN, Ky. -- Officials released a prisoner from a state facility after receiving a phony fax that ordered the man be freed.
Pretty concerning. When you read further, however, you wonder how this on earth the officials could have fallen for this (making it even more concerning):
He was released from that facility on April 6, and the mistake wasn't caught for nearly two weeks. * * *

"It appears that the inmate arranged for someone to fax a forged court order to the Kentucky Correctional & Psychiatric Center," Major said.

The fake court order contained grammatical errors and it was not typed on letterhead. It falsely claims that the Kentucky Supreme Court "demanded" Rouse to be released.

Police are still investigating who faxed it.

Prison officials did not notice that the fax came from a local grocery store because policies in place did not require checking the source of a faxed order, said the LaGrange facility's director, Greg Taylor.

"It's not part of a routine check, but certainly, in hindsight, that would perhaps have caused somebody to ask a question," he said. He added that misspellings on orders are common.

Posted by Marcia Oddi on Sunday, April 22, 2007
Posted to Courts in general

Ind. Gov't. - "Lawmakers now turn attention to compromises"

Bryan Corbin of the Evansville Courier & Press writes today with "a look back and ahead as the 2007 session hurtles to a conclusion."

One bill mentioned is SB 403, on identity theft, which has passed both houses in the same form and is eligible for the Governor's signature. This bill appears to cure deficiencies in the current law -- see this Feb. 10th ILB entry, which read in part:

Yesterday the ILB pointed to deficiencies in the current Indiana law. One missing provision that would have been very helpful to those affected by the State of Indiana's error would have been a law allowing consumers to freeze access to their credit files to prevent crooks from opening fraudulent accounts using stolen information.

Posted by Marcia Oddi on Sunday, April 22, 2007
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending April 20, 2007

Here is the Indiana Supreme Court's transfer list for the week ending April 20, 2007.

Four cases were granted transfer. See this entry from April 17th for more details.

(Always be sure to go through all the pages, as the "list" is really two combined lists.)

Over 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 Sunday, April 22, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 6 Friday (and 9 NFP)

For publication opinions today (7):

Linda Nolan v. Richard Taylor, et al - Here is how the Washington Times-Herald described the history of this situation in its "Looking Back on '06" column:

Martin County Clerk: From the moment John Hunt won a precinct committee election in November 2005, he has faced problems as Martin County Clerk. In January, he faced a lawsuit from Linda Nolan, who claimed Hunt’s election was rigged, and on June 7, he was arrested by Circuit Court Judge Joe Howell, who charged him with criminal contempt of court.

In May, Hunt lost a primary battle with Nolan, a former chief deputy clerk. Nolan would not win the general election in November when Shoals native Julie Fithian won by only 40 votes. Hunt will continue as clerk through 2007.

In the 11-page opinion issued Friday, Judge Robb writes:
Linda Nolan appeals the trial court’s order denying her Petition to Challenge Results of Caucus, dissolving a preliminary injunction issued by the trial court, and declaring John Hunt the pro tempore Clerk of the Martin Circuit Court. On appeal, Nolan raises many issues,1 but we find one issue dispositive: whether the trial court had jurisdiction to hear Nolan’s challenge to the results of a political caucus held to appoint a pro tempore court clerk. Concluding that the trial court did not have jurisdiction, we affirm in part, and remand with instructions to dismiss. * * *

We hold that the trial court had no jurisdiction to hear Nolan’s petition or motions for preliminary injunction and temporary restraining order. Therefore, the trial court properly dissolved the preliminary injunction. We remand with instructions that the trial court enter an order of dismissal as to Nolan’s petition.

In the Matter of Contempt: John R. Hunt v. Martin Circuit Court , an 8-page opinion, concerns the situation last summer reported in the ILB, including this quote from Washington Times-Herald from June 9, 2006: "Martin County Clerk John Hunt spent about two and a half hours in jail Wednesday when Circuit Court Judge Joe Howell charged him with criminal contempt of court just before 4 p.m." (See also these entries and included links from 9/27/06 and 9/29/06). Chief Judge Baker wrote on Friday:
John R. Hunt, the Circuit Court Clerk of Martin County, appeals the trial court’s finding that he was in direct criminal contempt. Specifically, Hunt argues that the judgment was erroneous because the trial court lacked jurisdiction over the matter and that the contempt finding must be set aside “because there was no hearing that the court could attach a direct violation to.” Concluding that it was error to find Hunt in direct criminal contempt in these circumstances, we reverse the judgment of the trial court. * * *

In light of our discussion above, we conclude that the trial court erred in holding Hunt in direct criminal contempt. Indeed, Hunt’s purported misrepresentations to the trial court regarding the release of Holt’s bond rose to the level of indirect contempt—at best—which required notice, an opportunity to be heard, and other due process protections. Finally, in the event that Holt is owed money from the clerk’s office that is due and unpaid, she may be permitted to file a separate cause of action against Hunt for the return of those funds. The judgment of the trial court is reversed.

In State of Indiana v. Karl D. Jackson , an 18-page opinion, Judge Robb concludes:
We conclude that the OWHTV statute requires that the defendant have actual knowledge that his or her license has been suspended because that person has been determined to be an HTV (Habitual Traffic Violator). We further hold that the trial court did not abuse its discretion in finding that Jackson rebutted this presumption, notwithstanding the fact that Jackson failed to comply with the statutory requirement that he notify the BMV of a change in address. Affirmed.
Linda Palmer v. Comprehensive Neurologic Services - "Linda Palmer (“Palmer”), Personal Representative of the Estate of Harlan Hunt Palmer, appeals following her medical malpractice action in which the jury awarded damages and the court permitted setoff, resulting in a zero-dollar judgment against Appellees-Defendants, Comprehensive Neurologic Services, P.C. (“CNS”) and Mark A. Muckway, M.D. (“Dr. Muckway”)." Affirmed.

In Paternity of H.R.M., Steven Gaddie v. Rachel Manlief, a 16-page opinion, Judge Robb writes:

Steven R. Gaddie appeals the trial court’s order granting Rachel D. Manlief’s motion to modify visitation. Gaddie raises two issues, which we restate as whether the trial court abused its discretion in allowing a clinical social worker to testify regarding statements made to her by a child during interviews, and whether the trial court abused its discretion in admitting a “Family Support Specialist’s” notes of home visitations. Concluding that the social worker’s testimony and the family specialist’s notes both constitute hearsay, and that neither falls within an exception to the rule against the admission of hearsay, we reverse and remand with instructions that the trial court conduct another hearing. * * *

We conclude that Fowler’s testimony regarding H.M.R.’s statements was inadmissible hearsay not falling within the exception for statements made in the furtherance of medical treatment. We further hold that Martin’s notes were not admissible pursuant to the business records exception to hearsay based on the insufficiency of the supporting affidavit. Finally, we conclude that the admission of this evidence was not harmless error.

Robert Luhrsen v. State of Indiana - "It was within the trial court’s discretion to sentence Luhrsen to enhanced consecutive sentences, and his sentence is appropriate given the nature of the offense and the character of the offender. We affirm."

NFP civil opinions today (3):

In the Mtr. of the Involuntary Termination of the Parent-Child Relationship of C.B., J.G., and R.B., minor children and their mother Christina Beltran v. Marion Cty. Div. of Family & Children, et al. (NFP) - Affirmed.

Termination of Parental Rights of N.L.E. and K.D.M., Mindy Lee Warthan v. Tippecanoe County Division of Child Services (NFP) - Affirmed.

Ronald Walters v. Marlene Walters (NFP) - "Ronald Walters appeals the trial court’s division of property decree in the dissolution of his marriage to Marlene Walters. We affirm in part and reverse in part. The sole restated issue is whether the trial court properly ordered Ronald to make an “equalization payment” of $114,350 to Marlene as part of the property division decree."

NFP criminal opinions today (6):

Robert Roberts v. State of Indiana (NFP)

Rodney T. Williams v. State of Indiana (NFP)

Jacob Wright v. State of Indiana (NFP)

Randall E. Willis v. State of Indiana (NFP)

David Brown v. State of Indiana (NFP)

Michael Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Sunday, April 22, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues two Indiana-related opinions Friday

In US v. Swanson (SD Ind., Sarah Evans Barker, Judge), a 13-page opinion relating to the Countrymark fraud conviction, affirming the sentencing and the restitution and forfeiture orders, Judge Rovner writes:
Now in this second appeal, Swanson renews his disagreements with the district court’s calculation of the fraud loss and the amount of restitution, and he also presses a new contention that in formulating his guidelines sentence the court erroneously applied an upward adjustment for his role as an organizer or leader of extensive criminal activity. We are not persuaded by these arguments— or by others that rest on views about Booker that we have rejected in other cases—and accordingly affirm the judgment of the district court. * * *

Lastly, Swanson argues that he was entitled to a jury finding beyond a reasonable doubt regarding his forfeiture and restitution amounts. But because restitution is a civil remedy, rather than a criminal punishment, it may be determined by a judge using a preponderance of the evidence standard and remains unaffected by Booker. * * * Similarly, the Sixth Amendment and Booker do not apply to forfeiture orders because there is no statutorily prescribed maximum amount of forfeiture.

In Daniels v. Liberty Mutual Ins. (ND Ind., Rudy Lozano, Judge.), an 8-page opinion, Chief Judge Easterbrook writes:
This is another episode in long-running litigation commenced by Rick and Anna Daniels, who were acquitted of insurance fraud and now seek damages from persons who proposed or assisted the prosecution. The Danielses filed their suit in state court, and two of the defendants—Joseph Jaskolski and National Insurance Crime Bureau—would prefer to be in federal court. But the claim arises under state law, and the requirements of the diversity jurisdiction are not satisfied.

That has not deterred Jaskolski and the Bureau from trying to have issues, if not the whole suit, resolved in federal court. * * *

As we reminded Jaskolski the last time, state courts are competent to resolve questions of federal law. 427 F.3d at 459. Jaskolski and the Bureau may pursue on appeal in state court any argument they would have made in this court. If the Court of Appeals or the Supreme Court of Indiana concludes that the Attorney General abused his discretion, then the United States would be substituted as a defendant and the case would return to federal court. And if defendants’ contentions are finally rejected by Indiana’s judicial system, they may petition for a writ of certiorari under 28 U.S.C. §1257(a).

The appeal is dismissed for want of jurisdiction.

Posted by Marcia Oddi on Sunday, April 22, 2007
Posted to Ind. (7th Cir.) Decisions

Law - More on unfinished or lost transcripts, and court transcripts in general

"Missing Transcript in Mich. Murder Trial Highlights Controversy Over Handling Vital Records" was the headline to a story in the National Law Journal this week by Tresa Baldas. Some quotes:

A missing court transcript of a Michigan murder trial has highlighted a frequent problem encountered by the courts: What happens when transcripts, or crucial portions of them, go missing?

That's at the heart of a recent controversy brewing in Detroit, where convicted murderer Elroy Jones is seeking an appeal.

But there's a problem: The only transcript of his murder trial was recently stolen by someone who broke into a court reporter's vehicle in a drugstore parking lot. The thief took her briefcase, which contained tapes from the defendant's 2006 murder trial.

"We don't have the real details that exist here. It's just impossible to pursue the [appeal]," said the defendant's appellate lawyer, Craig Tank of Tank & Jelalian in Macomb Township, Mich., who is seeking to have the conviction reversed. People v. Jones, No. 06-007202 (Wayne Co., Mich., Cir. Ct.).

According to Tank, the stolen tapes contained 80 percent of the trial transcripts. All that's left on record, he said, is the prosecutor's opening argument. Tank filed motions last week in the appeals court to have the case remanded back to the lower court for retrial.

"What has taken place here with the missing transcripts is that [defendant] Elroy Jones has been deprived of his right to seek an appeal," said Tank, who disputed claims that the robbery was a setup. "This was simply a random criminal act." * * *

Under federal and state laws, lawyers note, defendants seeking appeals can raise due process challenges when transcripts, exhibits or other records are missing because federal due process guarantees the right to receive a record of trial to permit an effective review.

If the record is gone, or crucial information is missing, convictions can be thrown out, arrest warrants can be deemed illegal and crucial evidence can be suppressed.

That's what happened in a California robbery case in December, when a court suppressed all evidence seized under an arrest warrant because the original copy of the search warrant affidavit was missing from the court records. The fact that the documents were missing was discovered on appeal when the defendant tried to challenge the validity of the warrant. People v. Galland, 146 Cal. App. 4th 277 (2006). * * *

[M]issing court documents were the subject of a recent training seminar in California, at which appellate lawyers with the First District Appellate Project discussed hurdles defendants must overcome when seeking reversals due to missing or incomplete records. One obstacle is proving that the trial can't be reconstructed without the transcript; the other is proving that defendants were actually prejudiced.

"In most state court systems, the rule is: If someone is completely deprived of a transcript, then he has been deprived of his right to an appeal. And absent the right to an appeal, he is entitled to a retrial," said Milton Hirsch, who specializes in criminal defense and appellate litigation and is an adjunct professor at the University of Miami School of Law.

A Nov. 25, 2005 ILB entry is titled "Unfinished Transcripts May Nullify Convictions in Colorado." A follow-up entry appeared March 3, 2006.

An April 3, 2007 ILB entry asks the question: "Can a digital CD take the place of a trial transcript? Can a "transcriptionist" take the place of a court reporter?" In a Florida Petition for Writ of Mandamus to the Circuit Courts for Polk and Sarasota Counties, "seeking relief to address certain electronic court recording and transcription issues," the petitioner addressed "the shift away from using trained professional court reporters in all courtroom proceedings to the use of less costly digital recording," and pointed to errors such as "the transcript purported to include an appearance by an attorney on behalf of Ingram when no such attorney existed." At least one judge strongly agreed, taking the opportunity "to explain that a digital recording is not a transcript and that any transcript presented to this court in its review capacity must be prepared by an official court reporter."

An issue currently pending before at least one state high court is whether discussions before the bench between the trial judge and attorneys, recorded and apparently transcribed, are properly part of the record. A proposed Minn. Court Rule would appear to cover this issue. It begins:

RULE XXX. Access to Recordings. This rule governs access to recordings of testimony in the district court:

(a) General. Recordings of testimony in the district court, including without limitation those used as a back-up to a stenographically recorded proceeding or as the electronic recording, are intended to assist in the preparation of a transcript. The transcript, and not the recording, is the official record of the proceedings. Recordings of testimony in the district court may only be used as authorized in this or other applicable rules or orders promulgated by the Supreme Court.

(b) Off the Record Remarks. Any spoken words in the courtroom that are not a part of a proceeding, hearing or trial of a specific case are not intended to be recorded. Recordings of such words may not be listened to or used in any way other than by authorized operators of the recording equipment to orient themselves on recording content.

Posted by Marcia Oddi on Sunday, April 22, 2007
Posted to Courts in general

About this blog - Catching up

The ILB is catching up today - the site was dark Friday and Saturday, a rare occurance.

I was attending a wonderful National Summit on Authentic Legal Information in the Digital Age, sponsored by the Amercian Association of Law Libraries. I learned much that is important to the Indiana scene and will be writing about it over the coming weeks.

Posted by Marcia Oddi on Sunday, April 22, 2007
Posted to About the Indiana Law Blog

Law - Still more on: Injustice in Wisconsin, bad enough to shock 7th Circuit panel; Plus, more on Indiana Headnotes

Updating this ILB entry from April 11th, about former Wisconsin state purchasing supervisor Georgia Thompson , who was freed from prison earlier this month after being acquitted by a panel of the 7th Circuit (see also this April 9th entry), recall that the panel decided the case and ordered that Ms. Thompson be released from prison that very day, with an "opinion to follow." Friday the Court issued that opinion:

U.S. v. Georgia Thompson , written by Chief Judge Easterbrook. Here is some interesting language from the opinion:

Section 666 [of a federal criminal statute] is captioned “Theft or bribery concerning programs receiving Federal funds”, and the Supreme Court refers to it as an anti-bribery rule. * * *

Faced with a choice between a broad reading that turns all (or a goodly fraction of) state-law errors or political considerations in state procurement into federal crimes, and a narrow reading that limits §666 to theft, extortion, bribery, and similarly corrupt acts, a court properly uses the statute’s caption for guidance. * * *

Sections 666 and 1346 have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law. Courts can curtail some effects of statutory ambiguity but cannot deal with the source. This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting ambulatory criminal prohibitions. Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch.

Thompson’s conviction is reversed, and the case is remanded with instructions to enter a judgment of acquittal.

Read coverage of the decision here, from the April 21 Wisconsin State Journal Some quotes:
The prosecution never showed that Thompson clearly gained by her actions or even knew that her superiors favored Adelman Travel Group of Milwaukee for any improper reasons, the judges found. Prosecutors never eliminated the possibility that Thompson pushed for Adelman because of more innocent factors like cost or its status as a Wisconsin firm competing against an out-of- state company.

"An error - even a deliberate one, in which the employee winks at the rules in order to help out someone . . . is a civil rather than a criminal transgression," the opinion reads. "Likewise the sin is civil (if it is wrong at all) when a public employee manipulates the rules, as Thompson did, to save the state money or favor a home-state producer that supports elected officials."

Thompson, who maintained her innocence throughout the case, has not spoken publicly about her acquittal. After her conviction of mail fraud and misapplication of funds last summer, Thompson was sentenced to 18 months in federal prison and served four months.

Thompson's attorney, Stephen Hurley, said the decision ensured that public workers wouldn't be accused of fraud with little evidence.

"I think all state employees should breathe a huge sigh of relief," Hurley said.

Here is the story from the Milwaukee Journal Sentinel. Some quotes:
Georgia Thompson, the state worker convicted - then cleared - of improperly steering a contract to a politically connected travel company, might have made a mistake, but she didn't commit a federal crime, according to a Court of Appeals opinion released Friday.

Also Friday, it was announced that Thompson, 57, will start a new state job Monday at her old salary of $77,300 a year and get $67,161.46 in back pay.

The 14-page opinion, written by 7th U.S. Circuit Court of Appeals Chief Judge Frank Easterbrook, came two weeks after the court's searing rebuke of the government's case at oral arguments in Thompson's appeal. The court on April 5 took the unusual step of immediately reversing her conviction and freeing her from federal prison, where she had spent almost four months of an 18-month sentence. The court also announced it would explain its decision in a later opinion. * * *

Two legal experts said Easterbrook's opinion wasn't as heated as the comments at oral argument, when Wood called the evidence "beyond thin." Two of the three judges were appointed by Republicans, one by a Democrat.

"This is a much more measured analysis of the issues," said associate law professor Michael O'Hear of Marquette University. "The court thought no harm was done to the state of Wisconsin and if anything the state benefited from what Georgia Thompson did."

Thanks to How Appealing for the links to the recent coverage.

Comment on Reliance on Captions and Headnotes: As an aside, I was intrigued by the 7th Circuit's reliance here on the caption to a federal statute for guidance to its interpretation.

In Indiana, IC 1-1-1-5, concerning construction of statutes, provides at subsection (f):

(f) The headings of titles, articles, and chapters as they appear in the Indiana Code, as originally enacted or added by amendment, are not part of the law and may be altered by the lawful compilers, in any official publication, to more clearly indicate content. These descriptive headings are intended for organizational purposes only and are not intended to affect the meaning, application or construction of the statute they precede.
As for the headings to individual sections of the law, such as those that might appear in a private publishers' edition, or in the version of the Indiana Code the Indiana Legislative Services Agency posts online, these descriptive section headings are written by the publishers' or LSA's staffers, and certainly are not part of the law. I believe the introductory text to the LSA's printed edition to the Indiana Code stated this, but this material is not available online.

Perhaps this is not the case with the federal statutes. But a quick google search turned up this 1998 1st Circuit case, Brady v. Credit Recovery, which appears to indicate that at least some federal statutes forbid reliance on captions:

First, defendants argue that we need not resort to ordinary usage because the FDCPA does in fact define the term "disputed debts." In support of this contention, defendants point to § 1692g(b) which is captioned "disputed debts." See 15 U.S.C. § 1692g(b). Although we cannot assume that § 1692g(b) defines this term simply because of its caption, see Pub. L. 90-321, § 502 (May 29, 1968), 82 Stat. 146, 147, reported as a note following 15 U.S.C. § 1601 (forbidding reliance on captions), defendants contend that the text of § 1692g(b) provides a definition of "disputed debts" that carries over to § 1692e(8). We disagree.

[Updated - More on Indiana Headnotes] - I have now located the introductory text, included in the 2004 CD edition of the Indiana Code, but not directly accessible. This is the same type of language that appeared in the printed edition, when that was generally available:

As an aid to the reader, the Indiana Legislative Council authorized the editorial staff of West Group to devise and include in the Indiana Code headnotes for each statute section amended or enacted after 1998 through 2001. The headnotes after 2001 have been prepared by the Legislative Services Agency.

These headnotes provide a quick reference to the contents of each section and are set in a distinctive typeface together with the full citation to the section immediately preceding its text. For example: 5-4-4-10 Taxation of costs

Bold type is used to indicate that these headnotes are not part of the law. Section headings in the Indiana Code have been revised in accord with amendments made during the 2004 regular session and special session. In the occasional instance in which a law as enacted contained a section headnote, the enacted headnote is printed with the text of the statute in the same typeface as the text.

Posted by Marcia Oddi on Sunday, April 22, 2007
Posted to Ind. (7th Cir.) Decisions

Thursday, April 19, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Harmony Health Plan of Indiana, Inc., et al. v. Indiana Department of Administration and Anthem Insurance , a 17-page opinion, Chief Judge Baker writes:

Harmony argues that the trial court erred in dismissing its petition for judicial review against the respondents regarding the State’s award of contracts for Hoosier Healthwise, a Medicaid Program, after it was determined that Harmony was not the successful bidder on the contracts. Concluding that the trial court properly dismissed Harmony’s complaint, we affirm.
Scott Butterfield v. Jane (Butterfield) Constantine - "Scott Butterfield (“Scott”) appeals the trial court’s calculation of his child support, college expenses, and arrearage obligation owed to his ex-wife, Jane (Butterfield) Constantine (“Jane”). He raises the following issues that we consolidate and restate as: I. Whether the trial court properly calculated Scott’s obligation to pay his child’s post-secondary education. II. Whether the trial court properly applied his arrearage payment. We affirm in part, reverse in part, and remand with instructions."

NFP civil opinions today (1):

John Smith and Pia Smith v. Lisbeth Skaalerud Gillette and Richard Gillette (NFP) - "Without reweighing the evidence or judging witness credibility, we conclude that the trial court could have concluded that the judgment was established by clear and convincing evidence. Therefore, the trial court did not abuse its discretion in appointing the Gillettes as guardians"

NFP criminal opinions today (7):

Adam Diaz v. Superintendent, Pendleton Correctional Facility (NFP)

Dwayne Franklin v. State of Indiana (NFP)

Larry Blanton, Jr. v. State of Indiana (NFP)

Michael D. Oates v. State of Indiana (NFP)

Sean Bullock v. State of Indiana (NFP)

Brian Blake v. State of Indiana (NFP)

Joseph T. Williams-Bey v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 19, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court of Appeals held oral arguments today in Hammond City Hall

It seems like these notices have been appearing recently on the same day as the argument. Just posted today:

The Indiana Court of Appeals will hear oral argument in Lake County Indiana Board of Zoning Appeals, et al. v. James C. Thorn and Pamela Thorn, et al. on Thursday, April 19th at 1:00 p.m. CT in the City Council Chambers at Hammond City Hall. A panel of Judge Patricia A. Riley, Judge Melissa S. May, and Judge Margret G. Robb will hear the case on appeal from Lake Circuit Court.

The Court is asked to decide whether the trial court properly granted a permanent injunction to the Thorns, developers of a subdivision called “Thornmeadow.” The permanent injunction had the effect of ordering Lake County zoning authorities to issue building permits allowing development at the subdivision to continue. Arguing for the appellant, the Lake County Board of Zoning Appeals, is George C. Patrick of Crown Point; Kenneth D. Reed and John P. Reed of Abrahamson Reed & Bilse in Hammond will argue for the Thorns.

Following oral argument, the Court will answer questions about the judicial process in Indiana from local college students, members of the Lake County Bar Association, and the public.

Posted by Marcia Oddi on Thursday, April 19, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Mainsource Bank v. Eva Hermann, a 7-page opinion, Justice Dickson writes:

In this appeal, MainSource Bank challenges the trial court order overruling its objections to the closing statement filed by Eva Hermann, personal representative of the estate of Nicholas Hermann, her deceased husband. MainSource contends that the trial court erred in failing to re-quire that the parties' entireties property be included as an estate asset under the doctrine of equi-table election. The Court of Appeals affirmed, finding the doctrine inapplicable in this case. MainSource Bank v. Estate of Hermann, 843 N.E.2d 69, 73 (Ind. Ct. App. 2006). We granted transfer and conclude that the doctrine of equitable election is inapplicable, but that the calcula-tion of the widow's distribution under the will required consideration of the value of the entireties property. * * *

We reverse the denial of MainSource's objection to the closing statement and remand for re-determination of the property distribution directed by Items 4 and 5 of the will, and for any further proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, April 19, 2007
Posted to Ind. Sup.Ct. Decisions

Environment - CAFO hearing; Pines transfer station

CAFO Hearing. "Dairy farm faces hearing on creek spill" is the title of a story today by Rebecca S. Green in the Fort Wayne Journal Gazette. Some quotes:

After hearing arguments on a temporary restraining order against an Andrews-area dairy accused of fouling a waterway with manure, a Huntington County judge ordered written arguments for Wednesday and set another hearing early next month.

Sitting in for Superior Court Judge Jeff Heffelfinger, Huntington Circuit Court Judge Thomas Hakes heard more than two hours of arguments Tuesday by Denise Walker with the Indiana attorney general’s office and attorneys representing Johannes DeGroot, owner of the 1,400-cow DeGroot Dairy at 8379 County Road 200 South.

The hastily called hearing, prompted by a late-morning motion filed Tuesday by Walker, focused on whether the manure found last week in a tributary of Salamonie Reservoir could be linked to the cattle at the dairy that have been the source of contamination in the past.

Pines Transfer Station. Vicki Urbanik of the Chesterson Tribune reports:
The Porter County Commissioners have said it before, and on Tuesday, they said it again: They will not grant a waste transfer station proposed on the Porter-LaPorte County Line Road the required driveway permit.

The commissioners unanimously upheld their original May, 2005 decision by rejecting a recently submitted driveway permit application submitted on behalf of the Great Lakes Transfer Station and Sean Bleiden and property owner Darren Kaletha.

The Indiana Department of Environmental Management has granted the transfer station the required permit, but the station still needs a Porter County-issued driveway permit.

The commissioners approved a letter, to be sent today to the attorneys representing the waste transfer station, by County Engineer Dave Schelling, who returned the $40 application fee because the driveway permit was denied.

“There really isn’t a significant difference between this permit application and the previous applications for this location,” Schelling wrote.

Schelling told the commissioners Tuesday that the most recent permit application is faulty, since it lacks a detailed drawing and even leaves out the adjacent railroad tracks. Further, he noted that he spoke at the September, 2005 IDEM public hearing on the waste station permit, but that none of his concerns raised then have been addressed.

The county commissioners have primarily been concerned with the condition of County Line Road. Although the waste station is to be on the LaPorte County side of the road, Porter County is responsible for the road maintenance. County officials have said the road is in poor shape as it is and cannot handle heavy truck traffic to and from a waste station. They have also raised safety concerns about heavy truck traffic.

“The road is posted 10 tons due to the very poor load carrying capacity of the soil under the road,” Schelling’s letter reads. “The road can carry an occasional over weight load, but will be destroyed with repeated heavy loads.”

Schelling’s letter also noted that any vehicles more than 10 tons using County Line Road would have to obtain an overweight permit from the county highway department. But, he wrote, no such permit was requested or obtained for the concrete or the crane that was used to build a cell tower at the waste transfer station site.

“The track record is not good at this location,” the letter says.

Here is a list of earlier ILB entries on the Pines transfer station issue.

Posted by Marcia Oddi on Thursday, April 19, 2007
Posted to Environment

Ind. Decisions - Appeals court rules in Crown Point's favor

Yesterday's Court of Appeals opinion in City of Crown Point v. Misty Woods Properties, LLC (see ILB entry here) is the subject of a story today by Marisa Kwiatkowski in the NWI Times. Some quotes:

The Indiana Court of Appeals ruled in the city's favor Wednesday in its dispute with the developer of the Misty Woods subdivision.

The appeals court reversed an earlier Lake Superior Court judge's ruling that Misty Woods Properties LLC was entitled to build without restrictions imposed by the city that would have prevented the construction of duplexes. * * *

The Indiana Court of Appeals ruled that while the City Council did not have the authority to amend the developer's request, the developer could.

The court said Misty Woods effectively amended its own rezoning request by the developer's conversations with city officials to move the project forward as single-family residential and not objecting later when the matter came before the city's Board of Zoning Appeals.

Posted by Marcia Oddi on Thursday, April 19, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - Uzelac's name ordered removed from May 8 primary ballot

"Uzelac name off the ballot" is the headline to a story today by Deborah Laverty in the NWI Times. Some quotes:

CROWN POINT | Merrillville Town Councilman David Uzelac's name will not be on the May 8 primary ballot, a Lake County judge ruled Wednesday.

Lake Circuit Court Judge Lorenzo Arredondo issued an order instructing the Lake County Board of Elections to declare Uzelac as ineligible to run for office, to reject his declaration of candidacy and to remove his name from the ballot.

The ruling was prompted by a political opponent's court challenge to Uzelac's candidacy because of the incumbent's past criminal record. * * *

Uzelac, 43, who has served on the Town Council since 1998, pleaded guilty more than two decades ago to the Jan. 1, 1984, theft of cash from the former Captain D's restaurant on U.S. 30 in Merrillville.

A loophole in state law at the time permitted Uzelac to hold public office because the sentencing judge in his case reduced his crime from a felony to a misdemeanor. An Indiana law passed in 2005 closed the loophole.

And Goralczyk filed an objection to Uzelac's re-election campaign earlier this year based on the altered law.

The county elections board refused Goralczyk's challenge last month, claiming the new law was unconstitutional, but Goralczyk appealed the matter to Arredondo's court.

Lake County election board lawyer David Saks said the decision to remove Uzelac's name won't be contested by the local board, but Uzelac has a right to appeal his case.

See earlier ILB entries here.

Posted by Marcia Oddi on Thursday, April 19, 2007
Posted to Indiana Law

Wednesday, April 18, 2007

Law - Consequences of today's U.S. Supreme Court abortion decision

Lyle Denniston of SCOTUSblog talks about the anticipated consequences of today's U.S. Supreme Court abortion decision, Gonzales v. Carhart, in an entry that begins:

In a decision that surely is on a par, historically, with Roe v. Wade, the Supreme Court's 5-4 decision Wednesday upholding a nationwide ban on "partial-birth abortions" guarantees at least three coming battles in the ongoing culture war on abortion, and, in addition, ensures that the Court itself will continue to be affected by lingering resentments -- inside and out -- over what it has decided.

First, Gonzales v. Carhart (or Carhart II) guarantees that, on future Supreme Court nominations, where a nominee does or may stand on abortion rights will continue to be the dominant focus -- of both sides in nomination fights. In other words, it will still be a litmus test, on both sides. That will surely keep the issue alive as a divider in politics in general.

Second, it guarantees that new lawsuits will spring up, perhaps in only a matter of days, to test whether anything remains legally and practically speaking of the constitutional right to abortion.

And, third, it guarantees that state legislators across the Nation will be actively at work finding ways to curb abortion rights earlier and earlier in pregnancy, perhaps from the moment of conception.

And those are just the guarantees in the realms of law and politics. In cultural terms, the decision means that any thought of reconciliation, or searching for common ground on the moral terrain of terminating pregnancy, is premature at best, and doomed at worst. Neither side has been given any reason not to dig in further on its firmly established view on access to abortion.

Access the main page of SCOTUSblog and scroll down the entries for all the information on, and reaction to, today's decision.

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 19 NFP) [Updated]

For publication opinions today (3):

In City of Crown Point v. Misty Woods Properties, LLC, a 21-page opinion, Judge Robb concludes:

It is clear that we are here dealing with a developmental standards variance request. The developmental standards at issue here are lot frontage and lot area size. Misty Woods has not provided any evidence or argued otherwise. Accordingly, section 36-7-4-918.5 applies, and gives the BZA the authority to approve or deny Misty Woods’ variance request. There is no genuine issue of material fact regarding the propriety of the BZA’s action with respect to Misty Woods’ variance request. The trial court should have granted the City’s motion for summary judgment with respect to Counts II and IV of Misty Woods’ complaint.

Conclusion. The trial court’s order granting Misty Woods’ motion for partial summary judgment and denying the City’s motion for summary judgment on Count I is reversed. The City is also entitled to summary judgment as a matter of law with respect to the remainder of the counts of Misty Woods’ complaint and the trial court erred in denying the City’s motion for summary judgment on these counts. The trial court’s order denying the City’s motion for summary judgment on Counts II, III, and IV is therefore reversed. Reversed.

In State of Indiana v. Universal Outdoor Inc., an 8-page opinion, Chief Judge Baker writes:
Appellant-plaintiff State of Indiana (the State) appeals the trial court’s judgment in favor of appellee-defendant Universal Outdoors, Inc. (Universal) in a condemnation action that the State filed against Universal. Specifically, the State argues that the trial court erred by finding that the State did not properly file its exceptions pursuant to Indiana Code section 32-24-1-11, which resulted in a judgment in favor of Universal. Holding that exceptions are timely if filed within twenty days of the appraisers’ report but no later than twenty days after the clerk sends notice of the appraisers’ report to the parties, we conclude that both parties’ exceptions were timely filed and, therefore, reverse the judgment of the trial court.
In Daniel Marks v. State of Indiana , a 15-page opinion, including a separate concurring opinion, Judge Crone writes:
Daniel Marks appeals his conviction for class A misdemeanor operating a vehicle while intoxicated (“OWI”) and judgments for the class C infractions of driving without a license and failing to yield the right-of-way. We affirm.

Issues. We restate Marks’s issues as follows: I. Whether the trial court committed reversible error in instructing the jury on impairment; and II. Whether the trial court committed reversible error in responding to a jury question in Marks’s absence. * * *

[Part I] Based on the foregoing, we conclude that Marks’s OWI conviction is clearly sustained by the evidence and that the instruction would not likely have impacted the jury’s verdict, i.e., that the giving of the instruction was harmless error. * * *

[Part II] The trial court merely repeated its earlier instruction to the jurors to consider the evidence as they remembered it. Having found no grounds for reversal, we affirm.

SULLIVAN, J., concurs with opinion: I concur but with respect to Part I would go a step further than does the majority holding that the instruction in question was harmless error.

Not only do I think such instruction is error and should not be given in any such case, I am unable to agree that the language used in the appellate court cases cited is appropriate in any context. To this extent, I would state a disapproval of Ackerman v. State, Pickens v. State, and Ballinger v. State.

NFP civil opinions today (6):

James Bedree v. City of Fort Wayne and Fort Wayne Police Department (NFP)

Guaranteed Muffler and Brake v. Willie J. Harris (NFP)

MacArthur Drake and Associates v. Tower Crossing Associates, et al. (NFP)

Term. of Parent-Child Rel. of M.M., Jerrell Covington v. Marion Co. Dept. of Child Services (NFP)

Michael Kelley v. Estate of Bernard P. Mullan (NFP)

Jerry & Betty Susong, Debby Keegan, Joseph South, et al v. Don & Jodean Young (NFP)

NFP criminal opinions today (13):

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

Curtis E. Camp v. State of Indiana (NFP)

Eugene Olsen, Sr. v. State of Indiana (NFP)

David William Titley v. State of Indiana (NFP)

Xavier R. Garcia v. State of Indiana (NFP)

Michael Jones v. State of Indiana (NFP)

Hugh D. Beech, Jr. v. State of Indiana (NFP)

Otha L. Giles, Jr. v. State of Indiana (NFP)

Steven Brown v. State of Indiana (NFP)

Dennis Kilgore v. State of Indiana (NFP)

Lyn Magee v. State of Indiana (NFP)

Michael Pease v. State of Indiana (NFP)

Timothy Rogers v. State of Indiana (NFP)

[Updated at 3:40 pm] This decision was just posted, American Fire & Casualty Co. v. Direction in Design, Inc.

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court granted three (make that four) transfers yesterday

Cases granted transfer Tuesday, April 17th, along with links to the Court of Appeals opinions:

Philip Littler v. State (NFP) (12/15/06)

Linda Keesling v. Frederick Beegle (12/21/06)

Idan Filip v. Carrie Block (12/16/06)

One more:

Michael Robertson v. State of Indiana (1/24/07)

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Indiana Transfer Lists

Environment - Federal Court rules Lake Station wetlands filled in with tires illegally; NWI Taskforce created

Joe Carlson of the NWI Times reports:

A politically active Lake Station developer broke environmental laws nine years ago when he bulldozed over wetlands he owned and filled in the site with piles of used tires, a federal judge has ruled.

But U.S. District Judge Rudy Lozano declined to slap landowner Rowland Fabian with the $632,000 punitive fine that government regulators had requested. A hearing on the case is set for Friday.

Fabian, an engineer and surveyor with offices in Hammond and Lansing, has owned the 30-acre piece of land in Lake Station that straddles the border between Lake and Porter counties since 1983 through a private trust.

Fabian denies violating the federal Clean Water Act, arguing the land could not legally be called a "wetland," that it did not fall under federal jurisdiction and that his activities were not pollution.

Lozano disagreed with Fabian on all three of those arguments. But the judge said the government had not provided enough evidence to determine what fine should be applied or what should happen to the existing order that Fabian return the land to its original 1998 state.

A story yesterday in the NWI Times was headlined "Federal environmental task force announced."
No stranger to belching smokestacks and decaying slag heaps, northern Indiana is getting its own watchdog task force to prosecute crimes against the environment.

U.S. Attorney Joseph Van Bokkelen on Monday announced the creation of a team that will bring together investigators from state and federal agencies to prosecute polluters.

The announcement coincides with this week's designation as National Environmental Crime Prevention Week and Earth Day on Sunday.

The task force will include the U.S. attorney's office, the U.S. Environmental Protection Agency, the FBI, the Indiana Department of Environmental Management, the state attorney general's office and Indiana State Police.

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on "U.S. District Judge Allen Sharp ordered that Joseph Corcoran be resentenced but that he should not receive the death penalty"

"State will appeal ruling to spare Corcoran" writes Dionne Waugh today in the Fort Wayne Journal Gazette. The story begins:

The Indiana attorney general will appeal a ruling by a federal judge last week that spared quadruple murderer Joseph Corcoran the death penalty.

Sarah Rittman, spokeswoman for Attorney General Steve Carter, said Tuesday that Carter has made the decision to appeal but has not yet filed the paperwork.

Rittman said she does not know on what basis Carter will petition the 7th Circuit of the United States Court of Appeals, which is the next step in the process.

See earlier ILB entries here and here.

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: Porter Judge Alexa rules on Soliday residency dispute

Vicki Urbanik has a long story today in the Chesterton Tribune on the Soliday hearing yesterday. It begins with the clearest description I've seen on Judge Alexa's ruling:

With less than two weeks left in this year’s session of the Indiana General Assembly, it’s up to the Indiana House to decide if one of their members, State Rep. Ed Soliday, R-Valparaiso, is properly seated.

That was the ruling this morning by Porter Superior Court Judge William Alexa, who granted Soliday’s request to dismiss the residency case against him -- but not for the reason advanced by Soliday’s attorney, William Bock.

Bock argued at this morning’s hearing that Alexa should dismiss the case because of legislative immunity, which grants state legislators protections while they are in session. Bock argued that if the case were dismissed, it could be re-filed once the session is over with, and that Alexa’s court has no jurisdiction until then.

But Alexa, himself a former state legislator, said he was dismissing the case for an entirely different reason -- on his own motion involving the separation of powers.

Alexa said his court does not have jurisdiction to remove a legislator. “That’s for the body itself to do,” he ruled.

His ruling now throws the issue to the Indiana House, which is narrowly controlled by Democrats, at a critical and chaotic time when both chambers are working out compromises on bills and trying to pass a state budget before Sunday.

Alexa, a Democrat, made it clear that the state constitution gives the legislative chambers the authority to judge the qualifications of their members. However, he also hinted that he agreed with the substance of the case against Soliday.

Referring to an ordinance passed in 2001 by the Porter County Commissioners that changed precinct lines, Alexa said that only the Legislature -- not counties -- have the authority to change legislative boundary lines.

Otherwise, he said, each of Indiana’ 92 counties “could play havoc” with the legislative process.

See also today's earlier ILB entry, here.

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Indiana lawmakers send wagebill to governor, but there's catch"

Bryan Corbin's story today in the Evansville Courier & Press is headed "Indiana lawmakers send wagebill to governor, but there's catch." Some quotes:

INDIANAPOLIS A bill that would increase Indiana's minimum wage to $7.25 an hour if Congress raises the federal minimum is on its way to the governor's desk.

Late Tuesday, the Indiana House concurred on Senate changes to House Bill 1027, the bill to tie the state minimum to the federal rate.

House members voted 75-22 to approve Senate amendments to the bill. Twenty-five Republicans and 50 Democrats voted yes; the 22 dissenters were all Republicans.

The state Senate linked any Indiana increase to a bill now before Congress that would raise the federal minimum to $7.25 an hour over two years. The Indiana legislation passed the Senate 45-3, sending it back to the House. * * *

Now that the House has concurred with Senate changes, House Bill 1027 goes to the governor for his consideration. Gov. Mitch Daniels in the past has said he could sign a minimum-wage increase, if it were reasonable.

Among Southwestern Indiana representatives, voting yes Tuesday were Republican Suzanne Crouch and Democrats Dennis Avery, Kreg Battles, Crooks, Phil Hoy, Stilwell and Trent Van Haaften.

Day acknowledged that before Indiana's minimum could increase, Congress would have to pass a bill now before it to raise the federal rate.

"It's not a certain thing, of course," Day said.

If the federal legislation does not become law, then Day said increasing the state minimum will be a top priority in the Legislature's 2008 short session.

The federal minimum wage has remained at $5.15 an hour since 1997. Individual states have the right to increase their state minimums above that, and 30 states and the District of Columbia already have.

Here is the relevant language in HB 1027, found on p. 3 of the bill:
(h) Except as provided in subsections (c) and (j), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after June 30, 2007, wages of not less than the minimum wage payable under the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.).
According to today's C&P story, the "catch" is that Congress has not yet passed the minimum wage increase that the Indiana law will incorporate by reference.

In my opinion, for the reasons I set out in this April 11th ILB entry titled "Is this an unconstitutional delegation of Indiana legislative authority?" the "catch" is that this effort would constitute an unconstitutional delegation of Indiana legislative authority to the federal government.

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Indiana Law

Ind. Decisions - Porter Judge Alexa rules on Soliday residency dispute

Bob Kasarda of the NWI Times reports today:

VALPARAISO | The challenge to the residency of state Rep. Ed Soliday, R-Valparaiso, was thrown out of court Tuesday morning.

Porter Superior Judge Bill Alexa cited the separation of government powers when ruling the dispute should be resolved by the Soliday's fellow members in the House.

Alexa referred to a section of the state Constitution that gives the House and Senate the powers to "judge the elections, qualifications and returns of its own members." * * *

Alexa appeared to side in part with the residency challenge when he said it is up to the state and not the county to reconfigure House district lines, according to Ken Elwood, who filed the challenge along with fellow attorney Mitch Peters.

The original lawsuit filed Feb. 21 by five local voters claimed Porter County commissioners exceeded their authority in October 2001 by revamping a few local precincts, which moved Soliday's property at 2307 Throughwoods Drive in Valparaiso from the 10th to the 4th District, which he now represents.

Elwood said he requested transcripts of Tuesday's hearing and plans to pursue the case with House officials during the current session, which ends in a couple of weeks.

House Speaker Pat Bauer, D-South Bend, said taking a vote on the legitimacy of Soliday's election victory would "make it more than difficult" for lawmakers to approve a new state budget before they adjourn on April 29.

"I think right now we have to cross the finish line of this session and deal with (the residency dispute) soon after," Bauer said, adding that the residency issue could be voted on next month, if budget negotiations fail, forcing lawmakers into special session.

Soliday was pleased by Tuesday's ruling and said his attorneys would have eventually raised the same constitutional issue. He continues to be frustrated by the challenge.

His challengers "have no respect for the legislative process," he said. "We're at the busiest time of the Legislature, where we're dealing with the budget, and they've again shown their contempt."

Soliday said he has purchased property further into his legislative district and plans to build a new home by Nov. 1.

"So this entire process is moot, and they know it," he said.

His attorney, William Bock, argued the case should be dismissed because it is unconstitutional to serve a state lawmaker with a civil lawsuit while the Indiana General Assembly is in session.

Alexa rejected the argument.

Bock also picked apart the residency suit, saying "The complaint is filled with inaccuracies of fact and law."

Plaintiff's attorney Peters said his client, James Saylor, said he is not accusing Soliday of doing anything intentionally wrong. Soliday just does not live within the district he was elected to represent, he said.

Diane Krieger Spivak of the Gary Post-Tribune reports:
Porter Superior Court Judge William Alexa on Tuesday threw out a lawsuit challenging Rep. Ed Soliday's eligibility to hold onto his house seat.

"This court does not have the jurisdiction to remove Mr. Soliday, or any other member of the General Assembly," Alexa told lawyers at a morning hearing.

Alexa said the Indiana House of Representatives has the sole right to judge Soliday's or any other member's qualifications. * * *

William Bock III, the Indianapolis-based lawyer representing Soliday, argued that Indiana code forbids bringing a civil suit against a member of the General Assembly while it is in session. * * *

Alexa denied the motion to dismiss.

"I don't think dismissing this case is going to end it," he said, before dismissing it based on jurisdiction.

See a list of earlier ILB entires mentioning "Soliday" here.

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on "Speedway High School Becomes Indiana Court of Appeals"

Updating this ILB entry from Saturday, John Tuohy of the Indianapolis Star has a report today headed "Kids meet judges: Courtroom session held at Speedway High School Friday showed students the judicial system up close."

The story focuses on the Q & S session between the judges and the students after the oral arguments. A great photo that accompanies the story says it all - it show the backs of the three judges, sitting in their robes on the edge of the stage, looking out on a packed auditorium of students and answering their questions. Some quotes:

The judges, Margret G. Robb, James S. Kirsch and Patrick D. Sullivan, peppered lawyers from both sides with questions from the outset.

After the hearing, the judges took questions from the group of about 200 students for more than an hour -- though they were not allowed to comment on the case they just heard.

One student wanted to know whether the judges thought marijuana should be legalized. Others asked about gay marriage, judicial independence and how the judges felt after making a decision.

"I think it would be tough to do our jobs if we were constantly worried about whether we made the right decision," Kirsch said, noting that the judges hear 500 cases a year. "We need to reach a decision and go on to the next case."

History teacher Andre Young, who convinced the court to come to the school, said he was impressed by the questions the students asked.

"I thought they were insightful," said Young, a law student at Indiana University School of Law-Indianapolis. "We talked a lot about the case beforehand but I did not tell them what to ask."

Maura Pierce, a spokeswoman for the court, said the session at Speedway was the 184th held at law schools, colleges, high schools and county courthouses since 2000. * * *

Kirsch said that the justices try to choose cases that would appeal to their audiences. "This was a good case for them because it involves a crime committed by someone when they were a juvenile,'' he said.

Kirsch said he was impressed by the questions. "They were very topical," he said. "They were questions you ask if you have been paying attention to current events."

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Even more on "MySpace Postings Are Free Speech"

The April 9th Court of Appeals opinion in A.B. v. State of Indiana (initial ILB entry here), is the subject of even more comment.

The Clovis News Journal, located in Clovis, New Mexico, delivers to readers in a number of New Mexico and Texas counties, and is part of Freedom Newspapers of New Mexico. From an editorial dated April 17 and titled "Speech once again free in cyberspace ":

An Indiana appellate court this month ruled, rightly in our view, that a verdict reached by a circuit court a year ago unconstitutionally violated a young girl’s freedom of speech.

In a time where many of our freedoms are being usurped in the name of national security, we must take the time to treasure these small victories because, often times, they pave the way for the larger victories down the road. * * *

The appeals court opinion said that because A.B. directed her comments, profane though they were, at the enforcement of a policy at a public school and at the state official, namely the principal, who was enforcing that policy, her comments were political in nature.

The court also found that the initial argument did not satisfy Indiana’s harassment test. The court did not observe any evidence that these statements inflicted any undue harm on the school’s principal.

The incident is another in a line of cases where a public official has tried to squash the voice of a student because the official believed the student’s statements to be inappropriate or uncouth.

However, there have been at least three Supreme Court cases that have afforded increased protection for student-initiated debate, according to the First Amendment Center.

One could argue MySpace constitutes a student-initiated forum of discussion and, therefore, is protected from censorship from public officials, such as a principal.

The Internet is a powerful vehicle of communication and debate and it should be kept free from the interference of government for the benefit of all, including for students who want to gripe about school policies.

The South Bend Tribune has a lengthy story by Jeff Parrott with the headline "Local accident detailed in blog: Man, 21, facing OWI-causing injury charge one of many youths whose posts could haunt them." The story quotes from statements on the youth's website, then writes:
Those words were typed onto a Web log, or blog, on Hoshaw's MySpace page, on Sept. 8. The site also contained pictures of him guzzling beers and partying with others while he attended Ball State University.

On his blog, he admits his blood-alcohol content at the time of the crash was twice the legal limit, despite not having been charged with a crime. Having gone straight to the hospital after the crash, he had yet to even be arrested.

Hoshaw declined to speak with a reporter. But what he apparently states about the crash in his blog is consistent with what he has said in a sworn civil court case deposition.

He is one of a growing number of teens and young adults who are posting potentially self-incriminating things on MySpace and other so-called social networking sites.

The report then ties in the Court of Appeals opinion in A.B. v. State of Indiana:
In another case last week, the Indiana Court of Appeals overturned a lower court's decision to place a girl on probation for posting an expletive-laden entry on MySpace criticizing her principal on school policy over body piercings. The appeals court ruled her posting was constitutionally protected political speech because it dealt with school policy.

Still, initially facing more serious charges before they were dropped, she found herself thrust into Putnam County's juvenile justice system over her Web words.

More than 100 million people, most between the ages of 14 and 24, now have MySpace pages. Experts say teens and young adults enjoy having a place, unconstrained by adults' rules, where they can express themselves, trade music and simply hang out.

But why aren't some youth more careful about what they post? * * *

As it turned out, authorities did not know about Hoshaw's MySpace page until learning about it from a Tribune reporter April 10 -- about a week after prosecutors charged Hoshaw in the case.

Posted by Marcia Oddi on Wednesday, April 18, 2007
Posted to Ind. App.Ct. Decisions

Tuesday, April 17, 2007

Law - More on yesterday's Pulitzer announcments

While reviewing the complete list of Pulitzer winners for journalism in the NY Times today, this item describing the Investigative Reporting award definately got my attention:

INVESTIGATIVE REPORTING: BRETT J. BLACKLEDGE
The Birmingham News
Mr. Blackledge, 43, won for his work exposing extensive corruption and cronyism in Alabama’s network of 26 two-year colleges and training schools.

Mr. Blackledge’s reporting has led to the chancellor’s dismissal and to a move by the governor to ban the hiring of any state legislator by any of the colleges.

Read that last line again.

Here are some quotes about the series from Editor & Publisher:

Blackledge's investigation, which began back in April of 2005, included far more stories -- 50 -- than the 10 maximum that the Pulitzer contest allows.

And it is not over, Blackledge says -- in fact, now that the newspaper has assembled a huge database on Alabama community college contracts, personnel, accounts receivables and payrolls, it's likely to get even more interesting.

The Birmingham News series has made things hot for officials of the community colleges -- and for legislators.

One of the revelations of the investigation was that the state House majority leader had contracts in two separate campuses. Since the series, the chancellor of the system was fired. Relatives of chancellor and other college officials have lost their job. A federal investigation that, unknown to Blackledge, was looking into one college in the system before the News revelations has now apparently greatly broadened the scope of its probe.

This investigative system grew from some complaint at one obscure part of the sprawling two-year college system. "A number of folks in a small fire college approached me, concerned about some things they had seen," Blackledge said, "and I used that sort of as an entree into the broader issue."

Blackledge had wanted for some time to look into the two-year college system, which was created by former Gov. George Wallace, and was always the subject of rumors about corruption and nepotism.

The investigation combined shoe-leather journalism and dozens of interviews with computer-assisted reporting. The paper collected reams of data from campuses and "created a database that for the first time allowed us to look at every check, essentially, written" by the colleges. By analyzing that data, Blackledge found patterns of corruption and favoritism.

Here is a link to The Birmingham News page that announces the award and links to a number of the stories investigating the community college system.

This story, from Oct. 8, 2006, is headlined "Dozens of legislators paid by 2-year colleges." Here are some quotes:

Alabama's two-year college system has paid more than three dozen state lawmakers or their relatives in recent years, including several legislators who received paychecks from two different colleges, system records show.

One quarter of the 140 members of the current Legislature, elected since 2002, has financial ties to the system, the records show. There are 28 legislators who were on community college payrolls; five whose wives were on payrolls; two legislators whose businesses received work; one whose brother was on the payroll; and one legislator whose business and wife were paid, records show.

Most of those jobs or contracts went to legislators after they were elected, records show.

The payments, made since 2002, ranged from $162,930 a year to Rep. Yvonne Kennedy as president of Bishop State Community College in Mobile to $2,340 paid to Rep. Charles O. Newton for history classes he taught in 2003 at Lurleen B. Wallace Community College in Andalusia.

Some of the Legislature's most powerful lawmakers received money. They include House Speaker Seth Hammett, who received $122,242 in 2002 before he retired that year as president of Lurleen B. Wallace, and House Speaker Pro Tem Demetrius Newton, who received $1,100 a month for legal services last year from Lawson State Community College in Birmingham.

In some cases, the wives of powerful legislators received pay, records show. Johna Lindsey, the wife of House Education Budget Committee Chairman Richard Lindsey, receives more than $25,000 a year as an employee of Gadsden State Community College; and Susan Barron, wife of Senate President Lowell Barron until their divorce last year, receives $54,506 a year from Northeast Alabama Community College in Rainsville, records show.

Legislators defended the payments they received from the two-year college system, noting they need to earn a living. The lawmakers said they receive just over $30,000 a year in part-time salary and expenses from the Legislature.

Posted by Marcia Oddi on Tuesday, April 17, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

Margaret Wilhelm and All Other Occupants v. Madison Village, MHC, LLC - "Margaret Wilhelm rented a lot for her mobile home at Madison Village, MHC, LLC (“the Village”). The Village sought to evict her and the other residents of her mobile home (collectively “Wilhelm”) and it obtained a judgment after Wilhelm failed to appear at a hearing. She now appeals the denial of her motion to set aside the order of eviction and a money judgment in favor of the Village. The Jefferson Circuit Court had jurisdiction over the Village’s action, and Wilhelm did not establish a right to relief from the judgment. We accordingly affirm."

Paul R. Gilpin and Doris J. Gilpin v. Ivy Tech State College - "Paul Gilpin (“Gilpin”) and his wife Doris appeal summary judgment in favor of Ivy Tech State College (“Ivy Tech”). Ivy Tech did not encourage, desire, induce, or expect Gilpin or other members of the public at large to use its restroom facilities. Therefore, Gilpin was a licensee when he slipped on gravel and fell in the street while on the way to the restrooms. Gilpin was aware of the gravel before he fell and, consequently, the gravel was not a latent danger about which Ivy Tech should have warned Gilpin. * * * Gilpin was a licensee, not an invitee, of Ivy Tech. Because the gravel was not a latent danger, Ivy Tech had no duty to warn Gilpin about it. Accordingly, we affirm."

Timothy P. Heagy v. Kelly K. Kean - custody and support dispute, affirmed.

In Frank Broadhacker, Ann Broadhacker and Reel One, an Indiana Corporation v. City of Indianapolis and the Metropolitan Development Commission, a 15-page opinion, including separate concurring/dissenting opinions, Judge May writes:

Frank and Ann Broadhacker and Reel One, Inc. appeal a summary judgment for the City of Indianapolis. We reverse, as there is a genuine issue of material fact whether Reel One is a private club and therefore not subject to the nuisance ordinance on which the City relied to enjoin the operation of Reel One and fine the Broadhackers. * * *

BAKER, C.J., concurring in part and dissenting in part with separate opinion. [which begins, p. 10] I agree with the majority that whether Reel One is a private club is an issue of fact rendering summary judgment in the City’s favor inappropriate. I respectfully dissent in part, however, from the disposition of the case. * * *

SULLIVAN, J., concurring in part and dissenting in part with separate opinion.[which begins, p. 12] I agree that whether Reel One is a “private club” is a question of fact and that therefore, summary judgment was improperly granted in favor of the City. However, I respectfully disagree with Chief Judge Baker insofar as he construes the ordinance to target “only violent live sex acts or live violent acts that are accompanied by sex.”

Otis M. McElroy v. State of Indiana - "Because principles of double jeopardy do not prohibit the entry of judgments of conviction for both operating a vehicle with a 0.10 BAC causing death and failure to stop after an accident resulting in death, McElroy’s guilty plea counsel was not ineffective for failing to make a double jeopardy argument. We therefore affirm the post-conviction court’s denial of McElroy’s petition for post-conviction relief."

NFP civil opinions today (5):

In the Matter of T.B. v. State of Indiana (NFP)

In the Matter of J.F., M.F., and R.F., April Ferguson v. Lake Co. Dept. of Child Services (NFP)

In the Matter of C.O.M., Tammy Olsen v. Marion Co. Dept. of Child Services (NFP)

David F. Ray v. Angelita (Ray) Ridenour (NFP)

Julia A. Darnell v. John L. Darnell (NFP)

NFP criminal opinions today (6):

Aaron Price v. State of Indiana (NFP)

Mark D. Bontrager v. State of Indiana (NFP)

Christopher Bluhm v. State of Indiana (NFP)

Alva Leslie Funk v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 17, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issued 5 yesterday (and 11 NFP)

This morning the Court of Appeals posted yesterday's opinions, and toda'ys opinions. Here are yesterday's.

For publication opinions (5):

William A. Arnett and Tammy Arnett v. The Cincinnati Insurance Co., and Allied Group Ins. d/b/a AMCO Ins. Co. - "Because of Vern Casteel’s written rejection of excess UM/UIM coverage the DePrizio rule does not apply in this case, and the plain language of Cincinnati’s commercial umbrella policy does not provide for excess UM/UIM coverage. The trial court properly concluded that Cincinnati is not required to provide excess UM/UIM coverage to the Arnetts. We affirm the grant of summary judgment in Cincinnati’s favor."

Aaron P. Wells, Ernest C. Snider, et al v. Auto Owners Ins. Co. - "Panels of this court have held that there is no coverage for negligent supervision, see Illinois Farmers Ins. Co. v. Wiegand, 808 N.E.2d 180, 191 (Ind. Ct. App. 2004), or for negligent hiring, see Wright v. American States Ins. Co., 765 N.E.2d 690, 697 (Ind. Ct. App. 2002), under policies containing motor vehicle use exclusions, where the immediate and efficient cause of the injury is the use of the vehicle. Although the policies in Wright and Wiegand both make specific reference to entrustment in the exclusion section, thus barring coverage, the same result should be reached here. There can be no doubt that but for the negligent use of the pickup truck there would be no lawsuit. The trial court correctly found that the Farm Policy did not provide coverage for the additional claims alleged against Wells and the Sniders."

T.W. v. State of Indiana - "[W]we conclude that the evidence is sufficient to support the trial court’s finding, by a preponderance of the evidence, that T.W. was in need of care, treatment, or rehabilitation."

Michael Wilson v. State of Indiana - "Michael Wilson appeals his conviction and sentence for murder and carrying a handgun without a license. We affirm in part, vacate in part, and remand."

Marie Hlinko v. Yvonne and John Marlow - "We affirm. The sole restated issue is whether the trial court abused its discretion by denying Hlinko’s motion to continue the trial and by denying her motion to correct error."

NFP civil opinions (5):

Mark Weinberger, M.D., Merrillville Center for Advanced Surgery, LLC and Nose and Sinus Center, LLC v. Amy Hellman, n/k/a Amy Verhoeve, Indiana Department of Insurance, et al. (NFP)

Jack Andrew Watterson v. Kevin L. Jemerson and Mamie Darlene Jemerson (NFP)

Robert L. Forste, Jr., M.D. and Southern Indiana Orthopedics, Inc. v. Susan T. Greathouse (NFP)

Kevin Comerford v. Beth Comerford (NFP)

Tamara Sue Tenbarge v. Encore Healthcare Network (NFP)

NFP criminal opinions (6):

Melissa Hamler v. State of Indiana (NFP)

Adam Wood v. State of Indiana (NFP)

Walter Townsend v. State of Indiana (NFP)

Michael Kirk v. State of Indiana (NFP)

Audrey Michael Bryant v. State of Indiana (NFP)

Renee Filkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 17, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - St. Joseph County will receive a $19,000 Family Court grant from the Indiana Supreme Court

The South Bend Tribune reports today:

St. Joseph County will receive a $19,000 Family Court grant from the Indiana Supreme Court.

The funds will assist the county’s Family Court project, which began last year with the aid of a $45,000 grant from the Supreme Court.

This year, St. Joseph County is one of eight counties chosen for a grant. The $19,000 is the largest award.

LaPorte County received $8,000.

Altogether, $74,000 was awarded this year, compared with $125,000 in 2006.

All three of St. Joseph County’s courts are involved in the Family Court.

Family courts, in general, emphasize a coordinated holistic approach to addressing the needs of families with cases in more than one court, such as custody, support or juvenile cases.

Usually, the family courts coordinate cases with a single judge or make provisions for sharing information about a family’s multiple cases. This allows emphasis on common-sense problem solving and keeping the welfare of children in mind.

Indiana’s Family Court Project began in 1999. There are currently 23 Indiana counties with family courts that have received more than $1 million in grants since the program began.

See also this press release from the Indiana Courts, listing the other grantees, and The Family Court Project webpage.

Posted by Marcia Oddi on Tuesday, April 17, 2007
Posted to Indiana Courts

Ind. Courts - More on: Lobbyist linked to Abramoff quits Indianapolis firm

Updating this Jan. 23, 2006 ILB entry concerning an AP storyof that date that began:

The Indianapolis-based law firm of Barnes & Thornburg has accepted the resignation of one of its Washington lobbyists implicated in the bribery and corruption scandal swirling around Jack Abramoff, a report Sunday said.

Neil Volz, one of three Barnes & Thornburg lobbyists with ties Abramoff or his Indian tribe clients, quit his job three days after Abramoff pleaded guilty earlier this month to bribery and tax evasion charges, The Journal Gazette reported Sunday.

The online Indianapolis Star this morning is carrying this AP story that reports:
WASHINGTON — A lobbyist tied to the Jack Abramoff influence-peddling scandal has resigned from the law firm where he worked, company officials said Monday.

Kevin Ring worked with Abramoff until early 2005 and previously was an aide to California GOP Rep. John Doolittle, whose ties to the convicted GOP lobbyist are under investigation in the ongoing corruption probe.

Ring resigned effective last Friday from Barnes & Thornburg LLP, said managing partner Alan A. Levin. Ring joined Barnes & Thornburg after leaving Abramoff’s firm, Greenberg Traurig LLP.

Barnes & Thornburg is based in Indianapolis and has offices throughout the Midwest and in Washington. Ring worked in the Washington office and focused on legislative issues.

Posted by Marcia Oddi on Tuesday, April 17, 2007
Posted to Indiana Courts

Ind. Law - Porter Judge Alexa to hear Soliday residency dispute today

The Gary Post-Tribune reminds us that:

VALPARAISO -- Porter Superior Court Judge William Alexa will hear arguments today regarding whether Rep. Ed Soliday should keep his seat in the Indiana House.

Soliday, a Republican, filed a motion to dismiss a suit brought by some Porter County voters seeking his removal, claiming he lives in House District 10 rather than in House District 4, from which he was elected.

The discrepancy apparently evolved from a 2001 reconfiguration of district lines by the Porter County commissioners.

Soliday requested the dismissal because of the unconstitutionality of bringing a civil suit against a member of the General Assembly while it is in session.

The outcome of the suit would affect not only whether Soliday could keep his seat, but also whether he would be able to seek to replace Sen. Vic Heinold, who is moving out of state.

See a list of earlier ILB entires mentioning "Soliday" here.

Posted by Marcia Oddi on Tuesday, April 17, 2007
Posted to Indiana Law

Ind. Decisions - Evansville-area cardiologists win appeal of non-compete dispute with physicians' group

Ralph D. Millsaps, M.D. & Julio A. Morera, M.D. v. Ohio Valley Heartcare, Inc., a Court of Appeals opinion issued Friday (see ILB entry here), is the subject today of a story by Bryan Corbin of the Evansville Courier & Press. Some quotes:

INDIANAPOLIS Two Evansville-area cardiologists won the first round of an appeal in their lawsuit against a former employer, meaning they are free to continue practicing in the Tri-State, unfettered by noncompete contracts.

The ruling by the Indiana Court of Appeals means patients of Dr. Ralph D. Millsaps and Dr. Julio A. Morera can continue to be seen by those cardiologists without having to travel far outside of Evansville.

For ILB entries on the trial of the case, see this list.

More from today's story:

The three-judge panel ruled Friday against the physicians' group the two cardiologists resigned from, Ohio Valley HeartCare Inc., 1400 Professional Blvd., Evansville. The appeals court found Ohio Valley breached its contracts with the cardiologists by "failing to provide timely and competent billing services" as required in their agreements, wrote Chief Judge John Baker in the 13-page decision.

"The ruling is that if you breach a contract, you can't enforce it against the other side," the cardiologists' attorney, Patrick Shoulders, said. Ohio Valley has 30 days to decide whether to appeal the ruling to the Indiana Supreme Court.

Because of noncompete provisions, the cardiologists were not allowed to practice medicine in the Evansville area for several months after leaving Ohio Valley. They could resume only after posting large appeal bonds: approximately $700,000 for Millsaps and $210,000 for Morera. Shoulders now hopes to get those bonds released.

Had the appeals court ruled against him, Morera said, he likely would have had to relocate to Indianapolis or Louisville, Ky., meaning his patients either would have had to travel long distances to be seen by him or find a new pediatric cardiologist. Instead, he can remain in Evansville and the maintain continuity of his patients' care.

Posted by Marcia Oddi on Tuesday, April 17, 2007
Posted to Ind. App.Ct. Decisions

Monday, April 16, 2007

Law - Fort Wayne's Charlie Savage wins Pulitzer for Boston Globe stories on signing statements

Charlie Savage of the Boston Globe won a Pulitzer today, in the National Reporting category, "For his revelations that President Bush often used 'signing statements' to assert his controversial right to bypass provisions of new laws." See all the 2007 journalism winners here.

The ILB has posted a number of entries on Savage's work on signing statements - see the list here.

Nominees in two other categories the ILB has followed did not win. One was another Boston Globe series -- this one on debt collection, in the Local Reporting category; the other was a Seattle Times series on improperly sealed court records, in the Investigative Reporting category.

Posted by Marcia Oddi on Monday, April 16, 2007
Posted to General Law Related

Ind. Decisions - Yet more on possible appeal of Indiana voter ID case to Supreme Court

Updating this ILB entry from April 11th, Prof. Rick Hasen of Election Law Blog has a roundup today on the subjects of "Voter Fraud/EAC/US Attorneys/Indiana Voter I.D. Case", including this discussion:

Meanwhile, as we await the decision of the plaintiffs in the Indiana voter identification case (Crawford) on whether or not to seek cert. in the Supreme Court, along comes this news story of a tied local election in Indiana.

It is local, not state, but it does undermine Judge Posner's point in his Crawford opinion:

The benefits of voting to the individual voter are elusive (a vote in a political election rarely has any instrumental value, since elections for political office at the state or federal level are never decided by just one vote), and even very slight costs in time or bother or out-of-pocket expense deter many people from voting, or at least from voting in elections they're not much interested in. (Emphasis added)
Incidentally, there have been some very close state and federal races in Indiana as well, including the 1984 McIntyre/McCloskey race.
The news story mentioned was referenced in the ILB here.

Posted by Marcia Oddi on Monday, April 16, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Free speech issues appear in many manifestations

Earlier today the ILB posted another entry on a recent Court of Appeals free speech decision involving MySpace.com postings by students.

Thanks to Howard Bashman's How Appealing, here is a John Kass column from yesterday's Chicago Tribune on free speech issues occasioned by "posting" fake tombstones in one's front yard. Some quotes:

Jeffrey Purtell, a retired firefighter [, was] handcuffed and arrested for failing to remove his sarcastic tombstones from his front yard in Bloomingdale.

The case is now pending before the U.S. Court of Appeals in Chicago and could end up before the U.S. Supreme Court, which may mark the first time that the high court's justices decide what may be printed on fake tombstones in your front yard.

"Can you have signs on your own property protesting what people have done to you in trying to get a law enacted that would adversely impact your economic interest?" Purtell's lawyer, John Wimmer, asked me. "That's political speech by definition. That's what speech is all about. The principal focus of the 1st Amendment wasn't about protecting nude dancing, but to protect speech about laws that the government is trying to enact." * * *

Bruce Mason is the Bloomingdale police officer who arrested Purtell. Mason is the one being sued, under the legal theory that Purtell can't sue the village of Bloomingdale, since the village didn't violate Purtell's constitutional rights.

A federal jury backed Mason in the original lawsuit. Mason's lawyer, James DeAno (whose fees are being paid for by Bloomingdale taxpayers), successfully argued that what was on the tombstones were "fighting words" and that his client needed to act to reduce tensions.

"Actually, the underlying issue is kind of interesting," DeAno said. "The tombstones simply targeted the neighbors who had no choice but to petition the government for the passage of this [anti-RV] ordinance."

The How Appealing entry includes links to the briefs and oral argument.

Posted by Marcia Oddi on Monday, April 16, 2007
Posted to Indiana Law

Ind. Gov't. - Q & A session on government access issues featuring top journalists and a media lawyer

Here is the announcement:

The Indiana Coalition for Open Government (ICOG) will host a question-and-answer session on government access issues featuring top journalists and a media lawyer from the Indianapolis area. This is a candid and intimate conversation about threats, intimidation, legal maneuvering and tactics government officials use to keep information from being leaked, printed, broadcast or otherwise publicized.

The May 1 program is free and open to the public, especially anyone interested in government affairs, from neighborhood concerns to state government issues. Learn what works and what doesn’t, and hear about some of the toughest cases that may not have made headlines.

ICOG’s panel of recognized experts includes Kevin Corcoran, an award-winning and longtime investigative and government reporter for The Indianapolis Star; Mike Wilkins, an attorney with Ice Miller who has successfully argued access issues before the Indiana Court of Appeals; and Gerry Lanosga, an ICOG board member who produced an expose on WTHR-TV (NBC) about failing tornado sirens that is sweeping the nation’s journalism awards.

The program runs from 6:30 p.m. to 7:45 p.m. on Tuesday, May 1, at the Eugene S. Pulliam National Journalism Center (national headquarters of the Society of Professional Journalists), 3909 N. Meridian St. in Indianapolis. Parking and entrance are at the rear of the building.

Visit the ICOG website here.

Posted by Marcia Oddi on Monday, April 16, 2007
Posted to Indiana Government

Courts - "The politics of life and death" in the 6th Circuit

The Cincinnati Enquirer began a two-part investigative series yesterday on "The politics of life and death."

Sunday's story's complete headline is "The politics of life and death: An inmate's fate often hinges on luck of the draw." The premise of the story is that:

[A] federal death-penalty appeal can be a game of chance.

If the judges assigned to a case were appointed by Democratic presidents, odds are good they will overturn a death sentence because of new evidence or mistakes made during the trial. If the judges were appointed by Republicans, the chances are slim.

That's especially true at the 6th Circuit, the powerful and deeply divided court that decides death penalty appeals from Ohio, Kentucky and Tennessee.

An Enquirer analysis of the court's death-penalty decisions since 2000 shows that 6th Circuit judges consistently voted along partisan lines * * *

Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time.

Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time.

Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.

"That is very stark," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., a nonprofit group that has been critical of capital punishment. "It makes blind justice look like part of the political system."

The voting records are significant because 6th Circuit judges do most of their work as members of randomly selected three-judge panels. Sixteen judges are eligible today to sit on those panels - 14 active judges and two semi-retired senior judges.

Nine of those judges are Republican appointees; seven are Democratic appointees.

That means life-and-death decisions often hinge on the luck of the draw: A panel with a liberal majority gives the inmate a far greater chance of avoiding execution than one with a conservative majority.

"It's a roll of the dice," said Nathaniel Jones, a retired 6th Circuit judge appointed by President Carter. "When I look at a lineup of a panel in this kind of case, you can almost go to the bank on what the result is going to be."

While it's a given that liberal and conservative judges often view the death penalty differently, some lawyers say the split exposed by House's case is now so dramatic it raises fundamental questions about the fairness of the system.

Today's story is headlined "Fatal mistakes: When death sentences are overturned, it's usually because the accused killer's lawyer made them." It begins:
More death sentences are overturned in Ohio because of mistakes by defense lawyers than for any other reason.

An Enquirer analysis found that 15 death row inmates, including five from Hamilton County, won federal appeals during the past seven years based entirely or in part on the poor performance of their lawyers.

Some lawyers never spoke to their clients. Some hired unqualified experts or none at all. Others neglected to read key documents, do basic investigations or interview their own witnesses.

One attorney failed to notice when prosecutors admitted they couldn't prove who shot the victim. Two others broke out in laughter during arguments before the Ohio Supreme Court.

The problems so frustrated one federal judge last year he suggested the best way to avoid execution was to hire an incompetent lawyer.

"If counsel provides ineffective assistance," wrote Judge Danny Boggs, "then the prisoner is likely to be spared, certainly for many years, and frequently forever."

Boggs is chief judge of the U.S. 6th Circuit Court of Appeals in Cincinnati, the powerful court that decides every federal death penalty appeal from Ohio, Kentucky and Tennessee.

Posted by Marcia Oddi on Monday, April 16, 2007
Posted to Courts in general

Ind. Decisions - Still more on "MySpace Postings Are Free Speech"

The April 9th Court of Appeals opinion in A.B. v. State of Indiana (ILB entry here), is the subject of an article today by Julie Hildren, in Findlaw's legal news and commentary section. Here are some quotes:

In this column, I'll discuss the ruling and consider a question the Indiana court expressly did not reach: whether the student's speech would be protected under an analysis based not on the Indiana constitutional provision, but on the First Amendment itself. * * *

One final reason the Indiana appellate court may have punted on the First Amendment issue here is that the U.S. Supreme Court is right now deciding a case that may affect that issue: the "Bong Hits 4 Jesus" case. * * *

The Indiana court did the right thing in the A.B. case -- refusing to deem a middle-school student a juvenile delinquent for speaking out on MySpace. Let's hope the Supreme Court, in the "Bong Hits" case, does the right thing too.

Earlier ILB entries on the decision are here and here.

Posted by Marcia Oddi on Monday, April 16, 2007
Posted to Ind. App.Ct. Decisions

Law - "Where Does All That Associate Money Go?"

Here is the most recent Table of 2007 New York City Elite Law Firm Salaries. Accompany your review with this story at Law.com by Petra Pasternak, headlined "Where Does All That Associate Money Go?"

Posted by Marcia Oddi on Monday, April 16, 2007
Posted to General Law Related

Sunday, April 15, 2007

Ind. Courts - Taxpayers irate at costs of Greene County Courthouse upgrade

Here is a long list of earlier ILB entries on the costs of renovation of the Greene County Courthouse.

Today Laura Lane of the Bloomington HeraldTimes reports, in a lengthy story (not available online):

BLOOMFIELD — Greene County taxpayers already have paid $2.5 million more than planned to renovate and expand their 120-year-old brick courthouse in Bloomfield.

More than four years into a project that was supposed to take just two, it’s still not finished.

And residents aren’t finished paying.

Two additional loans — one for $2.5 million and a new one for $4 million — have upped the project’s initial $10.5 million projected cost to $17 million.

Incredulous taxpayers are furious.

“It is a comedy of errors, and it’s costing me a heck of a lot of money,” longtime Greene County farmer Bill White said. * * *

“We could have built a new one for half what they are spending now,” White said. “There comes a time in a building’s life when it has to be replaced. And in this case, financially, that would have been a good move.”

He may well be right.

Last December, the commissioners sought another $4 million in bond anticipation notes — a line of credit — to cover bills that keep coming in. About $800,000 of the amount is for the county’s litigation attorneys, who have been paid nearly $700,000 so far.

According to this ILB entry from Dec. 7, 2006, "Greene County is represented in the case by Indianapolis law firm of Drewry Simmons and Vornehm LLP." This entry from Dec. 18 notes that Barnes and Thornberg "is charged with the bond sale on the construction project."

Posted by Marcia Oddi on Sunday, April 15, 2007
Posted to Indiana Courts

Ind. Law - "Indiana Week in Review" and the legislative pay raise bill

This week the pundits of Indiana Week in Review opined on the legislative pay raise bill, SB 401.

The ILB has labeled this effort as a "non-transparent and convoluted pay raise bill ." Here is a list of some earlier ILB entries on this subject. I tried to tie things together in this entry from April 10th.

Friday Indiana Week and Review's first topic was the legislative pay raise. You can access it for yourself here, starting tomorrow, or still watch it today on some stations.

In the lead-in and early comments the point is made by several commentors that the legislators hadn't received a raise for 25 years. About 8 minutes in, the mike got around to John Ketzenberger, business columnist for the Indianapolis Star. He pointed out :

It's not like they haven't had increases since 1985. In fact they've had plenty of increaes. The thing I hope will come from this is they will stop those silly games where they backdoor those increases and everything [will be] on the up and up so people will know exactly what is being paid and so that everybody will be able to understand instead of having the games that have gone on to this point.
Moderator Jim Shella asks:
[You mean] by increasing per diem and things like health care and retirement?
Ann DeLaney chimes in:
And do away with some of the discrepancies in salary -- I mean when you are doing the per diem increases and all and you live in Marion County and you don't have a second residence it makes for an impact that is more beneficial for some than for others. This is more transparent and that's better.
Apparently not transparent enough. SB 401 does nothing to change the per diem allowance Delaney criticizes. As the ILB wrote (again) on April 10th:
In this entry from April 3rd, the ILB attempted to make clear that line items in the biennial budget bill providing for a daily per diem during the session, and another for during the interium: (1) are tied to the federal cost of living, (2) currently provide about a $30,000 annual "floor" for legislators in addition to their "salary" amount, and (3) will not be affected by SB 401. Further, as pointed out in this entry, (4) the per diem allowance and leadership allowances are to be considered "salary" in computing legislative PERF benefits.
SB 401, a convoluted and non-transparent effort, does not meet John Ketzenberger's hope for a bill where "they will stop those silly games where they backdoor those increases and everything [will be] on the up and up so people will know exactly what is being paid."

Posted by Marcia Oddi on Sunday, April 15, 2007
Posted to Indiana Law

Ind. Law - Where does the Indiana Constitution say that?

On Feb. 23rd, 2005, the ILB posted an entry that quoted from several newspaper stories that made statements such as:

The state budget is the most important of all the matters we consider. According to the Indiana Constitution, it is the one duty we must perform as legislators.
and asked the question -- Where does the Indiana Constitution say that?

That was far from the last time this "constitutional requirement" has been invoked by the press. Here is a far from inclusive list of some other occasions. The list includes this Jan. 7th, 2007 quote from the Indianapolis Star's Mary Beth Schneider:

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.

Today Theodore Kim of the same Star has a story that a headline writer captioned "Lawmakers' primary duty of passing budget is tangled up with slots and property taxes." I thought, good, at least they've stopped saying it is mandated by the constitituon. But shortly into the story, there it is again:
Failing to pass a budget, which the state constitution requires, is the only issue that would oblige the legislature to meet beyond April.
[More] I've just received a note from Doug Masson of Masson's Blog, who also read today's Star:
You've made it less pleasant for me to read news coverage of the legislature. Once you debunked the myth of the Constitutional duty to pass a budget, every time I read someone making that assertion, it's like nails on a blackboard.

Posted by Marcia Oddi on Sunday, April 15, 2007
Posted to Indiana Law

Saturday, April 14, 2007

Ind. Law - Election outcome in Grant County Council race turns on a provisional ballot

A provisional ballot, cast by an indigent voter who did not have the requisite voter ID, turned out to be the deciding vote for the District 2 spot on the Grant County Council, in the election held Nov. 7, 2006. The disqualified ballot was reinstated by a judge yesterday. Barry Williams Wall of the Marion Chronicle-Tribune reports today:

More than five months after the Nov. 7 general election, a seat on the Grant County Council is changing hands following a prolonged legal battle.

Friday, Dan Brock won an appeal of his recount in the race and was sworn into office. Grant Superior Court 3 Judge Natalie Conn allowed one extra vote to be counted, breaking a deadlock and putting the Democratic challenger ahead of the Republican incumbent, Myron Brankle. * * *

In November, Brock was one vote behind Brankle. After a recount requested by Brock was completed in December, the voted ended up tied. The Grant County Council, made up of all Republicans, then voted 5-0 in favor of Brankle to break the tie.

Brock appealed the recount, arguing the recount commission should have accepted two ballots it did not.

One of the ballots was an absentee vote, and the other was a provisional vote. According to court records, Conn ruled against the absentee ballot, which had a discrepancy with the signatures on it, and in favor of the provisional ballot, which ended up being cast for Brock.

That brought the final vote tally to 2,155 for Brock and 2,154 for Brankle. * * *

During the hearing, Brankle's attorney, James Beaman, argued that neither of the ballots should be counted. Along with arguing about the signatures on the absentee ballot, he argued that the provisional ballot should not be counted because proper provisional ballot protocol was not followed. That law requires the person casting the ballot to follow up with the clerk's office within 10 days.

"In essence, we feel this case boils down to a question of fact to be determined by a fact-finder, not questions of law to be determined by a court," Beaman said.

However, William Groth, Brock's attorney, contended that the procedural error was no fault of the voter.

The voter, he said, was indigent and did not have the required identification. The voter law allows an exception for the poor but requires the voter come to the clerk's office to sign an affidavit before the vote can be counted.

Those affidavits were accidentally sent to the polls on Election Day with poll workers, and the voter signed it on the spot, Groth said.

"Essentially the court agreed with our argument that any mistake involved here was made by the clerk's office rather than by the voter and that the voter should not be penalized by not having his vote counted because of a mistake made by the clerk's office," Groth said. "The voter here had done everything that could have been expected of him."

Despite the mistake made by the clerk's office, Brankle said he would not be appealing Conn's ruling.

Posted by Marcia Oddi on Saturday, April 14, 2007
Posted to Indiana Law

Ind. Courts - "Small claims court a big deal to Kouts High students"

Diane Krieger Spivak of the Gary Post-Tribune reports today:

KOUTS -- It was better than reality TV.

Students at Kouts High School got to see real-life court drama unfold on the stage in the school's auditorium Friday when Porter Superior Court Judge David Chidester brought small claims court to the school.

Four cases were heard by Chidester, who sat in the middle of the stage, plaintiffs to his left, defendants to his right, as they took turns presenting their cases.

The cases, and the people, were the real deal. Like Kathleen and Michael Haakon, who sued Rossi Construction for $1,590, claiming the company failed to fix a leaking wall.

Chidester forewarned students that each side's arguments can seem compelling. That became clear, when in all but one of the cases, the student vote of hand on whom they thought would prevail was evenly divided.

Students were allowed to asked questions about each case, and the people involved were more than happy to oblige.

Their most urgent question, to Chidester, however, was whether they would find out how he rules in the cases.

Chidester promised they would next week.

Posted by Marcia Oddi on Saturday, April 14, 2007
Posted to Indiana Courts

Ind. Courts - NW Indiana Judge Villalpando holds mock trial in his courtroom for Griffith Middle School students

Michelle L. Quinn reports today in the Gary Post-Tribune:

HAMMOND -- Friday morning's trial wasn't real, but Maggie Butkus' reaction to the outcome could've come out of any courtroom.

"I didn't drive the car!" the Griffith Middle School eighth-grader shouted triumphantly moments after a jury of her peers declared that another eighth-grader, Jillian Dixon, was "guilty" of DUI and leaving the scene of an accident. While no one questioned that Maggie was with Jillian the night of the accident, Jillian's defense team was unable to prove Maggie drove the vehicle like it had wanted.

The verdict evened out Griffith Middle School's mock trial score. Last year when teacher Mike Cornwell brought the school's Student Council to Judge Jesse Villalpando's Lake Superior Court, the jury found in favor of the defendant, he said. This year, it was the prosecution's time to shine.

Of course, they couldn't do it without the help of Villalpando, and Mike Chary and Garry Weiss, the Lake Superior Court deputy prosecutor and defense attorney, respectively. Chary and Weiss huddled among the opposing council teams while Villalpando jumped in whenever a side needed to object to a motion.

Posted by Marcia Oddi on Saturday, April 14, 2007
Posted to Indiana Courts

Ind. Courts - "Speedway High School Becomes Indiana Court of Appeals"

So reports David Barras of WISHTV 8:

SPEEDWAY, Ind. - Speedway High School students got a different kind of gift Friday. It was the gift of seeing a real life drama unfold right in front of them. A drama that will impact the future of a man who was sentenced to 28 years in prison, when he was a teenager.

Walking into the auditorium at Speedway High School Friday meant walking into the Indiana Court of Appeals. Appeals Court judges, Margret Robb, James Kirsch and Patrick Sullivan will decide whether or not to shorten the sentence of a man who pleaded guilty to several felony burglaries when he was a teenager.

"When Justin James was 16-years-old, probably younger than most of the children here in the audience today, he was sentenced to maximum consecutive sentences of 28 years," said defense counsel Stacy Uliana.

The defense and the prosecution each get 20 minutes to convince the judges.

"His story is a sad one, a frustrating one, but it is not one who deserves maximum consecutive sentences," Uliana said.

"Whose fault is his addiction?" a judge asked.

But the judges, interrupt often.

"The system has not failed Justin James. The failures that occur in this case were all on the part of James himself," said Deputy Attorney General Matt Fisher.

"But Mr. Fisher, in the 14 years that I've served on the court this is the first case I can remember, in which a non-violent juvenile defendant has been waived at 16 to adult court," said Judge James S. Kirsch.

And it is watching that kind of exchange that teacher Andre Young says is real learning.

"It's one thing to read about something in a book, but it's a much richer experience for young people especially, to see and actually feel a judicial proceeding," Young said.

Here is the Court's announcement of the oral argument.

Posted by Marcia Oddi on Saturday, April 14, 2007
Posted to Indiana Courts

Environment - Still more on: Two CAFO stories today

Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

A Huntington County dairy suspected of leaking manure into an area waterway was no longer operating under the terms of a 2004 settlement with the Indiana Department of Environmental Management.

The DeGroot Dairy, 8378 W. County Road 200 S., is currently the subject of an IDEM investigation after a report that manure had fouled about a half-mile of a creek that flows into the Salamonie Reservoir this week. Attorneys for the dairy say that neither their nor IDEM’s investigations have linked the manure found in the George W. Young drain to DeGroot’s cows.

After two manure spills in 11 days at the 1,400-cow farm, dairy operator Johannes DeGroot entered into an agreement with IDEM in 2004 that resulted in a $45,000 payment that was split between IDEM and the state attorney general’s office.

As part of the agreement, DeGroot was to hire an independent contractor to apply manure on nearby fields and handle pumping manure from storage structures, emptying sand pits, keeping records and monitoring drainage ditches in the area. That part of the agreement expired March 1, 2006, IDEM spokeswoman Amy Hartsock said.

The investigation into this week’s spill continues, she said.

To clean up Tuesday’s spill, workers dammed the creek before the waste flowed into the reservoir and then pumped out the contaminated water. The agency also announced its intention to do a full compliance inspection of the dairy and would review the spill internally. Any action taken by IDEM could yet involve the dairy’s permit.

DeGroot’s attorney, Peter Racher of Indianapolis, said DeGroot has cooperated fully with IDEM, and IDEM and DeGroot are working to determine where the manure originated. While DeGroot workers applied manure to farm fields in the area last weekend, Racher said, weather and ground conditions were appropriate for the application and manure was applied correctly.

But, Racher said, rain or other weather-related events can cause a runoff and such events can’t be prevented with 100 percent certainty. Tests of the manure found in the creek have not linked it to DeGroot’s cows, Racher said.

The Journal Gazette also has an editorial today titled "Dairy spill pollution." It concludes:
State legislators are just beginning to address the need for better regulation of large livestock operations. In the meantime, environmental management officials need to more stringently monitor offending livestock farms and enforce water pollution regulation.

IDEM Commissioner Thomas Easterly said state regulations require farm owners to prevent animal waste from harming water quality. And he said his staff would “act swiftly to address the serious non-compliance issues at the livestock operations responsible for these emergency spills.”

A strong response is definitely warranted. Better monitoring and prevention of the spills in the first place is also needed.

Earlier ILB entries about the recent spill are here.

See also this March 23rd ILB entry on CAFO legislation then-pending in the General Assembly. It looks like, of the three bills mentioned, only SB 431 is still alive - as of this writing, it has returned from the House with amendments and is awaiting further Senate action.

Posted by Marcia Oddi on Saturday, April 14, 2007
Posted to Environment

Courts - "Kentucky will retain all court records forever"

Updating this ILB entry from Feb. 28th and this one from March 7th, Andrew Wolfson and Jason Riley of the Louisville Courier Journal report today:

Kentucky will retain all court records forever, the state's top court administrator said, addressing criticism after tens of thousands of old Jefferson County files were destroyed.

Records from across the state will be stored in a Frankfort warehouse that the Administrative Office of the Courts has budgeted $100,000 to rent, said Jason Nemes, who was named the agency's director Thursday after serving on an interim basis.

But the AOC has yet to respond to another criticism -- that the agency bars police from statewide access to its online court records system. * * *

AOC's handling of court records emerged as a hot topic last fall after the disclosure that it had destroyed misdemeanor records at least five years old in Jefferson County. Prosecutors and probation officers complained the purge made it more difficult to prove an offender's past misconduct.

A report in February blasted the AOC for "indifference, inexperience, intransigence and ineptness."

The report -- from a panel appointed by Chief Justice Joseph Lambert -- also recommended that the AOC re-examine its policy on police access to records.

Posted by Marcia Oddi on Saturday, April 14, 2007
Posted to Courts in general

Friday, April 13, 2007

Ind. Decisions - Transfer list for week ending April 13, 2007

Here is the Indiana Supreme Court's transfer list for the week ending April 13, 2007.

Five cases were granted transfer this week. See this entry from earlier today for more details.

(Always be sure to go through all the pages, as the "list" is really two combined lists.)

Over 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, April 13, 2007
Posted to Indiana Transfer Lists

Law - Angry Harvard Students Stage Bluebook Burning [Updated]

No, I'm not making this up. The Record, "the indiependent newspaper at Harvard Law School," has this story, dated April 5, 2007:

A group of eight Harvard Law School 1Ls were arrested outside Gannett House this morning after staging a mass Bluebook burning. The eight remain in jail tonight, and there is no word yet on when they might be released.

Sources close to the students say the impromptu protest began the night before 1L Ames briefs were due. 1L Jim Johnson was attempting to figure out the proper citation in Massachusetts state court for a government report co-authored by three different agencies and posted on the Internet as an MS Word document.

When not a single one of his Hastings floor mates proved able to assist him, Johnson walked the short distance to Gannett House where he began throwing stones at the windows and shouting "Come out, you [expletive], and Bluebook this [expletive] [expletive]."

Being only 3:30am, Gannett House was, of course, fully staffed, and members of the Harvard Law Review were forced to take shelter under desks as one window after another was shattered by the rocks.

From later in the story:
"I don't regret any of it," Simpson said today from the county jail, "but as a Harvard law student what are my options? Can't I call Alan Dershowitz or something?"

Many HLS student leaders loudly denounced the Bluebook burning. "There is no evil contained within these pages that is greater than the evil contained in their destruction," said the president of the Federalist Society. "Although, the new rule on international working group papers is pretty evil. I guess we might support a 'selective page burning.' We'll have to get back to you on that."

[Updated at 4:30 pm] Darn! I did check to make sure it was not dated April 1 before I posted the story. But Rick Hasen of Election Law Blog writes to point to some of the other articles in the April 5th issue. Here is how another one starts:
On Friday, March 30, associates at the top 20 law firms rebelled and left work at exactly 5:00 pm in their respective time zones, a whole five hours before their regular time. Angry letters addressed to management indicated that the recent salary increases to $160,000 per annum for first year associates and even more for veteran lawyers were simply not enough. The movement started in New York where the warm weather was just too much for associates cooped up in their offices. The legal world ground to a halt for the entire weekend.
Seems pretty believable to me, especially after this quote from State (see March 11, 2007 ILB entry): "Later this spring, elite law firms will again be offering Supreme Court law clerks signing bonuses of $200,000 (last year's rate) or even more for their first jobs as practicing lawyers."

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to General Law Related

Ind. Law - "Attorney general OK's Brizzi's restaurant deal"

Jon Murray reports this afternoon:

A legal opinion released today by the Indiana attorney general says the Marion County prosecutor's investment in a new restaurant and bar would not violate the state's liquor laws.

But Attorney General Steve Carter also wrote that the law doesn't address fellow Republican Prosecutor Carl Brizzi's specific arrangement, leaving it to the Indiana Alcohol and Tobacco Commission to decide the issue.

ATC Chairman Dave Heath, who had sought the legal opinion, said the commission now has the legal cover to allow Brizzi's investment in Harry & Izzy's. The spin-off of the St. Elmo Steak House is scheduled to open Monday in Downtown Indianapolis.

Brizzi said he planned to buy back a nearly 10 percent share worth $80,000 later today. * * *

"It is our opinion that the ATC is statutorily prohibited from issuing a retail alcohol beverage permit to an Indiana Limited Liability Company (LLC) restaurant owner, one of whose members is a law enforcement officer," Carter's opinion says. "The statute does not address more remote ownership."

The commission does have the authority to set more stringent rules, Carter wrote.

When the commission meets on Tuesday, Heath said, it will review the restaurant's notice of a change in ownership. "It appears there is nothing that prohibits" Brizzi from taking part, Heath said.

The Star has also made available a copy of the Attorney General's opinion.

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In Ralph D. Millsaps, M.D. & Julio A. Morera, M.D. v. Ohio Valley Heartcare, Inc., a 13-page opinion, Chief Judge Baker writes:

Appellants-plaintiffs/cross-appellees Ralph D. Millsaps, M.D., and Julio A. Morera, M.D. (collectively, appellants), appeal from the trial court’s order enforcing the employment agreement (Agreement) in place between the appellants and appellee-defendant/cross-appellant Ohio Valley Heartcare, Inc. (OVHC), including the non-compete provision. In particular, the appellants raise a number of arguments, one of which we find dispositive, namely, that the trial court erred in finding that OVHC did not breach the Agreement by failing to provide timely and competent billing and collection services. OVHC cross-appeals, arguing that the trial court erred in finding that the appellants did not breach or threaten to breach the Agreement and, consequently, that OVHC is not entitled to attorney fees and costs. Finding that OVHC breached the Agreement and, consequently, is not entitled to enforce it against the appellants, we reverse the judgment of the trial court and remand with instructions to enter judgment in the appellants’ favor on their declaratory action and for further proceedings consistent with this opinion.
In First National Bank & Trust v. Indianapolis Public Housing Agency , a 19-page opinion, Judge Riley concludes:
In conclusion, we caution that it is undeniable that, in this case, both First National and IHA took risks. By not requesting a stay pending appeal in the Aegean Litigation, IHA risked having the funds distributed and not being able to recover them even if they prevailed on appeal. By executing on the trial court’s Order and releasing the retained funds during the pendency of the appeal, First National assumed the risk that they might have to repay the monies if Aegean would be unable to in the event IHA prevailed on appeal. Here, we conclude that the risk lies squarely with First National. * * *

We agree with the trial court that the language of the indemnification clause is clear and unambiguous. It is apparent from the clause’s last three lines, whereby the parties agreed that “[First National] shall not undertake any costs or expenses relating to claims until it shall have first offered to permit the indemnifying parties to undertake its defense with respect to such claims,” that the indemnification language only applies to third-party claims against First National, and not to claims of IHA against First National under the retainage agreement. (Appellant’s App. p. 80). Accepting First National’s interpretation would lead to the absurd result that IHA would have the contractual right to undertake the defense of its own claims against First National. Accordingly, we conclude that the trial court did not err in its application of the law. City of South Bend, 821 N.E.2d at 9. Therefore, we affirm the trial court’s grant of IHA’s motion to dismiss.

CONCLUSION. Based on the foregoing, we hold that the trial court properly granted IHA’s partial summary judgment, and properly dismissed First National’s counterclaim. Affirmed.

Homeq Servicing Corporation v. Bradley J. Baker & Constance D. Baker - Pro se appellees lose in mortgage servicing company appeal - pro se's lack of knowlege of procedure at the trial and appeals level played a significant role in this case.

NFP civil opinions today (2):

Walton Investment Group and Deborah Walton v. James Toliver (NFP) - "Appellants-defendants Walton Investment Group (WIG) and Deborah Walton (collectively, appellants) appeal from the trial court’s judgment in favor of appellee-plaintiff James Toliver. Specifically, appellants argue that (1) the trial court erred by entering judgment against appellants because Toliver did not give them notice of the property’s defective sewer system, and (2) the evidence was insufficient to support the trial court’s $3200 damages award. Finding that appellants had notice of the sewer problem and that the trial court’s award for damages was proper, we affirm the judgment of the trial court. * * *

Turning to the $900 security deposit * * * Indiana Code section 32-31-8-6 authorizes a trial court to award a tenant an appropriate remedy, and we cannot conclude that the trial court erred by including Toliver’s $900 security deposit in its award for damages. Therefore, we find that the trial court’s $3200 award for damages was proper."

Tonda Beth Nichols v. Rex David Minnick, et al (NFP) - "The sole issue for our review is whether the trial court erred in entering judgment in favor of Minnick in Nichols’ action seeking the return of Minnick’s commission. * * * Affirmed."

NFP criminal opinions today (11):

Jabari K. White v. State of Indiana (NFP)

Jason Paddock v. State of Indiana (NFP)

Lester Jones v. State of Indiana (NFP)

Nevada Benedict v. State of Indiana (NFP)

Stacy Mitchell v. State of Indiana (NFP)

Kindra Pullins v. State of Indiana (NFP)

Nathan Daquan Jenkins v. State of Indiana (NFP) - From the 4/21/07 Anderson Herald-Bulletin:

In his appeal, Jenkins claims that a videotaped interview with Anderson police detectives shortly after he was arrested shouldn’t have been allowed into evidence at his trial.

Jenkins also claims that Carroll shouldn’t have used his juvenile criminal history as an aggravator when deciding his sentence. As a juvenile, Jenkins had been arrested for battery, theft and carrying a handgun without a license. Generally, murder carries a 45- to 65-year prison sentence.

However, in the appeals court decision, Judge Michael P. Barnes says that the videotaped interview was admissible, and Carroll was legally allowed to use Jenkins’ juvenile criminal history to increase Jenkins’ murder sentence.

“The trial court did not err in admitting evidence or in sentencing Jenkins,” Barnes writes in the April 13 decision.

Carolyn Waltz v. State of Indiana (NFP)

David A. Jones v. State of Indiana (NFP)

Thomas Rogers v. State of Indiana (NFP)

Raymond Stewart v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court grants a number of transfers this week

The transfer list will follow later today, but here is an advance list of the cases granted transfer yesterday by the Supreme Court. Of particular interest will be the first two cases on the list:

Austin Elliott v. Allstate Ins. Co. - 49A02-0604-CV-363 - 4/12/07 (see ILB entry here, the case is also referenced in State Farm Mutual Auto Insurance Co. v. D.L.B., and Deana H. Brake, here)

State Farm Mut. Auto. Ins. Co. v. Patricia Jakupko - 29A02-0603-CV-207 - 4/12/07 (here is a list of ILB entries referencing this case)

Sandra Brinkman v. Anne Bueter - 29A02-0510-CV-980 - 4/12/07 (see CA decision here)

City of East Chicago v. Lake County Transfer, Inc. - 45A03-0506-CV-290 - 4/12/07 (see ILB entry here)

Jesus Arrieta v. State - 10A05-0602-CR-92 - 4/12/07 (see today's ILB entry)

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - More on "U.S. District Judge Allen Sharp ordered that Joseph Corcoran be resentenced but that he should not receive the death penalty"

Updating this ILB entry from Thursday, the Fort Wayne Journal Gazette today has posted excerpts from U.S. District Court Judge Allen Sharp's ruling this week that Joseph Corcoran was improperly given the death penalty and ordering him resentenced.

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to Indiana Decisions

Ind. Decisions - Reports on two Supreme Court oral arguments yesterday

Yesterday the Supreme Court heard oral arguments in two cases, Jesus Arrieta v. State ,and State v. Paul McManus, and there are stories in today's papers about both of them.

The Arrieta case is about court interpretors - see earlier ILB entries here. Lesley Stedman Weidenbener reports:

The Indiana Supreme Court yesterday explored not just whether the U.S. Constitution requires courts to provide translators for all defendants who don't speak English, but also whether such a system is practical statewide.

During oral arguments in a case out of Clark Superior Court, the justices questioned a defense attorney and a deputy state attorney general about who should pay for translators and then whom they should serve.

Indiana courts now must pay for translators only when a defendant is indigent under criteria similar to that used to determine whether the defendant gets a public defender.

Attorney Stephen Beardsley of New Albany argued yesterday that the court should pay for translators to help all non-English-speaking defendants, regardless of their income.

"An interpreter -- so key to fundamental due process -- is part of the basic apparatus of the courtroom in the same way that a court stenographer, as a bailiff, indeed as a judge is," he said. * * *

Deputy Attorney General Ellen Meilaender told the justices that an interpreter is no more key to protecting a defendant's rights than an attorney, which the court provides only when the defendant is too poor to hire one.

"It's hard to see why if counsel is only appointed to the indigent, why we would treat the interpreter any differently."

But the justices had a number of questions.

"What about the point that the interpreter is more like the courtroom itself and the recorder, that the duties of the interpreter are to the court and to the integrity of the translation -- not to really serve the defendant at all but to serve the justice system?" asked Justice Ted Boehm.

Bryan Corbin of the Evansville Courier & Press writes today on the McManus appeal in a story headlined "Justices will rule if killer retarded." Some quotes:
Was Paul Michael McManus mentally retarded when he shot and killed his wife and two children and then jumped off an Ohio River bridge?

A Vanderburgh County judge last year ruled McManus was retarded, and therefore could not be executed for his crimes. But the prosecution appealed that ruling, and now the Indiana Supreme Court must decide if McManus is legally ineligible for the death penalty.

If it rules in the prosecution's favor, then the lower court's ruling would be overturned and McManus' death sentence could be reinstated, meaning he could be executed. * * *

Rejecting his insanity defense, a jury in 2002 convicted McManus of three counts of murder; and McManus was sentenced to death.

Among other things, McManus' IQ tested in the 70s, he was in special-education classes throughout school, could read only three-letter words and couldn't complete simple tasks such as using a tape measure.

The prosecution, through the state attorney general's office, appealed, and the state Supreme Court heard arguments Thursday.

The justices had pointed questions for McManus' attorney, Joanna Green, about whether McManus could raise the mental-retardation defense after he was convicted, among other things. "Sorry, I don't buy it," Chief Justice Randall Shepard said in response to one of Green's technical points. "You're going to have to do better."

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Airport mowing bid questioned"

Ben Zion Hershberg writes today for the Louisville Courier Journal about a very interesting public bidding situation in Clark County. Some quotes:

The board that oversees the Clark County Airport put off a decision yesterday on bids for one of its major expenses -- mowing 365 acres -- so its lawyer could determine if the lowest bid was legal.

The board received 10 bids. The highest was $197,314 from Frank Otte Nursery. The lowest that specified an amount was George Lynch's $31,552.

But Hap's Aerial Enterprises, which is owned by airport manager Hap Happel, submitted a bid of "$1 lower than the lowest bid," said consulting engineer John Toombs. * * *

The airport board must determine if the form of Happel's bid is legal. "If not," Toombs said, "put it to the next lowest bid." That would mean giving Lynch the contract.

"I want our attorney to research it," board Chairman Bill Halter said of Happel's bid.

This story may have added interest because of the Court of Appeals decision last fall in City of Fort Wayne v. Pierce Manufacturing, Inc. (see list of ILB entries here), where, to quote a 9/6/06 story in the Fort Wayne Journal Gazette: "The city of Fort Wayne won a legal victory Tuesday when the Indiana Court of Appeals ruled a company that lost a bid for $4.8 million worth of fire trucks had no legal standing to sue." The case was later denied transfer by the Supreme Court.

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to Indiana Government

Ind. Courts - "Gary attorney could get sentence next month"

Joe Carlson of the NWI Times reports today in a story that begins:

Disgraced Gary attorney Jerry Jarrett has a May court date in Fort Wayne to receive a prison sentence for a 2004 money laundering conviction.

But he is hoping to defer that date even longer through post-trial motions that he claims could invalidate the conviction against him. Jarrett faces a maximum penalty of more than five years in prison and $92,000 in fines.

Jarrett appealed his conviction all the way to the U.S. Supreme Court, claiming he was the victim of vindictive prosecution. The high court declined in November to hear his case.

In December 2004, Jarrett was convicted of accepting $20,000 in 1999 in exchange for laundering $92,000 in profits from two drug dealers, Carlos Ripoll and Gregory Goode.

The dealers said Jarrett disguised the payments as investments in a novelty business Jarrett created that purportedly sold products to left-handed people.

See earlier ILB entries here and here.

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to Indiana Courts

Ind. Law - Porter Judge Alexa to hear Soliday residency dispute

From an AP story in the Chesterton Tribune:

VALPARAISO, Ind. (AP) — A judge must determine whether a lawmaker lives in his northern Indiana legislative district as required by law and whether he is eligible to replace outgoing state Sen. Vic Heinold.

Porter County Superior Judge Bill Alexa was scheduled to hear the legal dispute involving Republican state Rep. Ed Soliday on Tuesday.

The Republican has said it is too early to say whether he would seek to replace Heinold, who is resigning to take a new job in Louisiana. Porter County Republican Party Chairman Chuck Williams said Soliday would make an excellent candidate if he opts to run.

A group of five local voters filed a lawsuit Feb. 21 claiming the Porter County commissioners exceeded their authority in October 2001 by reconfiguring House district lines while revamping a few local precincts. The change inappropriately moved Soliday’s property from the 10th District to the 4th District, the lawsuit contends.

The suit asks the court to replace Soliday with Democratic challenger Sylvia Graham, whom Soliday defeated last fall for the two-year term. If that is found to be improper, the group of voters asks that a special election be ordered.

For background, start with this ILB entry from March 28th.

Posted by Marcia Oddi on Friday, April 13, 2007
Posted to Indiana Law

Thursday, April 12, 2007

Law - More on voter fraud and voter identification

In this ILB entry yesterday I quoted from a NY Times story reporting that "A federal panel responsible for conducting election research played down the findings of experts who concluded last year that there was little voter fraud around the nation."

Today the Times has another front-page story on voter fraud, this one by Eric Lipton and Ian Urbina. Some quotes:

WASHINGTON, April 11 — Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.

Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.

Most of those charged have been Democrats, voting records show. Many of those charged by the Justice Department appear to have mistakenly filled out registration forms or misunderstood eligibility rules, a review of court records and interviews with prosecutors and defense lawyers show.

In Miami, an assistant United States attorney said many cases there involved what were apparently mistakes by immigrants, not fraud.

This graphic gives an overview of the 70 convictions. The story itself goes through the details:
Many of those charged by the Justice Department appear to have mistakenly filled out registration forms or misunderstood eligibility rules, a review of court records and interviews with prosecutors and defense lawyers show.

In Miami, an assistant United States attorney said many cases there involved what were apparently mistakes by immigrants, not fraud.

In Wisconsin, where prosecutors have lost almost twice as many cases as they won, charges were brought against voters who filled out more than one registration form and felons seemingly unaware that they were barred from voting.

One ex-convict was so unfamiliar with the rules that he provided his prison-issued identification card, stamped “Offender,” when he registered just before voting.

A handful of convictions involved people who voted twice. More than 30 were linked to small vote-buying schemes in which candidates generally in sheriff’s or judge’s races paid voters for their support.

“There was nothing that we uncovered that suggested some sort of concerted effort to tilt the election,” Richard G. Frohling, an assistant United States attorney in Milwaukee, said.

Richard L. Hasen, an expert in election law at the Loyola Law School, agreed, saying: “If they found a single case of a conspiracy to affect the outcome of a Congressional election or a statewide election, that would be significant. But what we see is isolated, small-scale activities that often have not shown any kind of criminal intent.”

For some convicted people, the consequences have been significant. Kimberly Prude, 43, has been jailed in Milwaukee for more than a year after being convicted of voting while on probation, an offense that she attributes to confusion over eligibility.

In Pakistan, Usman Ali is trying to rebuild his life after being deported from Florida, his legal home of more than a decade, for improperly filling out a voter-registration card while renewing his driver’s license.

In Alaska, Rogelio Mejorada-Lopez, a Mexican who legally lives in the United States, may soon face a similar fate, because he voted even though he was not eligible. * * *

Voter fraud is a highly polarized issue, with Republicans asserting frequent abuses and Democrats contending that the problem has been greatly exaggerated to promote voter identification laws that could inhibit the turnout by poor voters. * * *

Previous guidelines had barred federal prosecutions of “isolated acts of individual wrongdoing” that were not part of schemes to corrupt elections. In most cases, prosecutors also had to prove an intent to commit fraud, not just an improper action.

Rick Hasen of Election Law Blog writes today:
Together, these two reports show that despite tremendous efforts by the DOJ and others to ferret out instances of voter fraud taking place at polling places (as opposed to, for example, vote buying occurring with absentee ballots), there is very little evidence at this point. It is now incumbent upon those who still believe a great deal of voter fraud is taking place at the polls to come forward with a plan with sound methodology to show that such fraud is occurring on any kind of scale that would justify efforts such as the new recent onerous voter identification laws that have been put in place by some legislatures.
This very aggressive seeking out and federal prosecution of unintentional voting violations, such as the NY Times has documented, can provide numbers used to justify voter ID laws. But moreover, this aggressive prosecution can, of itself, have a chilling effect on voters. Tales of people being deported for improperly filling out a voter-registration card, or being prosecuted for misunderstanding eligibility rules, can turn others away from the "risks" of registration and voting.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to General Law Related

Ind. Courts - Indiana Judicial Center's second half review of the status of bills of interest to the Judiciary

This week's Indiana Judicial Center legislative update begins:

We are nearing the end of this session. This installment is a series of topical charts detailing the status of bills of interest to the Judiciary that were heard on third reading in the second chamber. If a bill was amended at any stage in this second chamber process, it is designated with an “-A” at the relevant stage. The next communication on legislation will be the Final Legislative Update summarizing bills that have been signed into law.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Indiana Courts

Ind. Law - "100 years later, Indiana expresses regret for sterilizations"

I attended the presentation yesterday in the Supreme Court Courtroom - "'Three Generations of Imbeciles are Enough': Reflections on 100 Years of Eugenics in Indiana." The entire room was packed, I got one of the last seats, and am very glad I went.

Today was the all-day Symposium titled "Indiana Eugenics: History and Legacy, 1907-2007" at the State Library. Ken Kusmer of the AP attended and writes about it here that begins:

Indiana atoned Thursday for its role in pioneering the state-authorized sterilization of "imbeciles," paupers, criminals and others it deemed undesirable, expressing regret for passing the first such law 100 years ago.

Then-Gov. J. Frank Hanly in 1907 signed the state law widely regarded as the first in the world to permit sterilization in a misguided effort to improve the quality of the human race. Before ending the practice in 1974, Indiana sterilized about 2,500 people; nationally, 65,000 people in 30 states were given vasectomies, tubal ligations and other operations in a eugenics movement that eventually reached horrific proportions in Nazi Germany.

"Indiana's role in the history of eugenics is one that we do need to acknowledge, we do need to learn from. It is one that we do regret but we should not forget," Health Commissioner Dr. Judith Monroe said during a symposium at the Indiana State Library.

For more, start with this ILB entry from Tuesday and its links. See also this site on Indiana Eugenics.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Indiana Law

Ind. Courts - Columbus lawyer faces charges of dealing drugs

From the Columbus Republic, a report by Chris Schilling

Columbus attorney James Michael Kummerer was arrested Wednesday on three preliminary felony charges, including dealing cocaine.

He also is accused of conspiracy to deal cocaine and possession of cocaine greater than 3 grams.

The charges were enhanced to Class A felonies, because Kummerer is accused of having the drugs within 1,000 feet of Northside Middle School.

He was being held Wednesday night on $1.5 million bond at Bartholomew County Jail.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Indiana Courts

Ind. Courts - "The wife of a former Elkhart County judge is in serious trouble with the law"

From WFRN.com, Elkhart:

The wife of a former Elkhart County judge is in serious trouble with the law. County Prosecutor Curtis Hill says 42-year-old Jeannette Pfaff faces 29 criminal charges for allegedly stealing at least tens of thousands of dollars from the Christiana Creek Country Club in Elkhart. Hill says a police investigation found the country club lost nearly 200-thousand dollars while Pfaff was the Office Manager of the club between June 2005 and October 2006. Jeannette Pfaff is the wife of former Elkhart Superior Court Judge Ben Pfaff. A warrant has been issued for Mrs. Pfaff's arrest.
Here is a list of earlier ILB entries on the Pfaffs.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (1):

City of Muncie v. Eddie Watson (NFP) - "The City of Muncie (“Muncie”) appeals the decision of the Indiana Worker’s Compensation Board (“the Board”) awarding Eddie Watson medical expenses and temporary total disability benefits for injuries that resulted from pushing his hand through a plate glass window. Watson requests that we order a ten-percent increase in his award pursuant to Indiana Code Section 22-3-4-8(f). We affirm the Board’s decision and order that Watson’s award be increased by ten percent. * * * In view of the aforementioned misstatements of the record, as well as Muncie’s heavy reliance on evidence unfavorable to the Board’s decision and its spurious arguments, we hereby order Watson’s award increased by ten percent."

NFP criminal opinions today (3):

George Joseph Jonaitis, III v. State of Indiana (NFP)

James Ingersoll, Sr. v. State of Indiana (NFP)

Bryan K. Catlett v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "They deserve a raise, even if it's not perfect"

An editorial in the Indianapolis Star today is headlined "They deserve a raise, even if it's not perfect" The article begins by stating the General Assembly deserves a raise, and concludes:

Lawmakers' base pay would increase in 2009 to $20,700 a year. That's not an unreasonable sum by any standard, especially in light of the cutback in benefits.

The biggest downside of the legislation is that it would tie lawmakers' salaries to judges' compensation. Legislators would make 18 percent of what the state's judges earn and would be guaranteed a pay raise every time the judiciary's salaries increased. That provision should be enough to give the governor pause about whether to veto the bill. [ILB - Recall that 2 members of the Supreme Court has "blessed" the pay raise bill.]

Ultimately, however, the advantages of the bill -- bringing legislative salaries into the current century, scaling back perks -- outweigh the negative.

Sure, the General Assembly can be and often is a frustrating lot. The position of state legislators, however, merits reasonable compensation. SB 401 accomplishes that while erasing a couple of over-the-top benefits. It's a solid deal for taxpayers.

The ILB hasn't seen other local editorials either endorsing or condeming the legislative pay raise, and was disappointed that there were no stories in the press that looked at the pay bill, and the policy issues it raises, in detail.

The ILB did run across this story in a Michigan paper last month. Recall that Michigan legislative salaries were held up in Indiana as examples of what our sister states were paying legislators -- see "Could this be a coincidence?" from Nov. 26, 2006 and Nov. 28, 2006. Titled "Legislature can begin cutting close to home," the piece in the Port Huron Times Herald from March 18, 2007 opines:

Legislative leaders are looking for places to cut spending. They could do worse than to start with themselves.

The base pay for Michigan's 148 legislators is $79,650 a year. California is the only state that pays more. Indeed, 40 states pay their lawmakers less than half as much.

Shortly before term limits took effect in 2002, Michigan lawmakers voted themselves pay raises of nearly 40%. This added about $15,000 a year to the pensions of all those legislators who were being swept from office. Since their pension plan also includes automatic increases of 4% per year, this was quite a sweetener.

Lawmakers who serve six years in Lansing get another sweet deal - lifetime health benefits.

One is left with the impression that the legislative branch has taken care of nothing as well as it has taken care of itself.

Whether Michigan needs a full-time Legislature is a legitimate question. Believe it or not, 41 other states manage to make due with part-time legislatures.

Nebraska, as one example, functions well with a nonpartisan, unicameral legislature - meaning it has only one chamber. Kentucky's General Assembly, by law, can meet only 90 days every two years. Lawmakers in Indiana are paid $11,600 a year - and they haven't had a raise since 1985.

Michigan could save millions by returning to a part-time, modestly paid Legislature with 60-day sessions. This would require amending the constitution, but the mere act of putting the question on the ballot would give people a sense the Legislature is serious about righting the ship.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Indiana Government

Ind. Decisions - Still more on: Appeals decision too little too late for Crown Point developer

Updating this ILB entry from Jan 4, 2007, Joe Carlson of the NWI Times reports today:

Crown Point developer Tim Heidbreder filed a lawsuit against Mayor Dan Klein in federal court Wednesday to recoup the money Heidbreder claims he lost when the city illegally denied him permission to build a concrete plant.

The federal case is separate from the ongoing legal battle regarding the concrete plant that has gone all the way to the Indiana Supreme Court, where the two sides are arguing over whether the mayor had the legal power to veto a City Council permit to build the plant.

In the state court case, the city is challenging an Indiana Court of Appeals decision that Klein did not have the power to veto the permit for the Redi-Mix plant at 1010 Millennium Drive. Nearby residents strongly opposed the plant.

Bruce Lambka, attorney for Heidbreder, said the federal civil lawsuit filed Wednesday is seeking "unspecified damages" from Klein and the city because of the mayor's illegal actions, which caused Heidbreder to lose the profits from building the plant or selling the land to a company that would. * * *

Lambka said he would have preferred to wait to file the federal lawsuit until after the state Supreme Court issued the final word on whether Klein had the power to veto the ordinance. As it stands, the lawsuit is based on the appeals court ruling.

But the two-year statute of limitations to file the federal case was set to expire today because Klein vetoed the original permit on April 12, 2005, Lambka said.

See a list of related ILB entries here.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Ind Fed D.Ct. Decisions | Ind. App.Ct. Decisions | Indiana Courts

Ind. Courts - Daviess County Council seeks to remedy overcrowded courthouse

Sally Petty of the Washington Times-Herald writes today:

The Daviess County courthouse is packed to overflowing, and the county council is looking to do something about it.

The council toured the courthouse with guidance from Auditor Gail Doades following their meeting Wednesday morning. The tour, lasting about a half hour, revealed numerous small closets packed with supplies and records which must be kept for certain periods of time — or permanently — and a maze of offices lined with filing cabinets.

While courthouse employees try to microfilm records as quickly as possibly, some records must be held as long as 55 years before they can be microfilmed. Besides, to get and keep all the records microfilmed would be a full-time job in itself, said Doades.

Meanwhile, the need for more personnel in certain departments such as probation is pushing the limits of how much the courthouse can hold.

The office of the newest county department, information technology, is a former breakroom and bathroom which now contains numerous computer parts and files stacked around the desk of department head Adam Watkins.

Clerk Rosemary Abel and Prosecutor Byron Overton probably have the worst storage problems.

Abel has to store records and voting equipment throughout the building, including in the jury room, which is not accessible during trials, and in the former highway garage, where most other offices in the courthouse have also sent items they no longer have room for.

She showed the council charts her office has made to keep track of where they have stored records. She tallied five rooms in the courthouse plus the former highway garage contain 111 file cabinets, 1,172 books, 107 banker boxes, four large storage cabinets and 1,098 vertical file drawers — and that’s just for the clerk’s office.

The prosecutor’s office has purchased taller filing cabinets for more space and has boxes of files stored on top of filing cabinets and under tables for lack of other space, pointed out Overton.

The council has asked commissioners to delay selling the portion of the former highway department property the county still owns to help with the storage problem as officials consider building a courthouse annex.

Doades said the ideal solution would be for the offices on the main floor of the courthouse — including the auditor, treasurer, recorder and veteran’s services — to be moved to their own location. These offices need to stay together because they are interconnected.

Then, the mostly judicial offices in the top floor and basement would have more room to spread out. These offices are also so interconnected it would be better if they could stay together, too, she said.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Indiana Courts

Environment - More on: Environment - Two CAFO stories today

Updating yesterday's ILB entry on Huntington County manure spills, Seth Slabaugh of the Muncie StarPress reports today:

MUNCIE -- An attorney representing DeGroot Dairy in Huntington County says it is premature to blame the dairy for a manure discharge this week into a creek emptying into Salamonie Reservoir.

Thomas Easterly, commissioner of the Indiana Department of Environmental Management, issued a statement Tuesday saying his agency had responded recently to manure spills at two large dairy operations -- DeGroot and Union-Go Dairy in Randolph County.

"We have no basis to believe that," said Peter Facher [ILB - sic.], an Indianapolis attorney who represents DeGroot. "IDEM has not determined the source. We don't see DeGroot being the source." * * *

Facher called the Johannes DeGroot family, immigrants from The Netherlands, "honorable people" who are "eager to have the most environmentally compliant dairy in the state." The dairy is a family farm, he added. The attorney said his clients "care so much about obeying the law."

Last year, IDEM issued a notice of violation accusing DeGroot of adding a barn and silage storage pad without the agency's approval. In addition, the county prosecutor filed criminal charges, but Facher noted those charges were dropped.

In 2004, DeGroot paid the state $45,000 to settle a lawsuit alleging that the dairy had contaminated a waterway twice within 11 days. However, it was never proven that DeGroot polluted the waterway, Facher said. The case was settled with no admission of liability by DeGroot.

"We had an excellent defense," Facher said. The defendant settled because he couldn't justify the expense of continuing the litigation, Facher said. One of DeGroot's defenses was that sampling by IDEM showed that E. coli bacteria found in the waterway were from deer, not cattle, Facher said.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Environment

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

Updating this ILB entry from Jan. 29, 2007, where the Princeton Daily Clarion reported:

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.
Today, in this story in the Evansville Courier & Press, Kate Braser reports:
The trial of a woman accused of helping her boyfriend run from the law after he allegedly killed three young adults and wounded a fourth last summer will proceed as planned.

The Indiana Court of Appeals recently denied an appeal from Misty Davis. * * *

Davis' attorney, Steve Whitehead, has argued Davis and Harbison are legally married, so Davis, as a spouse, is immune under Indiana law from a felony charge of assisting a criminal.

Pike County Circuit Court Judge Jeffrey Biesterveld previously ruled the marriage invalid, so Whitehead's appeal asked the state court to reconsider the validity of Davis' marriage and his request for a change of venue.

Whitehead said this week he was surprised the state court chose not to hear the appeal.

"We thought the Court of Appeals would hear the case on an interlocutory basis, but they decided not to and that is their prerogative," he said.

Whitehead said he will proceed to trial. If convicted, Davis could be sentenced to a maximum of eight years in prison.

Her trial is set for August.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Charges against CASA theft case defendant dismissed because of speedy trial denial

Kara Lopp reports today in the Fort Wayne Journal Gazette, in a story that begins:

Criminal charges against the former director of an Albion-based children’s court advocacy group have been dismissed because she did not go on trial fast enough.

Special Judge Joe Sutton, of Kosciusko County, decided Wednesday afternoon that Robinn G. Mitchell, 35, was denied the speedy trial Indiana law promises, dropping the two felony charges against her.

Mitchell’s defense attorney Kurt Grimm of Auburn filed a motion last month in Noble Superior Court I asking the charges be dismissed because it’s taken too long to put her on trial since the felony charges of theft and official misconduct were filed in February 2006.

Under Indiana law, defendants must be tried within six months of being charged or prosecutors must dismiss the charges against them if they are in custody. The time frame is extended to a year if a defendant is out on bond.

Posted by Marcia Oddi on Thursday, April 12, 2007
Posted to Ind. Trial Ct. Decisions

Wednesday, April 11, 2007

Ind. Decisions - Judge Young allows 2 to join federal lawsuit challenging Indiana's lethal-injection procedures

Updating this ILB entry from March 31st, Jon Murray of the Indianapolis Star writes this afternoon that federal Judge Richard L. Young:

this week granted requests by two Death Row inmates to join a lawsuit challenging Indiana's lethal-injection procedures.

A third inmate, Norman Timberlake, filed the suit in December in U.S. District Court in Indianapolis on the grounds that Indiana's method constitutes cruel and unusual punishment. It suggests previous executed inmates have not received adequate anesthesia.

Last month, David Leon Woods and Michael Lambert asked Judge Richard L. Young to allow them to join the case as plaintiffs. Young granted their request Monday and also denied Timberlake's earlier motion for a preliminary injunction as well the attorney general's request for a judgment based on written pleadings in the case.

Timberlake had been scheduled to be put to death in January, but the Indiana Supreme Court stayed his execution until the U.S. Supreme Court decides a pending case involving the execution of the mentally ill. That makes immediate rulings unnecessary, Young wrote.

Woods is facing execution May 4 at Indiana State Prison and will have clemency hearings later this month at the prison in Michigan City and in Indianapolis. His clemency petition asks Gov. Mitch Daniels to commute his sentence because he was poorly represented by lawyers and was abused as a child.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

Cincinnati Insurance Company v. Second Injury Fund - "Cincinnati Insurance Company (“Cincinnati Insurance”), on behalf of Jeffrey Struyf (“Struyf”), appeals the Worker’s Compensation Board of Indiana’s denial of Struyf’s application for payment of medical expenses from Indiana’s Second Injury Fund. Cincinnati Insurance contends that its liability for Struyf’s medical expenses ended after 500 weeks and that the obligation shifted to the Second Injury Fund at that point. While the legislature has never intended for the Second Injury Fund to be liable for all of an injured worker’s medical expenses, it also has not limited an employer’s liability for such expenses to 500 weeks. Therefore, Cincinnati Insurance remains liable for Struyf’s medical expenses, and we affirm the Board’s denial of Struyf’s application for the payment of his medical expenses from the Second Injury Fund."

In Cooper Industries, et al. v. The City of South Bend, et al. , a 15-page opinion, Judge Robb writes:

Cooper Industries, LLC, (“Cooper”)1 appeals from the trial court’s order partially granting a motion by the City of South Bend, Indiana and the South Bend Redevelopment Commission (collectively, “the City”) for partial summary judgment. The trial court found that, as a matter of law, Cooper was the corporate successor to the liabilities of Studebaker Corporation (“Studebaker”) and entered summary judgment in favor of the City on that issue. The trial court also found that the City could maintain its claims against Cooper under the Environmental Legal Action Statute (“ELA”)2 and under Indiana tort law. The trial court further determined the City’s claims were timely as to parcels of property purchased within six years of its filing the suit. On appeal, Cooper raises several issues, but we find the statute of limitations issue dispositive. Concluding that the applicable six-year statute of limitations bars the City’s claims, we reverse. * * *

In light of the evidence presented, summary judgment is appropriate as to the City’s claim under ELA statute. Pursuant to the general purpose of a statute of limitations, we hold that the discovery of an injury, not the development of a new statute, commences the running of the statute of limitations. Here, the City began to acquire portions of the property and to assess the environmental condition of the site as early as 1986. This is not disputed by the City. Applying the six-year statute of limitations found in Indiana Code section 34-11-2-7 bars the City’s March 19, 2003 ELA claim.

Conclusion Concluding that the City’s claims under the common law tort theories of negligence, trespass, public and private nuisance, as well as its statutory claim under the ELA are all barred by the six-year statute of limitations, we reverse the order of the trial court, and remand for proceedings consistent with this opinion.

See also this ILB entry from Jan. 20, 2005.

In Timothy Ramsey v. Brenda Ramsey and Karl and Cheryl Sodders , an 18-page opinion, Judge Robb writes:

Case Summary and Issues. Timothy Ramsey appeals the trial court’s grant of Cheryl and Karl Sodders’s petition for grandparent visitation. On appeal, Ramsey raises several issues, but we find one dispositive: whether the trial court issued sufficient findings and conclusions along with its Order. Concluding that the trial court did not issue sufficient findings and conclusions to support an award of grandparent visitation, we reverse and remand. Because the remaining issues are likely to recur on remand, we also address Timothy’s arguments of whether the trial court abused its discretion in awarding unsupervised visitation, and whether the trial court improperly failed to specify who would bear the cost of court-ordered counseling. We conclude that insufficient evidence exists to support an award of unsupervised visitation, and that the trial court’s order indicates that the Sodderses are required to pay for the counseling and therapeutic visitation.

[Pages 8-9 of the opinion contain "I. General Principles of Grandparent Visitation."]

Conclusion. We conclude that the trial court’s Order did not contain the requisite findings indicating that it applied the presumption that Timothy’s decision to deny grandparent visitation was in L.R.’s best interest. We also conclude that the trial court abused its discretion in awarding unsupervised visitation. Finally, we conclude that the trial court’s Order indicates that the Sodderses are required to pay for the counseling and therapeutic visits. Reversed, and remanded.

NFP civil opinions today (3):

Barry Geyer v. Terry S. (Geyer) Serie (NFP) - "Appellant Barry Geyer (“Father”) appeals an order for child support and college expenses for Daric Geyer (“Daric”), the youngest child of his marriage with Appellee Terry Geyer Serie (“Mother”). We reverse."

Paternity of L.L.R., b/n/f Brittany (Renner) Verville v. Brian A. Siebers (NFP) - "Brittany Verville (“Mother”) appeals the trial court’s custody order, granting Brian Siebers (“Father”) joint custody of their daughter, L.S., and ordering that Father shall receive primary custody in the event of Mother’s relocation. We affirm in part and reverse in part."

Term. of Parent-Child Rel. of L.B. and K.B., Barry Bogart v. Henry Co. Dept. of Child Services (NFP) - "Father has not shown good cause for granting his motion for continuance, and the trial court did not abuse its discretion in denying his motion."

NFP criminal opinions today (8):

Norman J. Milton v. State of Indiana (NFP)

James Everidge v. State of Indiana (NFP)

Wenbo Ha v. State of Indiana (NFP)

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

Contrel D. Phoenix v. State of Indiana (NFP)

William Tobar, II v. State of Indiana (NFP)

Antoin L. Johnson v. State of Indiana (NFP)

Joshua Clowson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Costs of justice in Indiana

An AP story from March 7th reported:

CORYDON-- John Michael Naylor, convicted of one of two murders in the tiny Ohio River town of Mauckport, has been sentenced to 120 years in prison.

Naylor, 23, of Frankton was convicted of killing 80-year-old Myrtle Satterfield, and of attempted murder for wounding her daughter, Linda Pittman, 58.

He was acquitted in the killing of Pittman's husband, Hobert Pittman, 59.

Today the Corydon Democrat includes this item at the end of a story about a meeting of the Harrison County Council:
In other matters Monday night, the council:

— Heard a request from Harrison Superier Court Judge Roger Davis for $80,000 to help cover costs relating to the John Michael Naylor trial. Davis told the council that amount probably still would not be enough to cover all of the trial costs.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Indiana Courts

Law - More on: Injustice in Wisconsin, bad enough to shock 7th Circuit panel

Updating this ILB entry from Monday, the Milwaukee Journal Sentinel reports today in a story that begins:

Madison - Former state purchasing supervisor Georgia Thompson - freed from prison last week after being acquitted by a federal appeals court - will likely return to a government job by the end of the month.

Pat Henderson, the executive assistant for the state Department of Administration, said Thompson told officials through her attorney, Stephen Hurley, that she wanted to take a job in the same division by the end of April.

"She said she would like to come back," Henderson said. "She wants to get her life back to normal as quickly as possible."

She would receive about $68,000 in back wages with her first paycheck, Henderson said. The administration is also exploring ways to pay her for her six-figure legal defense bill, but paying that would likely require her to go through the state Claims Board and the Legislature, he said.

Veteran defense lawyers have estimated her legal bill at $250,000 to $400,000. Hurley could not be reached Monday.

A jury convicted Thompson in June of two felonies that accused her of defrauding the state by steering a contract to Adelman Travel Group. Around the time of the deal, two Adelman officials gave Democratic Gov. Jim Doyle's re-election campaign $10,000 each, the most allowed under the law.

The 7th Circuit Court of Appeals in Chicago ordered her freed Thursday, just hours after the three-judge panel heard oral arguments in her case. One appeals judge called the evidence against Thompson "beyond thin."

Thompson, 57, spent about four months in a federal prison in Pekin, Ill.

She retired from her $77,300-a-year job days after she was convicted. Henderson said there were three or four jobs at the same level within the Division of Enterprise Operations that she could take.

Thompson will be allowed to return to the state retirement system without a penalty, Henderson said.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Is this an unconstitutional delegation of Indiana legislative authority?

I've always understood that the General Assembly cannot delegate its lawmaking authority to the federal government. For instance, look at IC 6-3-1-11. This section defines what the Indiana Code means when it references the federal "Internal Revenue Code." The federal law changes nearly every year.

Does a reference in Indiana law to the "Internal Revenue Code" incorporate all the latest changes made by Congress? Yes, but only because the Indiana law is changed each year to reflect the most recent version of the IRS.

For instance, IC 6-3-1-11 currently begins: "(a) The term "Internal Revenue Code" means the Internal Revenue Code of 1986 of the United States as amended and in effect on January 1, 2006." The language in bold is the result of a change made last year. Looking at the history of the section, you will see that it has been amended nearly every year to keep it in sync with the federal version.

What is that? Because the General Assembly cannot delegate its lawmaking authority to the federal government.

So it was with surprise that I read this AP story today in the Indianapolis Star, headed "Bill would link state, federal minimum wage." Some quotes:

INDIANAPOLIS -- Indiana's minimum wage would be tied to the federal rate under legislation that cleared the Senate on a 45-3 vote Tuesday.

A House version of that bill would have raised Indiana's current minimum wage of $5.15 per hour -- which is the same as the current federal rate -- to $7.50 per hour by 2008. But the Senate changed the bill to link Indiana's minimum wage to the federal level.

A bill pending before the U.S. Congress would raise the federal minimum wage to $7.25 an hour in increments over the next two years. If that occurs and the Indiana bill passes in its amended form, Indiana's rate would increase to the same level and match any future federal increases.

Sen. Tim Lanane, D-Anderson, said if Congress does not pass a minimum wage increase, the Indiana General Assembly could revisit the issue next year. But he said it made sense to tie Indiana's rate to the federal level. "I think it's a good compromise," he said.

Here is the bill, HB 1027.

This same rule would apply, I believe, to the General Assembly tieing its legislative per diem to the subsistence allowance set by the federal government for employees of the executive branch of government, and stating in the law that "The legislative business per diem changes each time there is a change in that maximum daily amount," as I pointed out in this April 3rd entry (in about the middle of the page).

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Indiana Law

Law - "Does the First Amendment Protect Political Speech?"

Both FEC v. Wisconsin Right to Life, and McCain v. Wisconsin Right to Life will be argued before the US Supreme Court on the morning of April 25th. Shortly thereafter, you can watch or listen online to the lawyers who argued the cases. Here is the announcement [which includes the links to use on the 25th to access the event]:

Does the First Amendment Protect Political Speech?

CENTER FOR CONSTITUTIONAL STUDIES ORAL ARGUMENT DEBRIEFING
Wednesday, April 25, 2007, 12:15 PM

Featuring James Bopp Jr., James Madison Center for Free Speech [Terre Haute, Indiana]; Kathleen M. Sullivan, Stanford University Law School; Richard L. Hasen, Loyola Law School, Los Angeles; and Martin S. Lederman, Georgetown University Law Center.

On the morning of April 25 the Supreme Court will hear consolidated oral argument in two of the most important campaign finance cases in years. Pitting the Federal Election Commission, plus Sen. John McCain and other members of Congress, against numerous grassroots organizations, the question presented is whether those members, through the McCain-Feingold campaign finance act the Supreme Court upheld three years ago, can prevent such groups from running ads close to an election that take “a critical stance regarding a candidate’s position on an issue.” (Quoted from Senator McCain’s brief.) James Bopp will be arguing the case for the grassroots organizations, joined at the Court by Kathleen Sullivan. Professors Hasen and Lederman, who will also be at oral argument, have filed an amicus brief supporting the FEC and Senator McCain. Please join us for their assessments of the oral argument before the Roberts Court.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to General Law Related

Environment - Two CAFO stories today

"Manure pollutes Salamonie waterway" is the headline to a story by Rebecca S. Green in the Fort Wayne Journal Gazette. Some quotes:

State environmental officials were on the scene Tuesday of a manure spill at a rural Huntington County commercial dairy farm that has been in trouble in the past.

A member of the public notified the Indiana Department of Environmental Management on Monday that waste from the DeGroot Dairy, 8378 W. County Road 200 South, Andrews, had contaminated a tributary of the Salamonie Reservoir, according to IDEM spokeswoman Amy Hartsock.

IDEM officials were still on the scene Tuesday, overseeing the cleanup of about one-half mile of the creek, she said. They were still uncertain how the manure ended up in the creek, she said.

In 2004, the DeGroot Dairy, a 1,400-cow operation, reached a $45,000 settlement with state environmental officials after contamination was found to have entered the George W. Young drain twice in 11 days. * * *

Johannes DeGroot, who owns the dairy, referred all questions Tuesday to his Indianapolis-based attorney, Todd Janzen.

Janzen said DeGroot had done everything IDEM officials asked him to do but declined to comment further.

A story today by Seth Slabaugh of the Muncie StarPress reports:
MUNCIE -- The Indiana Department of Environmental Management says it will consider revoking the permits of two Dutch dairy CAFOs (concentrated animal feeding operations).

IDEM Commissioner Thomas Easterly issued a statement Tuesday saying he intended to "act swiftly to address the serious non-compliance issues at the livestock operations responsible for these emergency spills."

He warned, "IDEM will work to the fullest extent of its authority to pursue administrative action and penalties in these cases, and determine whether permit revocations are appropriate."

Last week, Union-Go Dairy in Randolph County discharged manure into about two miles of Sparrow Creek. Union-Go also was accused of failing to maintain at least two feet of freeboard in its 20-million-gallon manure lagoon.

This week in Huntington County, De Groot Dairy, which has a history of environmental violations, discharged manure into a tributary of Salamonie Reservoir.

Last year, criminal charges were filed against Johannes De Groot, who allegedly added a cow barn and a silage pad to his controversial, 1,400-cow dairy farm without first seeking a permit to do so from IDEM. In 2004, DeGroot pleaded guilty to intimidating an IDEM inspector. Also that year, he paid the state $45,000 to settle a complaint that he had contaminated a waterway.

Vreba-Hoff Dairy Development, Wauseon, Ohio, has helped several dozen European, Canadian and other dairy producers establish new dairy operations in Indiana, Michigan and Ohio. In East Central Indiana, Vreba-Hoff has sited dairy CAFOs in Randolph, Henry and Madison counties, each of which has been cited by IDEM for violations. They include discharging manure into waterways and allegedly building manure facilities that did not comply with permit conditions.

Vreba-Hoff also has moved into Grant County. Citizens in Blackford County have been fighting Vreba-Hoff's efforts to locate there.

"Indiana has stringent performance standards for the livestock industry that require operators and owners to prevent manure from impacting water quality," Easterly said. "The majority of livestock operations in Indiana work hard to meets these ... standards for storing and land-applying manure."

Union-Go, owned by Tony and Ivonne Goltstein, recently filed a permit application with IDEM to expand from 1,650 cows to 2,804 cows.

Here is a list of ILB entries referencing "De Groot"; here is a list of ILB entries referencing "Vreba-Hoff."

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Environment

Ind. Decisions - "U.S. District Judge Allen Sharp ordered that Joseph Corcoran be resentenced but that he should not receive the death penalty" [Updated]

Dionne Waugh of the Fort Wayne Journal Gazette reports today:

A federal judge has overturned the death sentence of a Fort Wayne man who killed four people, ruling that the prosecutor unconstitutionally penalized the man.

U.S. District Judge Allen Sharp ordered that Joseph Corcoran be resentenced but that he should not receive the death penalty.

In May 1999, a jury imported to Allen County convicted Corcoran of four counts of murder and recommend he be put to death. * * *

Sharp issued a 34-page opinion and order Monday, stating that former Allen County Prosecutor Robert Gevers inappropriately punished Corcoran when Corcoran refused to waive his right to a jury trial and agree to allow a judge to decide his guilt.

According to the opinion, Gevers first offered to not to seek the death penalty if Corcoran pleaded guilty. Corcoran refused. Gevers then offered not to seek the death penalty if Corcoran chose a bench trial, allowing a judge to rule on his case rather than a jury. Corcoran again refused.

Gevers then filed for the death penalty in the case, according to the opinion.

Sharp’s opinion stated that Gevers unfairly punished Corcoran and violated his rights when Corcoran refused to be tried by a judge – rather than a jury – in exchange for Gevers’ not filing for the death penalty.

Corcoran’s mental competency has been brought up and questioned several times during his appeals. Though this appeal stated that Corcoran was incompetent to be executed by lethal injection, Sharp’s decision did not deal directly with that, ruling instead that this determination makes that point moot.

“Therefore, it is the holding of this court that the prosecution unconstitutionally penalized (Corcoran) by seeking the death penalty when (Corcoran) refused to consent to the prosecution’s offer to forgo the death penalty in exchange for (Corcoran’s) consent to waive a jury trial and proceed with a determination of guilty by the judge,” Sharp wrote.

“This offer by the prosecution was a violation of (Corcoran’s) Sixth Amendment right to a jury trial.” * * *

As a remedy for the violation, Sharp wrote, Corcoran should be resentenced within four months to a term other than death. A new trial would not be appropriate because neither Gevers’ offer nor seeking the death penalty denied Corcoran a fair trial, Sharp wrote.

The story today concludes with a lengthy "Joseph Corcoran timeline ."

[Updated 4/12/07] The Journal Gazette has an editorial today - a quote: "No defendant should be punished for exercising the constitutional right to a trial by jury, U.S. District Judge Allen Sharp properly ruled this week in throwing out the death penalty conviction. Now, Indiana Attorney General Steve Carter would best serve justice and his Hoosier constituents by declining to appeal Sharp’s ruling."

[Updated 4/23/07] According to this Star story from April 20th:

Convicted killer David Leon Woods will be given twice as much anesthetic as other inmates Indiana has put to death when he is executed by injection next month. * * *

tate attorney Thomas Quigley disclosed the recent change to execution protocol April 13 during a telephone conference with Wagoner and the judge.

According to a court document summarizing the discussion, the Indiana State Prison in Michigan City has increased the amount of sodium pentothal -- the first chemical injected -- to 5 grams from 2.5 grams. The barbiturate serves as a sedative.

Two substances are then injected, to paralyze the muscles, then to stop the heart.

Woods' attorneys have asked the state to explain in writing why the dose was changed and whether evidence backs up its effectiveness.

Java Ahmed, a spokeswoman for the Indiana Department of Correction, attributed the change to a recent review of the protocol. Officials regularly look at staffing, procedures and equipment "to ensure that the department is implementing the best available practices," she said in an e-mail.

Many states already use Indiana's new dose of the drug, though others have given inmates a smaller amount than Indiana's old dose.

Little input on the drugs, their use or dosages has come from medical doctors. They often refuse to take part in executions out of ethical concerns in a profession that aims to protect the health of patients. Critics of lethal-injection procedures nationally point out that the same sequence of drugs has been used for decades, simply passing from state to state without a complete medical review.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Still more on possible appeal of Indiana voter ID case to Supreme Court [Updated]

Updating this ILB entry from last Friday, Rick Hasen of Election Law Blog had another post Monday on the 7th Circuit's failure to grant a petition for rehearing. He remarks further on his question: "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?"

Also relevant may be a story I first saw this morning on the front-page of the NY Times, written by Ian Urbina, that begins:

WASHINGTON, April 10 — A federal panel responsible for conducting election research played down the findings of experts who concluded last year that there was little voter fraud around the nation, according to a review of the original report obtained by The New York Times.

Instead, the panel, the Election Assistance Commission, issued a report that said the pervasiveness of fraud was open to debate.

The revised version echoes complaints made by Republican politicians, who have long suggested that voter fraud is widespread and justifies the voter identification laws that have been passed in at least two dozen states.

Democrats say the threat is overstated and have opposed voter identification laws, which they say disenfranchise the poor, members of minority groups and the elderly, who are less likely to have photo IDs and are more likely to be Democrats.

Though the original report said that among experts “there is widespread but not unanimous agreement that there is little polling place fraud,” the final version of the report released to the public concluded in its executive summary that “there is a great deal of debate on the pervasiveness of fraud.” * * *

And two weeks ago, the panel faced criticism for refusing to release another report it commissioned concerning voter identification laws. That report, which was released after intense pressure from Congress, found that voter identification laws designed to fight fraud can reduce turnout, particularly among members of minorities. In releasing that report, which was conducted by a different set of scholars, the commission declined to endorse its findings, citing methodological concerns.

Access the 48-page Draft Report on Voter Fraud and Voter Intimidation here. Access the 24-page Final Report - Election Crimes: An Initial Review and Recommendations for Future Study, here.

[More] Hasen also remarks on the Times story, here.

[Still more] Both Doug Webber of the AG's office, and Bill Groth, who represented the plainitffs in the voter ID suit, are listed as interviewes on p. 31 of the Voter Fraud draft linked above.

[Updated at 2:30 pm] Hasen on Indiana Secretary of State Rokita here.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Ind. (7th Cir.) Decisions

About this Blog - ILB receives birthday congrats from Kentucky Law Blog

Michael Stevens of the Kentucky Law Blog has posted an entry this morning titled "Happy Belated Birthday to Indiana Law Blog - No. 4 and still counting." Thanks Michael!

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to About the Indiana Law Blog

Ind. Law - General Assembly passes pay raise for themselves, other state officials

Lesley Stedman Weidenbener reports today in the Louisville Courier Journal:

State legislators will receive higher salaries but less generous benefits under a bipartisan bill the House sent to Gov. Mitch Daniels yesterday.

Senate Bill 401 -- approved 60-39 -- also provides automatic future raises for lawmakers and statewide elected officials, including the governor.

Those increases will be tied to the raises received by state employees, which generally are between 2 percent and 4 percent annually.

Most of the changes will take effect in 2009. * * *

The bill is an attempt by lawmakers to remake their compensation system in the wake of criticism that the General Assembly has in the past voted itself generous health-insurance and pension benefits.

It also means lawmakers could receive future pay increases without having to vote on them. * * *

While losing those benefits, lawmakers will receive a pay increase of at least $9,000 annually.

Currently, they earn base pay of just $11,600, an amount that hasn't increased in 22 years.

However, they also receive additional money for serving as leaders and committee chairmen, in addition to payment meant to cover their session and non-session expenses, including travel costs. Those amounts have increased.

The average legislative salary -- including the money for expenses -- was about $40,000 last year.

Under SB 401, the new base salary will be set at 18 percent of the salary of trial court judges. If the bill went into effect today, that would mean a legislative base pay of $20,700.

But because judges receive automatic pay increases that are tied to the average increase for a state employee, that amount is expected to increase before the bill goes into effect in 2009. * * *

The bill also provides annual increases for most statewide elected officials based on the average raise for state employees. The governor would receive an increase only every four years.

Currently, the governor earns $95,000. The state treasurer, auditor and secretary of state earn $66,000 annually; the superintendent of public instruction and attorney general earn $79,400, and the lieutenant governor earns $76,000.

Karen Eschbacher of the Indianapolis Star reports:
Senate Bill 401, which would boost the salaries of members of the General Assembly and provide regular raises for statewide elected officials, passed the House 60-39 on Tuesday evening and is on its way to Gov. Mitch Daniels' desk. * * *

Under the bill, legislators' annual salaries would be set at 18 percent of a trial judge's pay. Indiana senators and representatives, who now make a base pay of $11,600, would earn more than $20,700 in 2009. Their salary would rise every time judges' pay does. * * *

The Senate has already approved the bill. Because the House did not change the Senate version, the bill now goes directly to the governor.

The Star also has a list of how the House members voted. Here is a link to the Roll Call Vote from the Senate.

For background, start with this ILB entry from yesterday.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Indiana Law

Ind. Gov't. - "For the second time in a year, the Gary Police Civil Service Commission has been cited for violating the state's Open Door law by holding an illegal committee meeting"

So reports Lori Caldwell of the Gary Post Tribune today, in a story that includes these quotes:

"Their discussion should have been held in public," Karen Davis, the attorney general's public access counselor, said Tuesday. [ILB note - The PAC is an independent office, not part of the AG's staff]

The Post-Tribune filed a complaint after the personnel committee met in a closed-door session Feb. 17 without issuing the proper notice.

In a six-page response, commission attorney Charles Brooks argued the board was in "substantial compliance." He cited several other cases to support his position.

"There is no executive session for 'personnel matters,' " Davis wrote in her opinion. The board must specify exactly which exception it is using when scheduling an executive board meeting.

The Indiana code cited as the commission's reason for meeting refers to misconduct of an individual. In fact, the board met to determine whether it had violated its own rule by promoting an officer in an exempt rank.

"That doesn't fit at all," Davis said.

When posted, the PAC Opinion will be available here.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Indiana Government

Ind. Courts - "Floyd judgeship in budget bill facing Senate"

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today that:

Floyd County would have a second Superior Court judge to handle its heavy caseload under a provision in the budget bill the Senate will consider today.

The new judge would be elected in November 2008, and the court would begin hearing cases on July 1, 2009. * * *

House budget subcommittee Chairman Bill Cochran, D-New Albany, said he'll be seeking not only to keep the Floyd County judgeship in the bill but to add a magistrate for the court as well. His proposal also would add a magistrate position for Clark County.

Floyd County now has three courts -- circuit, superior and county -- each with one judge. Those courts share one magistrate.

But according to the 2005 Indiana Trial Court Weighted Caseload study, the Floyd County Circuit and Superior courts each have enough work for more than two full-time judges, while the county court has enough work for nearly two judges.

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Indiana Courts

Ind. Decisions - "Appeals court tosses wacky lawsuit"

David L. Howard v. U.S. Steel Corporation, a 19-page NFP opinion issued yesterday by the Court of Appeals (see ILB summary here) is the subject of this story by Patrick Guinane in today's NWI Times. Some quotes:

INDIANAPOLIS | A Gary man who alleged that U.S. Steel used satellite technology to mentally torment him -- leading him to crash his car and abetting the burglary of his home -- doesn't have a legal leg to stand on, the Indiana Court of Appeals ruled Tuesday.

David Howard's lawsuit, which also made various noise nuisance claims against the company's Gary Works plant, was dismissed by a Lake County judge in February 2006. The appeals court upheld that decision Tuesday, but denied U.S. Steel's request to recoup appellate court costs from Howard. * * *

Appellate Judge James Kirsch disagreed in a short dissenting opinion. "If these are not the makings of a frivolous lawsuit, I do not know what a frivolous lawsuit is," he wrote. "I would grant U.S. Steel Corp.’s request for appellate attorney fees."

Posted by Marcia Oddi on Wednesday, April 11, 2007
Posted to Ind. App.Ct. Decisions

Tuesday, April 10, 2007

Ind. Decisions - More on "MySpace Postings Are Free Speech"

Updating this ILB entry from earlier today, the Indiana Court of Appeals decision in the case of A.B. v. State of Indiana has now become a topic on Slashdot.com ("News for Nerds, Stuff that Matters").

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

Shane Allen Blasius v. Stephen Earnest Wilhoff, Jr. and Heidi Ann Wilhoff - "The trial court awarded Stephen E. and Heidi A. Wilhoff (the Wilhoffs) custody of A.B. Shane A. Blasius, A.B.’s biological father, now appeals, presenting the following restated issue for review: Did the trial court abuse its discretion by awarding the Wilhoffs custody of A.B.? We affirm. The factual and procedural postures of this case are unique." This case deals with the putative father registry.

NFP civil opinions today (2):

Steven T. Gerber v. Indiana Department of Natural Resources (NFP) - "The Indiana Department of Natural Resources (the DNR) terminated Steven T. Gerber’s employment as a conservation officer with the DNR. Gerber was provided with a predeprivation hearing, a full evidentiary hearing before an administrative-law-judge panel (the ALJ panel), and an appeal before the Natural Resources Commission (the Commission). At each stage of the administrative review process, the decision to terminate Gerber was upheld. Thereafter, Gerber sought judicial review of the agency action. The court affirmed Gerber’s termination, and Gerber now appeals, claiming the Commission’s decision was arbitrary and capricious because the DNR failed to comply with its own procedures relating to employee discipline. We affirm. * * *

There is a fundamental problem with Gerber’s novel appellate argument – it was not raised below. As reflected in Gerber’s judicial review brief, he consistently argued to the judicial review court that, with respect to the DNR’s failure to follow SOP, his constitutional rights to due process had been violated. * * * Likely because his due process argument failed below, Gerber now attempts to wholly recast the issue. This belated attempt to effectively raise a new issue is improper and, therefore, the issue is waived."

David L. Howard v. U.S. Steel Corporation (NFP) is a 19-page opinion, including a 2-page dissent. Judge Sharpnack writes for the majority:

David Howard appeals the trial court’s grant of summary judgment to U.S. Steel. Howard raises two issues, which we revise and restate as whether the trial court erred by granting U.S. Steel’s motion for summary judgment. Additionally, U.S. Steel raises one issue, which we restate as whether U.S. Steel is entitled to receive appellate attorney fees due to Howard’s substantive and procedural bad faith. We affirm. * * *

KIRSCH, J. concurs in part and dissents in part with separate opinion:

Going in disguise by means of one or more satellite and other invasive technologies and fix-focusing such technologies upon the appellant ad hominem? Invoking the doctrine of res ipsa loquitor to disguise the invasion of the appellant’s privacy? Using invasive technology to lower the appellant in the estimation of his family, friends and society by making him the scapegoat, shill or victim of no resort? Knowing that some device, implant scheme, or artifice enables racially or otherwise invidiously select persons to receive transmitted data and conspiring to exclude the appellant from such transmitted data and invade his privacy, again, ad hominem? Knocking the appellant unconscious while he drove his automobile by using invasive technology?

If these are not the makings of a frivolous lawsuit, I do not know what a frivolous lawsuit is. If, as I believe, they constitute a frivolous lawsuit, then the appeal from the summary judgment dismissing that lawsuit is equally frivolous. I would grant U.S. Steel Corporation’s request for appellate attorney fees. Doing so reimburses the appellee for the substantial expenses it has incurred in defending this appeal and discourages the appellant and others from bringing such claims in the future.

I concur in the decision of the majority to affirm the summary judgment, but I respectfully dissent from its decision to deny appellate attorney fees.

NFP criminal opinions today (8):

Brian M. Maxwell v. State of Indiana (NFP)

Richard A. Mitchell v. State of Indiana (NFP)

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

Jonte Laron Reid v. State of Indiana (NFP)

Brian C. Cookson v. State of Indiana (NFP)

Richard Fox v. State of Indiana (NFP)

Curtis Tyrone Love v. State of Indiana (NFP)

Joseph Love v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Ind. App.Ct. Decisions

Not law but shocking - More on: Don Imus' comments about the Rudgers' women's basketball team members

Updating the ILB post from last Saturday morning, posted when there had been relatively few items in the press about the Don Imus remarks, today the Rutgers team gave its first press conference on the matter. The team has agreed that they will meet with Inus, as he has been requesting, but in private. They certainly did not need to grant his request, they owe him nothing.

NPR's Day to Day just broadcast a good report on the Rutger press conference, access it here when it becomes available later this afternoon.

I'm a big fan of women's basketball and followed the Rutger's team throughout the recent tournament - their run ended only in the final game against Tennessee. So it saddened me to read remarks like this today:

"This week and last, we should have celebrating our accomplishments the past season,'' said Heather Zurich, a sophomore forward. "We fought, we persevered, and most of all, we believed in ourselves. But all of our accomplishments were lost, our moment was taken away.

"We were stripped of this moment by the degrading comments made by Mr. Imus. My team did nothing to deserve Mr. Imus', nor Mr. McGuirk's , deplorable comments.''

Their admirable coach, C. Vivian Stringer, remarked today that:
her players "are the best this nation has to offer, and we are so very fortunate to have them at Rutgers University. They are young ladies of class, distinction. They are articulate, they are gifted. They are God's representatives in every sense of the word."

Imus has been suspended for two weeks for calling the Rutgers female basketball players "nappy-headed hos."

"It's not about them (players) as black or nappy-headed. It's about us as a people," Stringer said. "When there is not equality for all, or when there has been denied equality for one, there has been denied equality for all."

She further said: "While they worked hard in the classroom and accomplished so much and used their gifts and talents, you know, to bring the smiles and the pride within this state in so many people, we had to experience racist and sexist remarks that are deplorable, despicable, and abominable and unconscionable. It hurts me."

You can continue to follow the Rutgers story on Women's Hoops Blog, which this afternoon has this link to an "instant transcription" of the Rutgers press conference. It also has this link to an article by Gwen Knapp of the San Francisco Chronicle, who writes in part (read the whole thing):
Al Sharpton and Jesse Jackson have made their plays against Don Imus. Now it's time for women to get into the game. * * *

The misogyny in his remarks has been downplayed for a lot of reasons. For starters, there are no women with the brand of clout wielded by a Jackson or Sharpton. The two reverends do what women wouldn't dare. They scare people. They don't back down, because they're playing to win, not to be liked. * * *

I admit I didn't want to deal with this issue at first. Among other things, I didn't want to type the words "nappy-headed ho's" and have them appear under my column mug. I didn't care to bring more attention to Imus, either.

But the whole thing festered, and then I remembered the way I felt when an Imus sidekick said something almost as ugly about tennis' Williams sisters a few years ago. I was disgusted, but I let it go. A lot of people did.

The Rutgers remark seemed to be a product of that apathy. We have allowed our culture to become so coarse that what once passed for satire had morphed into a verbal assault on eight college students.

Gray-Lawson expressed things perfectly when she said: "I don't know how anyone can talk that way about someone else's child. It's just cruel."

She's right. This goes beyond a racial or gender issue. It's a matter of decency that needs to be attacked from all angles. The National Organization for Women joined the fray, but individual women with star power have stayed silent. They need to get off the bench and start taking their shots.

[Update at 5:00 pm] I've happened upon a couple more good articles, this one by a columnist who admits "a steady diet of "Imus" desensitizes you." Gwen Ifill has this opinion piece in today's NY Times.

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to General News

About this Blog - 4th ILB Birthday came and went

Darn! I meant to make a big deal of this, but then forgot!

The Indiana Law Blog had its 4th Birthday on March 16th. To see the first entry you'd have to go back to March 2003 on the Old Blog Site, which is here. Starting on January 29, 2004, the ILB moved to the NewBlog Site - the one you are reading now.

To belatedly mark this day, the ILB is, for today at least, making its stats available - access them by clicking on the SiteMeter symbol at the bottom of the right column.

Note that there are two categories counted, "visits" and "page views". According to SiteMeter:

Site Meter tracks page views and visits. You may also have heard the term "hits". When someone comes to your site, they generate a "hit" for every piece of content that is sent to their computer. Viewing a single web site page would generate one hit for the page and one hit for every individual graphics file that was on the page. A single page could easily generate a dozen or more hits. When you are browsing a site, every time you follow a link, it is treated as a single "page view". Site Meter defines a "visit" as a series of page views by one person with no more than 30 minutes in between page views.
In other words, "visits" per day is the number that matters, not "page views."

For another ranking, Justia, a site that ranks 1,796 law blogs, has the Indiana Law Blog ranked 10th this week, 8th this month, and 9th all time.

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to About the Indiana Law Blog

Ind. Decisions - "MySpace Postings Are Free Speech" [Updated]

An AP story today by Charles Wilson, here picked up in the Houston Chronicle, reports on yesterday's Court of Appeals opinion in the case of A.B. v. State of Indiana (see ILB entry here). Some quotes:

INDIANAPOLIS — A judge violated a juvenile's free-speech rights when he placed her on probation for posting an expletive-laden entry on MySpace criticizing a school principal, the Indiana Court of Appeals ruled.

The three-judge panel on Monday ordered the Putnam Circuit Court to set aside its penalty against the girl, referred to only as A.B. in court records.

"While we have little regard for A.B.'s use of vulgar epithets, we conclude that her overall message constitutes political speech," Judge Patricia Riley wrote in the 10-page opinion.

In February 2006, Greencastle Middle School Principal Shawn Gobert discovered a Web page on MySpace purportedly created by him. A.B., who did not create the page, made derogatory postings on it concerning the school's policy on body piercings.

The state filed a delinquency petition in March alleging that A.B.'s acts would have been harassment, identity deception and identity theft if committed by an adult. The juvenile court dropped most of the charges but in June found A.B. to be a delinquent child and placed her on nine months of probation. The judge ruled the comments were obscene.

A.B. appealed, arguing that her comments were protected political speech under both the state and federal constitutions because they dealt with school policy.

The Court of Appeals found that the comments were protected and that the juvenile court had unconstitutionally restricted her right of free expression.

[Updated 4:00 pm] See also this report from theAP about a Hermitage, Pennsylvania "school principal [who] sued four former students who he claims posted parody MySpace.com profiles saying he smoked pot, kept beer at school and liked having sex with students."

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - Indiana Supreme Court Chief Justice Shepard and Justice Boehm support legislative pay bill

The Fort Wayne Journal Gazette today publishes an opinion piece by "Randall T. Shepard and Theodore R. Boehm [, who] are, respectively, the Chief Justice and a Justice of the Indiana Supreme Court," headlined "It’s high time to look at pay increase for legislators." Some quotes:

Long periods without adjustment in legislative pay, even to account for cost of living, create distraction from the public’s real priorities, unfairness to legislative families and incentives for covert means of supplementing pay. Indiana can do better. A clean and honest approach is on the table.
The reference is to SB 401, which passed second reading in the House yesterday. As the bill was not amended by the second house committee, and was not changed on second reading yesterday, when SB 401 passes third reading this week, as it surely will, it will be ready to go directly to the Governor. More from the opinion piece:
The current effort to alter legislator compensation has much to be said for it. For one thing, those who are carrying the proposal have done so in a completely open and straightforward way. There have been no midnight maneuvers conducted outside the public view.

Moreover, there is much merit in a simpler system of compensation than Indiana now uses for legislative pay. The proponents have advanced a bill that trades in sometimes controversial perks for simple salary. It’s a fresh look at a difficult subject.

Yesterday the ILB posted an opinion piece of its own, wrapping up several earlier ILB entries on legislative pay in general and SB 401 in particular. In this entry from April 3rd, the ILB attempted to make clear that line items in the biennial budget bill providing for a daily per diem during the session, and another for during the interium: (1) are tied to the federal cost of living, (2) currently provide about a $30,000 annual "floor" for legislators in addition to their "salary" amount, and (3) will not be affected by SB 401. Further, as pointed out in this entry, (4) the per diem allowance and leadership allowances are to be considered "salary" in computing legislative PERF benefits.

In this March 4, 2007 ILB entry, titled "Senate passes a non-transparent and convoluted pay raise bill," the ILB went through SB 401 line by line, and concluded that SB 401 was far from "a simpler system of compensation." So also did the Fort Wayne Journal Gazette, which wrote on Feb. 22nd:

The biggest problem with the pay raise bill offered by Sen. Gary Dillon, R-Columbia City, is that it sets legislative pay at 18 percent of a trial court judge’s salary – a figure that increases automatically each year based on average increases for state workers. It is unacceptable to ask taxpayers to support automatic pay raises. As elected officials, legislators must vote yes or no on bills to increase their pay and then accept the responsibility for convincing voters that the increase is justified.
The Indianapolis Star had an editorial on the same day, headed "Lawmakers must keep salary issue out in the open." Some quotes:
A straight-up vote on a pay increase by the Indiana General Assembly is a refreshing idea, and so is the proposal to cut or eliminate fringe benefits in favor of salary hikes that are more visible to the public.

Unfortunately, the plan of the moment would serve to neutralize those advantages by arbitrarily tying legislators' pay to that of judges, nearly doubling the base salary in a single stroke, and locking in future increases without lawmakers having to take a stand on this sensitive issue down the road.

In short, the tradeoff called for in Senate Bill 401, which passed the Tax and Fiscal Policy Committee Tuesday, isn't quite worth it.

Yesterday I concluded that: (1) SB 401 initially would pay legislators twice as much for the same part-time service; (2) would completely obscure the true amount of future legislative compensation through devices such as the appropriations tied to the federal cost of living in the budget bill, and the tieing of the legislative "salary" to the judges' salaries, eliminating any future direct vote on legislative salaries; and, (3) by not addressing the full-time vs. part-time issue, taking off the table any future discussion of conflicts between "part time" legislators and their "real life jobs."

In sum, the ILB was surprised to see an "opinion" piece this morning that seems to bless SB 401,

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Indiana Law

Ind. Courts - More on "Court looks at translator rules "

Updating yesterday's ILB entry on the oral arguments set to be heard before the Indiana Supreme Court this Thursday in the case of Jesus Arrieta v. State, involving (as stated by the LCJ story) "a Clark County drug case [where] the Indiana Supreme Court will consider whether state courts must pay for translators to assist criminal defendants who don't understand English," Dionne Waugh of the Fort Wayne Journal Gazette writes today on how the situation is handled in Allen County:

Allen County uses foreign language interpreters daily in its court systems. Last year, the county spent $92,624 to pay for certified interpreters for both Circuit and Superior Court.

That’s up from $80,692 in 2005 and $69,918 in 2004. That money comes from the county’s general fund, user fees and a $10,000 grant from the Indiana Supreme Court, according to Court Executive Jerry Noble.

Allen County has needed interpreters to speak Spanish, French, Arabic, Burmese, Vietnamese, Bosnian and even Mai Mai.

Last month, the court had to pay for two out-of-state Mai Mai interpreters, the native language of Somalia, to come to Fort Wayne for a scheduled three-day jury trial. The defendant pleaded guilty the day of trial.

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Indiana Courts

Ind. Law - More on: Monitoring malpractice

Updating its stories from Sunday on the Indiana medical malpractice law (see ILB entry here), the Fort Wayne Journal Gazette has an editorial today titled "Malpractice law works." However, it contines, the legislature should review the law:

The cap on malpractice awards is set at $250,000 from malpractice insurance, and up to $1 million more from the state’s malpractice fund, and it has been raised a couple of times since 1975. But most private health-insurance plans are capped at $1 million, and the cost of health care is rising much faster than inflation. So it’s fair to consider raising the cap again to allow people who make successful claims to collect enough to pay off medical bills and finance ongoing health care.

Legislators should also address the reasons behind the six-year average time lapse between the malpractice incident and the malpractice payment. When patients have medical bills to pay, justice delayed is effectively justice denied.

The three-member panels that review each malpractice claim are composed of health-care workers, leading to suspicions that doctors, nurses and other panel members may sometime err on behalf of their peers. Lawmakers should consider allowing knowledgeable laypersons to serve on the panels as well.

Physicians must make so many judgment calls in their work that no malpractice system can ever be invulnerable to error. But Indiana lawmakers crafted a system that aims to balance the legitimate needs of both sides in malpractice cases.

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Indiana Law

Ind. Law - Even more on: 100 Year Anniversary of Indiana Eugenics Legislation: Hoosier State Led World In Enactment of Involuntary Sterilization Laws

Don't forget - tomorrow (Wednesday) from 3:00 to 4:15 in the Indiana Supreme Court Courtroom, Rm 317A. A free CLE worth 1.3 credit hours titled "'Three Generations of Imbeciles are Enough': Reflections on 100 Years of Eugenics in Indiana."

On Thursday, from 8:30 am - 3:30 pm in the Indiana State Library, a Symposium titled "Indiana Eugenics: History and Legacy, 1907-2007."

See the official notice here. See also the links associated with this March 14th ILB entry.

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Indiana Law

Ind. Law - Still more on convicted felons on ballot in Lake County

"Judge could rule next week on Uzelac's re-election bid" is the headline to this story by Bill Dolan in today's NWI Times. Some quotes:

CROWN POINT A judge could decide as early as next week whether to strike Merrillville Town Councilman David Uzelac's name from the May 8 primary ballot.

Lake Circuit Court Judge Lorenzo Arredondo heard testimony Monday from Uzelac and his opponent, Merrillville firefighter Tom Goralczyk, who is challenging Uzelac's right to run for re-election because of a criminal past.

Uzelac, who has served on the Town Council since 1998, pleaded guilty two decades ago to the Jan. 1, 1984, theft of cash from the former Captain D's restaurant on U.S. 30.

State law at the time permitted Uzelac to hold public office because the sentencing judge in his case reduced his crime from a felony to a misdemeanor.

A law passed in 2005 closed this loophole. Goralczyk filed an objection to Uzelac's re-election earlier this year, based on this new law.

The county elections board refused Goralczyak's challenge last month on grounds the new law is unconstitutional.

Goralczyk is appealing the matter to Arredondo's court.

Here is a list of earlier ILB entries on the Uzelac issue.

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Indiana Law

Ind. Gov't - Even more on "Ivy Tech's board broke state law, public access counselor rules"

"Ivy Tech to revisit hiring decision: Board will discuss new president in public to comply with law" is the headline to this story by Andy Gammill in today's Indianapolis Star. But you will have to travel to French Lick to see it. Some quotes from today's story:

Ivy Tech's board will again take up its decision to hire an Anderson businessman as president after the state's public access counselor determined the board acted illegally, the board said Monday.

Vice Chairman Jesse Brand said Ivy Tech Community College disagrees with Karen Davis' ruling but will discuss the issue publicly as a board.

"We respect her position, so we're going to, both at her and our counsel's advice, have a discussion on the agenda," Brand said. "As far as I know, there are no limits of what course that discussion might take."

Davis determined last week that two votes in a closed-door executive session violated state law. She also said that the board probably broke the law by deliberating in private, although she said case law isn't as clear-cut on that issue.

Although the board will discuss the matter again at its April 19 meeting in French Lick, Brand said he believes the board will not change its mind in hiring Thomas J. Snyder as Ivy Tech president. * * *

Davis said Monday that Ivy Tech's decision to revisit the votes and discussion could make any lawsuit moot by taking the only course of action a judge could order.

The meeting may end up looking like a re-enactment, with members voting the same way as before, she said, but they are allowed to change their votes under the law.

"It's a real vote," she said. "If they decided to change their vote, it would be OK. There certainly wouldn't be anything wrong with one of the members changing their vote."

Her advice to Ivy Tech was to conduct the votes again publicly, Davis said, and also to have deliberations about candidates' qualifications in open session.

For background, start with this ILB entry from yesterday.

Posted by Marcia Oddi on Tuesday, April 10, 2007
Posted to Indiana Government

Monday, April 09, 2007

Law - Injustice in Wisconsin, bad enough to shock 7th Circuit panel

This editorial today in the NY times alerted me to the story. Some quotes:

As Congress investigates the politicization of the United States attorney offices by the Bush administration, it should review the extraordinary events the other day in a federal courtroom in Wisconsin. The case involved Georgia Thompson, a state employee sent to prison on the flimsiest of corruption charges just as her boss, a Democrat, was fighting off a Republican challenger. It just might shed some light on a question that lurks behind the firing of eight top federal prosecutors: what did the surviving attorneys do to escape the axe?

Ms. Thompson, a purchasing official in the state’s Department of Administration, was accused by the United States attorney in Milwaukee, Steven Biskupic, of awarding a travel contract to a company whose chief executive contributed to the campaign of Gov. Jim Doyle, a Democrat. Ms. Thompson said the decision was made on the merits, but she was convicted and sent to prison before she could appeal.

The prosecution was a boon to Mr. Doyle’s opponent. Republicans ran a barrage of attack ads that purported to tie Ms. Thompson’s “corruption” to Mr. Doyle. Ms. Thompson was sentenced shortly before the election, which Governor Doyle won.

The Chicago-based United States Court of Appeals for the Seventh Circuit seemed shocked by the injustice of her conviction. It took the extraordinary step of releasing Ms. Thompson from prison immediately after hearing arguments, without waiting to issue a ruling. One of the judges hinted that Ms. Thompson may have been railroaded. “It strikes me that your evidence is beyond thin,” Judge Diane Wood told the lawyer from Mr. Biskupic’s office.

Thanks to Howard Bashman of How Appealing, here is a link to the April 5th order (April 5 is the date of the argument and the date of the order), which reads in full:
The judgment of conviction is reversed, and the case will be remanded with instructions to enter a judgment of acquittal.

An opinion will be issued in due course. The time to file a petition for rehearing is extended until 14 days after the court issues its opinion.

This extension of time also means that the mandate will be deferred. But Thompson is entitled to immediate release from prison, on her own recognizance. The United States must make arrangements so that she may be released before the close of business today.

Here is a direct link to an MP3 recording of the oral argument. According to the news accounts, it is worth a listen. Bashman has links to the news accounts here and here. I've read them all.

Posted by Marcia Oddi on Monday, April 09, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Still more on: Senate passes a non-transparent and convoluted pay raise bill

The ILB has posted several entries this year and the end of last year on SB 401, the legislative pay raise. The bill is on 2nd Reading today in the House. Several interesting 2nd reading amendments are pending. This one is from Rep. Fry, and deals with health care benefits of former members of the general assembly and their spouses. This one is from Rep. Thompson, and it would amend a provision I've never read before - IC 2-3-1-2, which currently states that, in rendering "legislative services," which are defined to include both work during the session and in the interim:

a member of the general assembly is normally required to work more than six hundred (600) hours per year.
Thompson's amendment would change that to 1,200 hours per year.

This ILB entry from Nov. 26, 2006, titled "Could this be a coincidence?" began with "Could this be a coincidence? So far I've read three stories today, from different parts of the state, all making a point that Indiana legislators are poorly paid." Each cited salaries from other states' legislatures. The ILB asked:

What is missing here? The figures quoted above by the Times are from the National Conference of State Legislatures (NCSL). But what is missing is looking at the various states' legislative salaries within the content of "Full- and Part-Time Legislatures." The NCSL has a valuable page doing just that. It categorizes legislatures by the percentage of a full time job their work consumes.

For instance: "Red legislatures require the most time of legislators, usually 80 percent or more of a full-time job. They have large staffs. In most Red states, legislators are paid enough to make a living without requiring outside income." Michigan falls into this category: Illinois and Wisconsin fall into a subdivision labeled "red-lite."

Iowa falls into a category identified as: "Legislatures in these states typically say that they spend more than two-thirds of a full time job being legislators. Although their income from legislative work is greater than that in the Blue states, it's usually not enough to allow them to make a living without having other sources of income."

Where is Indiana? Farther down the scale, with the other "citizen legislatures." According to the NCSL: "In the Blue states, average lawmakers spends the equivalent of half of a full-time job doing legislative work. The compensation they receive for this work is quite low and requires them to have other sources of income in order to make a living. The blue states have relatively small staffs. They are often called traditional or citizen legislatures and they are most often found in the smallest population, more rural states."

A second table on the NCSL page compares average job time, compensation, and staff size by caegory of legislature.

So the two factors - "compensation" on the one hand, and the issue of "full-time vs. citizen legislature" on the other - would seem to be inextricably tied. Like the chicken and the egg, the question is: which comes first.

This ILB entry from Nov. 28, near the bottom, sets out a chart showing the "time on the job" in Indiana and some of our sister states, and then concludes:
One might look at this table and conclude that, as part-time legislators, Indiana members at $45,000 a year including expenses, already are paid a good deal more than part-time legislators in other states (where the average, including expenses, is $15,984). So perhaps the question should be: Do we want to go to a professional legislature, one where members are paid perhaps $66,000 a year, as is our Secretary of State (who presumably, although I can't say for sure, receives the same health benefits and retirement as other state employees) - enough that their legislative service is not a second job? A related question - if we have a professional legislature, do we also want it to be a full-time legislature?
BTW, the Indiana "time on the job" figure in the chart is 54%. Assuming a work year of 2,000 hours, that would come out to 1,080 hours. Yet "600 hours" is the current figure in the statute.

In this March 4, 2007 entry, titled "Senate passes a non-transparent and convoluted pay raise bill," the ILB went through SB 401 line by line, pointing out, for instance:

Q - Why not simply raise the salary from $11,600 to what works out to about $21,700 starting in 2009? A - The cynical answer is because that would be too transparent. The actual answer is that tieing it to the trial judges' salaries, which in themselves are now tied by a law passed in 2005 (IC 33-38-5-8.1) to state employees' salaries, means the General Assembly would never have to vote on its own pay raise again, and that in a few years it would take an accountant with knowledge of state government to read this section and calculate what the salaries of legislators were at that time. * * *

There is more to write, but not right now, on, to quote the Star, "the daily stipends, committee bonuses and other ancillary pay, which boost the total earnings of a legislator to an average of more than $40,000 a year" currently. Where are these amounts set out in the law? How often, and how, are they increased?

In this entry from April 3, 2007 the ILB attempted to answer the question: "Where are these amounts set out in the law?" by going through the biennial budget bill and showing the line items for a daily per diem during the session, and another for during the interium, tied to "the maximum daily amount allowable to employees of the executive branch of the federal government for subsistence expenses while away from home in travel status in the Indianapolis area. The legislative business per diem changes each time there is a change in that maximum daily amount." The entry concluded:
Quick calculations show that 4 months of $137/day = $16,440, plus 8 months of $55/day = $13,200, totalling a minimum $29,640 "floor." Add to that funds for travel and the leadership allowances.

The point? None of the above is affected by the new legislative pay raise bill.

The ILB received a note from a reader last week, after the posting on per diems, that read in part:
So what about the total pay package? At the new $$ will not be enough to encourage bright young lawyers from small towns or who do not have independent wealth, or jobs with Ivy Tech or big law firms to take on the challenge of legislative work. There is a lot of truth to the saying we get what we pay for, and with the legislature we get less than is currently needed for improving the state. My senior partner did it for years, and it was a huge sacrifice for himself and the firm.
I replied:
Here is my thing. I've talked about it before, maybe it is time to do it again. I think the issue we should be talking about is -- whether we are going to continue with a part-time legislature, paid accordingly, or move to a full-time legislature -- rather than whether we should pay our current part-time legislators more and more.

There are a lot of cons for full-time legislators, including the cost of full-time staff, etc. (see also this column by Matt Tully of the Star). One enormous pro, however, is that you would no longer have the situation we have now, where it seems nearly every committee chair is representing his own real life interest, such as pig farmers chairing agriculture, Ivy tech administrators deciding higher education priorities, etc.

Instead, we are back-dooring it, proposing to pay the legislators twice as much for the same part-time service, and taking the compensation question and its implications, and the conficts-of-interest questions completely off the future table.

Posted by Marcia Oddi on Monday, April 09, 2007
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In A.B. v. State of Indiana, a 10-page opinion by Judge Riley, the issue is whether "the message authored by A.B. and posted on a myspace.com website is protected political speech." Riley writes:

With respect to A.B.’s February 15, 2006 posting, A.B. contends that the juvenile court erred by not protecting its content as political speech pursuant to the First Amendment of the United States Constitution and Article 1, Section 9 of the Indiana Constitution. A.B. asserts that her message, made in a public forum and criticizing Gobert, a state actor, in implementing a school policy proscribing decorative piercings is a legitimate communication envisioned within the bounds of protected political speech. * * *

Based on the evidence before us, we find that there is insufficient evidence to support that A.B.’s adjudication of harassment based on her posted message of February 15, 2006 is consistent with her right to free speech contained in Article 1, Section 9 of the Indiana Constitution. Therefore, we hold that A.B.’s conviction for harassment contravened her right to speak, as guaranteed by the Indiana Constitution. Accordingly, we remand to the trial court with instruction to vacate her adjudication.

CONCLUSION Based on the foregoing, we hold that the trial court erred in finding A.B. a juvenile delinquent based on six Counts of harassment. We reverse the decision of the juvenile court and remand the cause with instructions to vacate the adjudication.

Derrico Davis v. State of Indiana - Here the issue is whether the evidence against defendant Davis is sufficient to sustain his conviction for dealing in cocaine as a class B felony. In a 2-1 opinion, the Court rules yes.

In Benton Barber v. State of Indiana , a 21-page opinion, Judge Vaidik writes:

Benton Barber appeals his convictions and sentence for two counts of reckless homicide and one count of failure to stop after an accident resulting in death. We conclude that the evidence is sufficient to support Barber’s convictions, that the trial court did not abuse its discretion in sentencing Barber, and that Barber’s sentence is not inappropriate in light of the nature of his offenses and his character. Furthermore, because, as this Court held in White v. State, 849 N.E.2d 735 (Ind. Ct. App. 2006), reh’g denied, trans. denied, Indiana Code § 35-50-2-1.3 adds no restrictions on the ability of trial courts to impose consecutive sentences beyond the restrictions already in place by virtue of Indiana Code § 35-50-1-2(c), the trial court did not err in imposing consecutive maximum sentences for Barber’s two reckless homicide convictions. Therefore, we affirm the judgment of the trial court.
NFP civil opinions today (2):

Jeffrey Lamberson, Jr. v. Indiana Department of Child Services (NVP) - involuntary termination, affirmed.

In the Matter of the Paternity of K.J.A.; Amanda D. Tolliver v. Eric Atteberry (NFP) - custody dispute, affirmed.

NFP criminal opinions today (6):

Micah Perryman v. State of Indiana (NFP)

Damon Gray v. State of Indiana (NFP)

Michael Gross v. State of Indiana (NFP)

Larry D. Cameron v. State of Indiana (NFP)

Frank Fugate, Jr. v. State of Indiana (NFP)

Marvin Reffett v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 09, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - Yet more on: Liquor wholesalers launch attack on IU Law professor

Updating the ILB entries on the liquor industry attacks on IU-Bloomington law prof Alex Tanford (see more recent entry here), an ILB reader writes:

Marcia, I read with dismay about the attacks on Prof. Tanford.

I think law professors need to keep their feet wet in the real world of litigating issues. In some ways, legal theory is a fairly hollow pursuit -- the legal system is ultimately about winning cases, (though it's not always clear what constitutes winning) and professors need to be able to impart the concept of a winning approach, not just a set of rules.

Speaking of winning, one might speculate that the liquor wholesalers have lost confidence in their ability to win in court. It would be truly difficult to believe that they are lacking funds to devote to litigation.

Posted by Marcia Oddi on Monday, April 09, 2007
Posted to Indiana Law

Ind. Gov't. - Still more on "Ivy Tech's board broke state law, public access counselor rules" [Updated]

This ILB entry from April 6th provided a link to a faxed and scanned version of the PAC opinion provided via the Indianapolis Star website. The ILB has now obtained and is posting here a more accessible, non-scanned version of the PAC opinion in the Ivy Tech ruling (but it does not include the related correspondence).

[Updated 4/10/07] I've received and substituted at the same link a revised version of the opinion with minor, technical corrections.

Posted by Marcia Oddi on Monday, April 09, 2007
Posted to Indiana Government

Ind. Courts - "Court looks at translator rules "

Harold J. Adams of the Louisville Courier Journal has a story this morning (that has since been picked up by other papers) on the oral arguments set to be heard before the Indiana Supreme Court this Thursday in the case of Jesus Arrieta v. State. From the story:

At a hearing this week on a Clark County drug case, the Indiana Supreme Court will consider whether state courts must pay for translators to assist criminal defendants who don't understand English.

The issue has gained importance in Indiana and Kentucky because of the growing number of Hispanics who don't speak English.

Kentucky courts provide state-funded translators throughout all court proceedings for criminal defendants who don't understand English. Indiana courts require defendants to hire translators on their own if they can afford to do so.

"There are no requirements that are imposed by law for court interpreters of foreign language," said Lilia Judson, executive director of State Court Administration in Indiana.

In the case before the Indiana Supreme Court on Thursday in Indianapolis, defendant Jesus Arrieta is demanding that Indiana do what Kentucky does.

Indiana's approach "discriminates against people who don't understand English," Stephen Beardsley, Arrieta's lawyer, said last week. He said it imposes on someone who is presumed innocent "the extra burden" of paying for something that is intrinsic to the legal process.

"We don't pay the judge's salary. We don't pay for the court reporter," Beardsley said of defendants.

See the 2-1 Court of Appeals decision summarized in this Nov. 22, 2006 ILB entry. More from the story:
Judge Nancy Vaidik wrote a dissenting opinion that mirrors Arrieta's position.

"Requiring a non-English-speaking defendant to pay for an interpreter, to me, would be tantamount to requiring any defendant to pay for a courtroom, a bailiff, even a judge," she wrote.

A criminal defendant is involuntarily drawn into the judicial system and "made subject to its immense powers," Vaidik wrote. "To require that defendant to pay merely to be able to understand the words being spoken around him in this system infringes upon basic notions of fairness and due process." * * *

Kentucky courts spent $1.37 million in 2006 on interpreting services, up from $892,700 in 2003. The state uses freelance interpreters but also has hired nine full-time Spanish interpreters for five counties with high-volume criminal dockets: Jefferson, Fayette, Kenton, Boone and Shelby.

In Indiana, interpreters work freelance. Annual costs were not available last week, but in 2005 the state provided interpreters for 14,355 cases, up from 12,557 in 2004, State Court Administration officials said. Complete figures for 2006 are not yet available.

Posted by Marcia Oddi on Monday, April 09, 2007
Posted to Indiana Courts

Sunday, April 08, 2007

Ind. Courts - Round-about route for an update on the Indiana Court's case management system

News has been sparse on the progress in implementing the Indiana Court's case management system. Since the announcement of a vendor Nov. 6, 2006, there has in fact been no news - the official site has not been updated.

The ILB has found only one report since, this one from March 3rd, quoting from the Bloomington Herald Times:

Indiana’s plan to launch a statewide case management court system will start with help from Monroe County.

The Indiana Supreme Court hopes to link all courts and clerk offices across the state, and it approached Monroe County to serve as the initial test site.

Today, via a Seattle paper, here is an AP story datelined Harrisburg, Pennsylvania, that reports:
HARRISBURG, Pa. -- Pennsylvania's new statewide computer system makes it possible for the first time to put a number on how many warrants remain unserved across the state - 1.4 million, including more than 100 for homicide, The Associated Press has found.

Pennsylvania is now the largest state to complete such a comprehensive court computer network, although several other large states - including California, New York and Ohio - are planning or implementing such systems, according to the National Center for State Courts in Williamsburg, Va.

The database is designed, in part, to help authorities reach across county lines to capture fugitives who have moved to avoid detection. It will also allow government officials and the public to compare how courts are performing from county to county. * * *

The system, which went fully online in September, also gives the public instant Internet access to case docket information, with more detailed information - including access to the warrants - available to law enforcement and court officials.

"Better information equals better justice," said James E. McMillan, principal court technology consultant for the National Center for State Courts. "Because when you have more complete and more accurate information, you don't make as many mistakes."

The system also improves scheduling, makes it simpler to move cases from one level to the next, and gives judges more information about a person's background for setting bail.

Among other states, Indiana will be testing a new computer system in some counties in the next two years that will provide a statewide warrants database, said Mary L. DePrez, a technology officer with the Indiana Supreme Court.

Pennsylvania spent $105 million on its Common Pleas Case Management System, which required buying and installing more than 800 computers and training thousands of workers during the past three years.

Posted by Marcia Oddi on Sunday, April 08, 2007
Posted to Indiana Courts

Ind. Law - Still more on: Liquor wholesalers launch attack on IU Law professor

Updating these ILB entries from April 4th and April 7th, Mike Leonard of the Bloomington Herald Times writes in a column today:

If the recent inquiry into the work activities of Indiana University law professor Alex Tanford didn’t carry with it a question about the man’s character and professionalism, it might be amusing.

Tanford has been the lead attorney or a consultant on several court challenges to laws that regulate wine distribution and shipping. The first of these cases goes back nearly a decade now, but over time, Tanford and his allies have prevailed more often than not.

And that has big business and its allies in a dither. And blatantly out to exact a measure of revenge.

The powerful Wine and Spirits Wholesalers of Indiana pressed their lackeys in the Legislature to question whether Tanford’s legal work has detracted from his responsibilities and duties as a law professor. Lead lackey David Long, R-Fort Wayne, asked IU to look into Tanford’s activities and determine whether the law professor has violated university policies regarding the use of his time and university resources.

“It’s the take-no-prisoners, out with the knives attitude,” observes Russ Bridenbaugh, a Bloomington wine writer and advocate. “If they can’t win in court, then they go after their opponents with smears and harassment.”

More from the column:
James Purucker, the lobbyist for the wine and spirits wholesalers, wants the Legislature to set aside $1 million from IU’s state appropriations to offset the $800,000 Tanford says he is due for eight years of legal work to overturn what he has argued are Indiana laws and practices that violate the commerce clause of the U.S. Constitution.

“That’s the way constitutional law works,” said Bridenbaugh. “You’re almost always suing a governmental entity on a constitutional question. If you win, the losing side has to pay the winner’s legitimate legal fees. The wholesalers and their friends in the Legislature are trying to say that Alex is wasting taxpayers’ money.

“If you want to point a finger at someone wasting taxpayers’ money, let’s look at the crummy legislation that was written by the wholesale wine and spirits lobby and carried by the Legislature.

“Ultimately, though, you have to look at the governor and the state attorney general and ask, why are you mounting this defense of an indefensible and unconstitutional law? Who is wasting taxpayers’ money — the attorney who is challenging an unconstitutional law or the state that won’t give up?”

Posted by Marcia Oddi on Sunday, April 08, 2007
Posted to Indiana Law

Law - More on: "6 Ohio Cities Rush to File Suits Against Makers of Lead Paint"

Updating this ILB entry from Jan. 6, 2007, that began with this quote from a NY Times story:

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.
the Cleveland Plain Dealer reported Wednesday:
Ohio Attorney General Marc Dann has sued Cleveland-based Sherwin-Williams Co. and several other paint-related companies over lead paint in Ohio homes.

The filing Monday in Franklin County Common Pleas Court in Columbus tracks similar suits brought last year by five Ohio cities -- Columbus, Cincinnati, East Cleveland, Toledo and Lancaster -- and could eventually replace those efforts.

The attorney general's action now covers all areas of the state, including Cleveland, that had not previously sued over lead paint hazards. * * *

The central premise of the Ohio suits is that lead paint should be declared a public nuisance and that the defendants should be held responsible for removing the danger from buildings and homes.

The Ohio litigation follows a state court verdict in Rhode Island in 2005 that found three defendants, including Sherwin-Williams, responsible for lead hazards in an estimated 240,000 homes. The verdict, based on the same theory now being tried in Ohio, has been appealed to the Rhode Island Supreme Court.

By filing the suit Monday, the Ohio attorney general's office believes it will be protected from the effects of Senate Bill 117, which former Gov. Bob Taft allowed to pass into law just before he left office, only to have it vetoed by current Gov. Ted Strickland once he took over.

The bill includes language that would make it harder to sue on public-nuisance grounds, requiring instead that lead-paint plaintiffs meet a higher burden of proof required under product liability law.

The Ohio Supreme Court is considering a challenge by Republican legislative leaders that could lead to Strickland's veto being overturned. The attorney general's office has asked the court to hold off on its public-nuisance complaint until the veto's validity is determined.

If the veto is overturned, Dann's office believes its suit would not be subject to the new law because the litigation was filed within 90 days of when the law took effect. The starting point for that 90-day period is undetermined, but the earliest date for time to run out would have been Tuesday.

Proponents of the bill are still expected to assert that no prior suit is grandfathered because the changes in the law were simply meant as clarification of the General Assembly's intent in prior legislation.

Fascinating. The Columbus Dispatch had this story, along on April 4th. Some quoters:
Saying a veto fight between Gov. Ted Strickland and the legislature shouldn't block Ohio from potentially recouping millions of dollars from lead-paint manufacturers, Attorney General Marc Dann yesterday sued 10 of the companies.

If Dann prevails, Ohio would become only the second state to win a judgment against manufacturers of lead paint, which was outlawed in 1978 because of lasting health consequences to children.

Dann acted yesterday rather than wait for the Ohio Supreme Court to decide whether Strickland acted legally when he vetoed a bill Jan. 8 that would prevent cities from suing companies that made lead paint. The law would have taken effect today.

Republican legislative leaders sued Secretary of State Jennifer Brunner on Feb. 2 in an attempt to overturn Strickland's veto, arguing that she lacked the authority to forward the bill to the governor on his first day in office. The Supreme Court -- all seven of its justices Republicans -- is scheduled to take up the case May 1. * * *

Most lead-paint lawsuits have been dismissed because the product was legal and because of the difficulty of identifying the responsible parties.

A Rhode Island jury last year found three paint companies guilty of creating a public nuisance, and a judge held the companies responsible for cleaning up contaminated homes. Experts say that cost likely will eclipse $1 billion. The paint companies have appealed to the Rhode Island Supreme Court.

What about Indiana? Could a nuisance action such as that brought in Rhode Island and Ohio be brought successfuly in Indiana, or has legislation already closed the door?

BTW, I remember years back when industry argued we did not need environmental laws - if there was a problem, it could be resolved using common law nuisance remedies. However, it seems that once nuisance actions began to be used successfully against poultry companies and lead paint manufacturers, legislation to limit nuisance actions began to be passed.

Indiana has a statute on nuisance actions - IC 32-30-6. It has provisions stating that various operations, including industrial operations, are not a nuisance. A bill before the General Assembly this year, SB 173, would provide that a court may award reasonable costs and attorney's fees to a forestry, agricultural, or industrial operation that successfully defends a nuisance action. The author is Senator Jackman, who is, I believe, a hog farmer. The bill appears to have died in the House this year.

Posted by Marcia Oddi on Sunday, April 08, 2007
Posted to Environment | General Law Related

Environment - Great Lakes Compact bill dies in Indiana Senate Committee

The ILB has had several entries on the proposed Great Lakes Compact, "a binding interstate and international agreement that would restrict additional large diversions of water out of the watershed emptied by the lakes and the St. Lawrence River." The most recent was Feb. 13th.

An AP story yesterday (which I picked up from the Houston Chronicle, not from any Indiana paper) reports:

TRAVERSE CITY, Mich. — The governors of the eight Great Lakes states worked for four years to write a plan that would protect their abundant water from being piped south to regions where booming populations face dwindling water supplies.

But the sharpest attacks on the proposed regional compact are coming not from the distant Sun Belt but from within the Great Lakes states themselves as the plan is submitted to legislators for ratification.

Some communities in the eight states say the compact's strict limits on water diversion could leave them high and dry. Critics fear a torrent of lawsuits.

And supporters say the whole deal could unravel over an Ohio lawmaker's concerns about private property rights and insistence on rewriting provisions.

Backers are confident the plan adopted by the governors in 2005 will win needed approval by all eight states and Congress, but acknowledge it probably will take a few more years.

The longer the delay, they say, the greater the risk of losing control over the lakes — which, with their connecting channels and the St. Lawrence River, hold nearly 20 percent of the world's fresh surface water. * * *

[G]randiose diversion schemes have surfaced, including one entrepreneur's 1998 proposal to send tankers of Lake Superior water to Asia.

That idea quickly evaporated. But it inspired the governors to devise the Great Lakes-St. Lawrence River Basin Water Resources Compact, which treats the lakes and associated groundwater as one shared system.

It outlaws new or increased diversions, with limited exceptions, and also requires each state to adopt a conservation plan and regulate its own water use in keeping with common standards.

The Canadian provinces of Ontario and Quebec weren't included because U.S. states can't make treaties with foreign nations, but they signed a similar, nonbinding agreement.

In February, Minnesota became first to ratify the compact, which also has cleared the Illinois House and is pending in the state Senate. Bills have been introduced in Michigan and Indiana but aren't close to enactment. The matter is drawing little attention in Pennsylvania, where only the state's northwest corner is inside the Great Lakes drainage basin.

Among the issues facing lawmakers is the status of communities inside a Great Lakes state but outside the lakes' natural watershed.

And where is Indiana's bill to ratify the compact? SB 515, "Great Lakes compact. Implements the Great Lakes - St. Lawrence River Basin Water Resources Compact.," died in first house committee, the Senate Committee on Energy and Environmental Affairs, without a hearing.

Posted by Marcia Oddi on Sunday, April 08, 2007
Posted to Environment

Ind. Law - Monitoring malpractice

Michael Schroeder of the Fort Wayne Journal Gazette writes today on Indiana's medical malpractice law. The subhead to the article is "By discouraging lawsuits and capping damages, Indiana’s system either controls costs – or it makes the injured suffer even more." The very long article begins:

Indiana is one of 20 states that use panelists, usually doctors, to judge other doctors and medical professionals accused of malpractice. The panels are not conducted in a public forum. In fact, there’s no requirement that the panelists ever meet.

The panels are part of a system designed to filter out frivolous claims. Filter it does: About two-thirds of panel opinions unanimously find no malpractice. And those decisions are key.

With an adverse panel opinion you can go to court, but you might not find a lawyer to take your case. A favorable ruling might get you a trial or settlement, but you’re entitled to no more than $250,000 from malpractice insurers. For more money you have to go through a special state fund that caps awards at $1.25 million, regardless of your medical bills. You would have no such limit in all but three other states.

For Hoosiers who claim malpractice, the result is a prolonged process – consistently among the longest in the U.S. – that discourages some patients from pursuing malpractice claims while making Indiana an attractive place for doctors to work.

Proponents say the system is doing what it’s designed to do: screening cases and keeping malpractice costs under control.

Between 2003 and 2005, nearly $254.4 million was paid out in malpractice payments in Indiana, according to the National Practitioner Data Bank, which maintains disciplinary and malpractice records for health professionals. That’s about $40.30 per resident, putting Indiana in the middle among all states. Per physician that is $17,550, placing the state 17th highest.

But many patients * * * and their attorneys believe the system favors doctors over patients.

A companion story today, also by Schroeder, begins:
A small percentage of doctors account for the majority of malpractice payments made in the U.S. and many go unpunished by their state medical boards.

While board officials say they take necessary action to protect the public – including emergency license suspensions – consumer group Public Citizen is calling for reform. That includes putting more non-doctors on boards.

In a report published in March, Washington, D.C.-based Public Citizen analyzed malpractice payment and disciplinary action figures from the National Practitioner Data Bank for 1990 to 2005. It found that 5.9 percent of U.S. doctors make 57.8 percent of medical malpractice payments. In addition, two-thirds of doctors who made 10 or more malpractice payments were not disciplined.

The Report referenced was published in January 2007 - access it here. In March, 2007, Public Citizen published a one-page "Quick Facts on Medical Malpractice Issues."

Posted by Marcia Oddi on Sunday, April 08, 2007
Posted to Indiana Law

Law - YouTube and the Law; Computer Crime prosecution

Tracy Warner, editorial page editor of the Fort Wayne Journal Gazette, has a good editorial piece today headed "YouTube and the LAW: Court case reflects conflict between Internet freedom, copyright law."

Good companion reads are the Dept. of Justice Computer Crime & Intellectual Property Section homepage, which includes its new online Manual, "Prosecuting Computer Crimes" (March 2007), AND the homepage of the Electronic Freedom Foundation.

Posted by Marcia Oddi on Sunday, April 08, 2007
Posted to General Law Related

Ind. Gov't. - Lake County treasurer removes discharged bankruptcies from property tax rolls

Joe Carlson of the NWI Times writes today:

When John Petalas became Lake County treasurer in October 2005, he could scarcely have known that thousands of taxpayers under his new jurisdiction were receiving tax breaks to which they were not entitled.

Petalas said he inherited a tax roll that contained about 12,000 properties with owners who did not pay taxes. And those parcels could not be sold at auction because they were protected by federal bankruptcies, he said.

After The Times spotlighted one of the delinquent properties -- $440,000 in unpaid taxes on a funeral home protected by an inactive bankruptcy -- Petalas said his staff made a list of every bankruptcy in the system and set out to confirm them all.

Petalas said thousands of the bankruptcies, perhaps 6,000 of them, had been discharged from court, meaning that all those people should have been paying taxes. Those bankruptcies have since been removed from the system, and tax bills are going out, he said.

"It's the first time anyone's done it," Petalas said. "We're going to do a quarterly update. ...The only way to keep it accurate is to do (the search for discharged bankruptcies) ourselves."

Petalas said he also is in the process of forming a new oversight board that will meet in public to discuss proposed settlements for large outstanding tax bills. In the past, such tax-settlement talks have mostly happened in private, he said.

The office also created new forms and a filing system to document how properties are included or excluded from tax sales, he said.

A related story, also today, also written by Joe Carlson, begins:
EAST CHICAGO | Year after year, a home and a business connected to an East Chicago political player have dodged property taxes without the threat of government seizure, county tax records show.

More than $470,000 in unpaid taxes have piled up on the two buildings since at least 1999, though they were shielded from property taxes using an old bankruptcy filed by a relative of political insider Eunice Roper in 1993, county records show.

But no more. If delinquent taxes on the properties owned by Roper and others could be eligible for the county's tax sale this summer if the back taxes are not paid, the county treasurer says.

In addition to an ongoing federal investigation into unpaid Lake County taxes, county Treasurer John Petalas said his office recently began cracking down on bankruptcies like those connected to Roper.

"There were a lot of things that we wanted to button down on, and that was one of them," said Petalas, who has served as treasurer since late 2005. "The first year was really hectic here."

The Times reported last year that Roper's business, the Allen Funeral Home, 3546 Guthrie St., had not paid any taxes at least since 1999, when computerized records began.

Some background to these stories can be found in this Carlson story from Dec. 17, 2006, that concludes:
Katona said it's similar to the situation that probably allowed the Allen Funeral Home in East Chicago to ring up $440,000 in taxes and penalties and yet avoid being sold to someone who could pay the tax.

County records show the funeral home has not paid any taxes since at least 1999. When asked how the outstanding taxes had built up for so long, a clerk in the county treasurer's office presented a copy of a 1992 bankruptcy filed by Andrew Suett, the person who legally owned the land the home was built on. Suett died in 1997.

Greg Jordan, a tax-collection consultant and former Marion County treasurer, said county officials have long been aware that people use the bankruptcy system to avoid paying taxes.

"If I was a good attorney, I could keep you in bankruptcy, and you wouldn't have to pay taxes for six or seven years," said Doug DeGlopper, a private attorney and former corporation counsel of Indianapolis. "I think it's pretty clear people have taken advantage of Chapter 13 bankruptcy."

Cathy Gross, the treasurer of White County and president-elect of the Indiana County Treasurers' Association, said she believes the loophole in the law was closed when the federal bankruptcy code was revised in 2005 to prevent repeat filers.

"I don't see the repeat filers, if you will, that we saw in the past," Gross said. "Although the system is not perfect, it's the best we've got."

For more, see the original story, from Dec. 10, 2006, "Six figures under", that begins:
As senior citizens across Lake County went scrambling for money to avoid losing their homes to tax sale this year, the Allen Funeral Home in East Chicago apparently had no worries.

The small business had a $440,000 bill for unpaid taxes and penalties, yet managed to avoid tax sale with one phone call to the county treasurer's office.

The arrangement was nothing new. The funeral home hasn't paid a cent of tax since at least 1999, avoiding tax sales by claiming protection through a bankruptcy, county officials say.

A Times review of county tax and federal court records has found the bankruptcy may have been used as a long-running tax dodge.

Posted by Marcia Oddi on Sunday, April 08, 2007
Posted to Indiana Government

Ind. Law - the Upcoming Week in the Indiana General Assembly

Here is the Evansville Courier & Press' Bryan Corbin's look at the week just past and the week ahead during the Legislature's 2007 session. Today's story is headed "Lawmakers facing tough negotiations."

Posted by Marcia Oddi on Sunday, April 08, 2007
Posted to Indiana Law

Saturday, April 07, 2007

Ind. Law - More on: Liquor wholesalers launch attack on IU Law professor

Updating this ILB entry from April 4th, the Bloomington Herald-Times has this comment today in its opinion column, "And another thing":

Some can teach as well as practice

Senate President Pro Tem David Long is also piqued about an IU professor’s efforts to prove a state law is unconstitutional.

Professor Alex Tanford represents winery owners who contend that the state’s wine shipping rules are unconstitutional. Long has said Tanford’s outside work, because his IU salary is paid by the state, is “totally inappropriate.” Seems like Long ought to be more worried about whether the state has an unconstitutional law on the books.

In the meantime, Tanford’s legal labors are probably making him an even better teacher of constitutional law at IU, to the benefit of his students.

Posted by Marcia Oddi on Saturday, April 07, 2007
Posted to Indiana Law

Not law but shocking - Don Imus' comments about the Rudgers' women's basketball team members

Al Campanis, born in 1916, is, according to Wikipedia (visited 4/7/07) "most famous for his position as general manager of the Los Angeles Dodgers from 1968 to 1987, from which he was fired as a result of a high-profile incident in which he made racially insensitive remarks during a live interview on April 6, 1987."

Campanis' infamous remarks took place on the late-night ABC News program Nightline, coinciding with the 40th anniversary of Jackie Robinson's Major League Baseball debut (April 15, 1947). Campanis, who had played alongside Robinson and was known for being close to him, was being interviewed about the subject. Nightline anchorman Ted Koppel asked him why, at the time, there had been few black managers and no black general managers in Major League Baseball. Campanis' reply was that blacks "may not have some of the necessities to be, let's say, a field manager, or, perhaps, a general manager" for these positions. Elsewhere in the interview he said that blacks are often poor swimmers "because they don't have the buoyancy." Koppel says he gave Campanis several opportunities to clarify ("Do you really believe that?") or back down on his remarks but Campanis dug himself in deeper with his replies. A protest erupted the next morning and he resigned two days later.
That was in 1987.

Jimmy "The Greek" Snyder, born in 1919, was, according to Wikipedia (visited 4/7/07), a sports commentator. From the entry:

On January 16, 1988, he was fired by the CBS network (where he was a contributor to the NFL Today program since 1976) after commenting to a reporter that African Americans were naturally superior athletes because they had been bred to produce stronger offspring during slavery: [According to Snyder] "During the slave period, the slave owner would breed his big black with his big woman so that he would have a big black kid—that's where it all started."
That was in 1988.

At the time, I thought both sets of comments were appalling, but also recognized that they were made by men who grew up in different times.

Today , in the year 2007, the NY Times has a long report on comments of Don Imus made last Wednesday morning. Imus was born in 1940. He prides himself on being part of today's scene. Here, from the Times, is what he said:

On Wednesday morning, Don Imus called the students who play for the Rutgers University women’s basketball team a bunch of “nappy-headed ho’s.”

Even for Mr. Imus, a nationally syndicated radio host who knows his way around an insult, it was a shocking remark, one that seemed to impugn both the physical and moral characteristics of a team composed mostly of black players.

What followed was a familiar dance for Mr. Imus and the media companies that profit from his ability to shock his way to big audiences: outrage, indignation and, eventually, the expression of deep regret.

And so on Thursday, Mr. Imus wondered aloud on his show what the big deal was, saying people should not be offended by “some idiot comment meant to be amusing.” * * *

Mr. Imus’s radio show is idiosyncratic in tone, ranging from thoughtful discussions of politics to the kind of coarse talk that would turn heads in a locker room.

“That’s some rough girls from Rutgers,” Mr. Imus said on Wednesday. “Man, they got tattoos ...” The program’s executive producer, Bernard McGuirk, agreed: “Some hardcore ho’s,” he said. Imus continued, “That’s some nappy-headed ho’s there, I’m going to tell you that.”

Later in the show, Mr. McGuirk characterized the women’s collegiate basketball championship Tuesday night, between Rutgers and the University of Tennessee, as “the Jigaboos versus the Wannabes.”

In a joint statement, Myles Brand, the president of the National Collegiate Athletic Association, and Richard L. McCormick, the president of Rutgers, said Mr. Imus’s attempt at humor represented an assault on human dignity. “The N.C.A.A. and Rutgers University are offended by the insults on MSNBC’s Don Imus program toward the 10 young women on the Rutgers basketball team,” they said. “It is unconscionable that anyone would use the airways to utter such disregard for the dignity of human beings who have accomplished much and deserve great credit. It is appropriate that Mr. Imus and MSNBC have apologized.”

But for Bryan Monroe, the president of the National Association of Black Journalists and the editor of Ebony and Jet magazines, Mr. Imus’s apology was not enough and called on journalists to boycott the show. “It was stunning, insulting and unbelievable that he went there,” Mr. Monroe said. “But his apology was too little, too late. No matter how contrite, his words hurt so many so deeply that after 40 years in the radio business, it is time for him to go.”

See also this from MediaMatters.

Posted by Marcia Oddi on Saturday, April 07, 2007
Posted to General News

Law - "This is not about me and my parking tickets" says Kentucky lawyer

Sheldon S. Shafer of the Louisville Courier Journal has this story today headed "Lawyer files suit over parking fines." Some quotes:

A Louisville attorney has filed a federal lawsuit challenging the city's collection of overdue parking fines because it doesn't send violators who haven't paid within seven days a certified letter, as required by state law.

"This is not about me and my parking tickets," said lawyer David Mour, who has 10 parking tickets and owes $250 in fines. "It's about government not following the law."

The city acknowledges that it sends violators a notice by first-class mail, which costs 39 cents, rather than a $2.79 certified letter.

"Taxpayers don't want us to waste millions of dollars sending out certified letters. We don't plan to change our policy, and we look forward to defending our position," said city spokesman Chris Poynter. "This is an issue of common sense."

Mour's suit, filed Thursday in U.S. District Court in Louisville, seeks an injunction to stop the city from collecting parking fines, usually $15, and a $10 late fee if the fine isn't paid within seven days.

The suit also asks that the city refund all the fines and late fees it has collected in the last five years from people who paid after seven days but weren't sent a certified letter. Poynter said that would amount to at least several million dollars.

Posted by Marcia Oddi on Saturday, April 07, 2007
Posted to General Law Related

Ind. Gov't. - More on "Ivy Tech's board broke state law, public access counselor rules"

Updating yesterday's ILB entry, the Indianapolis Star today has an editorial headed: "Private vote, public matter: Board violates trust." It begins:

Ivy Tech's board of trustees used an old trick to skirt Indiana's Open Door Law in selecting the community college's new president.

The trustees took an initial vote on their choice for president in a meeting closed to the public. Once the decision was made, they then staged a second, largely perfunctory, vote in public.

Indiana's public access counselor, Karen Davis, ruled this week that the trustees violated state law by voting on the job hire in the closed-door meeting. Davis' ruling was in response to a complaint filed by The Indianapolis Star.

In answer to its rhetorical question, "Why does it matter?" the Star answers: (1) "First, public officials need to follow the law." (2) "Second, the decision to hire Thomas J. Snyder as Ivy Tech's president was wrapped in controversy. * * * The public should have had the opportunity to ask questions and present arguments for or against candidates before the hiring decision was made." (3) "Third, while all public agencies need to honor the Open Door Law, it's especially important for those with missions as critical as Ivy Tech's."

Posted by Marcia Oddi on Saturday, April 07, 2007
Posted to Indiana Government

Ind. Courts - More on: Marion County Superior Court administrator resigns

Updating this ILB entry from last Monday, the Indianapolis Star has a brief item today reporting that:

A former Marion Superior Court judge will serve as the court's interim administrator after an official's abrupt resignation.

Richard Good, a Republican, was appointed by the court's executive committee, made up of two judges from each political party. He will start Monday and will serve until a new administrator is hired, said Beverly Phillips, a spokeswoman for Marion Superior Court.

Former court administrator Ron L. Miller quit March 30, effective the same day, and court officials have not stated a reason. Good retired as a criminal court judge in 2002 and since then has overseen cases periodically as a senior judge.

"His judicial background and knowledge of the Marion Superior Court will ensure seamless operations until a new administrator is in place," Presiding Judge Gerald Zore, a Democrat, said in a statement.

Posted by Marcia Oddi on Saturday, April 07, 2007
Posted to Indiana Courts

Friday, April 06, 2007

Ind. Decisions - More on possible appeal of Indiana voter ID case to Supreme Court

Rick Hasen of Election Law Blog writes more today on the pros and cons of appealing this particular voter ID case to the Supreme Court.

He has a number of interesting links, and states he intends to examine some of the district court documents re the question of "whether the plaintiffs presented a strong enough case on the evidence that the Indiana law would actually burden many voters." The documents are available here at the Mortiz Election Law site.

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to Ind. (7th Cir.) Decisions

Law - Kentucky attorney involved in fen-phen settlement scandal allegedly was a "ghost employee" in occupying a chair he endowed at Florida law school

A story today by Ron Matus of the St. Petersburg Florida Times is headlined "FAMU 'ghost professor' under scrutiny." Some quotes:

The state Attorney General's Office is reviewing a 23-month-old case involving an endowed chair and a "ghost employee" at the Florida A&M University law school.

Nearly two years ago, interim FAMU president Castell Bryant fired a high-powered Kentucky lawyer, Shirley Cunningham Jr., after Bryant said she found no evidence that he had done any work as an endowed chair at the law school.

Cunningham had given FAMU $1-million for the chair and then, in a highly unusual arrangement, was appointed to the chair and given a $100,000-a-year salary.

Two months ago, the state Department of Financial Services concluded Bryant was right, and recommended FAMU take steps to recover nearly $200,000 for "salary and benefits not earned."

FAMU trustees referred the matter to the Attorney General's Office, which began a review last week. * * *

Then-law school dean Percy Luney Jr., whom Bryant put on leave just days after firing Cunningham, mounted a vigorous defense by arguing that two of FAMU's former presidents - Frederick Humphries and Fred Gainous - made key decisions about Cunningham's appointment.

Cunningham's job required no teaching or research. Instead, FAMU documents showed, he and Luney agreed on a half-dozen projects, including developing a bar exam prep program, raising funds for scholarships and working toward establishment of an agricultural law center.

The Department of Financial Services concluded he didn't even do that. * * *

Cunningham, meanwhile, is the target of a grand jury investigation in Kentucky stemming from accusations he defrauded clients in a $200-million settlement involving the diet-drug fen-phen. He has been temporarily suspended from practicing law.

Cunningham declined to talk to Florida financial investigators about the chair affair. Neither he nor his attorney could be reached for comment this week.

A search of the ILB for the name "Shirley Cunningham" turned up this long list of entries involving the fen-phen scandal in Kentucky.

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to General Law Related

Ind.Decisions - Still more on "Gay-rights article stirs debate over student freedoms"

More today on Amy Sorrell, the faculty sponsor of a high school paper that published an opinion piece by a student urging tolenance for gay students. (For background, start with this ILB entry from March 31st.) An AP story reports today:

WOODBURN, Ind. (AP) -- A Woodlan Junior-Senior High School teacher facing termination over the content of a student newspaper article wants to know exactly why, which she will find out in a public hearing.

Amy Sorrell has been on paid leave since March 19, two months after an opinion column questioning intolerance toward homosexuals ran in The Tomahawk, the newspaper at the northeastern Indiana school. Sorrell was notified last week that the school board will consider canceling her contract on May 1 for insubordination, neglect of duty, substantial inability to perform teaching duties and other reasons in the best interest of the school district.

That led a representative for Sorrell to send a letter to superintendent Kay Novotny this week requesting the hearing. Andy Melin, assistant superintendent of secondary education and technology, said the hearing likely will be held at a special meeting of the school board before May 1.

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: Johnson County resident not fond of courthouse security measures

Re this ILB entry yesterday on a Johnson County resident unhappy with the new Courthouse security meanures, whose comments in a letter to the editor included "What do they think this is, the Pentagon?" -- readers of the Johnson County Daily Journal responded:

Better safe than sorry. I'm sure no one likes all the security, but in today's world it has to be that way. Just like the officers in Greenwood who were stopping that car for routine speeding. (Greenwood police officer Eric McElhaney) had no idea he was going to get shot. So I'm all for (the security measures). Everyone is protected. You read every so often that someone goes off in the courtroom and starts shooting. Hopefully that will never happen in Johnson County, but who would have thought (the police shooting) would happen in Greenwood. Morgan County and Bartholomew County have had security in place for some time.

Check out other counties. I think it would be a great idea for you to contact the officials of Johnson County to explain why they chose to implement a security system in the courthouse. As an employee of the county, I think it is a great idea to ensure the safety of the public, judges and other employees of this county. As most know, Johnson County has burglaries, threats and murders just like every other county in Indiana and around the country. Yes, all of the prisoners are escorted upstairs in handcuffs, but the definition of a criminal is not someone in stripes, handcuffs and shackles.

I would much rather have to walk around a building in the cold to be checked like everyone else instead of having someone be able to walk right in with some type of weapon. As for hiring an $8 security guard instead of a uniformed police officer, I would rather have a police officer who knows exactly what to do in an emergency situation. Maybe the individual who is so concerned about her purse being searched should check out the security measures of other counties. She might see that we are comparable if not less invasive.

World has changed. I’ve not personally visited the courthouse since the new security measures were put in place, but two thoughts come to mind regarding the writer’s comments. I don’t believe they thought there were issues at the Tippecanoe County Courthouse in Lafayette until someone tried to drive a car into it a few years ago. And memory fails me, but weren’t there explosives or guns involved in that occurrence? Also, didn’t they tighten security in Atlanta after someone shot a few people in court? It's sad to say, but it is not the same world it was a few years ago, no matter where you live.

And, as the ILB added yesterday, check out this list of earlier ILB entries on courthouse security to get an idea of how Indiana counties are addressing security issues.

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to Indiana Courts

Ind. Decisions - Oral argument before the 7th Circuit this week in challenge to Indiana's anti- Automated Dialing Machine law

A press release from Indiana Attorney General Steve Carter earlier this week announced:

The United States Court of Appeals for the Seventh Circuit in Chicago, IL will hear oral arguments in the case of FreeEats.com, Inc. vs. State of Indiana & Steve Carter, Indiana Attorney General (No 06-3900) on Tuesday, April 3, 2007.

Carter filed lawsuits last year against FreeEats.com, Economic Freedom Fund and American Family Voices in state court alleging violations of the state’s Automated Dialing Machine statute which requires automated calls to be preceded by a live operator who obtains the recipient’s permission prior to playing a pre-recorded message.

FreeEats.com has stated that it provides services to Economic Freedom Fund and unsuccessfully sought a federal-court injunction against the Attorney General for enforcing the statute in state court.

Carter prevailed in the Federal lawsuit and FreeEats appealed. Carter has received the support of 13 states in this effort to enforce the statute governing pre-recorded telephone calls. The states have filed an Amicus brief (Friend of the Court brief) with the Seventh Circuit Court in support of Indiana.

Here is a copy of the 25-page opinion of Chief Judge McKinney (SD Ind., 10/24/06). Some quotes:
This cause is before the Court on the following motions: Defendants’, State of Indiana ex rel. Steve Carter, Attorney General and Steve Carter, Attorney General (“the State” or “Indiana”), Motion to Stay and Motion to Dismiss, and Plaintiff’s, FreeEats.com, Inc. (“FreeEats”), Motion for Preliminary Injunction. FreeEats is seeking declaratory and injunctive relief, specifically a declaration that Indiana’s statute regulating automatic dialing machines is void and an injunction preventing Indiana from enforcing this law against out-of-state callers who wish to contact Indiana residents. The Court heard argument on the motions at an evidentiary hearing held on October 6, 2006, and ordered further briefing. The motions are now fully briefed and ripe for ruling.

For the reasons stated herein, the Court DENIES the State’s Motion to Stay, DENIES the State’s Motion to Dismiss, and DENIES FreeEats’ Motion for Preliminary Injunction. * * *

The Court finds that FreeEats has not demonstrated that is likely to succeed on the merits of any of its claims. Because the Court concludes that FreeEats cannot make the requisite showing on this factor, the Court need not discuss the other factors for a preliminary injunction because a party must satisfy all three threshold requirements before a Court will balance the interests of the parties and weigh the impact on public interest. FreeEats’ request for a preliminary junction must be DENIED.

Here is a link to the briefs filed in the appeal, including the amicus brief signed by 13 states.

And here is a link to a recording of last week's oral arguments before the three-judge panel

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Still more on: Evansville lawyer sentenced in misdemeanor case

Updating this ILB entry from March 30th, Kate Braser of the Evansville Courier & Press reports today:

An Evansville lawyer accused of having the ingredients for a meth lab in his law office is asking to move his case outside Vanderburgh County.

In a motion for a change of venue filed Wednesday in Vanderburgh Superior Court, Verdelski Miller, who is representing accused attorney Brad Happe, cited media publicity as the reason the case should be tried in another county. * * *

"As a result of the defendant's preliminary charge, substantial media attention has been given to the case to the point where the defendant is unable to select an impartial jury," Miller wrote in his motion. "Every major Evansville media outlet has reported on the facts of this case as that particular media outlet has interpreted them."

Miller said because Evansville media markets reach counties in three states, "It is now impossible to select a jury in Evansville's news market that has not been predisposed to the matter herein."

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending April 6, 2007

There is no transfer list this week.

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to Indiana Transfer Lists

Ind. Courts - U.S. Attorney Joseph Van Bokkelen's confirmation hearing to become a U.S. District Court judge is next Wednesday

Andy Grimm of the Gary Post-Tribune reports today:

HAMMOND -- U.S. Attorney Joseph Van Bokkelen will go before the Senate Judiciary Committee on Wednesday for a confirmation hearing to become a U.S. District Court judge.

The hearing includes a statement by Van Bokkelen, who already has filed his responses to a questionnaire and undergone a confidential FBI background check, and a question-and-answer session with the 19 committee members.

President Bush nominated Van Bokkelen to fill a vacancy in the Northern District Court created when Judge Rudy Lozano takes on senior status with the court in July. U.S. Sen. Richard Lugar, R-Indiana, has stated his support for Van Bokkelen, a Highland resident.

There is no timeline for the committee to confirm Van Bokkelen, said Judiciary Committee spokeswoman Tracy Schmaler.

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to Indiana Courts

Ind. Gov't. - "Ivy Tech's board broke state law, public access counselor rules

From a side-bar in today's Indianapolis Star report by Andy Gammill:

Indiana law says that, with only a few specific exceptions, "all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them."

The law goes on to say that "a final action must be taken at a meeting open to the public."

From the story:
Ivy Tech Community College's board broke state law by picking a president during a closed-door meeting, Indiana's public access counselor ruled Thursday.

Karen Davis wrote in a formal opinion that the board that oversees Ivy Tech was not allowed to take final action during the private executive session but did just that in taking two votes.

Ivy Tech said in a statement that it disagrees with Davis' interpretation of the meeting and her reading of the law.

The trustees "did not take final action on the selection of a president in executive session," Ivy Tech said. "The college and the trustees approached the executive session with utmost caution with regard to their obligations under the Open Door Law."

Davis said Ivy Tech's filings with her made clear that improper votes were taken, even if the board referred to them as determining a "consensus" instead of as a formal vote. She added, however, that she believed Ivy Tech didn't mean to break the law. * * *

Stephen Key, general counsel to the Hoosier State Press Association, said Ivy Tech's vote in private robbed the public of its right to follow government decisions.

"It goes to the heart and intent of the Open Door Law that public agencies are accountable to the public that funds their activities," he said. "The majority of public officials want to do what's right. This kind of obvious violation of the law is unusual." * * *

The board's attorney noted in his filing with Davis that the board took great care to research the complexities of the Open Door Law and court cases interpreting it.

Davis, who is appointed by the governor to help the public understand the state's access laws, acknowledged the careful attention but said the board still got it wrong.

"It is clear the trustees undertook to understand the Open Door Law during the process of appointing a new president," she wrote. "Nevertheless . . . the board of trustees of Ivy Tech Community College of Indiana took final action during the executive session, in violation of the Open Door Law."

The Star story today contains a link to a faxed and scanned version of the PAC opinion. Beginning on p. 9 of the posting is a letter on Ice Miller stationary from Richard A. Smikle that begins "We represent Ivy Tech Community College" and concludes on p. 14 that "no violation of the Open Door law occurred." Smikle's letter relies on a Court of Appeals opinion, Baker v. Town of Middlebury (2001) (transfer denied 4/19/02). The PAC addresses Baker v. Middlebury in her opinion, beginning at the bottom of p. 5 of the posting.

Posted by Marcia Oddi on Friday, April 06, 2007
Posted to Indiana Government

Thursday, April 05, 2007

Ind. Decisions - More on: Voter ID decision featured in new law journal article

This March 29th ILB entry quoted from the summary of Prof Rick Hasen's new law journal article, The Untimely Death of Bush V. Gore, where "Part III concludes with an examination of Judge Posner's troubling Seventh Circuit opinion in Crawford v. Marion County Election Board upholding Indiana's voter identification law against a dissent by Judge Evans."

Earlier today the 7th Circuit denied a petition for rehearing en banc - see ILB
entry here
.

This evening Hasen speculates in his Election Law Blog that the Supreme Court will grant cert to this Indiana case "if the plaintiffs decide to petition for cert.." The latter seems likely.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Ind. (7th Cir.) Decisions

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

The Indiana Judicial Center has posted its reports on bills of interest to the Judiciary in play this week in the General Assembly. Access them here.

The report reminds us that: "Committee meetings in the General Assembly are now complete. The last day for third readings is Tuesday, April 10th for the Senate and Wednesday, April 11th for the House."

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Indiana Courts

Ind. Gov't. - State looking for independent hearing officers and mediators

Unlike other items on the State's "Solicitation Opportunities Page", however, no other details are provided for Request for Information 7-96.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Indiana Government

Indiana Courts - Security plans for Cass County Government Building

A story in the Logansport Pharos-Tribune reports:

Staffing for the new security equipment at the east entrance of the Cass County Government Building is being considered, Cass County Commissioner Dave Arnold said Wednesday.

Arnold said no officers will be hired for the one full-time and two part-time positions until the county council approves the funding. Council members do not meet again until April 20. If the county receives state approval for the positions, officers could be in place by May 1, he said. At the latest, new officers will be operating the equipment by May 15.

At their Monday meeting, the commissioners adopted a new building security policy that will close off the west entrance as an outdoor access. It will continue to be used as an exit. The public will only be able to enter the building through the Fourth Street doors in the parking lot.

The security policy requires wheelchair-bound visitors to the building to be scanned with X-ray wands. Cellular phones and pagers will be permitted in the building but may not be used in the courtrooms or jury rooms without authorization from a judge. Knives, scissors and other objects that could be used as a weapon, as well as aerosol containers, also will not be allowed.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Indiana Courts

Environment - Vermont may be first state to regulate outdoor wood fired boilers

From the Rutland, Vermont Herald today:

MONTPELIER — Vermont is poised to become the first state in the country to adopt emission regulations for outdoor wood boilers following the approval of a major new environmental rule by a legislative committee Wednesday.

The Vermont Legislature's Administrative Rules Committee voted 6-2 to adopt the new regulation, which sets an emission standard lower than the voluntary limit adopted by the Environmental Protection Agency.

Sen. Mark MacDonald said the new law will ensure that outdoor boilers are cleaner and more efficient in the future.

"The state believes that this standard is achievable for the industry," MacDonald said. "We've listened to the concerns of manufacturers and their lobbyists, but this new rule will result in cleaner-burning boilers."

Under the new law, outdoor wood boilers in Vermont will be restricted to emitting up to 0.44 pounds of particulate matter — the soot and other items released from the process — per million BTU heat input.

State environmental officials said boilers now in use across the state release about three to four times as much particulates in the air. Earlier this year, the Environmental Protection Agency issued voluntary limits for new boilers at 0.6 pounds. * * *

Outdoor boilers now in use across the state would be grandfathered in, Wennberg added. And dealers with older boilers can continue selling them as long as the stock was purchased before Oct. 1, he explained.

"We're not looking to ban them. We're not looking to take these away from people already using them," Wennberg said. "But it was clear that something needed to be done to regulate these messy and dirty boilers."

Opponents of the change did lobby hard using the mantra that the new law was a first step toward a complete ban. Northwest Manufacturing Inc., a Minnesota manufacturer of the boilers, ran advertisements this week in newspapers proclaiming that, "Your right to burn wood may end this Wednesday!"

Chuck Gragner, the owner of the 120-employee company, said he was worried that the law would have a domino effect and inspire other states to pass similar restrictions. He worried that change could hurt his business.

Here is a list of some earlier ILB entries on wood fired outdoor boilers.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Environment

Ind. Courts - Daviess Circuit Court: Interviews begin for judge’s replacement

From the Washington Times-Herald today, Nate Smith writes:

Three area attorneys are vying for the gavel as interviews started this week to replace retiring Daviess Circuit Court Judge Robert Arthur.

Washington-based attorneys Greg Smith and Jeff Norris and Odon-based counselor Rita Baldwin have submitted their names to Indiana Gov. Mitch Daniels to fill out the remainder of Arthur’s term.

Daniels’ office confirmed Friday the three candidates will be interviewed in Indianapolis. Deadline for the applications was March 16.

“We expect that an appointment will be made before Judge Arthur’s retirement,” Jane Jankowski, Daniels’ press secretary said. * * *

Arthur is retiring after 24 years on the bench. He was appointed after his father, James, retired in 1982. Whoever is appointed to finish Arthur’s term, it will be the first time in 37 years that someone other than an Arthur will preside in Circuit Court.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Indiana Courts

Ind. Courts - 20 candidates apply to succeed Judge Sullivan

From a press release today:

Twenty candidates have applied to fill an upcoming vacancy on the Indiana Court of Appeals. Effective August 1, 2007, Judge Patrick Sullivan is retiring from the court after nearly 38 years of service.

The Judicial Nominating Commission announced this morning that the following judges and attorneys fkom Indiana's Second District have applied:

1. Hon. Cynthia J. Ayers, Marion Superior Court (Civil Div. 4)
2. Mr. Peter A. Bisbecos, Camel
3. Ms. Susan E. Boatright, Indianapolis
4. Hon. Cale J. Bradford, Marion Superior Court (Civil Div. 1)
5. Hon. J. Richard Campbell, Hamilton Superior Court 4
6. Mr. David E. Cook, Marion County Chief Public Defender
7. Mr. William R. Fatout, Indianapolis
8. Mr. Robert L. Hartley, Indianapolis
9. Mr. Randall C. Head, Logansport
10. Hon. Reuben B. Hill, Marion Superior Court (Criminal Div. 18)
11. Mr. Briane M. House, Indianapolis
12. Hon. William J. Hughes, Hamilton Superior Court 3
13. Hon. Kenneth H. Johnson, Marion Superior Court (Civil Div. 2)
14. Mr. Donald D. Levenhagen, Indianapolis
15. Mr. David A. Locke, Lafayette
16. Hon. Gary L. Miller, Marion Superior Court (Civil Div. 5)
17. Hon. Robyn L. Moberly, Marion Superior Court (Civil Div. 12)
18. Mr. Bryce Owens, Pendleton
19. Ms. Rebecca A. Trent, West Lafayette
20. Hon. William E. Young, Marion Superior Court (Criminal Div. 2)

The Commission's chair, Chief Justice Randall T. Shepard, along with the Commission's six other members, will conduct public interviews of the candidates on April 23 and April 24. After second interviews of semi-finalists on May 11, 2007, the Commission will send to the Governor the names of the three most highly-qualified candidates. The Governor will appoint Judge Sullivan's successor within 60 days of the nominations.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Indiana Courts

Law - General Counsels of several national firms not licensed in their state [Updated]

An interesting article today from Elizabeth Amon of Corporate Counsel. It begins:

Companies expect their general counsel to pay attention to all the little details, but some legal chiefs have fallen behind in keeping their own affairs in order. A survey by Corporate Counsel of the Fortune 250 found eight GCs who are not properly licensed in the state in which they work.

This group includes Vernon Baker II of ArvinMeritor Inc.; Michael DeBacker of Dana Corp.; Robert Sloan of Entergy Corp.; Siri Marshall of General Mills Inc.; Arthur Hipwell of Humana Inc.; Terrance Carlson of Medtronic Inc.; Todd DuChene of Solectron Corp.; and John Donofrio of Visteon Corp.

Of these eight, Hipwell has no license at all, while the rest don't have the special license required by their states for in-house lawyers who haven't taken the local bar exam. All but DuChene said that they were in the process of obtaining proper licensing. In each instance the local state bar or board of examiners could not verify if or when the lawyer had applied for a special license.

In interviews, the general counsel had various explanations for why they weren't properly licensed. "You got me," jokes ArvinMeritor's Vernon Baker II, who works at the automotive supplier's Troy, Mich., headquarters. Like several other GCs, he says that he just didn't know about the licensing rule in his current state of residence. Baker is licensed in Pennsylvania, but when he joined ArvinMeritor in 1999, he was living in New Jersey, which at the time didn't require additional licensing for in-house counsel who were admitted in another state.

From later on in the story:
Licensing requirements vary from state to state, and none of the GCs in Corporate Counsel's survey would be required to obtain a special permit if they worked in, say, Washington, D.C., which, like 24 states, doesn't require in-house counsel to obtain a local license if they're licensed elsewhere. According to the American Bar Association, 26 states do require a special license for company lawyers.

Finding out whether a state requires a special license can sometimes be difficult. Take Maryland, for example. Officials at the state's bar association, the board of law examiners, the attorney grievance commission, the court of appeals clerk's office and a legal ethics emergency hotline were all unable to answer the question of whether Maryland demands a limited license -- or else answered incorrectly that it does. Finally, a bar counsel at the attorney grievance commission was able to confirm that, according to Maryland law, in-house lawyers are not required to have any kind of licensing in the state.

What about Indiana? I wasn't able to find a satisfactory answer in a brief seach. I recall discussion at one time of providing a special license for corporate counsel in Indiana, but can't find anything now. Several Rules of Professional Conduct appear relevant, including 5.5-5.7. Perhaps a reader can supply more information.

[Updated 4:15 pm] A reader has supplied the needed information, to be found in the Rules for Admission to the Bar and the Discipline of Attorneys, Rule 6 - Admission on a Foreign License, Section 2. Business Counsel License. (Last amended Sept. 30, 2004, effective Jan. 1, 2005.)

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to General Law Related

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

For publication opinions today (2):

Jason J. Green v. Laura S. Green - - "Jason Green appeals the trial court’s denial of his petition to modify custody of his son, B.G. Jason raises several issues on appeal, one of which we find to be dispositive: whether the trial court erred in denying Jason’s motion for change of venue from the judge. Finding that the trial court should have granted the change of judge, we reverse the judgment of the trial court and remand this cause for the selection of a new judge and a new trial on Jason’s petition to modify custody of B.G. * * *

We acknowledge that our resolution of this case will extend this nearly-two-year-long custody fight, but Trial Rule 76(C)(3) establishes Jason’s right to a change of judge. When the trial court granted a new trial, it should have granted Jason’s motion for change of judge. Because it did not, we remand this cause to the trial court for the selection of a new judge and a new trial on Jason’s petition to modify custody of B.G. Reversed and remanded with instructions."

Michael Gayden v. State of Indiana - "Michael Gayden appeals his convictions for possession of a firearm by a convicted domestic batterer as a class A misdemeanor and criminal mischief as a class B misdemeanor. We affirm."

The decision includes an interesting footnote:

[6] We recognize that by applying the U.S. Supreme Court’s guidelines regarding testimonial vs. non-testimonial statements in 911 recordings, we have reached a counterintuitive result by concluding that Epperson’s identification of Gayden on the 911 recording was “non-testimonial” for purposes of the Sixth Amendment but that at least some portion of the recording was properly admitted as the State’s only substantive evidence against Gayden in this case. An artificial construct of the Supreme Court, the testimonial/ non-testimonial construct is somewhat ironic in this context. However, we are left with the irony, pending further enlightenment.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Omar G. Burton v. State of Indiana (NFP)

Grover Whitinger v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Ind. App.Ct. Decisions

Law - More on standing and the global warming decision

A finding that Massachusetts had standing to complain about EPA's failure to regulate greenhouse gases was essential to the Supreme Court's decision this week in Massachusetts v. EPA. Tony Mauro of Legal Times writes today about how a "Century-Old Case Play[ed] Role in Justice Kennedy's Global Warming Swing Vote." The case is, as Mauro writes:

Georgia v. Tennessee Copper Company, a completely obscure decision written by Justice Oliver Wendell Holmes Jr. just shy of a century ago. Holmes ruled that Georgia had standing to complain about the Tennessee company's noxious emissions that resulted in a "wholesale destruction of forest, crops and orchards" in Georgia land just across the border from Tennessee.

"The case has been argued largely as if it were one between two private parties; but it is not," Holmes wrote. "This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain."

That precedent was the key to Stevens' finding that Massachusetts -- which complains that global warming is shrinking the state's coastal land mass -- had standing to complain about the EPA's failure to regulate greenhouse gases. Roberts complained in a footnote that Tennessee Copper has "nothing to do with" the standing issue, and Stevens makes the link in a footnoted reply.

What does the squabble have to do with Kennedy? It turns out that none of the dozens of briefs in the global warming case even mentioned Tennessee Copper. But Kennedy did, during oral arguments last November. He asked assistant Massachusetts Attorney General James Milkey what his best case for state standing was, and while Milkey was pondering an answer, Kennedy suggested Tennessee Copper might be the one. [ILB - see p. 15, line 9-12 of the official transcript.]

That mention must have sent Stevens and Roberts to the library in search of the best way to spin the Tennessee Copper case to win Kennedy over. Stevens won the beauty contest, Kennedy voted his way, and the rest is history.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to General Law Related

Ind. Courts - Johnson County resident not fond of courthouse security measures

The Johnson County Daily Journal had this letter from "a reader" this morning:

Just wondering if you were aware of the new heavy security measures they have recently put into effect at the Franklin courthouse. My young son and I had to walk all the way around the large building this morning (Wednesday) in the 39 degree wind to find an unlocked door. Only one entrance is now open to the public, plus one handicapped ramp. Once inside the doors of this "public" building, we had to put all metal items in a dish and walk through X-ray machines. They even searched my purse! I'm glad my son didn't have any Hot Wheels cars in his pockets, or he might have been arrested!

What do they think this is, the Pentagon? At both that entrance and the handicap entrance (where we chose to exit due to it being a bit closer to our parked car), two uniformed officers were on duty to check us out. … What kind of threat could possibly be looming at the Johnson County Courthouse to warrant this kind of heightened security? I am all for ensuring the safety of the courthouse workers, and I understand that prisoners are regularly escorted upstairs to the courts, but these prisoners are handcuffed, unarmed and accompanied by at least one armed officer, I'm sure.

Why does the general public have to suffer all these inconveniences? The courthouse should be a public building, open and welcoming to all residents who need to conduct business there. I can only imagine my handicapped mother or elderly grandmother's reactions if they had to walk all the way around the building in order to visit the voter registration office as I did.

And just how much is this extra security costing us taxpayers? Just something else to add to our tax burden. … I lived in Atlanta, Ga., following the Sept. 11 attacks, and even that big, important city didn't get this paranoid! Trust me, there's not a terrorist on the globe that knows of or could care less about Franklin, Ind. Just put an $8 per hour security guard/greeter with a stun gun at each entrance, and forget the high-tech invasion of privacy, please. This is Franklin not Fort Knox!

Here is a list of earlier ILB entries on courthouse security.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Indiana Courts

Ind. Decision - 7th Circuit denies en banc review of Voter ID decision

In Crawford, William v. Rokita, Todd, a 7-4 ruling, the Order reads:

On January 17, 2007, plaintiffs-appellants filed a petition for rehearing with suggestion for rehearing en banc, and on February 6, 2007, defendants-appellees filed an answer to the petition. A vote of the active members of the court on whether to grant rehearing en banc was requested and a majority of the judges have voted to deny the petition.OE Judge Wood’s opinion dissenting from the denial of rehearing en banc is appended.

The petition is therefore DENIED.

A 5-page dissenting opinion, authored by Judge Wood and joined by Judges Rovner, Evans and Williams, includes the following:
The state’s justification for the new voting requirement is voter fraud—specifically, the problem of fraud on the part of people who show up in person at the polling place. Yet the record shows that the existence of this problem is a disputed question of fact. It is also a crucial question for the inquiry that Burdick demands, because if the burden on voting is great and the benefit for the asserted state interest is small as an empirical matter, the law cannot stand. This creates, as FED. R. CIV. P. 56 puts it, a “genuine issue of material fact” that may not be resolved in favor of the state in ruling on the state’s own motion for summary judgment. In fact, it appears that no one has ever, in Indiana’s history, been charged with voter fraud. Burdick requires an inquiry into the “precise interests put forward by the State as justifications for the burden imposed,” but in this case, the “facts” asserted by the state in support of its voter fraud justification were taken as true without any examination to see if they reflected reality.
The dissent points out that:
Recent national election history tells us, to the contrary, that disenfranchising even a tiny percentage of voters can be enough to swing election outcomes. Christine Gregoire captured the gubernatorial race in Washington State in 2004 with a margin of only 129 votes. See http://en.wikipedia.org/wiki/Washington_ gubernatorial_election,_2004 (visited March 22, 2007). Representative Vern Buchanan of Florida’s 13th Congressional District won by only 329 votes. See http://en.wikipedia. org/wiki/Florida%27s_13th_congressional_district (visited March 22, 2007). Senator Jon Tester of Montana won his seat by a slightly larger margin—2,847 votes—but hardly a gap that implies that small numbers do not matter. See http://en.wikipedia.org/wiki/Jon_Tester (visited March 22, 2007). And surely no adult now living in the United States needs to be reminded of how close the 2000 Presidential race was.
Here is a long list of earlier ILB entires on voter ID.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "IHSAA taking back home-court advantage"

Brian Hedger writes today in the Gary Post Tribune:

Having been defeated over eligibility rulings in courts across the state, the Indiana High School Athletic Association is fighting back.

The association is now requiring student-athletes who wish to sue the IHSAA to do so in Marion County -- where the IHSAA is based.

Is this intended as a deterrent to suing the IHSAA?

"Well, I would hope so," IHSAA commissioner Blake Ress said on Wednesday. "But only time will tell." * * *

Locally, the case of 6-foot-11 East Chicago Central transfer Angel Garcia is still awaiting a decision by Lake Superior Judge Elizabeth Tavitas as to whether the final leg of his IHSAA suit will be moved to Marion County.

Garcia transferred to ECC from an Illinois prep school and was initially given partial eligibility. He sued, won and then helped lead the Cardinals to a Class 4A state title on March 24 -- a day after the Executive Committee meeting in which Ress discussed the wording change to a consent and release certificate all athletes and their parents are required to sign.

The change reads as follows: "I consent to the exclusive jurisdiction and venue of courts in Marion County, Indiana for all claims and disputes between and among the IHSAA and me, including but not limited to any claims or disputes involving injury, eligibility or rule violation." * * *

"Although I am not surprised, I'm disappointed that the IHSAA is telling student athletes they must travel to Indianapolis from any end of the state to file litigation if they disagree with their decisions," said Michael Jasaitis, one of Garcia's attorneys. "I anticipate this provision may be challenged down the road."

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Indiana Courts

Ind. Decisions - "Bail bondsman must pay damages"

The NWI Times has a story today about the Court of Appeals ruling Tuesday in Herbert Smith, Jr. and Charles Zacek v. Lake Co., Lake Co. Sheriff, and Clerk of Lake Superior Court (see ILB entry here). Some quotes:

The Indiana Court of Appeals ruled Tuesday that Herbert Smith, a Gary bail bondsman, must pay damages for filing what they say are "piecemeal attacks on Indiana's bail scheme."

Matthew LaTulip, the attorney representing Lake County, said it's important to note that the Indiana Court of Appeals "doesn't order sanctions lightly."

The court ordered Smith to pay the county's legal fees incurred while fighting the several cases Smith brought against it challenging the county's bond system.

Smith has not won any of the cases, and the Court of Appeals message to Smith is that the matter has been decided and it's time to stop, LaTulip said.

The 14-page decision states damage should be assessed when "an appeal is replete with meritless, bad faith, frivolity, harassment, vexatiousness, or purpose of delay."

Smith said the law "clearly states one way and courts are acting in another.

"I understand it's difficult for the courts to rule against themselves," Smith said. "This ruling gives the message: 'Little people go away.' "

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Ind. App.Ct. Decisions

Environment - More on: US Supreme Court delivers two important Clean Air Act decisions

Updating this April 2 ILB entry, there have been a large number of reactions and analyses written already this week about both of the Court's Clean Air Act decisions on Tuesday. Scroll through SCOTUSblog entries for the past few days to find both the published aritcles and the online reactions and analysis pieces of legal scholars.

Here is an example, "A View from the Petitioning States," by Gary Feinerman, Solicitor General of Illinois. Illinois was one of the 12 State petitioners in Mass. v. EPA.

See also this Christian Science Monitor wrapup today of published opinions, headed "White House expected to feel the heat from Supreme Court's ruling on global warming."

Re the Duke Energy opinion, examples from SCOTUSblog include "A Few Adoring Comments on Duke Energy," written by Sean Donahue of Donahue & Goldberg, LLP, who successfully argued the case for the petitioners, and from the other side, Paul Gutermann, head of Akin Gump’s Energy, Land Use and Environmental practice.

Posted by Marcia Oddi on Thursday, April 05, 2007
Posted to Environment | General Law Related

Wednesday, April 04, 2007

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

For publication opinions today (5):

Andre Goodman v. State of Indiana - "The trial court sentenced him to an aggregate sentence of ten years executed to be served in the Department of Correction. Upon appeal, Goodman challenges the sufficiency of the evidence to support his convictions and the propriety of the court’s enhancing his sentence based upon the habitual offender allegation. We affirm in part, reverse in part, and remand." A dissent writes: "I vote to affirm the habitual offender enhancement of Goodman’s sentence."

Donald Lightcap, Jr. v. State of Indiana - "We conclude that the trial court did not violate Lightcap’s due process rights in incorporating testimony and evidence from his previous criminal trial before the same trial court, and we further conclude that Lightcap has waived his claim of insufficiency of evidence by failing to provide this court with an adequate record."

Mark Kazmier v. State of Indiana - "Specifically, Kazmier argues that (1) there was insufficient evidence to support his conviction, and (2) the trial court’s domestic violence determination constituted judicial factfinding in violation of the rule announced in Blakely v. Washington.2 Finding that the evidence was sufficient and that the domestic violence determination did not violate Kazmier’s Sixth Amendment rights under Blakely, we affirm the judgment of the trial court."

State of Indiana v. Dean Taylor - "The State appeals from the Gibson Circuit Court’s judgment on the evidence. Dean Taylor (“Taylor”) was charged with Class D felony possession of methamphetamine and Class A misdemeanor possession of marijuana. Upon review of the record, we conclude that the trial court erroneously granted Taylor’s motion for judgment on the evidence, but we affirm the trial court’s judgment because double jeopardy precludes us from vacating the judgment and remanding for a new trial."

State of Indiana v. Jacob Robinson - "Specifically, the State argues that the trial court erred in determining that a detainer had been properly lodged against Robinson under the Interstate Agreement on Detainers3 (IAD). As a result, the State contends that the trial court erroneously concluded that Robinson could not be prosecuted because of the 180-day time limitation under the IAD. Concluding that the trial court erred in granting Robinson’s motion to dismiss because a proper detainer had not been lodged against him that would trigger the 180-day time limitation, we reverse and remand with instructions that the trial court reinstate the charge."

NFP civil opinions today (10):

In the Matter of B.M., Quentin Cole, Jr. v. Marion Co. Dept. of Child Services [This is NFP]

Invol. Term. of Parent-Child Rel. of C.K., J.K., M.K., S.K., & L.K., Anthony McNary, et al v. Marion Co. Dept. of Child Services and Child Advocates (NFP)

In Re: T.M.; Ray Lothamer v. DeKalb County Department of Family & Children (NFP)

Ann Marie Agostino n/k/a Ann Marie Sabino v. Frank James Agostino (NFP)

Jazzlyn Taylor, Eric Taylor and Gail Taylor v. Samuel L. Jacobs, and William W. Hurst (NFP)

Shirley Ann Minks v. Glenn Douglas Minks (NFP)

Paternity of N.S.L.; Karen S. Gramling v. Steven A. LeFebvre (NFP)

Oscar Guillen, Sr. v. Mr. Huckins & Mr. Dorsey (NFP)

Town of Argos v. Harold & Verna Stevens (NFP)

Brian W. Catt v. M. Skeans & C. Skeans (NFP)

NFP criminal opinions today (9):

Thomas McDonnell v. State of Indiana (NFP)

David Drumm v. State of Indiana (NFP)

Carla Middlebrook v. State of Indiana (NFP)

James R. Almy v. State of Indiana (NFP)

Jay Messer v. State of Indiana (NFP)

Charles Snow v. State of Indiana (NFP)

David Glasgow v. State of Indiana (NFP)

Earnest Bell v. State of Indiana (NFP)

Derek Hardy v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 04, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one today

In Barricks, Lena v. Eli Lilly & Co. (Allen Sharp, Judge), a 9-page opinion, WILLIAMS, Circuit Judge, writes:
Alone among the thirty or so employees in her department, Lena Barricks did not receive a raise in 2003. Barricks, who had worked as a chemical operator at Eli Lilly and Company (“Lilly”) since 1977, thought that discrimination was behind this, so after retiring in 2004 she sued her former employer for age and gender discrimination. The district court granted summary judgment to Lilly and Barricks appeals. Because Barricks cannot show that Lilly’s stated reason for declining to give the raise—her performance—is a pretext for discrimination, we affirm the judgment of the district court.

Posted by Marcia Oddi on Wednesday, April 04, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - Liquor wholesalers launch attack on IU Law professor

Lesley Stedman Weidenbener of the Louisville Courier Journal has a story today headlined "IU reviews professor's outside legal work: Some have criticized role in winery lawsuits." Some quotes from the story:

Indiana University has opened an internal investigation to determine if one of its law professors improperly used state resources or time for lawsuits aimed at allowing winery shipments across the country.

Professor Alex Tanford, who teaches at IU's Bloomington campus, said he has worked within university rules and said his outside litigation work for small wineries and people seeking to buy wines from them has enhanced his teaching.

But critics -- including some legislative leaders -- are concerned that his focus on the lawsuits may have come at the expense of his job, and they say it's not fair that his suit against the state could result in Indiana taxpayers paying his legal fees.

"I think it's totally inappropriate for a state employee to be pursuing things on behalf of an outside client and trying to get paid on the state taxpayers' nickel to do it," said Senate President Pro Tem David Long, R-Fort Wayne. * * *

Long, who was active in legislative efforts to change Indiana's winery law to comply with the Supreme Court decision, told IU School of Law Dean Lauren Robel last year he was concerned about Tanford's actions and had questions about whether he was working on state time.

But a packet of information that the Wine and Spirits Wholesalers of Indiana -- one of Tanford's opponents in court -- recently provided to an IU lobbyist led Robel last week to request the internal audit.

"First, they claim that Professor Tanford used state resources to pursue this litigation," Robel wrote to the university's internal audit department. "Second, they appear to claim that Professor Tanford violated conflict-of-commitment rules at the university."

Those rules spell out the kinds and amount of non-university work in which professors can engage.

The Indiana wholesalers group opposes deregulation of alcohol sales and is fighting Tanford, a wine enthusiast who wants small wineries to have the right to ship their products to customers nationwide.

More from the story:
Tanford said in an interview with The Courier-Journal last week that any assertion he hasn't kept up with his responsibilities as a professor is "ridiculous." He said Robel and other school officials have been aware of his work and that his time has not exceeded that allowed by the university for outside activities.

According to the IU academic handbook, professors are allowed to spend 20 percent of their time -- essentially one day a week -- pursuing "professional, but not necessarily university, activities."

Tanford said he keeps detailed time records and can prove he has not overcommitted to outside work. He said he's provided information about his work in annual reports he makes to the university and has "done nothing in secret."

"No one ever raised a question or suggested that I'm doing anything inappropriate, wrong, illegal in violation of my contract," Tanford said.

Tanford said he uses his own computer and cell phone for outside work. He acknowledged he has sometimes had to cancel classes but said his lectures are available on the Internet and that he builds in extra class days to cover cancellations.

Critics point to a Web site on the IU server that provides details of the wine cases.

And Daniel Meyer, general counsel for the Wine & Spirits Wholesalers of Kentucky that is opposing Tanford's case in the state, said he was surprised to get correspondence in IU envelopes.

Here is the "website" - last updated in 2005. I've often wished it was more current. Re the use of "IU envelopes" - perhaps Prof. Tanford should go to Staples and get some envelopes printed up, but his return address would still be Indiana University.

As I understand it, Tanford is engaged in litigation to benefit small wineries in Indiana and other states, aimed at contesting the legality of state laws and rules that favor liquor wholesalers. And I'm not at all clear precisely what Indiana lawsuit(s) the liquor wholesalers are complaining about. As IU's own faculty website says about the professor:

Professor Tanford is also involved in civil liberties issues. He has taught constitutional litigation and written several books and articles on the Establishment Clause and civil liberties in cyberspace. He is a cooperating attorney with the ACLU, and has handled more than a dozen cases at the trial and appellate level. He is currently co-counsel in a series of constitutional cases challenging state laws that prohibit ordering wine over the Internet.
Finally, Tanford is a litigation professor. The LCJ story concludes:
Robel, in a letter sent to Long last year, said Tanford's use of school resources was "minimal and incidental" and that no students have participated in Tanford's cases.

However, Tanford said last week that while he has not assigned course work pertaining to the cases, some students have volunteered to help and he has paid others for work outside of class.

"I teach modern litigation," Tanford said. "So I have to be doing some litigation just to be able to teach the students what's going on in federal court procedure right now."

__________
What would Harvard do? Remember Reversal of Fortune: "Alan Dershowitz a brilliant professor of law is hired by wealthy socialite Claus von Bulow to attempt to overturn his two convictions for attempted murder of his extremely wealthy wife. Based on a true story the film concentrates not on the trial like other legal thrillers, but on the preparatory work that Dershowitz and his students put in as they attempt to disprove the prosecution's case and achieve the Reversal of Fortune of the title."

See also the website Free the Grapes! , which states on its front page: "A wine war is pitting consumers -- who want the option to purchase wines directly from wineries and retailers -- against the wine wholesaler cartel, who are threatening consumers and winemakers with jail time if they bypass the middleman."

Posted by Marcia Oddi on Wednesday, April 04, 2007
Posted to Indiana Law

Tuesday, April 03, 2007

Ind. Gov't. - More on: Senate passes a non-transparent and convoluted pay raise bill [Updated]

The House Rules Committee is currently (6:45 pm) discussing SB 401, about which the ILB posted a lengthy entry on March 4th.

At 6:46 pm the bill was passed out of committee, 9-0.

[Updated 3/4/07] Niki Kelly of the Fort Wayne Journal Gazette has a story this morning on the commitee action:

INDIANAPOLIS – The House Rules Committee voted in a bipartisan manner Tuesday to approve legislation that would give lawmakers and statewide elected officeholders automatic annual pay increases in the coming years.

Legislative leaders have embraced Senate Bill 401, which calls for a significant pay raise for state lawmakers in 2009.

The bill, which passed unanimously, now moves to the full House for consideration.

Legislative base pay of $11,600 has been the same since 1985, though what legislators collect has risen automatically through leadership bonuses and daily per diem of $137 for expenses during session and $54.80 a day while out of session.

State records show the average pay for lawmakers last year was about $40,000.

In addition, legislators receive a four-to-one pension match, which means the state pays in $4 for every $1 the legislator contributes.

Senate Bill 401 would reduce the pension match to the usual state employee level and eliminate permanently a state-subsidized lifetime health care benefit for lawmakers. * * *

The bill ties legislative pay to 18 percent of a judge’s salary. This currently would be $20,700, though judicial pay rises automatically every year depending on the average salary increase for state employees.

Statewide elected officeholders – such as the secretary of state, attorney general and superintendent of public instruction – also would see their pay go up annually based on the average salary increase for state employees.

This year, the average is a 4 percent increase, though during past recessions employees have seen their salaries frozen. The arrangement means lawmakers won’t ever again be forced to vote directly on their pay or that for other state officeholders.

The legislative pay raise would go into effect Jan. 1, 2009, after the next election, per constitutional rules.

Emphasis added ....

This story, like earlier stories, notes that the members will continue to receive leadership bonuses "and daily per diem of $137 for expenses during session and $54.80 a day while out of session."

This means that that the "annual salary" you see is not what legislators receive now or will receive under this new proposal.

Where in the law is the language permitting and setting the amount of the leadership bonuses "and daily per diem of $137 for expenses during session and $54.80 a day while out of session? It is in the budget bill.

Take a look at the budget bill now pending before the General Assembly, HB 1, as reprinted Feb. 23, 2007. Pages 4-7 deal with the Legislature. The Legislative Per Diem allowance is set out on p. 4, beginning on line 29:

Included in the above appropriations for house and senate expenses are funds for a legislative business per diem allowance, meals, and other usual and customary expenses associated with legislative affairs. Except as provided below,this allowance is to be paid to each member of the general assembly for every day, including Sundays, during which the general assembly is convened in regular or special session, commencing with the day the session is officially convened and concluding with the day the session is adjourned sine die. * * *

The legislative business per diem allowance that each member of the general assembly is entitled to receive equals the maximum daily amount allowable to employees of the executive branch of the federal government for subsistence expenses while away from home in travel status in the Indianapolis area. The legislative business per diem changes each time there is a change in that maximum daily amount.

So the actual dollar per diem figure is NOT set out in the budget bill. Worse, the amount is tied to a figure established by the federal government. In other words, the General Assembly has delegated this lawmaking responsibility to the federal government, a practice which is of very dubious constitutionality.

Further, on p.4, starting on line 33:

Notwithstanding the provisions of this or any other statute, the legislative council may adopt, by resolution, travel policies and procedures that apply only to members of the general assembly or to the staffs of the house of representatives, senate, and legislative services agency, or both members and staffs. * * * Notwithstanding any other law, rule, or policy, the state travel policies and procedures established by the Indiana department of administration and approved by the budget agency do not apply to members of the general assembly, to the staffs of the house of representatives, senate, or legislative services agency, or to lay members serving on research, study, or survey committees or commissions under the jurisdiction of the legislative council.
What about the subsistence allowance? Page 6, line 21:
Each member of the general assembly is entitled to a subsistence allowance of forty percent (40%) of the maximum daily amount allowable to employees of the executive branch of the federal government for subsistence expenses while away from home in travel status in the Indianapolis area: (1) each day that the general assembly is not convened in regular or special session; and (2) each day after the first session day held in November and before the first session
28 day held in January.
Also on p. 5, beginning at line 5, is the "leadership allowance" to be paid on top of the subsistence allowance:
president pro tempore, $6,500; assistant president pro tempore, $2,500; majority floor leader emeritus, $1,500; majority floor leader, $5,000; assistant majority floor leader, $1,000; majority caucus chair, $5,000; assistant majority caucus chair, $1,000; appropriations committee chair, $5,000; tax and fiscal policy committee chair, $5,000; appropriations committee ranking majority member, $1,500; tax and fiscal policy committee ranking majority member, $1,500; majority whip, $3,500; assistant majority whip, $1,000; minority floor leader, $5,500; minority leader pro tempore, $1,000; minority caucus chair, $4,500; minority assistant floor leader, $4,500; appropriations committee ranking minority member, $2,000; tax and fiscal policy committee ranking minority member, $2,000; minority whip, $2,500; assistant minority whip, $500; and assistant minority caucus chair, $500.

Officers of the house of representatives are entitled to the following amounts annually in addition to the subsistence allowance: speaker of the house, $6,500; speaker pro tempore, $5,000; deputy speaker pro tempore, $1,500; majority leader, $5,000; majority caucus chair, $5,000; assistant majority caucus chair, $1,000; ways and means committee chair, $5,000; ways and means committee ranking majority member, $3,000; ways and means committee, chairman of the education subcommittee, $1,500; speaker pro tempore emeritus, $1,500; budget subcommittee chair, $3,000; majority whip, $3,500; assistant majority whip, $1,000; assistant majority leader, $1,000; minority leader, $5,500; minority caucus chair, $4,500; ways and means committee ranking minority member, $3,500; minority whip, $2,500; assistant minority leader, $4,500; second assistant minority leader, $1,500; and deputy assistant minority leader, $1,000.

Quick calculations show that 4 months of $137/day = $16,440, plus 8 months of $55/day = $13,200, totalling a minimum $29,640 "floor." Add to that funds for travel and the leadership allowances.

The point? None of the above is affected by the new legislative pay raise bill.

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to Indiana Government

Ind. Law - SJR 7 commitee vote is taking place right now [Updated]

You can watch it online here.

Exclusive. It failed, at 5:50, 5 to 5. The vote was on the resolution without any change.

[More at 6:30 pm] Here is coverage from Bill Ruthhart of the Indianapolis Star, and from Deanna Martin of the AP. "Committee Chairman Rep. Scott Pelath, D-Michigan City, said he considered the vote a signal the emotional issue was dead for this session."

The Star story this morning listed the committee makeup:

The members of the House Rules and Legislative Procedures Committee:
• Scott Pelath, D-Michigan City, chairman.
• Russ Stilwell, D-Boonville, vice chairman.
• Matt Whetstone, R-Brownsburg, ranking minority member.
• Terri J. Austin, D-Anderson.
• Randy L. Borror, R-Fort Wayne.
• Ralph Foley, R-Martinsville.
• Earl Harris, D-East Chicago.
• Bob Kuzman, D-Crown Point.
• Dennie Oxley, D-English.
• P. Eric Turner, R-Marion.
All the Ds voted against the amendment except for Rep. Oxley.

[Updated 4/4/07] Stories today include "Same-sex marriage ban dead after vote impasse" from the Fort Wayne Journal Gazette; "Same-sex measure appears dead" from the Evansville C&P; "Marriage amendment shelved" from the LCJ; and "Same-sex marriage ban collapses" from the Ind. Star.

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to Indiana Law

Courts - Can a digital CD take the place of a trial transcript? Can a "transcriptionist" take the place of a court reporter?

Those were the issues in Florida last month, where the District Court of Appeal for the 2nd District considered a Petition for Writ of Mandamus to the Circuit Courts for Polk and Sarasota Counties, "seeking relief to address certain electronic court recording and transcription issues." From the 13-page Per Curiam denial of the petition (including a 7-page concurring opinion):

The problems discussed in this petition arise from two significant changes in trial court case management: (1) the shift away from using trained professional court reporters in all courtroom proceedings to the use of less costly digital recording and transcription and (2) the shift in the funding of indigent cases from local government to the state under revision 7 to article V of the Florida Constitution, see Art. V, § 14, Fla. Const. Although these matters undoubtedly warrant attention and clarification, after considerable reflection we conclude that this court cannot resolve the problems discussed in the petition through the issuance of an extraordinary writ to any of the respondents. Accordingly, we deny the petition.
The panel gives an example:
The record included a transcript, but it contained significant errors. Among other errors, the transcript purported to include an appearance by an attorney on behalf of Ingram when no such attorney existed. The transcript was not based on the work of a court reporter, but on an electronic audio recording that had been transcribed by a "Tenth Judicial Circuit electronic court reporter" who certified that she was "authorized to transcribe the foregoing proceeding." It appears that the transcriptionist was confused and believed that Ingram was represented by counsel because there were two assistant state attorneys in attendance at the hearing.
In another example, "delinquency proceeding was not recorded by a court reporter; it was electronically recorded. When the public defender filed the standard request for a transcript from a court reporter, the Twelfth Judicial Circuit Digital Recording Office provided a compact disk (CD) to the public defender containing a digital audio recording from microphones inside the courtroom where L.A. was tried but did not provide a typed transcript. Ms. Conway, in a letter to an assistant public defender in James Marion Moorman's office, describes this CD as a 'CD transcript.'"

This is followed by a 7-page concurring opinion by Judge Altenbernd, who writes about the "real costs associated with any change in technology that deteriorates the quality of the record in courts of record." He continues:

I would specifically announce that a CD recording is not a transcript, and that, pursuant to the Florida Rules of Appellate Procedure, a transcript for purposes of appellate review must be transcribed by a court reporter. * * *

Court reporters, at least for these functions, are officers of the court. See Fla. R. Jud. Admin. 2.535(f). Moreover, by statute, the supreme court is required to establish minimum standards for court reporters. See § 25.383, Fla. Stat. (2005). It has no such obligation for any profession known as "transcriptionist." If we allow rule 2.535 to override the rules of appellate procedure in this respect, then we face a future in which criminal defendants, their family members, or others with interest in a case may seek to prepare and file the transcript that becomes an official part of the record on appeal. People who do not possess a high school diploma may prepare such a transcript. In a digital world, such transcriptionists may not even reside in Florida or in the western hemisphere. It may not be essential that the Florida Rules of Appellate Procedure have a valid and logical reason to require the use of court reporters for those rules to override rule 2.535(g)(3), but it is reassuring to understand the importance of using court reporters for all transcripts used in appellate proceedings.

As a result, although I concur with the majority that a writ of mandamus is inappropriate to address the compelling issues raised in this proceeding, I would take this opportunity to explain that a digital recording is not a transcript and that any transcript presented to this court in its review capacity must be prepared by an official court reporter.

If this sounds somewhat familiar, see this August 24, 2005 ILB entry, titled "Reports of Marion County court transcript work being done in Hong Kong."

[Thanks to Matt Conigliaro of the Florida law blog, Abstract Appeal, for highlighting the opinion.]

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to Courts in general

Law - "Jury Finds Prominent Mississippi Attorney, Two Ex-Judges Guilty of Bribery"

Holbrook Mohr of the AP writes:

A prominent attorney and two former judges he was accused of lavishing gifts and money on in exchange for favorable rulings were convicted of bribery.

Paul Minor, who amassed a fortune from asbestos, tobacco, medical malpractice and car safety litigation, was found guilty of all 11 counts against him, which ranged from racketeering to bribery. He faces up to 95 years in prison.

The jury found former Circuit Judge John Whitfield and former Chancellor Wes Teel guilty of bribery and mail fraud. Whitfield could get a 50-year jail term and Teel could get 25 years.

Sentencing for all three was set for June 14.

All three had pleaded not guilty, and their attorneys vowed to appeal Friday's ruling. * * *

Besides Whitfield and Teel, Minor was also accused of bribing Mississippi Supreme Court Justice Oliver Diaz Jr.

The four were tried in U.S. District Court in Jackson last year. A jury cleared Diaz of all charges and deadlocked on some charges against the other three.

Whitfield and Teel are free on bond pending an appeal. Minor has been jailed since September for violating the terms of his bond for alleged excessive drinking and not adhering to the rules of his house arrest. He was ordered to remain in jail.

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to General Law Related

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

For publication opinions today (2):

Herbert Smith, Jr. and Charles Zacek v. Lake Co., Lake Co. Sheriff, and Clerk of Lake Superior Court - "Herbert Smith appeals the trial court’s entry of summary judgment in favor of defendants Lake County (“the County”) and clerk of the Lake Superior Court (“the Clerk”) on the basis that Smith’s claim regarding the enforcement of Indiana Code Section 35-33-8.5-4 is barred by res judicata. The County, the Clerk, and intervenor Criminal Justice Section of the Lake County Bar Association (“the LCBA”) (collectively, “Appellees”) request sanctions against Smith, characterizing this litigation as “frivolous, unreasonable or groundless.” Appellees’ Br. at 19. We affirm and remand for a hearing on damages pursuant to Indiana Appellate Rule 66(E). * * *

There can be little doubt that Smith and his counsel are attempting to inflict the litigatory equivalent of death by a thousand cuts on the government officials and taxpayers of Lake County by mounting piecemeal challenges to the legislative scheme that allows criminal defendants to post a ten percent cash bond in lieu of patronizing Smith’s bail bond establishment. * * *

When viewed in isolation, perhaps Smith’s appeal from his unsuccessful attempt to relitigate the enforcement of Indiana Code Section 35-33-8.5-4 would not be considered sufficiently egregious to merit an award of damages pursuant to Appellate Rule 66(E). When viewed in the context of Smith’s well-documented history of piecemeal attacks on Indiana’s bail scheme, however, the instant appeal may fairly be characterized as harassing and vexatious. We therefore remand for a calculation of damages, including appellate attorneys’ fees, to which Appellees may be entitled in accordance with Appellate Rule 66(E)."

Reed Hodges & Angela Hodges v. Timothy Swafford - This 21-page opinion involves private remedies under the Truth in Lending Act (“TILA”), Act, the federal Home Ownership and the federal Equity Protection Act (HOEPA), the Real Estate Settlement Procedures Act (RESPA), and the Indiana Deceptive Consumer Sales Act (IDCSA) and the Indiana Loan Broker Act.. Judge Crone writes: "The primary issue before us then is whether TILA governed this transaction. * * * At first glance, it appears that the Hodgeses do not fall within TILA’s definition of “creditor” because the evidence indicates that they do not “regularly” extend consumer credit. Indeed, the loan they made to Swafford was the first loan they had ever made. However, the italicized language above clearly broadens the definition of “creditor” to include persons beyond those who regularly make loans. * * * It follows then that the evidence was sufficient to support the trial court’s determination that the Hodgeses were creditors as defined by TILA."

Next the Court finds that the land contract in this case was a “high cost loan” under the HOEPA amendment. "Therefore, we must affirm the trial court’s judgment that the Hodgeses are liable for violations of TILA related to their transaction with Swafford."

"Swafford concedes that he has no private right of action under RESPA and that the trial court’s award of $150.00 should be reversed. * * * Swafford concedes that he has no private right of action under IDCSA. * * * As with RESPA, Swafford acknowledges that IDCSA violations have no impact on TILA claims and that TILA provides a complete basis for recovery in this case. * * *

In sum, we conclude that the evidence supports the trial court’s judgment in favor of Swafford on the issues of TILA and HOEPA liability."

NFP civil opinions today (4):

Macarthur and Linda Drake v. Fifth Third Bank (NFP) - "We have said that “even if the trial court believes that the nonmoving party will not prevail at trial, it may not enter summary judgment where material facts conflict or conflicting inferences arise from undisputed facts.” May v. Frauhiger, 716 N.E.2d 591, 594 (Ind. Ct. App. 1999). As Fifth Third previously argued, evidence needed yet to be presented to resolve the issue of whether the Drakes had satisfied the mortgage obligations that they assumed in the assumption agreement. Because this remains a disputed material fact, and conflicting inferences may arise from the execution and recording of the satisfaction of mortgage, summary judgment was improvidently granted. Reversed."

Kent Weber v. Michele M. Weber (NFP) - dissolution of marriage, affirmed.

In Christy Cook v. Matthew Cook (NFP), an 8-page opinion, Judge Crone writes:

Christy Cook (“Wife”) appeals the trial court’s judgment as to custody, support, and property issues in the marital dissolution proceeding she initiated against Matthew Cook (“Husband”). Husband has filed a motion to dismiss Wife’s appeal pursuant to Indiana Appellate Rule 36(B), based on his contention that her brief does not substantially comply with the Indiana Rules of Appellate Procedure. Husband characterizes Wife’s appeal as frivolous and in bad faith and requests attorneys’ fees pursuant to Appellate Rule 66(E). We grant Husband’s motion to dismiss and his request for attorneys’ fees; we also remand for a determination of those fees. * * *

We also grant Husband’s request for attorneys’ fees pursuant to Appellate Rule 66(E) * * *

“A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious.” Manous v. Manousogianakis, 824 N.E.2d 756, 767-68 (Ind. Ct. App. 2005). * * *

Wife’s flagrant disregard of the form and content requirements of the appellate rules compelled Husband to spend additional effort in drafting an appellee’s brief and a motion to dismiss and compiling an appellee’s appendix. Wife’s brief is needlessly time-consuming to read and difficult to comprehend, omits relevant facts most favorable to the trial court’s judgment, and has no discernible legal merit. We therefore remand for a determination of attorneys’ fees to which Husband is entitled pursuant to Appellate Rule 66(E). Dismissed and remanded.

Adam Pluris v. Review Board, et al (NFP) - "Claimant-Appellant Adam W. Pluris (‘Pluris”) appeals from the Review Board of the Indiana Department of Workforce Development’s (“Board”) denial of his claim for unemployment benefits after he was discharged by the Interstate Brands Corporation (“Interstate”). * * *

In the present case, Interstate’s drug policy states the importance of a drug-free workplace to the safety of its workers. Thus, the drug policy protects the interests of both the employees and the employer. Furthermore, while providing that an employee’s refusal to submit to a drug test will be considered a positive drug test and that a positive drug test will result in discharge from employment, the policy also provides for interpretation and application of the policy “to each particular situation.” Pluris’ refusal to submit to the drug test prevented Interstate from obtaining valuable information that would have applied to consideration of his “particular situation.” Affirmed. [Judge Sullivan dissents.]

NFP criminal opinions today (10):

Daniel Hampton v. State of Indiana (NFP)

Aaron Leap v. State of Indiana (NFP)

James Abercrombie, Jr. v. State of Indiana (NFP)

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

Richard Turner v. State of Indiana (NFP)

Robert Day v. State of Indiana (NFP)

David Dragon v. State of Indiana (NFP)

Travis Smith v. State of Indiana (NFP)

Ryan Day v. State of Indiana (NFP)

Daren E. Fallowfield v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Allen County Recorder’s Office transitions to Web

Amanda Iacone of the Fort Wayne Journal Gazette reports today:

The Allen County Recorder’s Office is about to undergo a major overhaul that will replace its computer system, change the way the office handles documents and offer Web-based access to its collection. * * *

The new $300,000 software system will allow for the expansion of services to the Web and will also help the recorder’s office comply with a new state law providing greater identity-theft protection. The law requires all recorder’s offices in the state to redact Social Security numbers from the documents it keeps by Dec. 31, [Recorder John] McGauley said.

Forcing the current computer system to redact that information would have cost almost $50,000, he said.

The current system allows for electronic storage and retrieval of the mortgages, deeds and other documents filed with his office. But it was installed in 1995, and a year later, the vendor closed shop, leaving the county with no way to buy new licenses or parts.

McGauley planned to replace the obsolete system in the next year or two but decided it made more sense to move now, he said.

He plans to ask the Allen County commissioners on Friday to approve a three-year contract with Fidlar Software, a state-approved vendor. The company would provide the software and create the Web interface on the recorder’s site to allow access to the database. It will also provide updates as the state updates its identity-protection laws, McGauley said.

Other county departments such as the auditor and surveyor’s office use the current system. However, updating the software will give the office a chance to buy more licenses, opening it up to other government entities such as the Wayne Township assessor, he said.

McGauley also plans to overhaul the way his staff processes the documents into the system, he said.

Currently, the office needs about a month before an original document can be returned to its owner. The staff must scan in the document and then index the information on the document, including the owner, seller or lien information into the database, he said.

The new system will automatically input that information into the computer. However, staff will still need to double-check the information for accuracy, McGauley said.

He hopes the turnaround will be closer to 24 hours.

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to Indiana Government

Ind. Decisions - "Schoop's isn't to blame in 2004 crash"

Yesterday's Court of Appeals decision in the case of Schoop's Restaurant, et al. v. Marcia Hardy, et al. (see ILB entry here) is the basis for this story today by Bill Dolan in the NWI Times. Some quotes:

ST. JOHN | The Indiana Court of Appeals ruled Monday the owners of Schoop's Hamburgers restaurant in St. John couldn't have foreseen a pickup truck would leave the road, cross two parking lots and crash through the building.

The court decided that customers couldn't sue the restaurant, 9401 Wicker Ave., for injuries they sustained in the 2004 crash.

Merrillville attorney Arlington Foley sued Schoop's that year in Lake Circuit Court on behalf of Marcia Hardy, of Crown Point, and her two granddaughters, all of whom were among the injured.

Foley alleged the restaurant owners should have erected a barricade because the building is close to a busy traffic artery.

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Marion County Court rules FSSA "guidelines" never properly adopted

"Treatment options lag for brain injuries" is the headline of a story by Tim Evans in today's Indianapolis Star about the lack of availability of brain rehabilitation programs to many Indiana residents. During the course of the story, a recent Marion County Court ruling is discussed:

But [Joe Holt ] cannot get that treatment in Indiana, and the Family and Social Services Administration refused to pay for the only alternative, a Medicaid-funded stay at an Illinois facility.

A court ruling last week in his favor offers a glimmer of hope for Holt. But his case still illustrates a plight faced by brain injury survivors across Indiana: a health-care system that can't keep pace with a growing number of people who need help and the high cost of that treatment.

Last week, Marion Superior Court Judge Thomas J. Carroll ruled FSSA was wrong to refuse Holt's rehabilitation request, based on a technicality. Carroll found that the guidelines used by a state contractor to reject the request had never been properly adopted by the agency, but the ruling does not guarantee Holt will be approved for the treatment program. The state could appeal the decision or deny treatment for another reason.

So whether that ruling clears the way for other Indiana Medicaid patients to go out of state for therapy remains unclear, said Gavin Rose, an attorney with the American Civil Liberties Union of Indiana. For now, scores of such patients are housed in nursing homes where they receive little help improving their lives. The dispute comes as the country sees a sudden surge in brain injury patients.

"It is still within the agency's power to decide which cases are medically necessary," said Rose, who represented Holt in court, "and which cases are not."

The state's determination that specific treatment is a medical necessity is at the heart of the lawsuit. In scores of cases, the state has determined that "necessity" ends with feeding and other basic care for those with severe brain injuries at, for instance, a nursing home. The intensive therapy to help them become more independent is not automatically a necessity in the eyes of state Medicaid officials.
Often the only exception proves to be patients who can't control their behavior.

"The state has been saying that the only thing a nursing home can't do is care for those with severe behavioral problems," Rose said.

Dennis Rosebrough, spokesman for the FSSA, said officials had not seen the judge's final order, and no decision has been made on how to proceed. He said one option would be to follow the established process to readopt the guidelines, a procedure that involves public hearings and a comment period.

This is what happened with the BMV - see this ILB entry on "What are the BMV's plans re its void ID rules?" from Sept. 10, 2005 for background.

The ILB would like to post a copy of Judge Carroll's opinion - if you can help, please let me know.

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Law - More on: Screening patients for alcohol-drugs may mean insurer won't pay their claims

The Evansville Courier & Press follows up its earlier story on denials of insurance coverage (see ILB entry here) with this editorial today.

Posted by Marcia Oddi on Tuesday, April 03, 2007
Posted to Indiana Law

Monday, April 02, 2007

Ind. Courts - More on "Star files challenge to open adoption records" [Updated]

This ILB entry from March 22nd includes this quote from an Indianapolis Star story of that date:

In a petition filed today with the Indiana Court of Appeals, the newspaper's attorneys argued the public interest would be served by opening the appellate records. The adoptions drew scrutiny after Indiana child welfare officials responded to concerns that hospital employees had raised regarding Melinger's ability to care for the girls before they were discharged from Methodist's neonatal intensive-care unit.
This afternoon the Star has posted this story by Jon Murray, including the following:
Steven C. Litz, Melinger's attorney, has not yet responded to the Star's petition. But he filed a separate motion Thursday seeking a court order to seal the case separately from the restrictions imposed by the adoption law, and also to seal all future court filings such as the Star's.

The Star's petition said the public's interest would be served by making public the legal debate over whether the adoptions violated interstate laws and other restrictions.

"As this court is undoubtedly aware, the same day it filed the motion, the Star ran a front page story on the motion, again referring to confidential information that had been illegally provided to it," Melinger's motion says. "It then sought to justify opening this court's file by referring to the fact that there had been publicity about the case, publicity which it created by obtaining confidential records illegally. Such bootstrapping techniques should not be tolerated by this court..."

In its March 22nd entry, the ILB posted a copy of the public docket in the appeal. The last entry was March 22nd. A check this afternoon shows no new entries to the docket.

[Update 3/3/07]
Here is the updated story from today's paper.

Posted by Marcia Oddi on Monday, April 02, 2007
Posted to Indiana Courts

Ind. Courts - Marion County Superior Court administrator resigns [Updated]

Jon Murray of the Indianapolis Star is reporting this afternoon:

Ron Miller, who had the job less than a year, resigned on Friday. Presiding Judge Gerald Zore, who chairs the four-member executive committee, said the resignation took effect the same day, and he was not sure what Miller's plans are.

"We're going to try to get somebody to step in until we find a replacement," Zore said.

Miller could not be reached this morning for comment. Zore said his departure was amicable.

His tenure was short. Miller starting in the position last May after working previously as the director of trial court management for Indiana's state courts.

[Updated 4/3/07] Here is the updated story from today's paper.

Posted by Marcia Oddi on Monday, April 02, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 0 NFP)

For publication opinions today (2):

Delbert Hill v. Sarah Hill - "Delbert Hill (“Husband”) appeals the trial court’s property division in his dissolution proceedings with Sarah Hill (“Wife”). Husband argues that the trial court abused its discretion in failing to award him a greater share of the marital property. Finding that the trial court acted within its discretion in dividing the marital property, we affirm."

Schoop's Restaurant, et al. v. Marcia Hardy, et al. - "In this interlocutory appeal, Defendants Schoop’s Restaurant, Fairris-Markovich, LLC, and Fairris-Markovich, LLC d/b/a Schoop’s Restaurant (collectively, “Schoop’s Restaurant”) appeal the trial court’s denial of their motion for summary judgment against Plaintiffs Marcia A. Hardy, Kenneth J. Hardy, Madison Hardy and Katelynn Hardy by and through their natural parents and next friends Kenneth Hardy, Jr. and Christine Hardy, Kenneth Hardy, Jr., and Christine Hardy (collectively, “the Hardys”) on their complaint for negligence arising out of an incident where the driver of a vehicle suffered a heart attack and crashed into the restaurant, injuring them. Because the only inference that can be drawn from the undisputed material facts in this case is that Schoop’s Restaurant could not have foreseen this incident, Schoop’s Restaurant did not breach its duty to exercise reasonable care to prevent harm caused by the foreseeable acts of third parties. We therefore reverse the trial court and order it to enter summary judgment in favor of Schoop’s Restaurant."

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, April 02, 2007
Posted to Ind. App.Ct. Decisions

Environment - US Supreme Court delivers two important Clean Air Act decisions today

This Sept. 19, 2006 ILB entry was headed "State of Indiana sides with Duke in case against EPA." Take a look at it.

Today the US Supreme Court issued its decision in the case, Environmental Defense v. Duke Energy, unanimously finding in favor of US EPA in its interpretation of the New Source Review provisions of the Clean Air Act. Here are some quotes from an early AP report:

The Supreme Court gave a boost Monday to a federal clean air initiative aimed at forcing utilities to install pollution control equipment on aging coal-fired power plants.

In a unanimous decision, the justices ruled against Duke Energy Corp. in a lawsuit brought by the Clinton administration, part of a massive enforcement effort targeting more than a dozen utilities.

Most companies settled with the government, but several Clinton-era cases involving more than two dozen power plants in the South and the Midwest are still pending. The remaining suits demand fines for past pollution that if levied in full would run into billions of dollars.

The justices ruled that the 4th U.S. Circuit Court of Appeals in Richmond, Va., overstepped its authority by implicitly invalidating 1980 Environmental Protection Agency regulations, interpreting them in a way that favored Duke. The case now returns to the lower courts. * * *

The underlying issue is whether emissions increases should be measured on an annual basis, an approach favored by the EPA.

Duke and other utilities argue that the standard for triggering Clean Air Act requirements is an hourly rate increase in emissions. Such an approach enables the companies to run coal-fired plants without having to install additional pollution controls, as long as the hourly emissions rate doesn’t rise. Annual pollution would rise, however, when the modernized plants operate longer hours.

“What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime” that Duke favors, Souter wrote.

Maine, New Hampshire and Vermont were among a number of states that filed friend-of-the-court briefs in support of the EPA’s position. New Hampshire and Vermont are also among eight states that have filed a similar lawsuit against American Electric Power, which could be affected by Monday’s ruling.

Re a second important decision today, Massachusetts v. EPA, a 5-4 decision, the AP reports:
The Supreme Court ordered the federal government on Monday to take a fresh look at regulating carbon dioxide emissions from cars, a rebuke to Bush administration policy on global warming.

In a 5-4 decision, the court said the Clean Air Act gives the Environmental Protection Agency the authority to regulate the emissions of carbon dioxide and other greenhouse gases from cars.

Greenhouse gases are air pollutants under the landmark environmental law, Justice John Paul Stevens said in his majority opinion.

The court's four conservative justices — Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas — dissented.

Many scientists believe greenhouse gases, flowing into the atmosphere at an unprecedented rate, are leading to a warming of the Earth, rising sea levels and other marked ecological changes.

The politics of global warming have changed dramatically since the court agreed last year to hear its first global warming case.

"In many ways, the debate has moved beyond this," said Chris Miller, director of the global warming campaign for Greenpeace, one of the environmental groups that sued the EPA. "All the front-runners in the 2008 presidential campaign, both Democrats and Republicans, even the business community, are much further along on this than the Bush administration is." * * *

The court had three questions before it.

• Do states have the right to sue the EPA to challenge its decision?

• Does the Clean Air Act give the EPA the authority to regulate tailpipe emissions of greenhouse gases?

• Does EPA have the discretion not to regulate those emissions?

The court said yes to the first two questions. On the third, it ordered EPA to re-evaluate its contention it has the discretion not to regulate tailpipe emissions. The court said the agency has so far provided a "laundry list" of reasons that include foreign policy considerations.

The majority said the agency must tie its rationale more closely to the Clean Air Act.

"EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change," Stevens said. He was joined by his liberal colleagues, Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter, and the court's swing voter, Justice Anthony Kennedy.

The lawsuit was filed by 12 states and 13 environmental groups that had grown frustrated by the Bush administration's inaction on global warming.

In his dissent, Roberts focused on the issue of standing, whether a party has the right to file a lawsuit.

This Dec. 4, 2006 ILB entry looks at the standing issue relating to this case.

Posted by Marcia Oddi on Monday, April 02, 2007
Posted to Environment | General Law Related

Ind.Decisions - More on "Gay-rights article stirs debate over student freedoms"

"National groups rally to support teacher facing dismissal" is the most recent AP story on the "northeastern Indiana high school journalism teacher who faces firing for a dispute that began when a student newspaper published an editorial advocating tolerance of gays." Earlier ILB entries are here (March 31) and here (March 26).

In the March 26th entry, I discussed how, because of the 7th Circuit decision in Hosty v. Carter, which the Supreme Court declined to review last year, the U.S. Supreme Court's ruling in Hazelwood School District v. Kuhlmeier applies not only to high schools and elementary schools, but also to public universities in Indiana, Illinois and Wisconsin. (See particularly this March 2, 2006 ILB entry quoting from a Fort Wayne Journal Gazette editorial.)

Today the Harvard Crimson has an editorial titled "Preserving a Free Campus Press: An Illinois law that prevents administrative meddling is an important step forward." Some quotes:

Due to Supreme Court precedent set 19 years ago in Hazelwood v. Kuhlmeier, public high school and middle school media are currently only entitled to full first amendment protection if they are established as “public forums” for student expression. A recent decision by the 7th U.S. Circuit Court of Appeals extended the Hazelwood decision to public colleges as well. That ruling was extremely troubling in its failure to see a clear distinction between a high school and college environment—in the latter, there is a far greater need for strong, independent press, a greater emphasis on the freedom and diversity of ideas, and a greater capacity for responsibility among journalists.

The College Campus Press Act—an Illinois state bill ensuring that college media at public universities is not subject to review by their administrations—addresses this troubling new standard. The Illinois Senate unanimously passed the bill last month, and it now awaits a vote by the House.

[Thanks to How Appealing for the link.]

Posted by Marcia Oddi on Monday, April 02, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Indy's 3 largest law firms hurrying to hire attorneys and scientists for lucrative practices in burgeoning life-sciences sector"

"Legal Gold Mine" is the main headline to this story by John Russell in the business section of today's Indianapolis Star. The stroy reports that:

Around the region, law firms are bulking up like never before to meet the growing demand of life-sciences companies, from biotech startups to established heavyweights.

Indianapolis' three largest law firms -- Barnes & Thornburg, Baker & Daniels, and Ice Miller -- all are hiring lawyers, scientists or both to staff their life- sciences groups, which increasingly represent a major part of their business.

Law firms view life-sciences companies as prized clients because they usually need a lot of legal services. They have intellectual property to protect. They need to defend themselves against product-liability lawsuits. They need help wading through government regulations. And some of them grow very fast, requiring help with mergers and acquisitions.

Add it all up, and that's a lot of legal fees. And that's one reason law firms are big advocates of the sector and do whatever they can help it grow and thrive. * * *

"Law firms around the country are hopping on the bandwagon to try to foster the development of life sciences in their area," said Brad Thompson, a Zionsville attorney who practiced in Baker & Daniels' life-sciences group for 20 years, before leaving last year to join Epstein Becker & Green, based in New York.

"It's a matter of self-interest," he said. "No doubt about it."

In the past year, Barnes & Thornburg has more than tripled the ranks of its scientists with doctorates, from three to 10, to help clients analyze and protect their discoveries. Many of the firm's scientists also are lawyers, law students or patent agents. * * *

Ice Miller recently announced that Harry Gonso, a former partner who left for two years to serve as Gov. Mitch Daniels' chief of staff, had rejoined the firm as head of its life-sciences group.

The firm also recently hired Eli Lilly and Co.'s retired top litigator, James Burns, as a senior counsel for drug and device makers.

Posted by Marcia Oddi on Monday, April 02, 2007
Posted to Indiana Government

Ind. Decisions - More on: Voter ID decision featured in new law journal article

The Fort Wayne Journal Gazette has an editorial this morning calling for an en banc 7th Circuit review of its three-judge panel decision upholding the Indiana voter ID law. The editorial draws its reasoning from the conclusion of Prof. Rick Hasen's new law journal article, The Untimely Death of Bush V. Gore, featured in this March 29th ILB entry.

Posted by Marcia Oddi on Monday, April 02, 2007
Posted to Ind. (7th Cir.) Decisions

Sunday, April 01, 2007

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

The Cincinnati Enquirer's July 26, 2006 headline was "Eminent domain abused: Ohio Supreme Court overrules Norwood home-taking." See a list of ILB entries on the case here.

Today's Enquirer headline reads: "Eminent domain holdouts sell: Two others still weighing their options." From the story by Steve Kemme:

Joy and Carl Gamble Jr. have reluctantly decided to give up plans to move back into the home they spent three years fighting to save from demolition in the landmark Norwood eminent domain battle.

Because of serious health concerns, the Gambles have agreed to sell their house in Norwood to Rookwood Partners for $650,000 - or $370,000 more than the value a jury had placed on their property in the early part of the court fight. * * *

The Gambles, who lived in their Norwood home for 35 years, were forced to move out two years ago when a Hamilton County judge ruled in Norwood's favor.

They moved to an apartment in Northern Kentucky.

Last July, the Ohio Supreme Court ruled against Norwood and the developer and ordered the properties returned to the Gambles and two other property owners.

Rookwood Partners had bought and demolished all but those three properties in a 75-parcel tract on 11 acres at Edwards and Edmondson roads when the Ohio Supreme Court issued its decision.

The ruling delighted eminent-domain opponents in Ohio and throughout the nation. It forced Ohio legislators to consider making it more difficult for cities to use eminent domain for economic development.

It was the first eminent-domain case to reach a state supreme court since the U.S. Supreme Court's ruling in 2005 that supported the right of New London, Conn., to take private property for commercial development. But the court said each state could decide how restrictive to make its eminent-domain laws.

In the Norwood case, the Ohio Supreme Court's decision prevented Rookwood Partners from building a $125 million office-retail-condo development. The three structures still standing on the large site - the Gambles' home, the rental home of Joe Horney and the home that Sanae Ichikawa-Burton and Michael Burton converted into a math and reading learning center - are situated so that the Rookwood Exchange could not be built as planned.

Horney and the Burtons, whose houses have been vacant for more than two years, have indicated in recent months that they're keeping their options open. But they have not agreed to sell, Gall said.

Related is this story from China, with its striking photos, of "the last house standing." This story, from Newsgd.com, reports:
A CHONGQING court Monday (Mar 19) ordered residents of a house, which stood by itself in the middle of an otherwise-vacant construction site in Jiulongpo District for more than two years, to move out before Thursday, after which the house will be demolished. [see photo here]

Photos of the two-story house have been circulated widely across the Internet after an anonymous Web surfer uploaded them recently. A large business center had been planned on the site where the house is currently located, and all 280 other families living on the plot moved out after construction started in September 2004. Their houses were subsequently pulled down.

Now the house stands alone atop a 20-meter-high mound in the middle of a gigantic construction site.

The BBC has this story, with this spectacular image. The BBC reports "A deadline set by the court ordering her to authorise the demolition ran out on Thursday, and it was not clear what steps the authorities would take next."

The Cincinnati Enquirer had an equally powerful photo in its April 30 , 2006 story - unfortunately it appears to no longer be available.

Posted by Marcia Oddi on Sunday, April 01, 2007
Posted to General Law Related

Ind. Law - Ice Miller partner Michael Blickman featured

Continuing its now weekly "My Big Break" series, the Indianapolis Star today features Michael Blickman, partner and chair of the labor and employment section at the Ice Miller law firm in Indianapolis.. See a list of all recent "Big Break" stories here.

Blickman relates that while attending Boston College Law School, he served as a summer unpaid intern at the United Nations:

While at the U.N., I met David Morse, who had served as the first director-general of the International Labor Organization and who was then a partner in the Manhattan firm of Surrey and Morse.

When I graduated from law school, he offered me a position with his firm and my career in labor law began. After a year, I decided to return to Indianapolis and met with Alan Nolan of the Ice Miller Donadio & Ryan firm. Alan and George Ryan (who had recently passed away) had built a premier management labor and employment practice at Ice Miller.

I joined the firm at a time when we had just over 60 attorneys, and we now have close to 250.

Posted by Marcia Oddi on Sunday, April 01, 2007
Posted to Indiana Law

Ind. Decisions - Legislative prayer, the view from New Jersey

Legislative prayer has been an issue in the Indiana General Assembly in the past few years, with an appeal now pending before the 7th Circuit. See a long list of ILB entries here.

Robert Scchwaneberg of the Trenton Star-Ledger has a lengthy and fascinating survey today of the legislative prayer issue that is well worth reading in its entirety. It begins:

"Let us pray. Mother and Father of us all, we give thanks for the women who have been part of our life's journey. ... Bless the following proceedings with your presence."

Spoken aloud at a public high school graduation, these words probably would trigger a lawsuit. But in the New Jersey Legislature, where they were said recently, it's just a matter of getting things started.

The state's tradition of inviting a member of the clergy to deliver an opening prayer dates to 1846. And while it may be a comfort to many, the practice has remained controversial to this day.

On roughly three days out of 10, a member of the New Jersey Legislature hears a prayer offered in the name of Jesus Christ. In Indiana, such an invocation could get someone jailed for contempt of a federal court order.

And in December, hours after a state Senate committee approved a bill allowing gay couples to form civil unions, the visiting clergyman intoned: "We curse the spirit that would come to bring about same-sex marriage."

He won't be back.

Posted by Marcia Oddi on Sunday, April 01, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Establishing amount of post-incarceration child support

Indianapolis Star columnist Dan Carpenter has an important column today on the Indiana Supreme Court's Feb. 22nd decision in the case of Lambert v. Lambert - see ILB entry here (which, BTW, had a poor heading). Some quotes from Carpenter's coulmn:

For many years, Indiana has treated men entering prison as if they were gainfully employed when it came to calculating mandatory support payments for their non-custodial children.

Incarceration for a crime was classified as "voluntary unemployment," meaning they should have known what they were getting into, and therefore should not expect to get out of feeding their kids.

When these men got out of prison, say, five years later, having earned no money during their stay, they found themselves thousands of dollars in arrears, with the prosecutor's office looming at their backs. * * *

Unable to cut into the child support debt straight up, they would pay a pittance under the table, pay nothing at all, stay in the shadows, lose what jobs they got due to entanglements with paternity court, get thrown into jail for non-support, wind up back in prison. * * *

The Indiana Supreme Court struck a historic blow for the practical side -- and potentially for lots of children -- on Feb. 22 when it tossed out the "voluntary unemployment" standard and declared it erroneous "to set support based on employment income that plainly would not be there during incarceration."

In a little-publicized ruling on a Hendricks County case, the court said unrealistic support orders serve an unlawfully punitive purpose, discourage the seeking of employment and do "an injustice to the best interests of the child by ignoring factors that can, and frequently do, severely damage the parent-child relationship." * * *

[Reaction has been cautious] thus far; but the high court noted that nearly a quarter of state prisoners are estimated to have open child support cases, and the vast majority of those 24,000 people will return to their communities.

"This could be huge," says Gregg Keesling, president of Workforce Inc., an Indianapolis agency that secures supported employment for ex-offenders. "We are cautiously optimistic, but it might dramatically change re-entry for these men."

Keesling has been meeting with government officials and others to gauge the impact of the ruling and to make it a springboard to a less punitive, more pragmatic system for getting money to children whose parents wind up behind bars.

"We were flabbergasted. Everybody across the country was flabbergasted," Keesling says. Now, he says, the amazing has to be seen as the no-brainer.

Posted by Marcia Oddi on Sunday, April 01, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Update on Regions Bank Building in downtown Indy damaged by storm

The ILB had a number of stories this time last year on the storm damage to Indiana Square (aka the Regions Bank Building, One Indiana Square and the Indiana National Bank building) at Penn. and Illinois, which houses dozens of law firms, as well as the Indiana State Bar Assocaion. See particularly the quotes from an April 14, 2006 Indianapolis Star story headlined "When wind hit, privacy flew out the window: Tower's tenants work to restore lost documents"

Today the Star has a report by Erika D. Smith headed: "Indiana Square: one year later: As renovation plans move ahead, many tenants still unsettled after last April's storm." It begins:

It's been a year since a brutal windstorm swept through Downtown Indianapolis and shredded one of the city's oldest high-rise office buildings.

Indiana Square still isn't the same.

Mismatched metal sheeting is wrapped around the outside of the building where windows once stood.
Many attorneys and accountants, locked out of the building for weeks last year, still aren't back in their offices. They're stuck in temporary space on adjacent floors or crammed in smaller offices, making do as best they can.

No, things aren't back to normal at Indiana Square -- and they won't be for a long time.

It will take until May 2009 to put a new exterior on the building, said Todd Maurer, principal of Indianapolis-based Halakar Properties, which co- owns the building. * * *

The building was 30 percent occupied when Halakar bought it in October 2001. Now it's 70 percent occupied.

The tenants still talk about the tough times, though.

They talk about the days and weeks after the April 2 storm when they couldn't get back in the building to retrieve files and equipment.

They talk about lost productivity. They talk about how the streets surrounding the building were blocked off, and how glass and metal and insulation blew for blocks.

They talk about the paperwork stolen by the wind. They talk about the guy whose desk chair was found on top of a parking deck around the corner. And they talk about how amazing it is that no one was hurt.

Bob Weddle misses his office. The attorney at Tabbert Hahn Earnest & Weddle hasn't set foot in his spacious northwest-corner office since last spring. It was shortly after the windstorm claimed the office's three windows and the radiators beneath them, but somehow left papers stacked in neat piles on his desk.

Since then, Weddle has been crammed in a smaller office at the opposite end of Indiana Square's 19th floor. Other employees are in makeshift offices on the 15th floor.

Everything has been a hassle since April 2, 2006.

Posted by Marcia Oddi on Sunday, April 01, 2007
Posted to Indiana Law

Ind. Law - the Upcoming Week in the Indiana General Assembly

Here is the Evansville Courier & Press' Bryan Corbin's look at the week just past and the week ahead during the Legislature's 2007 session. Today's story is headed "Same-sex marriage issue headed for showdown."

Posted by Marcia Oddi on Sunday, April 01, 2007
Posted to Indiana Law