« June 2007 | Main | August 2007 »

Tuesday, July 31, 2007

Ind. Decisions - 7th Circuit issues one today

In USA v. Hollingsworth (SD Ind., Judge Hamilton), a 19-page opinion, Judge Flaum writes:

Hollingsworth and McCotry moved to suppress the evidence uncovered during the search, and the district court granted Hollingsworth’s and denied McCotry’s motion. McCotry went to trial, and a jury convicted him on two counts of possession of crack cocaine, lesser offenses included in Counts One and Two, and possession with intent to distribute marijuana, Count Three. The district court imposed a 188-month sentence on the lesser offenses included in Counts One and Two and a concurrent 120-month sentence on Count Three.

The government appeals the district court’s ruling on Hollingsworth’s motion to suppress, and McCotry appeals his conviction and sentence. For the following reasons, we reverse the district court’s ruling on Hollingsworth’s motion to suppress and affirm McCotry’s conviction and sentence. * * *

For the foregoing reasons, the Court REVERSES the district court’s ruling on Hollingsworth’s motion to suppress and AFFIRMS McCotry’s conviction and sentence.

Posted by Marcia Oddi on Tuesday, July 31, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 24 NFP)

A vertitable slew of decisions - details to follow ....

For publication opinions today (4):

Andre Williams v. William Maschmeyer and Paula Clarkston

Timothy Lee Swain v. State of Indiana

Gary W. Pearson v. State of Indiana

Visitation of M.S. and K.S.; Beverly R. Newman v. K.R.

NFP civil opinions today (6):

Wally Zollman, M.D. and Zollman Surgery Center, Inc. v. Shelley Ooley (NFP)

In Re: E.S., K.S., & R.S., and Rena Smith v. Marion Co. Office of Family & Children, and Child Advocates (NFP)

Jill Baird v. ASA Collections (NFP)

Baker Machinery, Inc. v. William O. Harrington (NFP)

Scott Hashberger v. Galloway Mortgage Services, Inc. (NFP)

Progressive Engineering Associates and Joseph W. Taylor v. T-3 Investments, Paul E. Turner and Betty J. Turner (NFP)

NFP criminal opinions today (24):

State of Indiana v. Gregory Arnold (NFP)

Terrance Anderson v. State of Indiana (NFP)

Glenn A. Pharris v. State of Indiana (NFP)

Sarail Jamerson v. State of Indiana

Mark A. Roggenkamp v. State of Indiana (NFP)

Joseph Post v. State of Indiana (NFP)

Robert C. Howard v. State of Indiana (NFP)

LaDarrel Hicks v. State of Indiana (NFP)

Clifton E. Sharp v. State of Indiana (NFP)

Brian W. Sawyer v. State of Indiana (NFP)

Johnny Parker v. State of Indiana (NFP)

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

Johnny Walker v. State of Indiana (NFP)

Randy C. Cobb v.State of Indiana (NFP)

David Dozier v. State of Indiana (NFP)

Rickey L. Schultz v. State of Indiana (NFP)

Noel Edward Shuck v. State of Indiana (NFP)

William T. Chaney v. State of Indiana (NFP)

Nathan R. Sanders v. State of Indiana (NFP)

Joshua Cunningham v. State of Indiana (NFP)

Breond Yarbrough v. State of Indiana (NFP)

Donna Moore v. State of Indiana (NFP)

Larry Caldwell v. State of Indiana (NFP)

Ricky E. Graham v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 31, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judge Van Bokkelen gets first slate of cases on docket

From today's Gary Post-Tribune:

HAMMOND -- Insurance companies suing businesses and businesses suing insurance companies. A family in Ogden Dunes suing the town for raiding their house. Another family suing the city of Gary for shooting their teenage son dead.

All of them will share space on the docket of newly appointed U.S. District Court Judge Joseph Van Bokkelen, the former U.S. attorney who made his reputation on more colorful cases involving political corruption, drug dealing and other high-profile prosecutions.

All told, judges in the Northern District handed off 45 cases to Van Bokkelen, who begins hearing cases this week.

Van Bokkelen has said he will recuse himself from cases brought by the U.S. attorney's office that were filed or in the pipeline during his six-year term as head of the Northern District.

His courtroom will be in the current special proceedings courtroom. The judge Van Bokkelen is replacing, Rudy Lozano, has taken senior status and will continue hearing cases in his fourth-floor courtroom.

Posted by Marcia Oddi on Tuesday, July 31, 2007
Posted to Indiana Courts

Environment - "Megafarms" appear to be a growing issue in Michigan

Christine Ferretti of the Detroit News reports today in a lengthy story:

The largest confined dairy operation in the state has about 6,000 cows, while the average non-confined large farm has closer to 500. In 2005, about 311,000 milk cows were on Michigan's 2,800 dairy farms, 95 of which had 500 or more cows, agricultural statistics show.

A non-issue in Michigan before the 1990s, megafarms account for less than 1 percent of the state's 53,000 farms. But in less than a decade, the nearly 250 facilities -- mainly in the Thumb and near the Ohio border -- have become a growing source of contention among state lawmakers, a nuisance to neighbors and a concern to environmentalists.

The woes prompted a group of state senators last month to introduce a five-bill package seeking more state control over so-called animal factories. Current requirements, lawmakers say, aren't strict enough.

The legislation would require the state departments of agriculture and environmental quality to promote alternative means of manure disposal, require air emission plans and allow civil lawsuits to be filed against the facilities, said Sen. Ray Basham, D-Taylor, a co-sponsor of the bill.

"We've been trying to make it easier for family farms to survive and prosper, but now we're talking about factories," he said. "The animals don't move or graze … it is almost inhumane."

Neighbors claim extra precautions are necessary to prevent watershed pollution, but operators say they jump through enough hoops to protect the environment and are trying to survive in the industry.

A new condition imposed by the DEQ requiring the farms to apply for wastewater discharge permits also makes things tough, operators say.

Posted by Marcia Oddi on Tuesday, July 31, 2007
Posted to Environment

Law - In Kentucky "Clash builds on benefits for domestic partners"

Nancy C. Rodriguez and Tom Loftus of the Louisville Courier-Journal report today:

FRANKFORT, Ky. -- While 200 opponents rallied yesterday for a ban on state universities offering domestic-partner benefits to employees, Attorney General Greg Stumbo said the University of Louisville has assured him it will make changes in its plan to make sure it's constitutional.

Stumbo's office released a July 23 letter from U of L attorney Angela Koshewa that said "any changes in the University's healthcare offering for the 2008 benefit year will be consistent" with his June 1 attorney general's opinion.

The opinion said public universities could offer partner benefits if they include other people living with employees. Since then, the University of Kentucky has changed its policy to conform with the opinion, with eligible employees receiving the benefits beginning July 1.

U of L began its partner benefits Jan. 1. University officials said yesterday they have always said they would comply with Stumbo's ruling, but they are studying what changes will be needed. * * *

Stumbo's announcement came just hours before about 200 people rallied in the Capitol to urge the Kentucky House to pass a bill that would forbid universities and other public agencies from offering health insurance to domestic partners of employees.

"It is time to bear witness to the fact that the people of Kentucky have stood for marriage, and do stand for marriage now," said Kent Ostrander, executive director of the Lexington-based Family Foundation, which sponsored the rally.

Posted by Marcia Oddi on Tuesday, July 31, 2007
Posted to General Law Related

Ind. Courts - Former Allen County judge Sheldon dies at 77 [Updated]

Dionne Waugh of the Fort Wayne Journal Gazette reports:

A former judge, soldier and Fort Wayne gentleman died Sunday after a short illness.

Senior Allen Superior Court Judge Vern E. Sheldon, who retired in 1998, was known by friends and colleagues as a smart and patient person both in and out of the courtroom.

“He was very intelligent man. I admired his mind. He remembered everything,” Judge Fran Gull said. “As a judge, he handled really complicated civil matters that I was always overwhelmed by. He was always very patient, particularly with those of us not as gifted as he.”

Sheldon, who was 77 and leaves behind his wife of more than 50 years and two daughters, was appointed to the bench in 1985 and elected in 1990. He was re-elected without opposition in 1996.

See Mitch Harper's "Valedictory: Honorable Vernon Sheldon, Judge and son," here at Fort Wayne Observed.

Posted by Marcia Oddi on Tuesday, July 31, 2007
Posted to Indiana Courts

Ind. Law - Still more on: Daniels suggests rewriting the entire 1851 Indiana Constitution

Following up on its story yesterday (see ILB entry here), the Evansville Courier & Press today has an editorial expressing its views on an Indiana constitutional convention. Some quotes:

A constitutional convention to rewrite Indiana's 1851 state constitution would be a fascinating spectacle to watch. It's probably unnecessary, however, and the process could open up the constitution to mischief by special-interest groups. * * *

Such a convention would be unprecedented in Indiana in modern times. The last one was in 1851, when the current constitution we all live under was adopted.

One obvious drawback to a convention is that every special-interest group that has ever tried to get an amendment passed — for and against abortion rights, the death penalty, same-sex marriage, even a constitutional right to hunt and fish — could try to get its language written into the new constitution.

While the governor is interested in eliminating obsolete layers of local government, convention delegates might not heed that call.

Theoretically, delegates could change anything about the structure of government. I * * *

Of greater concern than the organizational chart for politicians is the question of legal rights that all residents of Indiana enjoy. In some ways, the 1851 Indiana Constitution has stronger protections for citizens than does the U.S. Constitution. Throw open the door to changing that in a convention, and it could create new legal precedents that no one can foresee.

We look forward to hearing the Kernan-Shepard commission's non-binding recommendations on how Indiana's 19th-century government might be restructured, a goal we support. We suspect some changes can be made administratively, still others by the Legislature passing new statutes. Some changes might require a constitutional amendment to modernize offices for the 21st century, while keeping the underlying document intact.

But a constitutional convention just invites legal mischief and unintended consequences. We are opposed to one unless the governor can show the needed reforms cannot be achieved by less drastic, less radical means.

The ILB hasn't had the time to do much research yet, other than the entry last evening on the "Report of the Constitutional Revision Commission 1969."

What I have turned up looks like the General Assembly would have to send a referendum on a constitutional convention to the voters, who could approve or reject the referendum. Potentially, the referendum could be narrower in scope than a rewrite of the entire document. But this is subject to revision when I get a few minutes to look into the matter further.

Posted by Marcia Oddi on Tuesday, July 31, 2007
Posted to Indiana Law

Monday, July 30, 2007

Ind. Law - More on: Daniels suggests rewriting the entire 1851 Indiana Constitution

Earlier today I promised to post some parts of the "Report of the Constitutional Revision Commission 1969." Here it is, a scanned document, 577 K.

Some observations: This was a prestigious group, co-chaired by two former governors, Matt Welsh and Harold Handley. A governor to be, Bob Orr, was a member, as was IU President Elvis Starr. Also Dean Leon Wallace of IU Law, and Bill Ruckelshaus.

This study took place during a time when many states were undertaking updating their constitutions, several through constitutional conventions. I recall receiving a hardbound copy of the Constitutional Convention of the State of Maryland, complete with a full-page color photo of then-governor Spiro Agnew. I still have it somewhere.

Looking through the recommendations, I see that many more of them than I had remembered were not that good, and were not implemented -- they never made it to, or in some cases, through, the General Assembly. But that may be something worth thinking about. If you were to equate this body with a group undertaking a constitutional convention, this might be the kind of mixed result you would get.

As I noted earlier today, there were several endeavors going on simultaneously. The Judicial Revision Commission was completing its revision of Article 7 and this Commission endorsed its recommendations. An effort was underway to change Article 4 so that the General Assembly would meet annually, rather than every two years.

And this group successfully recommended changes to Article 5 that would allow a Governor to serve two consecutive terms, and that would have a party's candidates for Governor and Lt. Governor run as a team. At that time, having a Governor and Lt. Governor of different parties was not unusual.

Near the bottom of page 7 of the document starts a lengthy discussion of the amendment process as opposed to the constitutional convention.

Near the bottom of page 8 you will see this:

Our 1851 Constitution, unlike the 1816 document, contains no provisions for revision by constitutional convention, but does set out in Article 16 the amendatory procedures discussed previously. However, the Indiana Supreme Court has held that the lack of such provisions cannot prohibit the people of our state from requesting a convention if they so desire. Section 1 of Article 1 states, "... the People have, at all times, an indefeasible right to alter and reform their government." Therefore, if a referendum of the citizens of Indiana should indicate the desire for a constitutional convention, the fact that no express provisions for such procedure are set out in our present document could not prohibit the will of the people from being followed.
I don't know why the Supreme Court case referenced is not identified.

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

Ind. Decisions - One today from 7th Circuit

In USA v. Charles Johnson, Jr. (SD Ind., Judge Tinder), a 14-page opinion, Judge Ripple writes:

Charles Johnson was charged in a two-count indictment with production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). Mr. Johnson filed a motion to suppress certain evidence on the ground that his consent to the search was involuntary. He also claimed that his waiver of his Miranda rights was involuntary. The district court conducted an evidentiary hearing and denied Mr. Johnson’s motion to suppress. Mr. Johnson pleaded guilty but preserved his right to appeal the denial of his motion to suppress. The district court accepted his plea. After a sentencing hearing, Mr. Johnson was sentenced to concurrent terms of life imprisonment. He timely filed this appeal. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

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

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

Sharren M. (Garrity) Grathwohl v. Steven T. Garrity - "It has been repeatedly held that this statute [IC 31-15-7-4(a)] requires inclusion in the marital estate of all property owned by the parties before separation, including inherited property. * * * Regarding Sharren’s joint tenancy argument, as a general rule an asset of a party should be included in the marital estate so long as the party has a present interest of possessory value in the asset. * * * Thus, Sharren has a present right to enjoy the use of the Michigan property and a right to sell or mortgage her interest in it. This is sufficient to render her joint tenancy interest a present possessory interest for purposes of including the Michigan property in the marital estate. The trial court erred as a matter of law in excluding Sharren’s joint tenancy interest in the Michigan property from the marital estate. * * * [Re dissipation of marital assets] With respect to the Conseco stock, Steven is far from the only person who became “stuck” with worthless stock in that company. If it had not lost all of its value, it too would have been included in the marital estate. The fact that Steven ultimately made a poor decision in purchasing the stock does not render such purchase frivolous. * * * We remand for the limited purpose of requiring the trial court to include both parties’ inherited properties in the marital estate, to valuate those properties, and to issue a new order redistributing the marital assets accordingly. Otherwise, we affirm."

In William T. Armstrong v. Mary M. Gordon , an 18-page opinion, Judge Sullivan writes:

Appellant-Defendant, William Armstrong, appeals following a jury trial in which the jury awarded damages to Appellee-Plaintiff, Mary Gordon, in the amount of $452,200 for injuries sustained in a car accident. Upon appeal, Armstrong makes two claims, one of which we find dispositive: whether the trial court erred in excluding evidence of Gordon’s pre-existing medical problems with her neck, including those injuries allegedly related to prior automobile accidents. We reverse and remand for a new trial.
In Nathaniel Grant v. State of Indiana , a 5-page opinion, Senior Judge Garrard writes:
In this appeal [defendant] challenges the proof necessary for the determination that he had committed the two prior unrelated felonies necessary to establish habitual offender status. * * *

Here the state presented detailed evidence of Grant’s fingerprinting in 1979 and the establishment and use of “gallery numbers”. It presented evidence of the identification of Grant’s thumbprint in the present case and in the arrest reports for the 1983 felony and the 1984 felony, all under Grant’s unique gallery number, 270742. That same gallery number appeared on the chronological case summary for both prior cases.

With this evidence linking Grant to the prior felonies, a reasonable fact finder could well have concluded beyond a reasonable doubt that he was the same person convicted of the two prior unrelated felonies as required by I.C. 35-50-2-8(a).2 Moreover, we do not share counsel’s enthusiasm for bright line rules. The issue is proof beyond a reasonable doubt, and that proof may be achieved by the use of any properly admissible evidence sufficient to establish the ultimate fact. We find no error.

NFP civil opinions today (4):

In the Matter of H.L.N.; Robert E. Chambers v. Rebecca J. Schooley (NFP) - "The trial court did not abuse its discretion in denying Chambers’ motion for the appointment of a guardian ad litem. However, the trial court’s order was not supported by either of the findings required by statute for such a decision. Remanded."

Reggie Carter v. United States Steel (NFP) - Workers compensation. "Given our standard of review on appeal, we cannot say that the Board abused its discretion when it denied Carter PTD benefits. While we might have weighed the evidence differently if we were the trier-of-fact, we are precluded from reweighing the evidence on appeal and must affirm the Board’s findings and conclusions."

Termination of the Parent-Child Relationship of M.M.J.R.; Melvin J. Nichols v. Indiana Department of Child Services, Decatur County (NFP) - "Concluding that the Indiana Department of Child Services, Decatur County Office (“DCDCS”), proved by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in M.M.J.R.’s removal will not be remedied and that the termination is in the best interests of M.M.J.R., we affirm the termination of Nichols’ parental rights to M.M.J.R."

William Glenn Sciscoe and Anita Michelle Sciscoe v. Marcella McDaniel, et al (NFP) - "William and Anita Sciscoe (collectively the Sciscoes) appeal the trial court’s denial of their summary judgment motion in their quiet title action, as well as the grant of summary judgment in favor of Marcella McDaniel, personal representative of the estate of John Davis (the Estate), on the Estate’s complaint for foreclosure. *** We affirm."

NFP criminal opinions today (9):

Jean Paul Nathan v. State of Indiana (NFP)

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

Raven Belt v. State of Indiana (NFP)

Ezekiel I. Jones v. State of Indiana (NFP)

Robert Rogers v. State of Indiana (NFP)

Sean K. Ellison v. State of Indiana (NFP)

Kunta A. Steward v. State of Indiana (NFP)

Erick A. White v. State of Indiana (NFP)

Michael S. Boguskie v. State of Indiana (NFP)

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

Ind. Courts - "Judge dismisses defendant's 'uppercase' case as 'frivolous'"

Andy Grimm of the Gary Post-Tribune writes today:

Larry Cochran will never get the chance to face LARRY COCHRAN in court.

In a bizarre twisting of the notion of "capital" crimes, federal drug defendant Larry Cochran has apparently begun to annoy the judge presiding over his case.

Hoping to take advantage of a common practice of listing parties' names in legal filings using all capital letters, Cochran last month filed a lawsuit against the "fictional" LARRY COCHRAN whose name appeared in an indictment for drug dealing.

"Who is this (defendant) fictitious entity (LARRY COCHRAN)?" Cochran queried in his motion. "How can the Plaintiff (Cochran) a real live flesh and blood man, be an involuntary party ... to an action and/or claim involving ... fictitious and artificial entities?"

U.S. Judge James Moody, who also is presiding over Cochran's criminal case and the flurry of similar motions, letters and requests Cochran has filed from his cell in the Metropolitan Correction Center in Chicago, dismissed the case.

"Cochran is not as delusional as this sophomoric word game makes him appear," Moody wrote in his ruling. "He fully understands that he is LARRY COCHRAN and that he is in jail defending himself from a serious felony crime.

"Cochran is abusing the legal system in an attempt to waste judicial resources and harass (prosecutors)."

Posted by Marcia Oddi on Monday, July 30, 2007
Posted to Ind Fed D.Ct. Decisions

Law - More on the student loan program

The ILB has had a number of entries about student loans - here is a list. Sunday's NY Times special education supplement included several interesting stories.

Joe Nocera, a Times business columnist, has this article titled "The Profit and the Pauper." He writes abut changes in the student loan program since he was a student:

My bank probably didn’t make a dime on me. It never raised my interest rate as punishment, nor did I ever have to pay any late fees. My chronic tardiness didn’t even affect my credit rating. And had I defaulted, I would not have had my wages garnished, or been stuck with the debt if I had filed for bankruptcy. All of which can happen today.

“Student loans have become big business,” says Barmak Nassirian, the executive director of the American Association of Collegiate Registrars and Admissions Officers — and high interest rates and hefty late fees are part of what makes it so profitable. Many a student comes out of college only to discover that his loan has become a noose around his neck.

For some months now, the news about student loans has largely been about scandal — how lenders have curried favor with financial aid officers to get on their “preferred lender” lists, for instance. Bills in both the House and the Senate aim to reform the system. But there is a larger, perhaps sadder story here: How did this critically important social program become so unmoored from its original intent, which was to help poor and middle-class students pay for college? To put it another way, why did student loans become more about shareholders than about students?

Later in the lengthy article, a discussion of Sallie Mae:
“Sallie revolutionized the industry,” says Representative Miller, and he doesn’t mean that as a compliment. It imposed fees and penalties that added costs when students were already having trouble repaying loans — while increasing Sallie’s profits. It bought its own collection agency. It lobbied to make it nearly impossible for borrowers to escape their student debt. (It was aided along the way by occasional reports of the wealthy reneging on their student debt, thus saddling the taxpayer with the bill.) * * *

But in our obsession with the market, we had forgotten that this stock’s performance resulted in no small part from Sallie Mae — like many of its competitors — making money on the backs of struggling college graduates. It was a little like the credit card business: the “best” customers aren’t the ones who pay off their monthly charges on time; they’re the ones who can’t. For the student loan industry, the best customers are the students who take on more debt than they can handle to get through school. What’s been lost is the idea that student loans are a service with benefits that transcend the financial.

A second article, by Laura Pappano, is titled "Lessons From the Loan Scandal." It provdes "takeaway advice about where to borrow, how to borrow and how to avoid borrowing."

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

Environment - "Decades After a NY Plant Closes, Waste Remains"

The lead story in the business section of the Sunday NY Times is on the failure of the Superfund cleanup program, at least at one ford plant in New York. Some quotes from the lengthy story:

From the mid-1950s to the late 1970s, Ford operated an assembly plant in northern New Jersey, in nearby Mahwah, that cranked out millions of passenger cars. Ford closed the plant in 1980, after dumping what the E.P.A. describes as thousands of tons of paint sludge and other waste in Upper Ringwood, a community of about 350 working-class residents located in the foothills of the Ramapo Mountains.

A few years later, the Environmental Protection Agency identified Upper Ringwood for priority cleanup under its Superfund program. Ford, deemed responsible for the pollution, spent the next five years assessing and removing sludge from a 500-acre site that included 50 homes. Satisfied with Ford’s cleanup, the E.P.A. dropped Upper Ringwood as a Superfund site in 1994, having determined, according to a public notice, that “no further cleanup by responsible parties is appropriate” and that “the current risk posed by the site is within an acceptable range.”

Yet recently, based on Ford’s and the E.P.A.’s own recent follow-up studies of the soil and groundwater in Upper Ringwood, those conclusions unraveled and became fodder in what environmental experts say is now among the messiest industrial cleanup efforts in Superfund’s 27-year history.

Since the E.P.A. relisted Upper Ringwood last year as a Superfund site, cleanup experts in the area have not only removed several thousand tons of waste that crews had previously overlooked, but workers have also identified substantial amounts of potentially hazardous paint sludge in the yards of at least two private homes, according to federal regulators and Ford. * * *

SOME environmental experts and analysts say the biggest problem in cleaning Upper Ringwood, as well as the nation’s more than 1,000 other Superfund sites, stems from the depleted resources of the Superfund itself. Superfund’s budget was built on an excise tax on crude oil and chemicals used for manufacturing. The tax lapsed in 1995, and the trust fund has shrunk from $1.5 billion in 1994 to insolvency today — leaving the E.P.A. struggling to find other sources of money to identify and assess the nation’s future cleanup needs, according to several recent studies. The E.P.A. says that Superfund’s shrinking resources don’t undermine its ability to monitor corporate polluters and that companies themselves can adequately manage and police cleanups on their own.

The price tag for all of this remains large: according to a 2005 Government Accountability Office report, it will cost $20 billion to remediate the 142 largest Superfund sites.

Superfund has proved to be effective in spurring corporate polluters to pay for their own cleanups, analysts say. Rather than face fines of as much as three times the actual cost of a cleanup if the E.P.A. undertook the effort on its own, most major corporate polluters have opted to clean the sites themselves. But that, in turn, has left the E.P.A. dependent on corporate polluters to oversee and clean up problem sites.

“Funding of cleanups is a really central issue now that the tax fund has been depleted,” says Katherine N. Probst, a senior fellow at Resources for the Future, a nonpartisan economic research group in Washington. “And there are issues about money, and issues about the future of the program, and questions about what you can expect to get in a cleanup these days.”

For its part, Ford says its efforts to clean the area through the years have been nothing less than rigorous, and that the company’s voluntary decision to study the area’s ground and streams for pollutants after closing its plant reflects its overall commitment to making the area safe for residents. The company says it is doing additional cleanup work at known landfill areas, including at two abandoned mine sites.

An interesting sidelight to this story is that it was accompanied by a Google "keyword-targeted" ad titled "BP and Lake Michigan," which led to this site about the Whiting Refinery designed to "correct inaccurate media accounts and misleading statements that we believe have caused unnecessary concern about this project.."

Posted by Marcia Oddi on Monday, July 30, 2007
Posted to Environment

Ind. Courts - Delaware County Judge rejects proposed plea bargains

From today's Muncie Star-Press:

Delaware Circuit Court 3 Judge Robert Barnet Jr. has rejected proposed plea agreements in two more criminal cases.

One of the deals -- negotiated by defense attorneys and the Delaware County prosecutor's office -- rejected last week called for Thelma Sollars, accused of stealing about $13,000 from her former employer, to spend no more than 60 days in jail.

The other agreement called for Daleville resident Joshua R. Thurston to plead guilty to driving while intoxicated -- resulting in his fourth felony conviction in as many years -- and receive a five-day jail sentence. * * *

Barnet in recent weeks rejected plea agreements in embezzlement cases involving a former school secretary accused of stealing more than $30,000 from the Liberty-Perry School Corp. and its parent-teacher organization, and an ex-welfare worker caseworker accused of receiving almost $45,000 in fraudulent benefits.

The story has no word from the Delaware County prosecutor's office.

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

Ind. Law - Daniels suggests rewiting the entire 1851 Indiana Constitution

Bryan Corbin writes today in the Evansville Courier & Press:

[T]he 1851 Indiana Constitution has been the basic operating manual for state and local government for a century and a half. To restructure the multiple layers of local government contributing to high property taxes, Gov. Mitch Daniels is asking whether — after 156 years — the system established by the constitution ought to be replaced.

The Republican governor has more in mind than just amending the state constitution, which has happened regularly in Indiana's history. Daniels has floated the idea of calling a constitutional convention, where delegates would rewrite the constitution from square one. Although parts of the current document could be retained, anything dealing with the structure of government and the legal rights of Hoosiers could potentially be changed.

Daniels has said he likes "big, bold solutions" and that dealing with high property taxes will involve modernizing what he calls Indiana's "antique system" established in 1851. He has appointed a panel of experts, led by his predecessor, former Democratic Gov. Joe Kernan, and Indiana Chief Justice Randall Shepard to study and recommend local government reforms.

Besides possibly consolidating schools or libraries and abolishing township-level and county-level assessors, the Kernan-Shepard commission was asked to find out whether a constitutional convention is "necessary or desirable as a means to achieve significant reforms in the structure and organization" of government.

"My point was, everything needs to be on the table, everything needs to be looked at," Daniels said recently. * * *

The idea of repealing the state constitution and starting over has been greeted with skepticism by legislators of the governor's own party.

For all its flaws, the 1851 state constitution has held up well in protecting individual rights, legal experts say. * * *

Delegates to a constitutional convention could alter basic features of government — not just the number and duties of state, county and township offices, but also the lengths of terms that officials serve — and they could change redistricting.

As a public defender in Vanderburgh County courts, Banks wonders about wholesale changes to the judicial system. Legal precedents may no longer apply, and the powers and six-year terms of circuit and superior court judges might change.

"A constitutional convention could cause the courts to be run on a state basis as opposed to a local basis, which might be good in some ways and bad in other ways," Banks said. * * *

[T]he risk of unintended political consequences concerns state Rep. Dennis Avery, D-Evansville.

"If we have a constitutional convention, there's no guarantee (the delegates) would do the things the governor wants," Avery said. "You're creating an unwieldy animal that could do what it wants to do, as long as the public supports the final project."

Avery recalled controversial social issues that special-interest groups have tried to amend into the state constitution in recent years. Much of this year's Legislature was consumed by debate on one proposed constitutional amendment, SJR 7, the same-sex-marriage ban, which was approved in the state Senate but did not pass in an Indiana House committee.

A constitution rewrite would open the door to adding SJR 7 while bypassing the time-consuming amendment process. But one of the most vocal supporters of SJR 7, lobbyist Eric Miller of the conservative group Advance America, said he opposes a convention. * * *

By year's end, the Kernan-Shepard commission will recommend ways of changing local government, which might involve changes to the state constitution. Its findings would be non-binding on the Legislature.

Concerns about a convention are "very legitimate," Daniels said. "I'm just framing questions that we'd like these very wise people (the Kernan-Shepard commission) to speak to the state. They could easily come back with exactly that point of view."

I will review later this morning a copy of the 1969 Indiana Constitutional Revision Commission, on which I served as a lead staffer. This Commission, working in conjunction with the Judicial Revision Commission, which concentrated on Article 7, recommended significant revisions to the 1851 Constitution, most of which were approved by the General Assembly and ratified by the voters over the next few years. An important initial question addressed by the Commission was: "Amendment or Constitutional Convention?"

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

Sunday, July 29, 2007

Ind. Courts - "Court caseload increase leaves Vigo judge ‘baffled’"

Deb McKee reported Saturday in the Terre Haute Tribune-Star in a story that begins:

One Vigo County court has been experiencing higher-than-normal caseloads during the first half of the year, causing some to wonder if certain types of offenses are being committed more often — or if increased patrols are catching more.

Vigo County Superior Court Division 5, which handles all drug- and alcohol-related offenses, has seen an almost 17 percent increase in criminal cases filed in the first half of 2007, from those filed in the first half of 2006.

From Jan. 1 to June 27, 2006, 583 cases were filed in Division 5. During the same period in 2007, 684 cases have been filed.

Not all cases are drug- or alcohol-related, according to Division 5 Judge Barbara Brugnaux, but they make up the majority of the docket. So far in 2007, substance-related cases account for about 94 percent of new cases filed.

Brugnaux said one type of case, in particular, has court staff shaking their heads.

“We’ve really been rather baffled by the increase in drunk driving cases,” she said, “and we can’t pinpoint any one reason.”

Posted by Marcia Oddi on Sunday, July 29, 2007
Posted to Indiana Courts

Courts - New Albany, adult store still await ruling

Dick Kaukas writes today in the Louisville Courier Journal:

It's been almost two years since lawyers for the city of New Albany and for the adult bookstore presented arguments before the 7th U.S. Circuit Court of Appeals in Chicago in the city's fight to shut down the store. There still has been no ruling, and the lawyers say that's an unusually long time. Most cases are decided in a year or less, they said.

In the meantime, the bookstore at 601 W. Main St. remains open 24 hours a day, seven days a week. * * *

New Albany DVD opened on Feb. 19, 2004. Within hours, the City Council adopted a six-month moratorium on any new sexually oriented businesses, and city officials ordered the store to close.

But a few days later, Mason sued in U.S. District Court in New Albany, claiming the store owner's right to free expression had been violated.

The case eventually went before U.S. District Judge Sarah Evans Barker, where lawyers for the city argued that city officials were simply enforcing a zoning ordinance -- passed several weeks after New Albany DVD had been ordered closed -- to regulate adult businesses.

Barker ruled against the city, saying the ordinance was too broad, and she ordered the city to let the store stay open pending a trial. But the trial was put on hold pending the appeal of Barker's ruling.

City Attorney Shane Gibson said last week he had no idea why the appeal has not been decided yet.

Scott Bergthold, a Chattanooga, Tenn., lawyer who also is representing New Albany and specializes in defending municipal adult business regulations, said the amount of time taken by the court seems unusual.

Bergthold said the court might be grappling with some difficult issues as well as with a similar case from Indianapolis. The judges, he speculated, might be trying to reconcile the issues raised by the two cases.

Mason made the same point, adding that it's possible documents filed by both sides are contributing to how long the court is taking. He said he has tried to keep the court current on rulings in similar cases and recently sent information on one case to the court.

Still, Mason said the wait has been puzzling, especially given the 7th Circuit's reputation for reaching decisions quickly.

"I really don't have a clue why it's taking so long," he said.

Here is a long list of ILB entries in the New Albany case, the most recent (until today) being this one from Sept. 27th, 2005, headed "7th Circuit hears adult-store debate."

Posted by Marcia Oddi on Sunday, July 29, 2007
Posted to Ind. (7th Cir.) Decisions

Law - Lawyer in Kentucky schools case seeks fees, bonus

Early this month the ILB had an entry headed "Attorney who represented Seattle parents in a race-based lawsuit aims to recover his pro bono legal costs," and including this quote from the Seattle Post-Intelligencer:

Seattle Public Schools, already stung from losing its long-running legal fight over voluntary desegregation measures, now faces a new trial: paying the seven-figure legal fees of the parents who sued the district.

Just one day after the U.S. Supreme Court ruled the district cannot use a racial tiebreaker in determining school assignments, the parents' "pro bono" attorney indicated he will try to recover legal costs he estimates will be seven figures.

"This stuff is expensive," attorney Harry Korrell, a partner at the Seattle law firm of Davis Wright Tremaine, said Friday. "There's no way to fight in federal court ... without racking up quite a legal bill." * * *

Pressing a public school district to pay more than $1 million in legal fees to a large law firm "is a little contrary to the idea that pro bono is for the public good," said Shannon McMinimee, an attorney for the district.

A second ILB entry, on July 7th, quoted from an American Lawyer story headed "Shhh! Pro Bono's Not Just for Liberals Anymore: Very quietly, big law firms are taking on conservative causes as well,"

Recall that the Supreme Court's June 28th rulings involved two school districts, Seattle, Washington, and Louisville, Kentucky.

Today Chris Kenning and Andrew Wolfson of the Louisville Courier Journal have a story headlined "Lawyer in schools case seeks fees, bonus: Jefferson parents' attorney asks judge to set payment." Interestingly, there is no mention of "pro bono" in this Kentucky story, it is written solely in terms of civil rights laws, while there is no mention of "civil rights" in the Seattle stories, they are all couched in terms of "pro bono." Some quotes from today's story:

A Louisville lawyer who successfully challenged Jefferson County Public Schools' racial-integration policy wants the district to pay his legal fees, plus a bonus, according to a motion filed yesterday.

At least one legal expert says the final figure could reach hundreds of thousands of dollars or more.

Attorney Teddy Gordon, who represented parents in a lawsuit decided by the U.S. Supreme Court last month, isn't saying exactly how much he thinks the district should pay him, but he wants more than $200 an hour, and a bonus to reflect the case's impact on schools nationwide.

"I have spent thousands of my own money on expenses and court costs," he said in a statement, while declining to say how much he thinks he deserves. "Because I am a sole practitioner who has worked hundreds of hours on these cases, I was not able to take on other clients."

Gordon's filing leaves it up to U.S. District Judge John Heyburn to determine how much he should be paid. School district lawyers declined to comment on his request.

But attorney David Friedman of Louisville, who has litigated many civil-rights cases, said Gordon almost certainly can expect to get a six-figure fee, partly because the case went all the way to the U.S. Supreme Court. * * *

The winning parties in civil-rights cases can recover attorneys' fees from the losers, and a premium or bonus can be added for complex cases. A judge usually considers the time spent, work quality and scope, experts and attorneys said.

In Gordon's case, Jefferson County Public Schools will be responsible for the fee. District officials said that insurance, after a $50,000 deductible, would cover the cost of any awarded fees and damages, and that it would not come out of the district's budget.

Before this request, Gordon sought $44,988 in fees after the initial U.S. District Court trial of the Meredith case, as well as a bonus that would bring his total fee to $150,000.

Heyburn, who was the judge in that trial, deferred ruling on the request and said he would reconsider it after the appeals had run their course, according to Byron Leet, a school district attorney. Gordon requested a fee of $60,000 for his hourly work in a 1998 Central High School case -- which led to a 2000 decision that limited the consideration of race in admissions to four magnet schools, including Central -- as well as a $150,000 bonus. Heyburn awarded him $38,800 for his hourly work and no bonus, according to court records and Leet.

In the Meredith case, Gordon said he wants a fee "equal to if not greater" than that paid to Leet and other school district attorneys, and all related costs. The district says it doesn't know that amount because insurance has paid the cost of contract attorneys. Leet also said he could not immediately provide that amount.

Civil-rights cases have allowed winning parties to recover their attorneys' fees since 1976, when Congress decided to level the playing field so that private citizens with little or no money could bring actions against state and local government to enforce civil-rights laws.

Courts elsewhere have approved some substantial awards. Last year, for example, the Dover School District in Pennsylvania was forced to pay $1 million in legal fees to the American Civil Liberties Union and the Americans United for Separation of Church and State, which successfully represented parents who sued the district for teaching the theory of intelligent design in ninth-grade biology classes.

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

Ind. Law - "Estate plans benefit all, local elder law experts say"

Dionne Waugh has two stories today in the Fort Wayne Journal Gazette about estate planning. The first begins:

Local attorney Stephen Adair, who has practiced elder law for 40 years, said it can be hard for people to know when to cede control and let others help them.

That’s why he said families should do some estate planning, such as creating a living will or appointing someone to be their power of attorney should something happen to them.

When family members stop taking care of themselves, it puts caregivers in a really tough spot, he said.

The second is headlined "Brother's keeper can face legal quandary: Self-neglect cases present ‘real gray area' for law."

Posted by Marcia Oddi on Sunday, July 29, 2007
Posted to Indiana Law

Law - "Sex offender limits: Too far?"

This ILB entry from last Wednesday, July 25th, reported on a suit in Lafayette challenging Indiana's law requiring that convicted sex offenders living within 1,000 feet of certain properties such as schools must move. The entry also referenced several successful similar challenges in Kentucky.

Today the Cincinnati Enquirer has a number of stories (a special report) devoted to requirements in both Kentucky and Ohio. The lead story, by Gregory Korte, is headlined: "Sex offender limits: Too far? Laws restrict where 2,400 can live; courts and neighborhoods struggle with consequences." Here are some quotes from the lengthy main story:

It seems like a common-sense precaution to protect children: Prohibit sex offenders from living within 1,000 feet of a school.

But that simple premise - which has been law in Ohio since 2003 and Kentucky since 2006 - is quickly degenerating into a legislative free-for-all, fraught with unintended consequences, controversy and constitutional questions.

The Ohio and Kentucky supreme courts are poised this fall to decide if the laws are unconstitutional because they subject offenders to further punishment after they've served their sentences.

Meanwhile, evidence suggests that residency restrictions may be counterproductive, forcing sex offenders underground and lulling parents into a false sense of security. Hamilton County sheriff's deputies, for example, have arrest warrants out for 49 sex offenders who should have registered their addresses - but who have dropped out of sight.

Seven of them simply stopped registering after the city of Cincinnati told them they couldn't live within 1,000 feet of a school.

And there's this: As more areas become off-limits, sex offenders are being concentrated into neighborhoods with few schools and inexpensive housing - neighborhoods like Westwood and Florence, an Enquirer analysis of sex offender registration data shows.

Even if they're not a threat, a concentration of sex offenders is bad news for property values. One study by the National Bureau of Economic Research suggests that a sex offender moving into a neighborhood can reduce a home's value by $5,500. * * *

Cincinnati's hard line also has prompted at least two townships - Anderson and Sycamore - to impose more restrictions there in the past two months. The townships say they have no choice: If Cincinnati's new law has the effect of pushing sex offenders out, the suburbs must counter with restrictions of their own.

Anderson Township says sex offenders can't live within 1,000 feet of parks and playgrounds. Sycamore Township followed with a 1,000-foot ban around day-care centers, playgrounds, parks, swimming pools, athletic fields and churches. * * *

The competition among cities to restrict sex offenders can take extreme forms.

The city of Reading passed an ordinance last year restricting sex offenders from within 2,000 feet of schools, day-care centers, public pools, parks, libraries and athletic fields. They encompassed virtually the entire land area of Reading.

In Northern Kentucky, local jurisdictions are on a playground-building binge.

Because sex offenders cannot live within 1,000 feet of a "publicly owned playground," authorities are getting requests from governments to reclassify vacant property as parks.

"What's happening with us is, all the little cities are saying, 'Here's a park, here's a park, here's a park,' " says Trisha Brush of the Northern Kentucky Regional Planning Commission. "Now a park is two pieces of playground equipment. Or a bench. They're taking any bit of green space and putting a bench there."

Sheriffs, who are responsible for checking up on sex offenders as often as four times a year, say residency laws are taxing their resources. * * *

The Jacob Wetterling Foundation helped pass the nation's first laws, in 1994, requiring sex offenders to register their home addresses.But Executive Director Nancy Sabin says research has shown no benefit to the laws, and they might make parents feel safe when they shouldn't.

The attention on convicted sex offenders ignores the fact that 90 percent of child sexual abuse is perpetrated by relatives or others who are invited into the home, she said.

"I don't want people looking for the wrong monsters," Sabin says. "I want them to be vigilant on the 10 percent. I want them to be really vigilant on the 90."

An editorial today in the Enquirer warns of false security from these sex offender restrictions. Some concluding paragraphs:
Several of these restrictions now face court challenges over their Constitutionality. Imposing penalties on someone who already has served a sentence sets a dubious precedent.

As Ohio Rep. Bill Seitz, R-Green Township, noted the more communities ratchet up the restrictions, the less supportable they become, and the greater the risk that the whole concept will be thrown out.

But the biggest flaw with the restrictions is that they may lull people into a false sense of security. The problem with sexual predators is not where they live, but where they commit their offenses. A predator is not any less likely to prey on innocent children if his apartment is 1,001 feet from a school or park than he is if he lives 999 feet away. Increasing residential restrictions also tends to concentrate registered offenders in areas where restrictions are not so tight, or were there are no schools, parks or other banned facilities. That creates an unfair burden on the inhabited community and often prompts a new round of restrictions.

One other key statistic noted in today's report: 90 percent of child sexual abuse is committed by a family friend or relative that is permitted into the home.

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

Ind. Gov't. - "Is INDOT giving fair market value?"

Liza Danver of 14WFIE.com NEWS, reports:

The I-69 extension project may be costing some Indiana residents more than others.

INDOT, the Indiana Department of Transportation, is buying property to build the interstate. One landowner who's been through this process before believes the price the state is offering is unfair.

When Jerry Lehman bought his land 30 years ago, he didn't think it would become part of a highway. A few years back INDOT told Lehman they needed to buy some of his land, but Lehman says the state's offer was 50 percent less than a court appointed assessor said it was worth, and Lehman believes tri-Staters facing I-69 buyouts are getting the same low estimates.

Lehman took the state to court and won. ALthough he didn't get paid until the two year long court battle was over.

Jerry Lehman, says, "You can fight this thing, spend attorneys fees and its going to be years before you get your money and they know that, and they take advantage of that."

Lehman says he's lucky because the state didn't take his home, but the same may not be true for the folks we've told you about in Gibson County, who have to move to make room for I-69. Jerry says these families usually can't wait for lengthy court proceedings, they need money to buy a new house.

Jerry Lehman, says, "There's a lot of things about this that aren't fair."

Kent Ahrenholtz, INDOT spokesman, says, "The reason they use independent appraisers to do that work is to make sure they get the property at fair market value."

Most homeowners we've talked to believe INDOT is not giving them a fair price for their property. Although some are willing to make concessions, saying it's the price of progress.

INDOT says it's buying some 400 parcels of land for the I-69 extension. Construction is expected to begin next year.

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

Ind. Gov't. - "There's too much wrong to do anything but fix it"

The Indianapolis Star has an outstanding editorial today headed "There's too much wrong to do anything but fix it."

The ILB will pick up right now on just one of the many important points made, near the end of the Star's list:

Something is wrong when taxpayers have to pay $3 each time they want to go on their home computers to see their tax records, or lacking computers have to go down to the City-County Building for the information. This is government transparency at its worst.
For sure. This is something the ILB has planned to write about for some time, but put off because the Star itself has helpfully provided online through its own resources at least some of the information citizens need to be able to understand their property tax situation.

Civicnet is the access-for-pay website Marion County has provided for its taxpayers to access property tax information. Here is the link, but this access-for-pay computer site is closed all day on Sundays and only open part of the day the rest of each week. When it is available it will cost you a minimum of $4.00 to access information about your own residence, and that much again for each additional residence you may want to look at to get an idea of how your assessment ranks against nearby properties. And you will not be able to get your assessment sheet here (the one with the little drawing of your lot and residence that has the assessor's figures). You will need to go downtown for that.

And there is no place in Marion County that the ILB knows of where you can access recent sales figures, a must if you are considering an appeal. That information is available for Boone, Hamilton County, Hancock, Hendricks, and Johnson counties here, via the Indianapolis Star. Each county's page is a little different, the Star's Hamilton County page includes this statement: "The Hamilton County Assessor's Office provides this information, which is available as a public record." Hancock, Hendricks and Johnson contain similar statements.

The ILB was impressed earlier this month by the Governor's appointment of Cheryl Musgrave as the new commissioner of the Department of Local Government Finance because when she was Vanderburgh County Assessor, she put in place a free county website providing all the information mentioned above, and more. See this ILB entry from Sept. 22, 2004. Here is a quote from the Evansville C&P at the time, about an upgrade to the database:

The photographs will be helpful for appraisers, real estate agencies and people shopping for homes, according to [Assessor Cheryl Musgrave ]. She said the goal of her Web site is to provide "everything you need when you're trying to learn about a piece of property," and a photograph "is worth 1,000 words." The feature was created at no additional cost to the county, said Musgrave.
Here is a link to the Vanderburgh County internet database. According to the site description: "This is a website for viewing properties and associated assessment data. You can click on the map to identify or select properties. You can also search for properties and sales."

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

Saturday, July 28, 2007

Ind. Courts - Lake jurors say instructions were confusing

Ruth Ann Krause reports today in the Gary Post-Tribune that begins:

About half of the jurors who acquitted Korey Juane Looney, 22, of attempted murder, confinement, aggravated battery and battery Thursday said afterward they were confused by the jury instructions.

Jurors indicated they didn't understand that they could acquit Looney of some charges and convict him of others, according to individuals who spoke with them after about three hours of deliberation.

Posted by Marcia Oddi on Saturday, July 28, 2007
Posted to Indiana Courts

Law - Recovering damages from Chinese companies

The Washington Post today has a story reported by Xiyun Yang headlined "Liability Lawyers Struggle to Pierce the Chinese Curtain." A few quotes:

While suing companies in foreign countries is always more difficult than pursing a domestic lawsuit, the complexities of filing a case against a Chinese firm are compounded by the country's regulatory and legal systems and by political relations between Washington and Beijing. * * *

The problems begin before a lawsuit is filed. A Chinese company can only be sued in an American court if it does business on American soil, and not merely over the Internet.

Stephen A. Litchfield, a lawyer for Schneider Electric, is trying to sue two Chinese companies and accuse them of counterfeiting its Square D circuit breakers. "These companies only have Web addresses, no registered Chinese names. They don't appear to be real companies," Litchfield said. * * *

The opacity and scarcity of regulation of Chinese business practices make investigations and evidence-gathering cumbersome and frustrating. Headquarters offices, once found, are often bare-bones operations. Records may be spotty or nonexistent. Unaffected by court orders, the level of cooperation is low. Sometimes the Chinese company will not show up to a U.S. court.

"Getting records is virtually impossible. You can make requests until you're blue in the face. You'll just get some token response," said Stephen Ching, a Philadelphia lawyer with 20 years of experience in China. Ching has been involved in 25 lawsuits against Chinese companies in the last two years.

While Schneider Electric is attempting to obtain a default judgment against the Chinese, which is a judgment made in a company's absence, enforcement will be difficult. The United States and China have not signed an agreement to enforce one another's court judgments.

A story in Fortune from July 5th reported:
(Fortune Magazine) -- Not since exploding Ford Pintos in the 1970s has there been as incendiary a catalyst for recalls as China's recent spate of consumer product scares. Since March a cluster of incidents involving potentially deadly, defective, or contaminated products imported from China - pet food, toys, tires, toothpaste, cough syrup, shrimp - has awakened both that country and the United States to a latent crisis.

The larger question is just who is legally responsible when a chemical used in antifreeze ends up in a tube of toothpaste. U.S. companies are starting to find out as the lawsuits roll in that the tainted ingredients may come from China, but the liability is here. * * *

Menu Foods, the Ontario petfood maker whose China-sourced, melamine-laced gluten poisoned dozens of brands of American pet food, already faces more than 100 class-action suits. In its case, the big-name brands and retailers that it supplies - Procter & Gamble (Charts, Fortune 500), Wal-Mart (Charts, Fortune 500), Safeway (Charts, Fortune 500), Kroger (Charts, Fortune 500) - are showing up as defendants too, and could become the crucial deep pockets if Menu Foods runs out of insurance coverage. San Francisco plaintiffs lawyer William Audet explains, "For most states there's a duty on the seller to distribute a product that doesn't have poison in it." Indeed, with few exceptions, the retailers are typically on the hook, says Sheila Birnbaum, head of product-liability defense at Skadden Arps Slate Meagher & Flom.

They can seek indemnification from their Chinese exporters, but that will be their problem. (No American lawyer interviewed for this article was contemplating suing Chinese entities in Chinese courts, where tiny damage awards and frequently hostile local judges often make litigation pointless.) One way or another, if they want to stay in business, Chinese exporters will have to become accountable for injuries to U.S. consumers and businesses.

"If China wants to stay in the world market as a player, it's going to have to stand behind the products its companies manufacture," Birnbaum says. That means stronger regulation, more legal accountability - and maybe even more Chinese personal-injury lawyers.

A brief July 9th story in Business Week, titled "Made in China, Sued Here," includes the following:
Meanwhile, the Washington (D.C.) firm of Cohen, Milstein, Hausfeld & Toll is weighing litigation against Western distributors of Chinese-made counterfeit glycerin that found its way into cold medicine, killing hundreds of children in Panama and elsewhere. "Do people along the chain have responsibility for knowing where key ingredients are coming from? The answer you're going to find in an era of globalization is 'Yes," says Cohen Milstein's Michael Hausfeld.

Despite a wave of business-friendly legal reforms in recent years, companies can be held liable in most states in the U.S. even if they unwittingly sell a dangerous product. "All you have to show is that the product was defective," says William Ruskin, a defense litigator with Epstein, Becker & Green in New York. "It's no defense to say, 'We didn't know.'" Under product-liability law, one company often can be held 100% liable for all damages awarded to all consumers, regardless of its market share or the amount of tainted product it might have sold.

Don't expect plaintiffs' lawyers to make their way to China. They aren't likely to bother with small, far-flung producers that can't afford to pay big judgments.

The WSJ Blog picked up the Business Week story in this entry. The story is picked up again by the Harris & Moure blog, China Law Blog. This blog has a number of interesting entries, including July 27th's "China Quality Control: Darkness Before The Dawn."

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

Ind. Decisions - "High court to tackle corporal punishment"

Jeff Parrott of the South Bend Tribune writes today about the Supreme Court's decision Thursday to grant transfer in the case of Sophia Willis v. State. (The 5/17/07 ILB entry, 5th case, included this quote from the COA opinion: "We sympathize with Willis’s argument that she is a single parent who is doing the best that she can, but we cannot condone her choice to whip her child with an extension cord to the point of causing him bruises and extended pain.")

Some quotes from today's lengthy story:

The appeals court found that the trial court can best determine what is reasonable under any given circumstances.

At the same time, the appeals court pointed to the lack of legal precedent from which to judge such cases.

"As we have noted in the past, 'there is precious little Indiana case law providing guidance as to what constitutes proper and reasonable parental discipline of children, and there are no bright-line rules,'æ" the judges wrote.

St. Joseph County Probate Judge Peter Nemeth, who handles child abuse and neglect cases, called the Supreme Court's decision to consider the case "an interesting proposition."

"That will be difficult," Nemeth said. "You almost have to look at each individual case."

Nemeth said it is similar to how then-U.S. Supreme Court Justice Potter Stewart in 1964 said that he might not be able to define hard-core pornography, or obscenity, "but I know it when I see it."

"Common sense has to prevail," Nemeth said. "I don't know if the state should be interfering in parent-child relations, but in cases where it becomes excessive, the state should step in."

Nemeth said the state's highest court could end up simply concluding that no clear statewide line should be drawn. * * *

These days, child protection agencies tend to have less tolerance for corporal punishment than was the case decades ago, Nemeth said. Their standard for intervening in a case tends to be if a mark is left on the child.

But Nemeth said his line isn't as sharp.

"It depends on the mark," he said. "A red mark, I think that can happen in the administration of legitimate corporal punishment. I think using the hand or a strap is OK."

However, a black-and-blue mark, or many red marks, crosses the line, the judge said.

Posted by Marcia Oddi on Saturday, July 28, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Appeals court affirms killer Green's sentences"

Yesterday's Court of Appeals decision in David Michael Green v. State of Indiana is the subject of two stories today.

Ruth Ann Krause of the Gary Post-Tribune writes:

The Indiana Court of Appeals has upheld the conviction and sentence for David Michael Green, who was sentenced last year to 90 years in prison for killing his estranged wife, Stacy, and their unborn son.

The court rejected claims that Green, 32, acted in self-defense against his wife, who was 39 weeks pregnant.

It also found that the Lake Superior Court Judge Thomas Stefaniak Jr. properly allowed Green's statement to police to be admitted as evidence.

Green gave the statement after defense attorney Sam Cappas secured a written agreement with Lake County Prosecutor Bernard Carter that the state wouldn't pursue the death penalty against Green.

The appeals court also found that Stefaniak was justified in imposing consecutive sentences for each of the victims, but questioned why Green was given the minimum of 45 years per count. * * *

While the appeals court agreed that David Green had no prior criminal history, the judges felt "mitigated sentences were inappropriate.

Nevertheless, lacking clear statutory or constitutional authority to revise sentences upward, we are constrained to affirm the 45-year sentences," the decision states.

Keith Benman's story in the NWI Times also picks up on this part of the opinion:
The court rejected Green's claims that the trial court erred in allowing certain evidence and upheld Lake Criminal Court Judge Thomas P. Stefaniak Jr.'s imposition of consecutive 45-year sentences.

In fact, the appellate court sentences could have been harsher.

"Our review of the character of the offender and the nature of the offenses as reflected in the record before us suggest Green's mitigated sentences were inappropriate," the court wrote. "Nevertheless, lacking clear statutory or constitutional authority to revise sentences upward, we are constrained to affirm the 45-year sentences."

Posted by Marcia Oddi on Saturday, July 28, 2007
Posted to Ind. App.Ct. Decisions

Friday, July 27, 2007

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

Here is the Indiana Supreme Court's transfer list for the week ending July 27, 2007.

There were six transfers granted this week; five were summarized in this ILB entry yesterday.

The sixth, in which there was no COA opinion, was "Granted and Remanded to the Court of Appeals."

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, July 27, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

David Michael Green v. State of Indiana - "The State presented sufficient evidence to negate Green’s defenses of self-defense and accident. Green has established no reversible error in the admission of evidence. Finally, he has failed to persuade us that his consecutive sentences are inappropriate. Affirmed."

Stephen M. Hay v. Ronald and Gloria Baumgartner - "[W]e conclude that the trial court properly determined that the use of the shared Driveway between both Properties resulted in a revocable license."

In Estate of Matthew Dyer, Betty and Jerry Dyer v. Thomas Doyle, individually, and as an Employee of Orkin Exterminating Co., a 23-page, 2-1 opinion, Judge Crone writes:

The Estate of Matthew Dyer (“Dyer”), Betty Dyer, and Jerry Dyer (collectively, “the Estate”) appeal the negative judgment on their wrongful death claim against Thomas Doyle, individually, and as an employee of Orkin Exterminating Co., Inc. (“Orkin”), and its parent corporation, Rollins, Inc. (“Rollins”) (collectively, “Defendants”). We reverse and remand for a new trial. * * *

Here, the jury was erroneously instructed on sudden emergency, and the parties offered conflicting evidence as to whether Dyer’s speed caused his death. Given the undisputed evidence that Doyle’s vehicle was traveling in Dyer’s lane when the collision occurred, it is difficult to imagine that the verdict might not have been different if the faked left syndrome and the sudden emergency doctrine had not been improperly injected into the case. Consequently, we cannot say that the verdict could not have differed even had the jury been properly instructed.

As mentioned above, a party seeking a new trial on the basis of an improper jury instruction must show a reasonable probability that its substantial rights have been adversely affected. Elmer Buchta Trucking, 744 N.E.2d at 944. We believe that the Estate has met that threshold here. We therefore reverse and remand for a new trial. Reversed and remanded.

SULLIVAN, J., concurs. SHARPNACK, J., concurring and dissenting in part with separate opinion. [which begins] I respectfully concur in part and dissent in part. I agree with the majority’s conclusions in Issues I, II, III, and IV; however, I disagree with the majority’s ultimate conclusion that the judgment should be reversed and remanded for a new trial.

NFP civil opinions today (1):

Inland Steel Company v. Armondo Martinez (NFP) - "The Worker’s Compensation Board (“the Board”) ordered Inland Steel to pay permanent total disability benefits to Martinez. Inland Steel appeals and argues that pursuant to Indiana Code section 22-3-3-13(b), the Second Injury Fund is responsible for payment of Martinez’s permanent total disability benefits. Concluding that Martinez does not qualify for Second Injury Fund benefits, we affirm."

NFP criminal opinions today (14):

Robert Webb v. State of Indiana (NFP)

Otis R. Jones v. State of Indiana (NFP)

Santonio Johnson v. State of Indiana (NFP)

Christopher C. Barnett v. State of Indiana (NFP)

Charlie Herbst v. State of Indiana (NFP)

Matthew Poisel v. State of Indiana (NFP)

John D. Wickersham v. State of Indiana (NFP)

Thurston McKelvey v. State of Indiana (NFP)

Olen Goins v. State of Indiana (NFP)

William Joseph Zapfe v. State of Indiana (NFP)

Randy Bolin, Jr. v. State of Indiana (NFP)

Jeffrey Pearson v. State of Indiana (NFP)

Frederick Cobb v. State of Indiana (NFP)

Dwight Sargeant v. State of Indiana (NFP)

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

Ind. Gov't. - Fort Wayne meeting room size issue

The Fort Wayne Journal Gazette has a story today by Benjamin Lanka:

A city resident Wednesday filed a complaint with the Indiana public access counselor because dozens of people were not allowed into Tuesday night’s Fort Wayne City Council meeting.

Jeff Pruitt wrote that almost 100 residents were barred from entering the meeting after the council’s meeting room was full. He said that action broke state law that requires government meetings be open for the public to observe and record.

“The meeting was not open for all of the public to observe and record as the doors were shut and citizens were not freely allowed to enter,” he wrote.

The council typically meets in a much larger room on the first floor of the City-County Building, but it has met in a smaller room on the second floor during the summer as its regular room undergoes renovations.

The room it used Tuesday seats about 50 people.

Clerk Sandy Kennedy said the room the council is using is the only place available for regular meetings. She said the council has no idea how many people are going to be at a particular council meeting, but the city wasn’t going to break fire code that limits the number of people in a room. * * *

Heather Neal, the Indiana Public Access counselor, said meetings are supposed to be open to everyone, but there is no specific requirement for how large a meeting room has to be for a public body. She said the fact the meeting was televised on public access television and held in a normal meeting room leads her to believe the meeting was held legally.

“It sounds to me they didn’t violate the spirit of the law, but I don’t know what a court would say,” she said.

Mitch Harper of Fort Wayne Observed had an item about this July 24th, with a followup response July 25th.

The ILB has taken a quick look at opinions of past public access counselors and has found these:

May 31, 2000 [00-FC-13] - Anne Mullin O'Connor writes:

While I must conclude that the School Board did not violate the letter of the Open Door Law with respect to its April 24, 2000 meeting, I do disagree with the School Board's assertion that their actions conformed to the spirit of the Law. According to your complaints, and undisputed by Dr. Carver in his response, the School Board was made aware of the interest in the April 24th meeting two weeks in advance, but refused to move the meeting location. Fire officials were in attendance, obviously at the request of the School Board or their staff, to ensure that the meeting room capacity was not exceeded. Further, even when informed of the numbers of people standing outside wanting to attend, observe and record their meeting, they still refused to move to a larger room-either a gymnasium or auditorium in the nearby school buildings.

The conduct of the School Board with respect to its April 24, 2000 meeting did not, in my opinion, constitute compliance with the spirit of the Open Door Law.

Sept. 5, 2001 [01-FC-45] - Anne Mullin O'Connor writes:
The Commission does not set specific start times due to fact that the amount of time necessary for each application is unknown prior to the hearing time. As far as the meeting room is concerned, it has always been adequate to hold the persons interested in particular meetings and the reason many people are standing outside is that they have no interest in the Application being heard. * * *

As to your additional complaints, it does not appear that they constitute violations of the ODL. There are no specific requirements under the ODL for meeting room size or to require that microphones or other amplification methods be used to ensure that all persons can hear the discussion of the governing body. Certainly, if the audience is having trouble hearing the discussion of the Commission, that fact should be brought to the Commission’s attention but it is not a violation of the letter of the ODL. Also, there are no requirements under the ODL that require a governing body to set specific times for hearings to take place within a meeting agenda to accommodate those who may want to attend a specific hearing. The fact that a person may have to wait to be heard on a specific application before the Commission is not a violation of the ODL.

Jan. 9, 2004 [03-FC-138] - Michael A. Hurst writes:
The only specific requirement set forth for the meeting location and room is that the meeting room must be accessible for persons with disabilities. IC 5-14-3-8. There is no provision in the Open Door Law that requires a governing body to meet in a venue with a specific meeting room size or capacity. That said, if evidence indicates that the meeting room was so inadequate as to constitute an infringement on the public’s right to observe and record the meeting, the governing body may be found to have violated the Open Door Law. See IC 5-14-1.5-3(a); Advisory Opinion 00-FC-13, Alleged Violation of the Open Door Law by the Board of the Franklin Township Community School Corporation.

Based on the facts presented here, I decline to find that the Board violated the Open Door Law. The Open Door Law does not specifically require that a governing body meet in a room of any particular size, or that it meet in a room that can seat or otherwise accommodate every person that desires to attend that meeting. Indeed, such a requirement would be impractical for several reasons. A governing body cannot precisely predict the numbers of persons that will attend its meetings, and even where it can reasonably predict the attendance based on the issues to be presented, a room of adequate size may not be available to the governing body. This would be particularly problematic for those governing bodies that are required by other law to meet within a specific geographic location or in a particular building. Then too, the Open Door law would not be satisfied but rather would be undermined by a rule or an interpretation that would require a governing body to cancel a meeting attended by, for example, 101 persons simply because the meeting room could only accommodate 100 of those persons.

While the Open Door Law does not require a specific room meeting size, it nonetheless provides guidance to governing bodies to suggest that the meeting location be adequate to accommodate the public’s right to attend the meeting. See IC 5-14-1.5-3(a). A violation may be found if there is evidence to suggest that the governing body infringed on that right by meeting in a room or under circumstances that defeated the public’s right to observe and record the meeting. No such evidence is presented here. Indeed, the Board met in the room regularly utilized for Board meetings. That room is large and holds more than 100 people. More significantly, that room is apparently large enough to hold every person who wishes to attend in the overwhelming majority of meetings.2 Moreover, the Board’s attitude toward overflow crowds in general and specific to the meeting at issue suggests that the Board met the letter and spirit of the Open Door Law. The Board equipped the hallway with an audio system that permitted people attending the meeting in that location to hear what was occurring in the meeting room. And, with regard to this meeting, the Board momentarily suspended its business to allow for one contingent of the public to exit once their business was completed, and to allow for anyone in the lobby to at that time enter the vacated seats in the meeting room. There is no allegation or evidence to suggest that you were unable to observe and record the meeting from your vantage point in the lobby, or that you were precluded from entering the meeting room as the seats were vacated during the meeting. Neither is there any allegation or evidence that the Board sought to meet in a room too small to handle public attendance, or that it refused to try to accommodate any member of the public that desired to attend its meeting.

March 12, 2007 [Informal] - Karen Davis writes:
This Office has issued several advisory opinions concerning allegations that the meeting room for school board meetings is inadequate to accommodate the public. See Opinion of the Public Access Counselor 00-FC-13; Opinion of the Public Access Counselor 03-FC-138.

The Open Door Law sets specific requirements for meetings to be conducted by governing bodies of public agencies in Indiana. Notices to the public and media must be posted and delivered as prescribed under Indiana Code section 5-14-1.5-5. If an agenda is used, it must be posted outside the meeting room immediately before the meeting begins under Indiana Code section 5-14-1.5-4. The meeting room must be accessible for persons with disabilities under Indiana Code section 5-14-3-8. There is no provision of the Open Door Law that requires a specific meeting room size or capacity. However, if evidence indicates that the meeting room was so inadequate as to constitute an infringement of the public’s right to observe and record the meeting, the governing body may be found to have violated the Open Door Law. * * *

If the Board did not hold its meeting in a room adequate to accommodate a substantial number of persons as has been the Board’s recent experience, this could constitute a violation of the Open Door Law’s requirement that the public be permitted to observe and record the meeting. On February 12 there were a substantial number of persons who had to observe the meeting from another room. It is not clear from the facts whether the video equipment allowed for all to observe, and whether the audio was clear enough for those present to hear the Board and to record the meeting. In addition, I note that providing video or audio of the meeting is but a substitute for actual attendance in the same room as the Board. Providing audio or video has been approved in circumstances where the Board had posted a notice for a particular room but had to accommodate a larger crowd than it could have anticipated.

Here, the Board was aware that the interest in the meetings ran high, and decided to revert to the Board room with full knowledge that the attendance would likely greatly exceed the size of the Board room. Even if the Board did not violate the letter of the Open Door Law, I find that the Board’s action to move the meeting to its regular Board room did not conform to the spirit of the Open Door Law.

Posted by Marcia Oddi on Friday, July 27, 2007
Posted to Indiana Government

Ind. Decisions - More on "Insured's coverage passes to acquirer, court rules"

The Indiana Court of Appeals July 24th decision in Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al., (Marion Sup. Ct.; Cale Bradford, Judge) (see ILB entries here and here) is the subject of analysis at Business Insurance.com. Joanne Wojclk writes:

INDIANAPOLIS—Companies that acquire liabilities through mergers or acquisitions have the right to seek coverage under the acquired companies’ occurrence-based insurance policies for losses that occurred before the transaction, an Indiana appellate court has ruled.

The Indiana Court of Appeals also found in Travelers Casualty and Surety Co. et. al vs. United States Filter Corp. that the insurance company doesn’t have to approve the transfer of coverage to the acquiring company for it to have the right to tap the policies when necessary.

The case stems from U.S. Filter’s and Waste Management Inc.’s efforts to seek coverage from insurance policies issued to Wheelabrator Technologies and several successor companies, which Waste Management acquired in 1990. U.S. Filter and Waste Management had been sued by thousands of claimants who claimed bodily injury as a result of exposure to silica while working near a metal-cleaning machine Wheelabrator manufactured in Mishawaka, Ind., in 1932.

The insurers maintained that while they had issued policies to Wheelabrator and its many successor companies, the coverage did not extend to Waste Management—nor to U.S. Filter, which acquired the assets and liabilities of Wheelabrator from Waste Management in 1996.

A trial court held for the plaintiffs, prompting the insurers to appeal the decision. The appellate court agreed with the trial court, finding that if U.S. Filter and Waste Management were unable to seek coverage under the policies, it “would provide an unfair windfall for insurers.” Moreover, the court found that it would deter companies from making acquisitions “if it were impossible for a business to insure against historic liabilities that may come with the new asset, especially when a purchaser could not purchase insurance retroactively to cover a past loss.”

The decision is significant because it counters a 2003 California Supreme Court decision in Henkel Corp. vs. Hartford Accident & Indemnity Co. that found that unless the acquiring company receives acknowledgment from the insurer that the coverage has been transferred to it as part of a merger or acquisition, the coverage “simply disappears” after such a deal has closed, according to William Passannante, co-chair of the insurance coverage group at Anderson Kill & Olick P.C., a New York-based law firm that regularly represents policyholders in coverage disputes.

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

Law - Boston law firm uses web videos to attract new associates

The WSJ Blog has an entertaining entry this morning about Choate Hall & Stewart LLP, a Boston firm using videos to attract new legal talent.

Posted by Marcia Oddi on Friday, July 27, 2007
Posted to General Law Related

Ind. Courts - Porter judge may order state to release court funding

Bob Kasarda reports today in the NWI Tmes:

VALPARAISO | Local judges don't typically order state officials around.

But that is exactly what Porter Superior Judge Bill Alexa is considering if the state does not approve his request for an additional $25,000 for his court's pauper fund, which is used to cover legal expenses of defendants without money.

The issue arose during a hearing Thursday involving accused rapist Mark Hurst of Portage.

Porter County Public Defender Tony Bertig told the judge Hurst has nothing to wear during next week's trail other than his jail garb.

Alexa said he typically would dip into his pauper's fund to purchase clothing in these cases, but the fund is already $4,000 in the red. He asked Bertig to purchase the clothing and seek reimbursement later from the court.

Alexa said the Indiana Department of Local Government Finance was sitting on his request for additional funding and he was considering ordering the agency to approve the money.

A spokesperson for Local Government Finance was looking into the issue Thursday.

During a break in Thursday's hearing, Alexa said the $25,000 balance in his pauper fund was nearly wiped out this year by $16,000 in state public defender fees.

The judge said he won approval a month ago for another $25,000 from the county council, but the state agency has not yet given final approval for the funds.

Alexa said he thinks he might have the power to order the state agency to approve the funding request or at least order the county council to release the money and deal with the state later.

Posted by Marcia Oddi on Friday, July 27, 2007
Posted to Indiana Courts

Courts - More on: 7th Circuit affirms CD Illinois ruling dismissing suit to stop Illinois base closure

This ILB entry from Sept. 9, 2005 quoted from a Chicago Tribune story that began:

SPRINGFIELD -- A federal appeals court on Thursday rejected Gov. Rod Blagojevich's attempt to stop the government from moving National Guard fighter jets to Indiana.

A three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled that Blagojevich was premature in protesting a commission's recommendation that Springfield's 183rd Fighter Wing and its 15 jets move to Fort Wayne as part of a nationwide reorganization of the U.S. military.

Two justices, with one dissenting, said Blagojevich could come back to court if the change is approved by President Bush and Congress. A spokeswoman for Attorney General Lisa Madigan said the state plans to do that.

Apparently, he has now done just that. An AP story today in the Terre Haute Tribune-Star begins:
SPRINGFIELD, Ill. — A federal judge has ruled against Gov. Rod Blagojevich’s attempt to keep 15 National Guard fighter jets from being moved from here to Indiana.

U.S. District Judge Jeanne Scott granted the Defense Department’s motion to dismiss Blagojevich’s suit that challenged the move. The governor had claimed the federal government needed his consent to move the planes, and he sought a permanent injunction to block the transfer.

But Scott said the Department of Defense is protected from any injunction by the federal government’s sovereign immunity. She said her ruling Wednesday effectively closes the case.

Posted by Marcia Oddi on Friday, July 27, 2007
Posted to Courts in general

Thursday, July 26, 2007

Environment - Several other Indiana permitting stories

Maureen Groppe of the Indianapolis Star Washington Bureau reports today in a story that begins:

WASHINGTON - Four Indiana power plants are among the nation's heaviest contributors to global warming, according to a report released today by an environmental group.

Only Texas has more power plants on the group's list of the 50 plants emitting the most carbon dioxide last year.

That's despite the fact that three of the four Indiana plants in the top 50 had reduced their emissions from 2005.

The Environmental Integrity Project, which uses federal data to annually rank power plant emissions, emphasized carbon dioxide emissions this year because of increasing concerns about global warming. Indiana, however, also had power plants on the list of biggest releasers of sulfur dioxide, nitrogen oxide and mercury - pollutants that can cause health problems and create smog.

Power plants account for 40 percent of the nation's carbon dioxide emissions and the industry's emissions are projected to increase, according to the Environmental Integrity Group.

Here is the 6-page summary of the report. Here is the entire 65-page report, it will take some time to load. Table 1 on p. 8 shows "Top 50 Dirtiest Power Plants for CO2" - Alcoa Warrick is #3 in the county, PSI Energy Wabash River is #4, NISSCO Schahfer is #31, and NIPSCO Bailly is #34. "Plants Ranked in Top 50 for Emission Rate and Total Tons SO2 (2006)" include Indiana's Cayuga, Gallagher, Warrick, Wabash River. The #1 in the country "Dirtiest Power Plants for NOx By Emission Rate – lbs NOx/MWh (2006) is Bailly. There are a lot more tables.

In a story yesterday Gitte Laasby of the Gary Post-Tribune reported:

The Indiana Department of Environmental Management has drafted a permit allowing U.S. Steel Gary Works to continue discharging an average of 2,802 pounds of oil and grease per day into the east branch of the Grand Calumet River -- the same branch of the river the company is still trying to clean up.

U.S. Steel has removed more than 800,000 cubic yards of PCBs, heavy metals, benzene, oil and grease from the river in a $30 million government-ordered dredging of contaminated sediments.

The toxic sediment kills fish. It needed to be removed to avoid contaminating Lake Michigan, into which the Grand Calumet River discharges, said Jim Smith, project manager and senior environmental manager with IDEM.

"The contaminated sediment affects the whole river ecosystem and contaminated sediment in the river canal is constantly moving out into Lake Michigan. It results in impaired water quality in the Grand Calumet River," Smith said. "The fish are impacted because fish cannot breathe in there with the contaminants coming out from the sediment."

The U.S. Department of Justice ordered U.S. Steel to clean up five miles of the eastern portion of the river in 1998 after the company had violated the Clean Water Act and a court agreement by illegally discharging contaminated wastewater for years. The sediments were supposed to be removed in five years, but the initial cleanup wasn't good enough.

"We had to go back the second time because it wasn't cleaned up to the specs we needed to clean it up with to meet subsequent checks," said John Armstrong, public affairs manager of U.S. Steel. * * *

IDEM is holding a public meeting on the U.S. Steel permit at 6 p.m. Aug. 1 in the auditorium at the main branch of the Gary Public Library, 220 W. 5th Ave. in Gary. Public comments can be sent to IDEM until Aug. 11.

The draft permit is available on IDEM's Web site at www.in.gov/idem/permits/water/wastewater/public_notice/index.html#bp.

This is the same site where the BP permit information is located.

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Environment

Ind. Law - When do you need a lawyer?

The Indianapolis Star has a feature today by Julie Cope Saetre headlined "When to lawyer up." In the article "Local legal experts weigh in on when you can go it alone and when to get a lawyer." An accompanying story provides a number of useful links to legal resources.

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

Environment - More on: Details on the BP permit; more stories today

Earlier today I promised more reports of press coverage of the BP water discharge permit, but as I'm just getting back to it later in the day, a new entry is probably the best idea.

"Daniels won't budge on BP" is the headline to this story by Patrick Guinane in the NWI Times. He reported this morning:

INDIANAPOLIS | Despite intensifying pressure from environmentalists and lawmakers in neighboring states, Gov. Mitch Daniels on Wednesday declared Indiana will not retreat from its decision to allow the BP oil refinery in Whiting to release more pollutants into Lake Michigan.

A few hours before the U.S. House overwhelming approved a resolution rebuking both BP and the state, the governor was asked whether he considered the more lenient wastewater permit a done deal.

"Yes," Daniels replied. "We've checked it and rechecked it. They're in complete compliance with Indiana law, which is tougher than the federal law." * * *

After a closed-door meeting Tuesday with members of Illinois' congressional delegation, BP officials agreed to review their water treatment options and report back to lawmakers in September.

But with Daniels expressing no interest in revising the state permit, any move to impose stricter wastewater controls appears to rest with the company.

"Since it's a final permit, we no longer have a final oversight role," U.S Environmental Protection Agency spokeswoman Phillippa Cannon said Wednesday. "We'd be very willing to participate in discussions if (BP officials) are willing to go beyond what the permit conditions say."

The controversy could land in the courts. Illinois Gov. Rod Blagojevich threatened Tuesday to pursue a federal lawsuit if Indiana does not rescind the permit.

Re the U.S. House resolution, this Times report is headed "U.S. House rips BP, state." Some quotes:
WASHINGTON | The U.S. House overwhelmingly voted Wednesday to condemn Indiana's permit to allow BP to increase its Whiting Refinery's daily dumping of waste into Lake Michigan.

"This Congress will not simply stand by while our Great Lakes are treated like a dumping zone," said Illinois Rep. Rahm Emanuel, chairman of the House Democratic Conference and the bill's chief sponsor.

The resolution urges -- but does not require -- Indiana to reconsider the permit and asks that Congress take steps to protect the Great Lakes. * * *

All of Illinois' 19 House members voted in favor of the measure except Peoria Republican Ray Lahood, who was absent.

Indiana's nine-member delegation was divided along partisan lines. Four Democrats backed the resolution. One, Julia Carson, was a sponsor, but did not vote. The House Republicans from Indiana opposed the resolution.

Rep. Pete Visclosky, D-Ind., spoke in favor of the measure, citing the resources the Great Lakes provide.

"Lake Michigan and the Great Lakes grow more valuable each day, and in order to maintain and improve this important natural and global resource, it is crucial to reduce the level of pollution being discharged in them," he said on the House floor Tuesday.

U.S. Rep. Mark Souder, an Indiana Republican, disagreed.

The text of the brief resolution is available here, on Congressman Emanuel's website. The vote, according to this story from the Gary Post-Tribune, was "387-to-26" against the permit.

The Gary Post-Tribune has an editorial that reads in part:

Although BP has put a hold on its plan to dump more waste into Lake Michigan, Indiana and Illinois officials must remain vigilant.

The company said it will wait until Sept. 1 to see if it can come up with "feasible alternatives." While we wait to see what, if anything, the company proposes, we remain firm that we must have zero tolerance for the release of any additional pollution into our precious lake. * * *

With the billions BP is spending on the refinery project, we find it hard to believe BP can't do more.

More than 100 years ago, when the Whiting refinery was built, environmental concerns took a back seat to industry. Cleaning up the pollution in our lakes and rivers has taken decades and billions of dollars, and we still have a ways to go.

Now is no time to go backward.

Mike Clark, a Times columnist, follows a similar tack:
Back in 1900, Chicago's civic leaders realized that dumping sewage and garbage and other miscellaneous crud into Lake Michigan wasn't such a good idea.

Too bad Mitch Daniels hasn't figured that out yet.

The Sanitary District of Chicago performed what was then considered an engineering miracle by reversing the flow of the Chicago River to route pollution away from Lake Michigan.

Here we are, more than a century later, and a company that was smart enough to make a profit of $6.087 billion in the second quarter of this year still can't figure out how to stop messing around with Mother Nature. * * *

Daniels justified his administration's decision by playing the old economic development card, as if it trumped everything else. In another time, it probably would have.

But we are awakening, slowly but surely, to the realization that there is only so much abuse our planet can take.

BP's argument is that the increased levels of junk being poured into the lake will remain below federal limits. That's like saying your credit's in the toilet, but you haven't filed for bankruptcy yet.

When word of BP's plan first came out, part of the rationale was that it would create 80 jobs. As everyone from Mayor Richard Daley to the Illinois congressional delegation started turning up the heat, Daniels reacted by upping the ante.

"We've got thousands of jobs that would be at risk if (the project) doesn't go forward," he said Wednesday.

Well, whether it's fourscore or four thousand, what good is it going to be if the people who hold those jobs find their health at risk because of this short-sighted move?

Someone needs to explain to BP that corporate greed and arrogance aren't in fashion anymore.

If we can change the course of the Chicago River, we should be able to do the same with Mitch Daniels' short-sighted policies.

Gitte Laasby of the Gary Post-Tribune, who has written a number of good stories on the BP issue, has another one today, looking at the economic development vs. environment issues. Some quotes:
For Illinois and Michigan residents, BP's wastewater permit is a matter of stopping increased pollution in Lake Michigan -- the source of drinking water and a destination for recreation.

It is the same for Northwest Indiana residents, too, but the issue also forces them into a larger debate about how to balance industry and environmental interests decades from now.

Gary City Council member Marilyn Krusas, D-1st, said many of her constituents feel conflicted about asking BP to do better environmentally because the company also provides jobs in their neighborhood and economic development to the region.

"Whiting should have been at the forefront. But that industry has built Whiting and provided health insurance and benefits, so how hard do you bite the hand that feeds you? It's a difficult issue," Krusas said. "We need jobs. We want to make sure the company stays and improves their operation, especially along the lakefront. It's kept the economy going in the region and the area."

Still, residents have to decide whether the jobs are worth the trade-off or whether there's another way BP can deal with the pollution, she said. * * *

Michigan City Mayor Chuck Oberlie said he agreed with Daniels' statement Wednesday that BP's permit falls within state and federal standards, but said he still thinks BP should make another attempt to avoid increasing its discharge to Lake Michigan.

"Unfortunately, government policy sometimes lags behind the desires of the public and good management practice," he said. "While it may be consistent with the current law, it's currently against the intent of (initiatives), which is to end pollution in the lakes."

Oberlie said Michigan City has spent too much money on cleaning up brownfields and eliminating sources of pollution to Lake Michigan to allow BP to increase pollution without a fight.

"For a community to make that commitment flies in contrast of a new source of pollution into the lake," he said. "The long-term risk factors. Are there going to be other companies down the line wanting to do this and are we going to say yes to them?"

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Environment | Indiana economic development

Ind. Decisions - Trial court issues a gag order in a lawsuit settlement involving Michigan City

According to this story in the Michigan City News-Dispatch:

A judge issued a gag order in a lawsuit settlement between Michigan City, its police department and supervisors and a girl who says she was molested by a former officer.

Circuit Court Judge Thomas Alevizos issued the order on details, including damages, in a settlement reached between the city, police and a girl identified as Jane Doe, who was 13 when, she says, she was molested by former police officer Gary James. * * *

"I have no comment on the case," said attorney Doug Bernacchi of Michigan City, who, on March 14, filed the Jane Doe suit naming James, Michigan City Area Schools, the City of Michigan City, Michigan City Police officers and supervisory personnel as defendants. * * *

Bernacchi said he cannot comment because of the gag order, a common practice when suits are settled out of court.

Perhaps, but is it different when public money and a public agency is involved? The ILB is reminded of the Court of Appeals decision on Dec. 13 of 2005 in the case of the Knightstown Banner, LLC v. Town of Knightstown, et al. (see ILB entry here), where the newspaper sued to determine whether "the terms and conditions of a settlement of a civil rights lawsuit brought by a former employee against Knightstown, are public records under the Indiana Access to Public Records Act (APRA)." See also the coverage of the decision the following day, Dec. 14th, 2005.

In another instance, on May 23, 2006, the AP reported, as quoted in this ILB entry:

CRAWFORDSVILLE, Ind. -- The city has settled with the mayor's former administrative assistant over her allegations that she was fired after spurning his sexual advances. * * *

"The case is resolved," said Keesee's attorney, Bruce Petit. "There is a nondisclosure required in the settlement, so we really can't say more than we've resolved it to a mutual satisfaction."

However, the next day the terms of the settlement were disclosed. A story by Maria J. Flora of the Crawfordsville Journal Review, as quoted here in a May 25, 2006 ILB entry, reported:
Peebles, the city’s attorney, released a copy of the settlement Wednesday after the Journal Review requested it under the Indiana Access to Public Records Act. The written request noted the Indiana Court of Appeals recently sided with the Knightstown Banner in its quest for public records written by an insurance carrier’s attorney.

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Ind. Trial Ct. Decisions

Environment - More on: Update on fight over Pines transfer station permit

Earlier today, in this entry, I wrote that the ILB would like to post the July 13th Marion County ruling. Thanks to a kind reader, here it is, Porter Co. Bd. of Comm. v. Great Lakes Transfer (7/13/07, Judge Michael D. Keele)

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Environment

Ind. Decisions - More on "Belated Appeals and Blakely (or is it Apprendi?) Retroactivity"

Updating this July 12th ILB entry promising to post the final print version of Michael Limrick's lengthy lead article for the upcoming JulyAugust issue of Res Gestae as soon as it was available in print, here it is.

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

Ind. Courts - Judge Felts Named President of Indiana Judges Association

The ILB has just received this release:

Allen Circuit Court Judge Thomas J. Felts was elected President of the Indiana Judges Association July 1, 2007. The Indiana Judges Association (IJA), established in 1934, represents more than 460 members consisting of justices and judges of the Indiana Supreme, and Appellate Courts, trial courts and magistrates. Judge Felts has been a member of the IJA Board of Managers since 1999 and served as Secretary-Treasurer from 2003-2005 and Vice President from 2005-2007.

Along with the Chief Justice, Judge Felts will be the principal spokesperson for Indiana’s judges generally and in all matters outside the courtroom, including governmental and legislative affairs.

When asked what Judge Felts goals for his term were he responded, “I will continue the Indiana Judges Association’s current efforts to: modify and upgrade the judicial pension and related benefits including Indiana’s magistrates; preserve the independence and integrity of the judiciary ; and assist the Indiana Supreme Court in its efforts to improve the delivery of services to Indiana’s citizens.”

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

Ind. Decisions - Five transfers granted today

Chi Yun Ho v. Loretta Frye (see 4/30/07 ILB entry here - medical negligence)

Erica Lockett v. Marion County OFC (this was a 4/27/07 NFP involuntary termination, affirmed)

State v. Universal Outdoors, Ind. (see 4/18/07 ILB entry here - timely filing of condemnation exceptions)

Sophia Willis v. State (see 5/17/07 ILB entry here, 5th case - "We sympathize with Willis’s argument that she is a single parent who is doing the best that she can, but we cannot condone her choice to whip her child with an extension cord to the point of causing him bruises and extended pain.")

Russell Prewitt v. State (see 4/30/07 ILB entry here, 8th case - sentencing)

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit posts two Indiana decisions

In Randy P. O'Brien v. Ind. Dept. of Corr. (SD Ind., Judge Hamilton), a 9-page opinion, Judge Kanne writes:

Randy O’Brien has been a prisoner in Indiana since 1996, having been convicted of rape, sexual battery, and burglary. In 2001, he was attacked and beaten by two other inmates. In 2003, he brought suit under 42 U.S.C. § 1983, alleging that the warden was deliberately indifferent to his safety in violation of the Eighth Amendment. In 2005, he sought to add additional defendants to his suit. That motion was denied. The district court entered summary judgment in favor of the defendants. He appeals the denial of the motion to add parties and the entry of summary judgment. For the reasons set forth below, we affirm.

Before his conviction, O’Brien was a corrections officer at the Indiana Youth Center. Almost immediately upon his arrival at the Wabash Valley Correctional Facility in 1996 he was recognized by other inmates as being a former guard. Realizing that his former life was likely to make him a tempting target for other inmates, he requested that the prison take him into protective custody. * * *

Faced with O’Brien’s status as a former prison guard, the staff at Wabash Valley initially brought him into segregation for his safety. Having considered the nature of the threat against him and the availability of placing O’Brien among the at-risk population in D Housing, the prison chose to place him with the other former police officers, guards, and prosecutors in D Housing. As in Lewis, this decision does not amount to an unreasonable response to a known risk.

Noteworthy also in this opinion is the reference to O'Brien's "Indianapolis attorney C. Bruce Davidson, Jr. "On April 8, 2003, attorney Davidson filed a motion seeking an extra two days to respond to the court’s order. For the purposes of this case Davidson was never heard from again. * * * We now know that Davidson was busy robbing a bank in Cincinnati that November—the first of roughly twenty-five bank robberies that attorney Davidson would commit over the next two years. By January 2004, it became clear that Davidson had abandoned his practice of law."

In Dorel Juvenile Group v. DiMartinis (SD Ind., Judge Hamilton), an 8-page opinion, Judge Rovner writes:

Lois DiMartinis (“DiMartinis”) left her job at Dorel Juvenile Group, Inc. (“Dorel”) to work for a competitor, Summer Infant, Inc. (“Summer Infant”). Both companies produce products for infants, children and their parents. * * * By all accounts, the industry is highly competitive and when DiMartinis began working at Dorel, the company asked her to sign a non-compete agreement. DiMartinis declined to do so but did sign a confidentiality agreement. She worked for Dorel for more than nine years, rising to the position of Director of Marketing. * * *

[Eventually she left and went to work for a competitor.] Dorel filed a complaint for injunctive relief and money damages against DiMartinis. The complaint alleged trade secret misappropriation, unfair competition, a violation of the Computer Fraud and Abuse Act, breach of contract and breach of fiduciary duty. On the same day that Dorel filed the complaint, the company also filed a motion for a preliminary injunction. * * * At the hearing, Dorel clarified that it was seeking only a six month injunction because it expected that the products at the core of its concerns were going to be introduced to the public in the second quarter of 2007. In practical terms, that meant the injunction would stretch from October 20, 2006 through April 20, 2007. At the end of that time, Dorel expected the information would be public and therefore could no longer be considered confidential or a trade secret. * * *

The district court denied the motion. The court noted that, in order to show entitlement to a preliminary injunction, the plaintiff was required to demonstrate a reasonable likelihood of success on the merits and a substantial threat of immediate irreparable harm if injunctive relief was not granted. If those two thresholds were met, the court would consider the balance of harms to both parties and the public interest. Applying all of those factors, the court found that the principal information at stake in the case was brand positioning strategies in certain categories of the juvenile products industry. The evidence demonstrated that, although the information was sensitive and generally treated as confidential by Dorel, the information also was fairly general, subject to change and evolution, and had a very short shelf life. According to the court, because the industry worked on a cyclical calendar, DiMartinis’s new employer would be able to do little with the information before it became public when the products were released into the marketplace. The court found that the evidence did not support the defendant’s theory of inevitable disclosure and that there was no evidence of bad faith or purposeful disclosure by DiMartinis. * * *

The only injunction on appeal is the six month injunction that was set to expire on April 20, 2007. Because we cannot grant any meaningful relief in regards to the injunction that Dorel requested, the appeal must be dismissed as moot. We do not intend for our opinion to be construed as a judgment on the merits of the underlying dispute between Dorel and DiMartinis.

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Ronald C. Felder v. State of Indiana , a 10-page opinion, Chief Judge Baker writes:

Appellant-defendant Ronald C. Felder appeals the ten-year sentence that was imposed following his guilty plea to Robbery,1 a class B felony. Specifically, Felder argues that the sentence must be vacated because the trial court did not identify his decision to plead guilty as a mitigating circumstance. Felder also claims that the trial court erred “by failing to specifically grant [him] good time credit.” Appellant’s Br. p. 1. Finding that Felder’s decision to plead guilty should have been identified as a significant mitigating circumstance, but also determining that the ten-year sentence is appropriate, we decline to revise his sentence. We also find that there was no error when the trial court did not separately grant good time credit for the time that Felder was incarcerated prior to sentencing. Thus, we affirm the judgment of the trial court.
NFP civil opinions today (3):

In Charles Dowell, et al v. Mary Scheurich, et al (NFP), a 9-page opinion, Chief Judge Baker writes:

Appellants-intervenors Charles Dowell, et al. (collectively, the intervenors), appeal the trial court’s denial of their motion to intervene in an action regarding the grant of a building permit that was initially brought by appellees-plaintiffs/property owners Sue Ann Bell, et al. (collectively, the plaintiffs). The intervenors argue that their motion should have been granted because their interests were directly affected by an agreed judgment involving the plaintiffs and the appellees-defendants, Mary Scheurich—Jasper County’s Director of Planning and Development (Director)—and other county officials, (collectively, the defendants). Specifically, the intervenors contend that the trial court erred in denying their motion because they were neighboring property owners and the prior judgment adversely
affected their property rights. Concluding that the intervenors are collaterally estopped from challenging the judgment, we affirm the judgment of the trial court. * * *

As our prior memorandum decision indicates, the individuals who filed the prior motion to intervene were not permitted to collaterally attack the agreed judgment in their separate litigation. Likewise, to allow the current intervenors to prevail would permit them to collaterally attack the judgment in the case. Although the intervenors in this case were individuals other than those involved in the first case, their arguments and interests were the same. They are simply not entitled to continue to file new motions based upon new theories or attempt to relitigate issues that have previously been decided. Put another way, having failed to establish a basis for intervention in the first motion to intervene, the Sculley Square neighbors were not entitled to make the very same arguments for intervention a second time. That said, the time for finality has arrived, and we conclude that the trial court properly denied the motion to intervene.

James Loomis v. Barbara Loomis (NFP) - "Because there was no request that A.L. be reimbursed for the vehicle before us, we should not have directed the trial court to order James to pay $1,500 for one-half of the vehicle’s cost, and we hereby vacate that portion of our original decision. In all other respects—including the instruction to determine whether the cost of A.L.’s vehicle and related expenses are already included in James’s child support payment—we deny James’s petition for rehearing and leave our original decision unchanged."

Paternity of N.S.L., Karen S. Gramling v. Steven A. LeFebvre (NFP) - "The analysis of these factors does not change when we apply the slightly altered standard of review described above, and we reach the same conclusion as we did in our original decision. Thus, we grant the petition for rehearing and revise the standard of review as stated herein. In all other respects, we deny the petition for rehearing and leave the original decision unchanged."

NFP criminal opinions today (5):

Ebony Dance v. State of Indiana (NFP)

Antoine Tinder v. State of Indiana (NFP)

Darryl Samuel Howard v. State of Indiana (NFP)

Ralph Patterson v. State of Indiana (NFP)

Korey A. Alwood v. State of Indiana (NFP)

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

Ind. Courts - Governor appoints Lake and Marion Superior Court judges

From a press release just issued:

INDIANAPOLIS (July 26, 2007) – Governor Mitch Daniels today announced the appointment of Superior Court judges in Indiana’s two most populous counties. Calvin Hawkins will serve as judge of the Lake County Superior Court replacing Judge Robert A. Pete who died on March 6. David Certo will fill the vacancy on the Marion County Superior Court created by the governor’s appointment of Judge Cale Bradford to the Indiana Court of Appeals last month.

Hawkins, a private attorney in Gary, specializes in civil and church litigation, bankruptcy law, probate and family law. He also serves as a member of the Gary Police Civil Service Commission. Hawkins received his undergraduate degree from Huntington College and law degree from Howard University. He also received a Master of Divinity degree from Wesley Theological Seminary.

Certo, of Indianapolis, currently serves as legal counsel to the director of the Indiana Department of Natural Resources. He began his career in public service as a Governor’s Fellow under former Governor Evan Bayh. Certo has since worked in various capacities in local and state government including serving as director of the Indiana Board of Pharmacy, general counsel to former state treasurer Tim Berry, and special assistant to former Indianapolis Mayor Steve Goldsmith. Certo received his undergraduate degree from the University of Notre Dame and law degree from Indiana University School of Law – Indianapolis.

“Calvin Hawkins has a distinguished record of legal experience and Dave Certo exhibits an unwavering dedication to public service,” said Daniels. “I’m confident each will serve his county with distinction.”

Hawkins’ appointment will be effective in September at a date to be determined. Certo’s appointment will be effective August 1.

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

Ind. Decisions - Franklin County Commissioner wins in holdover case, now wants attorney fees

A story from last week in the Brookville American-Democrat relates that Don Vonder Meulen:

... a Democrat, won the Second District election against Republican incumbent Lou Linkel in the 2006 election.

However, Linkel’s was a holdover office, apparently the only commissioner holdover office in the state. It is believed the holdover office was created in the 1960s at the request of the Indiana Department of Election.

Therefore, Vonder Meulen’s Certificate of Election issued by Franklin County Clerk Marlene Flaspohler had a start date of Jan. 1, 2008.

Vonder Meulen filed a Quo Warranto suit in Franklin Circuit Court in December 2006 seeking a change in the Certificate of Election to Jan. 1, 2007.

The story continues:
Franklin County Commissioners and Franklin County Council decided to pay the legal fees for Linkel and Flaspohler because they were sued in their capacity as county officials.

Vonder Meulen said he unsuccessfully attempted to compromise with Linkel by offering Linkel a chance to serve the first six months in 2007 and Vonder Meulen become commissioner for the final six months.

Special Judge P. Thomas Snow, Wayne Superior Court I, ruled in Vonder Meulen’s favor in April, installing Vonder Meulen as the Second District commissioner.

Linkel then filed a motion asking Snow to pay both Linkel and Vonder Meulen for the entire year.

No ruling has come down from Snow on that motion. Snow’s office could not be reached for comment on Tuesday.

If Snow approves that motion and if council approves Vonder Meulen’s claim for $7,400 in attorney fees, the cost to county taxpayers for all the attorney fees and costs will be about $60,000.

The story contiinues:
Vonder Meulen’s claim was not signed by the other two Franklin County Commissioners, Tom Wilson and Eric Roberts, and it did not have a claim number. * * *

Roberts pointed out that in newspaper articles published during the lawsuit, Vonder Meulen pledged to pay his own attorney fees.

In a document Vonder Meulen presented to Wilson and Roberts, Vonder Meulen laid out his reasoning process.

“Lou’s fees were basically paid out of courtesy,” Vonder Meulen’s conclusion states. “The court determined that he was the former commissioner during the time when most of his fees were incurred. By paying his fees, the county took rightful responsibility for having an out-dated and illegal election practice.

“The fees on the claim that I submitted were necessitated because the former commissioner was attempting to continue as sitting commissioner,” the document continued. “I believe that the payment of these fees should hold priority over others because they were for services provided to the sitting commissioner and were made necessary by the same out-dated and illegal election practice.”

Most of the legal fees incurred in the case came after the first of the year when Vonder Meulen should have been the sitting commissioner, Vonder Meulen told Wilson and Roberts.

More from the very long story:
Commissioners voted to end the holdover office after Vonder Meulen served four years from 2008-2012. The next person holding that position would have a three-year term from 2013-2016, with four-year terms continuing after the 2016 election.

Vonder Meulen said he wanted the situation changed immediately because by continuing it, the county was breaking state law. Also, several people contacted him and wanted him to be commissioner immediately and not wait a year.

For background, see this Dec. 28, 2006 ILB entry titled "Commissioner-elect's starting date on job being questioned in civil suit." Near the end of the entry the ILB observes: "A similar circumstance may have resulted in Martin County, where the appointed clerk was beaten in the May 2006 primary, but because of the timetable will serve all 2007. It won't be until Jan. 2008, when the new clerk will take over." It took an act of the General Assembly to put that election back on track.

The ILB would like to post a copy
of the April ruling of Special Judge P. Thomas Snow, Wayne Superior Court I, and would appreciate hearing from anyone who can fax or email the ruling. Pleadings would also be welcome.

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Ind. Trial Ct. Decisions

Courts - More on local Louisiana school board prayer decision by the 5th Circuit

The ILB has had entries Feb. 12th and Jan. 20th, 2007, on a "three-year legal battle over prayers at Tangipahoa Parish School Board meetings."

[Following the Jan. 20th entry, the ILB wrote: "Oral arguments were held in Indiana's legislative prayer lawsuit on Sept. 7, 2006, in Hindricks v. Bosma, before the 7th Circuit . The ILB is anticipating a decision by the 3-judge panel any day now.]

Today, Howard Bashman of How Appealing has a report that an 8-7 en banc ruling of the Court of Appeals for the 5th Circuit threw out the case on standing grounds. From the AP coverage:

Writing for the majority, Chief Judge Edith Jones found that the court record had no evidence that the plaintiffs actually were exposed to the meeting invocations to claim a harm under the Establishment Cause of the U.S. Constitution.

Although standing had not been an issue, attorneys for the School Board raised the issue in their brief to the appeals court.

"It is not this court's fault that the connection between their attendance and allegedly unconstitutional activity is not made in the record," the ruling said.

"Without the requisite specifics, this court would be speculating upon the facts. This is something we cannot do, particularly in the standing context, where the facts must be proven, not merely asserted or inferred. ... To find lack of standing at this late stage no doubt poses an inconvenience for the parties. On the other hand, it spares this court from issuing a largely hypothetically-based ruling on issues of broad importance to deliberative public bodies in this circuit and beyond."

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

Environment - Details on the BP permit; more stories today

In my opinion, the best report on the problems with the recently granted BP permit remains the initial story by Michael Hawthorne in the July 14th Chicago Tribune (originally quoted in this July 13th ILB entry). Hawthorne's story begins by acknowledging:

The refinery will still meet federal water pollution guidelines. But federal and state officials acknowledge this marks the first time in years that a company has been allowed to dump more toxic waste into Lake Michigan.
Later in the story:
In sharp contrast to the greenways and parks that line Lake Michigan in Chicago, a string of industrial behemoths lie along the heavily polluted southern shore just a few miles away. The steady flow of oil, grease and chemicals into the lake from steel mills, refineries and factories -- once largely unchecked -- drew national attention that helped prompt Congress to pass the Clean Water Act during the early 1970s.

Paul Higginbotham, chief of the water permits section at the Indiana Department of Environmental Management, said that when BP broached the idea of expanding the refinery, it sought permission to pump twice as much ammonia into the lake. The state ended up allowing an amount more than the company currently discharges but less than federal or state limits.

He said regulators still are unsure about the ecological effects of the relatively new refining process BP plans to use. "We ratcheted it down quite a bit from what it could have been," Higginbotham said.

The request to dump more chemicals into the lake ran counter to a provision of the Clean Water Act that prohibits any downgrade in water quality near a pollution source even if discharge limits are met. To get around that rule, state regulators are allowing BP to install equipment that mixes its toxic waste with clean lake water about 200 feet offshore.

Actively diluting pollution this way by creating what is known as a mixing zone is banned in Lake Michigan under Indiana law. Regulators granted BP the first-ever exemption.

The U.S. Environmental Protection Agency has been pushing to eliminate mixing zones around the Great Lakes on the grounds that they threaten humans, fish and wildlife. Yet EPA officials did not object to Indiana's decision, agreeing with the state that BP's project would not harm the environment.

Federal officials also did not step in when the state granted BP another exemption that enables the company to increase water pollution as long as the total amount of wastewater doesn't change. BP said its flow into Lake Michigan will remain about 21 million gallons a day.

In response to public protests, state officials justified the additional pollution by concluding the project will create more jobs and "increase the diversity and security of oil supplies to the Midwestern United States." A rarely invoked state law trumps anti-pollution rules if a company offers "important social or economic benefits."

The ILB posted the 21-page IDEM Fact Sheet that was prepared to explain the proposed permit to the public. NPDES permit's are very complex. Pages 15-17 discusses the application of the anti-backsliding and anti-degradation provisions of the environmental rules to the proposals to increase discharges of ammonia and total suspended solids. It begins:
During the permit development period, BP Products North America requested that the effluent limits for TSS and Ammonia be increased due to material and substantial changes at the refinery. Regardless of the fact that these increases will be allowed by 327 IAC 5-2-10(11) [antibacksliding] due to substantial changes at the refinery, the increases must be in compliance with 327 IAC 5-2-11.7 (Antidegradation Implementation Procedures for Outstanding State Resource
Waters).

The provision of 5-2-11.7 that can be used to allow an increase in the pollutant loading to Lake Michigan in this instance is 5-2-11.7(a)(1)(B)(iv). 5-2-11.7(a)(1)(B)(iv) allows the increase to be calculated on a case-by-case basis when the proposed increase in mass is not a result of an increase in discharge flow. The rules do not provide any guidance for determining the appropriate increase in mass when the increase is not a result of an increase in flow.

IDEM met with representatives of BP North America on October 4, 2006 to discuss how to implement 5-2-11.7(a)(1)(B)(iv). IDEM required BP North America to conduct an Antidegradation Analysis which evaluated the social and economic benefits, alternate wastewater treatment and the expected effluent quality after the refinery is reconfigured to process the CXHO. BP North America must demonstrate that all economically and technically feasible measures have been taken to avoid the action that will result in the new or increased discharge of the pollutant or pollutant parameter including a demonstration that it is not feasible to limit the new or increased discharge to a temporary or short term period. BP North America must demonstrate that any increase in pollutant loading is necessary. The new or increased pollutant loading shall be limited to the minimum necessary to allow the action to occur. The Commissioner has determined that BP has met these requirements, based on the facts described below. As a result, the increased limits requested are consistent with the provisions of 5-2- 11.7(a)(1)(B)(iv), and those limits have been incorporated into the permit.

The IDEM 35-page Response to Comments, which may be accessed via the ILB here, contains much interesting information, including an IDEM response #91 to comments made by Save the Dunes, beginning on p. 33. Some quotes [emphasis added]:
Lake Michigan was designated as an OSRW [outstanding state resource water] by the state of Indiana. The federal government does not have a stream designation equivalent to an OSRW. There is no federal law regarding OSRWs. Therefore, no federal Laws were broken.

The antidegradation rule found at 327 IAC 5-2-11.7(A)(1)(b)(iv) provides the Commissioner of IDEM with the authority to evaluate a proposed increase in the monthly average mass limits for a pollutant, when there is no increase in flow, on a case by case basis. IDEM knows that the increase in the effluent limits for ammonia and TSS will result in some degradation of the water quality of Lake Michigan. However the increase has been limited to the amount shown by BP to be necessary and this action does support important social and economic development in the area of the discharge. The antidegradation application and addendum plus the draft permit and fact sheet were sent to EPA Region V on January 9, 2007 for their review prior to sending a pre-public notice draft permit to BP. EPA has submitted a letter to IDEM expressing no objection to the draft permit as written.

The Biological assessment conducted by IDEM does identify issues of concern, but several of the concerns that you point out from that assessment are speculation based on what might happen.

More stories today. COMING LATER

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Environment

Environment - Update on fight over Pines transfer station permit

The ILB may have temporarily lost track of this dispute. The last entry indicating its status is this one from Dec. 19, 2006, which began: "Our most recent earlier entry on the Pines transfer station in NW Indiana was posted Oct. 12 and reported that plaintiffs plan to appeal the environmental law judge's opinion."

Today Tom Wyatt reports in the Gary Post-Tribune:

Officials from Porter and LaPorte counties continue to fight a proposed waste transfer station on County Line Road.

A Marion County judge earlier this month denied a petition by Porter and LaPorte counties, as well as the towns of Pines and Beverly Shores, that appealed a September 2006 ruling that upheld the granting of a permit to Great Lakes Transfer LLC for the transfer station.

Great Lakes is planning the waste transfer station on County Line Road north of U.S. 20 on the LaPorte County side of the road.

The Indiana Department of Environmental Management granted Great Lakes a solid waste facility permit in late 2005, but area residents raised pollution concerns and cited possible harm to nearby dunes.

Porter County officials have fought the station by denying to grant a driveway permit for the project. LaPorte County and town officials joined the fight by claiming IDEM issued the permit improperly, given the fact Porter County denied the driveway permit.

But an Office of Environmental Adjudication judge last September ruled the permit was properly granted. A Marion County judge upheld the ruling July 13.

Porter County attorney Gwenn Rinkenberger said she is filing a motion to correct errors made by the Marion County judge. Expecting the motion to be denied, Rinkenberger said she will then take it to the Indiana Court of Appeals. [emphasis added]

The ILB would like to post the July 13th Marion County ruling, just as it posted the Sept. 16, 2006 ruling of the Indiana Office of Environmental Adjudication (access it here). Please let me know if you can provide a copy of the July 13th ruling, either electronically or by fax.

Posted by Marcia Oddi on Thursday, July 26, 2007
Posted to Environment

Ind. Decisions - Court of Appeals rules in Whitestown annexation battle

Robert Annis of the Indianapolis Star reports today on the Indiana Court of Appeals ruling last Friday, July 20th, in the case of Brenwick Associates, et al. v. Boone County Redevelopment, et al. (see ILB entry here). Some quotes:

The Indiana Court of Appeals issued a ruling Friday that partially resolves a land dispute betweeen the Whitestown Town Council and the Boone County Commissioners over a prime corridor in the county.

The dispute between the two entities involves nearly 4,000 acres on the west side of I-65 in Boone County that was annexed by Whitestown but claimed by the Boone County Redevelopment Commission as an economic development area.

The Anson development is on the east side of I-65.

In 2005, First Industrial Acquisitions and Brenwick Associates asked Whitestown to annex 1,425 acres on the west side of I-65 to develop possibly as warehouses. First Industrial planned to purchase property within the area from Brenwick Associates and asked Whitestown to provide tax abatements for a proposed development.

In July 2006, the town began annexation proceedings. Soon after, the redevelopment commission started its own 4,000-acre economic development area that included the same area that Whitestown had begun to annex.

Whitestown amended its original annexation proceedings to include almost 2,500 more acres that made up the bulk of Boone County's EDA and filed suit against Boone County. Boone County argued that because the annexation wasn't completed, it still had jurisdiction over the property.

The appeals court ruled that Whitestown had jurisdiction over the original 1,425 acres since Boone County's EDA was filed after the annexation proceedings began. The court also ruled that Boone County's EDA for the remaining 2,500 acres was still valid.

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

Wednesday, July 25, 2007

Ind. Courts - "Allen County Judge Felts new President of Indiana Judges Association"

So reports editor Mitch Harper today in the excellent Fort Wayne Observed.

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

Ind. Decisions - 7th Circuit rules in patent dispute today

In Jennings v. Auto Meter, et al. (SD Ind., William T. Lawrence, Magistrate Judge), a 17-page opinion, Judge Wood begins her opinion:

Plaintiff Douglas M. Jennings designed an aftermarket dashboard bezel—that is, a molded shape that fits over an automobile’s instrument panel. Hoping to make money from his design through manufacturing and selling his bezels in the auto parts aftermarket and to forestall copycats, Jennings applied to the U.S. Patent and Trademark Office (“PTO”) for a patent. As part of her review of Jennings’s application, the patent Examiner contacted defendants Auto Meter Products, Inc. (“Auto Meter”), Gauge Works, LLC (“Gauge Works”), and Gregory Day to inquire whether the bezel they were selling was on sale or publicly available before Jennings applied for his patent. Jennings believes that the defendants, in response to the Examiner’s inquiries, fraudulently misled her into believing that Jennings was not in fact the inventor of the bezel.

In addition to continuing to pursue his patent application, Jennings filed this action against the defendants under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(a)-(d), as well as its Indiana counterpart, Ind. Code §§ 35-45-6-2. * * *

For the following reasons, we affirm the dismissal of all claims. Because we have resolved Jennings’s appeal this way, we have no need to reach the attorneydisqualification issue.

Posted by Marcia Oddi on Wednesday, July 25, 2007
Posted to Ind. (7th Cir.) Decisions

Courts - Ohio Supreme Court rules domestic-violence law applies to unmarried couples [Updated]

From the Cincinnati Enquirer:

A Warren County man's attempt to invalidate the state domestic violence law has failed.

In a decision released today, the Ohio Supreme Court has held that the state's domestic violence law does not violate Ohio's "defense of marriage" amendment. ***

[The court rejected an argument] that, under the state's ban on gay marriage, unmarried people lack the legal status of married people - and therefore, the domestic violence law cannot be applied to unmarried people.

From the Columbus Dispatch:
Ohio's domestic-violence law applies to unmarried couples despite the state's 2004 constitutional ban of gay marriages, the Ohio Supreme Court ruled today.

Lower courts across Ohio had issued contradictory rulings on whether the 3-year-old amendment overturned domestic-violence statutes. By a large majority voters had agreed not only to define marriage as only between a man and woman, but also to mandate that the state and its political subdivisions could not "create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

In a 6-1 ruling, the court said the domestic-violence law is not trying to define a legal relationship, but merely identifies one class of people who are protected from violence. The law lists 11 types of household relationships besides spouse, including other relatives, in-laws and ex-spouses.

“The state does not create cohabitation; rather it is a person's determination to share some of life's responsibilities with another that creates cohabitation,” Chief Justice Thomas J. Moyer wrote for the majority. “The state does not have a role in creating cohabitation, but it does have a role in creating a marriage.” * * *

A trial court had granted a defense motion to dismiss the case, ruling the law violated the state's anti-gay-marriage amendment. That decision was overturned by the 12th District Court of Appeals.

The Supreme Court agreed with the 12th District.

“While the intent of the domestic-violence statute is to protect persons from violence by close family members or residents of the same household, the intent of the marriage amendment was to prevent the creation or recognition of a legal status that approximates marriage through judicial, legislative or executive action,” Moyer wrote. “The statute and the constitution are not in conflict.”

Justice Judith Ann Lanzinger dissented, arguing, “Using the term ‘living as a spouse' within the definition of ‘family or household member' clearly expresses an intent to give an unmarried relationship a legal status that approximates the ‘effect of marriage.' ”

Here, thanks to How Appealing, is a link to the Ohio Supreme Court's ruling in State v. Carswell.

ILB readers will recall that the question of how the proposed amendment to Indiana's constitution (SJR 7) that would ban same-sex marriage would impact Indiana's existing domestic violence laws was raised during the House commitee hearings earlier this year. Here is a quote from a March 22nd story in the LCJ, reproduced in this ILB entry:

Yesterday, Kerry Hyatt Blomquist, chief counsel for the Indiana Coalition Against Domestic Violence, said she fears the language in the second section could lead a judge to dismiss domestic battery charges against a man accused of beating a woman simply because the couple isn't married. That happened in Ohio, where voters ratified a constitutional amendment that is similar in idea but worded differently.

"Section B of this amendment is vague, undefined and it's ambiguous," Blomquist said. "We have yet to see a proposed definition of 'legal incidents of marriage.' "

For background, start with this ILB entry from June 20th, which is headed "Status of same sex marriage in Ohio and Michigan." It begins: "During the legislative session earlier this year, there was much discussion about the constitutional bans on same sex marriage that have been approved in Ohio and Michigan and how they are being interpreted."

Here is a table the ILB has prepared setting out the provision proposed in Indiana's SJR 7, plus the wording of the ratified amendments to the Ohio and Michigan constitutions.

Indiana [proposed] (a) Marriage in Indiana consists only of the union of one man and one woman. (b)This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
Ohio Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
Michigan To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

[Updated at 3:10 pm] The ILB has asked Kerry Hyatt Blomquist, Legal Counsel for the Indiana Coalition Against Domestic Violence, for reaction to today's Ohio ruling. She has responded:

We are very pleased that Ohio can continue to prosecute unmarried batterers under their existing domestic violence statutes. The Ohio Supreme Court must be commended for recognizing and noting the legislative intents of both the DV statute and the Ohio Constitutional amendment. ICADV remains, however, very concerned with the wording of SJR 7 here in Indiana. As we have said before, the second clause referring to the "legal incidents of marriage" is still undefined and ambiguous, lending itself to a variety of judicial interpretations and a similarly lengthy legal challenge. The devil remains in the details.
The ILB has also received a press release from David Miller of Ohio Citizens for Community Values (CCV), which includes this statement:
"[I]n other states like Arizona, Indiana, Florida, and California, where same-sex marriage advocates were arguing that amendments like Ohio's would dismantle domestic violence laws, this argument now is moot and off the table in the public policy debate over marriage amendments. "Numerous organizations were attempting to dismantle marriage protection amendments, not only in Ohio but several other states a well, and the Court has gone out of its way to say NO."

Posted by Marcia Oddi on Wednesday, July 25, 2007
Posted to Courts in general

Posted by Marcia Oddi on Wednesday, July 25, 2007
Posted to

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Henry Cunningham v. State of Indiana, a 5-page opinion, Judge Kirsch writes:

Henry Cunningham was convicted and sentenced for confinement1 as a Class B felony and battery as a Class C felony. Cunningham raises two issues, one of which we find dispositive and restate as: whether there was sufficient evidence to prove he committed the offense of confinement. * * *

An inference of confinement does not arise from evidence of injury to the victim. If so, every battery as a Class C felony would also constitute Confinement as a Class B felony. * * * We reverse and remand to re-sentence Cunningham on his battery conviction alone.

NFP civil opinions today (3):

Genevieve S. York v. Citifinancial Mortgage Co. (NFP) - "Genevieve S. York appeals the trial court’s in rem summary judgment and decree of foreclosure in favor of Citifinancial Mortgage Company, Inc. (“Citifinancial”). York claims that her default on the mortgage is a question of fact that rendered summary judgment inappropriate. * * * York’s failure to file an affidavit in opposition, a verified statement, or any designated evidence to rebut the materials facts in the Corrales Affidavit left no genuine dispute as to the material facts necessary for summary judgment. We, thus, affirm the trial court’s decision."

Kevin Strickler v. Dalton Foundry (NFP) - "Kevin Strickler appeals the decision of the Indiana Worker’s Compensation Board (“the Board”) that he failed to establish that he sustained low back injuries arising out of and in the course of his employment. We affirm."

Nicole L. Huss v. David M. Huss (NFP) - "In sum, the record does not support a conclusion that the evidentiary hearing was fundamentally unfair and violated Wife’s due process rights. We therefore affirm the Adams Circuit Court’s award of custody of the parties’ three biological children to Husband."

NFP criminal opinions today (7):

Steven Burton v. State of Indiana (NFP)

William G. Hughes v. State of Indiana (NFP)

Kerwin J. Cole v. State of Indiana (NFP)

Dashawn Curry v. State of Indiana (NFP)

Antonio Gooden v. State of Indiana (NFP)

Andre Pittman v. State of Indiana (NFP)

Toshio Roach v. State of Indiana (NFP)

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

Environment - Much more on: Protests grow over BP permit to increase dumping in Lake Michigan

Updating this ILB entry from July 20th, reports of outrage about the BP permit continue.

Sylvia A. Smith, Washington editor for the Fort Wayne Journal Gazette, writes:

WASHINGTON – Indiana came in for a verbal thrashing Tuesday as members of Congress lambasted the “stunning mistake,” the “crazy” decision and the “wrong-headed” ruling that would allow a Hoosier oil refinery to increase the pollution it dumps into Lake Michigan.

The Indiana Department of Environmental Management will allow BP’s plant in Lake County to increase its ammonia discharge by 66 percent and its suspended-solid discharge by 33 percent.

“This is crazy. This is nuts,” said Rep. Candice Miller, R-Mich. “Instead of creating more stringent regulations, this permit marks a huge step backward in our effort to keep our Great Lakes clean.”

The state also came under fire Tuesday from Illinois Gov. Rod Blagojevich, who called the permit “a major setback.”

In a response last month to Hoosiers who complained about the permit, IDEM said the increase in the contaminants is justified because of “the additional jobs, the long-term viability of the existing jobs/business and the value to our nation’s overall security resulting from utilizing a new source of petroleum from a neighboring friendly country.” * * *

[Governor] Daniels’ spokeswoman did not respond to a request for Daniels’ reaction. When the plant remodeling was announced, Daniels called it a “landmark project” that “marks another huge step in Indiana’s economic comeback.” He said the project would employ “more construction workers … than to build the new Indiana Stadium and Convention Center.”

When BP announced the project last year, officials said reconfiguring the refinery could increase production of motor fuel by about 15 percent.

IDEM told Hoosiers who objected to the proposed permit that the agency “knows that the increase in the effluent limits for ammonia and TSS (total suspended solids) will result in some degradation of the water quality of Lake Michigan. However the increase has been limited to the amount shown by BP to be necessary and this action does support important social and economic development in the area of the discharge.”

A story from the Chicago Tribune, by Jim Tankersley and Michael Hawthorne, reports:
BP said Tuesday it has done everything possible to keep more pollution out of the lake. And BP executives -- including the company's American president, Bob Malone -- pledged to re-evaluate their Indiana expansion plans by Sept. 1 with environmental quality in mind during a noontime meeting in the office of Sen. Dick Durbin (D-Ill.), the politicians in attendance said and a BP spokesman confirmed.

Emanuel called the meeting "a clear, frank, unambiguous conversation" between BP and a bipartisan coalition opposed to increased Lake Michigan dumping. Durbin called the meeting a "wake-up call" for BP. Rep. Jan Schakowsky (D-Ill.), one of a half-dozen Great Lakes lawmakers at the meeting, said Malone ended the meeting by indicating that "he gets it now."

There were no Indiana lawmakers at the meeting. They generally have been reluctant to criticize BP, at least in part because the refinery expansion would add 80 jobs.

Republicans and Democrats from Illinois warned throughout the day that BP would lose any fight over Great Lakes pollution and that the company was risking an environmentally friendly image it promotes heavily in advertising campaigns.

From a story in the Milwaukee Journal Sentinel:
The mayors of Milwaukee, Racine, Green Bay, Sheboygan and Superior are opposing a plan that will allow petroleum giant BP to boost the amount of pollution it's dumping into Lake Michigan from an Indiana refinery.

"As mayors of cities that sit on the Great Lakes, we are gravely concerned that the quality and environmental protection of the entire Great Lakes system has been placed in serious jeopardy by this decision," the group wrote in a letter Tuesday to the commissioner of the Indiana Department of Environmental Management.

Gitte Laasby of the Gary Post-Tribune writes today:
Calls for greater scrutiny of BP's plans to add pollutants to Lake Michigan intensified Tuesday -- from the halls of Congress to the Indiana Statehouse, and even the Illinois governor's office.

Face to face with testy congressmen from Illinois and Michigan on Tuesday, BP said it wouldn't immediately implement its plan to increase discharges of ammonia and suspended solids into Lake Michigan, and would look at "feasible alternatives" between now and Sept. 1.

Earlier Tuesday, Illinois Gov. Rod Blagojevich criticized Indiana state officials authorizing BP's plan to dispose of more pollutants in Lake Michigan.

The Democratic governor called the plan "a major setback" in efforts to clean up the lake after years of neglect.

Blagojevich urged Indiana's Republican Gov. Mitch Daniels to rescind the permit, which took effect Monday, and said Illinois officials will consider legal action if he doesn't.

Patrick Guinane of the NWI Times reports:
Daniels' office did not directly respond Tuesday to question about the permit. But Indiana Department of Environmental Management Commissioner Thomas Easterly issued a statement saying the BP permit will not be altered.

"IDEM's wastewater permit for BP's Whiting Refinery fully complies with the federal Clean Water Act and assures the full protection of Lake Michigan," Easterly said. "During the review process, the U.S. Environmental Protection Agency also performed an exhaustive analysis and concurred that the permit met federal standards. The BP permit stands approved as written."

The South Bend Tribune reports:
Federal lawmakers from several Midwest states took aim at BP Oil and Indiana Gov. Mitch Daniels on Tuesday. The delegation spoke in favor of a resolution to denounce the permit.

One by one, both Republican and Democratic lawmakers from Great Lake states spoke against the plans to allow more pollution to go into Lake Michigan.

"BP's wrong-headed decision here to increase discharges in a lake and in a region trying to overcome decades of environmental neglect will not stand," said South Bend-area Rep. Joe Donnelly, D-Granger.

Donnelly said he would attempt to block plans by BP to expand its Whiting refinery if he must.

But, first, Donnelly, D-2nd, said he wants to try and convince the company to pursue ways of increasing fuel production without adding pollution to Lake Michigan.

Like Donnelly, Michigan City Mayor Chuck Oberlie said he can't imagine with advances in technology why the refinery can't be expanded without raising the amount of ammonia and other pollutants in its waste water.

''It behooves all of us to attempt to make adjustments to end up with a zero impact on the lake,'' said Oberlie.

"What they're telling is, it's cost prohibitive. Baloney. They can do this the right way," said Donnelly.

Meanwhile, BP has run afoul of local building permit requirements, according to this story by Steve Zabroski in the NWI Times:
HAMMOND | Contrite excuses from BP refinery executives for building a construction command center without city permission failed Tuesday to move Hammond officials responsible for development.

The Hammond Redevelopment Commission postponed any retroactive approval of the office complex until at least next month.

BP North America paved parking areas and assembled at least 20 trailers over the past six months on property it owns east of Calumet Avenue and south of 129th Street to house engineering and supervisory personnel working on the refiner's planned $3 billion expansion project.

But the London-based oil giant failed to secure necessary city building permits, or present their plans to the Hammond Redevelopment Commission, which has jurisdiction over uses of the property since its designation as a redevelopment district in 1998. * * *

"This was an oversight," said Nicholas Chulos, an attorney for BP with the law firm Krieg DeVault. "The trailer project should have been presented to you before any development occurred."

Redevelopment Commissioner Daniel Spitale, who moved to table the matter shortly after Monday night's presentation by refinery spokespersons, said he was "just not comfortable" with a lack of information regarding whether or not the project was in compliance with the North Hammond Redevelopment Area plan.

Established in 1998 and amended in 2002, the plan aimed for the transformation of the area from heavy industry to business and light-industrial development, with the goal of complementing adjacent recreational uses such as the Lost Marsh Golf Course.

Though considered "temporary," the trailers would remain at the site through completion of BP's expansion for the processing of new petroleum sources from Canada, said Thomas Keilman, the refinery's director of public affairs, a project that is estimated to take four years.

Posted by Marcia Oddi on Wednesday, July 25, 2007
Posted to Environment | Indiana economic development

Environment - Neighbors pack zoning board meeting to support CAFO expansion

An AP story this morning out of Anderson reports:

A farmer presented plans to triple his dairy cow herd to 6,000 as part of a concentrated feeding operation -- an idea that met with no opposition from neighbors and other residents in a packed boarding zone meeting.

Plans for similar concentrated animal feeding organizations, or CAFOs, have met stiff resistance from residents across Indiana and elsewhere.

But on Tuesday, the Madison County Board of Zoning Appeals heard a proposal by Willemsen Dairy LLC to expand its dairy and livestock operation near Frankton, about 40 miles northeast of Indianapolis.

Founder Tejo Willemsen has a dairy cow herd now of about 1,800. He and his wife, Alberdine, moved to the United States from the Netherlands six years ago, breaking ground on his Frankton farm on July 5, 2001. * * *

"I manage my farm with passion, care and pride," Willemsen said.

When BZA Chairwoman Mary Jane Baker asked for supporters in the nearly full room to stand, almost everyone did and no one spoke in opposition.

Posted by Marcia Oddi on Wednesday, July 25, 2007
Posted to Environment

Ind. Law - Still more on: Do the changes to the sex offender law mean longtime homeowners must move?

Updating this ILB entry from July 23rd, Sophia Voravong of the Lafayette Journal and Courier reports today on a hearing held yesterday in Tippecanoe Superior Court 1:

The 56-year-old Lafayette man is challenging a state law that took effect July 1, 2006, prohibiting sex offenders convicted of crimes against children from living within 1,000 feet of a school, youth program center or public park.

John Doe -- convicted in White County in 1988 of molesting an 11-year-old -- was forced to move from his home of seven years.

He is using new legislation that took effect July 1, to petition the court to determine whether he still poses a threat to children. He asked if he could move home during the pending litigation.

Judge Don Johnson made no decision during Tuesday's preliminary injunction hearing, instead ordering two independent psychiatrists to evaluate John Doe. * * *

In separate memorandums to the court, attorneys representing Tippecanoe County Sheriff Tracy Brown and prosecutor Pat Harrington argued that it is a matter of the public's safety versus that of an individual. Their respective offices are tasked with enforcing the law requiring offenders against children to move.

He's not being locked up, not being banished from the community," said Brown's attorney, Doug Masson of Lafayette law firm Hoffman, Luhman and Masson.

Judge Johnson also gave John Doe's attorney, Chad Montgomery of the Earl McCoy Law Firm in Lafayette, 10 days to respond to the defense motion.

John Doe said he got his letter from the Tippecanoe County prosecutor's office on May 15, giving him 45 days to find a new home. His residence in the city of Lafayette is near Cornerstone Baptist Church, 2400 Edgelea Drive, which hosts youth events and thus is considered a youth program center. * * *

John Doe said he then moved to Monticello with his brother -- only to be ordered to move again because that residence is within 1,000 feet of an old school that is now used for administrative offices. He must leave by Aug. 14.

Doe is petitioning to "no longer be considered an offender against children under IC 35-42-4-11(d)." The J-C has posted this document online, see pp 1-2. (Caution, this is a 14 MB scanned document that may take some time to load.)

In a motion for preliminary injunction (pp. 5-9) and a motion for permanent injunction (pp. 10-15), Doe argues that IC 35-42-4-11(c) is an unconstitutional ex post facto law, on that imposes a punishment for an act not punishable at the time committed or imposes punishment additional to that prescribed at the time the offense was committed, in that Doe is being punished by being forced by the State to move from his residence, a form of punishment not prescribed at the time the original offense was committed. Does also arges that the law imposes an imperissible taking without due course of law, and that the law is a double jeopardy violation.

The C-J has also made available the 31-page response filed on behalf of the Sheriff of Tippecanoe County. The ILB has received and is posting here a 12-page "Memorandum in support of the response."

Meanwhile, a Louisville court yesterday made a ruling in a similar case. Jason Riley of the Louisville Courier Journal reports:

Sex offenders convicted before last July cannot be charged under a new Kentucky law that would require them to live farther away from playgrounds, schools and day cares, a judge ruled yesterday.

Jefferson District Judge Donald Armstrong Jr. dismissed the cases of three Louisville men charged with living too close to schools and a youth treatment center, ruling that the law is unconstitutional because it adds punishment to their initial convictions. * * *

Michael Goodwin, an attorney for one of the men, said Armstrong "has recognized that when an individual is punished by a judge and jury, the legislators can't, many years later, adopt a second punishment for the same person."

Armstrong acknowledged in his ruling that the issue will be decided by a higher court. * * *

Similar rulings have been handed down in Kenton and Madison counties, and the Kenton case is on appeal with the Kentucky Supreme Court.

A different judge in Kenton County ruled, however, that moving sex offenders -- even if they committed their crimes years ago -- is not unconstitutional, The Cincinnati Enquirer reported.

While Armstrong's decision is not binding on other courts, "the logic could be applied by judges statewide," Goodwin said.

Under the old law, offenders had to live at least 1,000 feet -- a fifth of a mile -- from locations including a school building or licensed day-care center. The new law measures the 1,000-foot distance from the property line.

The new law applies to all offenders, even if they are no longer on probation or parole, or under any type of judicial supervision.

Initial violations are misdemeanors punishable by up to 12 months in jail; subsequent violations are felonies for which the maximum sentence is five years in prison.

Posted by Marcia Oddi on Wednesday, July 25, 2007
Posted to Indiana Law

Ind. Decisions - "Insured's coverage passes to acquirer, court rules"

Yesterday's Indiana Court of Appeals decision in Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al (see ILB entry here) is the subject of a brief story by Jeff Swiatek today in the Indianapolis Star:

A company's insurance coverage carries over to the acquirer, the Indiana Court of Appeals has ruled.

In a decision published Tuesday, the court cleared up a murky legal issue surrounding acquisitions.

The decision came in a two-year-old lawsuit involving U.S. Filter Corp., a former Mishawaka maker of industrial blast machines.

U.S. Filter, now Veolia Water, bought the Wheelabrator blast business in 1996 and found itself facing 22,000 claims from people alleging they suffered lung problems from the silica dust the cleaning machines use. The claims dated back 50 years.

Most of the companies that insured Wheelabrator over those 50 years banded together to fight U.S. Filter's attempt to get them to cover the claims.

"Anybody in the business of acquiring assets . . . will be very interested in what the court ruled here," said Robert MacGill, lead attorney for U.S. Filter.

It's a setback for the insurance industry, which argued that insurers must consent to corporate coverage passing on to an acquiring company.

"Insurance must be broad to serve its function. It would be reckless to undertake an acquisition if it were impossible for a business to insure against historic liabilities that may come with the new asset," the court ruled.

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

Tuesday, July 24, 2007

Courts - Result in on "Mistrial declared in Notre Dame coach's malpractice case"

Updating this ILB entry from July 17, the AP is reporting this afternoon:

BOSTON (AP) -- A jury on Tuesday found against Notre Dame football coach Charlie Weis in his medical malpractice lawsuit against two doctors he claimed botched his care after he had gastric bypass surgery five years ago.

The jury deliberated almost three hours before finding Massachusetts General Hospital surgeons Charles Ferguson and Richard Hodin were not negligent.

Weis, 51, who won three Super Bowls as offensive coordinator for the New England Patriots, accused the surgeons of negligence for allowing him to bleed internally for 30 hours before performing a second surgery to correct the complication.

Weis became gravely ill after the 2002 surgery and nearly died. He testified he still has numbness and pain in his feet and sometimes has to use a motorized cart. Seated next to the surgeons on the front row of a courtroom bench, he was stoic as the verdict was read and left the courtroom without comment. * * *

This was the second time the case had gone to trial. The first ended in a mistrial in February afterFerguson and Hodin rushed to the aid of a juror who collapsed in the courtroom.

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

Ind. Decisions - Supreme Court issues one today

In Chad E. Strong v. State of Indiana, a 4-page opinion, Justice Dickson writes:

In this case, the State acknowledges the defendant's claim that his two convictions violate double jeopardy principles, but the parties disagree on the proper remedy. * * *

The defendant's conviction and sentence for murder is affirmed. But we remand to the trial court to reduce the conviction for neglect of a dependant from a class A felony to a class D felony, for which the sentence shall be a term of three years, to be served consecutively to the sentence for murder.

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

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al., a 29-page opinion, the first 4 pages are taken up by the names of the attorneys. Judge Kirsch writes the opinion.

On appeal, Insurers raise the following issues: I. Whether the trial court erred in concluding that U.S. Filter acquired the rights to and is entitled to seek insurance coverage under Insurers’ policies when the relevant corporate transactions did not assign rights under those policies. II. Whether the trial court erred in holding that U.S. Filter is not, as a matter of law, precluded from seeking coverage under Insurers’ policies notwithstanding U.S. Filter’s noncompliance with the “consent-to-assignment” provision.

Appellee/Cross-Appellant Waste Management also raises the following issue: III. Whether the trial court erred in granting U.S. Filter rights under Insurers’ policies, but summarily denying Waste Management those same rights where no party requested such relief and no supportive evidence was designated.

We affirm in part, vacate in part, and remand.

This dispute arises from U.S. Filter and Waste Management’s (collectively, “Plaintiffs”) efforts to assert rights under insurance policies that were issued to predecessor or affiliate companies. Plaintiffs seek coverage for thousands of underlying bodily injury claims allegedly caused by claimants’ exposure to silica while working in the vicinity of the Wheelabrator blast machine (“Wheelabrator blast”). Relying on a long line of corporate transactions, Plaintiffs assert that they have rights under policies issued by Insurers.

In Liberty Mutual Insurance Company v. Roy Beatty and Vanda Beatty , a 10-page opinion, Judge Kirsch writes:
Liberty Mutual Fire Insurance Company (“Liberty Mutual”) appeals the trial court’s summary judgment in favor of Roy and Vanda Beatty (the “Beattys”). Liberty Mutual contends the trial court erred when it found that the Beattys were entitled to uninsured motorist/underinsured motorist coverage (“UM/UIM coverage”) under their umbrella insurance policy. We affirm. * * *

This appeal, reduced to its essentials, turns on whether the document signed by Roy is an effective rejection of UM/UIM coverage. * * *

Appellate courts consistently instruct insurance companies that terms of a policy will be interpreted liberally and read favorably to the insured. * * * Liberty Mutual’s presentation of an ambiguous rejection form to Roy during the policy’s term that asks whether he would like [to] give up existing coverage for which he has already paid, without consideration was ineffective to waive UM/UIM coverage. Accordingly, we affirm the trial court’s finding that the umbrella policy provided UM/UIM coverage, and its entry of summary judgment in favor of the Beattys and against Liberty Mutual.

In Darrel M. Maymon v. State of Indiana, a 9-page opinion, Judge Kirsch writes:
Darrel M. Maymon appeals the denial of his petition for post-conviction relief from his convictions on two counts of burglary as Class B felonies and two counts of burglary as Class A felonies. He raises the following restated issue: whether he received effective assistance of trial counsel when his attorney failed to move to sever the four charges. We reverse. * * *

Trial counsel’s failure to seek severance fell below an objective standard of reasonableness, and Maymon was prejudiced by his trial counsel’s failure to move for severance of the burglary charges. The post-conviction court erred when it denied Maymon’s petition for relief.

NFP civil opinions today (3):

Anne Moon v. Marcia Greene and Garry L. Greene (NFP) - "Intervenor Anne Moon appeals the trial court’s post-judgment order in the dissolution of the marriage of her daughter Marcia L. Greene (Wife) and Garry L. Greene (Husband). In its order, the trial court directed Moon to disburse the proceeds from the refinancing of the marital home that was jointly owned by Moon and Husband. Moon appeals claiming the trial court lacked subject matter jurisdiction to enter the order because Wife had already assigned her interest in the marital residence to Moon, Husband was paid the proceeds due under the Decree, and there was no evidence of fraudulent transfer. We affirm."

Ashok K. Gupta and Sudha R. Gupta v. Harbhupinder Bains, Rajwinder Kaur and Ashok Bhargava (NFP) - This case involves the applicability of a contractual arbitration provision to tort actions between the parties. "[W]e affirm the trial court’s order of dismissal and reference to arbitration."

Lake County Sheriff's Dept. v. Lorraine C. East-Miller (NFP) - "The Lake County Sheriff’s Department (“Sheriff’s Department”) appeals a decision of the Indiana Civil Rights Commission (“ICRC”) in favor of Lorraine C. East-Miller (“East-Miller”). The Sheriff’s Department raises one issue, which we restate as whether the ICRC erred by denying its motion to set aside the default judgment. We affirm."

NFP criminal opinions today (5):

Brandon C. Williams v. State of Indiana (NFP)

Joseph Roach v. State of Indiana (NFP)

Jesus Leal v. State of Indiana (NFP)

Phillip C. Rice v. State of Indiana (NFP)

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

Law - "Supply-and-Demand Has D.C. Top Law Firms' 'Summer Associates' Hitting Pay Dirt Without Breaking Much of a Sweat"

The Washington Post has a longish story today by Ian Shapira about summer interns. Some quotes:

Amy Jenkins considered her fortune. She's pulling down $2,700 a week this summer, the equivalent of about $140,000 a year -- all as a 24-year-old summer "associate" or, in more common terminology, intern. Her last serious job was working as a camp counselor in North Carolina.

"I definitely feel like a grown-up for the first time, because it's the first real responsible type of job I've had, as opposed to taking girls out to the river," she said, flanked by two tables of twentysomething contemporaries.

There has been no better time to inhabit the stratosphere of law firm summer associates than now. With a domino effect, some of Washington's elite firms have been boosting salaries over the past several months as they compete for a talent pool that is not expanding as rapidly as the caseloads. Prominent firms have hit a controversial high: about $3,100 a week for summer associates, or what would be just over $160,000 a year for fresh law school graduates. Perks are plentiful and full-time job offers all but guaranteed.

"I feel like I deserve it," said Vincenza Battaglia, 25, a rising third-year law student summering at Steptoe & Johnson. "We work really hard in law school."

As pointed out later in the story: "For the academic year 2005-06, students from public university law schools owed an average of $54,509. Those from private schools: $83,181."

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

Ind. Courts - Judge Sullivan's retirement ceremony now viewable online

The archived video of the Retirement Ceremony of Judge Patrick Sullivan is now available online. Access it here. Be forewarned that the first 15 minutes of the nearly two-hour video have no content.

For more, see this ILB entry from July 21st.

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

Law - More on: Law schools look at reinventing their first (or third) years

Updating these ILB entries from May 23rd and 24th, the ABA Journal for July has a feature article titled "Re-engineering the J.D. - Schools across the country are teaching less about the law and more about lawyering." A sample:

Many law schools are continuing to struggle with what type of change is most meaningful for their own unique mission, says Ohio State University law professor Douglas A. Berman. Berman writes about curricular reform and related issues for law schools, their faculties and administrators on his blog, Law School Innovation.

“Law schools historically have been trade schools, where students learn the trade of becoming a lawyer,” Berman says. “Justifiably, over time, that became more of a negative image and then law schools became more of a professional school. That may have been more of a perfect balance—not just trying to teach you the nuts and bolts of the trade but also teaching you to appreciate the pros and cons of the profession. Now we are viewing law school more as a graduate school, trying to give students more of an advanced and sophisticat­ed appreciation of law’s function in society.”

Berman believes this move away from the realities of practice is misguided. He says the better approach is a combination of trade school, graduate school and professional school with “a few tweaks.”

He is joined in his thinking by the newest generation of deans, most of whom now come into the academy with some experience practicing law.

[Here is Berman's blog, Law School Innovation. And here is Berman's other, and much better known, blog, on Sentencing Law and Policy.]

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

Ind. Courts - "Courthouse elevator warranty extended"

Pam Tharp reports today in the Richmond Palladium-Item:

LIBERTY, Ind. -- The warranty on the troubled elevator in the Union County Courthouse was extended three months Monday, but that didn't satisfy everyone.

Resident Maude Winkler urged the commissioners to have the elevator replaced or demand another 12-month warranty. The manufacturer's warranty expired today.

"I have a 26-year-old grandson (in a wheelchair). If he gets stuck on the third floor, he's trapped. He can't get out and walk down the stairs," Winkler said. "He should be able to apply for a job or run for (an elected) job in this courthouse. If (the elevator) works fine for one year, then release the warranty. It's serious business."

Winkler, a senior citizen, said she recently came to the courthouse on the last day to file a property exemption and the elevator wasn't working. She had to get someone to take the paperwork upstairs.

This story brought to mind the SCOTUS 2004 decision in Tennessee v. Lane, re access to courthouses.

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

Monday, July 23, 2007

Ind. Courts - Hoosier State Press Ass'n. endorses lifting ban on face-to-face death row interviews

The July 19th issue of The Indiana Publisher includes a column by Stephen Key, General Counsel to the HSPA. headlined "Moving to end the ban on death row interviews." It begins:
HSPA and the HSPA Foundation will lend their name to an amicus brief written by the Reporters Committee on Freedom of the Press that opposes a ban on face-to-face interviews of death row inmates that has been in place for years at the federal penitentiary in Terre Haute.

The ban was put in place following a televised interview with convicted Oklahoma City bomber Timothy McVeigh in 2000. I believe the ban was instituted due to political pressure brought to bear by individuals angered that McVeigh’s hateful opinions received a nationwide audience.

Max Jones, editor of the Tribune-Star (Terre Haute), asked HSPA and the Foundation to join an amicus brief to be filed in Hammer v. Ashcroft, a case before the federal 7th Circuit Court of Appeals.

Here is the 7th Circuit webpage for the briefs in 06-1750: Hammer, David P. v. Ashcroft, John, classified as "Prisoner Appeal; Nature of Suit: Prison Condition/US Defendant." At this point, only the Appellee (the government's) brief is available.

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

Ind. Courts - More on Van Bokkelen Steps Down as U.S. Attorney

Chicago Public Radio had a story on July 13th on U.S. attorney Joseph Van Bokkelen. You may read it here, or listen to it here. A quote:

Just a few days ago, the U.S. attorney’s office in Hammond announced that it had wrapped up a public corruption case against a township trustee who spent 300-grand in public money on personal pleasures like motorcycle racing.

The trustee had finally been sentenced.

It’s an example of Joe Van Bokkelen’s style: He may be a week from stepping down as U.S. attorney for Northwest Indiana, but he’ll be using every last bit of remaining hours to focus on weeding out political corruption.

His commitment has been both professional and a little personal; He’s spent much of his life in this part of the Midwest.

VAN BOKKELEN: If you go any place in the state of Indiana and you say you’re from Lake County, Indiana, people kind of look at you and say, ‘We’re sorry.’ That shouldn’t be the way it is. Lake County is a wonderful place. It’s got many opportunities, but this image needs to be changed. And, I think it’s due to the efforts of a lot of people, not just this office, I think that’s changing.”

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

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In In the Matter of the Guardianship of J.E.M., a minor; Maxine E. Handshoe v. Jessica L. Ridgway , an 11-page opinion, Judge Barnes writes:

Case Summary. Maxine Handshoe appeals the trial court’s termination of her visitation privileges with her biological grandson, J.M. We reverse and remand.

Issue. The sole restated issued is whether the adoption of J.M.’s adult mother, Jessica Ridgway, automatically terminated as a matter of law any rights Handshoe had to visitation with J.M. * * *

We reverse the termination of Handshoe’s visitation privileges and remand to the trial court for further consideration of Ridgway’s motion for termination in light of the best interests standard of the GVA and our holding in McCune recited earlier. We would note that although we have held that Ridgway’s adoption does not automatically preclude visitation with J.M. by Handshoe, Ridgway’s decision to sever ties with Handshoe certainly may be a valid and substantial consideration in deciding whether it is proper to allow further visitation. We also observe, as did the Worley court, that Handshoe would not be able to seek visitation with any children of Ridgway’s born after her adoption by the Muellers.

In the 9-page opinion, In the Matter of the Estate of Mark R. Holt, Judge Bailey writes:
Richard A. Holt (“Richard”) appeals a negative judgment entered upon his Petition for Determination of Heirship wherein he requested that the probate division of the Porter County Superior Court declare the remarriage of decedent Mark R. Holt (“Mark”) and Cindy Jo Holt (“Cindy”) void due to Mark’s mental incompetency. We affirm.
NFP civil opinions today (2):

Christopher A. Verbert, Sr. v. Atashia Lynn Wildey (NFP) - "Christopher A. Vebert, Sr. (“Vebert”), acting pro se, appeals the small claims court’s (“the trial court”) negative judgment against him regarding his entitlement to a diamond ring or its monetary equivalent. Verbert alleges that he gave Atashia Lynn Wildey (“Wildey”) a diamond ring accompanied by proposal of marriage and that the parties agreed Wildey would return the ring to Vebert if they ended their relationship prior to marriage. The trial court concluded that Vebert failed to carry his burden of proof in showing that he was entitled to the return of any engagement ring. Because we find that that the trial court’s judgment was not contrary to law, we affirm."

Todd William Emmert v. Estate of Marolyn Emmert Nees, Jeffrey Emmert & Steven Emmert (NFP) - "Todd Emmert appeals the trial court’s construction of a will written by his mother, Maryoln Nees. We affirm."

NFP criminal opinions today (5):

Earl Moody v. State of Indiana (NFP)

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

Damon A. Myers v. State of Indiana (NFP)

Thomas A. Yohe v. State of Indiana (NFP)

Shawn Breeden v. State of Indiana (NFP)

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

Courts - More on: Federal judge John Daniel Tinder (SD Ind.) nominated to 7th Circuit

On July 17th the ILB reported that Judge Tinder had been nominated to the 7th Circuit. Here is a list of over three year's worth of ILB entries mentioning Judge Tinder. The list includes the results in most of the Tinder cases which were appealed to the 7th Circuit, plus a number of Tinder interviews, including Sept. 29, 2005 ILB entry titled "Ind. Courts - Is Judge Tinder our most interviewable jurist?" and this Indianapolis Star feature from June 25, 2006 titled "Five Questions for John Tinder."

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

Ind. Decisions - 7th Circuit decides one today

In USA v. Victor Goodwin (SD Ind., Judge Young), a 14-page opinion, Judge Manion writes:

A jury convicted Victor Goodwin, Leo Brown, Jr., Timothy Doerr, and Jermal Phillips of multiple counts of drug trafficking and other related offenses stemming from a multi-state conspiracy. Following their convictions, the four defendants filed a consolidated appeal challenging various aspects of their respective convictions and sentences. We affirm.

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

Law - A look at student free speech

A "My View" opinion piece in today's Indianapolis Star is headlined "Fighting to protect students' free speech." The author, Warren Watson, unfortunately is not identified in the online version, but from the caption to a photo in the printed Star, we have this: "Watson is director of J-Ideas, a national First Amendment institute in the journalism department in the College of Communications, Information and Media at Ball State University."

Watson's comprehensive piece ends with this:

There is further optimism from academia. The president of a major Midwest university has spoken out against the censorship of student journalists at a high school near Fort Wayne. Jo Ann Gora, Ball State's president, called the muzzling and discipline of a teacher -- Amy Sorrell -- a "dark cloud" over the school "Strangely," Gora said, "her belief in the importance of promoting tolerance led to her punishment."

Bad news. Good news. Such is the tenuous world of the First Amendment in a society bending to the right.

The young minds of today's students are shaped by dialogue and ideas and viewpoints and facts and critical thinking. Kids learn by studying and debating. Young minds must be exposed to an open forum of ideas and issues.

This is how democracy works. This is why students must enjoy the same First Amendment protection as their mothers and fathers.

Yes, a young mind is like a parachute. It functions fully and properly only when it's open.

Posted by Marcia Oddi on Monday, July 23, 2007
Posted to General Law Related

Ind. Gov't. - Feature on new public access counselor

Updating this ILB entry from July 6th headed "More on: Governor announces new Public Access Counselor, effective immediately," here is an AP feature by Keith Robinson that appeared in many papers this weekend. Some quotes:

[Heather Willis Neal] said she will keep track of how access laws are implemented, catalog issues as they develop and recommend ways lawmakers might improve the statutes.

"I do see that as an important part of the job," she said. "But I'm not a lobbyist. I don't have time to be hanging out in the halls."

Neal, an attorney who worked for the secretary of state for six years until 2005, takes over an office with an annual budget of $150,845, unchanged significantly from when it was created. Her salary and that of an administrative assistant will consume nearly $145,000, including benefits. That will leave about $6,000 for expenses such as office supplies and travel for programs to educate the public about the state's access laws.

There was an effort among some open-government advocates this year to add $50,000 to the office for a second attorney to help with an increasing workload. But lawmakers did not include it in the state budget they enacted in April.

The office received 2,097 inquiries and complaints in the fiscal year ended June 30, up 185 from the previous year. Formal complaints filed from January through June of this year increased 67 percent over the previous six months.

Welcoming Neal to the office on her first day were 43 formal complaints needing an opinion from her within the required 30 days.

Karen Davis, whom Neal replaced when Davis' term ended, said cases stack up with only one attorney to review them.

"It's a miracle I got done what I did," she said.

The access counselor has no power to enforce the state's Open Door Law and Access to Public Records Act. But the counselor's opinions often head off lengthy and costly court fights.

Posted by Marcia Oddi on Monday, July 23, 2007
Posted to Indiana Government

Environment - "Randolph County at stalemate on CAFO regulations"

Joy Leiker reports in the Muncie Star-Press in a s tory that begins:

WINCHESTER -- The debate over Randolph County's fastest growing industry continues as a committee appointed by the Area Planning Commission studies the latest idea in managing the growth of concentrated animal feeding operations -- multiple zoning districts for agriculture.

Having dual agricultural districts is the latest proposal to come from four years of discussion over the county's lack of an ordinance to limit CAFOs. Randolph County is becoming one of the state's leading hog-producing counties in the state. Hog production is expected to be an almost $50 million business in the county this year, compared to $12.5 million in 2003, according to a recent study.

But opponents say that growth is a result of the county not limiting where those farms can locate. Fred Ludington of Parker City, a planning commission member, asked whether the county could adopt a temporary moratorium on CAFOs until the county settles on a new set of rules, but attorney Bob Oliver said similar attempts elsewhere have been ruled unconstitutional.

Posted by Marcia Oddi on Monday, July 23, 2007
Posted to Environment

Courts - "Md. Judge Dismisses Sex-Abuse Charges"

The ILB has had a number of stories about provisions made in Indiana and elsewhere to assure the availability of translators when needed. But what happens if the language is so rare that no translator can be located? That was the case in this lengthy story yesterday in the Washington Post that begins:

A 7-year-old girl said she had been raped and repeatedly molested over the course of a year. Police in Montgomery County, acting on information from a relative, soon arrested a Liberian immigrant living in Gaithersburg. They marshaled witnesses and DNA evidence to prepare for trial.

What was missing -- for much of the nearly three years that followed -- was an interpreter fluent in the suspect's native language. A judge recently dropped the charges, not because she found that Mahamu Kanneh had been wrongly accused but because repeated delays in the case had, in her view, violated his right to a speedy trial.

"This is one of the most difficult decisions I've had to make in a long time," Katherine D. Savage said from the bench Tuesday, noting that she was mindful of "the gravity of this case and the community's concern about offenses of this type."

Loretta E. Knight, the Circuit Court clerk responsible for finding interpreters, said her office searched exhaustively for a speaker of Vai, a tribal language spoken in West Africa. They contacted the Liberian Embassy, she said, and courts in all but three states. Linguists estimate that 100,000 people speak Vai, mostly in Liberia and Sierra Leone.

Posted by Marcia Oddi on Monday, July 23, 2007
Posted to Courts in general

Ind. Gov't. - East Chicago is five for five in early court rulings

Joe Carlson reports today in the NWI Times about a question that comes up often at various levels of Indiana government:

EAST CHICAGO | Mayor George Pabey unseated one of the nation's longest-serving mayors in 2005 on a promise to trim the size of the city's bloated payroll.

But City Attorney Carmen Fernandez said Pabey's efforts were halted early by a raft of wrongful termination lawsuits.

More than a third of the 60 people Pabey fired in the first few months in office sued the city in federal court, claiming they were victims of political and racial discrimination. Yet in the five cases decided so far, federal judges have supported the city each time.

"When citizens go to the polls and exercise their franchise, the results of the election should matter," U.S. District Judge Philip Simon wrote in one case. "If it votes for change, the public has a right to expect it. Otherwise, what's the point?"

In all, 21 federal lawsuits were filed against the city, some of which included multiple defendants. So far, five have been thrown out by judges, and three more were dismissed after plaintiffs decided their chances of winning were too slim.

The circumstances of each case vary widely. Some of the workers were department heads while others were rank-and-file employees. Some were unionized; others were not. In at least one of the cases, a police officer was reassigned from detective duty to patrol -- what he called a politically motivated demotion.

But the cases bear common hallmarks. All of the litigants accuse Pabey of personally knowing that they supported former Mayor Robert Pastrick's election, and nearly all are represented by longtime Pastrick lawyer Anthony DeBonis.

City attorneys argued that DeBonis should not be able to represent the plaintiffs because of his extensive insider knowledge of confidential city files and his practice of soliciting people for lawsuits before they were fired by Pabey.

The Seventh U.S. Circuit Court of Appeals ruled in January that DeBonis should be allowed to represent his clients and that any irregularities should be dealt with through the "attorney discipline process."

Though the cases have been in litigation since mid-2005, the first trial is scheduled to begin in two weeks, when former Fire Chief Ed Duwar will appear in U.S. District Judge James Moody's court to air allegations of political firing.

Duwar is the only litigant yet to get even a partially favorable ruling in response to the city's motions to dismiss. In February, Moody refused to dismiss Duwar's case, saying a jury should be asked to decide whether Pabey illegally fired Duwar from his $43,000-per-year job.

In the five cases the city already has won, attorneys are asking the court to force the plaintiffs to pay part of the cost of defending the lawsuits. It's a way to discourage what the Pabey administration considers frivolous lawsuits, Fernandez said.

Posted by Marcia Oddi on Monday, July 23, 2007
Posted to Indiana Government

Ind. Law - Update on: Do the changes to the sex offender law mean longtime homeowners must move?

This ILB entry from July 11th began:

The Lafayette Journal & Courier has had a number of stories about changes to the Indiana sex offender law that may now require long-time owners or residents to move. Their June 6th editorial predicted the issue would wind up in court. Yesterday it did.
In a story today headlined "State's new sex offender law to get court test," Sophia Voravong of the Lafayette Journal Courier reports:
A Tippecanoe County judge will consider Tuesday whether a registered sex offender forced to move under a new Indiana law is still considered a danger to children.

Attorneys across the state are eager to hear the answer.

"We've gotten calls from other attorneys who knew we were doing this. Everyone is trying to figure out how to proceed," said attorney Chad Montgomery, who is representing a Lafayette man identified only as "John Doe" in court documents.

"We've shared our pleadings with the Indiana Public Defender's office." * * *

Under an Indiana law that took effect July 1, 2006, offenders convicted of crimes against children are prohibited from living within 1,000 feet of a school, youth program center or public park. The law itself does not specify whether that applies to convictions before that date.

"If the court wants to interpret it that way, we don't have an issue with that," said Montgomery, who is with the Earl McCoy Law Firm.

"But I do think that people are getting punished again for something they did and were already convicted for. ... It's an issue of double jeopardy." * * *

Montgomery filed petitions this month in Tippecanoe Superior Court 1, asking that his client no longer be considered an offender against children and that he temporarily be allowed to live in his own home while the judge considers the case.

This was done under new legislation that took effect this July 1. It can be only done 10 years after the offender is released.

John Doe's preliminary injunction hearing is scheduled for 9 a.m. in Superior Court 1.

Meanwhile, police agencies in Tippecanoe County have started a new effort to verify the addresses of all registered sex offenders who are not monitored either by community corrections, probation or parole.

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

Not law - I have to agree with Doug

Doug Masson writes this morning:

The Fort Wayne Journal Gazette main page is too annoying to visit these days. I log on and immediately get choppy advertising audio piping out of my computer speakers. It’s like some kind of craptacular MySpace page. And that’s unfortunate since the Journal Gazette has traditionally done some of Indiana’s best political reporting (Thanks Niki Kelly!)
I certainly agree. I logged on to their newish site this morning only to be hit with a blast of sound. But there are more problems with the "improved" site design. The short blurbs often don't give any idea of what the story is about. And some items are hard to find and only then if you know to look for them, such as the Sunday politcal column. Too bad.

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

Sunday, July 22, 2007

Law - "Alimony provides a same-sex union test"

This is interesting. Thanks to How Appealing for the link to this LA Times story today by Maura Dolan. It begins:

Ron Garber knew his former wife was living with another woman — and had taken her last name — when he agreed to pay her $1,250 a month in alimony.

What he didn't know was that the two women had registered with the state as domestic partners under a law that was supposed to mirror marriage law, Garber said.

State marriage laws say that alimony ends when the former spouse remarries, and Garber reasons he should be off the hook, given that domestic partnership is akin to marriage. But an Orange County judge has decided that registered partnership is cohabitation, not marriage, and that Garber must pay.

"This is not about gay or lesbian," Garber said. "This is about the law being fair."

The case, which Garber intends to appeal, highlights gaps between the legal status of domestic partners and of married couples, an issue the California Supreme Court is considering as it ponders whether to legalize same-sex marriage.

Proponents of same-sex marriage typically argue that gay couples will not have the full rights of heterosexuals until they too can marry. The Orange County case, however, shows how heterosexuals can be the collateral damage of the lesser legal status of domestic partnership.

If spousal support does not end with domestic partnership, "heterosexual men are the ones whose ox is being gored more often than not," said San Francisco family law attorney Diana Richmond.

Lawyers in favor of same-sex marriage are watching the Orange County alimony case and say they will cite it to the state high court as an argument for uniting gay and heterosexual couples under one system: marriage.

Therese Stewart, San Francisco's chief deputy city attorney, said the alimony ruling and other gaps in the domestic partnership law "highlight the irrationality of having a separate, unequal scheme" for same-sex partners.

Posted by Marcia Oddi on Sunday, July 22, 2007
Posted to General Law Related

Ind. Decisions - More on: Demoted Terre Haute firefighters receive $71K

Updating this ILB entry from July 17th, about the trial court ruling last week following the April 27th Supreme Court decision in the case of Naugle v. Beech Grove Schools, where, to quote from the Terre Haute Tribune-Star story last week:

Judge Ann Smith Mishler, a special judge in the case, referred to the Supreme Court’s ruling in her decision.

The court “finds that the Wage Payment Statute applies to governmental employers and further that the … city of Terre Haute is a ‘person’ as defined by the Wage Payment Statute,” she wrote in the ruling, “and as such, the [firefighters] are entitled to liquidated damages.”

The Trib-Star opines today “Nobody likes a sore loser.” Some quotes:
We were reminded of that timeless lesson of competition upon reading the city’s response to a successful lawsuit by four Terre Haute firefighters.

In the works since 2004, the suit was about damages the men believed they were owed because the city had demoted them without cause during a department “reorganization” and lowered their salaries for nearly 22 months.

The case pended in Superior Court until this spring when an Indiana Supreme Court ruling on a similar matter was rendered. On June 29, a special superior court judge, Sullivan magistrate Ann Smith Mishler, cited the supreme court decision and found in favor of the firefighters.

Because the city already had reinstated the four men’s salary levels and paid them back wages, Mishler’s ruling amounted to about an additional $52,000 total for the firefighters and their attorney.

In an official statement issued nearly a month after the decision, Mayor Kevin Burke’s office acknowledged the loss but could not resist the temptation to whine about it. Emphasizing that the city already had “compensated these employees with an adjustment in their pay” in late-2005, the statement carped:

“However, these individuals felt it necessary to further penalize the city and the taxpayers in the litigation by requiring treble damages to be paid to the plaintiffs and excessive attorney’s fees to be paid to plaintiffs’ counsel, thus further increasing the burden on the city of Terre Haute and the taxpayers …”

That is not only sour grapes, it’s divisive sour grapes, and unbecoming of the city’s chief executive office. Invoking such terms as “penalize” and “burden” in the same phrase as “taxpayers” is an obvious attempt to aggravate local citizens and turn them against the firefighters and their lawyer.

Fair is fair. The state’s highest court said Indiana’s Wage Payment Statute applies to municipal entities, and a superior court judge said that means the firefighters deserved more than back pay. While the decision may have stuck in the mayor’s craw — especially given that the plaintiffs’ attorney, Eric Frey, is an avowed political enemy of Burke’s — any chagrin should have been choked down and kept private.

Posted by Marcia Oddi on Sunday, July 22, 2007
Posted to Ind. Trial Ct. Decisions

Not law but interesting - Picture Bill Clinton and Ronald Reagan bald, or Fred Thompson with hair

You can see the results here in this illustrated story in The Economist headlined "Bald eagles."

Posted by Marcia Oddi on Sunday, July 22, 2007
Posted to General News

Courts - Louisville federal judge named to head the Judicial Panel on Multi-District Litigation

Andrew Wolfson of the Louisville Courier-Journal writes today:

[Louisville's U.S. Chief District Judge John G. Heyburn II] has been appointed by John Roberts, chief justice of the United States, to head a panel of seven judges that decides what to do when thousands of cases are filed around the country against the same defendant.

Known as the MDL panel, since it was created in 1968, the Judicial Panel on Multi-District Litigation has considered more than 1,600 dockets involving more than 200,000 lawsuits and millions of claims, including hotel fires, airline crashes, asbestos litigation and securities fraud.

The panel decides which cases are consolidated and to what judge they are sent. Its decisions can make or break billion-dollar cases for corporate defendants and/or plaintiffs, based on what happens to them after they are transferred.

And the decision cannot be appealed.

"The MDL panel is omnipotent," says Evan Schaeffer, a St. Louis lawyer who has written extensively about it. "It can send cases anywhere. It can send them to Fargo. It can send them to Alaska. Think of it as a secret society of seven judges."

Heyburn, 58, who was appointed by President George H. W. Bush in 1992, applied for the position, which carries no additional pay. He will serve a seven-year term and supervise a staff of 27, including seven lawyers.

The panel meets every two months to hear oral arguments from lawyers for each side. Then it decides whether cases with similar facts should be combined and centralized to prevent inconsistent rulings by different judges and to avoid duplicative demands for evidence. * * *

Louisville trial lawyer Ed Stopher described Heyburn's appointment as "a huge plum."

Sheryl Snyder, another Louisville attorney, said it gives Heyburn "enormous influence" and is the equivalent of a cabinet level appointment in the executive branch.

The panel's decisions are designed to reduce the chaos of mass litigation, and they're designed to save time and resources – for the courts and both sides.

"We don't consider who our decisions might favor," Heyburn said. "We are a gatekeeper."

But lawyers fight fiercely to get their case before the right judge, in the right venue.

Attorneys suing a professional sports league, for example, might want the case sent to where the sport isn't particularly popular.

Lawyers for a corporation might want to keep cases close to its headquarters.

The panel's work initially was thought to favor plaintiffs by allowing their lawyers to pool resources, spreading the expense of litigation and "spreading damning documents turned up in discovery across the country," American Lawyer magazine has observed.

But lifting the burden of fighting the same motions in multiple courtrooms also has helped the defense. The magazine concluded it ultimately has proved more of a boon for defendants than plaintiffs because in several major cases, the judge to whom cases were sent threw them out.

That happened most notably two years ago when a judge in Texas dismissed potentially massive workplace litigation over the respiratory disease silicosis, ruling the cases were based on junk science. Silicosis is caused by exposure to dust common in mines, quarries and road construction.

Another federal judge in Ohio entered a wholesale order dismissing litigation against the diet drug Meridia, based on the argument of its manufacturer, Abbott Laboratories, that the drug's warning label protected it from liability.

More about the Judicial Panel on Multi-District Litigation. This is from the MDL's introductory brochure:
The MDL Panel consists of seven sitting federal judges, who are appointed to serve on the Panel by the Chief Justice of the United States.

The multidistrict litigation statute provides that no two Panel members may be from the same federal judicial circuit. The current Chairman of the Panel is Judge John G. Heyburn II, who sits in the Western District of Kentucky. The remaining Panel members, in order of seniority on the Panel, are Judges D. Lowell Jensen (N.D. California), J. Frederick Motz (D. Maryland), Robert L. Miller, Jr. (N.D. Indiana), Kathryn H. Vratil (D. Kansas), David R. Hansen (C.A. Eighth Circuit) and Anthony J. Scirica (C.A. Third Circuit).

Judge Heyburn is from the 6th Circuit and Indiana's Judge Miller is from the 7th Circuit.

The law creating the MDL panel is found at 28 USC 1407.

Judge Heyburn succeeds the Honorable Wm. Terrell Hodges of the Middle District of Florida as Chairman.

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

Ind. Courts - Sentencings vary for child sexual crimes between federal and state courts; more

Andy Grimm of the Gary Post-Tribune has a lengthy and interesting article today contrasting federal penalties for online sexual predators with real-world, difficult to prosecute, state sexual abuse prosecutions. He uses as an example of Matthew Hensley (see ILB entries here):

Last July, the Adam Walsh Act -- named for the son of "America's Most Wanted" host John Walsh -- took effect, making federal penalties for crimes against minors far more harsh.

Online predators and pornographers, who fall into federal jurisdiction because local law enforcement doesn't have the technological expertise to prosecute them and because the Internet is a tool of interstate commerce, are the ones who will feel the teeth of the new laws.

Valparaiso's Matthew Hensley, a former basketball coach with no prior record, will face a 10-year minimum sentence for trying to set up a sexual rendezvous with an undercover U.S. Customs agent he thought was a 13-year-old girl.

The maximum sentence is life in prison. Inmates are required to serve out at least 85 percent of their sentence.

The penalties send a strong message, Assistant U.S. Attorney Philip Benson said.

"What happens if one of these guys goes online with someone who isn't one of our undercovers?" Benson said.

In contrast:
Meanwhile, state courts will continue to be flooded with real-world sexual abuse prosecutions. Prosecutions are often difficult and painful for victims. Cases seldom draw sentences of more than a few years.

The average sentence leveled by state courts is less than eight years and the average amount of time served is two and a half years, according to state Department of Correction statistics.

[More] See also the cover story in this Sunday's NYT Magazine, titled "How Can You Distinguish a Budding Pedophile From a Kid With Real Boundary Problems?" A quote:
Longo and other experts have increasingly advocated for a less punitive approach. Over the past decade, however, public policy has largely moved in the opposite direction. Courts have handed down longer sentences to juveniles for sex offenses, while some states have created tougher probation requirements and, most significant, lumped adolescents with adults in sex-offender legislation.

The best-known example is Megan’s Law. Since 1994, federal legislation has required many sex offenders to register with the police, which can aid sex-crime investigations. But Megan’s Law, which went into effect in 1996, mandates that law enforcement also notify the public about certain convicted offenders in their communities. One of the ways states do this is through publicly accessible Web sites. At least 25 states now apply Megan’s Law, also known as a community-notification law, to juveniles, according to a recent survey by Brenda V. Smith, a law professor and the director of the National Institute of Corrections Project on Addressing Prison Rape at American University’s Washington College of Law. That means on many state sex-offender Web sites, you can find juveniles’ photos, names and addresses, and in some cases their birth dates and maps to their homes, alongside those of pedophiles and adult rapists.

Now that concept has reached the federal level. In May, Attorney General Alberto R. Gonzales proposed guidelines for the Adam Walsh Child Protection and Safety Act, named for a 6-year-old boy (and son of John Walsh, the host of TV’s “America’s Most Wanted”) abducted from a Florida store and murdered in 1981. Among other things, the legislation, sponsored by Representative F. James Sensenbrenner Jr., a Wisconsin Republican, and signed into law by President Bush last year, creates a federal Internet registry that will allow law enforcement and the public to more effectively track convicted sex offenders — including juveniles 14 and older who engage in genital, anal or oral-genital contact with children younger than 12. Within the next two years, states that have excluded adolescents from community-notification laws may no longer be able to do so without losing federal money.

Posted by Marcia Oddi on Sunday, July 22, 2007
Posted to Indiana Courts | Indiana Law

Ind. Gov't. - Tully makes good point

Columnist Matthew Tully of the Indianapolis Star notes in his column today:

Do the math: State Reps. David Orentlicher and Jon Elrod have been the most visible local lawmakers during this time of property tax protesting. That's understandable. Unlike most lawmakers, Republican Elrod and Democrat Orentlicher come from swing districts that will be hotly contested in next year's elections. Aggressive, hardworking legislators? Makes you wonder what the Statehouse would be like if most districts weren't gerrymandered to guarantee incumbent re-election.

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

Saturday, July 21, 2007

Ind. Law - "Felony may rule out Dotson's run for board"

"Felony may rule out Dotson's run for board: Eligibility for office questioned because of 43-year-old guilty plea" is the headline to this story from the July 19th Martinsville Reporter-Times. Keith Rhoades reports:

A former Paragon Town Board member trying to regain his seat may be ineligible to hold that office again under a two year-old law.

Former board member Danny Dotson has filed to run for a seat on Paragon's town board, but former Paragon Town Marshal Dave Zoller has filed a challenge to Dotson running for office by citing a felony conviction of Dotson in 1964.

A felony conviction could bar anyone from holding office. Additionally, a 2005 state law bars anyone from holding an elected office who has been convicted of an offense that would be a felony may make Dotson ineligible.

Dotson had previously served on the Paragon Council from 2000 to 2004. * * *

Leslie Barnes, the Democratic Party general counsel at the Indiana Election Division, did not comment on Dotson, but said Indiana law bars anyone with a felony conviction from serving as an elected official.

As for someone who served in an elected position who has been convicted of a felony, the decisions that person made while serving are valid as long as that person had not been challenged about their eligibility, Barnes said.

People filing protests have until Aug. 1 and a decision on the person's eligibility must be made before Sept. 11 she said.

Barnes said if that person is elected, a challenge can be filed in court and that person can be ruled ineligible to hold office.

Barnes said there had been cases in the past where it was found that a person elected to a position was not eligible to hold that position. In that case, the person that held the position before the election would return to office.

For background on felons holding public office in Indiana, start with this July 5, 2007 ILB entry.

Posted by Marcia Oddi on Saturday, July 21, 2007
Posted to Indiana Law

Ind. Decisions - Reports on two Court of Appeals decisions from July 17th

"Appeals court upholds manslaughter sentence" is the headline of this story by Nick Wener, published in the Muncie Star-Press. The case is Alvin Buchanan v. State of Indiana, a NFP decision issued July 17th. From the story:

Alvin Quanza Buchanan, 24, pleaded guilty last year in Delaware Circuit Court 4 to charges of voluntary manslaughter, a class A felony, and attempted armed robbery, a class B felony.

Judge John Feick ordered Buchanan to 45 years in prison on the first count and 10 years on the second count and ruled he must serve the sentences consecutively, or back-to-back.

Buchanan argued in an appeal that Indiana law requires judges to impose what is known as the advisory -- or standard -- sentence when ordering two sentences to be served consecutively.

Following Buchanan's argument, Feick could have only imposed a total sentence of 40 years.

The appeals court disagreed and upheld Feick's decision.

A brief story today in the Indianapolis Star concerns another July 17th decision, that of Lonnie Hall v. State of Indiana. Some quotes:
The Indiana Court of Appeals has upheld the 120-year prison sentence of a teenager who killed a Near-Eastside couple.

On Jan. 29, 2004, Lonnie Hall -- then 15 -- broke into the home of Manual Aguiar-Gonzales, 49, and his wife, Mayra Perez-Gonzales, 48. The couple, who had recently moved to the United States from Cuba, were found bound with tape and stabbed to death.

Hall was tried as an adult, and a Marion Superior Court jury in March 2006 found him guilty of two counts each of murder, robbery and criminal confinement, and one count of burglary. Judge Tonya Walton Pratt sentenced Hall, then 16, in April 2006.

The appeals court this week ruled Hall was properly waived from juvenile to adult court despite suffering from attention deficit hyperactivity disorder and his immaturity, and the evidence supported the prison term.

Posted by Marcia Oddi on Saturday, July 21, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Judge OKs split of congregation: Huntington St. Peter's splinters over gay rights"

That was the headline to this story today by Rosa Salter Rodriguez in the Fort Wayne Journal Gazette. Some quotes:

Members of a downtown Huntington congregation who voted to leave the United Church of Christ denomination in 2005 over its support of equal marriage rights for same-sex couples did nothing improper, a judge has ruled.

Special Judge David L. Hanselman lifted a temporary restraining order against St. Peter’s First United Church Thursday that had been in place since Oct. 14, 2005 – after two members went to court in protest of the 115-92 congregational vote to leave the denomination.

The judge also ruled the regional body of the United Church of Christ, the Indiana-Kentucky Conference, had no claim to the congregation’s assets.

“I have to say the situation is very disappointing to us,” said Paul Krieg of Huntington, who filed for the injunction with fellow church member William Kruzan, also of Huntington.

But Brian Royer, church council president and the lone defendant in the suit, said the long-awaited decision will now allow the church to move forward.

The congregation was left hanging for more than 18 months after the judge who initially ordered the temporary injunction became seriously ill and the case was reassigned. * * *

St. Peter’s has existed as a church in Huntington for more than 150 years. It joined the United Church of Christ denomination in 1957.

Denomination officials say at least 140 congregations have chosen to leave the United Church of Christ in the wake of its stands on homosexuality. Congregations that have left include at least two others in the Fort Wayne area, the former First United Church of Christ in Bluffton and Cross United Church of Christ in Berne.

Posted by Marcia Oddi on Saturday, July 21, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on: Judge Patrick Sullivan Retires from the Court of Appeals

"State appeals court's Judge Sullivan saluted for 38-year tenure" is the headline to the Indianapolis Star story today by Francesca Jarosz. Judge Sullivan Sullivan served longer than any judge in the state's appeals court history:

He'll retire by constitutional mandate at the end of the month because he turns 75 in August. Marion Superior Court Judge Cale Bradford will take his seat.

At Friday's ceremony, colleagues, family, former clerks and U.S. Sen. Richard Lugar, R-Ind., told a packed Supreme Court courtroom stories about Sullivan's obsession with baseball, sense of compassion and fervor for accuracy. * * *

Sullivan was elected to the court in November 1968 -- he was the only current member of the Court of Appeals to be popularly elected to the court prior to the advent of the nomination approach -- and took his seat the following January.

During his tenure, Sullivan ruled on thousands of cases. In the infamous Mike Tyson case, he was the lone dissenter in his stance that Tyson deserved a new trial. He also wrote the opinion in a case involving employment rights for a Jehovah's Witness in a fight that made it to the U.S. Supreme Court.

Fellow judges said Sullivan treated each case as the most important one he'd worked on. He took the time to discuss every point of every case before making a decision -- and remembered the people behind it.

"You care about people as much as anyone I know," said V. Sue Shields, who served with Sullivan on the court and was moved to tears Friday as she addressed him. "You never lost sight of the fact that you were dealing with real people and their problems."

That sense of caring, friends said, is reflected in Sullivan's ability to make people feel at ease. Indianapolis lawyer Jerry Garau talked about his impression of Sullivan after he interviewed to be his clerk in the 1980s.

"I remember walking out of the interview thinking, 'I don't know if I got the job, but I could have a beer and catch a (baseball) game with that guy," Garau said.

Even in retirement, Sullivan will continue writing opinions as a senior judge with the court. Though he can't get paid for more than 100 days a year, Sullivan said he plans to work at least three days a week.

"For most people, retiring is about spending the rest of your life doing what you want to do," said his daughter Kelley Romweber. "He did that for the past 38 years."

The Star's story is accompanied by a photo gallery with 8 photos of the retirement event.

The nearly two-hour event was viewable as it happened via a link at the Indiana Court's website. The ILB found it well worth viewing. Currently it does not appear that the video has been archived, but the ILB has hopes that will happen and will post a note here to let you know.

Posted by Marcia Oddi on Saturday, July 21, 2007
Posted to Indiana Courts

Friday, July 20, 2007

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

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

There were three transfers granted this week; they are all in civil cases and were summarized in this ILB entry yesterday.

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, July 20, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Potential Legal Snag for Fort Wayne's Harrison Square?

An interesting story today from Fort Wayne's Channel 15-WANE:

The definitive agreements for the Harrison Square developers are done and waiting for final approval, but the deal for the baseball stadium management is causing a stir.

The city agreed to have Hardball Capital, which owns the Wizards, manage the city-owned baseball stadium. But state law says, "any public-private agreement ... must require the governmental body to request proposals ... before entering into the public-private agreement."

Some critics of the project say making an agreement with Hardball to manage the stadium without first having an open bid process is illegal, but city attorneys disagree.

"We've been working with the understanding the [stadium] is not a government public service and therefore not subject to that statute," City Attorney Tim Manges said.

The issue was brought to the forefront after the Indiana Court of Appeals ruled the Fort Wayne State Developmental Center broke the law when it didn't have a bidding process for its private management.

"With this new case, which we are all trying to digest, we want to make sure that it doesn't put a twist in this obligation," Manges said. * * *

Fort Wayne resident John Kalb wrote the commission a letter asking them not to give it the OK.

In his letter, Kalb said, "The entire Harrison Square project has aroused much public suspicion and any premature and illegal action on your part at this time will only add to the public cynicism."

Kalb continued to say if the commission approves the management agreement with Hardball without a public bid first, he will file a law suit "challenging and enjoining" its actions.

But Manges said while the baseball stadium is public property and a public amenity, it is not a public service.

Indiana Code defines a public facility as "a facility located on... real property owned or leased by a governmental body and upon which a public service is or may be provided." The law defines public service as "any service customarily provided by a governmental body."

"What they are doing is operating a ball team and managing a ball park. That is not a service within typical government functions," Manges said.

City Councilman Don Schmidt wants to make sure everything is above board after the appeals court ruling.

"In light of this new information, it seems to me we should make certain we are legal in not putting it out for bid, and it seems to me we ought to do that," Schmidt said. "If Kalb is serious and takes it to court, we don't need that. I bet few other people bid on it other than Hardball. Hardball makes sense, but do it right the first time."

Manges said several city attorneys are reviewing the court ruling and state law to double check if the stadium agreement is legal, and they should have a final review of the situation this weekend.

"We want to give the Redevelopment Commission and City Council the confidence that the way we're going is the right way to go," Manges said.

The commission is holding a special session Monday to vote on the final developer agreements and city council will discuss the project Tuesday.

Fort Wayne Observed has more of this in an entry from July 18th, including a link to a copy of the Kalb letter.

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Ind. App.Ct. Decisions

Law - More on: Dormant Michigan voter ID law may now be enforced

Updating this ILB entry from July 19th on the ruling of the Michigan Supreme Court, which ended with a reminder from the ILB that the Indiana cert petition in Crawford v. Marion County Election Board is pending before the U.S. Supreme Court, the ILB today received this note from Bill Groth, who has filed the cert petition on behalf of the plaintiffs in the case:

I have read through the lengthy decision of the Michigan Supreme Court, including both dissents. It was quite interesting that in response to virtually every argument advanced by opponents of the law, the majority repeatedly called attention to the fact that the law permits persons without photo ID to sign an affidavit at the polls on election day. Voters who do so can then vote by regular ballot, unless challenged. This is a feature lacking in Indiana law, which requires the voter without ID to vote provisionally and then make the second trip to the clerk's office to produce the lost or forgoten ID or a photo ID subsequently obtained. Even indigent voters, whom the law excepts from the ID requirements, must make the second trip just to sign the indigency affidavit so that their provisional ballot can be counted. Indiana's law clearly is far more onerous and burdensome than the Michigan law that state's supreme court upheld on a party-line vote.

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 17 NFP)

For publication opinions today (7):

In Brenwick Associates, et al. v. Boone County Redevelopment, et al., a 23-page opinion, Judge Vaidik writes:

Brenwick Associates, LLC (“Brenwick”) and the Town of Whitestown (“Whitestown”) (collectively, “the Remonstrators”) appeal from the trial court’s judgment upholding the creation of an economic development area (“EDA”) by the Boone County Redevelopment Commission (“BCRDC”) and the Board of Commissioners of Boone County (“Boone County Commissioners”) (collectively, “Boone County”). Boone County’s proposed EDA includes 1425 acres over which Whitestown had previously initiated annexation proceedings and approximately 2500 acres that Whitestown added to its annexation ordinance after Boone County initiated creation of its EDA.

Initially, we conclude that the Remonstrators, as property owners in the proposed EDA, are aggrieved for purposes of seeking judicial review of the creation of the EDA. Furthermore, we agree with the Remonstrators that Boone County had no jurisdiction to create the EDA as to the 1425 acres in Whitestown’s original annexation ordinance because Whitestown acted first to take jurisdiction over that territory. However, we agree with Boone County that the Remonstrators’ statutory and due process rights were not violated because the procedure for creating an EDA is legislative, rather than judicial, in nature, and that the evidence is sufficient to support the creation of the EDA as to the additional 2500 acres. * * *

The Remonstrators Motion to Take Judicial Notice is denied. We reverse the trial court’s conclusion that the Remonstrators are not aggrieved for purposes of the judicial review statute. We also reverse the trial court’s approval of the I-65 West EDA as to the 1425 acres in the original Annexation Ordinance. However, we affirm the trial court’s approval of the I-65 West EDA as to the additional 2500 acres. Affirmed in part, reversed in part.

SULLIVAN, J., and ROBB, J., concur.

In James F. Keenan and Wells Fargo Bank, N.A., Personal Representatives of the Estate of Judd C. Leighton and Wells Fargo Bank, et al. v. Nancy O. Butler, et al., a 12-page opinion, Judge Bailey writes:
The Estate raises the sole issue of whether a circuit court has subject-matter jurisdiction over an action filed against a decedent’s estate for breach of an oral contract to make a will when the administration of the estate is pending in probate court. * * *

[T]o harmonize the breach of contract action with the purpose of the Probate Code, the action is properly characterized as a probate matter rather than a claim. Therefore, due to the overall uncertainty as to the characterization of this action and because the probate court is aware of this action, we remand to the trial court with instructions to transfer this matter to the St. Joseph County Probate Court to be dealt with in accordance with our opinion herein. Reversed and remanded.

In Four Seasons Manufacturing, Inc. v. 1001 Coliseum, LLC, a 25-page opinion, Chief Judge Baker writes:
Appellant-defendant Four Seasons Manufacturing, Inc. (FSM), appeals the trial court’s judgment in favor of appellee-plaintiff 1001 Coliseum, Inc. (Coliseum). FSM raises the following arguments: (1) the trial court erred by not granting summary judgment in favor of Four Seasons Housing Factory Outlet, LLC (FiSHFO), and (2) the trial court erred by piercing the corporate veil of Northern Indiana Housing Factory Outlet, LLC (NiHFO), to hold FSM liable for $136,053.10. Additionally, Coliseum cross-appeals the trial court’s finding that FSM was not liable under the Indiana Uniform Fraudulent Transfer Act (UFTA). Concluding that FSM is a debtor pursuant to the UFTA but that the damages award was proper, and finding no other error, we affirm the judgment of the trial court.

Charles E. Sapen v. State of Indiana is a fact-specific case involving the question of whether defendant can be retired on the charge of resisting law enforcement in a driving under the influenece case, the Court rules: "We conclude that the State did not present sufficient evidence to establish that Sapen forcibly resisted Captain Holmes by strong, violent or powerful means to evade Captain Holmes’ rightful exercise of his duties. Therefore, Sapen may not be retried upon the charge of Resisting Law Enforcement. Reversed and remanded."

In the Matter of M.W. & D.D., Children in Need of Services; Lorraine Davis v. Marion County Department of Child Services & Child Advocates, Inc. - "Appellant-respondent Lorraine Davis appeals from the trial court’s determination that her minor sons, M.W. and D.D., were Children in Need of Services (CHINS). Specifically, Davis claims that the evidence was insufficient to support the Marion County Department of Child Services’ (MCDCS) allegations that she had an alcohol abuse problem and that she had physically abused her sons. Concluding that the evidence was insufficient to support the CHINS determination, we reverse the judgment of the trial court."

In Michael Phillips v. City of Bloomington, City of Bloomington's Utilities Service Board and Mayor Mark Kruzan, a 6-page opinion, Judge May writes:

In November 2003, Mayor-elect Kruzan told Phillips someone else would be appointed director of utilities after the first of the year. Phillips and the defendants exchanged correspondence and other information during December 2003 and January 2004 related to Phillips’ employment and Mayor Kruzan’s consultation with lawyers about replacing Phillips. In that correspondence, Phillips contended, based on Ind. Code § 8-1.5-3-5(d), only the Utilities Service Board could remove him, and only for cause after notice and hearing. * * *

There is no genuine issue of material fact about whether Phillips is a department head/utilities director. Because he is, Ind. Code § 8-1-5-3-5(d) does not apply. Under the Bloomington Municipal Code, the utilities director is appointed by the mayor, serves at the pleasure of the mayor and, therefore, may be dismissed without cause by the mayor. The defendants are entitled to judgment as a matter of law. Affirmed.

Jeffrey Baber v. State of Indiana - "Jeffrey Baber appeals his convictions of child molesting as a Class A felony1 and child molesting as a Class C felony.2 He argues the evidence was insufficient, the verdicts were inconsistent, the trial court erred in allowing the State to amend the charging information, and the sentence was “manifestly unreasonable.” We affirm. * * * K.J.’s testimony was not incredibly dubious and the evidence was sufficient to support Baber’s convictions. The verdicts returned by the jury were not inconsistent. Changing the dates of the offenses charged in the information was a matter of form and did not prejudice Baber’s substantial rights. Baber was sentenced appropriately."

NFP civil opinions today (2):

James Quincy Calloway v. Lisa D. Freismuth Pfrommer (NFP) - "Father has not demonstrated the court abused its discretion when it failed to find the change in circumstances required to modify custody from Mother. Neither do we find an abuse of discretion in the trial court’s division of expenses between Mother and Father. For these reasons, we affirm."

Matter of the Termination of Parent-Child Relationship of C.M. and D.M.; Milah Marcum and Christopher Marcum v. Fayette County Department of Child Services (NFP) - "Milah Marcum and Christopher Marcum appeal the termination of their parental rights to their two youngest children, C.M. and D.M. Parents raise one issue, whether the evidence is sufficient to find that the conditions resulting in removal of the children will not be remedied. We affirm."

NFP criminal opinions today (15):

Henry D. Young v. State of Indiana (NFP)

Steven D. Shell v. State of Indiana (NFP)

Christian Ellinger v. State of Indiana (NFP)

Gary Anderson v. State of Indiana (NFP)

Paul Wagner v. State of Indiana (NFP)

Jeremy Tidmore v. State of Indiana (NFP)

Michael E. Kirts, Jr. v. State of Indiana (NFP)

William Malone v. State of Indiana (NFP)

Cameron Wuethrich v. State of Indiana (NFP)

Justine Silvers v. State of Indiana (NFP)

Dewayne Chaney v. State of Indiana (NFP)

David DeWhitt v. State of Indiana (NFP)

Tymetri Campbell v. State of Indiana (NFP)

Robert Davis v. State of Indiana (NFP)

Sammy F.A. Mobley, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judge Patrick Sullivan Retires from the Court of Appeals

From a press release today:

Judge Patrick Sullivan will conclude a 38-year tenure on the Indiana Court of Appeals in a retirement ceremony in the Supreme Court courtroom at 3:00 p.m. on Friday, July 20, 2007. Chief Judge John G. Baker will preside. Judge Sullivan’s family, colleagues, former law clerks, and special guests will attend the ceremony, followed by a reception.

Judge Sullivan is the longest-serving judge in Court of Appeals history. He reaches the constitutionally-mandated retirement age of 75 in August, and his last day on the Court of Appeals will be Tuesday, July 31st. He will continue to serve the court and the citizens of Indiana as a senior judge beginning August 1st.

Watch the Retirement Ceremony LIVE at 3:00pm, Friday, July 20, via this Real Video link.

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Indiana Courts

Ind. Law - "Golf cart ordinance is a good idea for towns"

An editorial today in the Marion Chronicle Tribune:

We understand the convenience, particularly if you live in one of the smaller towns in Grant County.

It is easier to run down the block to the grocery store or the park in a golf cart than it is in a vehicle.

But we also understand the irritation of drivers in vehicles trying to dodge golf carts on the road.

They're concerned about safety, especially that of those in the golf cart.

In the small communities of Grant County, golf carts are becoming as commonplace as automobiles.

You see them driving down the road, in the local parks, in the parking lots of local stores.

The thing that makes it bad is that a child can drive a golf cart even though they may not have the necessary driving skills.

And it's fine if you decide to let a child drive on your own property. Parents are taking the risk into their own hands. But it can spell trouble on public streets.

That's why we like the ordinance proposed - and up for vote Tuesday - by the Jonesboro City Council to regulate the use of golf carts in town.

Jonesboro Mayor Terry Poling said the main motivation for the ordinance is seeing children younger than 10 driving golf carts.

The ordinance would require drivers to be 16 or older, carry insurance and pay a $15 fee for a tag. All golf carts would need operational headlights, taillights, turn signals and brake lights.

It is similar to an ordinance Gas City has in place, though Gas City also requires golf carts to have a slow moving vehicle sign.

We applaud both Gas City for its ordinance and Jonesboro for working to put one in place.

In Fairmount, officials advise residents, but there is no ordinance in place.

We suggest that one is necessary.

Anywhere the use of golf carts is booming, town councils need to look at ordinances to regulate such use.

It's important for the safety of local citizens.

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Indiana Law

Environment - More on: Protests grow over BP permit to increase dumping in Lake Michigan

Much more today on this. Gitte Laasby of the Gary Post-Tribune reports:

"Clearly something went wrong with the implementation of the Clean Water Act," said Ann Alexander, senior attorney with the Natural Resources Defense Council based in Chicago. "Anti-degradation regulations are supposed to make sure things like this don't happen. Yes, some minimal discharge can occur when it's genuinely necessary for social and economic development. But that should be the exception, not a gaping loophole in the Clean Water Act."

Indiana's anti-degradation law is turning into a large loophole in the absence of a better definition, Alexander said.

State officials, environmentalists and industry representatives worked between 2003 and 2005 to fill in that gap and define how the federal anti-degradation policy should be implemented.

A draft was issued in early 2005, but after Gov. Mitch Daniels was elected, industry representatives decided they weren't happy with the outcome and demanded an overhaul. Then the project was shelved, said Albert Ettinger, who represented the Sierra Club in the rulemaking process. * * *

Ettinger said another big problem with BP's permit is that it allows the company to dilute pollution through a diffuser at the bottom of the lake rather than removing it before discharge.

"By and large, under the Clean Water Act, we do not believe the solution to pollution is dilution," Ettinger said. "The problem is, BP was never required to prove this pollution was necessary."

IDEM said the additional pollution was justified.

"The increased number of jobs, the long-term viability of the existing job/business and the value of a new source of petroleum from a neighboring friendly country are additional positive social and economic results of the BP refinery reconfiguration," IDEM stated in its response to public comments.

In Illinois, the anti-degradation policy has already been fleshed out. That means a polluter in a similar situation to BP would have been required to examine alternatives and their cost, Ettinger said.

Ettinger said as a result, the permit for a wastewater treatment plant in the village of New Lenox granted by the U.S. Environmental Protection Agency was appealed and revised.

Save the Dunes has expressed concern about the precedence BP's permit may be setting.

"We are concerned that this opens the door for other industries to claim that their operations, or expansion of operations, deserve the same sort of permitting review as afforded BP," said Susan MiHalo, President of Save the Dunes Council, in a press release.

She said IDEM should be more transparent about the factors it uses to determine compliance with Indiana's water rules.

"This experience points out the need to review the administrative process used to create permits and bring them to the attention to the public that will be impacted by them," MiHalo said.

As for why much of the interested public was not notified of when the final permit had been issued (for background, see particularly the end of this ILB entry from Sat., July 14th, starting with "Want to know more"), a date which starts the 18-day clock for appeals, Gitte Laasby reports today in the Post-Tribune:
Citizens who voiced their protests about BP Whiting's wastewater permit by e-mail should have included their address or sent their comments by regular mail.

Otherwise they're not guaranteed a response from the Indiana Department of Environmental Management, Commissioner Thomas Easterly said at a news conference Thursday.

He said IDEM had sent out 52 hard copies of the final permit to "interested parties," but acknowledged that IDEM may not have responded to all e-mails.

"No, e-mails are, in the state of Indiana, not a legal way to send in a comment," Easterly said. "While we would like to be able to say we've always responded to e-mails, that's not our official comment way and we don't have the right name and address and that may not get a response."

State law doesn't require the agency to respond to comments by e-mail, he said.

IDEM listed e-mail as a way to comment on BP's permit, but didn't mention that a mailing address was required for a response.

And, as the ILB noted on July 14th, no Notice of Decision has ever been posted on the site IDEM designated as the source for information about the BP permit.

Patrick Guinane reports today in the NWI Times:


INDIANAPOLIS | Facing mounting criticism from Illinois leaders, Indiana's top environmental regulator on Thursday defended the decision to allow the BP oil refinery in Whiting to dramatically increase Lake Michigan water pollution as it moves ahead with a $3.8 billion plant expansion.

Meanwhile, he said a separate air pollution variance he approved for BP two weeks ago will not increase the amount of particulate matter released by the Whiting refinery.

In an afternoon conference call with reporters, Commissioner Thomas Easterly of the Indiana Department of Environmental Management complained he has "seen many (news) stories about the BP permit that don't seem right" and wanted to "set the record straight."

"We haven't made any exceptions to state or federal water quality regulations in order to issue the waste water treatment permit to BP," Easterly continued. "Anybody else that came in with the same set of facts would get the same permit (as) us. ...The plant's discharge will not affect drinking water, recreation or aquatic life in Lake Michigan."

There are several editorials today. The Post-Trbune writes:
When it comes to swaying public opinion over BP's plan to dump more pollution into Lake Michigan, a few numbers pose major stumbling blocks for the oil giant.

They start with the 1,584 additional pounds of ammonia and 4,925 pounds of other waste the company wants to add to its discharge every day.

Following closely is the company's $22.3 billion it made in profit last year alone.

Not least of all is BP's claim that it can't find 12,000 square feet to build the necessary treatment plant on its sprawling 1,400-acre refinery.

There comes a time when Northwest Indiana residents must question why we should risk Lake Michigan's future to enrich the owners of a British company who do not drink our water or bathe along our shores.

And there comes a time when we expect our own elected officials to lead the way.

Watching Chicago's mayor and other Illinois officials call to halt approval of BP's pollution plan is reminiscent of the battle to save Indiana's dunes more than a half-century ago -- a fight led by Sen. Paul Douglas of Illinois.

Despite U.S. Rep. Pete Visclosky's commendable efforts to increase lakefront access with his Marquette Plan, it took a request from a reporter to prompt his public urging to do "everything possible" to reduce lake pollution. His office says he supports a resolution by U.S. Rep. Rahm Emanuel, D-Ill., that calls on Indiana to "reconsider" BP's permit. Such efforts are important, but aren't enough.

It's incumbent upon Visclosky -- as well as Gov. Mitch Daniels, local mayors, legislators and other leaders -- to step up and fight publicly, visibly and without prompting for the Hoosiers who live along these shores.

Yes, BP is bringing welcome economic growth here. But other issues are at stake as well.

Too many people have fought too long and too hard on behalf of our Great Lakes to move backward now.

The LaPorte Argus-Herald writes:
It’s hard to believe that dumping nearly 2,000 additional pounds of industrial waste into Lake Michigan each day won’t harm the environment.

According to a story in Sunday’s Chicago Tribune, however, that’s the conclusion reached by the Indiana Department of Environmental Management (IDEM) recently in granting an exemption to oil producer BP to discharge significantly more industrial waste into Lake Michigan at its refinery in Whiting. * * *

Asked by The La Porte County Herald-Argus Wednesday whether he agrees with state regulators that such discharges won’t cause harm, Alliance for the Great Lakes President Cameron Davis responded with a decisive “No.”

“I think most of us are well beyond the point of believing we can pollute and there will be no impact,” he said.

We agree. And we find it disturbing that the IDEM would grant an exemption that effectively exploits a loophole in the Clean Water Act for the benefit of big business.

Specifically, BP is able to get around the Clean Water Act’s prohibition on any downgrade in water quality near a pollution source by mixing industrial discharge with clean lake water to dilute pollutants.

Perhaps more disturbing, however, than the exemption itself is IDEM’s attempt to partially justify it by noting that BP’s expansion will create 80 jobs.

While northwest Indiana is sorely in need of new jobs, the question becomes: At what cost? * * *


Fortunately, it’s not too late to reverse the state’s decision. Already, Chicago officials have requested a meeting with BP officials to discuss the exemption and its impact on the lake, which Chicago relies upon almost exclusively as its source of drinking water. The city also isn’t ruling out legal options.

We think cities and residents along the lakeshore in northwest Indiana should consider similar options, and also should pressure the state and specifically Gov. Mitch Daniels to investigate IDEM’s decision to grant BP an exemption.

Because while an expansion at BP’s Whiting refinery might be good for BP and for gas prices, it’s a raw deal for the environment, and in that sense we all lose.

From a letter to the editor in the Chesterton Tribune:
If you ask anyone who has worked at B.P., they will tell you that their waste water treatment facility is antiquated and inadequate. The smallest amount of rainfall causes major problems for them. Toxic releases into the lake are common.

The B.P. refinery in Whiting is planning a $3.6 billion expansion to process Canadian sandy crude oil. This is a lot of money. Remember though, this company has been making record profits, as high as many $ billions, each quarter for the last few years. Their $3.6 billion dollar expansion does not include improving the water treatment plant.

The expansion will mean hundreds of construction jobs, a bigger tax base and 80 permanent jobs. These are all good things, but at what cost? I believe that if they are willing to invest that kind of money in the Whiting refinery, they should be made to expand and improve their pollution controls. They need to be polluting less not more.

Unless we are willing to learn to drink gasoline and water our gardens in Canadian crude, we must demand of our representatives to pull the permit on this expansion until B.P. can control the amount of pollutants they dump into our environment.

My opinion. Indiana has only a very small section of the Lake Michigan lakefront and often appears to value the Lake less than its sister states. Where Illinois and Michigan have miles of beachfront, Indiana has steel mills and refineries. Kudos to the forward looking Hoosiers who many years ago created the Indiana Dunes State Park. But the expansion of the lakefront to the area now covered by the National Lakeshore involved a massive effort that succeeded only in spite of many from Indiana. Illinois Senator Paul Douglas was a name held in derision or worse in most homes in Chesterton when I was growing up there. The feeling was that "outsiders" were trying to tell us what we could do with our lakefront property and that they should worry about their own business. But we did go to the beach and wonder at all the foul-smelling slag from the steel mills covering the sand, and all the decaying fish and other gross gunk washed up on the shore. What some of us have learned since is that the quality of the Great Lakes is indeed everybody's business.

[More] Here is an editorial in the Chicago Sun-Times headlined "Sink BP's waste plan."

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Environment

Ind. Courts - "Van Bokkelen to be sworn in as federal judge"

Joe Carlson of the NWI Times reports:

Joseph Van Bokkelen can officially don his judicial black robe for the first time this afternoon.

The outgoing U.S. attorney for the Northern District of Indiana is scheduled to be sworn in as the region's newest judge today in a ceremony in South Bend.

U.S. attorney's office spokeswoman Mary Hatton said District Chief Judge Robert Miller will administer the oath of office to Van Bokkelen.

Deputy U.S. Attorney David Capp is expected to step in for Van Bokkelen as the region's top federal prosecutor -- the third time in his career Capp will have become the acting U.S. attorney in Hammond. * * *

As judge, Van Bokkelen has said he will recuse himself from any criminal cases that are already under way in the U.S. attorney's office, including any that FBI agents have even casually discussed with prosecutors up to today.

Van Bokkelen takes the place of District Judge Rudy Lozano, who is moving into a semi-retirement called "senior status" that allows judges to gradually decrease their caseloads as they age.

The district court's Hammond Division will then have two senior judges, Lozano and James Moody, both of whom will still maintain full caseloads.

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Indiana Courts

Ind. Courts - "Judge David Shaheed will take over the court in Marion Civil Division, Room 1, on Aug. 1, when Bradford moves to the Indiana Court of Appeals"

A brief item today in the Indianapolis Star reports:

A Marion Superior Court judge who oversees the drug treatment and re-entry courts will move to civil court to replace departing Judge Cale Bradford.

Judge David Shaheed will take over the court in Civil Division, Room 1, on Aug. 1, when Bradford moves to the Indiana Court of Appeals on an appointment by Gov. Mitch Daniels. The Marion Superior Court's executive committee reassigned Shaheed on Thursday.

Shaheed, 60, has presided over the court in the Criminal Division's Room 14. He served briefly as a civil judge in 1999 on an appointment but lost the position in the 2000 election. Voters then elected him to the bench in 2002.

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Indiana Courts

Ind. Decisions - "Appeals court backs minister over firing"

Lori Caldwell of the Gary Post-Tribune reports today on the Court of Appeals decision in the case of Trinity Baptist Church, et al. v. Rev. George M. Howard, et al. - see July 17th ILB entry here (2nd case).

From the story:

By a vote of 2-1, the appeals court agreed with Howard that the church violated his contract by firing him in 2001 after the membership took a "no confidence" vote.

In its 13-page ruling, the court noted Howard's contract incorporated the church's by-laws, which "clearly state that a pastor is 'removable only by death.' This provision is unequivocal."

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: "Deal with closed developmental center broke law; damages, if any, undecided"

Following up on its story July 17th (see this ILB entry) on Monday's Court of Appeals decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al (see ILB entry here), the Fort Wayne Journal Gazette has an editorial today headed "FSSA's blunders." Some quotes:

A state court ruling that the Family and Social Services Administration broke the law when it hired a private company to operate and then shut down the Fort Wayne Developmental Center seems meaningless, given that the center is now closed.

It’s not meaningless. The ruling signals a blatant disregard for a state statute intended to ensure Indiana’s business is done in public. By skipping the process of competitive bids in hiring Liberty Healthcare, FSSA officials were able to avoid advertising the scope of the work and alerting the public to their intentions. There’s no way to know whether the center’s closing – which this page supported because of serious and repeated problems in its management – could have been handled better, but taxpayers deserve a process that allows more input and oversight of state services, particularly when they involve a vulnerable population.

Instead, the administration seemed determined to make an end run around the public bidding process and push the closing forward. It even offered financial incentives for Liberty to close the center as quickly as possible. * * *

The lawsuit, filed by former center employee Anita Stuller and AFSCME Council 62, the union that represented staff members, threatened to delay the effort, but Allen Superior Judge Nancy Eshcoff Boyer denied the preliminary injunction sought by the plaintiffs. She also ruled that FSSA was not required to put the contract out for bid because it fell under a statute specific to purchasing services. The plaintiffs argued that FSSA should have followed a public-private agreement statute requiring proposals for all operator agreements, which are “between an operator and the governmental body for the operation, maintenance, repair or management of a public facility.”

Last week’s ruling, by the Indiana Court of Appeals, reversed Boyer’s decision, finding that the state’s contract with Liberty was, indeed, an operating agreement. Again, the center is closed and the state can’t be required to start over.

Today's editorial concludes by pointing to ongoing ventures:
More evidence of FSSA’s disregard for the rules comes this week, in a warning from the federal food stamp program. Indiana’s new privatized welfare program violates federal rules, according to the Midwest administrator for the U.S. Food and Nutrition Service. In spite of requirements for state employees to meet with clients applying for benefits, FSSA has allowed employees of the Dallas-based Affiliated Computer Services Inc. to process the applications. The company has a 10-year, $1.6 billion contract with the state.

Gov. Mitch Daniels’ administration took care to request the attorney general’s position on his authority to suspend sales tax on gasoline, a measure he did not want to take. The administration should exercise the same diligence in approaching policies it supports. The appellate court’s unanimous decision and the warning from the federal food stamp program are cautionary tales as Daniels’ privatization efforts continue.

Posted by Marcia Oddi on Friday, July 20, 2007
Posted to Indiana Decisions | Indiana Government

Thursday, July 19, 2007

Ind. Decisions - Supreme Court grants transfers today in three civil cases

Michael Cubel v. Debra Cubel , which was a 14-page NFP opinion issued 4/30/07 where Judge May concluded:

We find no abuse of discretion in the court’s order regarding temporary maintenance or in the majority of the court’s orders regarding child support. However, because the court’s order does not suggest the court considered Brittany’s ability to obtain loans or maintain employment while in college and does not require her to be responsible for any portion of her education, we must remand for the court to reconsider that small portion of its order. Affirmed in part, reversed in part.
American Fire & Cas. Co. v. Direction in Design, Inc., which was an 18-page opinion issued 2/8/07 where Judge Mathias wrote the main opinion that concluded:
Genuine issues of material fact remain as to coverage under the Policy. Therefore, we affirm the trial court’s denial of summary judgment and remand with instructions to try the contractual coverage issues, and if necessary, to determine whether American Fire should be estopped from denying coverage under the Policy.
and Judge Barnes wrote a separate concurring opinion beginning on p. 12.

Rebecca Shaw v. LDC Enterprises, Inc. is a 15-page, 3/30/07 opinion by Judge May (see ILB entry here). This was a choice of law case involving, inter alia, the availability of relief under the Illinois and Indiana dram shop acts. The decision is also mentioned at the end of this May 13, 2007 ILB entry.

Posted by Marcia Oddi on Thursday, July 19, 2007
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Henry J. Adkins v. State of Indiana , a 15-page opinion, Judge Sharpnack writes:

Henry J. Adkins appeals his conviction for pointing a firearm as a class D felony. Adkins raises two issues, which we restate as: I. Whether the trial court abused its discretion when it did not allow Adkins’s wife to testify as a witness; and II. Whether the trial court erred when it instructed the jury regarding the elements of the offense. We affirm. * * *

SULLIVAN, J. concurs CRONE, J. concurs as to Issue I and concurs in result as to Issue II with separate opinion

NFP civil opinions today (2):

In the Adoption of J.C.; Jeffrey Cole v. Curtis A. Bullick (NFP) - "Jeffrey Cole, Sr., (“Father”) appeals the trial court’s grant of a petition for adoption filed by Curtis A. Bullick (“Stepfather”). * * * We affirm."

Judith H. Anderson v. Chris C. Anderson (NFP) - "Judith P. Anderson (Wife) challenges the denial of her motion to correct error and thereby, ultimately, the division of property in the decree of dissolution dissolving her marriage with Chris C. Anderson (Husband). The following restated issue is presented: Did the trial court err in denying Wife’s motion to correct error? We affirm."

NFP criminal opinions today (6):

David Owens v. State of Indiana (NFP)

James R. Campbell v. State of Indiana (NFP)

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

Mark R. Martin v. State of Indiana (NFP)

Robert W. Penrod v. State of Indiana (NFP)

Gregory Lucas v. State of Indiana (NFP)

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

Law - More on: Not the kind of publicity a law school wants

Updating this ILB entry from Tuesday about efforts "to remove Ralph R. Papitto’s name from Rhode Island’s only law school because he used a racial epithet during a May meeting of the trustees," the WSJ Blog is reporting this morning "Roger Williams Law to Drop Ralph Pappito’s Name." Access the entry, which begins "Well that didn’t take very long," here.

Posted by Marcia Oddi on Thursday, July 19, 2007
Posted to General Law Related

Environment - More on efforts to reopen Mitchell Generating Plant

In this entry yesterday, the ILB quoted from a NWI Times story that:

The state's top environmental regulator has told NIPSCO it will be subject to the U.S. EPA's most stringent environmental standards if it wants to reopen the Dean H. Mitchell power plant in Gary.

The utility would have to obtain what is called a "new source" permit, according to a July 12 letter from IDEM Commissioner Thomas Easterly to NiSource Inc., NIPSCO's parent company. It has been estimated that could cost the utility up to $600 million.

The letter from the Indiana Department of Environmental Management makes it "abundantly clear" the agency considers the plant "closed for good," said NIPSCO spokeswoman Colleen Reilly. Despite that, the utility continues to examine all options for the plant, she said.

A request to IDEM for a copy of the letter brought quick results. Here is the letter from IDEM Commissioner Thomas Easterly to NiSource Inc., NIPSCO's parent company, about what would be required to reopen the plant.

Posted by Marcia Oddi on Thursday, July 19, 2007
Posted to Environmental Issues

Law - Dormant Michigan voter ID law may now be enforced

From the Detroit Free Press:

Michiganders soon might have to show photo identification to vote, under a divided Michigan Supreme Court which endorsed a never-enforced 1996 law and reignited a contentious debate today.

Democrats and the Detroit NAACP strongly denounced the decision and the law, which requires prospective voters to produce photo ID at polling stations, comparing it to a poll tax used in the past to keep black citizens from voting. * * *

The law was suspended before it ever took effect by then Attorney General Frank Kelley, a Democrat, after the statute won approval from a Republican-controlled Legislature and former Republican Gov. John Engler.

Wednesday's 5-2 Supreme Court decision showed the same partisan divide. * * *

If the law takes effect, Michigan would become one of 26 states with some form of voter ID law, a survey by electionline.org shows.

Only a handful of states, including Indiana, ask for photo ID. All the states, under the Help America Vote Act passed by Congress in the wake of the 2000 presidential election controversy, must require first-time voters who originally registered by mail to produce identification.

Dan Seligson, editor at electionline.org, said almost every voter ID bill in the nation has faced legal challenge. Most have survived, he said, but the more rigorous the ID requirement the more carefully it is scrutinized by courts. Indiana's photo ID law, which was upheld by a federal appeals court, could be heard by the U.S. Supreme Court in its next term.

Some quotes from an editorial today in the Free Press :
The Michigan Supreme Court's 5-2 party-line decision Wednesday that the state can require voters to show photo ID at the polls was not surprising, since the issue has been a bright-line divider of Republicans and Democrats for years.

The court's Republican-nominated majority is right that pictured ID is not an unreasonable demand to make of voters, provided there are options apparent and readily available for those who lack ID to cast a ballot.

Democrats are right, though, that there is absolutely no evidence of the kind of widespread election fraud among voters that Republicans cite to justify this change. While there have been problems with equipment, counting, incompetent officials and intimidating "observers" at the polls, nothing suggests hordes of people are claiming to be someone else so they can vote multiple times.

It is also true that the people least likely to have pictured ID are the poor, who tend to vote Democratic. It is, however, the responsibility of Secretary of State Terri Lynn Land, a Republican, as Michigan's elections chief, to make sure that every voter knows about the new requirement and every poll worker knows how to deal affirmatively with those who lack ID. Voters can sign an affidavit of identity to cast a ballot. * * *

About 370,000 of Michigan's 7.1 million registered voters do not now have a driver's license or state ID card.

The state Supreme Court's ruling was "an advisory opinion" requested by legislative Republicans and, as such, cannot be appealed to the U.S. Supreme Court. Democrats would have to start a new case in the federal system to keep the issue alive.

Courts in different states have issued differing opinions on whether pictured ID is a legal requirement. There are constitutional issues ripe for a definitive U.S. Supreme Court ruling; two cases from Indiana are pending there.

Rick Hasen of the Election Law Blog has an entry here. Hasen had posted a copy of the 121-page Micigan advisory opinion here.

Indiana's cert petition in Crawford v. Marion County Election Board is pending before the U.S. Supreme Court. For background, start with this ILB entry from June 30th. Here is a list of the entries.

Posted by Marcia Oddi on Thursday, July 19, 2007
Posted to General Law Related

Ind. Courts - Suit challenging Anderson school uniforms may move to federal court [Updated]

Neal McNamara reports today in the Kokomo Herald Bulletin:

he Anderson school system’s attorney has filed to have a suit against the system’s uniform policy heard in federal court because it deals with issues of constitutionality.

Attorney Charles Rubright said Wednesday that a suit brought against the uniform policy by parents Laura and Scott Bell should be heard in federal court because it claims the policy violates the First and 14th Amendments — free speech and equal protection, respectively.

The first hearing for the case is scheduled for 10 a.m. Friday at Federal District Court in Indianapolis.

Rubright filed, specifically, a petition to remove the case from the state courts and have it moved to federal court. * * *

The Bells filed the suit in Madison Circuit Court on Tuesday, which names the Anderson Community School Corp. and the board of trustees as defendants.

[Updated already] Here, thanks to How Appealing, is a report on a dress code challenge (in state court) in Napa Valley, California. And here is a report by Bob Egelko of the San Francisco Chronicle that begins:
A Napa school district said Tuesday it will appeal a judge's ruling blocking enforcement of a school dress code that was used to discipline a student for wearing socks with an image of the "Winnie the Pooh" character Tigger.

A Napa County judge ruled July 2 that a group of students was likely to show that the policy at Redwood Middle School in Napa, in effect since 1998, violated freedom of speech under the U.S. Constitution as well as the stronger protections for expression in California law.

The dress code allowed students to wear only solid colors and barred emblems and messages on clothing.

Posted by Marcia Oddi on Thursday, July 19, 2007
Posted to Indiana Courts

Courts - "Credit card receipts could be costly"

Andy Grimm reports in the Gary Post-Tribune today about suits being brought in Indiana and Illinois federal courts against Indiana merchants:

HAMMOND-- Sixteen digits could add up to a six-figure lawsuit for dozens of businesses in Chicago and Northwest Indiana.

About 20 Indiana businesses are among those being sued for printing out receipts that show more than five digits of customers' credit card numbers, said attorney Daniel Edelman, who is representing Gary resident Kelvin Goods in a total of eight lawsuits filed in the last two months against Indiana businesses, including Bass Pro Shops in Portage.

Federal law that took effect in December says cash register receipts cannot show more than five digits of the 16-digit credit card account number, nor the expiration date, data that could be used by identity thieves, said Edelman, whose Chicago law firm is representing Goods and seven other plaintiffs in identical suits filed in U.S. District Court in Indiana and Illinois.

"It's a fairly elementary precaution that really should've been done earlier. The law gave them three years to change their equipment and software (ending in December)," Edelman said. "Most people comply, about 2 percent don't. We have sued about three dozen that don't."

Posted by Marcia Oddi on Thursday, July 19, 2007
Posted to Courts in general

Environment - Protests grow over BP permit to increase dumping in Lake Michigan

The initial story was published Saturday July 14th by the Chicago Tribune - see ILB entry here. It was headlined "Indiana gives BP break on dumping in lake." Subsequent ILB entries can be found on July 16th and July 17th and July 18th.

Today there are many new stories. The Chicago Tribune reports that:

The City of Chicago joined the fight Wednesday to stop the BP refinery in Whiting, Ind., from dumping significantly more ammonia and industrial sludge into Lake Michigan.

City administrators said they hope to meet with BP officials next week. They've hired a consultant to review the water permit granted by Indiana regulators that will allow BP, one of the largest polluters along the Great Lakes, to dump 54 percent more ammonia and 35 percent more sludge into Lake Michigan each day.

City officials also said they are exploring legal options, on the same day BP opened its refinery to media tours and disputed reports about increased pollution resulting from the new permit. * * *

These latest efforts come on the heels of objections by several U.S. lawmakers from Illinois, Indiana and Michigan, who urged federal regulators this week to block expansion efforts by BP. Phillipa Cannon, spokeswoman for the Environmental Protection Agency's Chicago office, said administrators in Washington are preparing a response to the congressional letters and calls.

Officials with the Indiana Department of Environmental Management have said that the approval came after "substantial citizen participation" and that the limits are below federal water quality requirements.

But Carolyn Marsh, a Whiting resident who appeared at the Chicago Park District news conference, said the public comment period lasted only 2 months. She said she was appointed to a citizen's committee by BP, but the refinery never mentioned any increase in ammonia or other pollutants.

ABC 7 Chicago has a similar report here. A letter to U.S. EPA from Richard J. Durbin, United States Senator, states in part:
The goal of the Clean Water Act (CWA) is to minimize and eventually eliminate the discharge of pollutants into our rivers and lakes. As you know, the anti-backsliding regulation prohibits the U.S. Environmental Protection Agency (EPA) from reissuing NPDES permits that allow more pollutant discharge than was allowed in the previous permit.

The NPDES permit issued to BP by IDEM is clearly out of step with federal regulation as well as the State of Indiana’s anti-degradation policy. * * *

Lake Michigan is one of our nation’s greatest natural resources and serves as the drinking water supply for over 40 million people – including the entire Chicago metropolitan area, supports a significant commercial fishing industry, and supports numerous recreational activities. Pollution from industrial, agricultural and municipal sources already poses a serious threat to the ecological health of the Great Lakes ecosystem. It is our responsibility to support efforts to restore, rather than further degrade Lake Michigan. We should be working toward the goal of eliminating pollution in this fresh water ecosystem.

Not mentioned is that Whiting sits midway between Chicago's beaches and the beaches of Indiana's Dunes State Park and the National Lakeshore. Another Tribune story reports "Legislators blast waiver for BP plant near lake." A quote:
Reacting to a story in Sunday's Tribune, members of Congress from Illinois, Indiana and Michigan contacted the U.S. Environmental Protection Agency, demanding to know why the agency stood idle while Indiana regulators approved the oil company's proposal. * * *

The refinery already is one of the largest polluters on the Great Lakes, but under BP's new state permit it can release 54 percent more ammonia and 35 percent more sludge into Lake Michigan every day. Ammonia promotes algae blooms that can kill fish and trigger beach closings, while sludge contains concentrated heavy metals.

Federal and state regulators acknowledged this is the first time in years that a company has been allowed to dump more pollution into the lake, the source of drinking water for Chicago and dozens of other communities.

Gitte Laasby reports today in the Gary Post-Tribune:
After several days of intense criticism from opponents of its new wastewater permit, BP officials announced Wednesday that they are willing to take another look at what can be done to reduce pollution at its reconfigured refinery.

"The permit is approved, but the way we operate is very transparent. If they want to show the energy to participate, we're open to dialogue," refinery Manager Dan Sajkowski said.

The permit, approved by the Indiana Department of Environmental Management, allows BP Whiting to re-lease into Lake Michigan 54 percent more ammonia (1,584 pounds per day, about half the legal limit) and 35 percent more sludge (4,925 pounds a day, the maximum allowed by the U.S. Environmental Protection Agency).

Ammonia can lead to algae blooms and fish die-off, according to the EPA. Suspended solids contain heavy metals and can clog the gills of fish. * * *

Several legislators, including Sens. Evan Bayh and Richard Lugar, have asked their staff for information on the issue. A spokesman for Rep. Pete Visclosky said he has worked with BP and other legislators on a solution to the problem.

"As part of their expansion efforts, I believe BP can best serve Northwest Indiana, the Great Lakes region, and the nation by doing everything possible to reduce the amount of pollution their facility discharges into Lake Michigan," Visclosky said Wednesday. * * *

Environmentalists have urged BP to install additional treatment on top of that.

They didn't buy the argument BP made in its permit request that the company does not have 12,000 square feet needed to put more treatment tanks at its lakefront wastewater treatment plant to strip ammonia out of the water.

Environmentalists have said the discharges would go against the intent of the Clean Water Act to virtually eliminate discharges into Lake Michigan.

Under Indiana law, IDEM can allow additional pollution if it leads to significant social and economic benefits, and if the company has shown it needs to discharge more to process larger amounts of raw material.

Construction to reconfigure the refinery was supposed to start as early as this fall and be complete by 2011. It would create about 2,000 [temporary] construction jobs and 80 jobs at the refinery.

Dan Hinkel of the NWI Times had this story that began:
WHITING | BP Whiting Refinery officials weren't doing "damage control" Wednesday when they invited television crews and newspaper reporters into the refinery to discuss oil, ammonia and the meaning of the word "sludge," said Spokesman Ron Rybarczyk.

BP officials wanted an "accuracy adjustment" on press reports of the loosening of permits governing the refinery's release of ammonia and other wastes into Lake Michigan, Rybarczyk said.

Chicago and Indiana newspapers, including The Times, have been reporting on the permit changes. BP officials specifically cited a Sunday Chicago Tribune article as inflaming controversy over a project that would boost the plant's capacity, but also pump more pollutants into Lake Michigan.

Meanwhile, BP has another permit request pending. The Times reports, in a story today headlined "BP seeks air pollution exemption for Whiting refinery":
WHITING, Ind. - An exemption from clean air rules would allow BP PLC to emit more pollution from its oil refinery along Lake Michigan than normally permitted.

The company has asked the Indiana Department of Environmental Management for permission to emit more particulate matter, which forms when gases burnt in stacks are released into the atmosphere, cool down and condense.

The reason for the request is that the U.S. Environmental Protection Agency has revised its estimates of how much particulate matter is emitted from gas. The estimates are twice as high as they used to be, which means that BP would have to reduce its emissions by about 50 percent to comply with current limits.

"There's been no change in the emission that we're talking about," BP spokesman Ron Rybarczyk said. "This is a change in the way the emissions are calculated and the variances are made in accordance with that."

IDEM Commissioner Thomas Easterly issued an order approving the company's request, saying the additional emissions "will not result in environmental harm to air quality in Lake County." The order takes effect Monday unless a petition for review is filed before then.

The order will allow certain refinery units to emit more than four times their current limit. That's because they're burning gas that was previously burnt at refinery units that have been shut down, Easterly said.

Posted by Marcia Oddi on Thursday, July 19, 2007
Posted to Environment | Indiana economic development

Ind. Law - "Caesars' mistake could cost players "

Grace Schneider reports today in the Louisville Courier Journal about: "A faulty slot machine called Easy Money [that] cost Caesars Indiana nearly half a million dollars a year ago, giving big payoffs to gamblers when it showed 10 times the credit for each dollar they inserted." Caesars only discovered the problem after one of the users told it of the problem. The Indiana Gaming Commssion "fined the casino $15,000 for failing to follow procedures to properly test the machine." More from the story:

Harrison County Prosecutor Dennis Byrd will decide in the next few weeks whether to file charges against any of the 30 or so patrons -- some of whom walked off with thousands of dollars -- and press for restitution. * * *

The problem came to light in August when the casino reported to Byrd's office and state police that it had lost $487,000 over the July 21 weekend to patrons who used a slot machine installed with new software that wasn't designed for U.S. currency.

Caesars found out when a Louisville couple noticed that the slot machine had registered $200 when they slid in $20. They alerted Caesars employees, but by then more than two-dozen gamblers had played the device.

Kathryn Ford, who reported the problem while visiting the riverboat with her husband David, said in an interview that one young woman leaned across her while she was seated at the machine, put in a $100 bill and took off with a $1,000 cash voucher.

"People were getting caught up in the excitement of the moment," Ford said.

Ford said in an interview that she was surprised that a criminal investigation was under way, and that she thinks that it's unfair to go after patrons. When a slot machine jams and gamblers lose money, they don't get it back, she said.

"It doesn't work in the reverse," Ford said. "They need to forget it and move on."

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

Ind. Decisions - More on: Federal Judge McKinney to hear case on nerve agent waste

Updating this ILB entry from July 16th, the AP's Rick Callahan writes today in a story that begins:

An attorney for a company hired by the Army to incinerate nerve-agent waste argued yesterday that environmentalists raised unsound concerns in trying to block truck shipments of the waste from western Indiana's Newport Chemical Depot.

U.S. District Judge Larry McKinney gave no indication yesterday when he'll rule on whether to prohibit the transfers, as requested by environmentalists. They contend it is unsafe to move the neutralized VX waste across almost 1,000 miles from Newport to Port Arthur, Texas.

"I'm not sure how long it will take, but we won't be wasting any time," McKinney said after hearing closing arguments at the end of three days of testimony.

The Army agreed to suspend the shipments last month until McKinney ruled.

Posted by Marcia Oddi on Thursday, July 19, 2007
Posted to Environment | Ind Fed D.Ct. Decisions

Wednesday, July 18, 2007

Environment - Stories today on NW Indiana's BP NPDES permit and "new source" air permit requirement for any Mitchell powerplant reopening

The NWI Times has two environmental permitting stories today. The first is a continuation of the stories on the recently finalized BP NPDES permit re discharges into Lake Michigan. Patrick Guinane writes that:

A prominent Northwest Indiana Democrat plans to grill state officials over controversial decisions to allow major expansions of the BP oil refinery in Whiting and Horseshoe Casino in Hammond.

In a statement late Tuesday, state Rep. Scott Pelath, D-Michigan City, said he will use his position as chairman of a legislative study committee to conduct a "vigorous" investigation of state environmental regulators' recent decision allowing BP to dramatically increase water pollution.

"The Indiana Department of Environmental Management permitted a major manufacturer to discharge (more) ammonia and sludge into Lake Michigan," Pelath said. "I need to understand who made this decision, and why."

The second, by Keith Benamn, is an important story that concerns the either "closed" or "mothballed" Dean H. Mitchell power plant in Gary:

The state's top environmental regulator has told NIPSCO it will be subject to the U.S. EPA's most stringent environmental standards if it wants to reopen the Dean H. Mitchell power plant in Gary.

The utility would have to obtain what is called a "new source" permit, according to a July 12 letter from IDEM Commissioner Thomas Easterly to NiSource Inc., NIPSCO's parent company. It has been estimated that could cost the utility up to $600 million.

The letter from the Indiana Department of Environmental Management makes it "abundantly clear" the agency considers the plant "closed for good," said NIPSCO spokeswoman Colleen Reilly. Despite that, the utility continues to examine all options for the plant, she said.

The fate of the mothballed plant has been the subject of regular meetings at NIPSCO headquarters in Merrillville, where those who want it reopened and those who want it permanently closed have weighed in.

"We have had a long-term position that reopening Mitchell makes good sense for Northwest Indiana because of the exceptionally big dollars this is costing all of us," said Jack Wickes, a lawyer representing Mittal Steel and Praxair.

Steelmakers and others contend keeping Mitchell closed costs northern Indiana ratepayers about $80 million per year, because the utility needs to buy higher-priced power to make up for it.

La Porte County will be asking IDEM to reconsider its conclusions, due to what it sees as "fundamental errors" in its July 12 letter, according to County Attorney Shaw Friedman.

A report prepared in a previous case showed that three of Mitchell's four generating units could be restarted without a new source permit, Friedman said.

The city of Gary wants the plant demolished to make way for lakefront development and expansion of the Gary/Chicago International Airport. In 2004, the city and NIPSCO struck a deal paving the way for taking the plant down, but that deal later was rejected by regulators.

The 485-megawatt power plant was mothballed in early 2002. The utility said declining electric demand and the high cost of maintaining the 52-year-old plant were behind the move.

U.S. Rep. Pete Visclosky, D-Ind., who has sent representatives to the meetings at NIPSCO, has told the state's top utility regulator that the plant should be demolished.

"The station's location ... represents a major hurdle to the necessary expansion of the airport," Visclosky wrote in a June 15 letter to Indiana Utility Regulatory Commission Chairman David Lott Hardy.

Environmental groups also oppose reopening the plant because it would add to pollution, particularly when it comes to mercury and other contaminants.

"They have to factor in the environmental and potential human health costs as part of the costs of reopening Mitchell," said Lee Botts, a Gary environmentalist and founder of the Great Lakes Alliance.

For more on the Mitchell plant, see this ILB entry from Feb. 17, 2005, and this July 25, 2004 entry.

The ILB would like to post a copy of the "July 12 letter from IDEM Commissioner Thomas Easterly to NiSource Inc., NIPSCO's parent company," referenced above, about what would be required to reopen the plant.

Posted by Marcia Oddi on Wednesday, July 18, 2007
Posted to Environment | Indiana economic development

Ind. Decisions - 7th Circuit issues Indiana insurance coverage decision

In St. Paul Travelers v. Corbin Island Shipyard (SD Ind., Judge Hamilton), a 19-page opinion, Judge Manion writes:

The St. Paul Travelers Companies, Inc. (“St. Paul”) filed a declaratory judgment action seeking a determination of its obligation, if any, to cover the claims of a Corn Island Shipyard, Inc. (“Corn Island”) employee under an insurance policy St. Paul had issued to Corn Island. The district court granted summary judgment in favor of St. Paul concluding that because Corn Island failed to provide St. Paul adequate notice of its claim, coverage was barred as a matter of law. Although we reach the notice issue by a different path, we affirm the judgment for St. Paul. * * *

Because the St. Paul policy does not provide LHWCA coverage to Corn Island, St. Paul is not Corn Island’s LHWCA carrier. As such, the LHWCA notice provision does not apply and New York law on notice applies in this case. Corn Island’s notice to St. Paul of Williams’s injury was late as matter of law thereby barring coverage under the St. Paul policy, the terms of which also do not provide coverage for Corn Island’s claim. Accordingly, we affirm the district court’s grant of summary judgment in favor of St. Paul.

Posted by Marcia Oddi on Wednesday, July 18, 2007
Posted to Ind. (7th Cir.) Decisions

Courts - Farm odors hit the fan in DC Circuit ruling

This ILB entry from just last Friday quoted from an AP story about the Purdue's involvement in an EPA study of "air emissions at the nation's hog, dairy and poultry farms -- a project intended to improve methods for estimating a given farm's emissions."

The study, as noted in earlier ILB entries, including this one from April 4, 2005, is controversial because of questions about the immunity offered participants. As the Louisville Courier Journal reported on Jan. 22, 2005:

The U.S. Environmental Protection Agency proposed a program yesterday that allows factory-scale farms to avoid enforcement actions for federal air pollution violations if they agree to pay a one-time penalty, support air monitoring and take steps to reduce noxious emissions. But the so-called "safe harbor" immediately put the EPA at odds with environmentalists.
Today the Washington Post is carrying this AP report by Henry C. Jackson. Some quotes:
DES MOINES, Iowa -- Farms can't be sued over the pollution or odors they emit as long as they have entered into an agreement with the Environmental Protection Agency, a federal appeals court ruled.

The ruling, issued Tuesday, was a rebuke to environmental groups, including the Sierra Club, which sued to change an EPA policy they say allows animal feeding operations to skirt environmental laws and only pay nominal fines.

The petitioners maintained that animal feeding operations pollute the air, emit terrible odors and attract hordes of flies that leave droppings on everything from cars to furniture.

They argued that the EPA did not follow proper rule-making procedures in crafting an agreements to allow farms to avoid legal punishment and lawsuits for violating air emissions requirements. The agreements requires the farms to pay a civil penalty and give the government permission to monitor the facility for an EPA study of emissions.

Nearly 2,600 animal feeding operations, the majority of them hog farms, have entered into agreement with the EPA.

"The EPA decided to give them blanket amnesty in the form of, 'You send us a check ... and we'll guarantee that no one will sue you,'" said David Bookbinder, senior attorney for the Sierra Club.

The U.S. Court of Appeals for the District of Columbia, however, found in its 2-1 ruling that the EPA was exercising a valid use of the agency's enforcement discretion by entering into agreements with the farms. * * *

The EPA maintains its policy is the most effective option while methods of tracking farm emissions are studied.

Researchers from eight universities this summer began a 30-month study of the emissions of animal feeding operations at 24 sites in nine states. When the study is complete, the EPA is expected to draft air emissions standards for such operations.

"The (animal feeding operations) agreements bring us closer to ensuring clean air compliance nationwide ..." EPA spokesman Dave Ryan said in a statement. "Additionally, the first-ever national study of emissions from poultry, dairy and swine operations can continue without delay."

Here is a link to the 38-page opinion in the aptly-named case of Association of Irritated Residents v. EPA (DC Circuit, 7/17/07)

Posted by Marcia Oddi on Wednesday, July 18, 2007
Posted to Courts in general | Environment

Ind. Law - Where are all these golf carts coming from?

As I wrote Monday, in the entry headed "Jonesboro to consider golf carts ordinance," the ILB has had many entries on local golf cart regulation. Type "golf carts" in the search box in the right column to locate them.

Here is another Grant County story. NewsLink Indiana had a story earlier this week by Chris Lowry titled "Golf carts are becoming more popular in Grant County and across the country." Some quotes:

MARION, Ind. (NLI) – Golf carts are being used for more than just the golf course thanks to a Marion dealership selling them as primary transportation.

"Last year we sold 137 of the custom carts and about 75 of the regular carts," said Steve Mitchell of Electric Cars and Carts. "I expect to do better than that this year."

Mitchell estimated about 75 to 80 of those were sold to Grant County residents.

Employee Ethan Struwe said he's seen an increase in golf and custom cart sales in the last four years. He said electric carts are more efficient than gas-powered.

"It only takes six to eight hours to recharge," Struwe said. "Most customers can do it at night."

Struwe said it costs about 50 cents for enough electricity to charge a vehicle. A charge then lasts the vehicle about 50 to 75 miles, he said.

Mitchell said an electrical engineer told him the electric golf carts get the price equivalent of 842 miles per gallon. * * *

Golf carts have become so popular that Gas City has an ordinance making them street-legal if certain conditions are met. The driver must have a valid license, the vehicle must be insured and it must have headlights and tail lights, among other restrictions.

Indiana law states golf carts can drive on streets at 35 miles per hour or slower. One legal source suggests golf carts are allowed on Indiana highways if certain rules are met.

However, many police officers aren't aware of all the laws, Mitchell said. If golf carts are impeding traffic flow, police can pull them over.

Hmmm.

Posted by Marcia Oddi on Wednesday, July 18, 2007
Posted to Indiana Law

Law - What state (or territory) has the hardest bar exam?

Arguably, Guam.

Guam? Yes, check out the July 2006 results here at Above the Law. No one passed.

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

Ind. Decisions - "Convicted sex offender loses appeal"

Brian Corbin of the Evansville Courier & Press reports today on the Court of Appeals decision Monday in the case of William C. Davis v. State of Indiana (NFP). Some quotes:

The Indiana Court of Appeals has upheld the conviction and sentence of William C. Davis, a former fugitive sex offender apprehended in North Dakota after Oprah Winfrey offered a $100,000 reward for his capture.

Davis, a Wadesville, Ind., resident, was convicted in Vanderburgh County last year of five counts of child molesting involving a 12-year-old learning-disabled boy in Evansville in 2004. Vanderburgh Superior Court Judge Wayne Trockman sentenced Davis to 68 years. * * *

The latest appeals court ruling is separate from one in May that also affirmed Davis' convictions for child molesting in Posey County. He is serving a 52-year sentence in that case, in addition to his 68-year Vanderburgh County sentence. Davis is incarcerated in the Wabash Valley Correctional Facility in Carlisle, Ind. With good behavior, he would become eligible for parole at 92 years old.

Posted by Marcia Oddi on Wednesday, July 18, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Mom's murder sentence upheld"

Yesterday's Court of Appeals decision in Magdalena Lopez v. State of Indiana is the subject of a story today in the Gary Post Tribune by Ruth Ann Krause. (See ILB entry here - 1st case.) Krause's report begins:

The Indiana Court of Appeals has upheld the 110-year prison sentence for Magdalena Lopez, who pleaded guilty but mentally ill to two counts of murder in the bludgeoning deaths of her sons.

Lake Superior Court Judge Diane Ross Boswell, who imposed the presumptive sentence of 55 years for each count in August, said at the time she was not convinced Lopez's bipolar disorder impaired her ability to control her actions.

Lopez claimed in her appeal that the sentence was inappropriate in light of her character -- no prior criminal convictions and an admission of guilt.

Posted by Marcia Oddi on Wednesday, July 18, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

Charles Jack v. State of Indiana - "Defendant-Appellant Charles Jack appeals his convictions of and sentence for murder, a felony (Ind. Code § 35-42-1-1; Ind. Code § 35-41-2-4), and of conspiracy to commit murder, a Class A felony (Ind. Code § 35-41-5-2). We affirm. Jack raises two issues for our review, which we restate as: I. Whether separate convictions for murder and conspiracy to commit murder violate the Double Jeopardy clause of the Indiana Constitution. II. Whether the sentence imposed by the trial court was appropriate. * * * I. In view of the jury instructions and the evidence presented, we find no sufficiently substantial likelihood that the evidentiary facts used by the jury to establish the essential elements of
aiding, inducing, or causing murder may have also been used to establish the essential elements of conspiracy to commit murder. * * * II. Although Flynn pulled the trigger, the murder would not have occurred without Jack’s planning of the murder, the conspiracy to commit the murder, the set-up of the victim, and assistance to facilitate Flynn’s escape. With reference to Jack’s character, we note that Jack’s full-time job was breaking the law. In performing his job, he planned and facilitated Teague’s murder."

In Rory S. Bond and Raven Bond v. Walsh & Kelly Inc., and Town of Merrillville, a 6-page opinion, plaintiffs sued the town and the paving contractors for an accident involving a drop-off from the edge of the repaved street to the shoulder. Senior Judge Hoffman writes:

We first note that there has been a change in the law with regard to negligence actions and the work of contractors, such as Walsh & Kelly in the present case. The old rule, known as the acceptance rule or the completed and accepted rule, stated that contractors do not owe a duty of care to third parties after the owner has accepted the work. In Peters v. Forster, 804 N.E.2d 736 (Ind. 2004), our supreme court abandoned the acceptance rule as an “outmoded relic” in favor of what has been termed the modern rule or foreseeability doctrine. The modern rule provides that a contractor is liable for injuries or death of third persons after acceptance by the owner where the work is reasonably certain to endanger third parties if negligently completed. * * * However, in adopting this new rule, the court noted that a contractor’s liability under this doctrine is not absolute; rather, a plaintiff must still establish the elements of negligence: (1) a duty owed to the plaintiff; (2) a breach of that duty by the defendant; and (3) the breach proximately caused plaintiff’s damages. There is no breach of duty, and consequently no negligence, where a contractor merely follows the plans or specifications given to him by the owner so long as the plans are not so obviously dangerous or defective that no reasonable contractor would follow them. * * *

Walsh & Kelly was hired only to re-pave Randolph Street. Town indicated to Walsh & Kelly that it would stripe the road and place the shoulder stone. Therefore, per the plan, Walsh & Kelly did not stripe the road or fill the drop-off at the edge of the pavement. Town’s delay in striping the road and filling the shoulder had nothing to do with the re-paving performed by Walsh & Kelly. There is neither evidence that the plans for the re-paving by Walsh & Kelly were obviously defective, nor is there evidence that the re-paving was performed negligently. Thus, the designated evidence does not create a genuine issue of material fact as to whether the plans were so obviously dangerous or defective that no reasonable contractor would follow them.

Based upon the foregoing discussion and authorities, we conclude that the trial court did not err by entering summary judgment in favor of Walsh & Kelly.

NFP civil opinions today (5):

In the Matter of the Termination of the Parent-Child Relationship of G.S.; Treasa and Jason Smallwood v. Indiana Department of Child Services (NFP) - termination, affirmed.

In Dr. Beverly R. Newman v. Indiana Pesticide Review Board (NFP), a 5-page opinion involving a standing question, Judge Mathias writes:

Newman filed an incident report, alerting the State Chemist to a potential violation of the pesticide use and application statutes. The ensuing investigation and any potential sanctions by IPRB were directed at Gold Seal as a state-licensed pesticide applicator. Thus, Newman could not be “aggrieved” by IPRB’s action, or as appears to be the case here, inaction on the State Chemist’s investigation.

Nor is Newman a party to the agency proceedings. AOPA provides that a “party” to a administrative proceeding is “(1) a person to whom the agency action is specifically directed; or (2) a person expressly designated in the record of the proceedings a party to the proceedings.” [IC] 4-21.5-1-10. As addressed above, Newman is not a person to whom agency action was specifically directed. Newman argues that she is a party to the agency proceedings because her name appears in the agency record as the petitioner. Newman’s name appears listed as petitioner because she drafted her various petitions to IPRB that way, and IPRB responded to her filings. Several of the documents Newman points to in support of her argument that she is party to the proceeding specifically find that she lacks standing.

The trial court properly dismissed Newman’s petition for judicial review. Affirmed.

In the Matter of T.F. v. Vanderburgh County Department of Child Services (NFP) - "T.F. was found to be a child in need of services (“CHINS”) by the Vanderburgh Superior Court. From the record before us, it appears that the trial court did not issue findings of fact and conclusions of law, and therefore, we remand this case to the trial court for proceedings consistent with this opinion."

In Indiana Department of Financial Institutions, et al. v. Payday Today, Inc., et al. (NFP), an 8-page opinion, Judge Mathias' opinion begins:

The Lake Circuit Court entered a preliminary injunction against the Indiana Department of Financial Institutions (“the IDFI”) enjoining it from revoking the lender licenses of Payday Today, Inc. and SMS Finance, Inc. The IDFI appeals and raises the following dispositive issue, which we restate as: whether the trial court lacked subject matter jurisdiction to grant a preliminary injunction because the Appellees failed to exhaust their administrative remedies. We reverse and remand this matter to the trial court with instructions to dismiss the Appellees’ complaint for lack of subject matter jurisdiction.

In 2006, the IDFI revoked Payday Today’s lender licenses after determining that it had improperly sought treble damages, attorney fees, and other damages in its collection efforts. The IDFI concluded that in numerous collection proceedings, Payday Today sought treble damages and attorney fees by alleging fraud on a financial institution, which is contrary to law because licensees under the Small Loan Act are not financial institutions. The IDFI also asserted that Payday Today did not prove or attempt to prove that its borrowers’ checks were used to defraud it as required by the Small Loan Act. Payday Today filed a Petition for Review and Petition for Stay of its license revocation with the IDFI.

Jeffrey Alholm v. Rebecca Alholm (NFP) - "Jeffrey now appeals the division of marital property and the attorney’s fees award. We affirm."

NFP criminal opinions today (7):

Nathaniel F. Sanders v. State of Indiana (NFP)

Derry Vaughn v. State of Indiana (NFP)

Linda D. Jones v. State of Indiana (NFP)

Jana Lynn Brandle (Cannon) v. State of Indiana (NFP)

Christopher Slocum v. State of Indiana (NFP)

Lonnie Hall v. State of Indiana

Chad Bryant v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 18, 2007
Posted to Ind. App.Ct. Decisions

Tuesday, July 17, 2007

Courts - Federal judge John Daniel Tinder (SD Ind.) nominated to 7th Circuit

A press release sent out by the White House this afternoon announces several nominations, including:

John Daniel Tinder, of Indiana, to be United States Circuit Judge for the Seventh Circuit, vice Daniel A. Manion, retiring.
Two pieces of news, the second being that Indiana native Dan Manion is retiring.

[More] Tinder, 57, is a graduate of Indiana University - Bloomington and has a law degree from Indiana University School of Law - Bloomington

He is married to Jan M. Carroll, attorney at Barnes & Thornburg.

Prior to his appointment to the United States District Court for the Southern District of Indiana in 1987, Tinder was U.S. Attorney for the Southern District of Indiana from 1984-1987.

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Ind. (7th Cir.) Decisions

Law - Connecticut Free Speech Suit Filed, Student's Blog Entry At Issue

Recall the April 9th Indiana Court of Appeals decision in A.B. v. State of Indiana (see list of ILB entries here), where the ruling was, quoting from an AP story: "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."

Check out this lengthy story today from the Hartford Courant that begins:

A Lewis S. Mills High School student who was barred from running for class office after she called administrators a derogatory term on an Internet blog is accusing top school officials of violating her free speech rights.

Avery Doninger, a senior at the school in Burlington this fall, was removed as class secretary in the controversy last May. She is asking a state judge to order the school superintendent and the principal to reinstate her as secretary of the Class of 2008 and allow her to run for re-election in September. * * *

The case highlights the tension between a school's need to maintain discipline and the rights of students to free expression.

It comes in the wake of a landmark U.S. Supreme Court ruling last month concerning an Alaska student who hung a banner that said "Bong Hits 4 Jesus" during a school-related rally. The 5-4 decision put tighter limits on students' free speech. The justices ruled against that teenager because the banner's message could be interpreted as promoting drug use.

In the Lewis Mills student's case, according to Doninger's lawyer, Jon L. Schoenhorn, the student had a right to express her opinion in a public forum outside of school-sponsored activities. He cited a ruling from the U.S. 2nd Circuit Court of Appeals, which has jurisdiction over federal appeals in Connecticut, New York and Vermont, that prevented school administrators from punishing students for expression that took place off school grounds.

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to General Law Related

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

Updating this ILB entry from Jan. 30th, which quoted a story in the NY Times that began:

President Bush has signed a directive that gives the White House much greater control over the rules and policy statements that the government develops to protect public health, safety, the environment, civil rights and privacy,
Cindy Skrzycki, a regulatory columnist for Bloomberg News whose work appears weekly in The Washington Post has a long column today about how:
[t]he Bush administration and the Democratic-controlled Congress are fighting over who will have the most influence over writing rules on health and safety issues. While the dispute is not as dramatic as the ones over fired prosecutors and wartime surveillance, the stakes are high.

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to General Law Related

Law - Not the kind of publicity a law school wants

Fort Wayne Observed has posted this entry about "the 80-year old chairman of a university in Rhode Island who admitted to using the "N-word" in a board meeting."

The Providence RI Journal reports in a long story today:

Pressured by students and faculty, the Roger Williams University Board of Trustees is considering whether to remove Ralph R. Papitto’s name from Rhode Island’s only law school because he used a racial epithet during a May meeting of the trustees.

Meanwhile, Papitto, 80, took to talk radio yesterday to acknowledge that he used the slur while discussing the need to add more women and minorities to the board.

“It just slipped out,” Papitto told WPRO-630 AM talk show host John DePetro. “I never even knew I said it.”

A group of 75 law students signed a petition within two hours yesterday, demanding university officials immediately change the name of the Ralph R. Papitto School of Law. Their campaign was sparked by a report in The Journal Saturday that the former chairman of the board of trustees used the “n-word” during the board meeting and then worked behind the scenes for two months to remove three board members who criticized his conduct and demanded he resign. A university spokeswoman said some faculty members were also calling for Papitto’s name to be removed from the law school. * * *

Papitto’s use of the “n-word” came to light last week when three trustees said they were wrongfully removed from the board after calling for Papitto to resign. The three are Dr. Barbara H. Roberts, Papitto’s former cardiologist; Joseph A. Caramadre, a philanthropist and owner of Estate Planning Resources and Sally E. Lapides, owner of Residential Properties. * * *

Eleven years ago, when the Board of Trustees voted to honor Papitto by naming the law school after him, several students voiced their disapproval of the plan, in part because Papitto was not a lawyer, in part because he had had a civil dispute with the Securities and Exchange Commission when he ran Nortek, and in part, because he was still living.

“I don’t think it’s a good idea to have a law school named after a living person because they might do something wrong before they die,” said Bill Felix, a law school student from Pittsburgh said in 1996. “They could kill their family the next day and that would be on my law degree.”

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)

For publication opinions today (6):

In Magdalena Lopez v. State of Indiana , a 13-page opinion, Judge Sullivan writes:

Following her plea of guilty but mentally ill to two counts of Murder, a felony, Appellant-Defendant, Magdalena Lopez, appeals her aggregate sentence of 110 years in the Department of Correction by claiming it is inappropriate in light of her character and the nature of her offense. We affirm.

Trinity Baptist Church, et al. v. Rev. George M. Howard, et al. - From Judge Sharpnack's dissent:

Those employed under a contract for a stated period may not be discharged unless it is consistent with the employment contract. In this case, that means that Trinity was entitled to summary judgment if Howard was an at-will employee, but was not so entitled if Howard’s employment was for a definite term. The critical question, then, is what was the term of Howard’s employment – or was there one?

The source of the answer to that question lies in a particular portion of Trinity’s by-laws that were incorporated into Howard’s employment contract. The passage in question states, “The pastor is called for life and removable only by death.” Howard claims, and the Majority agrees, that this created a contract for a definite term – and that term is as long as Howard is alive. Trinity counters that Griffin v. Elkhart Gen. Hosp., Inc., 585 N.E.2d 723 (Ind. Ct. App. 1992), supports the opposite result, i.e., that the stated term is too indefinite to take this case outside of the at-will employment doctrine. I agree with Trinity. * * *

I would reverse the trial court and remand with instructions to grant Trinity’s motion for summary judgment.

In Auto-Owners Insurance Co. v. David Eakle, et al. , an 18-page opinion, Judge Darden writes:
Auto-Owners Insurance Company (“Auto-Owners”) brings this interlocutory appeal from the trial court’s denial of its motions for judgment on the pleadings and for summary judgment, and from the trial court’s grant of summary judgment in favor of David, Melissa, Helen and Leon Eakle (collectively “the Eakles”), the Appellees. We reverse and remand with instructions.

ISSUE. Whether the trial court erred when it denied Auto-Owners’ motion for judgment on the pleadings and alternative motion for summary judgment and granted the Eakles’ motion for summary judgment, finding that the tortfeasor’s vehicle was underinsured and that the Eakles were entitled to Auto-Owners’ underinsured motorist coverage.

In Sergio Ramos v. State of Indiana , a 5-page opinion, Judge Darden writes:

Sergio Ramos appeals the sentence imposed following his plea of guilty to attempted sexual misconduct with a minor, as a class B felony. We reverse and remand with instructions. * * *

In this case, Ramos presented mitigating circumstances to the trial court while the State presented Ramos’s status as an illegal alien as an aggravating circumstance. The trial court, however, did not enter a sentencing statement, setting forth its reasons for imposing an executed sentence of ten years.[3] Thus, the trial court’s sentencing statement is inadequate for “conduct[ing] meaningful appellate review.”

Where we find an irregularity in the trial court’s sentencing decision, we may (1) remand to the trial court for a clarification or new sentencing determination, (2) affirm the sentence if the error is harmless, or (3) reweigh the proper aggravating and mitigating circumstances independently at the appellate level. Merlington v. State, 814 N.E.2d 269, 273 (Ind. 2004). Here, we remand to the trial court for a sentencing statement, which shall include “reasonably detailed reasons or circumstances for imposing” the sentence that it did.
______________
3. We note that the trial court sentenced Ramos prior to Anglemyer and, therefore, was not “on notice of its obligation to enter a sentencing statement.”

Gerald W. Kacak v. Bank Calumet - "In other words, where not specifically provided for by statute,7 a bank may be accountable for making material misrepresentations under a theory of actual or constructive fraud or some other principle of law and equity which may be applicable to the particular situation. Here, Kacak argued only that the Bank was barred recovery under a theory of promissory estoppel. We have concluded, however, that the Bank teller’s statement upon which Kacak relies is insufficient as a matter of law to constitute a promise for purposes of establishing his defense of promissory estoppel. We therefore hold that the trial court did not err in granting summary judgment in favor of the Bank. The judgment of the trial court is affirmed."

William F. Shane and Martha J. Shane v. Home Depot USA, Inc., Gershman-Brown & Associates, Inc., and G.B. Evansville Developer, LLC - Trip and fall case. "William F. Shane and Martha J. Shane (“the Shanes”) appeal the trial court’s granting of the motion to set aside default judgment filed by Gershman-Brown & Associates, Inc. (“Gershman-Brown”). We affirm."

NFP civil opinions today (0):

NFP criminal opinions today (10):

Wajibu Wynn v. State of Indiana (NFP)

Jeffrey A. Foster v. State of Indiana (NFP)

Oscar Segura v. State of Indiana (NFP)

Andrew Cork v. State of Indiana (NFP)

Darin Deilkes v. State of Indiana (NFP)

Alvin Buchanan v. State of Indiana (NFP)

Keith Pease v. State of Indiana (NFP)

Pamela J. Mundell v. State of Indiana (NFP)

Joseph H. Blackmer v. State of Indiana (NFP)

Detra Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Demoted Terre Haute firefighters receive $71K

Austin Arceo of the Terre Haute Trib-Star writes today about Terre Haute firefighter Mitchell Hunt:

The Sgt. 1st Class with the Army National Guard, who as of July 12 was serving in Iraq, is one of four firefighters who received part of a settlement for more than $71,600 from the city of Terre Haute. The settlement includes treble, which means “triple,” damages and attorneys fees. Hunt, Elisha “Pee Wee” Hamblen, Robert Silvertson and Robert Kiefner were demoted from their positions — and pay rates — in the department when Terre Haute Mayor Kevin Burke and Fire Department Chief Jay Utz took office in 2004.

The firefighters were illegally demoted, according to a news release issued by their attorney Eric Frey’s office.

“I think they’re at risk a great deal more than I am, or other employees would be,” Frey said, “so I think they should certainly be paid what they’re entitled to.”

The four firefighters sued the city for back wages. While the lawsuit was pending, the city in the fall of 2005 paid them about $5,087 each and reinstated their previous wage rates, court documents report.

But the two groups could not agree on additional monetary damages, including attorneys fees. The city administration took the position that the back pay was sufficient.

On April 27, the Indiana Supreme Court ruled that municipal corporations were “not exempt from the Indiana treble damage wage statute,” a news release from Frey’s office read.

The Supreme Court ruled in a case filed as “Naugle vs. City of Beech Grove,” dated April 27, that since government agencies were employers, they were not exempt from the Wage Payment Statute.

The law states that an organization shall pay an employee an additional sum of 10 percent of the amount due per day “as liquidated damages” for failure to pay the employee on time. The legislation caps the damage amount at double what is owed to the worker.

Judge Ann Smith Mishler, a special judge in the case, referred to the Supreme Court’s ruling in her decision.

The court “finds that the Wage Payment Statute applies to governmental employers and further that the … city of Terre Haute is a ‘person’ as defined by the Wage Payment Statute,” she wrote in the ruling, “and as such, the [firefighters] are entitled to liquidated damages.”

Brad Bough, an attorney representing the City of Terre Haute, said that the Indiana Supreme Court decision was significant in providing precedent. He added that city officials’ stance was that previous rulings indicated “punitive damages cannot be awarded against a political subdivision.” * * *

“The city of Terre Haute appealed the treble damages and attorney’s fees request,” city officials wrote in a news release, but case law “contrary to the city of Terre Haute’s position on these issues was handed down by the Indiana Supreme Court, making the city of Terre Haute’s position unsustainable.”

The news release indicated that the city will not appeal the ruling.

Here is a link to the April 27th ILB entry in the case of Naugle v. Beech Grove Schools.

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In Gregory S. Fehribach v. Ernst & Young LLP (SD Ind., Judge Tinder), a 13-page opinion, Judge Posner writes:

The plaintiff is the trustee of Taurus Foods, Inc., a small company engaged in the distribution of frozen meats and other foods, which was forced into bankruptcy under Chapter 7 of the Bankruptcy Code by three of its creditors. The suit charges the company’s auditor, Ernst & Young, with negligence and breach of contract in failing to include a going-concern qualification in an audit report. The charges are governed by Indiana’s Accountancy Act of 2001 because they arise out of an agreement to provide professional accounting services. Ind. Code § 25-2.1-1. The case is before us on the trustee’s appeal from the grant of summary judgment to the defendant. * * *

The judgment and the award of costs are AFFIRMED.

ROVNER, Circuit Judge, concurring. I agree that this action is barred by the statute of limitations, and would limit the decision to that issue alone.

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Deal with closed developmental center broke law; damages, if any, undecided"

Reporting on yesterday's Court of Appeals decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al (see ILB entry here), Niki Kelly of the Fort Wayne Journal Gazette writes:

The Family and Social Services Administration broke state law when it granted a no-bid $95 million contract to Liberty Healthcare Corporation to operate the Fort Wayne State Developmental Center, the Indiana Court of Appeals ruled Monday.

But the victory could be merely symbolic because the center closed in April after moving hundreds of residents to other state hospitals or apartments and group homes.

And the Liberty contract officially ends this month.

“We’re not reopening it, so it appears to us this has no practical impact,” said FSSA Secretary Mitch Roob, who has not decided whether to appeal the decision to the Indiana Supreme Court.

More from the story:
AFSCME and Stuller claimed the state should have used a specific public-private agreement statute that requires the state to request proposals for all operator agreements, which are “between an operator and the governmental body for the operation, maintenance, repair, or management of a public facility.”

The Court of Appeals found that the contract between the state and Liberty was indeed an operating agreement, and therefore required the use of the specific public-private agreement statute for bidding purposes.

“Even though the FSSA claims that it contracted with Liberty to provide a transitional phase from the center to community-based living, we find that the agreement’s provisions first and foremost provide for the continued operation of the facility,” the ruling said.

“We agree with appellants that the transitioning of the residents to alternative community placement is merely one of the operational goals ultimately aspired to under the contract.”

The court also found that Stuller and AFSCME met the requirements to have been granted a preliminary injunction and that Boyer erred in denying that request.

But while the ruling was a win on all sides for the plaintiffs, the appellate court seemed to acknowledge its limited application.

“We first request the trial court to conduct a status hearing and then order the trial court to establish an appropriate remedy in line with this court’s holding. Accordingly, we authorize the trial court to take all necessary means to effectuate today’s holding in a manner that recognizes the practical difficulties of managing an ongoing facility while at the same time ensuring the care and safety of the patients.”

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Ind. App.Ct. Decisions

Courts - More on "Mistrial declared in Notre Dame coach's malpractice case"

Updating this ILB entry from Feb. 20th, quoting an AP story that began: "BOSTON (AP) -- A judge declared a mistrial Tuesday in Notre Dame coach Charlie Weis' medical malpractice lawsuit after a juror collapsed and several doctors - including the two defendants - rushed to his aid," the Indianapolis Star has an AP story today headed "Notre Dame coach renews malpractice suit." Today's story by Denise Lavoie, AP Legal Affairs Writer, begins:

BOSTON -- Notre Dame football coach Charlie Weis was back in court Monday, pressing his medical malpractice case for a second time against two surgeons he alleges botched his care after he had gastric bypass surgery five years ago.

The first trial ended in a mistrial in February after a juror collapsed and the Massachusetts General Hospital doctors being sued rushed to his aid.

After that surprising end, some thought Weis, the former offensive coordinator for the New England Patriots, and the doctors, both surgeons at the one of the most renowned hospitals in the country, would agree to a settlement to avoid a second trial.

But with just three weeks left until Notre Dame begins its preseason practice on Aug. 6, Weis was sitting at the front of the courtroom Monday, in the same row as the two respected surgeons he has accused of negligence.

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Courts in general

Environment - Even more on: Indiana gives BP break on dumping in lake

From an editorial today in the Fort Wayne Journal Gazette:

Lake Michigan should not become a victim of Indiana’s economic development. But state environmental regulators appear to have allowed money to trump environmental stewardship by approving a request from the BP oil refinery in Whiting to significantly increase its pollution discharges into the lake.

The refinery is the nation’s fourth largest. It is also one of the largest polluters along the Great Lakes. The Indiana Department of Environmental Management recently approved a permit that will allow the refinery to release 54 percent more ammonia and 35 percent more sludge in Lake Michigan each day. The company is now allowed to dump an average of 1,584 pounds of ammonia and 4,925 pounds of sludge into the lake each day. * * *

Officials from BP say the project will create 80 jobs in Indiana.

Environmental advocates think the increased dumping of chemicals into the lake goes against a section of the Clean Water Act prohibiting any reduction in water quality. But state regulators say BP is satisfying state and federal requirements by installing equipment that mixes refinery waste with clean lake water about 200 feet offshore.

State regulators decided that the positive economic effects of the project outweigh any potential environmental problems from the increased discharges. But given the increasing value of fresh water resources, the decision could easily become shortsighted economically as well as environmentally.

Andrea Holecek has a report today in the NWI Times. Some quotes:
"We asked for and were granted a new permit that provides a broader window for us to operate," said BP spokesman Scott Dean. * * *

"It's a massive upgrading project that ensures the economic future of the Whiting refinery," Dean said, adding not getting the permits would hinder the project's feasibility.

The expansion, which is expected to add 80 jobs at the refinery, is on track to be completed by 2011, he said. An air permit still is required before work can proceed.

The refinery will build a new diffuser apparatus that will reduce the concentration of pollutants in the water by mixing them with clean water 200 feet from the shore. However, the refinery doesn't have adequate real estate to build a larger waste water treatment plant, Dean said.

"The Whiting refinery has a state-of-the-art waste water treatment plant that's equipped with primary, secondary and tertiary treatment: multi-state waste treatment that's in full compliance," he said Monday. "We use the best waste water treatment technology. Both state and feral environmental bodies reviewed our data and didn't see any risk with us having the new permit."

But Lee Botts, a Gary environmentalist and founder of the Great Lakes Alliance, said she and others think BP should try harder to protect the environment.

"The waste water treatment plant is built on lake fill," she said. "We find it hard to think they couldn't find more room, given the size of the facility."

For background on the new BP permit, start with this ILB entry from July 16th.

On a lighter note, take another look at the quote in the paragraph beginning "The Whiting refinery ...":

"Both state and feral environmental bodies reviewed our data and didn't see any risk with us having the new permit."
Did you form a picture in your mind of herds of wild cats and pigs reviewing the data?

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Environment

Ind. Law - Another case of intent of legislator foiled by the law itself

This July 10th ILB entry noted how, to quote the Evansville Courier & Press: "Two state lawmakers who helped pass Indiana's new truck seat belt law were surprised to learn a loophole they tried to close still may be open." The entry ends with this quote from an editorial in the Fort Wayne Journal Gazette:

The disagreement is the latest that shows how important it is for legislators and their legal advisers to scrutinize the precise language of the bills they author and shepherd through the legislative process.
The entry concluded with this observation from the ILB:
This brings to mind a recent Supreme Court ruling (see ILB entry here from June 23rd), Utility Center, Inc., d/b/a Aquasource v. City of Fort Wayne, where the Court wrote, re the wording of the law as passed and the intent of a legislator, that the court must look to the language of the statute itself, not the intent of the bill's author.
Today's story, reported in the Indianapolis Star by Daniel Lee, appears to deal with language inserted into a bill at the last minute, without adequote vetting. The headline: "New health insurance law won't help all: Many Hoosiers, including lawmakers, surprised by loophole for some employers." Some quotes:
[A] new state law that, starting July 1, requires health insurers to provide coverage to a policyholder's children up to age 24, even if those children are not full-time students. * * *

[However, it turns out that] thousands of Hoosiers with young adult children aren't eligible for the coverage.

As many as half of all employer health plans in Indiana are governed by federal rules, not state law. That means those employers are under no obligation to abide by Indiana's measure. * * *

The loophole also surprised Indiana lawmakers.

"We were unaware of that at the time," said state Rep. Charlie Brown, a Gary Democrat and one of the bill's sponsors. "The intent was that we would get as many 24-year-olds and younger on some kind of health plan."

The measure was part of legislation that raised the state's cigarette tax in order to fund health initiatives. Brown said the provision came down to the wire of this year's session of the General Assembly, giving legislative services scant time for research.

It turns out health-care plans that are "self-funded" -- that is, the employer pays its own medical expenses and pays an insurer as a benefits administrator -- are exempt from the new state law because they are overseen by a federal regulation known as ERISA, or the Employee Retirement Income Security Act. Most labor unions' health benefit plans are regulated through ERISA.

Employers that are "fully insured" -- meaning employers pay premiums to a health insurer -- are regulated by state law, according to Carol Cutter, chief deputy of health and legislative affairs for the Indiana Department of Insurance.

Churches and state and local government have to abide by the new state law even if they are self-funded.

Many large employers using PPOs have self-funded plans. HMOs typically are fully insured.

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Indiana Law

Ind. Law - Even More on hospital competition in NW Indiana

From an editorial today in the Gary Post-Tribune:

The specter of two new, gleaming Porter County hospitals will undoubtedly send Lake County's hospitals into construction mode to keep up with their neighbors and to hang onto patients tempted to go east.

Unlike neighboring Illinois, there's no certificate of need law in Indiana because the General Assembly abolished that statute in 1985. A decade ago, Northwest Indiana had no for-profit, acute-care hospitals. Now, it's on course for five within the next year.

For background, start with this ILB entry from July 9th.

Posted by Marcia Oddi on Tuesday, July 17, 2007
Posted to Indiana Law

Monday, July 16, 2007

Courts - "Japan Learns Dreaded Task of Jury Duty"

Norimitsu Onishi of the NY Times has a long and very interesting front-page story today. Some quotes:

Japan is preparing to adopt a jury-style system in its courts in 2009, the most significant change in its criminal justice system since the postwar American occupation. But for it to work, the Japanese must first overcome some deep-rooted cultural obstacles: a reluctance to express opinions in public, to argue with one another and to question authority.

[Under the system, a "jury" would consist of three judges and six citizen jurors.]

To win over a skeptical public, Japan’s courts have held some 500 mock trials across the country, including six here in Nagano, the site of the 1998 Winter Olympics. Still, polls show that 80 percent are dreading the change and do not want to serve as jurors, a reluctance that was on display among the mock jurors here.

They preferred directing questions to the judges. They never engaged one another in discussion. Their opinions had to be extracted by the judges and were often hedged by the Japanese language’s rich ambiguity. When a silence stretched out and a judge prepared to call upon a juror, the room tensed up as if the jurors were students who had not done the reading.

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to Courts in general

Ind. Law - Jonesboro to consider golf carts ordinance

AJ Colley writes in the Marion Chronicle Tribune:

Golf carts on streets and at parks have become a familiar site in Fairmount and other Grant County towns.

Jonesboro Mayor Terry Poling said an ordinance will be voted on July 24 to regulate the use of golf carts in his town. Gas City has an ordinance and Fairmount advises residents but doesn't have an ordinance in place.

Poling said the main motivation for the ordinance is seeing children younger than 10 years old driving golf carts.

"We just can't have that for their safety," he said.

The ordinance would require drivers be 16 years or older, carry insurance and pay a $15 fee for a tag. All golf carts would need operational headlights, taillights, turn signals and brake lights.

The ordinance being considered is almost a replica of Gas City's policy, Poling said.

Gas City also requires golf carts to have a slow moving vehicle sign.

If the Jonesboro ordinance passes, Gas City and Jonesboro have agreed to honor each other's tags when golf carts cross town lines.

Poling said he thought the ordinance would pass.

"I don't see any problem with it whatsoever," he said. "It should go through. Hopefully, it does."

Fairmount requires its golf cart drivers to obey all traffic laws. At night, golf carts are required to use headlights and taillights.

NE Indiana's WTHD has a report on "this morning's LaGrange County Commission meeting," where "Sheriff Terry Martin told the commissioners that state requires orange triangles on golf carts, which are classified as slow-moving vehicles, but not on ATVs."

The ILB has had many entries on local golf cart regulation. Type "golf carts" in the search box in the right column to locate them.

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to Indiana Law

Ind. Law - NIPSCO claims of 25 foot pipeline easement upsets residents

Karen Snelling of the Gary Post-Tribune reported this morning, dateline Hobart:

Lawrence Campana and his neighbors along Tanager Street are upset because the utility is threatening to sue them over their backyard fences.

The fences, according to Northern Indiana Public Service Co., encroach on the easement of a natural gas transmission pipeline located between their houses and a pond. * * *

Neither Campana nor the city knew about the high pressure pipeline until May, when NIPSCO sent out letters saying all of the fences had to be removed by Aug. 1.

The fences, according to the letter, interfere with NIPSCO's ability to inspect and maintain the pipeline.

"We're required by federal law to maintain the integrity of the easement and pipeline," NIPSCO spokesman Tom Cuddy said. The pipeline carries large volumes of natural gas over long distances.

"Why did it take NIPSCO so long to contact us if the fences were a problem," asked Ralph Wood, who had a white, vinyl fence installed last year. Neighbors have had their fences up for as long as seven years.

Cuddy would not comment on the time it took NIPSCO to notify property owners of the restriction.

"We did everything right," frustrated homeowner Thomas Robinson said of the fence he had installed in 2005.

"NIPSCO says call before you dig. Well, we did and they came out and marked the utility lines. And now the fences have to be taken down.

"Somebody -- NIPSCO, the city or the developer -- didn't do their job," Robinson, a retired Hammond firefighter, said.

An easement agreement NIPSCO filed with the county in 1955 prohibits any structures from being placed on the 25-foot pipeline easement.

But Hobart officials say they did not know about the restriction.

"The pipeline was not on any plat of survey and it was not marked until 10 days ago. And NIPSCO never told me or the Plan Commission about the easement agreement until this summer," Hobart Building Commissioner Carroll Lewis said.

Consequently, he said, the city routinely issued fence permits in the subdivision.

City codes allow fences to be installed on utility easements. The permit explains that the fences can be knocked down for an emergency and the homeowner would have to bear the cost of replacing them.

NIPSCO insists the fence restriction is mandated by federal regulation.

But Damon Hill, spokesman for the Pipeline and Hazardous Materials Safety Administration, a division of the U.S. Department of Transportation, is not familiar with that rule.

"We make the regulations for pipeline operators to maintain the integrity of pipelines," Hill said.

"We don't control land usage on pipeline rights of way. That's up to state and local officials," he said.

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

Anita Stuller, et al v. Mitchell Daniels, Jr., et al - This case was summarized here, earlier today, under the headling "Court of Appeals rules on closing of Fort Wayne Disabilities Center; finds associational standing."

In Richard Laker v. State of Indiana , a 9-page opinion, Judge Robb writes:

Following a bench trial, Richard Laker appeals his conviction for operating a vehicle while an habitual traffic violator (“HTV”) and the trial court’s order that he pay restitution. Laker raises two issues, which we restate as whether sufficient evidence supports his conviction and whether the trial court abused its discretion in ordering Laker to pay restitution without determining his ability to pay. Concluding that sufficient evidence exists, we affirm Laker’s conviction. However, we conclude that the trial court abused its discretion in ordering Laker to pay restitution without determining his ability to pay, and reverse the trial court’s restitution order and remand for the trial court to make such a determination. * * *

"When restitution or reparation is a condition of probation, the court shall fix the amount, which may not exceed an amount the person can or will be able to pay, and shall fix the manner of performance." Ind. Code § 35-38-2-2.3(a)(5). * * *

Here, there is no indication that the trial court made any inquiry at all into Laker’s ability to pay restitution. The trial court did question Laker regarding his financial situation in determining whether to appoint pauper appellate counsel, but this questioning came after the trial court had ordered restitution. We also note that the trial court found Laker indigent for the purposes of appeal and for fines and court costs.

Because the trial court did not inquire into Laker’s ability to pay, we must reverse its order for restitution, and remand with instructions that the trial court determine Laker’s ability to pay.

Timothy Kevin Addington v. State of Indiana - "Following a hearing on the State’s notice of probation violation, the trial court revoked Timothy Addington’s probation. Addington presents two issues for our review: 1. Whether the trial court erred when it revoked his probation. 2. Whether the trial court abused its discretion when it sentenced him. We affirm."

NFP civil opinions today (3):

John L. Olive v. Sheila A. Givens (NFP) - "John Olive appeals the trial court’s judgment on Sheila Givens’ Complaint for Partition of Real Estate and Accounting. He raises a single issue for our review, namely, whether the trial court’s conclusion that he should receive one-quarter of the value of the parties’ personal property is clearly erroneous. We affirm."

Sean Gorman v. Holly (Gorman) Cedar (NFP) - "Sean Gorman (Father) appeals the trial court’s Order, which modifies its previous Order of child support and establishes a support arrearage. We affirm."

Term. of Parent-Child Rel. of E.S. & R.S., and Cynthia Shannon a/k/a Cynthia Martinez v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "Cynthia Shannon (“Mother”) appeals the trial court’s order terminating her parental rights to her two sons, E.S. and R.S. (collectively, “the Children”). Mother argues that the trial court erred by terminating her parental rights because: (1) she was denied due process during the Children in Need of Services (“CHINS”) proceeding because the Marion County Department of Child Services (“MCDCS”) failed to comply with a CHINS statutory requirement; and (2) the MCDCS failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the Children’s removal will not be remedied. Concluding that Mother’s due process rights were not violated because the MCDCS made reasonable attempts to reunify the family as required by Indiana Code § 31-34-21-5.5 and that the MCDCS proved by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the Children’s removal or the reasons for placement outside the home will not be remedied, we affirm the trial court’s order terminating Mother’s parental rights to the Children."

NFP criminal opinions today (13):

Robert Whiteside v. State of Indiana (NFP)

James Beck v. State of Indiana (NFP)

William C. Davis v. State of Indiana (NFP)

Arterteo Hernandez v. State of Indiana (NFP)

Darrett Thompson v. State of Indiana (NFP)

William R. Koenig v. State of Indiana (NFP)

Timothy Kevin Addington v. State of Indiana (NFP)

Wade Russell Meisberger v. State of Indiana (NFP)

Andrew Brady v. State of Indiana (NFP)

Thomas L. Greene v. State of Indiana (NFP)

Sammy Johnson v. State of Indiana (NFP)

In the Matter of H.I. v. State of Indiana (NFP)

Charles Hartsell, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judge Patrick Sullivan retirement ceremony on Friday, July 20

From a release today:

Judge Patrick Sullivan will conclude a 38-year tenure on the Indiana Court of Appeals in a retirement ceremony in the Supreme Court courtroom at 3:00 p.m. on Friday, July 20, 2007. Chief Judge John G. Baker will preside. Judge Sullivan’s family, colleagues, former law clerks, and special guests will attend the 30-minute ceremony, followed by a reception.

Judge Sullivan is the longest-serving judge in Court of Appeals history. He reaches the constitutionally-mandated retirement age of 75 in August, and his last day on the Court of Appeals will be Tuesday, July 31st. He will continue to serve the court and the citizens of Indiana as a senior judge beginning August 1st.

Judge Sullivan was elected to the Indiana Court of Appeals in 1968 and retained on the Court by election in 1972, 1982, 1992 and 2002. He is the only current member of the Court of Appeals to be popularly elected to the court prior to the advent of the retention selection system.

Before joining the Court of Appeals, Judge Sullivan served as a Deputy Attorney General from 1958 to 1961. From 1961 to 1965, he engaged in the private practice of law with Minton, Mosiman, Sullivan & Johnson in Indianapolis. He was a Senior Commissioner with the Marion County Probate Court from 1963 to 1964 and a judge on the Marion County Civil Trial Court from 1965 to 1969.

A native of Huntington, Indiana, Judge Sullivan served in the United States Navy for two years during the Korean War. He received his bachelor’s degree in 1956 and his law degree, cum laude, in 1958, both from Washington and Lee University in Lexington, Virginia.

Note: Seating is by invitation, but the media is welcome to cover the event.

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals rules on closing of Fort Wayne Disabilities Center; finds associational standing

Anita Stuller, et al v. Mitchell Daniels, Jr., et al, a 27-page opinion, involves the now-closed Fort Wayne Disability Center. The plaintiffs, an employee of the Center, and AFSCME, the labor union representing various employees of the Center, filed a Verified Complaint Seeking Emergency Preliminary Injunction and Permanent Injunction, seeking preliminary injunctive relief preventing the FSSA from transitioning the Center’s operation from the State to a private contractor without first complying with the public bidding procedures promulgated in I.C. § 5-23 et seq. The trial court denied the request for preliminary injunction.

[See this Dec. 23, 2005, ILB entry quoting from a story in the Fort Wayne Journal Gazette that began: "The takeover of the Fort Wayne State Developmental Center on Jan. 1 is no longer in jeopardy after an Allen Superior Court judge on Thursday refused to grant a preliminary injunction preventing it." The ILB attempted unsuccessfully at the time to obtain a copy of the lower court ruling.]

In today's ruling on the interlocutory appeal, Judge Riley writes:

[The FSSA] failed to follow the public bidding process as required for Public-Private Agreements, enacted in Ind. Code § 5-23-5-1. We reverse and remand with instructions.

Issues. The Appellants raise two issues on interlocutory appeal, which we consolidate and restate as the following single issue: Whether the trial court abused its discretion in denying Appellants’ request for preliminary injunctive relief. The FSSA raises one issue, which we restate as follows: Whether Appellants have standing to challenge the FSSA’s action. * * *

I. Standing. We proceed by first addressing the FSSA’s issue as it casts the threshold question of standing before this court. The standing requirement mandates that courts act in real cases, and eschew action when called upon to engage in abstract speculation. In other words, standing focuses generally upon the question whether the complaining party is the proper person to invoke the court’s power. State ex. Rel. Indiana State Bd. of Tax Com’rs v. Indiana Chamber of Commerce, Inc., 712 N.E.2d 992, 996 (Ind. Ct. App. 1999). The doctrine remains a significant restraint on the ability of Indiana courts to act, as it denies the courts any jurisdiction absent an actual injured party participating in the case. * * *

A. Stuller’s Standing. The public standing doctrine, which applies in cases where public rather than private rights are at issue and in cases which involve the enforcement of a public rather than a private right, continues to be a viable exception to the general standing requirement. * * *

Here, Stuller, a citizen, seeks to enjoin the FSSA from transitioning the Center’s operation from the State to a private contractor without first complying with the public bidding procedures promulgated in I.C. § 5-23 et seq. In other words, Stuller is proceeding to enforce a public duty, common to and benefiting the whole community. As she has an interest in common with other citizens in the execution of the law, she is not required to establish a special individualized interest in the matter. Therefore, we find that Stuller has public standing to bring the instant litigation.

B. AFSCME’s Standing. Relying on our recent opinion in Save the Valley, Inc. v. Indiana-Kentucky Elec. Corp, 820 N.E.2d 677 (Ind. Ct. App. 2005), reh’g granted on other grounds by 824 N.E.2d 776, trans. denied, FSSA argues that the AFSCME has standing to bring an action in a representational capacity only if specific members of the group have standing in their own right. Asserting that the members lack standing in their own right, the FSSA maintains that, as a result, the AFSCME cannot have standing either.

In Save the Valley, we were faced with the question of associational standing under the Administrative Orders and Procedures Act (AOPA). In our analysis of the issue, we referenced our Supreme Court’s decision in Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 344, 97 S.Ct. 2434, 2442, 53 L.Ed.2d 383 (1977) as standing for the proposition that:

An association has standing to sue on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
* * * Focusing on Hunt’s first requirement, we conclude that AFSCME’s members have standing to appear in their own right because they were aggrieved by the FSSA’s refusal to follow the public bidding proceedings of I.C.§ 5-23 et seq. and instead award the contract to Liberty. * * * Thus, it is undeniable that AFSCME’s members have a personal stake in the outcome of this litigation as it directly affects their pecuniary situation.

We find Hunt’s two remaining elements to be satisfied as well. * * *

II. Preliminary Injunction. Appellants contend that the trial court clearly abused its discretion by denying their Verified Compliant seeking an emergency preliminary injunction. Specifically, they assert that they satisfied the four-prong test for granting injunctive relief, i.e., (1) they are reasonably likely to succeed on the merits of the underlying claim as the FSSA violated the mandated public bidding process enacted in I.C. § 5-23 et seq.; (2) they suffered irreparable harm per se; (3) Appellants’ incurred injury outweighs the FSSA’s harm; and (4) the injunction served the public interest as it would increase transparency in the State’s award of government contracts. * * *

Accordingly, based on the evidence before us, we conclude that the agreement is properly characterized as a public-private agreement, subject to the mandatory public bidding process enacted in I.C. § 5-23-5 et seq. Thus, we find that the trial court misapplied the law by relying on I.C. § 5-22-6-1, authorizing the FSSA to use any procedure it deems appropriate to acquire Liberty’s services. .... Therefore, we hold that Appellants showed a reasonable likelihood of success at trial by presenting a prima facie case on the merits. * * *

I.C. § 5-23 et seq. places certain constraints on the way the government may award its public-private agreements. An abandonment of these requirements would result in a situation where the government is encouraged to grant part of its public duties to private entities without any inquiry from the public. In the instant case, while the government provided the funds, set programmatic goals and requirements, its private partner, Liberty, gained effective control over patients, which were in a relation of dependence in a social welfare program. While we do not object to the government turning to private companies in a desire to minimize costs and to enhance efficiency and flexibility, public oversight is nevertheless statutorily mandated for contracts falling within the realm of I.C. § 5-23 et seq.

Based on these observations, we cannot say that the public interest is disserved by the issuance of an injunction that requires only that the FSSA complies with the clear dictates of the law by submitting the agreement to a public bidding procedure to ensure public scrutiny. Thus, we conclude that the trial court’s decision is against the logic and effect of the facts and circumstances.

III. Concluding Remarks and Instruction. Concluding that Appellants satisfy the four-prong test for a preliminary injunction, we reverse the trial court’s decision and remand the case back to the trial court. As we reviewed a record frozen in time, we first request the trial court to conduct a status hearing and then order the trial court to establish an appropriate remedy in line with this court’s holding. Accordingly, we authorize the trial court to take all necessary means to effectuate today’s holding in a manner that recognizes the practical difficulties of managing an ongoing facility while at the same time ensuring the care and safety of the patients. * * *

BARNES, J., and CRONE, J., concur.

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Federal Judge McKinney to hear case on nerve agent waste

Rick Callahan of the AP reports today in a story that begins:

INDIANAPOLIS -- Opponents of the Army's shipments of nerve agent waste from Indiana to Texas will ask a federal judge today to block the shipments, contending that the liquid waste poses an imminent threat to public health and is more toxic than the Army claims.

U.S. District Judge Larry McKinney has set aside up to three days to hear testimony from witnesses for the Army and environmental and activist groups.

The hearing in Indianapolis comes about a month after the Army agreed to suspend the shipments from western Indiana to Port Arthur, Texas, until McKinney decides whether to block the transfers of the waste created by the destruction of the deadly VX nerve agent.

On May 8, the Sierra Club, the Chemical Weapons Working Group and other groups sued the Army, seeking a preliminary injunction to halt the shipments of the hydrolysate that's being produced by a VX destruction project at the Newport Chemical Depot.

VX is a Cold War-era chemical weapon so deadly that only a droplet can kill a human. It is being destroyed in chemical reactors at Newport, about 30 miles north of Terre Haute.

The lawsuit claims the 900-mile truck shipments of the VX hydrolysate from Newport through eight states to Port Arthur pose "an imminent and substantial endangerment" to public health and the environment and violate state and federal laws.

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to Environment | Ind Fed D.Ct. Decisions

Environment - More on: Indiana gives BP break on dumping in lake

In this entry Saturday, the ILB posted quotes from the Chicago Tribune story that was headlined "Indiana gives BP break on dumping in lake", including this quote:

In response to public protests, state officials justified the additional pollution by concluding the project will create more jobs and "increase the diversity and security of oil supplies to the Midwestern United States." A rarely invoked state law trumps anti-pollution rules if a company offers "important social or economic benefits."
Following the quotes, the ILB noted that the designated IDEM site for information on this permit -- "BP Products North America Inc., Whiting Refinery NPDES Permit Information" did not include either the Notice of Decision (NOD) or a readily accessible copy of the notification letter to BP -- essentials in order to file a timely appeal.

Yesterday Gitte Laasby reported in the Gary Post Tribune:

BP will face no appeals of its new wastewater permit, which allows the company to discharge 1,600 pounds of ammonia and 4,900 pounds of sludge into Lake Michigan per day.

Area environmental group Save the Dunes decided it didn't have the time or money for the legal appeal process. Many of the 40 other Hoosiers who protested the permit didn't know they had the option.

Concerned residents are outraged, saying the Indiana Department of Environmental Management skipped part of the required process. They say the agency never sent them a response to their e-mails, and didn't tell them the permit was issued or that they had the option to appeal it.

BP's final permit was issued on June 21. The 18-day appeal period ended Monday. * * *

IDEM's "Guide for Citizen Participation" states the agency "will" send a notice of its decision to issue a permit, along with information on how to appeal the decision, to anyone who submitted public comments. * * *

IDEM spokesperson Steve Polston said the agency also informed people who commented as it was required to do.

"Yes, we sent notices to people who asked to be notified of the final issuance of the permit," he said.

Polston said a staff person also told him, "Yes, of course, we notified the people who made comments." * * *

Tom Anderson, executive director of the Save the Dunes Council, said without IDEM's direct notification that a permit had been issued, people have no way of knowing when the appeal period starts. And Save the Dunes did not have the resources to appeal.

"We feel there are things that could have been better" in the permit, Anderson said. "My thoughts personally were, there would have been grounds to challenge them. But I also realize they can be time- and resource-intensive. We have to determine from our organization if we were equipped to do that."

Karen Willever, administrative assistant in IDEM's Office of Environmental Adjudication, said it's too late for residents to appeal the wastewater permit now. [emphasis added]

As noted earlier, this information also was not available on the designated IDEM web page.

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to Environment

Law - "New laws take 'Romeo' into account"

John Gramlich of Stateline.org reports today:

Lawmakers across the country are doling out tougher punishments for sex offenders – from satellite tracking to the death penalty – but a handful of states are starting to ease up on penalties in cases of youths arrested for sex.

Laws enacted this year in Connecticut, Florida, Indiana and Texas, and a bill waiting for the governor’s approval in Illinois, try to draw clearer distinctions between sexual predators and adolescents who pose less of a risk, such as those caught in so-called “Romeo and Juliet” relationships. Even when adolescents are only a few years apart, consensual sexual encounters can lead to prosecution.

The case in Georgia of former high school football star Genarlow Wilson, who is serving a mandatory 10-year sentence after receiving consensual oral sex from a 15-year-old girl when he was 17, has attracted national attention, sparked bitter debate in the Legislature and will be decided later this year by the state Supreme Court. Even the author of the statute used against Wilson says the sentence is a miscarriage of justice and wasn’t the intent of the law.

The new state policies take different approaches but share a goal of preventing low-risk adolescents from facing the same penalties as serious predators. Lawmakers who support the laws emphasize that the measures are not “soft” on crime but are designed to eliminate unintended consequences – such as lifetime inclusion on sex-offender registries for young people convicted of less-serious infractions. * * *

In Indiana, a change in the law decriminalizes consensual sex between adolescents if they are found by a court to be in a “dating relationship” with an age difference of four years or less. Under the new policy, courts also will have discretion to determine whether violators should be included in the state’s sex offender registry.

“A teenager could have a lifetime of hell because of a misplaced tag (as a sex offender). But, on the other hand, society could have a hellish situation if we don’t identify the right people,” Indiana state Rep. Ralph Foley (R), who co-authored his state’s bill, told Stateline.org. “We tried to look at both.”

See also this July 8th ILB entry.

Posted by Marcia Oddi on Monday, July 16, 2007
Posted to General Law Related | Indiana Law

Sunday, July 15, 2007

Law - Bankruptcy law amendments may have draconian impacts in student loan and subprime mortgage areas

Student loans. In June the ILB had two entries on student loan problems and the 2005 bankruptcy law amendments tie-in, which made the student debts nondischargeable: June 9th and June 10th.

Home mortgages. Yesterday the NY Times had an editorial about another issue posed by the 2005 act:

The restructuring process, known as Chapter 13, prohibits the bankruptcy court from modifying the repayment terms of most mortgages on a primary home. So even under a restructuring plan, bankrupt homeowners must still repay their mortgages in full or lose their homes.

That lender protection is a holdover from 30 years ago, when mortgage bankers required ample downpayments and most home loans had fixed interest rates. Because lenders were conservative and stuck to uncomplicated loans, they were shielded from having to take a hit when homeowners filed for bankruptcy.

But the modern-day mortgage market is neither conservative nor uncomplicated. Many of the mortgages issued during the housing boom required little or no downpayment. They also have adjustable rates primed to go up sharply and rely for their repayment on continued hefty increases in housing prices — which have not materialized — rather than on the borrowers’ income.

The 2005 bankruptcy reform should have recognized the riskiness of today’s mortgages by eliminating the outdated lender protection. But during the reform effort, fairness took a back seat to a baser aim — simply, to make it more difficult for consumers to gain a fresh start through bankruptcy. The result is that lenders who abandoned caution during the housing boom are protected while the law gives no aid to borrowers who were enticed, and at times deceived, into risky mortgages.

The law’s perverse nature is even more evident if you read the fine print: The prohibition on modifying mortgage debt applies only to primary homes. Borrowers wealthy enough to own more than one home can restructure the debt on second or even third homes.

Before foreclosures climb any higher, Congress must reform the bankruptcy law. Legislators should reject the special protection for mortgage lenders by putting mortgages on the same footing as other secured debt. Doing so would help restore consumer bankruptcy to its purpose — to provide a safety net for borrowers who can’t repay their debts for reasons beyond their control.

Posted by Marcia Oddi on Sunday, July 15, 2007
Posted to General Law Related

Environment - "Huge task faces Puget Sound's anointed savior"

So reads the headline to a column by Warren Cornwall in the May 20, 2007 Seattle Times. Here is how the long and intriguing article begins:

It's been a long, storied career in government and business for William Ruckelshaus. He has defied President Nixon and he has battled the New York Mafia. He helped start the Environmental Protection Agency and he has sued Fortune 500 companies for pollution.

Now at age 74, from a corner office on the 37th floor of a downtown Seattle high-rise, Ruckelshaus can peer down at what may be his most sprawling and elusive problem yet.

Far below, cars whiz along the Alaskan Way Viaduct, spilling oil and other chemicals that will wash into the bay. Massive freighters chug toward the Duwamish River, a huge Superfund site. In the distance, West Seattle homes cover what used to be forest, allowing contaminated rainwater to rush into the Sound.

Now it's up to Ruckelshaus to convince the public that, despite the way Elliott Bay glitters in the afternoon sun, beneath the surface it is gravely ill.

Gov. Christine Gregoire has chosen Ruckelshaus to become the kingpin in a brand-new state agency, the Puget Sound Partnership, formed by the state Legislature this year to do what state, federal and local agencies haven't been able to: protect and restore the Sound.

The governor and other fans say few people are in a better position to fill the role of elder environmental statesman and navigate the region's tricky political waters. No one disagrees that he has a rare combination of political acumen, environmental know-how and corporate leadership, topped off with a squeaky-clean reputation that has weathered the likes of Watergate.

Still, on the eve of this ambitious undertaking, there are some who question whether his trademark approach — heavy on citizen involvement and input from a broad range of interests — will work.

Even Ruckelshaus admits success isn't certain.

"People aren't going to spend lots of money trying to fix something they don't think is broken," he said.

Longtime ILB readers may recall this Jan. 17, 2005 ILB entry on an outstanding Bill and Jill Ruckelshaus C-SPAN Q&A interview.

As to what Mr. Ruckelshaus had done since he left Indiana in 1968 (where he served as House majority leader and ran unsuccessfully for U.S. Senate) to work for President Nixon, first as Assistant Attorney General for the Civil Division, here is a recent bio from the Madrona Venture Group, where he is a director:

William (Bill) Ruckelshaus was Chairman and CEO of Browning-Ferris Industries from 1988 to 1995, and served as Chairman from 1995 to 1999. Mr. Ruckelshaus was Administrator of the U.S. Environmental Protection Agency, serving as the Agency's first Administrator when it was formed in 1970. He was later appointed acting Director of the Federal Bureau of Investigation, and then served as Deputy Attorney General of the U.S. Department of Justice.

Mr. Ruckelshaus served as Senior Vice President for Law and Corporate Affairs for the Weyerhaeuser Company, and in the mid-1980s, he again served as EPA Administrator before joining the Seattle law firm of Perkins Coie.

He is currently a director of TVW, Isilon Systems, Inc., and has recently retired from the boards of Weyerhaeuser Company, Nordstrom, Inc., Cummins Engine Company, Solutia, Pharmacia Corporation, and Monsanto. Mr. Ruckelshaus is also on the Board and former Chairman of World Resources Institute in Washington, D.C., Chairman of the Salmon Recovery Funding Board for the State of Washington, Chair of the Seattle Aquarium Society, former member of the U.S. Commission on Ocean Policy. In 2004 he was appointed Chairman of The William D. Ruckelshaus Center, a collaborative problem solving institution of the University of Washington and Washington State University. In 2003 he was appointed to serve on the National Oceanic and Atmospheric Administration, Science Advisory Board. And in 2005, he was appointed by Governor Gregoire to co-chair the Puget Sound Partnership to organize the cleanup of Puget Sound.

He is a graduate, cum laude, of Princeton University and Harvard Law School.

The ILB also found this interview fascinating. It is from a site called "Nobodies to Somebodies." Here is a brief portion:
The mistake that more people make than not is when they get one job, or one assignment, they immediately begin thinking about, "What's my next step?" And they forget that if they don't do the job they have in a superior way, there won't be any next step. That's certainly the advice I've given my children when they were quite young. I really believe it. I've had several experiences in my own life where you're given something to do which is - which you may think at the time is not fully up to the capabilities you could bring to something bigger - but if you just pay attention to the assignment you've got, and do it to the absolute best of your ability, people just pile assignments on you! They just give you more and more to do.

Let me give you an example: I had an early experience in the Indiana attorney general's office, when I first got out of law school. I came back to Indiana, and was practicing with my brother and my father, practicing law, and at the same time was working in the Indiana attorney general's office. You were able then under the rules to have an outside practice as well as the government practice, as long as you didn't have a conflict of interest. I went into the attorney general's office with maybe 15 other people. The national highway system was being created at the time, and they needed a lot of young lawyers to try these condemnation cases, where they were building highways and taking property from people. The question wasn't whether the government had the right to take the property under the eminent domain laws - The real question was, what do you pay them? And the sort of class that I went into the Indiana attorney general's office with was made up of a lot of talented lawyers, and some others - they weren't all great and talented - but they got themselves into a position. I wasn't working on highway cases, but most of them went over to this separate office where they were working on these highway cases, and they developed this level of cynicism about what they were doing, and about the attorney general - just a poisonous atmosphere!

I was lucky enough to be assigned to the state board of health and have a normal relationship with the attorney general's office, and I kept asking for more things to do, and boy, they just kept piling them on me. Three years later, I was the chief counsel in the Indiana attorney general's office, and there were about 85 lawyers reporting to me. A lot of that was luck - other guys left. People that were much more qualified than me to do that work, by virtue of their experience, weren't around, so he gave me the assignment. These other guys I came in with were still trying highway cases, just as they had when they had come in. My sense of it was, they just didn't pay enough attention to the job they had, and concentrate on doing it really well - or they would've gotten more assignments. That's just one example. I could give you twenty where the same thing happened.

Posted by Marcia Oddi on Sunday, July 15, 2007
Posted to Environment

Environment - Two stories today of neighborhood concerns about Indiana industrial sites

"What is it going to take to shut this place down?" is the headline to a story today in the South Bend Tribune, reported by Joshua Stone. Some quotes:

ELKHART -- After swapping horror stories and heated comments about the VIM Recycling plant in Elkhart, some of the people who live near the facility said Saturday that they may turn to a class-action lawsuit to get rid of it.

That's because many of them left a town hall meeting at Jimtown North Elementary School the same way they came -- oozing frustration and asking why government couldn't do more to regulate the plant, which they see as both a danger and a nuisance.

Since the lumber and wood recycling facility opened eight years ago on Old U.S. 33 near the Elkhart-St. Joseph County line, neighbors have complained about the dust collecting on their homes and cars.

But for many of them, the massive fire that began on the night of June 14 was the last straw. The blaze, which investigators say was caused by friction in a mulching machine, killed a VIM employee and burned for more than 60 hours. * * *

"What is it going to take to shut this place down?" one woman asked government officials who came to answer questions at Saturday's meeting. "You're listening, but you're not necessarily helping us. Why are we letting a company stay in business that's going to kill us?"

Dozens of people asked versions of that question during the meeting, which was punctuated by shouting, applause, and occasional profanity.

They repeatedly demanded to know why some government agency couldn't shut down the plant.

Representatives from the state's departments of labor and environmental management and state fire marshal's office were on hand, along with state Rep. Tim Neese and staffers of state Rep. Craig Fry and U.S. Rep. Joe Donnelly.

But as they answered questions, it became clear the plant wasn't going away just yet, which clearly irritated many of its neighbors.

The LaPorte County Herald-Argus reports on continued concerns about a site that was closed down. Derik Smith writes in a lengthy story:
KINGSBURY -- Although 29 years have passed, the memory of the fire that devastated the Kingsbury Industrial Park is still fresh for at least one La Porte man.

Roger Wolff, a former firefighter with the La Porte Fire Department, was 35 when the fire broke out at Fisher-Calo, a plant that recycled solvents and packaged chlorine. * * *

As drums full of chemicals exploded like bombs, a team of emergency responders from more than two dozen departments worked tirelessly for three days to put out the fire.

The blaze caused the evacuation of nearly 3,000 people from their homes in southeastern La Porte and uncovered a toxic catastrophe that haunted the residents of La Porte County into the next generation.

The fire unearthed the illegal burial of hazardous chemicals at the site and the improper storage of hazardous chemicals in leaking and open containers, resulting in contamination of the air and soil.

The amount of hazardous materials at the site was severe enough to put Fisher-Calo on the federal Superfund list, a compilation of the nation’s worst hazardous-waste sites.

Now, Jann Fisher, the former coordinator of solvents and reclamation at Fisher-Calo and daughter of former Fisher-Calo president David Fisher, is looking to start a new business in La Porte County.

She has applied to the Kingsbury Utility Corporation to establish a wholesale chemical distribution plant in a building located on the Superfund site, where groundwater is still regularly checked for contamination.

Posted by Marcia Oddi on Sunday, July 15, 2007
Posted to Environment

Ind. Decisions - "Coach was 'just flirting,' defense says"

The verdict is in in the trial of "Matthew Hensley, the former coach charged with trolling the Web for sex with young girls," according to a description in the NWI Times quoted in this July 11th ILB entry. Yesterday Joe Carlson of the Times reported:

HAMMOND | Former girls basketball coach Matthew Hensley was found guilty Friday afternoon of attempting to solicit sex from minors using the Internet. * * *

Assistant U.S. Attorney Philip Benson said Hensley's case stood out among the two-dozen similar cases that came out of a sex predator sting operation last August run by 26 federal, state, county and local police agencies.

Hensley's former jobs coaching girls basketball at Andrean High School in Merrillville and St. Paul Elementary School in Valparaiso gave him a dangerous position of trust over young girls, Benson said.

Also, Hensley used a complex system of four online identities that each had different personalities, including one female persona. Using that female person, he urged an undercover agent posing as a 13-year-old girl to have sex with older men, as "she (Hensley)" did.

"I can't think of a situation more predatory. He's pretending to be one of her peers and telling her how good (sex) is," Benson said. "It's a unique form of peer pressure exerted by the predator."

Andy Grimm's story in the Gary Post-Tribune adds:
Defense attorney Alex Woloshansky said Hensley would appeal the decision.

Throughout the trial, during which Hensley did not testify, Woloshansky attempted to convince jurors that multiple people had access to Hensley's computer, and that in the pages of online chats, the author never indicated he believed the person behind the screen identity "jen_indy13" was really a 13-year-old middle-schooler.

The Times' Joe Carlson also has an interesting story today that begins:
It's not surprising young men typing messages on their bedroom computers and posting the messages on an Internet with millions of users could believe they're anonymous, observers say.

The message-senders rarely register under real names, and some even take steps to disguise their computer's digital address while posting offensive or illegal messages.

But as the recent cases of Internet felons Vikram Buddhi and Matthew Hensley illustrate, prosecutors intend to hold people as accountable for on-line postings as they would for illegal activity on a street corner.

"(Internet users) need to understand that they're not invisible as much as they might think they're invisible," said Joseph Van Bokkelen, U.S. Attorney for Northern Indiana. "It's an illusion. Buddhi thought he was anonymous, and now he's a convicted felon."

The Vikram Buddhi federal jury trial, reported by Carlson the end of June, resulted in the conviction of Vikram Buddhi, who had been a grad student at Purdue, of using the Internet to threaten American leaders and the nation's infrastructure. See this June 29th ILB entry and its link for background. Today's story continues:
How does the government connect an Internet user posting messages under a pseudonym to a real-world person with a name and face? * * *

[P]rosecutors often rely on Internet Protocol addresses. An IP address is a string of numbers up to 12 digits long and separated by three periods that identifies a computer on the Internet, similar to how a street address identifies a home.

Prosecutors issue hundreds of summonses or subpoenas every year to companies such as Yahoo to find out what IP addresses were used to create on-line identities suspected of posting illegal messages.

With the IP addresses in hand, investigators can then ask phone companies about people registered at those addresses. The addresses have to be accompanied by dates because computers are routinely assigned new numbers.

Using that process, prosecutors tied together at least four on-line identities that Hensley used simultaneously to proposition an undercover agent posing as a minor on-line.

In the Buddhi case, he stole other students' IP addresses in exhorting the assassination of the president and other illegal activities.

Budhi's tactic initially led authorities to question the wrong person. Authorities used a second digital identifier called a MAC number, which is unique to each computer similar to the VIN number on a car.

Posted by Marcia Oddi on Sunday, July 15, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Entire constellations of political stars have dimmed, and sometimes flickered out, since Van Bokkelen was appointed in 2001"

That heading is a quote from Andy Grimm's story today in the Gary Post-Tribune about U.S. Attorney Joseph Van Bokkelen. More from the story:

The Operation Restore Public Integrity probe that began with the indictment of Katie Hall for extorting money from her staff in the clerk's office -- a generations-old tradition in Lake County politics, she complained then and now -- has made Van Bokkelen one of the most prominent figures in Northwest Indiana.

Sometime next week, Van Bokkelen will step down from his post to become a U.S. District Court judge, replacing Rudy Lozano. Ironically, there are whispers that politics are at play in Van Bokkelen's appointment to the federal bench, plans that were announced by U.S. Sen. Richard Lugar only days before a scandal began developing in Washington surrounding the firing of nine U.S. attorneys. * * *

[But] Van Bokkelen, say peers, has seldom appeared to be a political animal. A former assistant U.S. attorney, Van Bokkelen has never held political office and has few ties to those who do. * * *

And Van Bokkelen, 64, is at an advanced age to receive a lifetime judicial appointment. Lozano took senior status when he turned 65 on Tuesday. Even at 59, Van Bokkelen was fairly old for an appointee as U.S. attorney, a post that can be a star-making turn for an ambitious politician.

Most lawyers his age with "former U.S. attorney" on their resume are comfortably earning multiples of a District judge's $150,000 salary as partners in private law firms.

"I don't know how much Joe would be making in private practice. He was a very solid attorney, and it would be better than what judges get," said another attorney, "but you almost think he had to be doing this because he just likes the public service." * * *

As for his future employment, Van Bokkelen said he intends to stay on the bench "as long as I'm alive."

"I never intended to retire," he said. "I like being a lawyer. This has been a fun job... I think being a judge will be neat... it's time for the next challenge."

Access a list of earlier ILB entries on Van Bokkelen here.

Posted by Marcia Oddi on Sunday, July 15, 2007
Posted to Indiana Courts

Saturday, July 14, 2007

Courts - Wisconsin Right to Life moves again

Lyle Denniston posted an interesting long analysis at SCOTUSblog yesterday headed "WRTL moves quickly to exploit victory." Some quotes:

Less than three weeks after winning a significant victory in the Supreme Court over its right to broadcast ads during election seasons, a Wisconsin advocacy group has asked a three-judge U.S. District Court to rule quickly on the legality of an ad it had wanted to run in 2006. * * *

The Wisconsin Right to Life maneuvers in U.S. District Court in Washington indicated how energetically advocacy groups will seek to exploit the Justices' 5-4 decision on June 25 in Federal Election Commission v. Wisconsin Right to Life (06-969). (The case back in District Court is docketed as 04-1260, before a three-judge District Court.)

But the maneuvers by the group, an abortion opponent, also appeared designed to set up a new test case that might persuade the Supreme Court to go further, and strike down altogether the part of the Bipartisan Campaign Finance Reform Act that bars election-season radio, TV or cable ads that mention the name of a federal candidate. The Court did not go that far in the WRTL decision last month, although three Justices in the majority argued that it should have.

The ILB's most recent entry on WRTL was this one from July 2nd headed "Indiana lawyer tackles campaign-finance, election laws, winning 4 out of 5 challenges."

Posted by Marcia Oddi on Saturday, July 14, 2007
Posted to Courts in general

Courts - Ohio municipal court judge issues apology to public

Cincinnati Enquirer reporter Sharon Coolige writes today:

A Hamilton County Municipal Court judge who swore at an angry defendant during sentencing issued a public apology Friday, saying it was wrong to tell the defendant "f--- you."

"A long time ago I was taught when you make a mistake, apologize and then move on," said Judge Ted Berry. "On July 10, 2007 I made a mistake.

"I let a defendant's vulgar comments and combative behavior get under my skin and I responded inappropriately," he wrote in the statement that was faxed to The Enquirer. "I deeply regret that."

The almost unheard of breach of courtroom etiquette came Tuesday.

Berry was responding to the same phrase that was uttered at him by Ivan Boykins, a 27-year-old Westwood man whom Berry had just sentenced to spend 30 days in jail.

Posted by Marcia Oddi on Saturday, July 14, 2007
Posted to Courts in general

Environment - Indiana gives BP break on dumping in lake

Michael Hawthorne of the Chicago Tribune reports today:

The massive BP oil refinery in Whiting, Ind., is planning to dump significantly more ammonia and industrial sludge into Lake Michigan, running counter to years of efforts to clean up the Great Lakes.

Indiana regulators exempted BP from state environmental laws to clear the way for a $3.8 billion expansion that will allow the company to refine heavier Canadian crude oil. They justified the move in part by noting the project will create 80 new jobs.

Under BP's new state water permit, the refinery—already one of the largest polluters along the Great Lakes—can release 54 percent more ammonia and 35 percent more sludge into Lake Michigan each day. Ammonia promotes algae blooms that can kill fish, while sludge is full of concentrated heavy metals.

The refinery will still meet federal water pollution guidelines. But federal and state officials acknowledge this marks the first time in years that a company has been allowed to dump more toxic waste into Lake Michigan. * * *

Environmental groups and dozens of neighbors pleaded with BP to install more effective pollution controls at the nation's fourth-largest refinery, which rises above the lakeshore about 3 miles southeast of the Illinois-Indiana border.

"We're not necessarily opposed to this project," said Lee Botts, founder of the Alliance for the Great Lakes. "But if they are investing all of these billions, they surely can afford to spend some more to protect the lake."

State and federal regulators, though, agreed last month with the London-based company that there isn't enough room at the 1,400-acre site to upgrade the refinery's water treatment plant.

The company will now be allowed to dump an average of 1,584 pounds of ammonia and 4,925 pounds of sludge into Lake Michigan every day. The additional sludge is the maximum allowed under federal guidelines. * * *

In sharp contrast to the greenways and parks that line Lake Michigan in Chicago, a string of industrial behemoths lie along the heavily polluted southern shore just a few miles away. The steady flow of oil, grease and chemicals into the lake from steel mills, refineries and factories—once largely unchecked—drew national attention that helped prompt Congress to pass the Clean Water Act during the early 1970s.

Paul Higginbotham, chief of the water permits section at the Indiana Department of Environmental Management, said that when BP broached the idea of expanding the refinery, it sought permission to pump twice as much ammonia into the lake. The state ended up allowing an amount more than the company currently discharges but less than federal or state limits.

He said regulators still are unsure about the ecological effects of the relatively new refining process BP plans to use. "We ratcheted it down quite a bit from what it could have been," Higginbotham said.

The request to dump more chemicals into the lake ran counter to a provision of the Clean Water Act that prohibits any downgrade in water quality near a pollution source even if discharge limits are met. To get around that rule, state regulators are allowing BP to install equipment that mixes its toxic waste with clean lake water about 200 feet offshore.

Actively diluting pollution this way by creating what is known as a mixing zone is banned in Lake Michigan under Indiana law. Regulators granted BP the first-ever exemption.

The U.S. Environmental Protection Agency has been pushing to eliminate mixing zones around the Great Lakes on the grounds that they threaten humans, fish and wildlife. Yet EPA officials did not object to Indiana's decision, agreeing with the state that BP's project would not harm the environment.

Federal officials also did not step in when the state granted BP another exemption that enables the company to increase water pollution as long as the total amount of wastewater doesn't change. BP said its flow into Lake Michigan will remain about 21 million gallons a day.

In response to public protests, state officials justified the additional pollution by concluding the project will create more jobs and "increase the diversity and security of oil supplies to the Midwestern United States." A rarely invoked state law trumps anti-pollution rules if a company offers "important social or economic benefits."

Want to know more? Currently one can view "BP Products North America Inc., Whiting Refinery NPDES Permit Information" at the IDEM site, at the bottom of this page.

Oddly, these documents are not available as PDFs. The "final permit" is a 53-page Word document. The first page of the cover letter, where the date is, is available only as a TIFF document! There is no Notice of Decision (NOD) posted.

(The ILB has converted the 21-page Fact Sheet (see particularly pp. 15-17) and the 35-page Response to Comments to PDF files and posted them for its readers.)

Although the IDEM page states:

The permits listed for final issuance will remain open for appeal for a period of 18 days. This period is available for the request of an adjudicatory hearing (appeal) of a permit being issued, not for public comment.
one cannot access the date the Final Permit was issued without opening and reading the TIFF document. Once opened, the first page of the cover letter, which indicates it was sent by certified mail, is dated June 21, 2007. The remaining pages of the cover letter are not posted.

[More] The ILB has now been able to convert the TIFF document to PDF, using Photoshop. You may now access the first-page only (surely there were more pages ... ) of the dated letter to BP announcing issuance of the final permit here.

Posted by Marcia Oddi on Saturday, July 14, 2007
Posted to Environment

Law - "Public Defenders Get Better Marks on Salary"

Adam Liptak writes today in the NY Tmes:

Some poor people accused of federal crimes are represented by full-time federal public defenders who earn salaries, others by court-appointed lawyers who bill by the hour. A new study from an economist at Harvard says there is a surprisingly wide gap in how well the two groups perform.

Both kinds of lawyers are paid by the government, and they were long thought to perform about equally. But the study concludes that lawyers paid by the hour are less qualified and let cases drag on and achieve worse results for their clients, including sentences that average eight months longer.

Appointed lawyers also cost taxpayers $61 million a year more than salaried public defenders would have cost. * * *

The federal system handles about 5 percent of all criminal prosecutions and is relatively well financed. The implications of the new study for the states may therefore be limited.

But more than half the states use a combination of public defenders and appointed lawyers, and most indigent defendants are not represented by staff public defenders at the trial level.

The Times has also posted the 40-page Harvard study, access it here.

Posted by Marcia Oddi on Saturday, July 14, 2007
Posted to General Law Related

Ind. Law - More on: Jeffersonville bans sex offenders from parks

This Jan. 9, 2007 ILB entry quotes a Louisville Courier Journal report that "Jeffersonville City Council voted unanimously last night to adopt an ordinance banning convicted sex offenders from city parks."

At the time: "Larry Wilder, the lawyer who wrote the ordinance, has said he believes it would withstand a legal challenge." Ken Falk, the legal director of the Indiana Chapter of the American Civil Liberties Union, said: "He thinks such 'blanket bans' violate rights guaranteed by the Indiana Constitution."

Today's story, by Harold J. Adams, includes the following quotes:

The Indiana Civil Liberties Union has filed a lawsuit challenging a Jeffersonville ordinance that prohibits convicted sex offenders from entering city parks.

"People in Indiana have a right to enter parks absent some proof that they present a harm to others," Ken Falk, legal director of the ICLU, said yesterday.

The ordinance, passed by the City Council in January, is unconstitutional, Falk contends.

But Larry Wilder, the attorney who wrote the ordinance for the council, said yesterday it "certainly should pass constitutional muster."

The suit was filed in Clark Superior Court on July 3 on behalf of Eric Dowell, who lives in Clarksville but coaches his son on a youth baseball team that plays some games in Jeffersonville.

Dowell was convicted of sex abuse in 1996, served a three-year suspended sentence and spent a required 10 years on the Indiana Sex Offender Registry, according to the lawsuit.

He went to Jeffersonville City Court in April to ask for permission to enter the parks under a provision in the ordinance that allows a judge to grant exemptions to the ban, particularly for people who have close relatives participating in city park activities.

But Judge R. Scott Lewis denied the petition at a May 9 hearing, citing Dowell's failure to bring several required documents to the hearing and his domestic battery conviction in 2000.

Falk said Dowell presented the required documents certifying his conviction, probation status and other matters to the court after the hearing, but on the same day.

Wilder, however, said the city court staff told him no such documents were received.

Dowell and Falk contend the documents should not matter because the ordinance denied Dowell's rights without justification and amounts to punishment against people who have fulfilled their legal obligations.

Wilder said the council "felt that it was prudent" to have such a ban to protect children in the community.

The council amended the ordinance in March to specify conditions under which a judge could grant an exemption. Those conditions can include no longer being on the sex offender registry; completion of probation or parole; completion of counseling; being employed; or having a son, daughter or other close relative participating in activities in a city park and being with that relative.

Here is a long list of related ILB entries.

Posted by Marcia Oddi on Saturday, July 14, 2007
Posted to Indiana Law

Friday, July 13, 2007

Ind. Courts - Indiana First Judicial District Pro Bono Committee to recognize 16 NW Indiana attorneys

The Rensselaer Republican reports today in a story that begins:

Sixteen Northwest Indiana attorneys who donated more than 50 hours of free legal work to low income persons in the past year will be honored at their 5th Annual Volunteer Recognition Night by the Indiana First Judicial District Pro Bono Committee, Inc. on July 16 beginning at 5 p.m. at the Gary Bennigans Restaurant at the Railcats stadium. Two distinguished Indiana jurists will share in the ceremonies both on and off the field.

The 16 are among a total of 256 attorneys from Lake, Porter, LaPorte, Jasper, Newton, Pulaski and Starke Counties who will be treated to a buffet supper and Railcats baseball game for donating a total of 2,904 hours of free legal assistance on civil law matters ranging from domestic violence, divorce and custody issues to evictions, hardship driver’s license, bankruptcy, guardianships, and minor probate matters.

Also to be honored is attorney Richard P. Comingore of Rensselaer who has been named recipient of the 2007 Richard P. Komyatte “Access to Justice” award for his work on two especially difficult cases totaling over 200 hours over the past two years and his consistent support of pro bono efforts in Jasper County.

Keynoting the event is Judge Margret G. Robb of the Indiana Court of Appeals. Throwing out the ceremonial first pitch is Judge J. Philip McGraw, who presides over the Jasper Superior Court and is one of the original members of the First District Committee.

Heading the list of the 16 is attorney Jill S. Swope of the law firm of Wieser Sterba and Wyllie in Schererville, who provided 167 hours of free legal services in a total of four cases during 2006.

Close behind with over 100 hours donated are Thomas Greenberg and Roseann P. Ivanovich, both of Merrillville. Also on the list are: Christopher Cooper, Chicago, Michael Halpin, James McCafferty, Julie Glade, Bruce Parent, and Kerry Pangere of Merrillville, Daniel P. Murphy, Winamac, Richard P. Komyatte, Highland, Jamie Turley, Valparaiso, R. Cordell Funk, Hammond, R. Douglas Angel and Burton Padove, Munster, and Melanie M. Sterba, Schererville.

Posted by Marcia Oddi on Friday, July 13, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation [see entry from earlier today]

In Wayne Township, Marion County, Indiana v. Indiana Department of Local Government Finance and Martha Womacks, in her Official Capacity as the Marion County Auditor, an opinion on rehearing, the Court notes that in its initial opinion it had decided "this case must be transferred back to the Tax Court" and concludes: "We adhere to our original holding that the trial court’s entry of summary judgment in this case is void for lack of subject matter jurisdiction. However, we alter the ultimate disposition ordered in our original opinion, namely transfer of the case back to the Tax Court. Instead, we direct that the action in the trial court be dismissed for lack of subject matter jurisdiction. See Hecht v. State, 853 N.E.2d 1007, 1013 (Ind. Ct. App. 2006), trans. denied (ordering dismissal of trial court action in case concerning a tax refund and plaintiff had failed to exhaust administrative remedies). We reverse the grant of summary judgment in favor of the DLGF and Womacks and remand to the trial court with instructions to dismiss the case."

In Thomas Van Kirk v. Ward Miller and More, Miller, Yates & Tracey, a case involving charges of legal malpractice, Chief Judge Baker writes, summarizing his 21-page opinion:

Appellant-plaintiff Thomas Van Kirk appeals the trial court’s grant of summary judgment in favor of appellees-defendants Ward Miller and the More, Miller, Yates & Tracey law firm (the More law firm) (collectively, the appellees). Specifically, Van Kirk argues that the trial court erred by granting summary judgment because (1) it did not rule on specific portions of the appellees’ motion to strike, (2) the conflict of interest between Van Kirk and Miller was nonconsentable or, alternatively, Miller’s conflict waiver was inadequate, (3) Miller breached his duty to Van Kirk when he negligently drafted an agreement between Van Kirk and Mark Summers and allegedly favored Summers during the dual representation, and (4) Miller breached his duty to Van Kirk when he continued to represent Summers after Van Kirk had terminated his attorney-client relationship with Miller. Concluding that Van Kirk cannot show that he was prejudiced by the trial court’s order regarding the appellees’ motion to strike, that the conflict of interest at issue herein was consentable, that Van Kirk knowingly signed a conflict waiver, and that Miller did not breach a duty to Van Kirk, we affirm the trial court’s grant of summary judgment in favor of the appellees.
Francisco D. Mendoza v. State of Indiana - "In particular, Mendoza contends that the trial court should have granted his motion to dismiss because the State improperly withdrew from a plea bargain, dismissed the charges, and refiled the charging information with a new charge included. He also argues that the evidence is insufficient to support his conviction for attempted aggravated battery. Finally, Mendoza appeals the sentences imposed by the trial court, contending that the trial court considered improper aggravators, improperly rejected proffered mitigators, imposed sentences that are inappropriate in light of the nature of the offenses and his character, and erroneously imposed consecutive, enhanced sentences. Finding no error, we affirm the judgment of the trial court and remand with instructions to amend the abstract of judgment by deleting the reference to an attempted murder conviction and adding an attempted aggravated battery conviction in its place."

Jerry Wolfe D/B/A Wolfe Construction v. Eagle Ridge Holding Company, LLC - "The trial court properly concluded there was an accord and satisfaction when Wolfe cashed Eagle Ridge’s check 1071. However, it erred in calculating the damages to which Eagle Ridge is entitled based on Wolfe’s failure to release the mechanic’s lien and we remand for recalculation of those damages. We also cannot say the trial court’s denial of Eagle Ridge’s attorney fees request constituted an abuse of discretion. We affirm in part, reverse in part, and remand. Affirmed in part, reversed in part, and remanded."

NFP civil opinions today (2):

Karen Fielder v. Laura Buckner (NFP) - "Karen Fielder appeals from the trial court’s judgment in favor of Laura Buckner on Buckner’s complaint alleging malicious prosecution. Fielder presents two issues for our review: 1. Whether the trial court erred when it found in favor of Buckner on her malicious prosecution claim. 2. Whether the trial court erred when it awarded Buckner punitive damages. Buckner cross-appeals and requests appellate attorney’s fees and costs. We affirm."

General Casualty Company of Wisconsin v. The Ohio Casualty Insurance Company, Erie Insurance Exchange, Benchmark Construction, LLC, Gerig's Dump Trucking, Inc., et al. (NFP) - "General Casualty raises one issue, which we restate as whether the trial court properly concluded that General Casualty is required to provide primary coverage and a defense for Stein and Benchmark. * * * Because Stein’s actions are not covered by the General Casualty policy, the trial court erroneously denied its motion for summary judgment. We reverse."

NFP criminal opinions today (10):

Cordell L. Laster v. State of Indiana (NFP)

Timothy Gumme v. State of Indiana (NFP)

Toby Mullis v. State of Indiana (NFP)

Randy K. Merriman v. State of Indiana (NFP)

Todd Anthony Bebout v. State of Indiana (NFP)

Neah Martin v. State of Indiana (NFP)

William W. Watson v. State of Indiana (NFP)

Matthew Tacket v. State of Indiana (NFP)

Randall Richards v. State of Indiana (NFP)

Salvador Romos v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 13, 2007
Posted to Ind. App.Ct. Decisions

Environment - Several agricultural-related stories today

Leonard Thornton has a story in the Bedford Times-Mail headlined: "Tensions rise over turkeys." It is accompanied by these two great photos, labeled "Two competing views — one of a profitable country farm, the other of pens crowded with birds — are at odds in the debate over a proposed turkey farm operation on Coxton Road." The story begins:

Some residents there are continuing their fight against a proposed turkey farm operation, erecting signs, contacting governmental officials and waging a publicity campaign.

The property owner planning that farm notes it is allowed under state law. He said he will accommodate the neighbors “within reason,” but has vowed he will build the operation.

And state environmental officials have weighed in, saying construction cannot start until a manure management plan is approved.

Police got involved last week.

This story today by Seth Slabaugh shows the state department of agriculture going on the attack against a CAFO opponent's presentation. Titled "Ag chief, BSU bash CAFO opponent's talk," today's long story and very long sidebar present a "Point/counterpoint on hog industry economic impact." Earlier related stories are available via ILB entries from July 3rd and July 6th.

This lengthy story by Rick Callahan of the AP reports:

Scientists at eight universities are moving ahead with the largest study to date of air emissions at the nation's hog, dairy and poultry farms -- a project intended to improve methods for estimating a given farm's emissions.

The 2 1/2-year study being led by Purdue University will measure levels of hydrogen sulfide, ammonia, nitrous oxide, particulate matter and other substances wafting from livestock buildings and manure lagoons at 20 farms in nine states. * * *

Specialized sensors will collect real-time data that's expected to help the U.S. Environmental Protection Agency devise science-based guidelines for livestock air emissions it regulates. Results are expected by the end of 2009, followed by a peer-review process.

"The bottom line is we're going to get just a ton of data and I think people all over the country are expecting that -- regulators, livestock producers, everybody knows we're going to get a lot of good data," he said.

Although the EPA does not regulate the strong odors that irritate some farms' neighbors, Heber said sampling equipment paid for by some of the participating universities is being installed at some study sites, along with greenhouse gas monitors.

The study is required under a 2005 compliance agreement between the EPA and the livestock industry. Although the agency is supervising the project, it's being financed by money livestock producers agreed to pay into a research fund under the agreement.

To date, more than 2,600 agreements have been signed with livestock companies that operate about 14,000 swine, dairy, egg-layer and broiler chicken farms in 42 states, said Jon Scholl, EPA Administrator Stephen Johnson's agriculture adviser.

The ILB has had a number of entires on the EPA farm emissions study, including this one from April 4, 2005.

Posted by Marcia Oddi on Friday, July 13, 2007
Posted to Environment

Ind. Law - Governor replaces commissioner of the Department of Local Government Finance; she starts Monday

A press release from the Governor's Office:

INDIANAPOLIS (July 13, 2007) – Governor Mitch Daniels today appointed Cheryl Musgrave, president of the Vanderburgh County Commission, as the new commissioner of the Department of Local Government Finance. Musgrave replaces Melissa Henson, who resigned effective June 29.

“Cheryl is a former assessor who knows a quality assessment from a botched one. She's a current county commissioner who understands the role schools, libraries, municipal and county governments all play in pushing up total local spending, and she shares my view that aggressive reform and streamlining of local government is the only long-term solution to excess property taxes,” said Daniels.

“I have asked Cheryl to be as aggressive as possible in using the powers and information-gathering capabilities of DLGF to bring down property taxes wherever possible. It appears that DLGF has been too accommodating in some past cases; with her appointment, those days are over,” he said.

Musgrave, 49, has more than a dozen years of public service experience, currently as president of the Vanderburgh County Commission. She began her term in January 2005 and became president of the commission in November 2005. Musgrave has been instrumental in providing the public with Internet access to government information, restructuring economic development groups in the county, and she managed the response to the November 2005 tornado in the unincorporated county.

As Vanderburgh County Assessor from 1995 to 2005, Musgrave was the first assessor to complete the 2002 reassessment cycle as well as the first in the state to create an assessment and property sales Web site. She first became involved in county government as a citizen board member to the Vanderburgh County Board of Review where she worked for equitable application of the state’s tax laws. Musgrave is a 1979 graduate of DePauw University.

Musgrave’s appointment is effective July 16. She also will resign from the Vanderburgh County Commission effective on the same day. [emphasis added]

It turns out the ILB had an entry about the Vanderburgh assessor's website in 2004.

[More] The Indianapolis Star has just posted this story about the appointment, that concludes:

So far, legislative leaders have not endorsed the idea of a special session, although support is growing among some lawmakers, particularly those who represent Marion County.

But one of the first jobs will be getting the proper data to determine the scope of the problem -- a job that will fall in large part to Musgrave. Daniels called her "tough as nails."

Musgrave, 49, said her job will be to see that the state's laws are enforced, and that property is assessed fairly. She replaces Melissa Henson, who resigned in June for personal reasons, unrelated to the current tax furor.

Posted by Marcia Oddi on Friday, July 13, 2007
Posted to Indiana Government | Indiana Law

Ind. Courts - Vanderburgh judge says child neglect is becoming a trend

Kate Braser writes today in the Evansville Courier & Press:

As five parents face charges this week in alleged, unrelated child neglect cases, a local judge says the volume and severity of some recent incidents is unusual. Among the details in the recent cases are a baby left alone in a van, a toddler found wandering the street at night and a diabetic infant living amid squalor.

"My staff and I were just saying today how this is just really strange having these neglect cases all in a row," Vanderburgh Juvenile Court Judge Brett Niemeier said.

He added the amount of new neglect cases is "not a huge amount," but seems to indicate a trend.

"We are seeing more and more of these, what I call 'dirty-house cases,' where children are living or have been left alone," he said. "That is definitely a trend."

Niemeier said the most common indicator in such cases is usually drug use.

Posted by Marcia Oddi on Friday, July 13, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals rules prevailing parent-plaintiffs in school fees case eligible for attorneys' fees reimbursement

In Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation, a 21-page opinion, Judge Sullivan concludes:

In summary, we reverse the judgment of the trial court that the Parents, or at least the Bracketts, were not the “prevailing party” for purposes of recovering reasonable attorney fees under Section 1988. Because the Bracketts prevailed in the state constitutional claim and because their related federal due process claim was substantial and arose out of a common nucleus of operative fact with the state constitutional claim, they are “prevailing parties” for purposes of Section 1988 and may recover reasonable attorney fees. Moreover, there has been no suggestion or indication that an award of attorney fees in this case would be unjust. In fact, the EVSC did not challenge the Parents’ counsel’s calculation of fees at all, other than to claim that the Parents were not the prevailing parties for purposes of Section 1988. The Bracketts are therefore entitled to reasonable attorney fees for work done upon both their federal and state claims. However, any work performed upon the state claim before the Bracketts came to be represented by the same counsel as the Nagys, such work cannot be said to have been performed upon behalf of the Bracketts, and may not be recovered by them as the prevailing party. Although we have addressed certain issues with regard to attorney fees, the ultimate calculation of reasonable attorney fees is a task for the trial court upon remand. The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion.
The ruling and footnotes make for interesting reading. Here is a long list of earlier ILB entries on the school fees case. The most recent is this one from May 24th headed "Oral argument yesterday in "son of" Frank Nagy v. Evansville-Vanderburgh School Corp."

Posted by Marcia Oddi on Friday, July 13, 2007
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "State ethics panel OKs pollution panelist"

The Indiana Air Pollution Control Board (APCB) includes 4 "ex officio" voting members (representing the heath commissioner, the DNR director, the lieutenant governor, and the secretary of commerce. In addition, the applicable law, IC 13-17-2-2, provides for 8 additional members to be appointed by the governor "based on recommendations from representative constituencies. ... An individual appointed under this subdivision must possess knowledge, experience, or education qualifying the individual to represent the entity the individual is being recommended to represent."

Additional requirements are that "Not more than four (4) of the appointed members of the board may be members of the same political party." IC 13-17-2-3 [See footnote at the end of this entry on this point.]

IC 13-17-2-4 provides that the board must have at least "a majority of members who represent the public interest." I'm not at all sure what that means. Furthermore, a majority of members may not "derive any significant part of their income from persons subject to permits or enforcement orders under the federal Clean Air Act."

Finally, IC 13-17-2-5 requires that "Each board member shall fully disclose any potential conflicts of interest relating to permits or enforcement orders under the federal Clean Air Act." Nothing is said about recusal, however.

Here is a list of current APCB members.

Why is the makeup of the APCB important? Because all authority regarding the adoption and revision of state air pollution control rules in Indiana is vested in the APCB.

A story today in the Fort Wayne Journal Gazette, reported by Niki Kelly, looks at a challenge to one of the members of the board voting on an upcoming rule. From the story:

Jeffrey Quyle, a Morgan County commissioner since 2001, was appointed by Gov. Mitch Daniels on April 10 as the local government representative to the 12-member board.

But he also is the economic development coordinator for Hoosier Energy REC Inc.

Several advocates for a stronger regulation want Quyle to recuse himself from voting because his employer has a clear financial interest in the outcome of the vote.

Indiana’s conflict of economic interest law says that a state appointee may not participate in any decision or vote if the appointee has knowledge that a business organization for which the appointee works has a financial interest in the outcome of the matter.

But Cyndi Carrasco, executive director of the state ethics commission, said the definition of financial interest relates to sales, leases or contracts that would directly benefit the company, not an administrative rule.

She also made a distinction between a rule that applies to an entire industry versus a specific vote affecting only Hoosier Energy.

More from the story:
Though clearly bothered by the appearance of impropriety, the State Ethics Commission on Thursday ruled that a member of the Indiana Air Pollution Control Board is allowed to vote on an upcoming mercury emissions rule.

The pollution control board is considering whether to move forward with a federal minimum for mercury emissions reduction rather than a more stringent regulation sought by environmental advocates.

Power plants are the largest source of mercury emissions in the U.S., and Indiana’s power plants have a particularly high national rate for the emissions.

To meet the more stringent regulations would likely cost the power companies millions of dollars more.

It is not clear to the ILB from today's account whether the ethics commission was applying the conflicts provision in the APCB law cited above, or whether it was applying the ethics and conflicts of interest law set out at IC 4-2-6, and specifically IC 4-2-6-9 and 10, or whether both sets of prohibitions were considered. [Note: On re-reading, it looks like the commission was considering the applicability of the Title 4 provisions, rather than those in Title 13.]

The website of the state Ethics Commission is singularly unhelpful. This is no indication that the commission even met on Thursday, no agenda, and no minutes or other account, so far as the ILB can determine. The site of the Inspector General does note an upcoming Ethics Commission meeting on July 12th, but nothing more (lower right-hand corner). Apparently the public meeting requirements do not apply to the Ethics Commission.

_______________
Footnote re political affiliation of environmental board members. The ILB posted on Oct. 18, 2005:

The Indiana environmental board laws have similar requirements. For instance, the law creating the state Water Pollution Control Board (WPCB) provides that the Board shall have 12 members. Four of these serve ex officio (by virtue of their office). Eight are appointed by the Governor. IC 13-18-1-3 requires: "Not more than four (4) of the appointed members of the board may be members of the same political party."

In my experience, just as the Star found with the Education Board, it is not easy to ascertain whether the WPCB membership, at a particular point in time, meets the requirements of IC 13-18-1-3. The job of the WPCB is to adopt the state's water rules. Would it be possible to successfully challenge the validity of a newly adopted water rule on the basis that the Board was improperly constituted?

Posted by Marcia Oddi on Friday, July 13, 2007
Posted to Environment | Indiana Government | Indiana Law

Thursday, July 12, 2007

Ind. Courts - DOJ files discrimination suit against city [Updated]

A brief article by Eunice Trotter this afternoon on the Indianapolis Star website reports that:

The U.S. Justice Department has filed a discrimination lawsuit against the City of Indianapolis alleging several Indianapolis police officers were discriminated against on the basis of race or gender.

In the lawsuit, the officers, all white males, allege that in 2005 white female officers and black male officers listed on promotions eligibility lists were promoted before other officers ranked higher on the list. The lawsuit was filed Wednesday in the U.S. District Court, Southern District of Indiana in Indianapolis.
[Updated 7/13/07] Here is the expanded story, by Vic Rychard of the Star.

Posted by Marcia Oddi on Thursday, July 12, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Followup on "Sealed documents in otherwise 'unsealed' cases" [Updated]

The ILB has posted a number of entries on "secret dockets" and "sealed dockets" in other states. Here is a list. This has appeared not to be an issue in Indiana.

However, on February 13th the ILB wrote that it was surprised to find, in checking the Supreme Court Clerk's docket in the case of the recently decided case of John Doe v. Town of Plainfield, Indiana, that there was no docket entry at all for the case.

Checking with the Clerk's Office, I was told by Kevin Smith that this was the result of an earlier policy (where entire unsealed cases which included any sealed documents were not listed in the docket) that had now been changed and that in the "in the future only [completely] sealed cases would receive the 'sealed' notation on our electronic docket."

I took this to mean that all future appeals would be docketed. Mr. Smith cautioned, however:

[T]he new way we handle things will be prospective, as we have no way of knowing what cases were previously handled under the "old" way before I changed our practice. However, if those "old" cases (meaning those designated as "sealed" before I made the policy change) are brought to our attention like you did with the Doe v. Plainfield case, we can then make the adjustment to that case at that time.
In this March 9th ILB entry, the following was included as a foornote:
The ILB ran across a similar situation in the Indiana Clerk of the Courts office last month, as set out in this Feb. 13th ILB entry [see above] headed "Sealed documents in otherwise 'unsealed' cases." For years, apparently, cases containing any sealed documents were not included in the electronic docket (although you could view the unsealed part of the file if you asked for it by name in the Clerk's office).

After consulting with Kevin S. Smith, Clerk of the Courts, I was assured that changes were already underway and that, in the future, cases would not be totally sealed (and thus excluded from the electronic docket) simply because their file included a sealed document.

I was told that any such cases improperly sealed in the past which were brought to the attention of the Clerk's office would be unsealed, but that this change in dealing with the files would be prospective only, "as we have no way of knowing what cases were previously handled under the 'old' way" before [we] changed our practice."

After further investigation, however, it was determined by Mr. Smith that IT could run a search to flag any "sealed" cases that might meet the criteria for unsealing, and that staff could then, per a note from Mr. Smith dated Feb. 16th, "cull through the results to make any 'sealed' designation changes for 'unsealed' cases we find. It may take a few weeks, since our IT request will have to be placed 'in the cue' with others ahead of ours and since the first priority of my office has to be keeping up with the daily case flow, but we'll get it done as soon as possible."

This ILB considers this to have been a very positive development. When the process is completed, the ILB hopes to obtain a list of the appellate cases the records of which may now for the first time be accessed via the Clerk of the Courts online electronic docket.

Given the preceding, the ILB was very surprised today when it attempted to check the docket in the recent case of Guardianship of Patrick Atkins; Brett Conrad v. Thomas Atkins and Jeanne Atkins, which was reported here on June 27th. A search using the docket number, 29D01-0506-GU-44 (lower court), and 29A02-0606-CV-471 (court of appeals) returns no results other than "No records found for this search." Efforts using the litigants names also returned no results.

Earlier this afternoon I contacted Mr. Smith by email, provided him with the above, and asked these questions:

I'm planning to post the entry copied below on the ILB this afternoon. I'd like to get your input first if I could, as to: (1) why Atkins does not appear in the docket, and (2) the results of the IT search your office was undertaking so that cases sealed in the past would be available. (To refresh your memory, this is detailed at the end of entry.)
Mr. Smith responded within a few minutes:
In response to your questions:

(1) Atkins was a sealed case, so it would not fall within the parameters of our previous discussion concerning "sealed documents in otherwise 'unsealed' cases."

(2) It is my understanding that the cases falling within the parameters of our previous discussion about "sealed documents in otherwise 'unsealed' cases" have been rectified by our IT staff such that they should now appear on the public on-line docket. If you or your readers find that not to be so with regard to any specific case, however, I'd appreciate knowing about it so I can look into the matter.

After reviewing the above, I sent the following additional questions earlier this afternoon:
Thanks for the quick response. Some followups:

1. My understanding was that entirely sealed cases would at least be listed in the docket, albeit with, at a minimum, information indicating only that the case had been sealed. Otherwise, there is no way for the public to know that the case is in the system.

2. I am confused by footnote #1 in Atkins, if it is a sealed case:
[1] On June 9, 2006, Brett filed a motion to permit identification of the parties by their initials. The motions panel directed the parties to use full names in their pleadings and reserved the ruling on Brett’s motion for the writing panel. Brett has offered no citation to authority or rule in support of his request to identify the parties herein by their initials and we see no compelling reason to grant this request. Consequently, the motion is denied.
3. Could you provide me with the"list of the appellate cases the records of which may now for the first time be accessed via the Clerk of the Courts online electronic docket" as I had earlier requested?
Readers may check back to this entry for any additional communications.

[Updated at 5:54 pm] Kevin Smith has graciously sent the following response to my follow-up questions.

Thank you for your follow up. Here's what I have in response:

(1) Your understanding is absolutely correct -- you should have been able to find out from the public on-line docket that an appeal in the Atkins matter had been filed and that the case had been sealed by court order. (I apologize for the confusion -- your reference to your earlier articles about sealed documents in otherwise "unsealed" cases threw me off a bit, since Atkins was not an "unsealed" case.) I do not know why Atkins is not appearing on the docket in a limited fashion like it should be, as it was my understanding that this issue had been put to rest last February. I have, however, contacted our Director of IT to find out why, and he has assured me he will look into it. Hopefully, he finds it to be a glitch with Atkins only and not a systemic problem. I appreciate your bringing this issue to my attention so I can work to get it corrected.

(2) I'm not sure I comprehend the source of your confusion. The Court of Appeals opinion's footnote deals with whether the parties' names would or would not be listed by initials, not with the fact that the case had been ordered sealed by the motions panel a year earlier. [ILB - My thought, perhaps misguided, was why would they need to do this if the case was sealed?]

(3) There is no such list to provide to you from our previous exercise, and I don't believe we have the ability to generate one now. Rather, it is my understanding that we have the ability to run a search only for cases currently designated as "sealed" on our docket, but not for cases that formerly were designated "sealed" but are no longer. We are, however, doing an internal audit of all cases in our electronic docket that continue to bear the "sealed" designation, to ensure that only those that should bear that designation do so.

Posted by Marcia Oddi on Thursday, July 12, 2007
Posted to Indiana Courts

Ind. Decisions - "Belated Appeals and Blakely (or is it Apprendi?) Retroactivity"

Michael Limrick, a frequent commentator on Indiana sentencing law issues, has written the lengthy lead article for the upcoming JulyAugust issue of Res Gestae. Here is the introduction:

In Gutermuth v. State and its companion cases, the Indiana Supreme Court disposed of several cases that all asked the same question: does the United States Supreme Court’s 2004 holding in Blakely v. Washington apply to “belated appeals” of sentences imposed before Blakely was announced?

The Court said no, based on: (1) its determination that “belated appeals” are neither on “direct review” nor cases that are “not yet final” under federal principles of retroactivity; (2) its 2005 holding in Smylie v. State that Blakely, and not its predecessor Apprendi v. New Jersey, was a new rule of criminal procedure; and (3) its assumption that Blakely does not apply to cases on collateral review.

This article discusses these issues and suggests that the Court’s analysis in Gutermuth and its companions may ultimately be incorrect.

Posted by Marcia Oddi on Thursday, July 12, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In James Phillips v. State of Indiana , a 9-page opinion, Judge Crone writes:

Phillips raises three issues, which we consolidate and restate as whether the trial court abused its discretion in sentencing him. * * *

First, we note that Phillips’s arguments are based upon cases decided when the presumptive sentencing scheme was in effect in Indiana. As pointed out by the State, Phillips’s crime, conviction, and sentencing occurred after April 25, 2005, which was the effective date of the advisory sentencing scheme. * * *

Regarding the sentencing statement itself, Phillips claims that the trial court failed to articulate its balancing of aggravating and mitigating circumstances. Again, Phillips’s argument is moot because it is based upon outdated caselaw. When we address the propriety of the trial court’s sentencing statement in light of Anglemyer, the relevant question is whether the record supports the reasons cited by the trial court for imposing a three-year sentence. Obviously, Phillips’s guilty plea is undisputed and supported by the record. As for his criminal history, Phillips has nine prior felony convictions, several of which involved battery against police officers and resisting law enforcement. The trial court was clearly troubled, as are we, by this high number of offenses and the repetitive nature of Phillips’s crimes against police. The trial court also noted that Phillips had violated probation in the past. In sum, Phillips’s criminal history was supported by the record, and therefore, we find no abuse of discretion. * * *

[Re Phillips' unsupported claim that he was the sole support of his 13-year-olid daughter, the Court wrote:] Our supreme court has said, “[m]any persons convicted of serious crimes have one or more children and, absent special circumstances, trial courts are not required to find that imprisonment will result in undue hardship.” Because the record does not clearly support a finding of undue hardship, the trial court was well within its discretion in not considering it as a significant mitigating circumstance. Affirmed.

In Donald Dixon v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Donald Dixon (“Dixon”) appeals his conviction for invasion of privacy as a Class A misdemeanor. Dixon contends that his conviction should be reversed because the trial court abused its discretion by admitting hearsay testimony and because there is insufficient evidence to sustain his conviction. Finding that the trial court did not abuse its discretion and that there was sufficient evidence for the trial court to reasonably find Dixon guilty of invasion of privacy, we affirm. * * *

The protective order is between Dixon and the State, not Dixon and Bruno. Thus, even if Bruno had invited Dixon to the residence, Dixon would still have been in violation of the State’s protective order against him. Officer Gomez testified that he informed Dixon of the protective order and advised him that pursuant to the protective order, he was not to return to the home. Dixon, however, returned to the home later that same day, in violation of the protective order. Thus, there was sufficient evidence for the trial court to convict Dixon of invasion of privacy. Affirmed. ROBB, J., concurs. SULLIVAN, J., concurs in result.

NFP civil opinions today (1):

Termination of the Parent-Child Relationship of J.F., III, D.K., D.E., and L.F.; Crystal Baskins, Stephanie Ford and James Ford v. Marion County Dept. of Child Services and Child Advocates, Inc. (NFP) - termination, affirmed.

NFP criminal opinions today (8):

Jesse Tate v. State of Indiana (NFP)

Jeffrey Copler v. State of Indiana (NFP)

Tyrone R. Morris v. State of Indiana (NFP)

Larry Cardwell v. State of Indiana (NFP)

Efrain Zambrano Cruz v. State of Indiana (NFP)

Erron Goss v. State of Indiana (NFP)

Mark Sidle v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, July 12, 2007
Posted to Ind. App.Ct. Decisions

Law - "General Counsel Keep Close Watch on Associate Pay Hikes"

Katheryn Hayes Tucker reports in the Fulton County Daily Report:

Chief legal officers are watching their bills from outside counsel ever more closely as they read about one hefty pay hike after another for first-year associates.

George Q. Sewell, executive vice president, general counsel and corporate secretary for The Facility Group Inc. and Georgia chapter president for the Association of Corporate Counsel, said he has noticed three strong reactions from his colleagues: "Amazement at the salaries; skepticism about whether or not the associates will have the expertise to justify those salaries; and a determination not to let the law firms train the associates at the clients' expense." * * *

Some GCs favor using less time from more expensive partners rather than more time from young associates. "I'd rather pay for a half hour of wisdom from a partner who will just give you the answer rather than a first-year associate who will spend 10 hours on the Internet doing research and then write a lengthy memo," said Emory's Alexander. "I'm more in the mode of the short, authoritative answer."

But, he added, in some situations, the new associates could still be a good value. "When the partner doesn't know the answer, and you need document reviews," he said, "sometimes a smart young associate can find the case you need."

Some question whether those associates can be smart enough to justify their cost. "You can't learn to be a lawyer from law school. You learn to be a lawyer from working with other lawyers," said Kristen K. McGuffey, executive vice president and general counsel for Simmons Bedding Co. "All of a sudden, first-years are getting paid about the same as mid-level in-house lawyers. My budget hasn't increased. I don't use first-years a lot. It's a better value to use partners who take a lot less time to do the work."

The Simmons GC also relies on an experienced former firm partner who works solo out of her home and charges lower rates. "We're very careful with our money," McGuffey said. "I'm looking for an alternative way to get the work done with less cost."

Posted by Marcia Oddi on Thursday, July 12, 2007
Posted to General Law Related

Ind. Courts - Judge rules Lafayette heart surgeons's lawsuit can proceed

Joe Gerrety of the Lafayette Journal & Courier reports today in a story that begins:

A heart surgeon who was shut out of Lafayette's hospitals after St. Elizabeth Regional Health entered an exclusive contract with another group of surgeons can proceed with his lawsuit challenging the move.

There are too many unresolved issues to dismiss the lawsuit outright, Judge Thomas Busch of Tippecanoe Superior Court 2 decided in a 13-page order issued Wednesday.

Dr. Kenneth Stone has sued St. Elizabeth Regional Health, formerly Greater Lafayette Health Services, which owns Home Hospital and St. Elizabeth Medical Center.

Stone wants Busch to issue an injunction preventing the hospitals from curtailing his privileges until Stone is granted a hearing. Attorneys for the hospitals want the suit dismissed, arguing that Stone doesn't have authority to question its business decision to enter an exclusive contract with Indianapolis-based cardiology group CorVasc.

In his order, Busch said St. Elizabeth's by-laws are ambiguous about several issues, including the hospitals' freedom to enter exclusive contracts, whether an exclusive contract can be used to terminate a physician's privileges, whether the hospitals can terminate a doctor's privileges before his term of membership expires and whether peer review procedures apply to Stone's situation.

"The Court finds that it is necessary for discovery to proceed and for evidence to be presented on these issues," the judge wrote.

Hospital competition in Tippecanoe County is a factor, according to this part of the story:
Stone had performed open-heart surgeries at St. Elizabeth Medical Center for 18 years until February, when the hospitals entered an exclusive contract for open-heart surgeries with CorVasc. That left Stone, a physician shareholder in Arnett HealthSystem, without a place in Lafayette to practice his specialty.

Since February, Stone's Lafayette patients have had to go to Methodist Hospital in Indianapolis for open-heart surgeries.

Stone still has medical privileges and is on the medical staffs of both Home Hospital and St. Elizabeth Medical Center. But he is not allowed to perform any procedures covered by the exclusive contract with CorVasc.

The lawsuit is the latest skirmish in an ongoing competition between Arnett and St. Elizabeth.

Arnett has teamed with Clarian Health in Indianapolis to build a new for-profit hospital on Lafayette's east side. The 103-bed, $170 million Clarian-Arnett Hospital is scheduled to open in fall 2008.

St. Elizabeth has started building St. Elizabeth East, a 166-bed, $190 million facility also on the east side. It is scheduled to open in late 2009.

Tippecanoe Superior Court 's Judge Thomas Busch's 13-page "Order denying judgment on the pleadings" has been posted by the Journal & Courier; access it here.

Posted by Marcia Oddi on Thursday, July 12, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Intolerable executions"

From an editorial today in the Fort Wayne Journal Gazette that begins:

There could be no more fitting tribute to the late state Sen. Anita Bowser than for the legislative commission named in her memory to recommend that Indiana stop executing people who are mentally ill.

A bill to exempt people with severe mental illness from the death penalty died in committee during the last session. But the Senate created the Bowser Commission before adjourning in May to study the issue.

Bowser was a constitutional scholar and passionate death-penalty opponent who worked to abolish it incrementally. Before her death in March, she successfully spearheaded bills to prohibit the execution of people with mental retardation and those younger than 18.

Here is the web page for Bowser Commission. No meetings are yet listed. A Sentencing Policy Study Committee is also listed; it too has no meetings scheduled.

Posted by Marcia Oddi on Thursday, July 12, 2007
Posted to Indiana Law

Wednesday, July 11, 2007

Ind. Courts - Federal judge lifts federal rules on state child welfare agency [Updated]

Rick Callahan of AP is reporting this afternoon that U.S. District Judge John Tinder has:

lifted federal rules imposed 15 years ago on Indiana's child welfare agency after hearing that the state had improved the handling of Marion County's child neglect and abuse cases.

[Judge] Tinder dismissed the order after Ken Falk, legal director of the American Civil Liberties Union of Indiana, said the state had made progress meeting the terms of the 1992 consent decree, including boosting the number of child welfare caseworkers.

[Updated 7/12/07] Rob Schneider has a lengthy story on the lifting of the court order today in the Indianapolis Star, including a side-bar showing "Some of the changes brought about by increasing the number of Child Protective Services workers in Marion County."

Posted by Marcia Oddi on Wednesday, July 11, 2007
Posted to Ind Fed D.Ct. Decisions

Law - Oregon student journalists' right to expression expanded

Tracy Loew of USA Today reports:

SALEM, Ore. — The nation's first law to help protect Oregon high school and college journalists from censorship by school administrations will be signed Friday by Gov. Ted Kulongoski.

The Oregon law makes student journalists responsible for determining the content of school-sponsored media, and gives them the right to sue schools if they feel free-press rights have been violated.

It is the country's first law in more than a decade to protect high school journalists, and the first ever to cover both high school and college journalists under one statute, said Warren Watson, director of J-Ideas, a First Amendment institute at Ball State University in Muncie, Ind.

"This is really a landmark for student journalism," Watson said.

Six other states — Arkansas, California, Colorado, Iowa, Kansas and Massachusetts — have laws that protect high school journalists from censorship. All were passed before 1996.

Another quote from the story:
Lauren Dillard, editor of Oregon State University's Daily Barometer, told lawmakers that students can't learn how to hold governments accountable if they can't question their own governing body.

"It's difficult to serve as that Fourth Estate if you don't have independence from your organization," Dillard said.

Dillard graduated from Canby High School in Canby, Ore. In 2005, Canby High's principal objected to a story about students talking frankly about race.

Instead of changing the story or running a different one, student journalists ran white space with the words "censored by the administration."

Sound familiar? Recall the very recent case of Amy Sorrell and her student-journalists in the Allen County school system, which has had a very different outcome.

Posted by Marcia Oddi on Wednesday, July 11, 2007
Posted to General Law Related

Law - "About that huge salary: It's a longshot"

A National Law Journal story by Leigh Jones, published July 9th, has occasioned a lot of interest. It begins:

Despite news of record-breaking employment figures for law school graduates and first-year salaries of $160,000 at many top law firms, a significant contingent of job seekers — including those with strong credentials — are living a much different story after graduation.

By accounts from employment trackers, news reports and some law schools themselves, starting a lucrative career as a lawyer these days is easier than ever. Many big law firms are doling out first-year salaries that exceed those paid to seasoned federal judges, and they are bestowing year-end bonuses that rival starting pay for many entry-level professional positions.

But the eye-popping salaries are the reality for a small fraction of law school graduates, and all those stories of big money may be creating unrealistic hopes for the vast majority of law school students. Contributing to the situation is the effort by law schools to portray their employment numbers as robustly as possible to boost their ranking scores.

The upshot means dashed expectations for lots of graduates, many of whom are saddled with high debt as they struggle to start their careers.

Another quote from the long article:
"I'm kind of stuck," said a 27-year-old lawyer from Ohio State University Michael E. Moritz College of Law who moved to Chicago after she graduated last year. She did not want to reveal her identity out of a concern that doing so would hinder her job search.

Currently working for an in-house department at a large insurance company in Chicago, she graduated in the top third of her class, was a member of law review and participated in the school's moot court competition. She has $70,000 in student loan debt, she said, and makes about $50,000 annually.

She sent out more than 100 résumés and letters before and after she graduated, she said. "I could get in the door; I just couldn't land the job."

She said that many of her friends from law school are working on a contract basis for law firms.

"A lot of people are making $30,000."

The "legal tabloid", Above the Law, has picked up on the story in an entry titled "It's Hard Out Here for Non-Top-Tier Law School Graduates." Currently, 341 people have posted comments to the entry.

The WSJ Law Blog also has posted an entry, titled "The Jobless JDs," on the National Law Journal story. Although just posted an hour ago, there are already a number of comments.

Posted by Marcia Oddi on Wednesday, July 11, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Termination of Parental Rights of D.A., D.A., D.A.; Herman Andrews v. Monroe County Department of Child Services , a 20-page opinion, Judge Vaidik writes:

Herman Andrews (“Father”) appeals the trial court’s order terminating his parental rights to his children, Da.A., Des.A., and Deo.A. (collectively, “the Children”). Father argues that the trial court abused its discretion by granting Father’s attorney’s motion to withdraw because he did not have notice of his attorney’s motion, the motion violated local court rules, and he was prejudiced by the grant of the motion. Additionally, Father argues that the grant of his attorney’s motion violated his due process rights and his statutory right to counsel when the trial court conducted the termination hearing without Father or an attorney present. Concluding that the trial court abused its discretion by granting Father’s attorney’s motion to withdraw and that Father was denied due process because he did not have an opportunity to be heard, present evidence, or cross-examine witnesses, we reverse the trial court’s order terminating Father’s parental rights and remand this case for a proper termination hearing.
Charles E. Watkins v. State of Indiana - "Because there is no indication from the record that Watkins ever sought, let alone exhausted, his administrative remedies from the proper authority in pursuing his claim for credit time, we conclude pursuant to Samuels and Members that the post-conviction court was without subject matter jurisdiction to rule upon his petition. Accordingly, we set aside the judgment denying Watkins’s petition and dismiss this appeal."

NFP civil opinions today (1):

Termination of Parental Rights of J.G. & B.G.; Deborah F. Gibbs v. Howard County Department of Child Services (NFP) - termination, affirmed.

NFP criminal opinions today (6):

Darryl Hopkins v. State of Indiana (NFP)

Tyrone Denny v. State of Indiana (NFP)

Kent Hickson v. State of Indiana (NFP)

Damian Ambrose v. State of Indiana (NFP)

Jared Bailey v. State of Indiana (NFP)

Technisand, Inc. v. Jessie Melton (NFP)

Posted by Marcia Oddi on Wednesday, July 11, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - Still more on: Do the changes to the sex offender law mean longtime homeowners must move?

The Lafayette Journal & Courier has had a number of stories about changes to the Indiana sex offender law that may now require long-time owners or residents to move. Their June 6th editorial predicted the issue would wind up in court. Yesterday it did.

Today Sophia Voravong of the C&P reports:

A man identified only as "John Doe" in court documents filed Tuesday afternoon has a clean record since his 1988 conviction for child molestation, according to his attorney.

He has owned and lived in his Lafayette home for seven years.

But now the man -- recently ordered to move, and staying outside Tippecanoe County with acquaintances -- must relocate again because that residence is too close to a school administration building.

"He was out when told to get out. He was not trying to cause any problems," his attorney, Chad Montgomery, said.

"He left when he was told to leave, according to the letter."

Under an Indiana law that took effect July 1, 2006, offenders convicted of crimes against children are prohibited from living within 1,000 feet of a school, youth program center or public park. The sheriff's department in late April began hand-delivering letters to the offenders, which gave them 45 days to find new housing.

Montgomery filed petitions Tuesday in Tippecanoe Superior Court 1, asking that his client no longer be considered an offender against children and that he temporarily be allowed to live in his own home while the judge considers the case.

Sheriff Tracy Brown and prosecutor Pat Harrington are named as defendants in the lawsuit. * * *

"We are suing them only in their professional capacity," Montgomery said. "We have no problem with them enforcing the law -- we just don't like the law itself."

Legislation that took effect July 1, 2007, allows such offenders to petition the court to look at whether he or she should be considered an offender against children.

This can only be done 10 years after the offender is released. A petition can be filed once a year.

The story includes links to an April 23, 2007 letter sent by the Tippecanoe County prosecutor to registered sex offenders living within 1,000 feet of school propoerty, giving recipients 45 days to move.

A link is also provided to the lawsuit that is the subject of today's story. Because it is scanned and 13 MB in size, you may have difficulty in accessing it however. The document is really four items: A 2-page motion to no longer be considered an offender against children; a 2-page verified petition to allow petitioner to proceed anonymously; a 5-page motion for preliminary injunction; and a 6-page motion for permanent injunction.

Posted by Marcia Oddi on Wednesday, July 11, 2007
Posted to Indiana Law

Ind. Courts - "Coach was 'just flirting,' defense says"

Andy Grimm of the Gary Post Tribune has a story today that begins:

HAMMOND -- Defense attorneys for Matthew Hensley say the 24-year-old Valparaiso resident was engaged in nothing more than flirting in cyberspace when he allegedly tried to set up a sexual rendezvous with an undercover federal agent posing as a 13-year-old girl.

The former Andrean High School girl's basketball assistant coach never believed the 25-year-old federal agent with whom he exchanged chatroom messages, phone calls and photographs during an August sting operation was the sexually inexperienced minor she claimed to be, said his attorney, I. Alex Woloshansky in his opening statement Tuesday.

Joe Carlson's story in the NWI Times begins:
HAMMOND | Matthew Hensley, the former coach charged with trolling the Web for sex with young girls, did not really believe his sexually charged online pen pal was 13 years old.

That's ones of the keys to Hensley's defense strategy, as attorney Alex Woloshansky revealed for the first time Tuesday during opening arguments in Hensley's trial, which is expected to end Friday.

The government must prove Hensley, 24, of Valparaiso, believed the person he was chatting with online was 13. Woloshansky said the evidence does not show that.

Assistant U.S. Attorney Philip Benson offered the jury a different view, pointing to where Hensley typed that "13 is old enough for sex" and "older guys are better, they know how to do it."

Posted by Marcia Oddi on Wednesday, July 11, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "7th public defender approved for Steuben"

Kara Lopp reports in the Fort Wayne Journal Gazette:

ANGOLA – A seventh public defender for Steuben County’s court system could be hired by Aug. 1, county council members said Tuesday.

Council members approved providing $20,000 to the Steuben County Public Defender Commission to hire an additional part-time attorney who would handle about a third of the county’s misdemeanor criminal cases.

A rising caseload for the courts system has meant the county’s current part-time public defender in charge of misdemeanor cases, Eugene Bosworth, has handled more than double what state officials recommend, said Hugh Taylor, a commissioner on the public defender board. Last year, Bosworth handled 384 cases, he said.

Posted by Marcia Oddi on Wednesday, July 11, 2007
Posted to Indiana Courts

Ind. Courts - Party marks U.S. District Judge Rudy Lozano's move to senior status

Joe Carlson of the NWI Times reports today:

HAMMOND | If ever a federal judge looked meek, it was on Tuesday, when dozens of courthouse workers sang happy birthday to U.S. District Judge Rudy Lozano.

The afternoon event celebrating Lozano's 65th birthday marked the beginning of his move into a type of semiretirement called senior status. Though he intends to maintain a full caseload, he will be doing so on a retirement salary.

"Thank you everybody," Lozano said in a quiet tone of voice not often heard in his courtroom upstairs. "I really wanted to do this quietly."

Lozano then shook hands with Joseph Van Bokkelen, the outgoing U.S. attorney for Indiana's Northern District who has been confirmed to replace Lozano as the district's next full-time judge.

Posted by Marcia Oddi on Wednesday, July 11, 2007
Posted to Indiana Courts

Tuesday, July 10, 2007

Ind. Decisions - 7th Circuit rules on Dunkin Donuts case out of Illinois

Decision of the Day has picked up on the 7th Circuit's civil rights decision today in Elkhatib v. Dunkin Donuts, Inc.. Read Robert Loblaw's summary here. The case involves a Muslim with several long-time franchises who refused to handle breakfast meats (i.e. bacon, ham and sausage breakfast sandwiches).

Posted by Marcia Oddi on Tuesday, July 10, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Lance & Karen Eckman v. Richard C. Green d/b/a Green Concrete , a 6-page opinion, Judge Darden writes:

In this case, the Eckmans argue that the trial court erred in granting Green’s motion for summary judgment because Green is not a third-party beneficiary to the contract between the Eckmans and New Welton and, therefore, is not entitled to enforce the contractual provision shortening the time in which to bring an action for breach of contract. We agree. * * *

Given the facts presented, Green fails to meet the first criterion for establishing status as a third-party beneficiary. The purchase agreement between the Eckmans and New Welton does not show clear intent to benefit Green as Green is neither named in the purchase agreement nor does the purchase agreement contain “provisions which demonstrate an intent to benefit any other person.” * * *

Accordingly, we reverse the trial court’s judgment in favor of Green.

Scott D. Moore v. State of Indiana - "In the present case, possession of anhydrous ammonia and possession of reagents or precursors is necessarily included in Moore’s conviction for dealing in methamphetamine. See Bush, 772 N.E.2d at 1023. Under Indiana law, if a defendant is charged with an offense and an included offense in separate counts and is found guilty of both counts, “judgment and sentence may not be entered against the defendant for the included offense.” I.C. § 35-38-1-6. A lesser included offense is necessarily included within the greater offense if it impossible to commit the greater offense without first having committed the lesser. Bush, 772 N.E.2d at 1023-24. Here, Moore could not have been in the process of manufacturing methamphetamine without possessing anhydrous ammonia and reagents or precursors. In addition, the record reveals no evidence of independent offenses. As a result, we hold that the trial court erred in entering convictions against and sentencing Moore for these lesser included offenses. We remand with instructions to the trial court to vacate Moore’s conviction for possession of anhydrous ammonia, as well as his conviction for possession of reagents or precursors. * * * Moore’s conviction of Counts II and III violate state and federal prohibitions against double jeopardy; therefore, we direct the trial court to vacate those convictions."

NFP civil opinions today (1):

Alan Kearns and Technology & Network Specialists v. Technology & Network Services and John Payne and Robert Wallace (NFP) - This case involved charges of criminal conversion against TN Specialists and Kearns, subcontractors in a State of Indiana program to provide Internet access and related services to the State’s Women, Infant and Children Program (WIC Program). The court here concludes "that the trial court improperly determined that TN Specialists and Kearns committed criminal conversion. As a result, we vacate the trial court’s judgment against TN Specialists and Kearns, and its award of treble damages to TN Services. We remand this issue to the trial court with instructions to enter judgment against TN Specialists for breach of contract in the amount of $6,500."

NFP criminal opinions today (2):

Jessica F. Sargent v. State of Indiana (NFP)

Kari A. Fulton v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 10, 2007
Posted to Ind. App.Ct. Decisions

Law - "Bad Heir Day: How Sandra Day O'Connor became the least powerful jurist in Amercia"

Dahlia Lithwick has this interesting commentary today in Slate. It begins:

During the final weeks of the Supreme Court term, it was hard not to be struck by one recurring theme: Former Justice Sandra Day O'Connor—a few short years ago the "most powerful woman in America," a "majority of one," the "most powerful person on the court," and the most "powerful Supreme Court Justice in recent history"—had somehow become the most disregarded. With the court's newly dominant conservative wing focused pretty much on whether to ignore or overrule her outright, it's clear that one real casualty of the new Roberts Court is O'Connor's lifetime of work on an extraordinary range of constitutional issues.

What can we conclude about the court's swing voters, about O'Connor herself, or about the Roberts Court, from the speed with which her legal legacy is being dismantled?

Posted by Marcia Oddi on Tuesday, July 10, 2007
Posted to General Law Related

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

On April 25, 2007, the ILB had a comprehensive entry on this question.

Today Travis Neff of the Princeton Daily Clarion reports that the case of Michael Armstrong appears finally to be at its end:

PRINCETON-After a lengthy series of appeals, a hearing before the Indiana Supreme Court and a motion filed with the U.S. Supreme Court, a former Gibson County man pleaded guilty Monday to leaving the scene of an accident four years ago in which a passenger in his vehicle was killed.

Michael C. Armstrong, 26, admitted to the felony of failing to stop after an accident resulting in the death of Craig R. Mobley, 18, of Owensville. * * *

According to court records, Armstrong was driving a 1998 Ford Expedition on CR 400 West on the afternoon of May 31, 2003, when Mobley apparently jumped from the vehicle while it was moving. Mobley later died of head injuries suffered in the fall.

Armstrong continued to drive after Mobley left the vehicle and later returned to the scene after police had started investigating the incident.

Armstrong's attorney, Ivan Arnaez, of Evansville, had argued that the statute requiring drivers to report injuries immediately after an accident did not apply in the case because the 2001 law required someone to stop only if someone or something was struck by the vehicle.

That law has since been amended to close that argument.

Penrod denied Arnaez' motion to dismiss charges against Armstrong, but the Indiana Court of Appeals issued a ruling that the court could not retroactively apply its interpretation of the law to Armstrong's case.

The matter went before the Indiana Supreme Court after Gibson County Prosecutor Rob Krieg filed a petition with the Indiana Attorney General to appeal the Court of Appeals' ruling. The state's top court ultimately agreed with Penrod and upheld the continuance of the case.

Arnaez then filed a writ of certiorari asking the U.S. Supreme Court to review the matter, but in November 2006, the nation's top court declined to hear the case, sending the matter back to Gibson County for resolution.

Posted by Marcia Oddi on Tuesday, July 10, 2007
Posted to Indiana Law

Ind. Courts - Access many Indiana court daily calendars online, at no charge [Updated]

Nick Fankhauser of DoxPop has written to announce that:

Beginning on July 10th, court calendars (dockets) for a day or week will be available for all of our partner courts on the Doxpop web site.

This service is provided at no charge to any person who visits our web site. * * * We provided this feature in response to several judges who asked that both they and the public be allowed to view their court's schedule on the web.

Nick notes that "With the recent addition of Hamilton County, we're up to about 40 counties and 125 courts on-line."

In response to a request for more detail, he responded:

On the right side of the page is a list of the courts we work with, grouped by county or city (in the case of municipal jurisdiction.) Clicking on the link next to each jurisdiction leads to the page where links to the calendar for each court may be found. We're planning to add links to the local rules of court and contact information to these pages as well in an effort to add a bit to the public service side of our offering. You may recall that we offer limited services to the general public at no cost and fund this by charging attorneys and other professionals for access to enhanced services designed to reduce their cost of doing business.

We recently reworded our contracts with most of the courts we work with to allow free access to our database for Prosecutors, Public Defenders and Law Enforcement in the same jurisdiction (sheriff for county courts, city police for municipal.) We already provided free service to courts, clerks, probation, community corrections and CASA/GAL volunteers and staff statewide, so this also expands the public service side a bit further. In addition to the obvious administrative and investigative uses, we hope the law enforcement folks will take advantage of their access to an existing protective order database of significant breadth.

Note that as of today, our site lists 116 courts in 39 counties. We added Hamilton last Monday and have not yet updated the list. Hamilton will add 7 county courts and 2 municipal courts. ( I'm not sure if we'll end up counting the municipal courts yet- that is one reason I haven't updated the count yet- I need to chat with the clerk about how complete the municipal records are.) The counts and list should be updated by the 10th, but you might want to check in that morning to see whether we are claiming 125 or 123 courts.

In addition to Hamilton, we've got LaPorte, Vermillion, Owen, Ripley, Shelby, Dubois and Bluffton (Municipal) in the pipeline for this summer, which expands the network by another 6 counties and 15 courts in the next couple of months. There are about 10 more counties, including two very large ones that have made commitments but are far enough out in the process that I'm not claiming them yet. Presumably we will add them in the fall.

Take a look at the Court page of the DoxPop site here. I checked out Johnson County via the right column and found calendars for today and this week. Hancock County is listed, but apparently has elected not to make its calendars available, so you will still need to call them for information. Hamilton County, according to Nick's information, will be added to the list shortly.

[Updated 1:30 pm] Hancock and Hamilton court calendars are both now available.

Posted by Marcia Oddi on Tuesday, July 10, 2007
Posted to Indiana Courts

Ind. Law - More on: New seat belt law may not cover occupants of truck bed [Updated]

Bryan Corbin of the Evansville Courier & Press writes again today on the new seat belt law. His story Sunday began "Two state lawmakers who helped pass Indiana's new truck seat belt law were surprised to learn a loophole they tried to close still may be open." (See ILB entry here..)

From today's story:

Still irked at law enforcement's interpretation of the new truck seat belt law, Senate Transportation Chairman Thomas Wyss hand-delivered a letter Monday to the state attorney general, asking him to render a legal opinion as to whether riding in the beds of pickups is legal.

Wyss hopes Steve Carter's legal opinion will hold greater sway with police than one posted recently by the Indiana Criminal Justice Institute, which recommended police not write tickets for riders in truck beds.

Wyss, R-Fort Wayne, said that taken to its logical extreme, the institute's interpretation would allow "wind-surfing" in the bed of a moving pickup, which the Legislature clearly never intended. * * *

At issue is a new law closing two seat belt loopholes. Occupants of pickup trucks or sport utility vehicles that display truck plates no longer are exempt from the seat belt requirement; nor are back seat passengers. Violations can result in a $25 ticket.

As Senate sponsor of the House bill, Wyss believes the new seat belt law also makes it a violation for a passenger to ride in the bed of a moving pickup or cargo area of an SUV, where there are no seat belts. He has told police officers that they can issue such tickets, he said.

"I was talking to cops in Fort Wayne and told them, 'We not only took care of the front seat, we took care of the back seat and we took care of the back of pickup trucks.' And they said, 'Yes sir, great,'" Wyss recalled.

But a legal interpretation posted on the Web site of the Indiana Criminal Justice Institute, the state's planning agency for traffic safety issues, reached a sharply different conclusion. Written by traffic safety prosecutor Deborah Reasoner, the memorandum recommends police not make traffic stops of pickup trucks with passengers in the bed, noting how a specific ban was not in the final bill.

Reasoner's legal interpretation is non-binding, but Evansville police and the Indiana State Police read the new law the same way: that it does not authorize officers to ticket truck-bed riders age 16 and over. * * *

The attorney general's legal opinions also are nonbinding, but Wyss believes a different interpretation coming from Carter would be taken seriously and followed by police officers. * * *

Wyss said the Senate Transportation Committee removed wording that specifically banned pickup-bed riding because it already was incorporated within another part of the bill, mandating all occupants wear manufacturer-installed seat belts.

If the attorney general does not render an opinion in his favor, Wyss would support a bill in the 2008 Legislature to specifically outlaw the practice of riding in truck beds, he said.

Take a look at the new law, HEA 1237, and judge for yourself. Look at p. 3, SECTION 7, where IC 9-19-10-2 is amended to require that:
Each occupant of a motor vehicle equipped with a safety belt that:
(1) meets the standards stated in the Federal Motor Vehicle Safety Standard Number 208 (49 CFR 571.208); and
(2) is standard equipment installed by the manufacturer;
shall have a safety belt properly fastened about the occupant's body at all times when the vehicle is in forward motion.
One might readily read that to require only that if you are in a seat that has a factory-installed seatbelt, it must be fastened.

The law enforcement memorandum referenced (access it here thanks to Fort Wayne Observed) warns at the bottom of p. 1:

Although there are no specific exceptions for occupants in the beds of pickup trucks or cargo areas of vans and trailers, a thorough review of the newly added exceptions and of prior legislation outlawing riders in truck beds which was rejected indicates that seatbelt citations in these situations are not appropriate and would not be viewed well in the Courts.
An earlier version of the bill (House version, scroll down to SECTION 12) had language which would have added a new IC 9-21-8-58, which would have required:
Sec. 56. (a) An individual may not operate a truck on a public highway (as defined in IC 9-25-2-4) while another individual is in the open bed of the truck.
(b) Subsection (a) does not apply to an individual operating a truck:
(1) in a parade; or
(2) on a farm in connection with agricultural pursuits that are usual and normal to the farming operation, as set forth in IC 9-29-5-13(b)(2).
That language was deleted when the bill was in Senate committee; it did not become law.

[Updated already, at 7:50 am]The Fort Wayne Journal Gazette has an editorial today, headed "Close seat-belt loophole." Some quotes:

Sen. Tom Wyss campaigned for years to close the loophole in Indiana’s seat-belt law that exempted drivers and passengers in trucks and SUVs. The law took effect on July 1, but now Wyss is battling the Indiana Prosecuting Attorneys Council over whether the law prohibits passengers from riding in the beds of pickup trucks or cargo areas of vans.

The law should ban such dangerous practices. But some legal officials are saying the precise wording doesn’t. The General Assembly needs to clean up the language when it reconvenes early next year. * * *

During deliberation over the bill, Wyss himself removed an amendment that would have specifically banned riding in pickup truck beds when it came to the Senate Transportation Committee, which he chairs. He argued that the amendment was unnecessary because the bill requires all passengers to be restrained in a seat belt or child-safety seat, and there are neither seats nor seat belts in cargo areas of pickup trucks or vans.

“The prosecutors’ council people were sitting in the audience when we did that,” he said. “Nobody ever said a word. They knew exactly what our intent was.”

However, the final language appears only to require passengers in any seat equipped with a seat belt to use it. The amendment that Wyss’ committee removed would have added to state law: “An individual may not operate a truck on a public highway ... while another individual is in the open bed of the truck.” * * *

The disagreement is the latest that shows how important it is for legislators and their legal advisers to scrutinize the precise language of the bills they author and shepherd through the legislative process.

This brings to mind a recent Supreme Court ruling (see ILB entry here from June 23rd), Utility Center, Inc., d/b/a Aquasource v. City of Fort Wayne, where the Court wrote, re the wording of the law as passed and the intent of a legislator:
Finally, we make note of the fact that Senator David C. Long, the author of chapter 30 when it was enacted by the Legislature in 1999, filed an affidavit and supporting exhibits with the trial court in this matter, explaining his “intent as the author” of the statute. The trial court declined to consider the affidavit and the Court of Appeals affirmed, reflecting this Court’s policy that “[i]n interpreting statutes, we do not impute the opinions of one legislator, even a bill’s sponsor, to the entire legislature unless those views find statutory expression.” * * * We respect Senator Long’s work in this field but, for the reasons set forth above, are unable to conclude that his intent in this regard was enacted into law.

Posted by Marcia Oddi on Tuesday, July 10, 2007
Posted to Indiana Law

Monday, July 09, 2007

Ind. Gov't. - More about: Is Indiana’s voluntary environmental cleanup program a failure? [Updated]

Dan Stockman of the Fort Wayne Journal Gazette, who wrote the long story for the Sunday J-G on the failings of Indiana's voluntary cleanup program, has answered the ILB's request from yesterday's entry:

For starts, it would be a good thing if IDEM (or the Fort Wayne paper) would make available the data compiled for today's story.
Dan has sent along the spreadsheet he used for yesterday's story. Apparently there were graphics based on the data that ran in the print edition, but are not available online. Dan says that "[the graphics] noted that some of our analysis was hamstrung by how many dates IDEM couldn't provide. Officials said it was mainly because the data had never been compiled before and much of it was handled by project managers that have since left, so getting it would have required extraordinary effort."

The ILB is posting the spreadsheet here in both Excel and html format.

Several other state papers today have picked up an abbreviated version of yesterday's J-G story; be sure to read the original. And don't miss the ILB's observations on yesterday's J-G story, at the end of yesterday's ILB entry.

[Updated 7/16/07] The Journal Gazette has today published this rebuttal letter from Thomas W. Easterly, head of IDEM, that concludes:

I can assure you that all IDEM programs for managing cleanups, such as VRP, are continuously reviewed. Since my arrival in 2005, many improvements have been implemented to improve the efficiency and effectiveness of our programs. One of our goals is to move cases through the process as quickly as possible, while ensuring cleanups meet or exceed today’s environmental standards. VRP is helping achieve this objective.

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Indiana Law

Ind. Law - Baker & Daniels names Diversity & Pro Bono Coordinator

Baker & Daniels has named attorney Brita A. Horvath as its Diversity & Pro Bono Coordinator. Many of you know Brita, before joining Baker & Daniels in June, Brita was director of section services for the Indiana State Bar Association for more than three years. She served as liaison to 25 sections with a cumulative membership of 12,000 lawyers and judges. Read about Brita here.

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Indiana Law

Ind. Decisions - Two today from the 7th Circuit

In Mickey Ervin v. Johnson & Johnson (SD Ind., John Daniel Tinder, Judge), a 6-page opinion, Judge Bauer writes:

Mickey Ervin brought a products liability action against Johnson & Johnson, Inc. and Centocor, Inc., claiming that his prescription medication Remicade caused a blood clot that required the partial amputation of his leg. Defendants moved in limine to exclude testimony from plaintiff’s expert and filed a motion for summary judgment. The district court granted both motions. Ervin now appeals these rulings. We affirm. * * *

A differential diagnosis satisfies a Daubert analysis if the expert uses reliable methods. Under Daubert, expert opinions employing differential diagnosis must be based on scientifically valid decisions as to which potential causes should be “ruled in” and “ruled out.” Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254 (2d Cir. 2005). Determining the reliability of an expert’s differential diagnosis is a case-by-case determination.

We agree with the district court that Dr. McKinley had no reliable basis for his expert opinion. He could not point to any epidemiological data supporting his opinion, and he was not able to articulate any scientifically physiological explanation as to how Remicade would cause arterial thrombosis. The mere existence of a temporal relationship between taking a medication and the onset of symptoms does not show a sufficient causal relationship. The district court did not abuse its discretion in finding that Dr. McKinley’s testimony was unreliable. In the absence of any other expert evidence supporting Ervin’s causation theory, the district court properly granted summary judgment.

In U.S. v. Sloan (SD Ind., Sarah Evans Barker, Judge), a 22-page decision in which Judge Flaum dissents in part, Judge Bauer writes:
A jury convicted James L. Sloan of six counts of mail fraud and 26 counts of wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. The district court sentenced Sloan to 18 months of incarceration, followed by two years of supervised release, and ordered him to pay $19,654.60 in restitution. Sloan now appeals his judgment of conviction and sentence. We affirm.

I. Background. With an offer of “Free Electricity for Life! Plus—the opportunity to make $492,000.00 per year” and other similar offers, Sloan enticed at least ninety individuals to join his organization, the Christian Freedom Foundation. To take advantage of these offers advertised in the March, April, July, and August 2001 editions of Sloan’s Christian Freedom Chronicle, these individuals were required to join the Christian Freedom Foundation. * * *

[The opinions reviews the various enhancements, including #4, the Enhancement for Mass-Marketing.]

The definition of “mass-marketing” is not limited to telephone, mail, or Internet solicitations but includes “other means.” Sloan used such “other means,” the Christian Freedom Chronicle, to reach a large number of individuals in order to have them pay to join the Christian Freedom Foundation. Accordingly, the district court’s application of the massmarketing enhancement was appropriate.

III. Conclusion For the foregoing reasons, Sloan’s judgment of conviction and sentence are AFFIRMED.

[Judge Flaum concludes in his partial dissent:] The majority relies on the fact that Bemiller testified that she trusted the solicitation because the Christian Freedom Foundation was a Christian organization. Bemiller testified that she “wrote out the check. It sounded good. It had ‘Christian’ on it, so I thought well, this has got to be good.” Although Bemiller trusted the scheme because it was being orchestrated by a Christian organization, she did not subscribe to the organization because of its Christian purpose. She, like all of the other victims, subscribed because she thought that she would get a free electricity generator and a financial windfall. In my view, Sloan did not exploit his victims’ charitable impulses, and therefore I would hold that the district court erred when it enhanced his sentence under § 2F1.1(b)(4)(A).

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Lake County Sheriff's Merit Board v. John Buncich, et al., a 12-page opinion, Judge Sullivan writes:

Appellant-Defendant, the Lake County Sheriff’s Merit Board appeals from the trial court’s ruling in favor of Appellee-Plaintiff John Buncich and Appellees-Intervenor Plaintiffs the Fraternal Order of Police Chris Anton Lodge Local 125 and the Lake County Police Association Local 72 in Buncich’s Complaint for Declaratory Judgment and Preliminary Injunction and in the Alternative Temporary Restraining Order.

Upon appeal, the Merit Board presents four issues, which we consolidate and restate as follows: (1) whether the trial court erred in denying the Merit Board’s motion to dismiss Buncich’s complaint; (2) whether the trial court erred in concluding that Buncich was the winner of a contested Merit Board election; and (3) whether there was sufficient evidence to determine that Buncich was qualified to be a member of the Merit Board. We affirm.

[Update 7/10/07] The Gary Post Tribune reports today: "The Court of Appeals of Indiana upheld a ruling by Lake Superior Court Judge Robert Pete that Buncich did receive enough votes to claim a majority win, according to the ruling. The Merit Board had originally prevented Buncich from taking his seat after he received 83 votes from the 120 officers who cast them. The board claimed he needed a majority of all eligible voters." The NWI Times adds in this story: "The appeals court ruled that, under the merit board's bylaws, a majority is determined by the number of votes cast, not those eligible to vote. "

NFP civil opinions today (1):

Matter of J.H.; Dara L. Boardman Butler v. Terry L. Hillard (NFP) - "Dara L. Boardman Butler (“Mother”) appeals the trial court’s grant of the petition for modification of custody filed by Terry L. Hillard (“Father”) regarding their son, J.H. We affirm and remand."

NFP criminal opinions today (1):

Linda L. Millender v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - Still More on hospital competition in NW Indiana

Yesterday the Gary Post Tribune run a story by Mark Taylor headlined "New hospitals drive up medical costs." See the ILB entry here.

Today Taylor has another story, this one headed "Hospitals in Indiana don't have to prove need exists." Some quotes:

Unlike neighboring Illinois, Indiana has no "certificate of need law" requiring a state agency to license and approve new hospital proposals, a costly and lengthy process with no guarantee of success.

Indiana's legislature abolished its law in 1985 during the Reagan administration era of deregulation. That's opened the door to a competition explosion.

Northwest Indiana, which had no for-profit acute care hospitals 10 years ago, will have five in Lake and Porter counties alone within the next year.

Neighboring Illinois continues to have such regulation. Its Illinois Health Facilities Planning Board, which was plagued by scandals in recent years, has approved only two new non-replacement hospitals in the last 25 years, one of which was rescinded due to allegations of kickbacks and a tainted approval process. In response, the Illinois legislature scheduled the board to expire this year, but offered a 15-month extension through August 2008.

But because Indiana has no certificate of need law, in the last five years 10 hospitals have already opened or are under construction, according to Bob Morr, a spokesman for the Indiana Hospital and Health Association.

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Indiana Law

Ind. Courts - Feature on Court Appointed Special Advocate (CASA) program in Morgan County

From the Martinsville Reporter-Times Sunday, a long feature story on the Morgan County CASA program, writen by Amy Hillenburg. The story begins:

Volunteering to be a Court Appointed Special Advocate for children is not a casual decision. It takes dedication, compassion and training, said Kelly Bray, Morgan County CASA coordinator.

“They attend a 30-hour training program before they are allowed to take a case. I’m starting one Monday — I call it my ‘summer intensive,’” Bray said.

Volunteers must also undergo criminal and background checks before they represent a child in court. They can attend state and local conferences, but the registration fee for the national conference was $250, Bray said.

She explained that the program was started in Morgan County by former Judge James Harris in 1986. The national organization began in the 1970s in Seattle, Wash., but Indiana has more CASA programs than any other state.

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Indiana Courts

Ind. Courts - Suit searching remedies for Judge Danikolas' firing of his magistrate in 2003 now in federal court

Joe Carlson reports today in the NWI Times in a story that begins:

When Kris Sakelaris finally gets her day in federal court later this month, it might feel like a rerun from an earlier episode of her life.

Sakelaris already succeeded in convincing a group of judicial peers that her former boss, the late Lake Superior Judge James Danikolas, fired her in 2003 because she refused to lie under oath to cover up his misconduct.

The Indiana Judicial Qualifications Commission issued a stinging rebuke of Danikolas in early 2005, saying the long-serving local judge clearly "abused the power of his office" when he fired Sakelaris from her job as his magistrate.

Danikolas died in December 2005, the same week the state Supreme Court ordered him to serve a 60-day suspension after the commission concluded Danikolas abused his power and lied during an investigation of the matter.

But Sakelaris' lawsuit in the matter still is grinding on, federal court records show. She is suing in U.S. District Court in Hammond, arguing she is entitled to back pay and reinstatement of her job because Danikolas violated her First Amendment free speech rights.

Barring a settlement, the four-day trial is set to begin July 30. If Sakelaris wins, the state will pay any damages because superior judges are state employees.

The ILB has a number of entries on this controversy from 2004 and 2005.

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Indiana Courts

Ind. Gov't. - Upshot on: 2nd NW Indiana legislator backs out of resignation

Updating this entry from July 8, the NWI Times reports today that:

PORTAGE | It took precinct committeemen less than 30 minutes Sunday to pick Jack Clem to fill the vacant 10th District House seat.

Duane Cheney, a five-term legislator, failed in an effort to reverse his earlier resignation and keep the seat during the closed caucus at Portage City Hall.

State Democratic Party Chairman Dan Parker said a motion that would have allowed Cheney to rescind his resignation failed.

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Indiana Government

Law - Chesterton woman effects law change in Nevada after her son's murder there

Susan O'Leary writes today in the NWI Times, under the headline "Nevada law is Chesterton man's legacy," about a Chesterton woman's efforts to change Nevada law to include a "guilty but mentally ill" verdict. Lacking that option in 2004, the jury found the woman's son's killer "not guilty by reason of insanity," and he was sent to a facility for the criminally insane, but:

Trowbridge-Benko said that six months later, doctors said Kane had been "cured" and was no longer mentally ill. They asserted that the murder was the result of a "drug-induced psychosis" and that Kane should be released.
After communicating with Nevada legislators, Trowbridge-Benko successfully got:
Nevada's Speaker of the House, Barbara Buckley, on her side, Trowbridge-Benko phoned Buckley and met with her.

"She jumped on board and was excited about the changes," said Trowbridge-Benko. "Legislators started calling me back, and I ran with it."

Trowbridge-Benko, the law student, researched and helped draft the law that, beginning Oct. 1, allows Nevada juries a "guilty but mentally ill" verdict and creates a "step-down" program for conditional release of such offenders.

With this verdict, offenders are held accountable and may receive treatment. If and when they are considered no longer mentally ill, they must complete a series of systematic and supervised steps before they are released. They also remain under the court's jurisdiction for 10 years.

Trowbridge-Benko said the new law also will determine the fate of Michael Kane.

Kane is allowed a hearing every six months to discuss his release, but so far, the judge has denied his requests. Trowbridge-Benko has flown to Nevada for each of his five hearings.

"He can appeal this, but, hopefully, we're done," said Trowbridge-Benko. "If not -- if he decides to push it -- then I'll be right there. He can push, but I'll push harder."

Trowbridge-Benko stood next to Nevada Gov. Jim Gibbons at the signing of NRS 193 June 4.

"I was thrown into the judicial system," said Trowbridge-Benko. "It's been an education, and I've met some wonderful people in Nevada. Although the new law is big news in Nevada and brings about welcome change, Trowbridge-Benko said it doesn't change a lot back home in Indiana.

And yes, Indiana does have the option of a "guilty but mentally ill" verdict.

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to General Law Related

Courts - Kentucky lawyers debate 'squeal rules'

Andrew Wolfson of the Louisville Courier Journal has this report today. Here are a few quotes from the story:

At the same time Kentucky is grappling with one of its largest legal scandals, the state bar's governing board has voted against requiring lawyers to report misconduct of other attorneys and judges.

Kentucky is one of four states that don't require such reporting, which the American Bar Association says should be mandatory because lawyers are in the best position to "observe and evaluate the conduct of other attorneys."

Indiana has had such a rule on the books since the late 1970s. * * *

Kentucky had a mandatory reporting requirement until 1990, when the court dropped it because "we didn't think lawyers should be policemen," then-Chief Justice Robert Stephens said at the time.

Such requirements are known as "squeal rules," although supporters say the phrase carries an unfair connotation.

"The notion that it is wrong to report misconduct may be an appropriate ethic for the schoolyard or the gutter, but it's not worthy of those who claim to be professionals," said Monroe Freedman, a Hofstra law school professor who teaches and writes about legal ethics. * * *

Lawyers rarely have been punished in other states for failing to report misconduct. No lawyer has ever been sanctioned in Indiana, for example.

But disciplinary counsel in other states say that complaints have skyrocketed after the few instances in which lawyers have been sanctioned.

In Illinois, complaints jumped after suburban Chicago lawyer James Himmel was suspended for a year in 1988, for failing to turn in an attorney who had taken a client's $35,000 insurance settlement, said chief disciplinary counsel James Grogan.

Complaints filed by lawyers against lawyers grew from "negligible" to more than 500 a year, and now make up 17 to 24 percent of the formal caseload, he said.

The rule has been especially effective in prompting large firms to turn in their own lawyers for billing fraud, Grogan said. "This is one of our favorite rules," he said.

Posted by Marcia Oddi on Monday, July 09, 2007
Posted to Courts in general

Sunday, July 08, 2007

Ind. Gov't. - "The 2002-pay-2003 tax year, when everything went to hell in a court-ordered hand basket"

James Wensits of the South Bend Tribune has an informative article today on property tax assessments. It begins:

SOUTH BEND -- Once upon a time, some remember, everybody's property tax bills were sent out each spring, regular as clockwork.

For the most part, those receiving them paid the spring installment May 10 and the fall installment Nov. 10.

Local government units received their tax distribution checks in June and December of each year, and seldom had to borrow money.

Until, that is, the 2002-pay-2003 tax year, when everything went to hell in a court-ordered hand basket.

Could it be that the Indianapolis Star just doesn't get the new digitial age? Earlier this month I used the helpful property tax data base they provided. Today I can't find a link anywhere on their main page. That in spite of the fact that editor Dennis Ryerson has a long column today bragging "Star helps you navigate way through tax maze." It has many paragraphs listing everything the Star has done, such as "We built a "Property Tax Tool Kit" with relevant stories, background information, the assessment database and other items on our Web site, IndyStar.com." Ok, so where is it. There are NO links to any of the past stories, graphics, databases, etc. Why not a special Property Tax Page, for instance. Like this one in the Lafayette J&C.

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Indiana Government

Ind. Law - Indiana and criminalizing mental illness

Julie Creek writes the "Sunday centerpiece" today in the Fort Wayne Journal Gazette. A sample from the lengthy article:

“In Fort Wayne, the largest mental institution is the Allen County Jail,” said Kathy Bayes, executive director of NAMI, an advocacy and support group for people with mental illness.

Some mentally ill inmates are accused of violent felonies, but many got arrested, at least initially, for using alcohol or drugs to control their symptoms. Others are charged for disturbances they created during mental health crises.

The presence of so many mentally ill inmates in jail raises troubling questions: If police wouldn’t charge a motorist whose car hit a tree after he suffered a heart attack; why charge someone for a non-violent act triggered by a biologically based brain disease?

Across the country, millions of people with serious mental illnesses – the overwhelming majority of whom have committed non-violent offenses – land in a criminal-justice system that isn’t equipped to deal with their problems. And the community mental health centers created to treat the mentally ill struggle to get by on limited resources that Congress may soon restrict even further, all at a time when more effective medications are helping those who get treatment to lead healthy, productive lives.

So why would federal and state officials pour billions into building new prisons to warehouse 2.2 million inmates – up to half of whom are mentally ill – rather than adequately finance community mental health centers?

The loss in human potential and the cost in human suffering are staggering.

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Indiana Law

Ind. Law - Still More on hospital competition in NW Indiana

"Competing hospitals will be good for Porter County" was the headline to an editorial July 4th in the NWI Times - see the ILB entry, as well as links to leading to earlier, related entires, here.

Today the NWI Times' competitor, the Gary Post Tribune, has a story by Mark Taylor headlined "New hospitals drive up medical costs." Some quotes:

Just because another hospital is coming to Northwest Indiana, consumers should not expect competition to drive health care costs down.

That's the prediction of industry experts in the wake of South Bend's Memorial Hospital and Health System's announcement last week it would build a $225 million facility in Valparaiso.

Gene Diamond, regional chief executive officer of the Sisters of St. Francis Health System, said the entry of a new competitor into the market will bring new jobs, expanded services and greater competition to Valparaiso. But it will come with a cost.

"This facility will cost more than $200 million," he said. "The new owners of Porter plan to spend more than $100 million. Who will pay for all that? Will it affect the cost of health care? The answer is undeniably, yes."

That effect could well ripple throughout the region. * * *

[Patricia Hofstra, a Gary attorney who specializes in health care with the Chicago office of law firm Duane Morris,] expects that prices will rise because of the increased number of hospitals, which will likely mean more tests and procedures performed on increasingly more expensive equipment.

"I don't think competition ever brings down health care prices," she said. "Part of that is because most people don't shop based on cost or even know how much it costs."

This echoes earlier ILB observations.

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Indiana Law

Ind. Gov't. - Still More on: 2nd NW Indiana legislator backs out of resignation

Following up on this ILB entry from yesterday, John Byrne of the Gary Post Tribune has a report that begins, aptly:

Once again, Northwest Indiana is a statewide trendsetter in political weirdness.

The recent will-he-or-won't-he-leave-the General Assembly vacillations of Sen. Sam Smith and Rep. Duane Cheney had state Democratic officials scratching their heads and consulting the statute books.

"I can tell you none of us knew the particulars of the resignation rules until we looked them up," state Democratic Chairman Dan Parker said. "We have not encountered this before."

Smith, D-East Chicago, set a new standard Monday when he pulled back his planned resignation and announced he would return to Indianapolis.

Smith said he reconsidered at the urging of his wife and constituents who wanted him to stay, though cynics contend he opted to remain in the senate when he realized his wife didn't have the political support necessary to win the caucus to replace him.

If that is the case, Smith smartly sat back and read the tea leaves after announcing his intention to retire from the General Assembly, without officially filing his resignation letter.

The seat therefore remained Smith's to reclaim, according to Parker.

Cheney, D-Portage, actually filed his resignation papers after purchasing a house near Bloomington he plans to move into with his wife whether or not he continues representing the people of Porter County.

So when Cheney followed Smith's lead and took a mulligan on his retirement Thursday, state party officials told him he would need to reapply for the position.

Joyce Russell of the NWI Times has a story today headlined "Caucus tonight for 10th District."

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Indiana Government

Ind. Law - "New law 'decriminalizes' some teen sex: 'Romeo and Juliet defense' may apply to couples"

Joe Gerrety of the Lafayette Journal & Courier writes today:

For years in Indiana, the age at which a person could legally consent to have sex was 16.

But lawyers for young defendants accused of having sex with 14- and 15-year-olds now can pose a defense against charges of sexual misconduct with a minor.

Public Law 216 [HEA 1386], which went into effect July 1, contains a long list of criminal law changes related to sexual and violent offenses and the Indiana Sex Offender Registry, which has been renamed the Sex and Violent Offender Registry.

Among those changes, the law creates a legal defense, nicknamed the "Romeo and Juliet defense," against charges of sexual misconduct with a minor.

"The change in the law decriminalizes consensual sex among teenagers in a dating relationship if they are within four years age difference," said Larry Landis, executive director of the Indiana Public Defender Council.

Stephen J. Johnson, executive director of the Indiana Prosecuting Attorneys Council, which supported and helped write the new defense, said the change doesn't really lower the age of consent.

It modifies a 1994 law that made sexual misconduct with a minor a separate offense from child molesting as a way of dealing with teenage sexuality, Johnson said.

"We did not view the new defense as a radical change in the law; rather it created what we believed was a relatively narrow defense for certain sexual acts among young people over the age which would qualify for child molestation," Johnson said.

"It did not change the elements of the crime of sexual misconduct with a minor." * * *

The new law could protect an 18-year-old from adult felony charges if he has sex with a 15-year-old girlfriend, for instance.

The defense cannot be asserted if the accused:

# Is 21 or older.

# Uses force, a weapon or drugs, or causes serious bodily injury during the act.

# Has a position of authority or substantial influence over the victim.

# Has committed another sex offense against any other person.

Landis said the law change arose from legislators' concerns that the ever-widening set of crimes forcing people to register as sex offenders was having unintended consequences.

"Initially, it was a narrow list of offenses" that prompted the sex offender registry requirement, Landis said. "It had to be rape, criminal deviate conduct -- some forcible sex act."

Year after year, more offenses were added to the list of convictions requiring registration.

As a result, some sexually active teenagers in consensual, dating relationships wound up with criminal convictions that required lifetime sex offender registration.

"It's debilitating," Landis said. "It affects their ability to get into school, student loans, jobs."

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Indiana Law

Ind. Law - Can we arrest the train conductor?

I heard that a lot when growing up in Chesterton. Chesterton has a park known as Railroad Park that is bordered on the south by the main street, and on the north by many sets of surface-grade railroad tracks -- seemingly all the trains that went east and west in NW Indiana in the 50s crossed through Chesterton at this point, constantly.

Sunday mornings were particularly bad, you could never count on getting to church before services began (which delighted many of us kids) or, if you did make it to church, getting home in time for Sunday dinner (served at noon). Long, long freight trains crossed endlessly. We would count the cars into the hundreds, and just as one ended another would come along from the other direction. Or the first one would slow to a crawl and then start backing up, switching cars onto a siding. The Chesterton Tribune always had letters to the editor demanding to know what could be done.

An opinion piece in Saturday's Terre Haute Tribune-Star proves that the train crossing problem still exists. Some quotes from the article, by Peter C. Ciancone, Communications director, City of Terre Haute, which reviews legal options:

Few objects in Terre Haute have the capacity to evoke road rage more readily than trains. As the Crossroads of America, we see more than our share. As the site of switchyards, we have more than our share of chances to stop at a level crossing as a train passes, or worse, blocks while it stops.

It’s not a new issue. Most of us have heard the urban legend that John Dillinger refused to rob a bank in Terre Haute because he feared being railroaded during his getaway. Relocation of railroads has been a discussion point since at least 1948.

City officials are constantly asked what can be done to remove this annoyance. Let me try to outline how complex this issue is.

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Indiana Law

Ind. Law - New seat belt law may not cover occupants of truck bed

Bryan Corbin of the Evansville Courier & Press has a good story today about Indiana's expanded seat belt requirements (see HEA 1237). The story begins:

Two state lawmakers who helped pass Indiana's new truck seat belt law were surprised to learn a loophole they tried to close still may be open.

The truck seat belt law was intended to prevent accident injuries, and the two lawmakers say they also intended to ban another dangerous practice: passengers riding in the truck beds of moving pickup trucks.

So they are frustrated the new law is not being interpreted that way by police or by the state's planning agency for criminal justice and traffic safety issues. A prosecutor who gave a legal interpretation to police departments statewide said the new law does not specifically prohibit an adult from riding in the bed of a pickup truck.

The prosecutor recommends that police not ticket people for that reason.

Mitch Harper of Fort Wayne Observed picks up on the story here and has included a link to the memo of Deborah Reasoner, Traffic Safety Resource Prosecutor for Indiana Prosecuting Attorneys Council, that includes this in a list of "Does" and "Don'ts":
DON’T: Write seatbelt citations to riders in the beds of pickup trucks or riders in cargo areas of vans.

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Indiana Law

Ind. Decisions - More on: How long has it been since the 7th Circuit heard oral arguments in the legislative prayer case?

The Fort Wayne Journal Gazette's weekly Political Notebook picks up today on the ILB entry from July 3rd on the legislative prayer case, still awaiting a ruling. From today's papers:

Prayer case lingers on

Statehouse insiders are still awaiting a decision by the 7th U.S. Circuit Court of Appeals in Chicago on Indiana’s legislative prayer case.

Oral arguments were heard in September with little happening in the case since then.

Except one thing.

In December, those who sued over the overtly Christian prayers proffered from the House podium filed to remove former Speaker Brian Bosma’s name from the official caption – or title – of the case.

A judge granted the motion in January so that the suit now names the “Speaker of the House of Representatives of the Indiana General Assembly.”

Which, frankly, is what it said in the beginning of the suit.

But Bosma in July 2005 petitioned to have his name specifically added to the suit.

The ILB remembers when Rep. Bosma moved to add his name to the suit, but was unaware of a successful motion "to remove former Speaker Brian Bosma’s name from the official caption – or title – of the case." The 7th Circuit resources still use "Hindrichs v. Bosma ." Unfortunately, the item only states "A judge granted the motion in January."

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Indiana Decisions

Ind. Gov't. - Indiana’s voluntary environmental cleanup program a failure?

Dan Stockman of the Fort Wayne Journal Gazette has a lengthy report today on the failings of Indiana's voluntary cleanup program. Some quotes:

Indiana’s voluntary environmental cleanup program, intended to handle polluted sites quickly and efficiently without courts and lawsuits, is instead marked by delays, years-long cleanups and neighbors kept in the dark about the polluted soil and water nearby.

Indiana Department of Environmental Management’s Voluntary Remediation Program was started in 1993 as a way to speed property transactions: Businesses wanting to sell polluted land could enter a voluntary program to clean up the contamination and avoid a forced cleanup.

But a Journal Gazette analysis of the program shows that some cleanups take so long it appears companies are instead using the program to avoid any cleanup at all. There are 353 active sites in the program, including 35 in northeast Indiana. Seventeen of those are in Fort Wayne and New Haven. * * *

“Voluntary programs as an alternative to regulations – there’s not much of a track record that shows it works for the environment,” said Rebecca Stanfield, state director of the citizen environmental advocacy group Environment Illinois. “It may work as a way of having a program that is ostensibly there to address the problem, but study after study shows voluntary programs don’t work to clean up pollution.”

Among The Journal Gazette’s findings:

• Nearly nine of 10 active sites are past the six-month deadline for submitting a cleanup plan.

• Nearly two-thirds of those past the deadline have not submitted a cleanup plan in three years or more. The average is more than four years.

• One site, Siemens Electric in Princeton, has been without a cleanup plan for more than 10 years. Thirty-five other sites have been without cleanup plans for more than five years.

• Among sites that do have cleanup plans, it took an average of 22 months for the plan to be submitted. The deadline is six months.

• For sites with cleanup plans, it took IDEM an average 19 months to approve them so work could begin. The review is supposed to take 90 days. Two cleanup plans took more than eight years to approve.

• The backlog of cases within the program has grown every year of its existence but one, and it now stands at 200 cases.

Because of delays found at every step in the program – and because the state does not require polluters to tell their neighbors until they have an approved cleanup plan – residents living near contamination can expect to wait an average of more than four years before they are even told it exists. * * *

Indiana Sen. Beverly Gard, R-Greenfield, said she understands the voluntary cleanup program will be slower than people like because it is voluntary and the state is not forcing polluters to perform.

But the delays uncovered by the newspaper are disturbing, she said, and need to be examined. Gard is chairwoman of the Senate’s Energy and Environmental Affairs Committee and chairwoman of the Environmental Quality Service Council interim study committee. She said the study committee will review IDEM programs this summer and may ask for the voluntary cleanup program to be included in the review.

“IDEM’s understaffed, and they may very well be slow in getting these things done,” Gard said. “It wouldn’t surprise me.”

But it should be a surprise to taxpayers, because the companies in the program pay for IDEM’s work.

“Each project is entirely self-funded,” [Bill Holland, the senior environmental manager in IDEM’s Voluntary Remediation Program] said. “They receive bills for review time. … They are paying their own freight.”

And yet, the backlog of sites in the program without an approved cleanup plan has grown every year but one since it started in 1993: By the end of 2006, there were 200 cases in the pipeline. And the logjam can only be expected to grow, since, on average, IDEM moves 22 cases a year while 28 new ones enter.

Here is the state's Voluntary Remediation Program (VRP) main page.

It may be noteworthy that the last report on project statistics is dated Sept. 30, 2003: Project Statistics as of September 30, 2003. The final step marking completion of the cleanup process is the issuance of the Covenant Not to Sue (CNTS). Notice that this report never gives that total -- the closest the report comes is "Covenant Not To Sue stage (in process or issued):" The ILB has heard in the past that getting through this final sign-off stage can take years.

Another link from the main page leads to the VRP Project Site List *updated June 2007*. As noted in the Journal Gazette story, "the state does not require polluters to tell their neighbors until they have an approved cleanup plan."

Participants in the voluntary program are not required to make their contamination public until they have an approved cleanup plan from IDEM.

With an average eight months between application and a signed agreement, an average 22 months before a cleanup plan is submitted and an average 19 months for IDEM to approve the plan, neighbors can expect to wait an average of more than four years before they are told about the pollution near their homes, schools or workplace.

That cleanup plan is known as the VRP. IDEM notes that its "updated June 2007" list does not include sites that have not signed the VRP. Further, the IDEM list does not even include a numerical total for these pre-VRA sites:
All VRP sites are considered confidential until the applicant and IDEM sign the Voluntary Remediation Agreement (VRA) which is a contractual agreement. No work is performed by IDEM on a project until the VRA is executed. Confidential sites do not appear on this list. It should also be noted that terminated and withdrawn sites are not on this list.

The June 2007 site list is available from IDEM only as an Excel document. Further, despite some effort, the ILB has been unable to sort it by "status." There are currently 591 entires on the IDEM list. The ILB has converted the list to html for readers, although without the sorting function, it has limited usefulness (although you can use your browser search).

ILB Note: The Journal Gazette story quotes the head of the IDEM program as stating:

Holland said he was not aware companies were dragging their feet on submitting cleanup plans but acknowledged that when the agency compiled the data for The Journal Gazette that it was the first time it had ever been examined that way.
Given the focus on government metrics in the past few years, that statement, plus the scarcity of information on the IDEM page, is somewhat amazing.

For starts, it would be a good thing if IDEM (or the Fort Wayne paper) would make available the data compiled for today's story.

[More] The J-G also has an editorial today that concludes:

Almost nine out of 10 sites are past the six-month deadline for submitting such plans. Many of the companies past the deadline for submitting cleanup plans are more than four years over the deadline. IDEM has only ejected 20 of the nearly 600 sites that entered the program.

State officials need to enforce deadlines with penalties when they are missed. They should restructure the program to make notifying neighbors of contamination an early step that polluting companies must take to be eligible for the voluntary program. Now, notification is delayed until after the cleanup plan is approved – which can take four years or longer.

The benefits of a voluntary program are lost when environmental management officials allow companies to drag their feet and delay cleanup beyond reasonable limits. The program will continue to fail without stricter enforcement.

Posted by Marcia Oddi on Sunday, July 08, 2007
Posted to Environment | Indiana Government | Indiana economic development

Saturday, July 07, 2007

Courts - "Gavel to Gavel (to Gavel to Gavel) Coverage"

Sunday's NY Times looks at the TV judges. A sample from the feature by Alessandra Stanley:

Unheeded gripes are what keep therapists in business, inflame bloggers and clog the dockets of small claims court. And they are one reason that both “Judge Judy,” the top-rated court show now celebrating its 11th year on the air, and “The People’s Court,” which first surfaced in 1981, are so enduring.

They help explain why CBS Television Distribution, the syndicator of both “Judge Judy” and “Judge Joe Brown,” is contemplating yet another courtroom show with Larry Seidlin, the judge who weepily adjudicated the dispute over Anna Nicole Smith’s remains.

In September Sony Pictures TV, home to “Judge Hatchett” and “Judge Maria Lopez,” plans to unveil “Judge David Young,” who will be the first openly gay arbiter in the genre — a new niche for an old format. There are at least as many of these so-called syndi-court judges as there are Supreme Court justices, and they are better known than their brethren in Washington. The ratings for “Judge Judy” have slipped, but she is the chief justice of her field and the star of one of the Top 10 syndicated shows, with about 6.4 million viewers, just behind “Dr. Phil,” who has 6.6 million. (Oprah Winfrey is still queen with 8.3 million.)

The judges are real but retired. And petitioners are recruited with television ads, as well as in small claims court where producers hunt down cases suited to the cameras. The chosen sign a waiver agreeing that the television arbitration is final and cannot be pursued elsewhere, though in some cases rulings have been overturned. The awards do not exceed $5,000, the small claims limit in most states, but money is not the real object. It’s campy, hammed up summary justice, but it feeds the viewers’ vicarious craving for told-you-so retribution

From later in the article:
When “The People’s Court” was canceled in 1993 after a 12-year run under Judge Joseph A. Wapner, it seemed the allure had dissipated. Then the O. J. Simpson trial and the rise of Court TV quickened an appetite for small-screen justice. The show came back in 1997 with Edward I. Koch, the former New York mayor, presiding; then Judge Jerry Sheindlin, husband of Judge Judy, took over. At the moment the gavel is held by the no-nonsense Judge Marilyn Milian.

The disputes in these shows are minor, the facts are pared to sound bites, and even the best-coached defendants are self-conscious and stilted. But raw emotions seep through nonetheless.

Recriminations vary in scope and intensity, but the litigants all seem to come from the same social pool: almost all are ambassadors from a nation of have-nots, working class or unemployed, overweight and in poor health, many of them without insurance or connections. Socialites suing their plastic surgeons have better ways to seek amends. It’s Michael Moore populism, and the cumulative effect is depressing, a tableau of broken homes, bad luck and desperation snatched from “Miss Lonelyhearts.”

Great writing!

Posted by Marcia Oddi on Saturday, July 07, 2007
Posted to Courts in general

Law - "Executives Rank Law Firms on Service and 'Arrogance'"

Zusha Elinson and Douglas Malan write today in The Connecticut Law Tribune:

Eric I. Cohen was disturbed by the numbers he was seeing. The senior vice president and general counsel for the Terex Corp., based in Westport, Conn., recalls facing the prospect of a "large bill" from outside counsel who were handling a matter requiring the production of scores of written documents.

Unhappy with the quoted price, Cohen floated the idea of outsourcing part of the job to lawyers in India. That, he said, would reduce legal fees from a couple hundred dollars an hour for lawyers in the United States to less than $30 per hour. The outside counsel firm, which Cohen would not name, responded by dropping its hourly charge to the mid-$30 range.

Terex Corp., which makes backhoes, mining trucks and other large pieces of construction equipment, is hardly the only big company to have issues with its outside counsel. More and more, American corporations are dissatisfied with their law firms. Citing spiraling costs, poor communication, lack of urgency on important matters and general arrogance, just 32 percent of executives responding to a recent survey said they liked their outside counsel enough to recommend the firm to someone else.

"Overall client satisfaction is very low," said Michael Rynowecer, president of The BTI Consulting Group Inc., which is based in Boston and released its sixth annual survey in 2006. "By focusing on who does well, you learn what can be done to improve that." * * *

When corporations say they are dissatisfied with their outside counsel, it usually means "they think they're getting taken for a ride with the costs," said Cohen, who negotiated discounts with the law firms his company uses by asking them to use lower-cost lawyers in the Midwest for document preparation rather than higher-priced New York City-based associates. [emphasis added by ILB]

BTI also compiled a list of the "most arrogant" law firms. Arrogance was defined, in part, by high fees, a refusal to take on work and poor experience in certain matters.

Posted by Marcia Oddi on Saturday, July 07, 2007
Posted to General Law Related

Law - Major law firms supporting conservative pro bono causes

"Shhh! Pro Bono's Not Just for Liberals Anymore: Very quietly, big law firms are taking on conservative causes as well," is the title to an article by Vivia Chen today in The American Lawyer. (This report may be read in conjunction with the ILB entry from July 2nd headed "Attorney who represented Seattle parents in a race-based lawsuit aims to recover his pro bono legal costs.") Today's very long and informative story begins:

They are not the poor, the infirm or the otherwise dispossessed. Instead, Harry Korrell III's pro bono clients are parents -- predominantly white -- from a comfortable suburb of Seattle. Last fall, Korrell, a partner at Davis Wright & Tremaine, took their case to the U.S. Supreme Court, arguing against the Seattle school choice program in which race is a factor in the allocation of coveted slots. In a controversial 5-4 decision in June, the Court ruled against the use of race in public school enrollment.

Even before the decision, the case sparked fury far beyond Seattle, galvanizing both supporters and foes of affirmative action. "People view it as reverse discrimination," says Korrell. "It's not popular." Even some of Korrell's partners disagreed with his view of the case. Nevertheless, Korrell says, Davis Wright has supported his work -- and he says that the case has not caused client defections or hiring problems. "We do well in recruiting minority lawyers," he says. "If a lawyer is afraid of coming here because of a case I handled, I wouldn't be sure of that person's judgment."

Korrell's case exemplifies a quiet phenomenon, 20 years in the making: major law firms supporting conservative pro bono causes. Contrary to conventional wisdom, pro bono is not just the province of liberals. Bolstered by influential groups like the Federalist Society, religious organizations and pro bono advocates, big firms now regularly champion libertarian causes such as free speech and property rights. More surprisingly, some are challenging race-based policies and representing groups opposed to gay rights and abortion. Indeed, the politics of pro bono are evolving -- they're more fluid than the stark line usually drawn between the left and the right. Conservative causes are not monolithic, and the distinctions between liberals and conservatives sometimes blur.

Posted by Marcia Oddi on Saturday, July 07, 2007
Posted to General Law Related

Ind. Gov't. - More on: 2nd NW Indiana legislator backs out of resignation

"Cheney can't serve living 200 miles south" is the title to an editorial today in the Gary Post-Tribune. Some quotes:

Last month, [Former state Rep. Duane Cheney] announced he was resigning from state office midway through his term and moving from Portage to land he and his wife purchased near downstate Spencer. * * *

Yet, this week, Cheney inexplicably changed his mind. He wants a mulligan on that resignation letter.

Now, he says he can still represent Portage from about 200 miles to the south. He says he would "maintain" an apartment in Portage. Although there's no law that forbids it, we think it's a bad idea.

BTW, the ILB recalls that a recently retired state senator served for years in a leadership position after he had retired and moved to the Michigan.

[More] According to this story in the Chesterton Tribune yesterday, Cheney likely will continue to represent the district. Here is a somewhat confusing selection from the story:

Democrat precinct committee members will meet at 6:30 p.m. this Sunday in Portage City Hall to decide what has become an unusual contest for the vacant 10th district House seat. * * *

[Jennifer Wagner, communication specialist for the Indiana State Democrat Party] said that if the Democrat caucus votes to rescind Cheney’s resignation, Cheney will remain as state representative. But if the caucus does not grant Cheney’s request, Clem will be the new state representative, since he is the only candidate to file with the state party by Thursday’s 6:30 p.m. deadline.

Cheney cannot file as a candidate to keep his state office. According to state law, a candidate who causes a vacancy cannot file as a candidate for the seat, Wagner said. So the only option for Cheney to stay in office at this point is to ask that his resignation is rescinded.

Posted by Marcia Oddi on Saturday, July 07, 2007
Posted to Indiana Government

Law - Kentucky General Assembly news

Governor Fletcher of Kentucky called the General Assembly into special session last week. On Thursday, July 5th, the first day of the session, the House met and adjourned. Deborah Yetter and Joseph Gerth of the Louisville Courier Journal have the story here. It begins:

FRANKFORT, Ky. -- In a swift rebuke to Gov. Ernie Fletcher, the House met yesterday and adjourned on the first day of a special session -- called to consider matters that Fletcher said couldn't wait until the next regular session begins in January.

Democrats who control the House said there is no urgency to act on any of the 67 items Fletcher put in his call for the session, including proposed incentives for coal-conversion plants.

The decision to adjourn came on a voice vote after passage of a resolution, largely along party lines, asking the Republican-controlled Senate to call it quits as well.

But the Senate rejected the request, with leaders saying they plan to remain in session and begin holding hearings on legislation today. At the same time, Senate Democratic Floor Leader Ed Worley of Richmond said most of his members will not take part. * * *

Senate President David Williams, R-Burkesville, said in a speech on the Senate floor that he believes the House action is unconstitutional and urged its members to reconsider.

"They should come back to the table," he said.

But Williams said he would not be involved if the House's action is challenged in court.

"I will not be a party to using the court system to try to force the other body back into any active role," he said.

Posted by Marcia Oddi on Saturday, July 07, 2007
Posted to General Law Related

Friday, July 06, 2007

Law - Make that "big law" and de-equitization

Peter Lattman of the WSJ Blog has a fascinating entry this Friday afternoon headed "De-Equitization: A Buzzword Sweeping Big Law Nation." A sample:

The expectation had always been that if associates worked like pack mules for seven or eight years, the stars among them would have a shot at being anointed an “equity partner,” who derives his or her income largely from the firm’s profits. Now, that climb has not only gotten longer — often nine years or more — but the ladder, once climbed, can be yanked away.

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to General Law Related

Ind. Decisions - "Woman owes City of Mitchell $38,200"

Faith Hannah of the Bedford Times-Mail reports today:

MITCHELL — The Indiana Supreme Court sided with the city of Mitchell to make a property owner, literally, clean up her act.

Marilyn Barlow, 903 Lawrence St., failed to comply to several city ordinances regarding her residential property.

“It was a junk yard,” said Byron Steele, city attorney. * * *

Steele said the city filed in small claims court, but the judge did not impose the maximum fine. “She paid the judgment off and didn’t fix anything,” he added.

As a result, the city of Mitchell took a higher approach and filed another complaint on June 21, 2005, with Lawrence Superior Court. It ruled that she pay the city $38,200 in fines and court costs.

Barlow’s attorney, Susan Schultz of Corydon, said the original sum was twice that amount. Although it was reduced, she considered the amount outrageous.

“I believe this is a case of selective enforcement,” Schultz added. She said she had seen other properties in the same condition as Barlow’s home.

But Watson said he only knows of one other property that is similar to hers, and she was the first person he had taken to court. * * *

[The report omits the step where the property owner took the case to the Court of Appeals and lost - see the March 22nd ILB entry here - 2nd case.]

Barlow and her attorney appealed again to transfer the case to the Indiana Supreme Court on March 22. However, the court denied the appeal on June 21. Therefore, ending the two-year battle. [See the June 29th transfer report here.]

As of Thursday, Watson said the property still appeared to be in the same shape as before. “I can show you pictures of her property — I know from two years ago — of stuff that was then that is there now,” Watson said. “It’s still a mess.”

He added that he will start all over if she does not clean up the property.

Steele believes the outcome of the case will make people take another look at their own property. “This case proves the city is serious about enforcing its ordinances.”

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Ind. Sup.Ct. Decisions

Environment - More on: Post-Raponas wetlands guidelines issued, criticized

On June 18th ILB posted this entry, quoting from a NY Times editorial that began:

The Environmental Protection Agency and the Army Corps of Engineers have finally issued guidelines about which streams and wetlands are subject to federal jurisdiction. Unfortunately, they are just as confusing as the Supreme Court decision they are supposed to carry out — guaranteeing endless litigation, while increasing the chances that valuable wetlands will be needlessly destroyed.
Today the Times has a page 1 story by John M. Broder that begins:
After a concerted lobbying effort by property developers, mine owners and farm groups, the Bush administration scaled back proposed guidelines for enforcing a key Supreme Court ruling governing protected wetlands and streams.

The administration last fall prepared broad new rules for interpreting the decision, handed down by a divided Supreme Court in June 2006, that could have brought thousands of small streams and wetlands under the protection of the Clean Water Act of 1972. The draft guidelines, for example, would allow the government to protect marsh lands and temporary ponds that form during heavy rains if they could potentially affect water quality in a nearby navigable waterway.

But just before the new guidelines were to be issued last September, they were pulled back in the face of objections from lobbyists and lawyers for groups concerned that the rules could lead to federal protection of isolated and insignificant swamps, potholes and ditches.

The Environmental Protection Agency and the Army Corps of Engineers, charged with enforcing the Clean Water Act, finally issued new guidelines last month, which environmental and recreational groups said were much more narrowly drawn. These groups argue that the final guidelines will leave thousands of sensitive wetlands and streams unprotected.

The changes in wording between the September and June versions of the guidelines were subtle, hinging on broad scientific questions raised by the Supreme Court ruling over the nature of wetlands and natural drainage systems.

The most nettlesome of these issues was whether regulators need to show that a wetland is directly connected to a navigable body of water in deciding if they have jurisdiction to require permits under the Clean Water Act. The alternate reading, favored by environmental groups, is that it is enough to prove that a wetland or stream is part of a large watershed that drains into such waters.

Here is the U.S. EPA webpage containing the new wetlands guidance and other materials.

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 16 NFP)

For publication opinions today (2):

J.B. v. State of Indiana - "In this interlocutory appeal, minor J.B. contends the juvenile court erred in denying his motion to suppress evidence in a juvenile delinquency case in which J.B. was charged with having committed an act that would constitute the crime of burglary if he were an adult. J.B. frames the issue presented for review as follows: Did the juvenile court err in denying the motion to suppress fingerprint evidence where the file containing the fingerprints was unlawfully stored and illegally accessed by an unauthorized person, and the State did not prove the fingerprints were obtained in compliance with the applicable statute governing obtaining fingerprints from children? We affirm."

In Tyhesha Lemon v. State of Indiana, an 11-page opinion, Judge Mathias writes:

Tyhesha Lemon (“Lemon”) was convicted in Marion Superior Court of Class A misdemeanor battery. She appeals and argues that the evidence presented is insufficient to support her battery conviction. Concluding that the evidence is insufficient to support Lemon’s conviction, we reverse. * * *

[Lemon entered the parking lot of Handleman Company to place a valentine card on the windshield of a Handleman employee. Lemon was a former girlfriend of the employee.]

For its last argument, the State claims that Lemon had no right to resist Mishler’s unlawful arrest because, as a trespasser, she was not in a place where she had a right to be. Initially, we note that Lemon was not arrested by Indianapolis Police for trespass, nor was she charged with or tried for trespass. We believe that the element of communication of denial of entry or request to leave necessarily implies a reasonable period of time for the person receiving that communication to leave of her/his own volition. Mishler did not give Lemon such a reasonable period of time to comply, and therefore, in our view, no trespass occurred.[4]

Conclusion. The simple act of trespass, without the threat of imminent violence or destruction of property, or actual violence or destruction of property on the part of the trespasser, does not sanction the use of unreasonable force by a landowner or his agent to terminate the trespass. Furthermore, an alleged trespasser does not give up her/his common law and statutory right to resist the use of unreasonable force by a landowner or her/his agent. In the case before us, Lemon’s identity was well known and a simple 911 call or subsequent complaint filed with the prosecutor would have been the appropriate and lawful response to Lemon’s conduct.

Under these facts and circumstances, Lemon was justified in using reasonable force to resist Mishler’s unlawful and unreasonable use of force, and the evidence presented was not sufficient to support her conviction of Class A misdemeanor battery. Reversed.
_______
[Footnote 4 discusses other state decisions re self-defense by an alleged trespasser.]

Contrast this decision, where the trespasser has definitely entered the property, and this 10/12/04 decision of the Court of Appeals (ILB entry here - 1st case) in the case of Abel A. Alves v. State of Indiana. where the opinion read in part:
On October 12, 2002, Robert Adams saw a green Honda parked off the road beside property located on County Road 650 South in Delaware County, Indiana. Adams knew the owners of the property, William and Kay Whitehead, and did not recognize the Honda. Adams pulled his vehicle off the road facing the Honda. He saw Carol Blakney at the wheel of the Honda, and Alves standing on a gate about 30 to 40 feet from the edge of the road. The gate had a black and yellow “No Trespassing” sign attached to it.

Adams asked Alves and Blakney their names and wrote down their license number. Neither Alves nor Blakney had permission from the Whiteheads to enter their property. * * *

While there was no evidence Alves had opened or climbed over the gate and walked past the “No Trespassing” sign, the jury could have reasonably inferred that at least part of his body entered the airspace above the Whiteheads’ property. As a result, there was sufficient evidence to sustain his conviction of trespass. Affirmed.

See the companion case, involving Alves' wife, here.

Joel M. Schumm v. State of Indiana - This is an opinion on rehearing. The ILB entry on the initial, May 21st opinion, is here (3rd case). Today's opinion concludes: "Subject to the above clarifications, we affirm our earlier opinion.."

Keon D. Jones v. State of Indiana


NFP civil opinions today (4):

James H. Fincher, Sr. v. Solar Sources, Inc. (NFP) - This personal injury case involves a trucking accident where the truck was hauling coal sludge.

Fort Wayne Roofing & Sheet Metal Corporation v. Corporation for Community Housing and Wells Fargo Bank (NFP) - "Fort Wayne Roofing and Sheet Metal Corp. (“FW Roofing”) appeals the trial court’s summary judgment in favor of Wells Fargo Bank (“Wells Fargo”). FW Roofing raises two issues, which we restate as one: whether the trial court erred when it found that FW Roofing was not a third-party beneficiary of the loan agreement between Allen County and Corporation for Community Housing (“Developer”) to which Wells Fargo was Trustee. We affirm."

Lake County Board of Zoning Appeals, et al. v. James C. & Pamela J. Thorn (NFP) - "The trial court properly granted a permanent injunction to the Thorns ordering Lake County to issue building permits in Phase I of Thornmeadow. The trial court did not abuse its discretion in denying Lake County’s motion to withdraw and amend its admissions. The orders of the trial court are therefore affirmed."

Termination of the Parent-Child Relationship of W.Y.; Gerald "Joey" Youngblood v. Indiana Department of Child Services (NFP) - termination, affirmed.

NFP criminal opinions today (12):

Waylon Sadler v. State of Indiana (NFP)

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

Jeff Burns v. State of Indiana (NFP)

Daniel Fugate v. State of Indiana (NFP)

John N. Applegate v. State of Indiana (NFP)

Bobby E. Henard v. State of Indiana (NFP)

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

Wilson Bails v. State of Indiana (NFP)

Michael Bradley, Jr. v. State of Indiana (NFP)

Dennis Snyder v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In U.S. v. Jong Hi Bek (ND Ind., Hudge Allen Sharp), an 18-page opinion, Judge Williams writes:

When Dr. Jong Hi Bek arrived at his pain-management clinic in Gary, Indiana each morning, the line of people waiting to get prescription drugs often ran down to the end of the block. Those lines caught the attention of law enforcement, leading to Bek’s investigation and eventual arrest for the illegal distribution of prescription drugs. Bek was convicted by a jury on twenty-six counts of conspiring to distribute and distributing controlled substances, and committing health care fraud. On appeal, Bek argues that the jury’s verdict was not supported by sufficient evidence, the district court should have excluded certain medical evidence because it was subject to a physician-patient privilege and protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the government interfered with his defense and choice of counsel by vindictively prosecuting his attorney. We agree with Bek that the evidence on count nine regarding his treatment of patient Barbara W. was insufficient to support the jury’s verdict. But we affirm the district court’s judgment on the remaining counts because the evidence was sufficient and the medical records were not protected by any privilege or by HIPAA. Finally, we previously ruled in another case that Bek’s counsel was not vindictively prosecuted, so we also reject this argument.

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Appeals court upholds conviction in ‘homicide by heart attack’ case"

The decision is Charles E. Jackson v. State of Indiana (NFP), dated 7/5/07. The South Bend Tribune reports today:

An Indiana Court of Appeals on Thursday upheld a judge’s 2006 conviction of “homicide by heart attack” in the death of Dick E. Priebe Jr.

Charles E. Jackson, 53, is serving an 18-year sentence for beating the 47-year-old Priebe to death.

While there was never a search for a suspect - Jackson confessed his actions to police - prosecutors had to look for the right offense to charge Jackson with. That’s because Priebe died both of pre-existing health problems and of the blows that Jackson administered to him on a Monday night in March 2005, when the two men opted to settle a verbal dispute “like men.” * * *

In his appeal, Jackson argued that there wasn’t enough evidence to convict him of aggravated battery because Priebe had died of a heart attack.

Chief Judge Baker's opinion does not contain the phrase "death by heart attack" but does conclude:
In sum, the State presented sufficient evidence for a reasonable fact finder to conclude that Jackson knowingly or intentionally inflicted injuries on Priebe, that he was aware of the high probability that his conduct would lead to a substantial risk of death or protracted loss or impairment of the function of a bodily organ, and that he consciously set out to engage in that conduct. Jackson’s unpersuasive arguments on appeal are an invitation for us to reweigh the evidence and address the credibility of witnesses—a practice in which we do not engage when reviewing the sufficiency of the evidence.

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Ind. App.Ct. Decisions

Environment - Even more on: Communities seek to regulate outdoor wood-fired boilers

Adding to the ILB's now very long list of stories about the regulation of wood-fired boilers is this brief report from the Michigan City News-Dispatch:

LaPORTE - A moratorium was placed on installation of new outdoor wood-fired boilers by LaPorte county commissioners until the final reading of a county ordinance at an Aug. 7 meeting.

At Tuesday's commission meeting, the ordinance was adopted by title on first reading.

Jim Donnelly, a key proponent of OWB regulation, thanked the commissioners for the ordinance, calling it "a good start."

Donnelly said he and Conni Clay of the Save the Dunes Council would like to share the "reams of information" they have gathered on the subject.

An ILB entry dated March 2, 2007 began:
The ILB has had a slew of entries on the topic of regulating outdoor wood-fired boilers/furnaces. First there was outrage from a southern Indiana legislator when the Dept. of Environmental Management (IDEM) published a First Notice asking for public comments on the possibility of regulating the outdoor furnaces/boilers. IDEM was accused of "hiding" the notice in the Indiana Register. (Note that this was back when the serial, paginated, monthly Indiana Register was still availble online.) IDEM backtracked and has done nothing since.

In the face of public demand, local communities all over the state have since made efforts to regulate the outdoor furances/boilers on their own. You may follow much of the history in this list [see above] of ILB entries.

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Environment

Ind. Law - "Bankruptcies up, again" headlines Star

"More than a year after a change in the law sharply reduced personal bankruptcies, the number of Hoosiers filing for bankruptcy is on the rise again," begins the lead story today in the Indianapolis Star, reported by Kathryn Prater. A graphic accompanying the printed story, by not reproduced in the online version, however, shows that filings remain well below the more stringent changes in the bankruptcy law which took effect in October of 2005:

Although the number of filings is still about half the level seen before the bankruptcy law was toughened in 2005, attorneys say credit-card debt and adjustable-rate mortgages are driving more people into bankruptcy.

Southern and Central Indiana residents filed 7,694 bankruptcy petitions with the U.S. Bankruptcy Court of the Southern District of Indiana from Jan. 1 to June 7.

That's an increase of almost 70 percent from a year ago, when there were 4,570 filings. But the 2006 figures might have been artificially low, experts say, because people who would have filed in early 2006 had rushed to file in 2005 while more lenient rules were still in place.

Before the law changed in October 2005, the number of filings in the Southern District averaged 14,775 from Jan. 1 to June 7 of that year.

There was a similar drop and rebound nationally.

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Indiana Law

Ind. Gov't. - More on: Governor announces new Public Access Counselor, effective immediately

In this June 29th entry, the ILB quoted a press release from the Governor's office, announcing the appointment of a new public access counselor, effective immediately.

Yesterday this editorial in the NWI Times asked "Why didn't Gov. Daniels reappoint Indiana's public access counselor?" It begins:

Indiana has a new public access counselor, Heather Willis Neal. Nothing against Neal, but what happened to the former public access counselor?

Karen Davis, whose four-year term expired Saturday, was replaced without explanation by Gov. Mitch Daniels. Why? She had done an excellent job in that position.

The ILB has seen no reports, however, of press efforts to interview Ms. Davis to see whether, for instance, she had anticipated reappointment.

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Indiana Government

Ind. Gov't. - 2nd NW Indiana legislator backs out of resignation

Now there are two. When July began there were four - in this June 22nd ILB entry, it was reported that three NW Indiana legislators had resigned and that a fourth - Tenth District State Rep. Duane Cheney, D-Portage - was anticipated. Later stories which the ILB did not cover, confirmed the resignation. There were rumors of many more resignations in the works.

This July 3rd ILB entry quotes reports that Lake County Senator Sam Smith has retracted his plan to resign. And today Joyce Russell reports in the NWI Times that now-former Rep. Chaney wants his House seat back, the one he "resigned just over a week ago."

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Indiana Government

Environment - More on the recent statewide strategic planning meeting on how to restrict concentrated animal feeding operations (CAFOs)

Seth Slabaugh of the Muncie Star-Press reports today under the headline "CAFO foes applaud BSU study: The study shows the pork industries in Jay and Randolph counties are "almost irrelevant" to the economy, a CAFO opponent says." Some quotes:

HARTFORD CITY -- Opponents of concentrated animal feeding operations are citing a Ball State University study as proof that CAFOs provide very little economic impact in East Central Indiana.

"Hog farms in this area are absolutely horrible as an economic generator, and that's what they've written up," said economist Bill Weida, referring to the findings of a BSU study of the pork production industry in Jay and Randolph counties. "It is creating so little economic activity that it's almost irrelevant." * * *

Weida, an economist for GRACE Family Farm Project -- whose mission is to eliminate factory farming in favor of a sustainable food production system that is healthful, humane, economically viable and ecologically sound -- spoke here at a recent statewide conference on how to restrict CAFOs.

Weida, from Idaho, spent most of his keynote speech discussing BSU's analysis, published four months ago, of the pork industries in Jay and Randolph counties.

According to GRACE, feed for vertically integrated CAFOs is imported from the cheapest source, and most major purchases come from the outside. The money made by CAFOs is sent back outside the region, and the manure generated by CAFOs is deposited in the region. In addition, the organization says, CAFOs are designed to use as little labor as possible, and that labor is exposed to hazardous gases, thus few jobs are created and they're not desirable.

That's exactly what the BSU report confirms, according to Weida. * * *

The study found that the hog industries in the two counties produce "virtually no multiplier ... or money circulating around the region to stimulate the local economy," Weida said.

The reason? "As the last page of the report states, if you really want to capture the benefits (from the rapid expansion of the hog industry in the two counties) you've got to get them to buy locally," Weida said. "But they're not going to buy locally because they are vertically integrated corporate organizations that make money buying from themselves. The study states they're not even buying their feed locally. That's why the economic impact is so low."

(The study also recommends building hog-slaughtering plants in Jay and Randolph counties if they want to generate more economic activity.)

"The report says if you are interested in reinvigorating this part of the state, there are 77 better things you can do here than hogs," Weida said. "Among them are things like raising soybeans, auto repairs, computer programming, the list goes on and on." * * *

"We are not advocating for or against the hog industry," [Richard Heupel, senior project director for Ball State's Building Better Communities program] said. "One purpose for the study was the lack of unbiased, third-party data. We hope people will talk about it, analyze it, break it down on all sides of the issue and discuss whether this is right or wrong, good or bad for these counties. It's those counties themselves that will make the final determination from the standpoint of land use and economic development strategy. It's a local call."

See also this 7/3/07 report on the statewide conference.

Today's Star-Press story includes links to both the Randolph and Jay County studies, plus a link to a June 7th livestock summit, sponsored by the Indiana Department of Agriculture.

Posted by Marcia Oddi on Friday, July 06, 2007
Posted to Environment

Thursday, July 05, 2007

Ind. Decisions - Rulings in the Spencer County adult business case now available

The ILB has had a number of entries on the Spencer County adult business dispute. The first entry, from Jan. 16, 2006, was headed "Adult business dispute draws top lawyers to fight in Spencer." See the entire list here.

On March 13 of this year, according to press reports at the time, Spencer County Circuit Court Judge Wayne Roell ordered the adult entertainment business shut down. The ILB ended its entry that day with "The ILB is trying to obtain a copy of Judge Roell's opinion to post here."

Later there were press reports, as cited in this May 19th ILB entry, that the adult business was still in operation, and speculation about what would happen next. A contempt of court hearing was held on May 21st, according to this entry from May 22nd.

This entry from June 20th quoted an AP story stating:

Spencer Circuit Judge Wayne Roell ruled Monday that because dancers appeared nude or seminude in the lounge, the business was in contempt for repeated failure to abide by the terms of the ordinance. The ruling allows the Love Boutique to remain open as long as it does not operate as a sexually oriented business. Roell also said the fines would increase with further violations.
The ILB ended the entry with "The ILB attempted to obtain a copy of Judge Roell's opinion at the time it was issued, but was unsuccessful. The ILB is attempting to clarify the closure issue."

This ILB entry from June 21 begins:

Apparently it was never ordered to close.

As the AP reported yesterday, Spencer Circuit Judge Wayne Roell has "fined the owners of a southern Indiana adult bookstore and lounge $30,000 for violating a county ordinance limiting the operation of a sexually oriented business."

The ILB wrote yesterday: "This seems odd, because a long list of earlier stories cited by the ILB reported that the judge had ordered the business to close immediately."

Today Kate Braser of the Evansville Courier & Press writes:

An adult business in Spencer County must pay a $30,000 fine for violating a court order limiting the amount of sexual material at the business.

The order was issued this week by Spencer County Circuit Court Judge Wayne Roell. The judge ruled in March that the Adult Plaza was in violation of a county ordinance outlawing sexually oriented businesses from existing within 1,000 feet of a home, church or school. * * *

In this week's five-page court order, Roell seeks to clarify "widely reported misconceptions about (the court's) prior ruling. "In its order of March 9, 2007, this court did not order that the defendants cease all operations," Roell wrote.

The entry ended with: "As noted in earlier posts, the ILB has been unsuccessful in its efforts to obtain copies of Judge Roell's two rulings, meaning all we have to go on is press reports. The ILB will make another effort this morning."

Today the ILB has finally obtained copies of Judge Roell's March 9, 2007 and June 18, 2007 rulings. They are a testament to why trial court opinions, especially in high profile cases, should be more widely available, so that the public's understanding of them is not confined to the analysis of the press.

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to Ind. Trial Ct. Decisions

Law - "State AGs and Contingency Lawyers: Acceptable Bedfellows?"

Peter Lattman of the WSJ Blog has an entry today on the question of whether state Attorneys General should be able to enter into contingency fee arrangements with private lawyers, such as in the tobacco and lead paint lawsuits. Read in conjunction with the comments, it is an interesting discussion.

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to General Law Related

Ind. Courts - Franklin County Magistrate's first day

John Estridge of the Brookville American-Democrat reports today in a long story that begins:

Clay Kellerman did not have a chair.

Monday, July 2, was his first day as the Franklin County Magistrate, and it was also the first day the court system was set up in the North Courthouse Annex.

He solved the chair problem by finding the old witness chair from the Franklin Circuit Courtroom.

Indiana’s Legislature passed funding for the magistrate’s position in the Budget Bill beginning July 1.

When Kellerman and Franklin Circuit Court Judge J. Steven Cox presented the county’s case for a magistrate in the legislative process, it was discovered Franklin County had the greatest need for a second court of any county in the state.

While creating a Superior Court was an option, Cox and Kellerman decided magistrate was the correct way to go at that time.

A magistrate has all the powers of a regular judge except in civil cases. In civil cases, a magistrate reports Findings of Fact to the judge, with the judge signing the order.

By statute, Kellerman will receive 80 percent of a judge’s salary or $80,000 a year for his services. He cannot have a private practice while a magistrate. He will have one court reporter, Maggie Fledderman.

A magistrate is able to use all the equipment and personnel of the sitting judge while a Superior Court Judge must have his or her own equipment and personnel.

“The reason we asked for a magistrate is we did not have the physical facilities to house a second court or the funds available to staff it,” Cox said. “A magistrate is part of the circuit court and resources can be shared.”

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to Indiana Courts

Courts - Historic Courthouse in Seneca County Ohio may be torn down

Mitch Harper of Fort Wayne Observed writes today that "In Tiffin, Ohio, the County Commissioners there have voted 2 to 1 to tear down the 1884 Seneca County Courthouse."

Mitch's entry concludes: "Maybe Seneca County needs some older ladies to get together and start planning a calendar [as happened in Indiana with the Randolph County Courthouse]."

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In John E. Kraft v. Wendy H. Kraft , a 15-page opinion, Judge Sharpnack writes:

John E. Kraft appeals the trial court’s denial of his petition for modification of child support. Kraft raises three issues, which we consolidate and restate as whether the trial court abused its discretion by denying Kraft’s petition for modification of his child support. * * *

Kraft has incurred a substantial decrease in his pay due to his loss of bonuses.2 Under such circumstances, we have found changed circumstances so substantial and continuing as to make the terms unreasonable. * * *

For the foregoing reasons, we reverse the trial court’s denial of Kraft’s petition to modify child support and remand for proceedings consistent with this opinion.

NFP civil opinions today (1):

In the Matter of J.C.; Alberto Casillas v. Marion County Office of Family & Children (NFP) - termination, affirmed.

NFP criminal opinions today (5):

Gregory A. Buckingham v. State of Indiana (NFP)

Douglas Henderson v. State of Indiana (NFP)

Charles E. Jackson v. State of Indiana (NFP)

Phillip D. Magness v. State of Indiana (NFP)

Hakim Kamau v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit chambers opinion appoints counsel to assist in filing cert petition

In U.S. v. Price (ND Ind., James T. Moody, Judge). a 5-page ruling on a motion for appointment of counsel dated 7/3/07, Judge Ripple (in chambers) writes:

Terraun Price has filed a motion for the appointment of counsel to assist him in filing a petition for certiorari in the Supreme Court of the United States, seeking further review of the judgment of this court. ... For the reasons set forth in this chambers opinion, the mandate of this court is recalled and new counsel is appointed to assist Mr. Price in filing a petition for certiorari in the Supreme Court of the United States. * * *

Although Mr. Price does not have a constitutional right to counsel while seeking certiorari, Ross v. Mofitt, 417 U.S. 600, 617 (1974), he does have a statutory right based on the Criminal Justice Act, 18 U.S.C. § 3006A. Wilkins v. United States, 441 U.S. 468, 469 (1979) (per curiam). See also United States v. Howell, 37 F.3d 1207, 1209 (7th Cir. 1994) (Ripple, J., in chambers). Indeed, the Seventh Circuit Criminal Justice Act Plan requires an appointed attorney to prepare and to file a petition for a writ of certiorari if, after consultation, the represented person requests it and there are reasonable grounds for counsel properly to do so. See Seventh Circuit Plan, V.3. If counsel concludes that reasonable grounds do not exist, counsel must promptly inform the defendant, and the defendant may request this court to order counsel to seek certiorari. * * *

Based on Mr. Price’s motion and counsel’s response, I must conclude that appellate counsel did not comply with his obligations under the Seventh Circuit Criminal Justice Act Plan. Counsel’s first letter, fairly read, advised Mr. Price that counsel was preparing to file a petition for certiorari: “We will begin the process and let you know the outcome as soon as possible.” Mr. Price was not informed that counsel had not filed a petition until he made his later inquiry. Mr. Price, therefore, was unable to ask this court to order counsel to seek certiorari. * * *

At this point, when there has been no meaningful consultation between counsel and the defendant, it would be premature for me to say whether a petition would be warranted. At the very least, Mr. Price has the right to consult with counsel about the appropriateness of filing a petition for a writ of certiorari. Accordingly, the mandate of this court is recalled. New counsel will be appointed. Counsel may file, within 14 days of appointment, a petition for rehearing in this court. Alternatively, counsel may elect to file immediately a petition for certiorari in the Supreme Court. If counsel, after consultation with Mr. Price, determines that it would be inappropriate to file a petition for certiorari, he must communicate that appraisal to Mr. Price so that he can ask, if he chooses, this court to determine whether it should order that such a petition be filed.

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Upgraded security at Howard Count Courthouse

On Aug. 31, 2006, The Kokomo Perspective published a story that began:

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

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

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

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

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

On Oct. 4, 2006, an AP story began:
The Howard County Courthouse is getting metal detectors nearly 20 years after a man smuggled a bomb inside and detonated it, killing himself and injuring 15 others.

The county will receive $29,295 grant from the Indiana Department of Homeland Security to buy an X-ray machine, tables and metal detector to increase security at the courthouse, Howard Circuit Court Judge Lynn Murray said Tuesday.

The equipment will be placed at public entrance at the east doorway of the downtown courthouse.

Today the Indianapolis Star has posted an AP story that begins:
Howard County employees will have to wear photo identification badges under new security rules passed two decades after a bomb exploded in the courthouse.

The badges are part of a system that also includes metal detectors and an X-ray machine, expected to be set up at the public entrance later this month.

County commissioners passed the new security rules Monday. The county decided last fall to use a $29,295 Indiana Department of Homeland Security grant to buy the equipment. Two security officers also are being trained, using money appropriated by the county council.

ID cards are also part of the plan. Workers will swipe their cards through a card reader at the employee entrance and won't have to go through the metal detectors.

"All employees should wear the badges at all times when working," Commissioner Dave Trine said.
Certain visitors also will be able to obtain a frequent visitor pass for $50 that allows them to bypass the metal detectors.

No weapons will be allowed inside the courthouse, except for police officers on duty. Off-duty officers must check their weapons at the security office.

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to Indiana Courts

Ind. Courts - How to explain this slip-up?

Here, on June 22nd, the ILB published the Governor's press release on the appointment of Judge Cale Bradford to the Court of Appeals.

Here, nearly two weeks later, the Indianapolis Star has posted the story/press release online, dated July 5, and oddly headlined "Judge misses appeals spot."

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to Indiana Courts

Ind. Law - "Felons and public office"?

An editorial today in the Evansville Courier & Press looks at the Indiana prohibition against felons on the ballot. Some quotes:

The question today in the matter of disqualified City Council candidate Fred Cook is this: When does a person satisfy his debt to society?

To Indiana state law, the answer is "never." The specific law prohibits anyone convicted of a felony from ever running for public office or from holding public office.

As a result, the Vanderburgh County Election Board ruled last week that because Cook was convicted of a felony for armed robbery more than 40 years ago, he cannot be on the ballot as an independent candidate for the 4th Ward City Council seat in this year's election. * * *

Cook is ineligible to serve officially as a representative of his district because of something he did more than 40 years ago when he was still a teenager.

It strikes us that the law should set some benchmark, a period of time and perhaps other qualifications — obviously, staying out of trouble — that allows citizens who long ago satisfied their sentences to return to active participation in the democratic process.

If punishment were our only purpose in dealing with lawmakers, then punishment forever might be appropriate for people such as Cook. But it is not. Another key component of our criminal justice system is the rehabilitation of those individuals not destined to spend their entire adult lives in prison. That's why successful rehabilitation, combined with a long period of time to regain trust and prove responsible behavior, would seem to be a reasonable measurement for returning people to active citizenship.

But don't take our word for it. Consider this quote from a former local public official:

"I don't think we want to be in a position of forever banning someone from office because of a teenage transgression. But that's what we have done."

Here is a list of some of the earlier ILB entries on convicted felons and public office.

Posted by Marcia Oddi on Thursday, July 05, 2007
Posted to Indiana Law

Wednesday, July 04, 2007

Law - "Justice Is Unequal for Parents Who Host Teen Drinking Parties"

On June 12th the Washington Post had a story reported by Daniela Deane that began:

A Virginia mother and stepfather began serving 27-month sentences yesterday for serving alcohol to minors at a 16th birthday party for their son nearly five years ago.

Their appeals exhausted, Elisa Kelly, 42, and George Robinson, 52, now divorced, reported separately to Albemarle Charlottesville Regional Jail. They pleaded guilty to nine misdemeanor counts of contributing to the delinquency of a minor stemming from the backyard party for their son Ryan Kenty, now 20.

Kelly and Robinson hosted the party at their Earlysville home, in the hills outside Charlottesville, in August 2002. Kenty had asked his mother to buy beer and wine for his friends, with the understanding that they would stay the night. Court records show that Kelly spent $340.

Kelly said she collected car keys to make sure that no one left the party. She reasoned that the youths were going to drink regardless, and she wanted to keep them off the road.

Police went to the home after receiving calls about underage drinking. About 30 young people, ages 12 to 18, were there when police arrived, scattering into the woods when someone yelled, "Cops!"

"Nobody got hurt. Nobody drove anywhere. How many times can I say I'm sorry, that I made a mistake?" Kelly said before reporting to jail. "This is just too harsh." * * *

Albemarle County Commonwealth's Attorney James L. Camblos III recommended 90-day sentences, but the judge sentenced them to eight years.

Today Ms. Deane has another story, a long one headlined "Justice Is Unequal for Parents Who Host Teen Drinking Parties." Some quotes:
When police showed up recently at a Walt Whitman High School graduation party, three young people were drinking in a vehicle parked outside the Bethesda home. Then three more teenagers walked up with a six-pack in a bag. While the police were dealing with them, the mother came outside, saw the officers and ran back in.

Montgomery County police wrote dozens of citations against the minors who were found to have been drinking at the party. The party-hosting parents were given two civil citations each, carrying fines of up to $1,500 per infraction.

The outcome for the Bethesda parents was considerably less severe than for a Charlottesville area mother and stepfather who recently began serving 27-month jail sentences for hosting an underage drinking party. * * *

The stark contrast in punishments is just one inconsistency in a patchwork of conflicting legal practices and public attitudes about underage drinking parties. Even at a time of strong concern about youth drinking and drunken driving, police and prosecutors say parents in the Washington region are rarely held responsible -- criminally or civilly -- for allowing teenagers to gather at their homes and consume alcohol. That's in large part because it's difficult to prove that the adults provided alcohol or condoned its use.

The issue is becoming more urgent, police say, as more parents, fearing their teenagers will drink anyway, allow alcohol at home to keep the youths off the roads and out of trouble. In both the Bethesda and Charlottesville area cases, the parents had collected teens' car keys to ensure that nobody drove after drinking. The Virginia mother acknowledged buying the alcohol for the party.

"They were fully aware of the party and knew what was going on," Sgt. Tim Kwaloff, head of the Montgomery police Alcohol Enforcement Unit, said of the Bethesda parents. "More and more parents think they'd rather have their kids drinking at home than not know where they are."

Stacy Saetta of the Center for the Study of Law and Enforcement Policy, a California-based research center studying alcohol policy, said the parties are getting larger and can involve "hundreds of kids in this new Internet era of text-messaging, MySpacing and instant communication."

"Some of these parents are hosting these parties out of the goodness of their hearts," Saetta said. "They think they're doing the best thing [by] keeping them at home. But there's just too many dangers present when you get a bunch of young people together with money, with alcohol and with cars."

Posted by Marcia Oddi on Wednesday, July 04, 2007
Posted to General Law Related

Ind. Law - More on hospital competition

"Competing hospitals will be good for Porter County" is the headline to an editorial today in the NWI Times. It begins:

Memorial Health System's decision to build a hospital in Valparaiso is one of a series of seismic shifts this year in health care in Porter County.

This new hospital will compete with a new hospital to be built by the new owner of Porter Hospital.

This competition is ultimately good news for patients.

South Bend-based Memorial is planning to break ground next year on a 100-bed hospital, expandable to 250 beds, on the east side of Valparaiso. The site is near where Porter planned to build.

In fact, Porter officials had met with retired radiologist Surjit Patheja, the owner of the land Memorial is buying. Porter officials haven't announced a final decision on where to build.

The new 225,000-square-foot hospital should be in operation in 2010. It will be a general hospital, offering an emergency room, surgical services, obstetrics and critical care, said Memorial President and CEO Phil Newbold.

That's a switch from the recent practice of specialty hospitals coming to a community and taking a profitable segment of the health care market from the general hospitals obligated to serve everyone. * * *

It is also a prod to Porter Hospital officials to move quickly to build their new hospital so they can compete on an even footing with Memorial.

Porter Hospital's owner, Community Health Systems, is obligated under the terms of the purchase of the county-owned hospital to replace the 68-year-old hospital within four years.

Once both hospitals are built, competition should shape health care prices and amenities. That should be good news for patients.

Read this in conjunction with the ILB entry from earlier this week (July 1st), headed "State encouraging hospital competition."

[Updated 7/6/07] Vicki Urbanik of the Chesterton Tribune had a long report yesterday on the plans to build two new hospitals in Porter County.

Posted by Marcia Oddi on Wednesday, July 04, 2007
Posted to Indiana Law

Environment - Hassan Barrel Company president indicted over toxic waste storage

The ILB has had several earlier entries about the Hassan Barrel Company of Fort Wayne. The first one, from Oct. 17, 2004, quoted a story in the Fort Wayne Journal Gazette that began:

A NIPSCO worker trying to remove a gas meter for non-payment discovered a mountain of rusting industrial barrels filling the site of a defunct recycling firm.

Formed in 1959, Hassan Barrel Co. cleaned out used barrels so they could be reused. But the company apparently closed abruptly last summer, leaving workers locked out and the site covered with an estimated 10,000 barrels, with as many as 1,000 of them with industrial waste still inside.

Today an AP story, headlined "Company president indicted over toxic waste storage," begins:
FORT WAYNE, Ind. - The former president of a barrel recycling plant where toxic waste was left behind when the company closed four years ago has been indicted on a federal charge.

Alan D. Hersh was arrested Monday in North Carolina following his indictment on one count of violating federal law by storing and disposing of hazardous waste without a permit, according to court documents.

The indictment also names Hassan Barrel Co., which opened in 1959 and recycled industrial barrels on its 7-acre site a few blocks from Adams Elementary School until it closed in the summer of 2003.

Posted by Marcia Oddi on Wednesday, July 04, 2007
Posted to Environment

Ind. Courts - "Judge gives reprieves to hardship tax delinquents"

Bill Doan of the NWI Times reports:

CROWN POINT | The weak and the strong lined up this week to get a break from the Lake County tax man.

Lake Circuit Court Magistrate Richard F. McDevitt heard dozens of petitions from tax-delinquent owners hoping to remove their beleaguered properties from Monday's tax sale.

Among those who were granted a year's grace from having their property sold out from under them included the Halls of St. George, a Serbian Orthodox church-based banquet hall in Schererville, and Brother's Keeper, a Gary homeless shelter.

Each religious group has a dispute with the county regarding their tax exempt status.

Halls of St. George is appealing a $906,000 bill. James Wieser, an attorney for the county auditor's office, argued in vain that Brother's Keeper should be denied because it already has lost all other appeals to the county and state.

Others at Tuesday's pleadings, such as Bessie Jones, of Gary, benefited from the court's mercy. She is elderly and disabled, and the county was threatening to sell her home to the highest bidder Monday.

She made her way to the Lake Circuit Court podium and pleaded with the magistrate, "I've done everything I could."

The courtroom was filled to capacity with others stricken by illness, family deaths, financial misfortune and the same entreaty for more time to get right with the tax man. Thousands of tax-delinquent owners face losing properties in next week's tax sale.

McDevitt heard their cases one by one Monday and Tuesday and issued on-the-spot rulings.

William Scoggins, of Gary, said, "I have a hardship like everyone else here. Work has been slow. I've lived in this house since 1957. It's the first time I've had trouble like this."

The magistrate granted relief to both Jones and Scoggins.

Posted by Marcia Oddi on Wednesday, July 04, 2007
Posted to Indiana Courts

Ind. Courts - More on "He was trying to put her over that railing"

Updating the report in a June 23rd ILB entry, Joe Gerrety of the Lafayette Journal & Courier reports today, in a story that begins:

A rural Lafayette man accused of attacking a lawyer at the Tippecanoe County Courthouse after a civil court case last month has been charged with attempted murder, attempted aggravated battery and confinement.

Prosecutors on Tuesday filed the charges in Tippecanoe Superior Court 1 against Russell A. Timmons, 48. The June 22 attack occurred outside Tippecanoe Superior Court 2.

The most serious charge, attempted murder, is a Class A felony punishable by 20 to 50 years in prison.

According to witness accounts and a security surveillance video of the attack, police suspect Timmons was trying to push Fort Wayne attorney Linda Polley over the fourth-floor railing of the courthouse rotunda, which is open to the second floor.

Polley fell to the floor away from the railing, and witnesses said it appeared Timmons tried to pick her up and pull her back to the railing. All the while, another attorney in the case, Theodore Hammond of Indianapolis, was attempting to pull Timmons -- 5-foot-11 and 270 pounds -- off Polley.

Seconds later, Timmons was confronted by courthouse security bailiff Shawn Sherry. Sherry came out of the Superior Court 2 courtroom, where a criminal trial was under way, and pointed pepper spray at Timmons. He complied with her orders and was taken into custody.

Posted by Marcia Oddi on Wednesday, July 04, 2007
Posted to Indiana Courts

Ind. Gov't. - "Ex-state employee collects '05 travel pay"

Niki Kelly of the Fort Wayne Journal Gazette reported, in a May 2, 2006 story headlined "State FSSA exec goes from public to private at twice the price,":

INDIANAPOLIS – On his last day as a state employee, a top Fort Wayne executive at the Family and Social Services Administration signed an outside contract to perform the same job at a much higher rate of pay – $180,000 a year.

Richard E. Rhoad’s compensation is nearly double the governor’s salary, and is $70,000 more than Mitch Roob receives as the head of the agency.

But Roob and State Budget Director Chuck Schalliol defended Rhoad’s unique contract, saying it is sometimes worth extra money to get the right person to do the job and have geographic diversity in staff members. * * *

Roob admits, he offered Rhoad the position of chief financial officer and promised the state would pay for his Indianapolis housing during the week and travel expenses for trips back and forth to Fort Wayne where his family remained.

Kelly had a number of additional stories following the Rhoad state employee/contractor situation - here is a list of those the ILB noted.

Today Kelly reports again on this story, under the headline "Ex-state employee collects '05 travel pay." Some quotes:

The outgoing state budget director and current Department of Administration commissioner recently approved an exception for $13,700 in reimbursements for travel made by a former state employee from Fort Wayne nearly two years ago.

The disclosure came in a June 29 inspector general’s report involving Richard Rhoad, a Fort Wayne businessman who previously was chief financial officer for the state’s Family and Social Services Administration.

The joint investigation conducted by the inspector general and the State Board of Accounts focused on mileage, lodging, and breakfast and dinner per diem vouchers submitted by Rhoad between Jan. 9, 2005, and June 17, 2005.

Rhoad, who lived in Allen County at the time, was reimbursed at the direction of FSSA Secretary Mitch Roob, but the reimbursements were not in compliance with the state’s travel regulations, the report said. Efforts to reach Rhoad for comment were not successful Tuesday.

Essentially, Rhoad would drive to Indianapolis from Fort Wayne on Sunday evening or Monday morning, stay at hotels in Indianapolis during the week and drive back to Fort Wayne on Friday night.

He was reimbursed despite the fact that his work station was his Indianapolis office. According to state guidelines, employees are not allowed to claim mileage from home to work, and overnight lodging and per diem are also not allowed.

State rules provide for an exception to be approved by the state budget director and commissioner of the Department of Administration. Roob sought that exception in January 2005, but it was denied.

In March 2005, Roob wrote a memo to the FSSA travel office authorizing the continuation of travel payments to Rhoad, the report said.

In July 2005, the Department of Administration notified the state auditor to cease further travel reimbursements to Rhoad because an exception had not been granted.

The inspector general concurred with the State Board of Accounts that Rhoad was not entitled to travel reimbursement and joined in a request for reimbursement that was given to FSSA on May 2 to allow it a response before the report was released to the public.

Instead, Roob submitted an additional request for an exception on May 29 to outgoing State Budget Director Charles Schalliol and Department of Administration Commissioner Carrie Henderson.

The exception was subsequently approved by both, and the investigation was closed, according to Inspector General David Thomas.

Posted by Marcia Oddi on Wednesday, July 04, 2007
Posted to Indiana Government

Tuesday, July 03, 2007

Ind. Decisions - How long has it been since the 7th Circuit heard oral arguments in the legislative prayer case?

The 7th Circuit heard oral arguments in the case of Hindrichs v. Bosma on September 7th, 2006. See the ILB entry here.

Here is a direct link to the oral argument in the case, if you'd like to listen to it. Or go here for a page providing links to both the earlier 7th Circuit ruling (on the motion to stay) and the MP3 of the oral argument. Here is the page with all the briefs.

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit rules on disputed bankruptcy question

In a case out of Illinois, In the Matter of Craig Wright, Chief Judge Easterbrook's opinion begins:

Bankruptcy judges across the nation have divided over the effect of the unnumbered hanging paragraph that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 added to §1325(a) of the Bankruptcy Code, 11 U.S.C. §1325(a). Section 1325, part of Chapter 13, specifies the circumstances under which a consumer’s plan of repayment can be confirmed. The hanging paragraph says that, for the purpose of a Chapter 13 plan, §506 of the Code, 11 U.S.C. §506, does not apply to certain secured loans.

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (3):

In Chester E. Bowman v. Tippmann Enterprises, et al. , a 6-page opinion, Judge Darden writes:

ISSUE: Whether Wells Fargo Bank owed a duty to Bowman to clear ice and snow from the sidewalk adjacent to its property.

FACTS: At approximately 12:00 p.m. on February 6, 2004, Bowman was walking on a sidewalk in downtown Fort Wayne, when he slipped on snow and ice that had accumulated where the sidewalk intersected with the entrance into the drive-through lanes of a branch of Wells Fargo Bank. Bowman fell, fracturing his left femur.

On February 6, 2006, Bowman filed a complaint against Wells Fargo Bank and other defendants, namely, the owners of the buildings and structures adjacent to the sidewalk and driveway area where Bowman had fallen. On August 1, 2006, Wells Fargo Bank filed a motion for summary judgment and memorandum in support thereof. Wells Fargo Bank argued that it did not owe Bowman a duty to maintain the sidewalk because, as a tenant and pursuant to the terms of its lease, Wells Fargo Bank did not “exert possession or control over the sidewalk . . . ” and was not responsible for maintaining the sidewalks. Wells Fargo Bank also argued that it was its landlord’s duty to maintain the sidewalk as the sidewalk was a common area, used by the public.

Bowman filed a response on August 28, 2006. Citing to a Fort Wayne City Ordinance (the “Ordinance”), Bowman argued that Wells Fargo Bank, as an occupant, had a duty to clear the sidewalk of snow and ice. * * *

We recently addressed similar claims in Denison Parking, Inc. v. Davis, 861 N.E.2d 1276 (Ind. Ct. App. 2007), trans. denied. In Denison, the plaintiff, Barbara Davis, slipped on ice while walking on the sidewalk in front of Market Square Arena. Denison Parking was responsible for snow removal from the sidewalks at Market Square Arena. Davis filed a complaint against Denison Parking, and Denison Parking filed a motion for summary judgment, which the trial court denied.

On appeal, Denison Parking argued “that it did not owe the Davis[] a common law duty to clear the public sidewalks of ice and snow, [and] that it did not owe a duty to Davis based upon statute or municipal ordinance . . . .” Davis “counter[ed] that Denison Parking’s duty to maintain the sidewalks surrounding its commercial parking facility in a reasonably safe condition for pedestrian travel arises out of (1) Indiana common law, [and] (2) Indianapolis Municipal Code Section 931-102.”

This court held that “Denison Parking owed no common law or statutory duty of care to Davis.” ... Notably, we found no common-law duty under the balancing test set forth in Webb. Id.
Furthermore, we reaffirmed that city “ordinances such as Indianapolis Municipal Code Section 931-102 . . . are not enacted for the protection of individuals using the streets but rather are for the benefit of the municipality.” ...

Given the undisputed facts, we conclude that Wells Fargo Bank did not owe a duty of care to Bowman. Thus, Bowman cannot establish a claim of negligence against Wells Fargo Bank. We therefore find no error in granting summary judgment in favor of Wells Fargo Bank. Affirmed.

James E. Manley v. State of Indiana - "Manley submitted his request for modification long after the statutory 365-day period had lapsed. He does not direct us to anything in the appellate materials reflecting that the prosecutor approved his petition for modification, nor does our research reveal such acquiescence. Lacking that prerequisite for sentence modification pursuant to I.C. § 35-38-1-17(b), the trial court had no authority to grant Manley’s request. State v. Fulkrod, 753 N.E.2d 630. Therefore, the trial court did not err in denying Manley’s petition."

Reed Hodges and Angelia Hodges v. Timothy Swafford - "Reed Hodges and Angelia Hodges, a/k/a Angela Hodges (collectively, “the Hodgeses”) petition this Court for rehearing on our recently-published opinion, Hodges v. Swafford, 863 N.E.2d 881 (Ind. Ct. App. 2007). In that case, the Hodgeses appealed the trial court’s order finding them liable under the Truth in Lending Act (“TILA”) and awarding damages to Timothy Swafford in the amount of $21,150.00. More specifically, we affirmed the trial court’s determination that TILA applied to the transaction in this case because the Hodgeses were “creditors” and because the loan they made to Swafford was a “high cost loan.” See 15 U.S.C. §§ 1602(f), -(aa)(1)(B). As for damages, we reversed the trial court’s award and remanded with instructions to calculate damages pursuant to TILA’s damages provisions. We now grant the Hodgeses’ petition for rehearing for the limited purpose of correcting our damages calculation."

NFP civil opinions today (3):

Paternity of E.S.W., Steven L. Robbins v. Rebecca J. Shadwick f/n/a Rebecca J. Whited (NFP) - termination, affirmed.

Paternity of D.T.B., a child born out of wedlock; Andre D. Barr v. Paula J. Frison (NFP) - "Moreover, even if we were to find Barr was not properly served, the evidence unequivocally establishes that he soon became aware of the paternity judgment and then waited over six years to challenge it. All the while, Barr acted as a father toward D.T.B. and sat idly by while weekly child support payments were being withheld from his paycheck. For over six years, Barr manifested an intention to treat the paternity order as valid, and his prior actions are inconsistent with his current position that the judgment is invalid. Therefore, Barr is estopped from asserting lack of personal jurisdiction as he voluntarily submitted to the court’s jurisdiction."

Termination of the Parent-Child Relationship of C.B., Jr.; Tyna Sims and Carl Black, Sr. v. Marion County Department of Child Services and Child Advocates (NFP) - "Mother and Father did not complete the necessary medical education to care for their son. Mother attended only five of sixteen clinic appointments with C.B. from February 2005 through June 2006. Father did not attend any of the appointments. In addition, neither parent has stable housing or employment, or reliable transportation to take C.B. to blood draws and follow-up medical appointments. Both parents were incarcerated at the time of the termination hearing.

"Recognizing our deferential standard of review, we find that this evidence supports the trial court’s finding that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to C.B.’s well-being.

"We reverse a termination of parental rights “only upon a showing of ‘clear error’ – that which leaves us with a definite and firm conviction that a mistake has been made.” Egly v. Blackford County DPW, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here, and therefore affirm the trial court. Affirmed."

NFP criminal opinions today (3):

Robert Rodes v. State of Indiana (NFP)

Brandon Spinks v. State of Indiana (NFP)

Kimberly C. Hitchcock and Jeffrey P. Canen v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Ind. App.Ct. Decisions

Courts - "D.C. Circuit Panel Reverses Itself on Tax Constitutionality Question" [Updated]

The blog Decision of the Day has just posted an entry on a ruling today from the DC Circuit reversing "its own bombshell holding that a portion of the Internal Revenue Code is unconstitutional." Earlier, in August of 2006, in the case of Murphy v. Internal Revenue Service the Court had ruled that § 104(a)(2) of the Code, "that requires taxes to be paid on many jury awards and settlements" was unconstitutionally broad.

[Updated 7/4/07] "Nonphysical Injury Awards May Be Taxed, Court Rules" is the headline to this story today in the NYTimes, via Bloomberg News. Quotes:

Reversing its own 11-month-old decision, a federal appeals court ruled Tuesday that the United States could tax damage awards for emotional distress and injury to reputation.

A three-judge panel of the court, the United States Court of Appeals for the District of Columbia Circuit, said taxing awards for nonphysical compensatory damages did not violate the Constitution. A 1996 federal law exempts from taxes compensation for physical injuries.

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Courts in general

Ind. Courts - The Indiana Judges Association is accepting nominations for its annual “Excellence in Public Information and Education" awards

This release was just issued by David Remondini on behalf of the Indiana Judges Association:

The Indiana Judges Association is accepting nominations for its annual awards for “Excellence in Public Information and Education,” Lake Circuit Court Judge Lorenzo Arredondo announced today.

Judge Arredondo, who chairs the Community Relations Committee of the Judicial Conference of Indiana, said the Committee selects the recipients on behalf of the Indiana Judges Association.

The IJA gives two “Excellence in Public Information and Education” awards each year. One award is presented to a member of the Indiana judiciary for special efforts in community relations. In addition, an award is presented to a member of the news media for efforts in responsible reporting on the Indiana judiciary.

Nominations for either award should include a letter outlining the reasons for making the nomination and any supporting information that will assist the committee in its decision-making. The selection will be based on the breadth and depth of the effort, quality of the effort, ingenuity and public response

Nominations must be received at the Indiana Judicial Center by 4:30 p.m. on Monday, August 13, 2007. The awards will be presented at the Indiana Judges Association luncheon on September 20, 2007 in Fort Wayne.

For further information or a copy of the nomination forms, please contact Jennifer Bauer at 317-232-1313. Nomination forms are also available online at www.in.gov/judiciary/center.

However, the nomination forms do not appear to be available yet at that link - the ILB will let you know when.

[Update: The nomination forms are now available, both the judge's nomination form, and the form for media, via the upper right-hand corner of this page.]

This link will lead you to an ILB entry on last year's winners. The ILB was one of the two recipients of the awards in 2006, and would be thrilled to be nominated again this year for its efforts over the past 12 months.

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Indiana Courts

Ind. Courts - "Rios' peers in Clark County? Allen County Judge to visit southern county to talk about juror selection"

Jeff Wiehe of the Fort Wayne News-Sentinel has two interesting stories today about jury selection for the upcoming Allen County murder trial which is to be held in Allen County, but is to be heard by jurors from Clark County. He writes in the first:

Tuesday, Allen Superior Judge Fran Gull, who announced last month the jury would come from Clark County, is scheduled to make a trip there to talk with law and court officials about the facilities to be used and the logistics of the jury selection. * * *

Although the October-long trial will be in Allen County, Clark County – on the Indiana-Kentucky border just across the Ohio River from Louisville – was chosen as a place to select jurors because it was outside the scope of intense media coverage surrounding the case, as well as a Delaware County case in which Rios already admitted to the rape and murder of a 10-year-old Fort Wayne girl, Alejandra Gutierrez.

The first week of the trial will be devoted to jury selection. Allen County Prosecutor Karen Richards could not be reached for comment as of deadline today. She previously has declined to comment on the ongoing case.

Kraus said she had not studied the demographics of Clark County yet, but said she had heard there was a fairly large and active Hispanic community there. For a defense attorney representing someone such as Rios, having a Hispanic presence on the jury might seem like a valuable thing on the surface.

“I don’t have an opinion whether I’ll want one Hispanic or 20 Hispanics (in the jury pool) so that it complies with the constitution,” Kraus said. “It’d be helpful if there were some.”

But according to the U.S. Census Bureau, out of Clark County’s estimated 100,000 people in 2005, only 2.6 percent are Hispanic or Latino – a number that Jim Keith, executive director of the Clark-Floyd Counties Visitor Bureau, said sounded about right.

Wiehe has a second story, headed "Lawyers think about Rios' jury: Prosecutor, defense attorneys to strategize before juror selection." It begins:
Though it's probable there will be more motions filed and hearings held before Simon Rios' death penalty trial begins Oct. 1, preparations for jury selection will somewhat begin with Allen Superior Judge Fran Gull's scheduled visit to Clark County on Tuesday.

Clark County was picked as a place to select the jury members because the area is outside the scope of intense media coverage surrounding two high-profile cases where children have been killed and Rios was named the suspect.

The lawyers will have to strategize and decide what kind of person they want on the jury, which will be picked during the first week of the trial.

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Indiana Courts

Ind. Gov't. - Still more on "But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance"

Updating this ILB entry from June 5th, which quoted this report from Patrick Guinane of the NWI Times:

State Sen. Sam Smith, D-East Chicago, said he is resigning to focus on an expansion of his family's funeral home and wants his wife to serve the remaining 18 months of his term.

A senator since 1998, Smith faced a potential re-election roadblock next year. He pleaded guilty to tax evasion for failing to pay sales tax on his East Chicago funeral home in 2004. And a state law approved a year later prohibits those charged with a felony but convicted of a misdemeanor, as Smith was, from seeking public office.

He is asking fellow Democrats to select his wife, Diane Smith, to complete the remaining 18 months of his term.

"I was going to run and let the chips fall where they may," Smith said Monday. "This (resignation) was all based on me getting the larger (funeral home)."

Smith said his resignation is effective Wednesday.

Dan Hinkel of the Times reports today:
An East Chicago state senator who announced last month he would resign has decided to stay in the Senate and run for re-election in 2008. * * *

Smith's 2008 bid could face a challenge. Smith pleaded guilty to tax evasion for failing to pay sales tax at his East Chicago funeral home in 2004. A state law approved a year later prohibits those charged with a felony but convicted of a misdemeanor, as Smith was, from seeking public office.

Regarding the potential for a legal challenge to his candidacy, Smith said only: "Whatever happens."

Smith heard from lobbyists and others that he shouldn't give up the seat, Smith said.

"My head got kind of swollen a little bit," he said. * * *

Smith said he had not officially resigned pursuant to state law and no action will be needed for him to retain the position.

John Byrne of the Gary Post-Tribune has this story. Some quotes:
EAST CHICAGO -- On second thought, Sam Smith's gonna stay put.

The state senator has retracted his plan to resign.

Quite a turnabout less than a month after Smith announced he would step down to concentrate on running his funeral home and support his wife, Diane, to complete his term.

Several candidates with strong political backing came forward in early June to challenge for the soon-to-be-empty seat, making it far from certain Diane Smith would secure the necessary precinct votes to succeed her husband.

But Smith insisted his wife's likely difficulty winning the caucus had nothing to do with his decision to return to Indianapolis.

He said he will finish his term, and likely run again when the 2nd District seat is on the ballot next, in 2008.

"Why not?" Smith asked.

Well, there is the problem of Smith's criminal record.

Though he was finally sentenced in 2004 on misdemeanor charges of failure to remit sales tax in connection with his funeral home, Smith first pleaded guilty to a felony.

That seems to put him at odds with a 2005 state law governing who is eligible to run for office. Convicted felons cannot be on the ballot.

But Smith said he will deal with that problem when it arises.

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Indiana Government

Ind. Law - New law changes Loan Broker Act, adds Franchise Act and the Collection Agency Act

A brief story today in the Indianapolis Star reports on HEA 1717, which concerns the regulation of loan brokers, franchises, and collection agencies.

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Indiana Law

Environment - "Lawsuits are becoming a more popular strategy to stop or slow down large livestock farms"

Seth Slabaugh of the Muncie Star-Press writes today:

HARTFORD CITY -- Citizens from 14 counties spoke at a recent statewide strategic planning meeting on how to restrict concentrated animal feeding operations (CAFOs).

Litigation is becoming an increasingly common strategy throughout the state for citizens to fight dairy, pork, calf and chicken CAFOs, which are the source of air and water pollution complaints.

"We chose the court route because it's been the most successful for us," Jae Breitweiser of Jefferson County said during the conference this past weekend at the Lake Placid Conference Center.

Citizens from Benton, Blackford, Carroll, Delaware, Fayette, Henry, Huntington, Jasper, Jefferson, Lagrange, Randolph, Tipton, Wabash and Wayne counties spoke during the morning portion of the conference.

Members of the media were not allowed to attend after lunch when the group, which plans to launch a Web site, broke into committee meetings to talk about the media, a mission statement, state legislation, zoning and water quality/testing.

Breitweiser called the Indiana Department of Environmental Management "crooked and awful," adding, "They lie to you. Fight them with everything you've got."

Bonnie Hahn disagreed. Citizens in Huntington County have become CAFO watchdogs who developed a good relationship with an IDEM inspector, helping result in IDEM's revocation of a dairy CAFO's permit, she said.

Phil Bir of Lagrange County claimed state officials "don't care about you and I who live there" next to CAFOs. "That infuriates me," he said.

Citizens in Lagrange County have sued IDEM in state court and anticipate asking a federal court to decertify the agency as an enforcer of the federal Clean Water Act, putting the U.S. Environmental Protection Agency in charge of enforcement.

"It will be a tremendous blow to IDEM if we succeed," said Bir, whose group goes by the name Hoosiers for Sustainable Agriculture.

Carl Colbert of Tipton County said citizens needed to unite to raise funds to battle CAFOs in court.

Randolph County citizen Rachel Carpenter said that fighting CAFOs is "becoming way too expensive" for citizens.

Eric Stickdorn from Wayne County said he'd been forced to move out of his home because of air pollution from a small dairy farm's lagoon. "We tried to follow the Biblical pattern," he said. "We went before the church. We went to IDEM." The dairy declined mediation, he said, so he's suing.

Michael Platt, executive director of the Indiana Pork Producers Association, said Monday in an interview that groups like GRACE Factory Farm Project and the Humane Society of the United States publish guides on "How to Confront a CAFO" that recommend lawsuits as one strategy to slow down or stop CAFOs.

New York-based GRACE Factory Farm Project sent two keynote speakers to the conference.

"So it doesn't surprise me to see lawsuits in Indiana as well as around the country," Platt said. "Pork producers know there is an environment out there that encourages local citizens to file lawsuits. That certainly has slowed some of their progress and has become an extra cost of doing business. It's a tactic being used against them."

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to Environment

Law - HIPAA frustration: unnecessary secrecy is a “significant problem”

Jane Gross has an important story today on the front page of the NY Times, headlined "Keeping Patients’ Details Private, Even From Kin." She writes of "the way Hipaa is misunderstood by medical professionals, as well as the frustration — and even peril — that comes in its wake." More quotes:

Hipaa was designed to allow Americans to take their health insurance coverage with them when they changed jobs, with provisions to keep medical information confidential. But new studies have found that some health care providers apply Hipaa regulations overzealously, leaving family members, caretakers, public health and law enforcement authorities stymied in their efforts to get information.

Experts say many providers do not understand the law, have not trained their staff members to apply it judiciously, or are fearful of the threat of fines and jail terms — although no penalty has been levied in four years.

Some reports blame the language of the law itself, which says health care providers may share information with others unless the patient objects, but does not require them to do so. Thus, disclosures are voluntary and health care providers are left with broad discretion.

The unnecessary secrecy is a “significant problem,” said Mark Rothstein, chairman of a privacy subcommittee that advises the Department of Health and Human Services, which administers Hipaa. “It’s drummed into them that there are rules they have to follow without any perspective,” he said about health care providers. “So, surprise, surprise, they approach it in a defensive, somewhat arbitrary and unreasonable way.”

Susan McAndrew, deputy director of health information privacy at the Department of Health and Human Services, said that problems were less frequent than they once had been but that health care providers continued to hide behind the law. “Either innocently or purposefully, entities often use this as an excuse,” she said. “They say ‘Hipaa made me do it’ when, in fact, they chose for other reasons not to make the permitted disclosures.”

This is a long story, with much more information.

Posted by Marcia Oddi on Tuesday, July 03, 2007
Posted to General Law Related

Monday, July 02, 2007

Ind. Law - "Woman didn't know rental house was murder scene" [Updated]

Dione Waugh of the Fort Wayne Journal Gazette has a story today about the new tenants of a house that had been the scene of multiple murders. Some quotes:

Earneshia Mitchell first thought the long, one-story house with blue siding on South Calhoun Street was cute and cozy.

For $550 a month in rent, the three-bedroom, 2 1/2 -bathroom home was a good deal for her and her two sons.

In March, she moved in.

Two months later, she learned Simon Rios was the previous owner and lived there until he was arrested on charges he killed his wife and three young daughters inside. * * *

Mitchell feels foolish for moving into the house without knowing its history. She never would have moved in if she had.

“I needed somewhere to stay,” she said. “My kids needed a place to lay their heads.”

State law does not require an agent to tell a prospective homebuyer or renter if a death occurred in the house unless the agent is specifically asked. Mitchell said her parents thought the house was the site of one of the city’s most gruesome homicides in recent years, but when she asked her landlord whether anything had happened in the house, she said he said no. * * *

Since Mitchell discovered her home’s history, she’s noticed several people driving by who slow down and look at her house.

“They ride by real slow and they’re thinking, ‘I can’t believe somebody lives in that house,’ ” she said. “I feel stupid. I made a mistake, but I needed somewhere to live.”

Though she never would have moved into the house if she had known it was Rios’, Mitchell said she’s not sure she’ll move out when her six-month lease is up in August.

She doesn’t stay in the house alone, she said, and is grateful that her family often drops by because it keeps her from thinking about the killings.

“I look at all the dents in the walls and the doors and I wonder if that was her trying to get out and save her kids’ lives or something,” Mitchell said.

She paused as she turned her head and looked around the home. “It’s a nice house, though.”

Funny, the ILB thought Indiana did have a law re stigmatized property, but if it exists, the ILB hasn't found it.

Here is a great article from the Aug. 7, 2006 WSJ headlined "Scenes of a Crime: Do Homes Associated With Scandal Sell?" Some quotes:

Real-estate professionals call homes tainted by murder, sex scandals or messy divorce "stigmatized properties." While they make up a sliver of the market, they have been the subject of academic research, provided fodder for lawsuits and posed a challenge for brokers. State real-estate agent and appraisal groups regularly include the subject in seminars, and the National Association of Realtors publishes a "Field Guide to Dealing with Stigmatized Property," offering insights on everything from how to market and sell stigmatized homes to dealing with buyer reluctance to own them. One scandal-dampening suggestion from the guide's "tool kit": Enhance the home's facade by painting it or replanting shrubs and flowers.

There are different degrees of stigma, of course. Appraisers and brokers say murder -- in particular, multiple homicides and cult killings -- is by far the toughest kind of notoriety to minimize. Suicides and hauntings come next, followed by illicit sex and celebrity infidelities. When bold-face names aren't involved, hanky-panky appears to have little impact. "If real-estate values were hurt for every house where the owners were unfaithful, we'd have a fire sale out here," says Steven Gaines of East Hampton, N.Y., author of 1999's "Philistines at the Hedgerow: Passion and Property in the Hamptons." * * *

Highly stigmatizing events can cut as much as 15% to 25% from the price a home would otherwise fetch, according to appraisers who specialize in such homes. The largest markdowns, they say, are associated with explosive scandals that receive broad media attention. After two or three years, the stigma begins to diminish. "Time passes, people forget," says Frank Harrison, an appraiser in Woodstock, Ill., who has researched and appraised dozens of affected properties.

From USAToday, dated Aug. 7, 2006, a story with a chart listing locations with notorious crimes and their status today. A quote:
Buyers have plenty of reasons to shun such properties, says Park Dietz, a forensic psychiatrist who testified in the trials of serial killers Jeffrey Dahmer and Joel Rifkin. "People are superstitious. They're afraid of bad luck or ghosts, or that the house is cursed," says Dietz, who has visited dozens of crime scenes and investigated hundreds more through videos and photos. "Or they have a more rational concern that the tragedies will be more salient to them. It may be on their consciousness and decrease their joy in living."

Randall Bell, author of an upcoming book on real estate called Bottom Line Results, has a name for what Dietz describes. Bell calls it "crime scene stigma," which he defines as "the reluctance on the part of the real estate market to pay full price for a property associated with a horrific crime."

A story dated June 9, 2007 in the Toronto Star is headlined "Should vendor disclose a property's past?" Some quotes:
Does Ontario need a law requiring real estate agents or sellers to disclose whether a home being sold has a history of violence?

The question arises in the wake of the publicity surrounding the sale of a house in rural Lake County, Fla., last month. On May 5, when John and Kathy Johnson and their 24-year old daughter Christina began to move into the $227,000 house they had just bought, they were shocked to learn from a neighbour that the Greenbrier St. residence was the scene of a grisly triple murder and suicide.

Back in February 2006, local police officer Michael Mount shot his estranged wife Kim, fellow officer Joe Gomez and Gomez's wife Serena in a jealous rage, before turning the gun on himself.

Six-year old Justin Gomez inherited the house. His maternal grandmother, Debra James, represented the estates of her daughter and son-in-law. She listed the house with Larry Beard, owner of Beard Pippin Properties Inc.

James specifically instructed Beard not to reveal details of the murders and suicide to potential buyers. A Florida state law allows real estate companies to withhold details about a house if they would tend to stigmatize the property. [emphasis added by ILB]

That law says that the fact that a property was the site of a homicide, suicide or death is not a material fact that must be disclosed in a real estate transaction. * * *

Events such as homicides, suicides and deaths, or even the allegation that a house is haunted have been known to affect the value of a property.

The National Association of Realtors in the U.S. requires its members to reveal all material factors that might affect the desirability of a house, but psychological factors are a grey area.

In a study published in 2000, James Larsen, a professor at Wright State University in Ohio, surveyed more than 100 stigmatized houses, including those associated with murders, sex scandals, suicides and hauntings.

Ohio does not have a law requiring disclosure of real estate stigmas, and Larsen discovered that disclosure practices varied widely. More than one-third of the surveyed brokers disclosed relevant information to all potential purchasers, but 19 per cent never disclosed the information at all.

Larsen's study concluded that stigmatized homes sold for just 3 per cent less than those not associated with scandal or violence, but stayed on the market for 45 per cent longer than average.

American law books are filled with reports of cases involving the lack of disclosure of property stigmas. Typically, the vendors and the real estate agents get sued by unhappy buyers. About half of the U.S. states have disclosure laws, and the other half do not.

[Updated 5:40 pm] Thanks to Doug Masson of the blog of the same name, we have an answer. It turns out Indiana does have a law on point, IC 32-21-6, "Psychologically Affected Properties," passed in 2002. It appears to be like the Florida law, referenced above. Some provisions of the Indiana law:
IC 32-21-6-5 Disclosure not required
Sec. 5. An owner or agent is not required to disclose to a transferee any knowledge of a psychologically affected property in a real estate transaction.

IC 32-21-6-6 Refusal to disclose; misrepresentation

Sec. 6. An owner or agent is not liable for the refusal to disclose to a transferee:
(1) that a dwelling or real estate is a psychologically affected property; or
(2) details concerning the psychologically affected nature of the dwelling or real estate.
However, an owner or agent may not intentionally misrepresent a fact concerning a psychologically affected property in response to a direct inquiry from a transferee.

Posted by Marcia Oddi on Monday, July 02, 2007
Posted to Indiana Law

Ind. Decisions - Even more on: Appeal of Indiana voter ID case to Supreme Court anticipated

Updating this ILB entry from June 30th, on the upcoming filing of a cert petition in the Indiana voter ID case (Crawford v. Marion County Election Board), Prof. Rick Hasen of the Election Law blog has now posted the cert petition - access it via this entry.

Posted by Marcia Oddi on Monday, July 02, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Notre Dame case goes to SCOTUS

The case is JOAN LASKOWSKI and DANIEL M. COOK v. MARGARET SPELLINGS, Secretary of Education, and UNIVERSITY OF NOTRE DAME. For background, see this ILB entry from July 26, 2006, reporting on the 7th Circuit's denial of a rehearing in the case.

Inside Higher Ed reports today, in a story titled "Complicated Legal Win for Notre Dame" that begins:

A complicated legal dispute involving separation of church and state, management of federal grants, and the right to sue may now be decided based on that last question, one of standing, and the University of Notre Dame could benefit.

On Friday, the U.S. Supreme Court accepted an appeal by the University of Notre Dame of an appeals court’s ruling that the university might have to repay a $500,000 federal grant — even though the money had already been spent. The Supreme Court not only accepted the appeal, but vacated the ruling by the U.S. Court of Appeals for the Seventh Circuit, and ordered the lower court to reconsider the case in light of another ruling by the Supreme Court last week. That ruling, on the question of standing, could pose a challenge for those suing Notre Dame as it makes it much harder for citizens to challenge spending that they believe violates the separation of church and state.

The suit that led to all these legal maneuvers was filed by two taxpayers, helped by the Indiana Civil Liberties Union, charging that Congress violated the separation of church and state when it earmarked $500,000 to Notre Dame in 2000 so the university could spread its Alliance for Catholic Education, which helps train teachers for Roman Catholic schools, to other universities. The appeals court ruling last year focused not on church and state, but on the question of whether the university could be forced to pay the government $500,000 when it had already spent the grant money, in accordance with the terms set out by the Education Department to manage the funds. * * *

Last week, the Supreme Court — in one of a series of 5-4 rulings — rejected a challenge brought by taxpayers on church-state grounds to the White House Office of Faith-Based and Community Initiatives. [ILB - that was Hein - access it here.] The opinion held that the taxpayers’ views of the church-state issue did not give them legal standing to challenge it. In ordering the Notre Dame case to be re-evaluated in light of the White House case, the Supreme Court didn’t say explicitly that the standing issue should be examined. But that would appear to be the similarity in the two cases, and may not bode well for the plaintiffs.

Posted by Marcia Oddi on Monday, July 02, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In Leanethi Luphahla v. Marion County Sheriff's Department , a 7-page opinion, Senior Judge Barteau writes:

On December 25, 2002, Luphahla was involved in an accident on Michigan Road in Indianapolis. She filed her complaint alleging that Marion County Sheriff Deputy David Loyal caused the accident by coming into her lane of travel, hitting her car and causing her injury. The Sheriff’s Department filed its answer, affirmative defenses and counterclaim, in which it claimed that Luphahla crossed into oncoming traffic and hit Deputy Loyal’s vehicle, causing him injury. The cause went to trial. Following Luphahla’s presentation of her case-in-chief, the Sheriff’s Department moved for a judgment on the evidence. The trial court granted the Sheriff’s Department’s motion for judgment on the evidence, as well as the Sheriff’s Department’s motion to dismiss its counterclaim. Luphahla then filed a motion to correct error, which the trial court denied. This appeal ensued. * * *

Based upon the foregoing discussion and authorities, we conclude that the trial court properly exercised its discretion in granting the Sheriff’s Department’s motion for judgment on the evidence. Affirmed.

In Marie B. Augle n/k/a Marie B. Deluca v. William H. Augle , a 5-page opinion, Judge Darden writes:
Marie B. (Augle) DeLuca (“Wife”) appeals the trial court’s modification of the post-nuptial agreement entered into by Wife and William H. Augle (“Husband”). We reverse and remand with instructions. * * *

Because the trial court made no findings of “fraud, duress, other imperfections of consent, or manifest inequities,” we reverse the trial court’s judgment only as to Paragraph 11 of the post-nuptial agreement. * * * Thus, we remand this cause to the trial court with instructions to give full force and effect to the post-nuptial agreement in the entirety.

In City of Kokomo, Indiana and Kokomo Board of Public Works and Safety v. John J. Iseminger and Professional Firefighters of Kokomo Local 396, a 5-page opinion, Judge Kirsch writes:
The City of Kokomo (“City”) and the Kokomo Board of Public Works and Safety (“Board”) appeal the trial court’s declaratory judgment in favor of John Iseminger (“Iseminger”) and the Professional Firefighters of Kokomo Local 396, Inc., (“Union”) and order enjoining the Board from holding any further hearings related to the disciplinary charges filed against Iseminger. The sole issue for our review is whether the trial court erred in entering judgment in favor of Iseminger and the Union and enjoining the Board from holding additional hearings on the charges. We reverse. * * *

The settlement of a disciplinary matter such as the one in this case is consistent with the Board’s authority as set forth in IC 36-8-3-2. Indeed, if the Board lacked such authority, the Board’s ability to administer the Fire Department would be seriously undermined. The trial court erred in concluding that the Board lacked the authority to reject or approve the agreement and in enjoining it from holding further hearings.

In Darrin Hornberger v. Farm Bureau Insurance , an 11-page opinion, Judge Darden writes:
Darrin Hornberger brings this interlocutory appeal of the trial court’s denial of his motion for summary judgment in an action brought against him by Farm Bureau Insurance ("Farm Bureau"), as subrogee of Robert Brewington, seeking damages for injuries suffered by Brewington when he was struck by a vehicle driven by Hornberger. We affirm. * * *

Bureau did not suffer a statutory waiver of its subrogation rights pursuant to Indiana Code section 27-5-7-5-6(b). Accordingly, the trial court did not err when it denied Hornberger’s motion for summary judgment so asserting.

In Gregory W. Brown v. J. Michael Katz, et al. , a 16-page opinion, Chief Judge Baker writes:
Appellant-plaintiff Gregory W. Brown (Brown) appeals the trial court’s dismissal of his malicious prosecution action against appellees-defendants J. Michael Katz (Katz), Jonathan Alpert (Alpert), the law firm of Goodman, Katz, Scheele & Bauswell (Katz firm), Lilly M. Schaefer (Schaefer), the law firm of Kopko, Genetos & Retson, LLP (Kopko firm), the Estate of Margaret Jewett (the Estate), the Margaret Jewett Living Trust (the Living Trust), James Jewett (Jewett), individually and as the alternate trustee of the Living Trust, and BroTwo, Inc. (BroTwo) (collectively, the appellees). Specifically, Brown argues that the trial court erred by dismissing his action after determining that he had failed to adequately comply with a discovery order. Finding that the trial court had given Brown sufficient opportunity to comply with its discovery orders, we conclude that the trial court did not abuse its discretion by dismissing the action, and we affirm the judgment of the trial court. * * *

While Brown argues that the trial court should have conducted an in camera review of the contested documents, appointed a special master, or provided him one more opportunity to comply before dismissing his action, we have previously held that

Trial Rule 37 has been substantially rewritten and no longer requires a trial court to impose a lesser sanction before dismissing an action or entering a default judgment, especially where the “disobedient party has demonstrated contumacious disregard for the court’s orders.” . . . . The choice of an appropriate sanction for a discovery violation is a matter committed to the sound discretion of the trial court. The only limitation on the trial court in determining an appropriate sanction is that the sanction must be just. T.R. 37(B)(2). [ILB-citations omitted]
Bankmark of Fl., Inc. v. Star Fin. Card Servs., Inc., 679 N.E.2d 973, 978 (Ind. Ct. App. 1997).

As previously noted, the trial court’s March 2006 order alerted Brown that the evidence sought was discoverable and that he “now has notice” that dismissal with prejudice was a possible sanction for future noncompliance. In light of Brown’s indolence, we agree with the trial court that the appellees had been sufficiently burdened and should not have been required to proceed. Therefore, we conclude that the trial court’s dismissal was just and the sanction not an abuse of discretion. The judgment of the trial court is affirmed.

NFP civil opinions today (2):

Matter of the Termination of Parent-Child Relationship of J.A.W., M.Z.V. and A.D.W.; Dawn Witters v. Warrick County Office of Family & Children (NFP) - termination, affirmed.

In Michael Tharp v. Soon Neff (NFP), a 9-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Michael Tharp appeals the trial court’s dismissal of his complaint for damages against appellee-defendant Soon Neff that stemmed from an automobile accident. Specifically, Tharp argues that even though the complaint and accompanying documents had been incorrectly addressed when they were purportedly mailed to the county clerk’s office, the trial court erred in dismissing the action because the complaint had been properly filed when it was placed in the mail. Concluding that the action was properly dismissed, we affirm the judgment of the trial court. * * *

Although Indiana Trial Rule 5(F)(3) does not state that the filing fee is required—yet Boostrom determined that it was—Trial Rule 5(F)(3) specifically states that the complaint must be “mailed to the clerk,” which Tharp failed to accomplish. Thus, we conclude that Tharp’s mailing on October 17, 2005, did not achieve “filing” as contemplated by Indiana Trial Rule 5(F)(3), and the trial court correctly determined that Tharp’s action was barred by the statute of limitations as a matter of law.

NFP criminal opinions today (6):

M.F. v. State of Indiana (NFP)

Mark A. Sylwestrowicz v. State of Indiana (NFP)

Tishana Nash v. State of Indiana (NFP)

Carlos C. Rose v. State of Indiana (NFP)

Andrew Rowe v. State of Indiana (NFP)

David Elze v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 02, 2007
Posted to Ind. App.Ct. Decisions

Law - Attorney who represented Seattle parents in a race-based lawsuit aims to recover his pro bono legal costs

The Seattle Times had this story June 29th about the attorney who successfully represented the parents challenging Seattle's plan for assigning students to public schools. (See this June 28th ILB entry headed "U.S. Supreme Court strikes down school integration plans.") A quote from the story:

[Harry] Korrell attributed his confidence to having represented Parents Involved in Community Schools for more than six years — pro bono — in the group's lawsuit against the Seattle Public Schools. The group, and the families it represents, believed the district's "Open Choice" plan violated the Constitution by using race as a factor in assigning students to oversubscribed Seattle high schools. The Supreme Court on Thursday sided with Korrell and the parents' group in a 5-4 decision.
A lenthy story reported by the Seattle Post-Intelligencer, also on June 29th, reports that Korrell aims to recover his pro bono legal costs. The report begins:
Seattle Public Schools, already stung from losing its long-running legal fight over voluntary desegregation measures, now faces a new trial: paying the seven-figure legal fees of the parents who sued the district.

Just one day after the U.S. Supreme Court ruled the district cannot use a racial tiebreaker in determining school assignments, the parents' "pro bono" attorney indicated he will try to recover legal costs he estimates will be seven figures.

"This stuff is expensive," attorney Harry Korrell, a partner at the Seattle law firm of Davis Wright Tremaine, said Friday. "There's no way to fight in federal court ... without racking up quite a legal bill."

District officials were caught off guard Friday but said they planned to fight what would amount to a significant financial hit.

Pressing a public school district to pay more than $1 million in legal fees to a large law firm "is a little contrary to the idea that pro bono is for the public good," said Shannon McMinimee, an attorney for the district.

Posted by Marcia Oddi on Monday, July 02, 2007
Posted to General Law Related

Ind. Law - "IU research finds pediatricians rarely lose malpractice cases that make it to trial"

Shari Rudavsky reports today in the Indianapolis Star business section that begins:

Being served with a medical malpractice suit may rank among a physician's greatest fears.

But pediatricians, at least, rarely lose malpractice cases, says a new study by Indiana University researchers published today.

The study found that despite concerns about society's increasing litigiousness, claims against pediatricians have remained stable in the past two decades. In addition, such cases tend not to go all the way to trial.

About 68 percent of all cases brought in the past two decades against pediatricians were withdrawn or dismissed without payment, according to the study in the journal Pediatrics. About 27 percent were settled for the plaintiff.

Five percent of the claims went to trial and four out of five of those were verdicts in favor of the pediatrician, the study found.

"What was most surprising to us and should be of some comfort to doctors is that . . . the majority of cases just go away with no payment made whatsoever," said Dr. Aaron E. Carroll, an assistant professor of pediatrics at the IU School of Medicine and a co-author of the report.

Posted by Marcia Oddi on Monday, July 02, 2007
Posted to Indiana Law

Ind. Gov't. - "Indiana allows legislators to leap right into lobbying"

Patrick Guinane of the NWI Times reports today:

The transition from Indiana legislator to lobbyist is a simple, lucrative leap that three region lawmakers have made in less than a year.

Crown Point Democrat Bob Kuzman is the latest Statehouse power broker to walk through the revolving door. He resigned his House seat Tuesday, a week after starting as a governmental affairs partner at Ice Miller, the state's third-largest law firm.

While more than two-dozen states mandate a cooling-off period of at least a year, Indiana and Illinois allow former legislators to slide straight into jobs predicated upon their ability to influence past colleagues.

Gov. Mitch Daniels has imposed rules prohibiting most former executive-branch employees from lobbying state agencies for one year after leaving the administration. But the Republican governor doesn't plan to push reluctant lawmakers to follow suit.

"If the Legislature decides to lift its own standards, apply some of these same principles, I'd be happy to see that," Daniels said.

Don't expect that to happen anytime soon. Lawmakers routinely rejected past efforts to limit their career paths, including a one-year lobbying ban that languished in the House in 2005. Whenever such restrictions come up, detractors are quick to note that Indiana employs a part-time Legislature, one that pays a base salary of only $11,600 plus another $25,000 in annual expense reimbursements. * * *

All told, roughly two-dozen former lawmakers patrol the Statehouse as lobbyists, including at least three former House speakers.

Posted by Marcia Oddi on Monday, July 02, 2007
Posted to Indiana Government | Legislative Benefits

Courts - "Indiana lawyer tackles campaign-finance, election laws, winning 4 out of 5 challenges"

Maureen Groppe of the Indianapolis Star Washington Bureau has a long story today about Terre Haute attorney Jim Bopp. Some quotes:

WASHINGTON -- Not many attorneys get to argue before the U.S. Supreme Court.

Terre Haute attorney James Bopp Jr. has done it five times and won four of them, including an election law challenge decided by the court last week.

"Four out of five, that's 80 percent," Bopp said. "It doesn't really get any better than that."

The court agreed with Bopp's client, Wisconsin Right to Life, that it could air ads mentioning lawmakers and financed by unknown donors shortly before an election. That's a major change to the McCain-Feingold campaign finance law, passed in 2002 to try to reduce the role of money in politics.

Bopp's one loss was the North Carolina Right to Life's unsuccessful argument that nonprofit organizations should be exempt from a ban on corporate contributions to federal candidates.

"He's a dynamo, one of the most tenacious lawyers I've ever seen," said Richard L. Hasen, a law professor at Loyola Law School, Los Angeles, who has been on the opposite side in some of Bopp's cases, including the latest one.

Hasen said Bopp has been successful in part because recent changes in the Supreme Court's composition have given his arguments a more receptive audience. But Bopp also "used every procedural tool at his disposal to force the court to address the issue," Hasen said.

In a profile of Bopp last year, the American Bar Association's journal called the 59-year-old "perhaps the most prominent lawyer in the country in campaign finance and election law, especially as the go-to guy for conservative religious groups wanting to work within the system, but work it for sure."

"He's kind of made the field for himself," Hasen said. "There wasn't anybody before Jim that was going around the country, trying to knock out every campaign finance law and judicial speech code he could find."

Bopp said of his strategy: "I think we do everything legally possible and ethically permitted to win."

There is much more to the story, including some mixed reviews.

Here is a long list of earlier ILB entries mentioning Mr. Bopp; here is the Nov. 3, 2006 ABA Journal entry.

Posted by Marcia Oddi on Monday, July 02, 2007
Posted to Courts in general

Sunday, July 01, 2007

Law - More on "Some law firms paying to do pro bono work"; More on pro bono in general

This June 19th ILB entry quoted from two Wall Street Journal articles, the first from Dec. 1, 2005, titled "Trial-less Lawyers: As more cases settle, firms seek pro bono work to hone associates' courtroom skills," and the second, from June 19, 2007, titled "Law Firms Willing to Pay to Work for Nothing."

This story from the June 24th Boston Herald editorial staff, described charities requiring law firms to pay to do their pro bono work as engaging in a "shakedown":

The legal profession never ceases to astonish us. Big law firms now are paying charities for access to cases the firms can then handle without a fee.

These cases are not landlord-tenant squabbles, divorces of poor couples or fights between neighbors, all of which go begging for lawyers who will donate their services, The Wall Street Journal reports. No, the cases in question will dress up any lawyer’s resume - things such as overhauling the legal system of Liberia - and augment the bragging rights of his or her firm, especially when it comes to recruiting at upper-echelon law schools. For that, big firms like to stress the amount of pro bono work (from the Latin pro bono publico, “for the public good”) they handle.

Lawyers Without Borders, which tries to strengthen legal systems overseas, was reported to require law firms to donate $7,500 a year if they want to get referrals. Volunteer Lawyers for the Arts Inc. “gives first crack at desirable cases” to firms that contribute.

More on the boom in pro bono in general. A press release from Winston & Strawn last week announced that:
CHICAGO--(BUSINESS WIRE)--McDonald's Corporation announced today that it has entered a partnership with its law firm Winston & Strawn LLP designed to enhance its current substantial pro bono program by encouraging participation among personnel across McDonald's legal department.

"McDonald's is a terrific corporate citizen, and their partnership with us to assist the underserved in our society is just another demonstration of their spirit of goodwill," said Winston & Strawn chairman Dan K. Webb.

The partnership is part of McDonald's May Pro Bono Month initiative and will include training of volunteers, currently underway, to provide pro bono assistance in three distinct areas:

* Adoption assistance: Volunteers will help process the adoptions of Illinois children for low-income guardians.
* Domestic violence victim assistance: Volunteers will assist victims of domestic violence in obtaining asylum relief through a program initiated and funded by the United States Department of Justice.
* Low income home buyers program: Volunteers will represent clients who receive housing choice vouchers in applying these vouchers toward a home purchase.
"We're thrilled to partner with our longtime law firm, Winston & Strawn, to do something so important for the community," said Gloria Santona, executive vice president, general counsel and secretary, McDonald's Corporation.
The New York Lawyer reported on June 19th:
Wounded soldiers who allege that the government is downplaying their injuries and cheating them out of benefits have some new legal ammunition: three major law firms offering free legal services.

Concerned that injured soldiers are getting a raw deal upon returning home, three firms: Foley & Lardner; Atlanta's King & Spalding; and New York's LeBoeuf, Lamb, Greene & MacRae, have offered to do pro bono work on behalf of veterans who are appealing low disability ratings made by the government.

Those ratings dictate how much money injured veterans are entitled to, along with any medical and retirement benefits.

According to attorneys, numerous veterans at Walter Reed Army Medical Center who have served in Iraq and Afghanistan have claimed that the military is underrating their injuries, thus shortchanging them of benefits they've earned.

Ehren Halse, one of 15 King & Spalding attorneys who has volunteered to help the veterans, said, "it's outrageous to think that these people would suffer in the line of duty and then not be given their disability.

"When I first heard these stories, I thought, 'You know what, there's got to be a role for lawyers here,' just to advocate and help these veterans through the process. "

A July 2 story from The American Lawyer is headlined "Pro Bono Starts at the Top." Some quotes:
"Historically, I had always been a busy lawyer," says the former litigator, who has served as head of Morgan, Lewis & Bockius since 1999. "I billed large hours. But I had not spent any time on pro bono since my early days as an associate. Once I became chair, I began to think about the glue that holds an organization together. I began to think about our obligations as lawyers."

Those obligations, he decided, went beyond profits. In 2005 he told Morgan Lewis partners at an annual retreat that they must rededicate themselves to pro bono work. He also announced that he would lead by example. Milone took on his first case in many years -- representing a disabled teenager who is suing a public school district outside Philadelphia for better educational opportunities -- and went on the road, preaching the good word about pro bono to lawyers in the firm's 11 largest American offices. "I found pent-up demand for attention to this area," he says. * * *

Our five-year review also shows that for a pro bono revolution to stick, it had better begin at the top. That was true at Morgan Lewis, where lawyers, spurred by Milone, devoted an average of 67.1 hours each to pro bono matters in 2006, a 90 percent increase from 2002, when they averaged 35.4 hours. It is also true at DLA Piper, where a long-serving pro bono partner has the ear of co-chairmen Francis Burch Jr., and Lee Miller and has helped the firm nearly double its pro bono average, to 89 hours from 45 hours in pre-merger 2002; and at Hogan & Hartson, another firm that has spent the last five years chipping away at the competition.

"A move toward a common definition of pro bono work" is the title of a second American Lawyer article, also dated July 2nd. This is an important article. Here are some quotes:
When we began measuring pro bono activity in the '90s, we relied on a version of what's come to be known as The Pro Bono Institute's definition, also known as the Law Firm Pro Bono Challenge. With the exceptions and modifications below, we once again adopt it as our own. Here's the pertinent text:

The term "pro bono" refers to activities of the firm undertaken normally without expectation of fee and not in the course of ordinary commercial practice and consisting of (i) the delivery of legal services to persons of limited means or to charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of persons of limited means; (ii) the provision of legal assistance to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; and (iii) the provision of legal assistance to charitable, religious, civic, community, governmental, or educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate.

The PBI definition comes with a body of commentary, some of which can be found at probonoinst.org. We ask firms that report their pro bono numbers to The American Lawyer to follow the PBI rules with the following exceptions:

# We do not include pro bono hours by summer associates or paralegals.

# We understand that in a limited number of cases, firms will seek court-awarded legal fees. We ask that at the beginning of cases where such fee applications may be possible, firms commit to donate their fees to legal service organizations, to their own charitable foundations, or into an earmarked firm account to cover pro bono expenses. If a firm does not make that commitment, we ask that hours on these cases not be reported to us as pro bono work. This is in line with pro bono principles announced by the Association of the Bar of the City of New York.

# We ask that firms interpret strictly the rules governing pro bono activities for well-endowed nonprofit organizations, such as human rights, animal rights and cultural institutions. Work that furthers programs that address the needs of poor people or protects civil or public rights qualifies as pro bono for these purposes. Work that organizations could otherwise pay for that does not address those goals does not qualify. The work may be worth doing -- we have high regard for symphonies, art museums and humane shelters -- but it doesn't count as pro bono. Please don't include it in the number you report to us.

# We underline PBI's decision not to count hours spent on board service for nonprofits or general bar activities unrelated to performing legal services for poor persons or fulfilling civil or public rights.

We have tried to keep this simple and have kept our exceptions to a minimum. Undoubtedly there will be further modifications in the coming years as PBI and The American Lawyer gain wisdom. There are several definitional issues that PBI is confronting, and we await the results of its work, reserving the right to disagree. For one thing, at some point we expect that the PBI drafters will do better than the phrase "persons of limited means." On its face, who doesn't meet that test? We'd prefer something more objective, such as "income pegged to 200 percent of federal poverty guidelines."
Re issues about what constitutes pro bono reported in earlier ILB entries, see this entry from Nov. 15, 2005, titled "More on Winston & Strawn LLP's free defense of former Illinois Gov. George Ryan,", and this one from Nov. 10, 2005, titled "Definition of "pro bono" at issue in Milwaukee Clean Water Act case."

Read about the Indiana Pro Bono Commission here, on the Indiana Courts website.

Posted by Marcia Oddi on Sunday, July 01, 2007
Posted to General Law Related

Ind. Law - "Law criminalizes notario publico deception"

Pablo Ros of the South Bend Tribune reports today on a new state law: "Starting today, a new state law would regulate how notaries public or notarios publicos advertise their services. The law would require a disclosure that the person is not an attorney." More from the story:

A notario público, according to the Web site of the National Association of Mexican Notaries, is "a highly specialized lawyer with special juridical formation."

A notary public, on the other hand, is "a public officer of the state, authorized by law to certify documents, take affidavits, and administer oaths," according to the Web site of the Indiana Secretary of State.

While a notario público and a notary public share some duties, like certifying documents, the former is a highly educated professional and the latter could be anyone at least 18 years old who is a legal resident of the state.

But the difference is often lost in translation. While some Spanish speakers interviewed for this story said they knew the distinction, others said they believed a notary public to be a lawyer.

A new law that goes into effect today would make it illegal for a notary public in Indiana to advertise in either Spanish, English or both languages without including the following disclosure: "I am not an attorney licensed to practice law in Indiana, and I may not give legal advice or accept fees for legal advice."

A violation of this law is a Class A misdemeanor, punishable by up to one year in prison and a $5,000 fine.

The new law builds on existing legislation. It also makes it a Class A misdemeanor for a person who is not an attorney to advertise or claim to be an expert on immigration matters. And it forbids a person convicted of notario publico deception from reapplying for a new commission.

The new law is SEA 445.

Not mentioned in the story, but something that may be recalled by regular ILB readers, is that in late 2005 our Supreme Court issued an unauthorized practice decision against a woman providing "immigration services" as a notary public. The case was State of Indiana ex rel. Indiana State Bar Assoc., et al v. Ludy Diaz, as reported in this Dec. 6, 2005 ILB entry. See also this follow-up entry from Dec. 12, 2005.

Posted by Marcia Oddi on Sunday, July 01, 2007
Posted to Indiana Law

Courts - More on: The Supreme Court - birth of a new jurisprudential era?

Updating this ILB entry from June 29th, David Savage of the LA Times writes in a lengthy front-page story today:

WASHINGTON — In what may signal a generational shift in power, new Chief Justice John G. Roberts Jr. led a confident conservative majority at the Supreme Court this year and moved the law to the right on abortion, religion, campaign funding and racial diversity.

Working with a 5-4 majority, Roberts prevailed in nearly all the major cases.

In just his second term, the 52-year-old chief justice wrested control from the 87-year-old John Paul Stevens, the remaining justice who served on the court during its liberal era. Roberts was able to prevail because of the key votes cast by Justice Samuel A. Alito Jr., 57, who last year succeeded centrist Justice Sandra Day O'Connor.

Robert Barnes writes in the Washington Post:
Chief Justice John G. Roberts Jr. started the Supreme Court term in October with sunny forecasts of strong majorities and collegial agreements based on finding common ground.

He ended it listening to a long lecture from a justice objecting not just to the most important decision Roberts has written in his time on the court, but to the way the court has changed under the chief justice.

"It's not often in law that so few have changed so much so quickly," Justice Stephen G. Breyer said in what served as a lament for liberals both on and off the court.

The court's steady and well-documented turn to the right this term came as justices confronted some of the nation's most politically charged issues -- abortion, race, free speech, the death penalty, the separation of church and state. One issue missing from that list -- the campaign against terrorism -- was added to next year's agenda with the announcement Friday that the court will review the rights of terrorism suspects detained at Guantanamo Bay in Cuba.

Linda Greenhouse of the NY Times has a front -page story headed "In Steps Big and Small, Supreme Court Moved Right." The long report begins:
It was the Supreme Court that conservatives had long yearned for and that liberals feared.

By the time the Roberts court ended its first full term on Thursday, the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.

As a result, the court upheld a federal anti-abortion law, cut back on the free-speech rights of public school students, strictly enforced procedural requirements for bringing and appealing cases, and limited school districts’ ability to use racially conscious measures to achieve or preserve integration.

The story is accompanied by some marvelous graphics, the most striking being this chart (suitable for framing) labeled "Major 5-4 Decisions of the Term," which vividly illustrates how, as several have said, this is Justice Kennedy's court now..

Posted by Marcia Oddi on Sunday, July 01, 2007
Posted to Courts in general

Ind. Law - "State encouraging hospital competition"

Seth Slabaugh of the Muncie Star-Press reports in a long and informative story today headlined "State encouraging hospital competition: If Clarian builds a hospital west of Muncie, it would be consistent with Indiana's public policy." Some quotes:

MUNCIE -- Clarian Health Partners, which is rumored to be considering a site west of Muncie for a new hospital, has been spreading out in all directions from its Indianapolis base the past several years.

"Hospitals are told to compete," said Robert Morr Jr., vice president of the Indiana Hospital and Health Association, a trade group. "That's the rules by which they play."

Clarian was formed 10 years ago by the merger of three Indianapolis hospitals -- Indiana University, Methodist and Riley Hospital for Children.

In the past three years, Clarian has opened new hospitals in Avon and Carmel, broken ground on a hospital in Lafayette, bought 95 acres for a hospital in Fishers, bought 158 acres in Bargersville for health-care facilities and signed an agreement to pursue collaborative opportunities with Morgan Hospital and Medical Center in Martinsville.

Clarian reportedly will buy 100 acres southwest of Ind. 332 and Nebo Road -- across the street from a Menards superstore -- if the site is annexed by Muncie and de-annexed by Yorktown.

Indiana stopped regulating how many hospital beds should be built in the state in the mid-1980s. Since then, certificates of need no longer have been required to build hospitals.

"The public policy in Indiana -- and in Washington -- for 20 years has been to stimulate competition," Morr said. "The public debate is: Does competition lower cost and increase quality, or does it increase cost and lower quality? After 20 years, that question has not been answered." * * *

"I'd be surprised if Clarian built a hospital up there (in Muncie), but you never know," said Dennis Dawes, president of Hendricks Regional Health, a 45-year-old, county-owned hospital in Danville, just eight miles from where Clarian opened a hospital in Avon three years ago. "Keep in mind, Hendricks County is the second-fastest-growing county in the state. That's why Clarian did what they did."

Delaware County has been losing population since 1970 as auto and other factories have downsized and closed.

"I would think they wouldn't want to go to an area like that," Dawes said. "Clarian's impact on us has been very minimal because we're a fast-growing area."

Adding a second hospital to a county whose population is declining "certainly will not do anything but drive costs up if it happens to dilute the patient volume," Dawes said.

Clarian's hospital strategy in Delaware County could be to attract as many good-paying, heavily insured patients as possible and "keep the others -- the uninsured and underinsured -- going to the other place," Dawes said.

More from the astory:
Blake Dye, president of Henry County Memorial Hospital, also questions whether more hospital beds are needed.

"We have a responsibility in health care to build what is needed," he said. "I just read today there is overbedding in Indianapolis, which can lead to duplication and increased costs, which is not good for citizens or businesses. I don't know why anyone would go into Delaware County to compete. Ball Memorial Hospital has historically met the community's needs and I think it still does. So I don't understand it."

Morr responded: "From a public policy standpoint, the answer to the overbedding question is that competition serves the public interest. In a free market, patients will vote with their feet. In a free market, you can build filling stations on all four corners. Do you need four on the same corner? The market will decide. Can they all survive? Probably not. Right now in Indiana, we're seeing an explosion of pharmacies -- Walgreens and CVS in the same market. Are we well served? Should there be government regulation of pharmacies? The answer is no." [emphasis added]

But is this a free market? Can an uninsured person find out all the information he needs to choose the "best" hospital? (Or is the real question, can an uninsured person even be admitted to a hospital, regardless of promise to pay?) And if the individual is insured, isn't it the insurer which will be "voting with its feet," not the patient?

Finally, not mentioned in today's story, but important in this discussion
are two Indiana federal court decisions in late 2005 and early 2006, where county efforts to place a moratorium on health care construction were rejected by the courts. See this Jan. 31, 2006 ILB entry titled "Re recent federal court decisions on whether Indiana communities have right to restrict new medical centers."

Posted by Marcia Oddi on Sunday, July 01, 2007
Posted to Indiana Law

Ind. Law - More on new laws taking effect July 1

"Buckle up, Hoosiers: New laws take effect" is the headline to this story by Niki Kelly in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Sunday, July 01, 2007
Posted to Indiana Law