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Friday, August 31, 2007

Ind. Decisions - Transfer list for week ending August 31, 2007

Here is the Indiana Supreme Court's transfer list for the week ending August 31, 2007. Be sure to view all three pages.

There was one transfer granted this week.

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, August 31, 2007
Posted to Indiana Transfer Lists

Environment - Still more on: Pollution and justice: Kentucky judge orders state to rehear permit for coal-fired power plant

Updating this ILB entry from Aug. 26th, Mark Wilson of the Evansville Courier & Press reports today in a story that begins:

Kentucky environmental officials are asking the state's appeals court to speed up a ruling on its appeal of a lower court's decision ordering the state to redo an air pollution permit for Peabody Energy's proposed Thoroughbred power plant because it could affect other pending permits.

Posted by Marcia Oddi on Friday, August 31, 2007
Posted to Environment

Ind. Courts - Electronic trafic tickets

The Supreme Court sponsored a media demonstration this afternoon of a "new electronic citation system that will record law enforcement officers’ information electronically in the field." Rob Schneider of the Indianapolis Star attended and writes about it here. A quote:

The system, called Electronic Citation and Warning System, is being tested by five departments, including the Indiana State Police, Fishers Police Department, Boone County Sheriff's Department and the Commercial Vehicle Enforcement Division. The state received $2.4 million to test and then implement the system statewide later this year.

Posted by Marcia Oddi on Friday, August 31, 2007
Posted to Indiana Courts

Ind. Decisions - "Court stomps Indiana wine shipping laws"

Here is the report the ILB has been looking forward to, coverage by Dan and Krista Stockman, who write a wine column every Saturday for the Fort Wayne Journal Gazette, of this week's federal court decision impacting Indiana's wine shipping laws. For background, see the ILB entry from Wed., Aug 29th headed "Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit."

The Stockman's column today concludes:

We wrote a column earlier this year saying we hoped the General Assembly would use its next session to return some common sense to the law. It appears the federal court has done that work for them.

To that, we say cheers!

To read more of their August 4, 2007 column, see this ILB entry.

And here, from today's column:

Two years after wine lovers thought markets had been opened to them, a federal court in Indiana may have finally kicked down the doors.

In 2005, the U.S. Supreme Court ruled state laws that set different rules for shipping wine to consumers based on whether the winery was in state or out of state were unconstitutional. At the time, the nation was a patchwork of 50 different sets of laws, creating a nightmare for wineries hoping to ship wine to out-of-state customers and for customers hoping to order hard-to-find wine.

At first, wine lovers thought all of that was going to change with the Supreme Court decision, which said the rules had to be the same. You could hear corks popping across the nation as wine lovers celebrated. Then reality hit.

Instead of simplicity, the picture got even more confusing.

Some states embraced direct-shipping, others tried to prohibit direct-shipping entirely and still others – like Indiana – created so many rules and regulations that they may as well have prohibited it outright.

On Wednesday, the federal court in Indianapolis ruled most of Indiana’s regulations on shipping wine directly to consumers are unconstitutional and struck them down. A separate order prohibits the state from enforcing the provisions the court declared unconstitutional. The suit was filed by five wine connoisseurs and Chateau Grand Traverse, a winery in Traverse City, Mich., that makes yummy Rieslings.

“It’s very good news for the consumers, and wineries like happy consumers,” said Larry Satek, president of the Indiana Winegrowers Guild and owner of Satek Winery in Fremont.

Among the provisions struck down was the one that was most burdensome and confusing for customers and wineries alike. The law said a winery could ship wine directly to customers but only if they had seen them at least once face-to-face to verify their age. That meant if you wanted to order Oliver’s limited-edition, impossible-to-find ice wine, you had to go to Bloomington and fill out a form at the winery first.

Of course, the same rule would apply to, say, a winery in Napa, Calif. Want a bottle of cult-favorite Screaming Eagle Cabernet Sauvignon? Even if Screaming Eagle had a permit to ship wine to Indiana (which it couldn’t get under the law, as we’ll explain below), you would have to go to the winery in person first before they could mail you a bottle.

The federal court, however, found that because the burden of complying with the law grew with the winery’s distance from Indiana, the law discriminated far more against out-of-state wineries, making it unconstitutional. The face-to-face transaction requirement is now history.

“Forcing nearly all out-of-state wineries to use a wholesaler or come to Indiana to sell gives in-state wineries a distinct competitive advantage,” the court wrote. “Indeed, virtually the entire direct shipping market is limited to in-state wineries.”

But the rules even for in-state wineries were such a pain that Indiana wineries were hurt, too.

A couple of months ago, Bill Oliver told us his winery had lost 75 percent of its shipping market under the new law. Satek said 80 percent of the wine he ships is out of state because the in-state shipping laws are so burdensome.

And worse than that, Terre Vin Winery, in Rockville north of Terre Haute, couldn’t survive without shipping. It closed early this year, citing the shipping mess.

Another piece of the law that was struck down was part of the $100 direct-shippers permit. Under Indiana’s law, wineries could ship wine directly to consumers if they had a permit from the state. But those permits could not be issued to any winery that is also allowed to sell wine wholesale. That provision eliminated any wineries in California, Washington and Oregon from getting permits – cutting off 90 percent of the wine in the national market. The court ruled the permit situation allowed Indiana wineries to ship but excluded most out-of-state wineries, making it unconstitutional.

The court batted down that provision with a vengeance.

“The wholesale prohibition is not aimed so much at protecting Indiana’s wineries as it is at guarding the bank accounts of Indiana’s wholesalers,” the decision said.

Larry Satek said that while wineries are hailing the decision, they also remember what happened in the past two years. After the U.S. Supreme Court decision came down, the state first tried to say all shipping to consumers – in-state or out-of-state – was illegal.

The wineries went to court and in the meantime tried to change the law. But the law was gutted by the wholesalers’ lobby and turned into one that not only made shipping illegal but would have killed almost the entire Indiana wine industry.

Thankfully, that effort was turned aside in favor of the “compromise” that became law – though it’s hard to call it a compromise when your other choice is being put out of business.

“Two years ago people were cracking open the champagne and then we ended up almost getting destroyed in the legislature,” Satek said. “We’re also cognizant of the fact we’re going to have to work very hard to protect ourselves in the future.”

Jim Purucker, executive director of the Wine and Spirits Wholesalers of Indiana, said the decision will hurt the state’s efforts to keep alcohol away from underage buyers. The court found the wholesalers’ arguments that kids will buy wine online rather than buying beer at the corner store unconvincing, at best. Not that they have ever been convincing.

Posted by Marcia Oddi on Friday, August 31, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 19 NFP)

For publication opinions today (7):

In Mari O. Hunter v. Anne Klimowicz, a 5-page, 2-1 an opinion on rehearing, Chief Judge Baker writes:

We grant the petition for rehearing filed by appellant-defendant Mari O. Hunter, individually and as trustee of the Anne Klimowicz Irrevocable Trust (the Trust), for the limited purpose of correcting the test applied to evaluate the capacity of appellee-defendant Anne Klimowicz to execute the Trust. In our opinion, we evaluated Anne’s capacity pursuant to Indiana Code section 30-4-2-10(c), which provides that to create an irrevocable trust, the settlor must “be of sound mind and have a reasonable understanding of the nature and effect of the act and the terms of the trust.” As Hunter points out in her petition, however, this section of the statute did not exist until the statute was amended in January 2006. Inasmuch as the Trust was executed in 2000, the statute is not the correct tool to use to evaluate Anne’s capacity. * * *

Given this evidence, we are persuaded that the trial court properly concluded that Anne met her burden of establishing that she lacked sufficient capacity to execute the Trust. In all other respects, we deny Hunter’s petition for rehearing.

DARDEN, J., concurs. ROBB, J., dissents with opinion:

For the reasons set forth in my original concurring in result opinion, I dissent from the majority’s conclusion on rehearing that under the pre-2006 test, Anne met her burden of establishing that she lacked sufficient capacity to execute the Trust. As I previously noted, I do not believe Anne rebutted the presumption that she was of sound mind when she created the Trust, as the testimony shows that Anne did know the extent and nature of her property, the natural objects of her bounty, and their desserts. Therefore, I would reverse the decision of the trial court.

In Asbestos Corporation Limited v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, an 8-page opinion, Judge Najam writes:
Asbestos Corporation Limited (“ACL”) brings this interlocutory appeal from the trial court’s denial of its motions for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield. We address a single dispositive issue on review, namely, whether Akaiwa presented sufficient evidence of exposure to ACL asbestos to survive summary judgment. * * *

Thus, we do not consider the additional evidence proffered by Akaiwa on appeal, and we must conclude that Akaiwa has not produced sufficient evidence to support an inference that he inhaled asbestos dust from an ACL product. Reversed.

International Union of Police Associations, Local No. 133 v. George Ralston, et al - "Unlike Ind. Code §§ 19-1-29.5-1.5, 19-1-29-10, and 19-1-31.5-4, the statute applicable to Terre Haute, Ind. Code § 19-1-29.5-13, does not specifically limit the mayor’s power to appoint a chief of police. Rather, Ind. Code § 19-1-29.5-13 focuses on the protection of members of the police department that are appointed to the position of chief of police and this protection does not compel the conclusion that only members of the police department can be appointed as the chief of police. Accordingly, even assuming, without deciding, that the Police Merit Commission could not amend the merit plan, we cannot say that Ind. Code § 19-1-29.5-13 prevented the appointment of Ralston as chief of police. Thus, the trial court did not err by granting Terre Haute’s motion for summary judgment. See, e.g., Langman v. Milos, 765 N.E.2d 227, 236 (Ind. Ct. App. 2002) (holding that the trial court did not err by granting defendant’s motion for summary judgment). For the foregoing reasons, we affirm the trial court’s grant of summary judgment to Terre Haute."

In DAP, Inc. v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, a 9-page opinion, Judge Najam writes:

DAP, Inc. (“DAP”) brings this interlocutory appeal from the trial court’s denial of its motion for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield. We address a single dispositive issue on review, namely, whether the trial court properly determined that the ten-year statute of repose contained in Indiana Code Section 34-20-3-1 does not apply to Akaiwa’s cause of action. We reverse. * * *

However, we need not address the contentions of the parties and amici concerning the operation and effect of Jarboe because DAP is protected by Section 1’s statute of repose.

In sum, we reverse the trial court’s denial of DAP’s motion for summary judgment. Because DAP is not a miner, Section 2 cannot apply to DAP, and Akaiwa’s cause of action is barred by Section 1’s ten-year statute of repose. Further, ITLA’s contention that the “Ott interpretation of Section 2 is unconstitutional,” ITLA’s Brief at 6, 8, is beyond the scope of our review. Akaiwa lacks a cognizable harm from which to challenge any constitutional defect, and DAP, as a non-miner, lacks standing to challenge Section 2.

Dawn Elizabeth McDowell v. State of Indiana - "The court did not abuse its discretion by admitting evidence or by prohibiting the re-opening of McDowell’s case. Neither did the court abuse its discretion by giving the jury an instruction regarding intent to kill. The evidence was sufficient to support McDowell’s conviction, and the court did not err in sentencing her. For all these reasons, we affirm."

TH Agriculture & Nutrition, LLC v. Frank Akaiwa, et al - "TH Agriculture and Nutrition, L.L.C. (“THAN”) brings this interlocutory appeal from the trial court’s denial of its motion for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield.1 We address a single dispositive issue on review, namely, whether the trial court properly determined that the ten-year statute of repose contained in Indiana Code Section 34-20-3-1 does not apply to Akaiwa’s cause of action. We reverse."

Mary Ann Novatny v. Christopher S. Novatny - "Through the passage of time, by operation of law, Indiana may now be children’s home state, but the court did not have jurisdiction over Father’s Petition when he filed it. “When a court lacks subject matter jurisdiction, its actions are void ab initio and may be challenged at any time.” Allen v. Proksch, 832 N.E.2d 1080, 1095 (Ind. Ct. App. 2005). As noted above, Mother timely objected to the court’s jurisdiction, and the court overruled her objection. The court never reviewed Mother’s contention that the children had a home state that was not Indiana. Just as in Hepner, “[t]he Indiana court lacked power to act because of its failure to seriously address the issue of its jurisdiction under the [UCCJA].” Hepner, 469 N.E.2d 786. Thus, we are constrained to vacate the court’s modification order."

NFP civil opinions today (7):

Termination of the Parent-Child Relationship of A.A.J., A.I.J., D.L.J., D.I.J., M.E.J., and R.L.J.; DeWayne E. Johnson v. Tippecanoe County Department of Child Services (NFP)

TH Agriculture & Nutrition, LLC v. Charity Nevius, Personal Representative of Estate of Gary Nevius, deceased (NFP)

In John and Dorothy Arndt & Arndt, LLC v. Porter County Plan Commission (NFP), a 6-page opinion, Judge May writes:

John and Dorothy Arndt, and John Arndt LLC (collectively, “Arndt”) appeal the denial of their application for a primary plat by the Porter County Plan Commission (“Commission”). Arndt asserts the Commission had no discretion to deny his application because he submitted all documentation required by the Porter County Subdivision Control Ordinance. The Commission did not abuse its discretion in finding Arndt failed to provide sufficient information to demonstrate compliance with Porter County’s Open Space Ordinance, and we accordingly cannot find the Commission erred when it denied his application. Therefore, we affirm. * * *

The Commission had before it both lay testimony and scientific evidence regarding the soil, water table, “swampy conditions,” “undisturbed natural features,” and “fragile environment” at Rilan Acres. We must defer to the Commission’s expertise in finding “[s]tandard management practices may not be sufficient to protect this fragile environment” and “[n]atural features on this property . . . may require a greater set aside under the open space requirements.” Those findings support the Commission’s conclusion Arndt did not provide sufficient evidence to demonstrate the land was suitable for development under the Open Space Ordinance. Therefore, we affirm the denial of his application for primary plat approval.

In Stephen Summers v. Kenneth Davis and Jennifer Davis (NFP), a 13-page 2-1 opinion, Judge Najam concludes:
Here, the court did not hold an evidentiary hearing on the attorney’s fee issue, and there is no indication that it considered the parties’ resources, economic condition, or other factors that would bear on the reasonableness of the award of attorney’s fees. When it awarded attorney’s fees without such a hearing, the trial court abused its discretion. Allen v. Proksch, 832 N.E.2d 1080, 1103 (Ind. Ct. App. 2005). Thus, we reverse the portion of the court’s order that Summers pay the Davises’ attorney’s fees in the amount of $907 and remand for a hearing for the court to consider the necessary factors bearing of the reasonableness of the award.

In summary, the trial court correctly denied Summers’ Motion to Correct Error and it did not commit reversible error when it denied Summers’ the opportunity to make an offer of proof. The court, however, abused its discretion in awarding attorney’s fees, and we reverse that portion of its order. Affirmed in part and reversed and remanded.

MATHIAS, J., concurs. FRIEDLANDER, J., concurs in part and dissents in part with separate opinion:

I agree with the Majority in all respects except for its reversal of the award of attorney fees. It is clear from the material before us that Summers’s lack of cooperation drove up the Davises’ legal costs. Moreover, in the context of the amount of legal representation that was obviously required in this case, the amount of attorney fees awarded, i.e., $907, is simply too low to quibble about. I would affirm that award.

George Long, Jr. v. Wood-Mizer Products, Inc. (NFP) - "Appellant-defendant George A. Long, Jr., d/b/a George’s Wood Yard (Long), appeals the trial court’s order finding Long liable for his breach of a promissory note and security agreement with appellee-plaintiff Wood-Mizer Products, Inc. (Wood-Mizer), for the purchase of a portable sawmill. Long makes a number of unsuccessful arguments that are supported by scant citations to the record and little supporting authority. Finding no error, we affirm the judgment of the trial court."

Sun Chemical v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, Deceased (NFP)

In Linda Harter v. Larry Couch and Rose Couch (NFP), a 9-page opinion, Judge Friedlander concludes:

At a deposition, Harter explained the incident, in pertinent part, as follows:
I – when I started out, I started out to start my car to warm it up and then go back in and finish getting ready for work. So I inched out. I held onto the side of the house and inched – I knew the ice was there. Now how bad it was. I didn’t know that until the EMTs came to get me. But I inched across there. I knew it was slick and made it to the last – the last step just before you step down to another step, and that’s when I went off.
Appellant’s Appendix at 38-39 (emphasis supplied). Elsewhere in the deposition, Harter described the conditions outside when she awoke that morning: “It was raining a heavy – not a heavy rain but a mist. It had snowed though sometime during the night because there was snow and ice both on the – on the ground and on the porch.” Id. at 41. Clearly, Harter acknowledged not only that the ice on the porch was open and obvious, but also that she was specifically aware of its presence.

Considering the facts most favorable to Harter, and after reviewing the materials designated by the parties, we affirm the grant of summary judgment in favor of the Couches.

NFP criminal opinions today (12):

Robertson Fowler v. State of Indiana (NFP)

Randy Beck v. State of Indiana (NFP)

Jodi Lynn Gillman v. State of Indiana (NFP)

Anthony Harvey v. State of Indiana (NFP)

Sheri K. Buston v. State of Indiana (NFP)

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

Donald E. Weaver, Jr. v. State of Indiana (NFP)

James Kanable v. State of Indiana (NFP)

Tyrone LaSalle Noble v. State of Indiana (NFP)

John Dean, Jr. v. State of Indiana (NFP)

J.R. v. State of Indiana (NFP)

Keith Derrick Bibbs v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 31, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Tippecanoe County Courthouse floor groans from paper weight gain

Dan Shaw reports today in the Lafayette Journal & Courier, in a story that begins:

Court files stuffed into the fifth floor of the Tippecanoe County Courthouse became such a weighty problem that maintenance crews finally issued a warning:

Put much more up there and the fifth floor could collapse.

Pat Harrington, county prosecutor, said that warning hit home. Something had to be done to reduce the amount of documents his office stored.

In 2006, the prosecutor's office used 1,128,610 sheets of paper, more than any other county department. Altogether, the county, which employs about 620 people, went through slightly more than 7 million sheets that year. And the county is well on its way to surpassing that amount in 2007.

"We never had an engineering study done," said Mike Haan, the county maintenance director, about the courthouse's fifth floor. "But with the copy paper we store up there ... we were basically concerned about the amount of weight on that floor."

Harrington said he hopes the solution lies in storing old files on computers. The county has hired interns to undertake that work. They had scanned 245,421 pages by the end of last week, Harrington said.

The project has cleared out a room that used to be filled with boxes. Harrington afterward made it his office.

Even so, Harrington doubts county prosecutors could ever function without using large amounts of paper. Even with scanning, they still must furnish copies of criminal files -- which he estimated contain from 500 to 700 sheets -- to defendants, judges and jury members.

For others in county offices, the law is a hindrance to reducing the use of paper.

County clerk Linda Phillips said she would like to place more files on computers, but Indiana requires her to keep paper records. Criminal files, for instance, must be stored for 55 years, she said.

The recorder's office, on the other hand, has been scanning property records since 1992. And those paying child support at the Tippecanoe County Courthouse will soon notice a lot less paper floating around in the offices they visit.

Posted by Marcia Oddi on Friday, August 31, 2007
Posted to Indiana Courts

Ind. Decisions - Continuing coverage of the appeal of Indiana voter ID case to U.S. Supreme Court

Richard Winger's Ballot Access News reports:

The U.S. Supreme Court will consider whether to hear Indiana Democratic Party v Rokita, 07-25, at its September 24 conference. This is the case challenging the Indiana law that requires voters at the polls to show government photo-ID. The 7th circuit had upheld that law by a vote of 2-1.

September 24 is also the day the U.S. Supreme Court will be considering whether to accept the Pennsylvania ballot access case, Rogers v Cortez.

Start with this ILB entry from August 22nd for background.

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

Thursday, August 30, 2007

Ind. Decisions - Still more on: Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit

Updating this ILB entry from earlier today, this press release has now been issued on behalf of the successful wineries:

Victory for Indiana Wine Consumers

Indianapolis, IN – Indiana wine consumers will once again be able to receive wine shipments from their favorite Indiana wineries without having to visit them first.

Judge John D. Tinder ruled yesterday that a 2006 Indiana law requiring Indiana residents to fill out a face-to-face verification form from any winery they wished to have wine shipped from is unconstitutional. This reinstates the legal privilege for a consumer that was in place for 28 years prior to the 2006 code change.

“We are elated with this decision,” said Bill Oliver, President of Oliver Winery. “The customers that have continued to call from around the state for ours as well as many other Indiana wines will now have the opportunity to once again have wine shipped directly to them,” he added. Prior to 2006 several wineries shipped as many as 1,000 cases to Indiana residents that did not live near a particular winery. All 34 Indiana wineries reported a dramatic drop in instate shipping once the face-to-face requirement was put in place.

Currently, several Indiana wineries are located in rural portions of the state that are not easily accessible from larger markets such as Indianapolis, Evansville and South Bend. “There is no doubt this ruling brings Indiana much more in line with the rest of the country that does not require their residents to provide a face-to-face verification in order to purchase state produced wine,” said Larry Satek, owner of Satek Winery. “We are pleased with the opportunity to welcome our state customers back,” he said. Currently, 80% of U.S. Consumers have free access to wine via direct shipment.

Indiana wines have gained international attention by winning numerous awards at many prestigious wine competitions including the Indy International Wine Competition and the Jerry D. Mead New World International Wine Competition. “Indiana wineries have worked hard at producing quality products that consumers not only in Indiana but around the world enjoy,” added Bill Oliver, “we appreciate every opportunity to compete with some of the well known wineries in California, New York and throughout the Midwest.”

In 2006, over 711,000 gallons of wine were sold instate by Indiana wineries. This number increases to nearly 800,000 when exports to other states and foreign countries are included.

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Controversy in Kokomo over public defender punishment

On August 1, 2007 the Indiana Supreme Court suspended Steven K. Raquet for 30 days, beginning Aug. 31, 2007. The offense involved viewing child pornography online in 2001. See this ILB entry from March 25, 2004.

The Kokomo Perspective has three stories today on this matter. One is an editorial, which says in part:

If there is anything the ongoing debacle that is Howard County government's endorsement of Steve Raquet as chief public defender teaches us, it is that the rest of us just aren't special. The wheels of justice turn differently for those chosen to rub elbows with the elite. The evidence to support this becomes more apparent every day.

Let's take at how Howard County government discerns between those who are "one of the boys" and those who are not. * * *

But Raquet -- he is clearly one of the boys. He takes pre-trial diversion for possession of child pornography and gets a promotion and a raise. He admits to bringing disrepute to the legal profession and gets suspended for 30 days, and Howard County government leaders say justice is served. Those same leaders said that Marr and others of prominence in the community should be held to a higher standard. Why wasn't Raquet held to that same standard?

This story is headed "Commissioners, county council members respond to public defender's 30-day suspension."

And this article begins:

Some say the Indiana Supreme Court's Aug. 1 decision to suspend Steve Raquet's law license for 30 days might have consequences for the Howard County Bar Association and the local court system.

"Well, there is no other way to say it other than it clearly reflects very poorly on our local bar," said David Steele, Howard County Bar Association president for 2007.

He was unable to answer how the local bar might fix its image, saying, "You know what, I don't know how to answer that, but if anybody else does, I would love to hear their answer."

Another local attorney holds a different view on the situation.

Dennis Perry, former Superior Court I judge, feels that the Raquet 30-day license suspension by the Supreme Court helps the image of the bar.

"I think it shows that the self-imposed system of discipline and ethics by the law profession, through the Canons of Ethics, works," Perry said. "That is what it is all about; that is what it is made for, for attorneys that make grievous mistakes, or that make silly, inane mistakes. Either way, they should be subject to having a discipline for those mistakes, and I think that what happened to (Raquet) just indicates the system works."

Annette Rush, head of Legal Services for UAW, who does not try many cases in local courts, felt remorse for the local bar.

"I feel really sad for (Raquet) and the bar association," she said. "As a whole, attorneys take a bad rap, and this is a difficult situation."

Steele, however, defends Raquet's job as public defender, despite the seriousness of his actions.

"What (Raquet) did in his private life, I believe, and most people believe, to be reprehensible," Steele said. "The fact is, his private life is completely different from his professional life," Steele said. "You will find very few attorneys in this town who feel (Raquet) is anything other than a competent, talented and dedicated attorney. What he did in his private life will lose him some respect amongst members of the community, but it does not change the fact that he is an excellent public defender."

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Indiana Courts

Ind. Law - Lebanon golf cart controversy destined for trial and possibly, state legislature

All has not gone smoothly with the Lebanon golf cart ordinance. The Indiana state police has been in opposition, as related in this ILB entry from June 9, 2006. Today Rod Rose of the Lebanon Reporter writes:

The controversy surrounding golf carts on city streets continues.

Superior Court II Judge Rebecca McClure ruled this week that only the Indiana General Assembly can decide whether golf carts are exempt from the state’s motor vehicle laws.

McClure denied a motion to dismiss a traffic ticket given March 27 by Indiana State Police Trooper Troy Sunier to Nadine Urban for driving a golf cart on city streets. The citation ticketed Urban for driving a motor vehicle — in this case, a golf cart — without a registration plate. The motion said the case should be dismissed because golf carts, while classified a motor vehicle, can’t be registered.

Urban’s attorney, Larry Giddings, also argued that other motor vehicles that can’t be registered can legally be allowed to drive on Indiana roads, so golf carts should be allowed, too.

Traffic violations are heard in Lebanon City Court or other town courts. But Urban appealed her ticket, which moved the case to Superior Court II.

“The impossibility of registration does not necessitate a dismissal of this case,” McClure wrote in her decision.

Only the General Assembly can change state law. * * *

A trial has been set for Nov. 13, unless Urban decides to pay the ticket, Giddings said.

If Urban wins the case, “it means (she) doesn’t have to pay a ticket,” Giddings said. “The city ordinance is not at issue; it’s never been raised.”

Other cities concerned with safety issues have passed golf cart control ordinances, Giddings said.

“Our ordinance excludes the operation of carts on state highways,” Giddings said. “I think that is something the state police should legitimately be concerned with.”

But Giddings believes state police are not enforcing the law equally.

In June, the Indiana State Police questioned the city ordinance’s legality and said troopers would ticket anyone driving a golf cart on a public street. * * *

In June, the Indiana State Police questioned the city ordinance’s legality and said troopers would ticket anyone driving a golf cart on a public street. * * *

Lebanon’s golf cart ordinance requires that:

Owners pay an annual fee of $30, by May 1; have proof of insurance on themselves or on the cart at all times; carts are allowed on city streets between 6 a.m. and 9 p.m. from May 1 to Sept. 30, and from 9 a.m. to 5 p.m. from Oct. 1 to April 30; only licensed drivers may operate a golf cart; carts must have rear view mirrors, are banned from Lebanon Street, Indianapolis Avenue and South Street because they are also state highways, and are prohibited from Lafayette Avenue. Violators can be fined up to $100; if they are ticketed twice in a calendar year, their golf cart permit will be suspended.
In short, Indiana state police near Lebanon are ticketing golf carts, whether they are driving on designated city or town streets, or state highways.

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Indiana Law

Environment - Bush admnistration "Rule to Expand Mountaintop Coal Mining" [Updated]

The NY Times reported Aug. 22nd, in a story that begins:

The Bush administration is set to issue a regulation on Friday that would enshrine the coal mining practice of mountaintop removal. The technique involves blasting off the tops of mountains and dumping the rubble into valleys and streams.

It has been used in Appalachian coal country for 20 years under a cloud of legal and regulatory confusion.

The new rule would allow the practice to continue and expand, providing only that mine operators minimize the debris and cause the least environmental harm, although those terms are not clearly defined and to some extent merely restate existing law.

The Office of Surface Mining in the Interior Department drafted the rule, which will be subject to a 60-day comment period and could be revised, although officials indicated that it was not likely to be changed substantially.

The regulation is the culmination of six and a half years of work by the administration to make it easier for mining companies to dig more coal to meet growing energy demands and reduce dependence on foreign oil.

[Updated 9/4/07] The Indianapolis Star today ran a column by Froma Harrop on Big Coal, but does not appear to have made it available online. It is available here, however, via the Seattle Times.

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Environment

Ind. Decisions - More on: Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit

Oddly, this decision which the ILB reported early last evening, has apparently only been picked up by one member of the media, Channel 6 NEWS. See their story here. Some quotes:

A federal judge Wednesday declared parts of Indiana law regulating wine sales unconstitutional, saying the state wrongly prohibits most out-of-state wineries from shipping wine directly to Indiana consumers.

The law also erects an unfair trade barrier against out-of-state wineries that aren't directly prohibited from making those shipments, Judge John D. Tinder ruled in U.S. District Court in Indianapolis.

The law in question prohibits wineries that have wholesale privileges in states other than Indiana from seeking a direct wine seller's permit, which Indiana requires to ship wine to customers in the state.

The judge decided that the law discriminated against out-of-state wineries, noting that many states -- including the three states that account for 90 percent of U.S. noncarbonated wine -- automatically give wholesaling privileges to their wineries.

"This restriction bars the vast majority of out-of-state wineries from obtaining a direct wine seller's permit," the ruling said.

Tinder also ruled the law discriminates against out-of-state wineries by requiring an initial, in-person transaction between a customer and a winery before the winery can ship to the customer.

"This requirement erects a trade barrier to most out-of-state wineries by requiring them to establish a physical presence in Indiana or limit their potential market to those customers willing to (pay) the expense of travel to their states," the ruling said.

The judge said Indiana's law violated the commerce clause of the U.S. Constitution, and his order stops the state from enforcing the rules he declared to be unconstitutional. * * *

David Heath, Chairman of the Indiana Alcohol and Tobacco commission said the ruling also affects Hoosier wineries.

"They'll still have to verify that the person is 21 years of age and follow that through the entire process, even up to and including delivery of the wine, but it doesn't require that they meet face-to-face to verify it," Heath said.

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - More on "Storm Water Board resigns: Council criticized no-bid contract"

Updating the most recent ILB entry on this topic, from Aug. 18th, a story by Dick Kaukas in today's Louisville Courier Journal is headed "Council seeks to void 2 contracts: New Albany boards failed to obtain bids." The story begins:

The New Albany City Council asked Floyd Circuit Court yesterday to void two contracts, one awarded by the Sewer Board and the other by the Stormwater Board, because neither included competitive bidding.

Both city panels "were required to solicit competitive bids for the work and services" described in the agreements, said the complaint filed by Jerry Ulrich, the council's lawyer.

Because the contracts are for public works projects and no bids were sought, the lawsuit said, the agreements are "voidable and/or void" under Indiana law. Earlier this month, the council voted 5-3 to authorize the litigation.

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Roswell Properties, LLC, LTD v. Earl C. Mullins, Jr., Firstar Bank, N.A., et al. (NFP) - "Thus, as a matter of law, US Bank is entitled to foreclosure on its 2001 mortgage and the trial court properly granted summary judgment in its favor and denied summary judgment on Roswell’s foreclosure complaint. Affirmed."

NFP criminal opinions today (6):

Benjamin Wade Cochran v. State of Indiana (NFP)

Michael Alexander v. State of Indiana (NFP)

State of Indiana v. Douglas E. Shipman (NFP)

Terry Cooley v. State of Indiana (NFP)

Charles R. Thompson v. State of Indiana (NFP)

James M. Wright v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit rules in Indiana medical malpractice case

In Lasley v. Moss (SD Ind., Judge McKinney), an 8-page opinion, Judge Bauer writes:

Angelica Lasley sued Dr. John A. Moss in Indiana state court for medical malpractice, claiming that Dr. Moss failed to reasonably disclose to her the available options for treating her thyroid condition and the risks associated with surgery. William G. Lasley, Angelica’s husband, sued Dr. Moss for loss of consortium. Following removal to federal court on diversity grounds, the case was submitted to a jury, which found in favor of Mrs. Lasley on her medical malpractice claim and in favor of Dr. Moss on Mr. Lasley’s consortium claim. Dr. Moss now appeals, challenging the district court’s rejection of a jury instruction that he had tendered to the court. He also challenges the district court’s decision to grant the Lasleys’ motion for judgment as a matter of law on Dr. Moss’ defense that Mrs. Lasley failed to mitigate her damages. We affirm.

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

Ind. Law - Indiana Law Journal Supplement announced

IU Law-Bloomington's law review is going to expand, according to this 10-page article by Doulas A. Hass posted on SSRN. The abstract:

While blogs or Wikis undoubtedly have an important, expressive place in legal discourse, these short-form outlets leave the demand for timely, interactive legal discourse unfulfilled. Printed law journals and online repositories like SSRN or Berkeley Electronic Press cannot address these needs either. This article introduces Indiana Law Journal's expanded publication, the Indiana Law Journal Supplement, and explains how the new online, short-form journal meets the Journal's original purpose and fills an important void left by other outlets.

The Indiana Law Journal has consistently been one of the few top-tier law journals to both encourage and publish significant student works. Ideas that advance the practice of law are no less vital simply because students - at Indiana or elsewhere - developed them. The article describes how the Supplement enables the Journal to amplify the focus on ideas, rather than who holds them. By offering both the interactivity and timeliness of blogs and the established path of legal scholarship provided by traditional law reviews, the Journal can further the purposes it first outlined in 1925.

The announcement, however, may be somewhat premature, as noted in this entry in the Legal History Blog.

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Indiana Law

Ind. Decisions - Yet more on 7th Circuit decision re identity theft

This ILB entry from Aug. 25th, and its links, point to serious shortcomings in the Indiana laws said to protect Hoosiers against identity theft.

The one bright spot, the ILB wrote, is that "During this year's 2007 session, one of the deficiencies was addressed, the freezing of credit reports." Today with much fan-fare, the measure, which takes effect Sept. 1st, is announced. See this story by Mike Smith of the AP in the Indianapolis Star; this story by Lesley Stedman Weidenbener in the Louisville Courier Journal, and this story by Bryan Corbin in the Evansville Courier & Press. Corbin does mention: "Officials are touting the law, but acknowledge it is more effective as a preventive measure than as a remedy for the crime," which is the concern the ILB has raised since the initial law was enacted in 2006.

As to how the credit freeze provisions will operate, the LCJ story explains:

Advocates of the law say it will prevent thieves who have obtained a Social Security number or other personal data from using the information to open new lines of credit and sticking unsuspecting consumers with the bills.

"Consumers are going to be in control," Attorney General Steve Carter said yesterday. "You don't want to wait to become a victim of identify theft. We're all subject to the risks that are out there, and this is one way to reduce that risk significantly."

But at least for the next 16 months, taking advantage of the freeze will also make it somewhat less convenient for consumers to obtain credit themselves. That's because until Jan. 1, 2009, consumers can invoke or release the credit freeze only by writing letters to the credit agencies. After receiving the letters, the agencies then have five days to put the freeze in place or three days to lift it.

Starting in 2009, however, the law requires that credit bureaus have a system in place that will allow consumers to use the telephone or Internet to make changes in 15 minutes.

For now, Carter said, it's worth the nuisance of planning ahead.

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

Ind. Courts - Another case today of missing court records

Two missing records stories in one today!

Rebecca S. Green of the Fort Wayne Journal Gazette reports that:

The mother of a convicted murderer sits in a jail cell because she refused a judge’s order to return the official court record of her son’s trial – which she obtained from the defense attorney preparing her son’s appeal.

Adela Favela, 58, of the 2800 block of Westbrook Drive, likely will remain in the Allen County Jail until a hearing Friday, when Allen Superior Judge Fran Gull will again ask what happened to the official transcript and evidence from the September murder trial of her son, Daniel Favela.

The official court record for this case has 13 volumes. It includes transcripts of all the testimony given at the trial, as well as transcripts of pretrial hearings and the evidence produced during the four-day jury trial, Gull said.

The experience is new for Gull, who rarely uses jail as a punishment for being found in contempt of court.

“It’s not a power that we exercise often,” she said. “Usually folks comply with court orders.”

The experience is also new for the Allen County Clerk’s Office and the Indiana Court of Appeals – where Daniel Favela’s case would be reviewed.

“In the court’s living memory, nothing like this has ever happened before,” said Joe Merrick, staff attorney for the state appellate court. * * *

According to remaining court records, which include the clerk’s office file of motions and other filings, Gull issued her first order to Adela Favela to return the trial records Aug. 7.

[Defense attorney Robert] Gevers had checked out the file, given it to Adela Favela and, “(she) has refused their requests to return all volumes either to the office or the clerk’s office,” according to court records.

Tuesday morning, Gull ordered the Allen County sheriff to hand-deliver a second copy of the order demanding the return of the files; and if Adela Favela refused to comply, Gull ordered her arrest, according to court records.

Adela Favela was booked into the jail at 11:30 a.m. Tuesday. * * *

Indiana appellate court procedure allows both sides in a case to have absolute, unfettered access to the records related to the trial.

The appellate court reviews issues of law only from the official court records and then answers specific legal questions raised in the initial trial or by the trial court’s decision. The appellate court cannot review any new evidence.

These requirements make the transcripts and evidence critical.

If Adela Favela does not return the massive court file – or it has become lost or damaged – the local court, prosecution and defense can re-create the record using copies of the exhibits and re-transcribing the audio recordings from the hearings, Merrick said.

The re-created record would be considered with the same importance as the original, he said. However, Gull said actual trial evidence cannot be redone or re-created.

So now, everybody waits for Adela Favela to hand over the file.

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Indiana Courts

Ind. Courts - Files on 191 defendants, hidden in the 1990s, discovered in 2005, announced this week

A pretty incredible story today, reported by Bill McCleery of the Indianapolis Star. Some quotes:

The Johnson County prosecutor was forced Wednesday to dismiss misdemeanor criminal charges against 191 defendants in Greenwood City Court because their files were hidden away for years and too much time has elapsed to prosecute the cases.

The files, submitted from 1997 to 1999, were discovered in a box pushed under a former employee's desk.

"By the time the court found these cases, they were, in effect, legally dead," said Prosecutor Lance Hamner. "Prosecution was barred by Indiana (law), which requires that criminal charges be concluded within a year unless the delay was caused by the defendant, which did not happen here."

The charges include such offenses as minors in possession of alcohol, public intoxication and driving while suspended, Hamner said. The charges were dismissed Tuesday.

"None of them involve victims," Hamner said, adding that cases involving victims go to the county courts.

Neither Hamner nor Greenwood City Court Judge Lewis Gregory identified the person suspected of hiding the records, saying they were following the Greenwood city attorney's recommendation.

However, both said the employee was fired in 2005 and later convicted of theft.

When the files disappeared, Paula S. Borges, 43, Franklin, was court manager. She was fired in late 2005 and later convicted of stealing court funds.

Borges said Wednesday night that she knew nothing about any hidden or misplaced court files and declined further comment.

Greenwood City Court workers discovered the files in late 2005 in a brown cardboard box taped shut and slid far underneath the fired employee's desk, Gregory said.

More from the story:
The charge dismissals are being announced now, Gregory said, because the files were discovered at a time when officials were giving more priority to investigating Borges and the missing funds.

Further, he said, officials decided when the files were found they needed to contact each defendant and schedule one court date for all 191 defendants -- a step that allowed the cases, he said, to be more easily resolved. But since the prosecutor has dismissed the cases, defendants do not need to attend a hearing.

"It had to be first put into the court's computer system so the dismissal could be properly handled," Gregory said.

"It's been a lengthy process of cleaning up." * * *

Officials have no reason to suspect the employee knew the defendants or was hiding the files for defendants' benefit, Hamner said. More likely, he said, hiding the files was simply a way to avoid processing them and reduce the employee's workload.

Posted by Marcia Oddi on Thursday, August 30, 2007
Posted to Indiana Courts

Wednesday, August 29, 2007

Ind. Courts - More on: Indiana Supreme Court only Supreme Court in Nation with No Women Members!

Indiana has the only top court in the nation with no women members, and many in the State of Idaho are doing their best to keep Idaho from becoming the second such state. See this ILB entry from Tuesday.

Currently the only woman justice on the Iowa Supreme Court is retiring and nominees are being selected to fill her spot.

Today the Twin Falls Iowa Times-News reports that two of the four nominees to be submitted to the Governor are women:

BOISE, Idaho - The Associated Press has learned that the Idaho Judicial Council has nominated 4th District Judges Joel Horton and Darla Williamson, 3rd District Judge Juneal Kerrick and Coeur d'Alene attorney Kenneth Howard for the Idaho Supreme Court.

Two sources involved in the nomination process who requested anonymity confirmed the names Wednesday morning.

Now Gov. C.L. "Butch" Otter will select one of the four nominees to fill the spot on the bench being vacated by retiring Idaho Supreme Court Justice Linda Copple-Trout.

Two of the nominees - Williamson and Kerrick - are women, easing concerns from some legal experts that Idaho could become one of only two states without a woman on its highest courts. The other state is Indiana. [emphasis added]

Posted by Marcia Oddi on Wednesday, August 29, 2007
Posted to Indiana Courts

Ind. Courts - US Attorney Susan Brooks moving on to Ivy Tech

This Indianapolis Star is reporting this afternoon, in a story by Jon Murray, that:

U.S. Attorney Susan Brooks has accepted a job as the top lawyer for Ivy Tech Community College, officials confirmed this afternoon.

Brooks, who oversees federal prosecutions for the Southern District of Indiana, will start Oct. 1 as Ivy Tech’s general counsel. President Bush appointed Brooks as U.S. attorney in 2001, and legal experts say it’s unlikely he will appoint a successor before his second term ends in January 2009.

Brooks said the job seemed to be the opportunity of a lifetime when Ivy Tech officials approached her.

“I believe in their mission,” she said. “They’re reaching all types of people. They are working to make sure people are trained for the kind of jobs they need.”

Brooks, 47, a Republican, previously was a deputy mayor under Indianapolis Mayor Stephen Goldsmith.

See updated Star story here.

Posted by Marcia Oddi on Wednesday, August 29, 2007
Posted to Indiana Courts

Ind. Decisions - Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit

An opinion has been issued today by Judge John D. Tinder in the case of Baude v. Heath - access the 71-page decision here. The ruling contains an excellent introductory section:

This litigation challenges the constitutionality of Indiana laws that allegedly restrict the ability of wineries, and out-of-state wineries in particular, to sell their product directly to Indiana residents, primarily by orders placed by telephone or over the Internet.

The Plaintiffs are a Michigan winery, Chateau Grand Traverse, Ltd. (“Grand Traverse”), and five individuals, Patrick L. Baude, Larry J. Buckel, Kitty Buckel, J. Alan Webber, and Jan Webber (collectively the “Consumer Plaintiffs), who may be characterized as wine connoisseurs. They have filed a civil rights action, pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment that Indiana’s regulatory scheme violates the Commerce Clause of the Constitution. They also are seeking a court order requiring the State of Indiana (“State”) to permit out-of-state wineries to sell and deliver their product directly to Indiana residents.

This is not the first time that a group of wine connoisseurs has challenged Indiana’s authority to regulate direct shipments of wine. Several years ago, another group of wine consumers represented by two of the same attorneys in this action, brought a similar suit that was ultimately unsuccessful. The Seventh Circuit ruled that Indiana could prohibit the direct shipment of wines to Indiana residents. Bridenbaugh v. Freeman-Wilson, 227 F.3d 848, 854 (7th Cir. 2000). Since then, the legal landscape has changed. In 2005, the Supreme Court held that a state could not discriminate against out-of-state-wineries by prohibiting them from shipping wine directly to consumers if the state’s laws allow in-state wineries to do so. Granholm v. Heald, 544 U.S. 460, 493 (2005). The Court ruled that the Twenty-first Amendment, which repealed Prohibition but allowed states to regulate the sale and distribution of alcohol, did not override the requirements of the Commerce Clause. Id. (This is the constitutional provision that gives Congress the authority to regulate interstate commerce and by implication restricts states from interfering in the interstate flow of goods, an implication often referred to as the Dormant Commerce Clause.)

In keeping with Granholm, the regulatory setting changed, also. Indiana revised its laws to allow wineries to sell their product on their premises, at a non-profit farmer’s market, at three alternative locations, or directly to non-Indiana customers. Wineries could also obtain a permit allowing them to ship wine directly to Indiana customers with whom there had been at least one face-to-face transaction, allowing the winery to verify the customer’s age.

Grand Traverse contends the rules governing this scheme effectively prevent it, and other out-of-state wineries, from competing in the direct sale market in Indiana. The Consumer Plaintiffs contend they are barred from obtaining many wines they desire because of the impracticality of traveling to out-of-state wineries to purchase these wines or to complete the “face-to-face” transaction needed to place further sales over the Internet, by telephone, or by mail.

Additionally, the Plaintiffs contend that Indiana’s regulations effectively discriminate against out-of-state wineries because Indiana prohibits a winery from obtaining a direct sales permit if it holds a wholesale license. They note that many states, including the heavy wine-producing states of California, Oregon, and Washington, provide wholesale privileges to all wineries as part of their basic licensing procedures. These wineries are therefore excluded from obtaining a direct wine shipping permit regardless of whether they wholesale any of their wine, in Indiana or elsewhere.

The Defendant, who is Indiana Alcohol and Tobacco Commission Chairman David L. Heath in name but the State in fact, and the Intervenor-Defendant, the Wine and Spirits Wholesalers of Indiana (“Wholesalers”), contend the laws do not discriminate against out-of-state wineries. They assert that the laws are needed to prevent the sale of alcohol to minors and that the State’s interest in protecting its youth outweighs any incidental burdens on interstate commerce.

The Wholesalers, joined by the State in part, also argue that the litigation is not yet ripe, that Plaintiffs have not shown that they have any interests at stake, and that the laws are needed to protect Indiana’s three-tier system in which producers must sell their liquor to wholesalers who in turn must sell to retailers before the alcohol reaches consumers.

Similar post-Granholm litigation contesting state laws that limit the ability of outof- state wineries to sell their goods directly has occurred in Delaware, Kentucky, Maine, evolution of the Internet, and the challenges it presents to traditional three-tier regulatory structures such as Indiana’s.

Indiana’s current laws are not unique in their general outline. First they protect wholesalers from any substantial encroachment upon their hold over the wholesale wine market in Indiana. Second, they allow Indiana’s still relatively small wine industry, many with sales too inconsequential for a wholesaler’s profitable consideration, to sell directly to the public. This much is plain – from the wording of statutes and the record of this case.

The issue before the court is whether this regulatory scheme clearly discriminates against out-of-state wineries, and if so, whether the State has shown it has a legitimate purpose for this discrimination and that it cannot achieve its ends through less discriminatory means. If the statutes are not clearly discriminatory, then Plaintiffs must show that the burden on interstate commerce is clearly excessive.

All three parties are seeking judgment as a matter of law. Before the court are Plaintiffs’ Second Motion for Summary Judgment (Doc. No. 89), State’s Second Cross Motion for Summary Judgment (Doc. No. 102), and the Wholesalers’ Cross-Motion for Summary Judgment (Doc. No. 106). Additionally, Plaintiffs contend that the Wholesalers disregarded the court’s scheduling deadlines for argument. Plaintiffs have filed a Motion to Strike Wholesalers’ Unauthorized Supplemental Brief Denominated a “Notice of Supplemental Authority” (Doc. No. 146).

This court has jurisdiction over this litigation pursuant to 28 U.S.C. § 1331, and the parties have briefed the pending motions. Also participating, as amicus curiae on the issue of remedy, is the Indiana Winegrowers Guild (“Winegrowers”), an organization representing Indiana wineries.

The court rules as follows. * * *

For the reasons discussed above, the court finds the wholesale prohibition, Ind. Code § 7.1-3-26-7(a)(6), to be unconstitutional insofar as it bars wineries that possess wholesale privileges in states other than Indiana from seeking a Direct Wine Seller’s permit. The court also finds the requirement of an initial face-to-face transaction between a winery and customer prior to direct shipment, as described in Ind. Code §§ 7.1-3-26-6(4), 7.1-3-26-9(1)(A), to be unconstitutional. These two conditions constitute a form of economic protectionism and violate the Commerce Clause of the Constitution.

The court does not find Indiana’s general prohibition of direct shipping, Ind. Code Ind. Code § 7.1-5-11-1.5, to be unconstitutional except with respect to the two specific conditions in the statutory provisions cited above. Nor does the court find the statute allowing an Indiana farm winery to sell its product onsite and at certain other locations, Ind. Code § 7.1-3-12-5, to be unconstitutional. * * *

Entry of Judgment will be by separate order.

Here is the order.

For background, there are a number of ILB entries on "wine shipping," including this one from Nov. 17, 2005 ("Wineries sue over in-state shipments in Indiana, related matters"), and this one from Feb. 2, 2007 ("Wineries sue over in-state shipments in Indiana, related matters").

Posted by Marcia Oddi on Wednesday, August 29, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Note 7th Circuit sanctions in Illinois case

Thanks to Robert Loblaw of the blog Decision of the Day for picking up on Judge Easterbrook's opinion today in the case out of the ND Illinois, Wade v. Soo Line RR Corp.

In an entry titled "More Trouble for 7th Circuit Lawyers," Lobloaw writes:

Discovery sanctions are pretty common these days. Questions about who should pay sanctions - attorney or client - are usually dealt with in private rather than in appellate briefs. And for good reason. In this Seventh Circuit appeal, the plaintiff’s attorneys argued that their client should be personally liable for sanctions relating to withheld documents. Bad idea. The Court finds this to be a clear conflict of interest, and Chief Judge Easterbrook’s opinion suggests that the attorneys are going to be in for a serious spanking from the Court, and perhaps from the state bar as well.
Indeed, Easterbrook's opinion concludes:
Arguments designed to protect the attorney at the expense of the client are precisely the sort of acts that invite discipline. An attempt to defraud the court (and the defendant) by withholding vital documents has been compounded by an effort to make the client bear the consequences.

The judgment of the district court is affirmed except for the amount of fees and costs awarded to Soo Line; that portion of the judgment is vacated and remanded for recalculation. Wade’s attorneys, Steven P. Garmisa, George T. Brugess, Richard A. Haydu, Frank E. Van Bree, and Robert A. Montgomery, are ordered to show cause by September 19, 2007 why they should not be disciplined by this court pursuant to Fed. R. App. P. 46(b)–(c) for conduct unbecoming members of the bar. We will forward a copy of this opinion to the Northern District of Illinois and the Attorney Registration and Disciplinary Commission of Illinois for such consideration as they deem appropriate.

Posted by Marcia Oddi on Wednesday, August 29, 2007
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (0):

In Michael L. James v. State of Indiana , a 6-page opinion, Judge Robb writes:

Case Summary and Issue. Following a jury trial at which he was found guilty of possession of methamphetamine, a Class C felony, Michael James appeals the trial court’s denial of his motion to correct error. Specifically, he raises the issue of whether the trial court properly refused to give him credit for the time he spent incarcerated and on house arrest while awaiting trial on two charges, which were eventually dismissed, for dealing in methamphetamine and possession of methamphetamine. We conclude the trial court did not abuse its discretion in refusing to give James credit for the time he spent on pre-trial house arrest; however, the trial court did commit error in denying James credit for the time he spent in pre-trial confinement. We therefore affirm in part and reverse in part.
NFP civil opinions today (1):

Larry W. Haynes v. Lisa M. Haynes (NFP) - "Larry and Lisa Haynes’s marriage was dissolved in Madison Superior Court. Larry appeals and raises three issues; however, we find the following issues to be dispositive: whether the trial court abused its discretion when it found that Larry’s alcohol use constituted dissipation of marital assets, but that Lisa did not dissipate marital assets when she transferred a three-quarters interest in the marital residence to her children. Concluding that the trial court’s finding that Larry dissipated marital assets is not supported by the evidence, we affirm in part, reverse in part, and remand this case to the trial court with instructions to recalculate its division of the marital estate. * * *

"The trial court’s finding that Larry dissipated marital assets is not supported by the evidence. Because the trial court relied on this finding at least in part in issuing its judgment, we remand this case to the trial court with instructions to recalculate its division of the marital estate."

NFP criminal opinions today (4):

Arvin Cruite v. State of Indiana (NFP)

William Mays v. State of Indiana (NFP)

August Trotter v. State of Indiana (NFP)

Lester T. Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 29, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one

In Spenser A. Krempetz v. State of Indiana, a 15-page opinion, Judge Rucker writes:

Spenser A. Krempetz appeals his sentence of life imprisonment without parole (LWOP) after pleading guilty to murder, a felony, conspiracy to commit murder, a Class A felony, and criminal confinement while armed with a deadly weapon, a Class B felony. Krempetz presents three issues for review which he phrases as follows: 1. Was there sufficient evidence to establish the two aggravators relied upon by the trial court to support the sentence of life without parole? 2. In imposing the sentence of life without parole on the conviction for murder and enhancing the sentences for the other two felonies, did the trial court properly weigh the aggravating and mitigating circumstances? 3. Was the sentence inappropriate under Indiana Appellate Rule 7(B)? We affirm.

Posted by Marcia Oddi on Wednesday, August 29, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on: "'Honk for peace' case tests limits on free speech"

"High court weighs Hoosier free-speech case: Ex-Bloomington teacher says school fired her for comments on Iraq war," is the headline to this story today by Fort Wayne Journal Gazette Washington editor, Sylvia A. Smith. Some quotes:

WASHINGTON – The Supreme Court will decide whether a Bloomington school system went overboard in 2003 when it fired an elementary teacher after comments she made to her class on the eve of the invasion of Iraq or whether her contract wasn’t renewed because she was a poor teacher.

Deborah Mayer told her students she would “honk for peace” when driving by war protests. Some parents complained, and the Monroe County Community School Corp. did not renew her teaching contract.

Mayer, who now teaches seventh grade in Florida, sued. She lost her case, and the appeals court sided with the school. Mayer asked the Supreme Court to take her case on free-speech grounds.

The Bloomington school district said the court should uphold the appeals court’s ruling that schools have the right to tell teachers what to teach and that “job-related speech by an elementary school teacher is not protected by the First Amendment.” * * *

The Supreme Court will either agree to hear the case – ultimately choosing between Mayer and the Bloomington school system – or refuse to consider it, which would be a victory for the school board. The justices have not yet said whether they will accept or reject the case.

“The school system does not regulate teachers’ speech as much as it hires that speech,” the appeals court in Chicago said when it ruled against Mayer in January.

“A teacher hired to lead a social-studies class can’t use it as a platform for a revisionist perspective that Benedict Arnold wasn’t really a traitor, when the approved program calls him one; a high-school teacher hired to explicate ‘Moby-Dick’ in a literature class can’t use ‘Cry, The Beloved Country’ instead, even if Paton’s book better suits the instructor’s style and point of view; a math teacher can’t decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz,” the appeals court wrote.

Mayer’s attorney, Michael Schultz, said she did not subvert the school board’s curriculum because the class was about current events, and “opinions were the curriculum.” He said Mayer appropriately responded when a student asked whether she would ever march in a peace protest, as was described in the “Time for Kids” article the class read.

The judges said Mayer was told she could teach the controversy about the war “as long as she kept her opinions to herself. The Constitution does not entitle teachers to present personal views to captive audiences against the instruction of elected officials.”

In papers Mayer’s attorney filed with the Supreme Court, this description of the situation was called “blatantly false.” Mayer “was never told to keep her opinions to herself until after her class discussed a ‘Time for Kids’ article” about the upcoming war, Schultz told the justices. He said the appeals court implied that Mayer was disobedient when she was not. He said she was following the curriculum to teach current events.

He said the Supreme Court should determine whether teachers have any free-speech protection under the First Amendment.

The school system argued that the justices should take a pass on the case because “Mayer was a failing teacher headed for termination who sought to avoid this outcome by injecting her personal opinions regarding the Iraq war into her elementary school classroom” and then hiding behind the First Amendment.

Earlier ILB entries on this case may be found here (the Jan. 24, 2007) 7th Circuit opinion, here (May 14, 2007 LA Times story), and here (June 24th report).

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

Ind. Decisions - "Appeal, sentence reduction denied in Grayson murder case"

Reporting on yesterday's COA's decision in the case of Robert Schutz v. State of Indiana (NFP), Sophia Voravong of the Lafayette Journal & Courier writes today:

In a nine-page opinion issued Tuesday, a panel of the Indiana Court of Appeals rejected Robert J. Schutz's claim that a trial court committed double jeopardy by sentencing him to murder and criminal deviate conduct based on the same evidence.

The panel also denied Schutz's argument that his sentence be reduced from 110 years to 92 years and that the sentence was inappropriate, based on the homeless man's character and the crime itself.

The 29-year-old -- who was homeless -- pleaded guilty but mentally ill in February 2006 to murder and an elevated Class A felony charge of criminal deviate conduct. * * *

"The State recognized that Schutz received a traumatic brain injury when he was seventeen. ..." Judge James Kirsch wrote in Tuesday's opinion.

"However, the State recognized that this brain injury did not diminish Schutz's ability to understand his actions."

Posted by Marcia Oddi on Wednesday, August 29, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Muncie attorney fails to appear for plea hearing

Updating this ILB entry from Aug. 25th, the Muncie Star-Press reports today:

WINCHESTER -- Muncie attorney Donald McClellan pleaded guilty Tuesday to possession of cocaine and public intoxication, more than a year after he was found urinating on a highway in July 2006.

Under a proposed plea agreement, the cocaine charge against McClellan would be reduced from felony to misdemeanor status. The public intoxication charge is also a misdemeanor.

"I have done a lot of recovery," McClellan, 51, said during an interview. "It has been a great process of recovery."

Special Judge Brian Hutchison of Jay County accepted McClellan's guilty plea on Tuesday in Randolph Superior Court, but took the case under advisement until an proposed agreement McClellan has reached with the Indiana Supreme Court Disciplinary Commission is approved.

Under the terms of that agreement, McClellan said he would receive a 30-day suspension from the practice of law and serve two years of probation.

The Muncie attorney entered an outpatient program at Fairbanks Hospital, Indianapolis, for drug and alcohol abuse last year, and participated in a judges and lawyers assistance program to recover from substance abuse.

Posted by Marcia Oddi on Wednesday, August 29, 2007
Posted to Indiana Courts

Tuesday, August 28, 2007

Environment - "BP gets break on soot limits: Indiana decision insulates firm from new federal rules" [Updated]

Michael Hawthorne of the Chicago Tribune reports today:

Indiana regulators have granted BP another exemption from environmental standards, this time relaxing rules requiring a sharp drop in harmful soot pollution from the company's Whiting oil refinery.

The decision by the Indiana Department of Environmental Management would allow BP to keep releasing the same amount of microscopic air pollution as it does today, despite changes in federal rules that would have required the refinery to cut emissions in half.

Lawyers for the city of Chicago, state of Illinois and environmental groups are asking an Indiana environmental judge to overturn the ruling. They contend that BP should be forced to prove its emissions of particulate matter, commonly known as soot, won't worsen the region's dirty air problems.

Federal environmental regulators, who must sign off before the Indiana ruling takes effect, also are questioning the decision.

See also a similar story, this one from the Gary Post-Tribune, quoted in the second part of this ILB entry from Aug. 25th.

[Updated 8/29/07] See also this April 29th Gary P-T story, headed "Critics doubt emission limit promise by BP," and this NWI Times story of the same date, headed "Complaint: IDEM let BP skip air rule."

Posted by Marcia Oddi on Tuesday, August 28, 2007
Posted to Environment

Ind. Courts - "Lawmakers should look at model diversion programs"

Picking up on their news story yesterday headed "Vanderburgh County diversion program to expand," the Evansville Courier & Press editorializes today:

There was a time when people who committed crimes while under the influence of drugs or alcohol would serve their sentences and then be released — right back into the environment that led them to jail in the first place.

Increasingly, however, the criminal justice system recognizes that alcohol and drug offenders need follow-up treatment and monitoring to prevent them from relapsing into the same criminal conduct.

That's the rationale behind Vanderburgh County's Day-Reporting Drug Court, founded and administered by Superior Court Judge Wayne Trockman. * * *

Initially, Vanderburgh County Prosecutor Stan Levco was opposed to placing drunken drivers in the Forensic Diversion program, but said he changed his mind after determining the program was run exceptionally well.

"I think they monitor them very well," Levco told Courier & Press staff writer Kate Braser. "I am not expecting hordes of drunk drivers will get into this. It will be a very limited number every year."

This development in the program comes as a summer study committee of the Legislature is looking at how to improve Drug Court and Forensic Diversion programs, and whether they could be expanded to more counties. There are now 25 such programs for adults and three for juveniles scattered across the state — meaning some Hoosiers can be sentenced to participate in them while others can't.

The legislative study committee heard testimony last week from the city court judge in Greenwood, Ind., Lew Gregory, who started his own Drug Court program in that fast-growing Indianapolis suburb. Gregory said his program is very similar to Trockman's.

Both programs can point to a track record of success, where records show participants are less likely to be arrested again for committing new crimes than for similar defendants who did not enter Drug Court.

Trockman cited a study showing the average costs to the criminal justice system for Drug Court offenders are about $6,700 less per person than for nonparticipants — most of the difference being in prison and probation costs.

Drug Court and Forensic Diversion is intended for a select group of people who suffer from the disease of addiction or some other mental disorder. It is not intended for violent predators and career criminals, who belong locked up in prison.

But Judge Trockman's program has demonstrated real results in taking people who are on a downward spiral and redirecting them back into law-abiding lives. This is a model program, and state lawmakers ought to look at examples like Vanderburgh County's as they consider how best to replicate drug courts elsewhere.

Posted by Marcia Oddi on Tuesday, August 28, 2007
Posted to Indiana Courts

Ind. Decisions - More on "County shouldn't have issued hog farm permit"

Updating this ILB entry from August 18th, referencing the August 15th Court of Appeals ruling in the case of Rick Cook & Daniel Funk v. Adams County Plan Commission, Eric Mann of the Decatur Daily Democrat writes today:

What began as a local dispute over a large hog-raising operation in central Adams County could have some national repercussions. That was mentioned in passing on Monday as two lawyers from Decatur, Adam Miller and Jeremy Brown, received the approval of the county commissioners to go ahead with an appeal to the Indiana Supreme Court of a recent decision against the county plan commission by the Indiana Court of Appeals.

Speaking of that 2-1 ruling, Brown said, "If we leave it as is, it's bad law for various reasons." Brown, who wrote the county's appeal that was filed with the appeals court, said the three appellate judges were split on the matter.

Brown noted that, although the appeals decision of a ruling in favor of the plan commission by Adams Circuit Court Judge Fred A. Schurger, was 2-1 against the county, the two judges who said the county was in error offered different reasonings for that belief, while the third judge said the matter should have been left up to the county to handle.

Because of no unified opinion by the two-judge majority, Miller, who is the attorney for the plan commission, and Brown said the case must be carried to the state's highest court to seek a more definitive viewpoint. However, Brown added, he is not certain the high court will accept the case. If the court does accept it, a ruling could come this year, he stated.

The matter could have national implications, said Brown and Miller, because people in other states are looking at how this case comes out, since large livestock operations and disposal of waste products are big issues in many places around the country.

The plan commission approved an arrangement last year for Jonas Hilty of rural Monroe to start an intensive livestock operation on County Rd. 100 South. However, two of his neighbors, Rick Cook and Dan Funk, filed a civil lawsuit, saying Hilty did not follow county regulations by having a "long-term lease" from someone on whose land he will spread the manure from his pigs as fertilizer. The lease was for one year with automatic renewal year by year.

In the initial case, Judge Schurger upheld the plan commission's decision to approve the Hilty request. Cook and Funk appealed and won at that level, with one appellate jurist saying that one year is "not long-term."

Miller defended the plan commission, calling Hilty's one-year lease with automatic rewewal "a good lease" and indicating that the plan commission is to be notified immediately if the lease is ever cancelled. Miller further said a supreme court ruling is important because there are many other livestock operations in Adams County with the same lease provisions as the one Hilty has.

Posted by Marcia Oddi on Tuesday, August 28, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One from 7th Circuit today

In Campbell v. Miller (SD Ind., Judge Barker), a 16-page opinion, Judge Wood writes:

James Campbell was arrested in the front yard of his friend’s house by Officer Frank Miller, an Indianapolis police officer who suspected that Campbell possessed marijuana. Miller and another officer each conducted an initial patdown search, which did not reveal any sign of weapons or contraband on Campbell. They decided, however, pursuant to an Indianapolis policy that instructs officers to conduct “immediate and thorough body search[es]” of those under arrest, to take Campbell into the open backyard of his friend’s house and subject him to a strip search involving a visual inspection of Campbell’s anal cavity. The backyard area was in plain sight of those inside both Campbell’s friend’s house and some of the neighbors’ houses; indeed, Campbell’s friend watched the search take place from his kitchen window. After the search, Campbell was issued a citation and released.

Campbell sued Officer Miller, other Indianapolis police officers involved in the arrest, and the City of Indianapolis (“the City”) under 42 U.S.C. § 1983, claiming that the search and the City’s policy that authorized it were unconstitutional under the Fourth Amendment. (He also raised various state law claims not relevant to this appeal.) The case was tried by a jury, which found for the defendants. Campbell appeals, arguing that no reasonable jury could have concluded that this was a reasonable search. He also challenges the instructions to the jury, as well as the district court’s decision to exclude the testimony of three of his potential witnesses. We agree with Campbell in part. While there was evidence to support the jury’s conclusion that Officer Miller had reasonable suspicion to conduct the search, we conclude that no reasonable jury could find that a strip search conducted in public for no identifiable reason conformed with the Fourth Amendment. We therefore reverse the judgment in favor of Officer Miller and remand for entry of judgment in Campbell’s favor on his Rule 50(b) motion. This will necessitate further proceedings on the appropriate remedy. We affirm the judgment for the City, because what was objectionable about the search—that is, its public nature—was not caused by the City’s policy or practice, and there was nothing in the court’s evidentiary rulings that require us to set aside that part of the verdict. * * *

We AFFIRM the judgment in favor of the City, REVERSE the judgment in favor of Officer Miller and REMAND for further proceedings consistent with this opinion.

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

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

For publication opinions today (2):

In Johnny Melvin Holland v. Raymond Rizzo, Valerie Parker, Thor Miller and Randall Gentry, an 11-page opinion, Judge Sharpnack writes:

Johnny Melvin Holland appeals the trial court’s dismissal of his complaint against the members of the Indiana Parole Board (“Parole Board”). Holland raises one issue, which we revise and restate as: I. Whether the trial court abused its discretion by treating the Parole Board’s motion as a motion to dismiss rather than a motion for summary judgment; II. Whether the trial court erred by concluding that Holland was not eligible for parole consideration under Ind. Code § 11-13-3-2; and III. Whether the trial court erred by concluding that Holland was not subjected to cruel and unusual punishment in violation of the Eighth Amendment. We affirm.
In Carol Bay and David Bay v. Michael Pulliam and Cardinal Transportation, LLC, a 6-page opinion concerning binding settlement offers, Senior Judge Sullivan writes:
In the case before us, Zurich did not ascertain that the Nunn Office had authority to approve the $16,700 settlement offer, it merely assumed that to be the case. Accordingly, Zurich acted at its peril with regard to the settlement.

For the reasons heretofore stated, we conclude that the acceptance of the settlement by Claims Manager Pryor was not binding upon the Bays. The Order of the Marion Superior Court is therefore reversed and the case is remanded for further proceedings.

NFP civil opinions today (2):

In Ace Radiator Works, John Wood, Penny Wood and Ace Radiator, Inc. v. Dennis Runkle and Davenport Insurance Agency, Inc. (NFP) , a 6-page opinion, Judge Kirsch writes:

Ace Radiator Works, John Wood, Penny Wood, and Ace Radiator, Inc. (collectively “Ace”) appeal the trial court’s grant of summary judgment to Dennis Runkle and Davenport Insurance Agency, Inc. (collectively “Runkle”). Ace raises the following dispositive issue: whether the trial court erred in granting summary judgment on the basis that its claims against Runkle were barred by the statute of limitations. We affirm. * * *

Assuming a duty by Runkle and a breach of that duty, we conclude that the information contained in these annual statements was sufficient to put Ace on notice that a claim existed against Runkle. When Ace began receiving annual reports from Cincinnati Life that did not conform to the original projection by Runkle, it knew of or, in the exercise of ordinary diligence, could have discovered the alleged breach by Runkle. Therefore, under either a two-year or a ten-year statute of limitations, Ace’s claims were barred because they were not raised within the limitations period. The trial court did not err when it granted summary judgment in favor of Runkle.

Rhonda Dammeyer v. Jerald Miller (NFP) - "In summary, we conclude, based upon Miller’s designated evidence, that questions of fact exist as to whether Miller committed attorney malpractice. Thus, the trial court erred by granting summary judgment to Miller. Because we conclude that the trial court erred by granting summary judgment to Miller based on the designated evidence, we need not address Rhonda’s argument that the trial court erred by failing to consider the application of Indiana Trial Rule 6(B)(2) to Rhonda’s belated response to Miller’s motion for summary judgment. For the foregoing reasons, we reverse the trial court’s grant of summary judgment to Miller and remand for proceedings consistent with this opinion."

NFP criminal opinions today (12):

Walter Blake, Jr. v. State of Indiana (NFP)

Douglas Bullock v. State of Indiana (NFP)

Christopher Gray v. State of Indiana (NFP)

Robert Schutz v. State of Indiana (NFP)

Christopher J. Mathis v. State of Indiana (NFP)

Reginald Orrin Sistrunk v. State of Indiana (NFP)

Arnold Burton v. State of Indiana (NFP)

Howard Harris v. State of Indiana (NFP)

Donald W. Snover v. State of Indiana (NFP)

Tabrina Watts v. State of Indiana (NFP)

John R. Crump v. State of Indiana (NFP)

Todd Murray v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 28, 2007
Posted to Ind. App.Ct. Decisions

Law - Illinois Governor sues over special sessions

Earlier this summer there were stories out of Illinois that the Governor had called their General Assembly into special session, but one house had then simply convened, adjourned, and gone home. Today Jeffrey Meitrodt of the Chicago Tribune reports:

SPRINGFIELD - Gov. Rod Blagojevich has sued House Speaker Michael Madigan for allegedly concocting a scheme to let lawmakers ignore the governor's frequent calls for special legislative sessions. In the lawsuit, Blagojevich accused Madigan of acts "aimed at eradicating the governor's constitutional and statutory powers."

He is asking a judge to order Madigan to hold special sessions at times and dates of the governor's choosing.

Blagojevich did not sue Senate President Emil Jones (D-Chicago), his chief legislative ally, even though few senators have shown up for the same weekend sessions.

The lawsuit comes after months of finger-pointing between the Blagojevich and lawmakers, who are angry about being called to Springfield by the governor almost every weekend in July and August. Many accused Blagojevich of calling "do nothing" sessions as punishment for a summer-long budget impasse.

The unusual suit, filed Friday in Sangamon County, raises questions that sound like something out of a civics test: Can the executive branch ask the judicial branch to compel the legislative branch to meet?

Governors and legislative leaders have battled before over the mechanics of how the General Assembly meets, but the disputes have rarely, if ever, turned into lawsuits, said Richard Winkel, a state lawmaker for 12 years who is now an adjunct professor at the University of Illinois College of Law. Winkel said the courts could refuse to rule on the suit because it would entangle all the three branches of government in the dispute.

"This lawsuit is really a further manifestation of the ongoing power struggle between the governor and the House speaker in Springfield," said Winkel, a Republican.

He pointed out that the judicial branch can be reluctant to intervene in political disputes between the executive and legislative branches.

"There's a separation of powers issue," he said. "They may be unwilling to venture into that."

The Illinois Constitution gives the governor the power to call a special session of the state legislature. But the constitution is not explicit about whether the governor can dictate the exact date and time of the session.

In the lawsuit, which was filed by Blagojevich's general counsel William Quinlan, the governor asks for a court order compelling Madigan to convene a special session with enough members present to vote on legislation on any date or time specified by the governor. Blagojevich also asks the court to order Madigan to follow the governor's special session proclamations in the future.

Though Madigan has not challenged the governor's authority to convene a special session, he has said the governor cannot compel attendance on any specific date or time.

In the lawsuit, Blagojevich claims he does have that authority, pointing to a state law that says the governor shall file any proclamations for a special session with the secretary of state, who "shall take whatever reasonable steps necessary to notify members of the General Assembly of the date and time of the special session."

Though the law doesn't specifically say the governor may set the date and time, Blagojevich says that is exactly what the law means.

Madigan's spokesman, Steve Brown, dismissed the lawsuit as a "farce," adding, "We convened every special session the governor has called."

Typically, each chamber of the legislature has met for 30 minutes or so and has conducted no major business during the weekend sessions. Lawmakers sometimes fell short of a quorum.

Posted by Marcia Oddi on Tuesday, August 28, 2007
Posted to General Law Related

Ind. Law - Attorney General opines that seat belt law covers occupants of truck beds

On July 10, 2007 the ILB posted an entry titled "New seat belt law may not cover occupants of truck bed." It quoted from a story by Bryan Corbin of the Evansville Courier and Press:

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.

Today Corbin reports that the AG has ruled, issuing "a legal opinion that said the state's new seat belt law — which requires all vehicle occupants to wear seat belts — also applies to truck beds, too." Read the opinion itself here. More from Corbin's story:
The issue has been in dispute since the law took effect July 1. A legal opinion posted on the Web site of the Indiana Criminal Justice Institute, the policy and planning agency for law enforcement, specifically recommended police officers not ticket adult passengers for riding in cargo areas. The institute warned the law was not specific enough for such a ticket to stand up in court — and a legally unjustified traffic stop could lead to more serious charges being dismissed.

The state attorney general's opinion reached the opposite conclusion, however. The seat belt law, House Enrolled Act 1237, intended for all pickup occupants to be belted in with a manufacturer-installed restraint.

"The law does not make an exception for occupants in the cargo bed of a pickup truck, nor does it provide an exception for occupants in the passenger area of a motor vehicle when the number of riders exceeds the number of available safety belts installed by the manufacturer," said the four-page opinion, signed by Carter and Chief Deputy Attorney General Gregory Zoeller.

While the attorney general's official opinion is nonbinding, Senate Transportation Chairman Thomas Wyss, the law's author, said he hopes police agencies will interpret it the way Carter has. Wyss was dismayed by the Criminal Justice Institute's legal opinion and requested Carter review the issue.

Posted by Marcia Oddi on Tuesday, August 28, 2007
Posted to Indiana Law

Ind. Courts - Indiana Supreme Court only Supreme Court in Nation with No Women Members! [Updated]

Betsy Z. Russell of the The Spokesman Review - Spokane, WA (registration required), writes today in a story that begins:

BOISE – Depending on the outcome of daylong interviews today, Idaho could become one of just two states with no women on its highest state court.

Idaho Supreme Court Justice Linda Copple Trout, the only woman on the court now, is retiring at the end of the month, and the pool of 12 applicants to replace her includes just four women. When Idaho last filled a Supreme Court position earlier this summer, just two women were among the 19 applicants, and none made the short list passed on to the governor for appointment.

Gov. Butch Otter said then that he was hopeful more women would apply, but he declined to comment Monday on the upcoming appointment. "He is not going to do anything to interfere with the process," said Otter's spokesman, Jon Hanian.

Right now, Idaho is among 20 states with just one woman serving on its highest court, according to the National Center for State Courts. Only Indiana has none. Washington has four.

Peg Dougherty, vice president of Idaho Women Lawyers Inc., said her group is concerned about a lack of women and minorities throughout Idaho's judiciary. Although women make up 24 percent of Idaho's lawyers, only 1.5 percent of Idaho's female lawyers are judges. Just six of 42 state district court judges are women, and only 10 of 87 magistrate court judges.

"These numbers should be alarming not only to women lawyers in Idaho but to every Idaho citizen," Dougherty said.

Nationally, 12.9 percent of female lawyers are members of the judiciary.

[Emphasis added.] The ILB has of course pointed to the absence of women justices on the Indiana Supreme Court before, but did not recognize that Indiana stands alone in this regard.

[Updated 8/29/07]
See also this AP story.

Posted by Marcia Oddi on Tuesday, August 28, 2007
Posted to Indiana Courts

Monday, August 27, 2007

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (8):

In the Matter of J.C.R. v. State of Indiana (NFP)

Patrick A. Bennett v. State of Indiana (NFP)

Michael Keller v. State of Indiana (NFP)

Jason Sowers v. State of Indiana (NFP)

Terrance Bridgewater v. State of Indiana (NFP)

Eugene Wells, Jr. v. State of Indiana (NFP)

Omond Smith v. State of Indiana (NFP)

David A. Cavinder v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 27, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Watch the April 23rd robing ceremony of new COA Judge Cale Bradford

Watch it via Real Video from this link - length approximately one hour. Press release here.

Posted by Marcia Oddi on Monday, August 27, 2007
Posted to Indiana Law

Ind. Law - "Push to create dogfight felony - Opponents seek spectator arrests"

Strengthening the Indiana law against dogfighting, and specifically against attending dogfights, is the subject of a story today in the Evansville Courier & Press reported by Thomas Langhorne. It begins:

In the wake of the Michael Vick dogfighting case, local animal welfare and neighborhood activists are pushing to have attendance at a dogfight declared a felony in Indiana.

Using an animal in a fighting contest, bringing an animal to a contest, promoting or staging such contests and buying or owning animals for fighting are Class D felonies in Indiana, punishable by six months to three years in prison and fines of up to $10,000.

But Indiana is one of 26 states in which watching an animal fight is a misdemeanor offense.

"Spectators provide much of the profit associated with dogfighting," said Marlin Beck, a nationally certified dog trainer and president of the Evansville Animal Control and Education Commission. "The money generated by admission fees and gambling helps keep this so-called 'sport' alive."

Beck said he has enlisted United Neighborhoods of Evansville and Proving Animals Are Worth Saving (PAAWS), a regional no-kill animal rescue organization, in the campaign. Leaders of those organizations confirmed they are contacting local legislators to express support for tougher penalties or enforcement.

Deputy Prosecutor Donita Farr, who handles animal-related criminal cases in Vanderburgh County, endorsed the campaign, while Vanderburgh Humane Society Executive Director Kendall Paul said it is an idea worth exploring.

"If nobody is attending these dogfights, there would be no dogfights," said Farr.

Posted by Marcia Oddi on Monday, August 27, 2007
Posted to Indiana Law

Ind. Gov't. - Miller wants to be separated from Gary

"Divorcing Gary is hard to do: Residents of the Indiana city's lakefront region are divided about legal secession" is the headline to a long story today by Lolly Bowean of the Chicago Tribune.

Posted by Marcia Oddi on Monday, August 27, 2007
Posted to Indiana Government

Ind. Law - "In Indiana, it's war on property tax"

The LA Times today picks up on the Indiana property tax brouhaha/scandal/mess.

P.J. Huffstutter reports, in a lengthy story datelined Indianapolis:

Indiana homeowners are waging war against a system they see as inconsistent and unfair. Many politicians agree with their view. Property tax revenue traditionally helps fund local governments, which set the amounts and help distribute the money to local entities that provide services.

In Indiana, state officials said, there are about 1,000 local township assessors. These elected officials are responsible for, among other tasks, evaluating a property's worth and sending that information on to the state's 92 county assessors, who use the assessments to help set the property tax bills.

State law requires that assessments be based partly on a property's market value, how much it could be sold for. But not all assessors follow state guidelines on how local tax assessments should be conducted -- or are even formally trained to do the job in the first place, said Gov. Mitch Daniels.

"As a result, the process can be unfair," Daniels said in a recent interview. "The local assessments are in some cases outright botched." * * *

"No one understands how the government's figured out how much their property is worth, or why their tax bill is so high. Especially when a neighbor across the street, with the exact same floor plan, has a bill that's half the price," said Melyssa Donaghy of Indianapolis, an activist against property taxes.

But it's not so much the size of the bills that has sparked the public backlash, said D. Eric Schansberg, a professor of economics at Indiana University Southeast in New Albany.

"It's the unpredictability -- of what the assessments are, of what the tax bill's going to be, of how the system even works in the first place -- that gets to people," said Schansberg, who tracks economic issues in the state.

[More] Niki Kelly of the Fort Wayne Journal Gazette writes today about options to the property tax, in a story that begins:
It’s easy to say get rid of property taxes. The hard part is choosing what tax to increase to replace the lost revenue.

Basically, Indiana has the big three – sales, income and property tax.

A brief by the Indiana Fiscal Policy Institute shows that property taxes account for about 31.2 percent of all state and local tax revenue – a percentage that many insiders say is out of balance.

To reduce one, another has to go up. Or does it?

Some Hoosiers are pushing officials to think outside the box.

For instance, Indiana is one of only six states that do not have a graduated income tax – instead charging one state rate to all taxpayers regardless of income. Other states have reaped hundreds of millions in new tax revenue by broadening the base and charging a state sales tax on services.

And some on the federal level – as well as angry Hoosiers – are pushing for a more radical shift to a pure consumption tax only.

“I think everything – even those options I don’t think much of – ought to be on the table,” Gov. Mitch Daniels said. “The urgent need is to reduce property taxes. We’ve talked about it for a long time and now trends and decisions made years ago are all coming together to make this an urgent matter, and in that situation I don’t think you exclude very many options out of hand.”

And of course if the property tax remains in any form, its inequities also must be addressed.

Posted by Marcia Oddi on Monday, August 27, 2007
Posted to Indiana Law

Sunday, August 26, 2007

Ind. Courts - Vanderburgh County diversion program to expand

Kate Braser of the Evansville Courier & Press writes:

A program that for four years has provided a sentencing alternative for convicted drug addicts in Vanderburgh County will expand soon to accept impaired drivers.

Vanderburgh Superior Court Judge Wayne Trockman and Forensic Diversion Program and Drug Court Director Debbie Mowbray said the county's forensic diversion team has planned for years also to address impaired driving. * * *

The Forensic Diversion Program was launched in 2003 with the goal of helping — rather than just punishing — nonviolent criminals.

The three-year program is aimed at offenders with addictive disorders or mental illness and offers treatment instead of simple lockup.

"We had asked Stan Levco from the get-go if we could have drunk drivers, because a drug is a drug is a drug," Mowbray said. "He was adamant about not having drunken driving in our program."

Vanderburgh County Prosecutor Stan Levco said he's been asked a few times a year to expand the program to impaired drivers.

"All these years, they've asked me a few times, and I've said no," he said. "Ultimately, I determined the Forensic Diversion Program is being run exceptionally well."

Levco said the program will be limited to "people who have a chance at success."

"I think they monitor them very well," he said. "I am not expecting hordes of drunk drivers will get into this. It will be a very limited number every year."

Posted by Marcia Oddi on Sunday, August 26, 2007
Posted to Indiana Courts

Environment - More on: Pollution and justice: Kentucky judge orders state to rehear permit for coal-fired power plant

Following up on this ILB entry from August 10th about a power plant permit in Kentucky, where I wrote: "Although the permit process is different, the facts echo many of the same themes as the NW Indiana situation. In this case, however, the pollution would originate in Kentucky and Indiana would be impacted."

Mark Wilson of the Evansville Courier & Press reported yesterday:

Kentucky environmental officials have decided to appeal a judge's decision ordering the state to redo parts of the air pollution permit for Peabody's proposed Thoroughbred power plant in Muhlenberg County.

The Kentucky Environmental and Public Protection Cabinet filed the notice of appeal Thursday — putting plant opponents on notice they will appeal the decision to the Kentucky Court of Appeals. * * *

Peabody Energy has been proposing to spend $2.5 billion to build the 1,500-megawatt, coal-burning power plant since early 2001.

While state officials have filed the notice of appeal, an actual appeal with specific areas of contention has not yet been filed. Peabody, which is joining in the appeal, also offered no specific areas on which it would seek to overturn the judge's decision.

"We're evaluating the court's decision and the options that are available to us," said Beth Sutton, a Peabody spokeswoman. "We believe that the record clearly shows Thoroughbred is designed to achieve state and federal regulations to protect the environment."

However, in his order related to the Thoroughbred project, Franklin (Ky.) Circuit Court Judge Thomas Wingate ruled:

o The state should have required Peabody to look at using low-sulfur coal (instead of locally mined polluting coal) in its evaluation of the Best Available Control Technology for reducing pollution;

o The state should have looked at how the power plant's pollution, in combination with already existing pollution, would affect the environment;

o "Commercially and recreationally significant" vegetation could be affected;

o The state's analysis on how the plant might affect air quality was incomplete because it didn't include all the potential sources of pollution at the plant;

o State officials wrongly based the power plant's permit on what other utility companies had been able to do to reduce pollution instead of considering what could be done specifically with Thoroughbred.

He also noted that the "sheer magnitude" of the project would cause its environmental effects to be felt not only in Kentucky but potentially other states too.

Environmentalists argue the plant would emit tons of pollution that would harm Tri-State air quality and the region's ability to meet national standards, especially if the U.S. Environmental Protection Agency passes a stricter standard for ozone pollution.

Posted by Marcia Oddi on Sunday, August 26, 2007
Posted to Environment

Ind. Gov't. - More on: Open up Commission on Local Government Reform

Following up on yesterday's ILB entry quoting from the Fort Wayne Journal Gazette, Lesley Stedman Weidenbener of the Louisville Courier Journal writes today:

The open-door law requires those agencies, commissions and boards to provide notice about their meetings, post any agenda and keep minutes of the proceedings. The public must be allowed to attend any meeting during which those groups receive information, deliberate, make recommendations, establish policy, make decisions or take final action.

But in this case, the governor's Commission on Local Government Reform is actually an advisory group, meaning it was created not to take any official action but to make recommendations to others for action.

Advisory commissions also can be required to meet in public -- but the law says that's only if they are "created by statute, ordinance, or executive order to advise the governing body of a public agency."

In this case, Daniels didn't use an executive order to create his commission, so it's not subject to the law.

That's certainly not without precedent. Governors and other office holders sometimes bring in groups of advisers to help them tackle difficult problems. Kernan did that when he was lieutenant governor. An informal group helped him create his tax-reform proposal in 2002.

But the difference was that Kernan didn't make a showy announcement introducing his group. Daniels made a big splash, appointing Kernan and Shepard with much fanfare to lead the group as he was trying to deal with a growing property-tax problem, particularly in Indianapolis.

The moment harked back to when the late Gov. Frank O'Bannon announced what he dubbed a "blue ribbon" commission to look at ways to reduce property taxes. That group -- led by two university professors -- had all its meetings in public, even those that included difficult deliberations and political battles over the right course to take.

Ultimately, that commission became so bogged down that O'Bannon finally told the members they didn't have to agree on recommendations. Instead, he just wanted them to offer possible scenarios.

That kind of public discord might be just what Daniels, Kernan and Shepard are trying to avoid with the government-reform group. Daniels said last week that he didn't instruct the group to deliberate in private and it's not clear whether he intentionally chose not to create it by executive order to avoid the open-meetings law.

Instead, Daniels said he's confident there will be plenty of public input on the issue.

"I trust Chief Justice Shepard and Gov. Kernan, the co-chairs, both of whom are extremely sensitive to the need for transparency and openness, to find the right balance here," Daniels said last week. "As in any such context, there will be the need for at least some private deliberations."

The website for the Indiana Commission on Local Government Reform is available here.

Posted by Marcia Oddi on Sunday, August 26, 2007
Posted to Indiana Government

Law - Retirement planning for same-sex couples

Martha M. Hamilton, business columnist for the Washington Post, has a comprehensive article today on retirement planning for same-sex couples. A few quotes:

Unmarried couples lack the automatic legal protections that kick in when one member of a married couple dies. And they lack other advantages in planning for financial security in retirement that are taken for granted by most couples. * * *

Normally workers with traditional pensions can choose at retirement whether to take the full monthly payments or a reduced amount each month in order for those benefits to continue for a spouse's lifetime, should the pension beneficiary die first.

It's a benefit considered so important for the surviving spouse that he or she has to sign a waiver for the worker receiving the pension to qualify for the higher benefits. But pensioners in same-sex couples can't leave survivor benefits to their partners.

Legal experts from the gay and lesbian community say that is just one of many ways in which financial planning for retirement is complicated for same-sex couples. Other examples were given by Susan Sommer, senior counsel for Lambda Legal; Joan M. Burda, who wrote "Estate Planning for Same-Sex Couples"; and Michael Adams, executive director of Senior Action in a Gay Environment: * * *

Long-term care. To qualify for long-term care under Medicaid, individuals need to demonstrate that they have few assets. A married couple isn't forced to sell the house to cover expenses as long as one member still lives in it. Unmarried couples don't have that protection. * * *

Health insurance. Some companies provide health insurance coverage to domestic partners, although it's treated as taxable income.

Posted by Marcia Oddi on Sunday, August 26, 2007
Posted to General Law Related

Saturday, August 25, 2007

Ind. Decisions - Still more on 7th Circuit decision re identity theft

The 7th Circuit issued an opinion Thursday in Pisciotta et al v. Old National Bancorp (see ILB entry here). Yesterday the ILB posted a story by Wired Magazine on the opinion. From the story:

The plaintiffs did not allege direct financial loss and did not claim they had been the victim of identity theft. They alleged they suffered "substantial potential economic damages" and demanded compensation for emotional harm out of fear they would suffer economic damages by those who stole their information.

The bank's customers also demanded a "monitoring procedure to insure prompt notice to plaintiffs of any attempt to use their confidential personal information stolen from the defendants."

The appeals court also ruled that the law in Indiana, where the bank is located, did not protect the customers either.

"Had the Indiana Legislature intended that a cause of action should be available against a database owner for failing to protect adequately personal information, we believe that it would have made some more definite statement of that intent," the court wrote.

The court added that the plaintiffs "have not come forward with a single case or statute, from any jurisdiction, authorizing the kind of action they now ask this federal court, sitting in diversity, to recognize as a valid theory of recovery under Indiana law."

The ILB posted on March 11, 2006 a lengthy entry criticizing HEA 1101 (now PL 125), the identity theft law. Expressing "some thoughts", the ILB wrote near the end of the entry:
HEA 1101's new IC 24-4.9 offers no remedies to those consumers whose security has been breached, other than requiring that they be notified of the breach. What of the remedies that would pause or help repair the damage the breach has caused -- the remedies of security freezes, credit monitoring and credit repair. ...

Short of that, the biggest question here is: Is the new IC 24-4.9 now to be the exclusive remedy available to Indiana residents for these security breaches resulting in disclosure of their information? Or can consumers whose records have been released bring suit for negligence and ask for damages, costs, security freezes, and credit monitoring or credit repair? Will the companies whose negligence resulted in the disclosure be able to claim compliance with the minimal notification requirements of the new law as a defense?

See also this entry from July 27, 2006.

During this year's 2007 session, one of the deficiencies was addressed, the freezing of credit reports. See this April 22, 2007 ILB entry. For background on this issue, see this Feb. 10, 2007 ILB entry.

Now for more on Thursday's 7th Circuit opinion. Computerworld has a story today headlined "Are data breach lawsuits just tilting at windmills? Personal data stolen? Go ahead, sue -- see what it gets you." Read the whole story. Here are some quotes:

For all the concern expressed about companies' exposure to lawsuits in the wake of of data breaches, a decision earlier this week by a federal appeals court shows yet again what a challenge it can be for consumers to actually win redress when one occurs.

The United States Court of Appeals for the Seventh Circuit on Thursday rejected a proposed class-action lawsuit against Evansville, Ind.-based Old National Bancorp (ONB) over a 2005 data-breach incident.

In dismissing the proposed suit, the judges argued that damages were unavailable to the plaintiffs in this case because they had failed to show how they had been monetarily affected by the breach at the bank. * * *

The complaint charged ONB with failing to properly secure personal data that it had solicited from customers through its Web site. The plaintiffs in the case sought compensation from ONB for past and future credit monitoring services that they said they needed to obtain in response to the compromise.

The three judges of the United States Court of Appeals for the Seventh Circuit who heard the case ruled that mere "allegations of increased risk of future identity theft" were insufficient grounds for claiming damages from ONB. "The plaintiffs have not suffered a harm that the law is prepared to remedy," the judges wrote in their decision.

The judges pointed to Indiana's existing data breach disclosure law and said that that statute only required companies to inform individuals of compromises involving personal data. The law does not require "the database owner to take any other affirmative act in the wake of a breach," the judges noted. Its only in situations where a breached entity fails to notify affected individuals that the law can be enforced, and that too only by Indiana's Attorney General, the judges noted.

The law does not provide for private right of action by consumers and neither does it allow them to ask for compensation in breach situations, they noted.

"Had the Indiana legislature intended that a cause of action should be available against a database owner for failing to protect adequately personal information, we believe that it would have made some more definite statement of that intent," the judges said.

The story goes on to look at the status of other states. It concludes:
Legal experts have said such cases highlight the need for an overhaul of state data breach laws. Indeed, some states have already done just that or are working towards that goal. Minnesota, for instance, recently passed a new Plastic Card Security Act that holds breached entities responsible for reimbursing banks and credit unions the costs associated with notifying and reissuing cards after a breach.

The law also allows private citizens to bring lawsuits against breached companies. California passed a similar law recently, though it does not provide for private right of action.

"The current case is in line with recent and past decisions regarding potential future economic harm" resulting from data breaches, said Christopher Pierson, partner at Lewis and Roca LLP a Phoenix-based law firm. "The courts have pretty much decided that if you don't have a cognizable case of current harm you are not going to be able to receive damages," Pierson noted.

"Lawsuits brought under traditional negligence norms will not be successful. Courts are just not going to award damages and let these cause of action go forward unless there is actual harm," from a data breach.

Even in those cases, actually proving that the harm resulted from a specific data breach can be incredibly hard especially given the high number of data breaches being disclosed these days, Pierson said. "It's going to be difficult for an individual to prove that it was actually company A's breach as opposed to company B's breach that caused them harm."

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

Environment - Study shows how BP could likely could expand its refinery without the added pollution; air variance challenged

Crain's Chicago Business posted some interesting news August 23rd, in a story by Greg Hinz. Some quotes:

Bowing to a storm of political pressure — and to an unreported study suggesting that the company was needlessly soiling its reputation — BP America Thursday backed off plans to sharply increase the pollution it dumps into Lake Michigan.

The U.S. subsidiary of the London-based petroleum giant announced that it will not make use of higher discharge limits for ammonia and suspended solids that have been approved by authorities in Indiana as part of a proposed $3.8-billion expansion of its Whiting refinery.

The company said it will work to develop an expansion that will avoid boosting pollution but, if need be, will cancel the project. * * *

The announcement also came as word began to spread of a study that BP likely could expand its refinery without the added pollution if it spent “less than $30 (million) to $40 million” on technical tweaks.

The study, a copy of which was made available to Crain’s, was prepared for the Chicago Department of Environment by Tetra Tech Inc., a prominent engineering firm. * * *

Howard Learner, executive director of the Environmental Law and Policy Center, termed BP’s announcement “absolutely the right step in the right direction.”

Mr. Learner said he believes BP had heard of the Tetra Tech study and similar conclusions by other technical experts that design changes and other revisions could be used to cut pollution.

Proceeding with the previous plan “would have made them a laughingstock,” Mr. Learner said. “This announcement was a recognition that there are technical things that can be done” to avoid pollution.

The Tetra Tech study concluded that Whiting could gain by installing one of several types of available anti-pollution equipment that have been used elsewhere to “effectively remove (increased) ammonia nitrogen and (suspended solids) from wastewater.”

Based on efforts at other refineries, such work at Whiting “is estimated to cost less than $30 (million) to $40 million,” a draft version of the firm’s report to the city states. “Actual cost is expected to be less than this.”

BP spokesmen failed to return calls seeking comment on whether it was aware of the Tetra Tech study.

But the firm said it has agreed to work with Argonne National Laboratory and the Purdue Calumet Water Institute “to identify and evaluate emerging technologies with the potential to improve wastewater treatment across the Great Lakes.”

BP previously had argued that it was using the best available technology.

On another tack, BP's application for an air variance is under attack, according to this story today by Gitte Laasby in the Gary Post-Tribune:
BP and the Indiana Department of Environmental Management are facing new opposition against BP's air variance.

The City of Chicago, the Illinois Attorney General, the Natural Resources Defense Council and the Environmental Law and Policy Center filed a petition Friday for administrative review of the air variance IDEM Commissioner Tom Easterly granted BP on July 5.

The variance allows BP to continue to emit the same amount of tiny particles into the air as now.

Because the U.S. Environmental Protection Agency doubled its estimates of how much particulate matter is emitted from gas, BP would have to reduce its emissions by about 50 percent to comply with its current limits.

But the Illinois petitioners argue that BP and IDEM haven't proven that can't be done.

"The Variance and Order provide no evidence of technical infeasibility or economic infeasibility for BP. The burden should be upon BP to demonstrate that all feasible engineering alternatives have been considered and evaluated," the petition states.

"BP should be required to submit detailed cost data for all technically feasible alternatives considered as well as detailed analysis of why implementation of the most protective alternatives would result in 'severe economic hardship.'"

The petitioners say that the emissions may contain heavy metals such as lead and can cause respiratory conditions.

Because the emissions sometimes blow the three miles into Illinois and Chicago, air quality there would be affected.

IDEM argued that the Office of Environmental Adjudication (OEA) should reject Illinois' petition because it was incomplete.

Illinois countered that rejecting the petition would prevent a "meaningful public review of IDEM's decision."

An OEA environmental judge is expected to respond in the coming weeks.

Meanwhile, environmentalists in Indiana and Illinois are putting pressure on BP to formalize its pledge not to increase pollution into Lake Michigan.

They want BP to file for a new or modified permit with the old limits so IDEM can legally enforce them.

See this earlier P-T story on the air variance from August 9th.

Posted by Marcia Oddi on Saturday, August 25, 2007
Posted to Environment

Ind. Gov't. - Secretary of State's new online Business Entity Creation site

A reader writes: "The new site, just up, apparently has been promised since before Sue Ann Gilroy was elected, and now that it is up, I thought the lawyers around the state ought to know." Access it here.

Posted by Marcia Oddi on Saturday, August 25, 2007
Posted to Indiana Government

Ind. Gov't. - Henry County zoning amendment would allow the CAFOs closer to some homes

Joy Leiker of the Muncie Star-Press reports today, in a story that begins:

NEW CASTLE -- Homes built on residentially-zoned land would have more protection from confined feeding operations than homes built on property zoned for agriculture if the Henry County Board of Commissioners edits current zoning law.

The difference comes down to a single phrase in the zoning rules, and on Thursday the Henry County Planning Commission voted 5-4 to recommend that county commissioners make the change to the law, which was adopted in 2004. County commissioners likely will consider the amendment at a meeting next month.

And though the change in wording from "residential use" to "residential district" might appear minor, it affects many rural Henry County residents, though county officials have no count or estimate of the number.

During Thursday night's meeting, Emily Hammersmith chastised the nine members of the planning commission for not knowing, or researching, how many people would be affected by the change. Hammersmith lives southeast of Mount Summit, and said the commission was "stripping all rural residents of any protection that they have."

For years, farmers have sold small sections of their land to people wanting to build a house in the country. They've also spliced their farm land for their own homes or for homes for other family members, and as a result, homes now stand on land zoned for agriculture. Homeowners could have sought to have their rural property rezoned, and can still do so now, but many don't.

Hammersmith was one of about 100 people to attend Thursday's meeting and participate in a public hearing that lasted 90 minutes. She asked the commission to give every homeowner who lives on property zoned for agriculture an opportunity to be rezoned, and also asked that the county send a certified letter to every affected resident, rather than just publish the required legal notice in the newspaper.

The change in wording affects more than just the distance between confined feeding operations and a neighbor's property line. There are 19 "uses" that stipulate a minimum setback from residential-zoned properties, including everything from an airport (2,000 feet) or junk yard (1,320 feet) to nursing home (75 feet) or prison (2,000 feet).

But those distances decrease if those institutions neighbor property zoned for agriculture, and in the case of a neighboring confined feeding operation, the distance drops from 2,000 feet to 300 feet. The distance requirement for a livestock sale barn next door would decrease from 2,000 feet to 40 feet.

And though planning commission members didn't want to discuss those numbers, or specifically talk about CAFOs, that's what was on the minds of most of the 20-plus people who addressed the group in a former courtroom.

Posted by Marcia Oddi on Saturday, August 25, 2007
Posted to Indiana Government

Ind. Gov't. - Open up Commission on Local Government Reform

So opines the Fort Wayne Journal Gazette in an editorial today:

The Indiana Commission on Local Government Reform could lead to significant changes in how government serves, represents and taxes Hoosiers, but it got off to an inauspicious start Wednesday by meeting behind closed doors.

Yes, the respected co-chairmen – former Gov. Joe Kernan and Indiana Chief Justice Randall Shepard – briefed reporters on what happened. To its credit, the commission plans to gain public input in several ways, accepting e-mails and letters, and planning public testimony at hearings.

And no, the commission does not appear to be subject to Indiana’s Open Meetings law, which requires much of the rest of Indiana government to meet in public.

But the commission is most certainly dealing with the public’s business. And it’s difficult to believe the first meeting would involve material so secret and sensitive that allowing the public to listen and watch would derail its mission: Making local government more efficient by eliminating or consolidating certain offices and services.

Gov. Mitch Daniels is right to seek ways to improve the structure of local government. Starting with a commission is a sound idea, and most of his appointments have been both appropriate and politically astute.

In some ways, appointing the commission acknowledges that a bill adopted in 2006 allowing local governments to restructure themselves has not succeeded. A statewide approach is both appropriate and, most likely, necessary.

But the commission can learn one lesson from so far unsuccessful efforts to combine Fort Wayne and Allen County governments: Secrecy breeds distrust. Many of the earlier efforts to seek ways to combine the two governments were conducted by government and business elite without informing or involving the public, giving opponents credibility when they attacked the process.

The commission should make private meetings the exception, not the rule. All its meetings should arguably be open.

If the commission thinks some private meetings are really necessary, they should be limited to subject matter similar to what state law allows to be discussed behind closed doors – personnel and strategy.

All of the commission members are well accustomed to working under public scrutiny. Collectively, they would best serve Hoosiers and have the best chance of success if future meetings are open to the public.

Niki Kelly of the Journal Gazette reported Thursday on the new Commssion. Some quotes:
Besides seeking input from Hoosiers, the commission will have at least three public moderated forums statewide – possibly in October – where Hoosiers can come speak their minds.

But the real decisions will be made behind closed doors – as the group’s first meeting was Wednesday.

And virtually all the grunt work will be done by the Indiana University School of Public and Environmental Affairs – including interviews with those who have direct interests in various levels of government.

“Part of our task here is the very short time frame under which we’re operating and an incredibly complex matter. That’s part of it. And the ability to tease out and challenge ideas without worrying about whether somebody gets the idea that that’s the answer we think in the end will make for a better product,” Shepard said.

Recommendations are due from the group in December, which Daniels originally said would make the ideas available for the 2008 legislative session starting in January.

Recently, though, Daniels has said he believes there should be a yearlong debate on the ideas during the 2008 election year, with the legislature considering proposals in 2009 and 2010.

The new Commission has a website, I'm told, but the ILB does not have the link.

Posted by Marcia Oddi on Saturday, August 25, 2007
Posted to Indiana Government

Ind. Decisions - "Appeals judge vacates charge: But won't affect man's time in jail"

Friday's Court of Appeals NFP decision in the case of Gerald A. Norrell v. State of Indiana is the subject of a story today by Kate Braser in the Evansville Courier & Press. Some quotes:

A judge with the Indiana Court of Appeals agreed in part with an appeal from an Evansville man convicted on charges that were based on accusations he bound his sleeping roommate at the wrists, beat her and nearly strangled her to death with an electrical cord.

A jury previously convicted 31-year-old Gerald Norrell of attempted murder, aggravated battery and criminal confinement in the July 30, 2005, attack on Jessica Conner, 22. * * *

However, the Sharpnack also agreed in part with Norrell, ruling the convictions were based on one continuous act, and therefore Norrell should not have been convicted separately for the same offense.

Explaining it was "impossible" to know which acts the jury based its convictions on, Sharpnack vacated Norrell's conviction for criminal confinement as a class D felony.

"We conclude there is reasonable possibility that the jury used the same evidence, the placing of an extension cord around (Conner's) neck, to establish the essential elements of both the attempted murder and criminal confinement convictions," Sharpnack said.

Vanderburgh County Prosecutor Stan Levco said Norrell was sentenced to serve his convictions concurrently, so the ruling won't alter the 30-year sentence. The appeal was the latest move in a case that suffered repeated delays during its course in the local courts.

Norrell's original defense attorney removed himself from the case after it was reported Norrell had shared plans to hire a hitman to kill the attorney. Before his sentencing, Norrell was admitted to the hospital after a suicide attempt.

Posted by Marcia Oddi on Saturday, August 25, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Muncie attorney fails to appear for plea hearing

Updating this ILB entry from Dec. 20, 2006, quoting a story in the Muncie Star-Press which began "A Muncie attorney who authorities said had cocaine in his possession after he was caught urinating in the middle of a state highway has apparently reached a plea bargain with the Randolph County prosecutor's office," the Star-Press reports today, in a story by Rick Yencer which begins:

WINCHESTER -- A Muncie attorney facing a felony cocaine possession charge was a no-show for a Friday hearing to change his not guilty plea.

Donald K. McClellan, rural Selma, also faces action from the Indiana Supreme Court Disciplinary Commission from the alleged criminal conduct, which could affect his law practice.

Special Judge Brian Hutchison reset the hearing for Tuesday at 8:30 a.m. in Randolph Superior Court after giving McClellan and his attorney, Michael J. Alexander, a stern warning if McClellan failed to appear again.

"You will sit without a bond until the trial is set," said Hutchison, Jay County Circuit Court judge. "You are aware of that."

McClellan, on a telephone conference with his attorney, the judge and the prosecutor, replied, "Yes."

Alexander took the blame, saying he only had a telephone status hearing on his schedule.

Keith Dilworth, Randolph County deputy prosecutor, said the docket clearly showed Friday's date as a change of plea hearing. The case, filed July 18, 2006, has been continued for more than a year.

Alexander and Dilworth declined to comment on the plea or whether McClellan was seeking the drug charge reduced to a misdemeanor.

McClellan faces formal charges of possession of cocaine, a class D felony, and a misdemeanor charge of public intoxication.

Posted by Marcia Oddi on Saturday, August 25, 2007
Posted to Indiana Courts

Ind. Law - Hoosier homeowners hit by perfect storm [Updated]

The property tax mess has many homeowners trying to sell their homes; they can no longer afford their ever-balloning tax bills.

Some other homeowners are directly impacted by the sub-prime mortgage scandal, with their monthly payments suddenly taking enormous jumps.

Some are directly hit by both.

The perfect storm comes from the fact that people can't get mortgages any more, often even traditional mortgages with good credit, because the sub-prime scandal has impacted the entire mortgage market.

Furthermore, rates are up and refinancing to adjust for your increased property tax bill is no longer the option it was three years ago with the first property tax "bump."

As a result, Hoosier home prices are rapidly spiraling downward. At the same time homes have been assessed based on sales from two years ago. So you are being required to pay taxes based on assessed values that you couldn't possibly sell your home for, even if the proposed buyer could get a mortgage.

And there is no solution in sight.

The Indianapolis Star has a story by Ted Evanoff this morning headlined "Subprime loan crisis threatens to broaden: Even homeowners, borrowers who have good credit may feel effects, experts say." Some quotes:

Now experts forecast a painful downturn in the housing market and a spate of home foreclosures and personal bankruptcies that will hammer many neighborhoods, including some in metropolitan Indianapolis, where families are already grappling with the prospect of rising property taxes.

Subprime loans were given to borrowers who don't qualify for conventional loans with low interest rates because of a poor credit history.

Even if you don't face foreclosure, an increase in foreclosures in your neighborhood could drive down your property values. Additionally, homeowners seeking to refinance could face tougher approval standards.

"We're in a vicious cycle of trying to rectify this, but it's going to be awhile before it is worked out," said Stephen Byers, managing attorney at Indiana Legal Services in Indianapolis.

The Star includes a useful side-bar to today's story. But it doesn't really give the over-arching picture; the story goes way beyond homeowners caught up in the sub-prime mortgage quagmire - the perfect storm will impact much of the state.

Yesterday the NY Times had a good article headlined "States Begin Action on Subprime Lending." It describes what other states are doing. Indiana is not mentioned. Some quotes:

Gov. Michael F. Easley of North Carolina signed legislation last week that would limit the ability of mortgage brokers to charge customers above-market rates and prepayment penalties and would protect subprime borrowers from highly risky adjustable-rate mortgages.

Calling the mortgage meltdown a “wake-up call,” Mr. Easley said, “If Washington isn’t going to act, the states are.”

But amid his call for action was regret that if only officials in his and other states had acted a couple of years sooner, some of the mortgage problems that have roiled the financial markets and hurt homeowners might have been avoided.

“I should have watched this closer; all of us should have on the state level,” he said in an interview after the signing ceremony in Raleigh. “We should have looked at our laws closer and made some changes.”

North Carolina is one of about a dozen states that are beginning to make legislative and regulatory changes to protect people who resort to subprime financing. But economists and housing specialists say the actions come too late to benefit most of those at risk of losing their houses.

With foreclosures expected to rise as adjustable-rate mortgages are reset and the borrowers face higher monthly payments, economists said the steps that states like North Carolina were taking would do more to protect future borrowers than help people already in trouble. * * *

State governments have ample legal powers over the subprime market, but governors, legislators and regulators have been reluctant to intervene. They have limited staffs and financial resources to regulate the large, fragmented market, and they fear doing more harm than good — like stamping down home-lending money for working-class people or moving it to other states.

In some states, officials were hesitant to help bail out people who had made bad decisions for fear this would only encourage more risky borrowing. “You know that people are not as financially literate as they ought to be,” Governor Easley said as he signed the new law.

State governments are beginning to take modest action in part because the federal response has been slow. * * *

Lawmakers in a handful of states — including Maine, Minnesota and Ohio — have passed measures to tighten restrictions on subprime lending. Illinois, New York and Massachusetts have formed task forces and held meetings involving members of the mortgage industry, lenders and consumer representatives to figure out ways to rework problem loans. Minnesota is acquiring some foreclosed properties to resell to low-income people.

Several states are considering laws and regulations to make mortgage brokers accountable for allowing borrowers to take on debts they cannot repay.

In all, legislators in more than 30 states have introduced close to 100 bills intended to stem deceptive-lending practices and foreclosure, some by stiffening criminal penalties.

Maryland, Massachusetts, New Jersey, New York, Ohio and Pennsylvania have rolled out mortgage programs intended to refinance loans by homeowners at risk, using the proceeds from state bond issues and money from federal lending agencies. Together, the programs amount to about $500 million but are expected to help a relatively small number of people. * * *

Ohio initially planned to sell $100 million in taxable municipal bonds in a mortgage-refinancing program intended to help property owners get fixed-rate mortgages on which they could make the payments. But the state cut the program back to $25 million because so many people were already in foreclosure or not eligible for the loans.

Mr. Kukla said Ohio had had a degree of success with a law passed last year requiring lenders in subprime deals to document and verify their borrowers’ ability to repay. But Ohio remains a subprime-mortgage disaster zone, with the country’s highest foreclosure rates after California and Florida. * * *

Economists and mortgage specialists say they think that states will take more action in the fall when legislators return to work, but they predict that progress will continue to be mixed.

“You have 50 state regulators, 50 state agencies, 50 state governors looking at a massive market and deciding to tweak it around the edges to make it more fair,” said Karl E. Case, a Wellesley College economist specializing in real estate. “That’s a very difficult task, particularly in a fragmented market.”

What has Indiana done? For background start with this lengthy ILB entry from March 7th, titled "Ind. Law - Fighting foreclosures and mortgage fraud," and this update from May 9th.

[More] See the Chicago Tribune story today headed "The next credit crunch? As home loan market tightens, mounting credit card debt could spur new crisis."

[Updated 9/26/07] The Sunday Fort Wayne Journal Gazette has this lengthy story by Sherry Slater headed "Mortgage meltdown: Subprime crisis fallout hitting wallets near, far."

Posted by Marcia Oddi on Saturday, August 25, 2007
Posted to Indiana Law

Friday, August 24, 2007

Ind. Decisions - More on 7th Circuit decision re identity theft

Picking up the 7th Circuit opinion yesterday in Pisciotta et al v. Old National Bancorp (see ILB entry here), David Kravets writing for Wired Magazine, reports:

Tens of thousands of Old National Bancorp customers whose personal and financial information was hijacked by a computer hacker cannot recover damages from the Indiana banking institution who lost the data in 2005, a federal appeals court ruled Thursday.

In dismissing a proposed class action against Old National Bancorp, the 7th U.S. Circuit Court of Appeals said damages were unavailable to victims of data theft if those victims did not suffer economically.

The three-judge panel of the circuit, mirroring decisions of federal courts in Ohio, Minnesota, Arizona and Michigan, ruled : "Without more than allegations of increased risk of future identity theft, the plaintiffs have not suffered a harm that the law is prepared to remedy."

The plaintiffs did not allege direct financial loss and did not claim they had been the victim of identity theft. They alleged they suffered "substantial potential economic damages" and demanded compensation for emotional harm out of fear they would suffer economic damages by those who stole their information.

The bank's customers also demanded a "monitoring procedure to insure prompt notice to plaintiffs of any attempt to use their confidential personal information stolen from the defendants."

The appeals court also ruled that the law in Indiana, where the bank is located, did not protect the customers either.

"Had the Indiana Legislature intended that a cause of action should be available against a database owner for failing to protect adequately personal information, we believe that it would have made some more definite statement of that intent," the court wrote.

The court added that the plaintiffs "have not come forward with a single case or statute, from any jurisdiction, authorizing the kind of action they now ask this federal court, sitting in diversity, to recognize as a valid theory of recovery under Indiana law."

The court noted that the investigation into the security breach was under seal. But the judges added that "the scope and manner of access suggests that the intrusion was sophisticated, intentional and malicious."

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

Ind. Decisions - Transfer list for week ending August 24, 2007

Here is the Indiana Supreme Court's transfer list for the week ending August 24, 2007.

There were two transfers granted this week, summarized in this entry from earlier today.

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, August 24, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decides one Indiana case today; also an EPA case out of Illinois

In Morales v. Bezy (SD Ind., Judge McKinney), a 13-page, 2-1 opinion with a dissent beginning on p. 8, Judge Posner writes the majority opinion in this appeal presenting issues concerning postconviction relief. Judge Rover's dissent begins:

The court today resolves that a man who under our circuit law is innocent of the federal crime for which he has been imprisoned, should remain in prison on the chance that the Supreme Court will disagree with our understanding of the law and deem his conduct a crime. It is the antithesis of our justice system to hold that an innocent man should be imprisoned for fear that a guilty man will go free. Schlup v. Delo, 513 U.S. 298, 325 (1995) (“Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected . . . in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ ”). Yet that is what the court has chosen today, and I respectfully dissent.

The majority declares that the question of Morales’ innocence is in limbo because there is an intercircuit split, which the Supreme Court may resolve next year in a case in which it has granted certiorari. But the definition of actual innocence cannot hinge on the status of certiorari petitions in the Supreme Court, and an intercircuit split should not preclude an actual innocence claim on the possibility that the Supreme Court in the future may hear the issue and decide differently. Until the Supreme Court tells us otherwise, our cases should control, and under our caselaw, he has a meritorious claim of actual innocence. In addition to revealing an unsettling level of insecurity about the soundness of our own decisions, the majority’s reliance on the certiorari status of other cases poses all kinds of problems, including the real possibility that the Supreme Court will subsequently decide that certiorari was improvidently granted, or will otherwise fail to reach the merits when the claim is heard. Moreover, it is inconceivable that we would pursue the same path in a case with a circuit split but no similar case pending before the Supreme Court. In that case, the defendant faces the same circuit split, and there is still the possibility that within a year or less the Supreme Court would reject our cases. Yet, that defendant would be set free, and this one is not. The law should not tolerate such arbitrariness. That, of course, assumes that the majority would not require that defendant to wait as well. It appears that whether a defendant may proceed with his claim of actual innocence or not depends on whether we think the Supreme Court will rule on a case in the future, perhaps only the near future. In any case, it allows a defendant with a claim of actual innocence to languish in prison indefinitely awaiting a Supreme Court action that might never occur.

There is simply no support in any caselaw for interjecting such a consideration into the analysis of whether a defendant may proceed on a claim of actual innocence. Until the Supreme Court actually decides an issue, we should follow our circuit’s decisions concerning statutory interpretation, and under that law he has a valid claim of innocence.

In Sierra Club v. EPA (from the Env. Appeals Bd.), Judge Posner writes:
The federal Environmental Protection Agency (actually, Illinois’s counterpart to the EPA, exercising authority that the federal EPA had delegated to it, but we can ignore that detail) issued a permit to Prairie State Generating Company to build a 1,500- megawatt coal-fired electrical generating plant in southern Illinois, near St. Louis. Environmentalists asked the EPA’s Environmental Appeals Board to reverse the issuance of the permit, and, the Board having refused, In re Prairie State Generating Co., No. 05-05 (EAB Aug. 24, 2006), they renew the quarrel in this court. They claim that the EPA violated two provisions of the Clean Air Act. One requires as a condition of receiving a permit that a plant or other source of air pollution be designed to have the “best available control technology” for minimizing pollution emitted by the plant. 42 U.S.C. § 7475(a)(4). The other attaches the further condition that the plant’s emissions not exceed the limits imposed by the Act’s national ambient air quality standards. § 7475(a)(3). The petitioners’ first claim relates to the sulfur dioxide that will be produced as a byproduct of the production of electricity by Prairie State’s plant, the second to the ozone that it will produce. * * *

So the Board’s ruling on the BACT issue must be upheld, and we move on to the ozone issue. * * *

The petitioners argue that the EPA simply cannot be permitted to rely on the 1-hour standard because it has been superseded by the 8-hour standard. It has; but pending adoption of a compliance measure tailored to the new standard, the agency was entitled to use the measure used for the older standard as a stopgap to demonstrate that if the plant complied with that measure it would be unlikely to violate the new standard. The petitioners do not suggest an alternative except to criticize the inference the agency drew from earlier studies. The criticisms have some merit but not enough to enable us to conclude that the agency was unreasonable in concluding that the plant is unlikely to increase the ozone level. The petition for review is DENIED.

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

Environment - "BP pledges no increase in Lake Michigan discharge limits at Whiting refinery"

Here is the word, as posted on the BP website, dated Aug. 23rd. It begins:

WARRENVILLE, ILL.- BP America today promised to operate its Whiting refinery to meet the lower discharge limits contained in the refinery's previous wastewater treatment permit.

"We have participated in an open and transparent permitting process with the State of Indiana and obtained a valid permit that meets all regulatory standards and is protective of water quality and human health. Even so, ongoing regional opposition to any increase in discharge permit limits for Lake Michigan creates an unacceptable level of business risk for this $3.8 billion investment," said BP America Chairman and President Bob Malone.

BP has obtained regulatory approval to increase average daily discharge limits for ammonia from 1,030 to 1,584 pounds per day and for total suspended solids (TSS) from 3646 to 4925 pounds per day to modernize the Whiting refinery and greatly increase the amount of Canadian heavy crude it can process.

During the next 18 months, BP will continue to seek issuance of other permits, continue project design and explore options for operating within the lower discharge limits. BP America notified the State of Indiana of its decision late yesterday afternoon and reiterated its dedication to the proposed refinery expansion.

An opinion piece today in the Gary Post-Tribune is titled "BP's decision results in winners all around." Some quotes:
There were a good number of winners Thursday when BP America announced it will not increase the amount of pollution it dumps into Lake Michigan.

Foremost among the winners are those who worked tirelessly for recession of the approval to allow BP to dump more ammonia and suspended solids into the lake from its Whiting refinery.

Those who rely on Lake Michigan for drinking water and recreation also were winners. And, the fish and the plant life that make their homes in Lake Michigan also were among the winners.

We, too, look upon BP as a winner for making a difficult decision. The company could have moved ahead with putting additional pollutants into the lake and still been within the bounds of state and federal discharge regulations.

In bowing to the pressure from environmentalists and politicians, BP could have abandoned plans for the $3.8 billion investment at the Whiting refinery. But, admirably, the company didn't -- instead saying it will work over the next 18 months to seek technical solutions so it can proceed with the expansion plans without adding pollutants to the lake.

There's no guarantee BP ultimately will proceed with the project, but a company official sounded optimistic.

"We are going to work hard to make this project succeed," said Bob Malone, BP America chairman.

It is important for Northwest Indiana that BP is successful, in terms of hundreds of construction jobs, as well as 80 permanent jobs.

Besides making a good corporate decision, BP also said there was a business risk in proceeding with higher pollution levels.

BP's decision shows that corporate America and environmentalists can work together. We applaud all involved.

Gitte Lasby writes today in the Gary P-T:
An environmental law judge has agreed to hear the appeal of BP's wastewater permit submitted by the Alliance for the Great Lakes. The hearing will take place Oct. 30.

Environmental groups and some legislators hope an appeal of the permit will prompt a review of how environmental laws are interpreted and implemented in permits.

Environmentalists have argued that the permit sets a "dangerous precedent" because it was the first time in years that a facility was allowed to increase its discharges into Lake Michigan. That, they say, goes against the Clean Water Act's intent of eliminating discharges to the Great Lakes over time. * * *

In a petition, the Alliance argued that the Indiana Department of Environmental Management denied the public the opportunity to appeal BP Whiting's wastewater permit when IDEM failed to notify people who commented on the permit that the final permit was issued.

State law requires IDEM to send commentors notification and information about the appeal procedure. If IDEM did not give proper notice, the Office of Environmental Adjudication -- which reviews IDEMs decisions -- could allow people to submit belated appeals. On Thursday, the agency agreed to hear the Alliance's case.

"The petitioner has stated sufficient facts to raise legal issues regarding whether a legal exception applies in this instance," Environmental Law Judge Catherine Gibbs said in a statement.

The Alliance, IDEM and BP have until Sept. 17 to submit briefs to the court. A judge will hear oral arguments on Oct. 30.

Max Muller of Environment Illinois said the permit flies in the face of the Clean Water Act and decades of work to clean up of Lake Michigan.

"As long as BP's discharge permit remains on the books in Indiana, it still sets the disastrous precedent of being the first in years to allow a company's increase in pollution into Lake Michigan.

"To ensure Lake Michigan's protection, the permit must be amended -- not just to hold BP to its pledge, but also to avoid setting the standard by which Indiana's Department of Environmental Management issues future permits."

See also this lengthy story from today's Chicago Tribune, written by Michael Hawthorne.

Posted by Marcia Oddi on Friday, August 24, 2007
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 19 NFP)

For publication opinions today (2):

Oscar Eduardo Perez v. State of Indiana - "Based on the foregoing, we conclude that (1) the trial court properly instructed the jury that intent to kill was a required element of attempted murder, and (2) the State presented sufficient evidence to sustain Perez’s conviction for attempted murder. Affirmed."

In Kenneth L. Roney v. State of Indiana , a 22-page opinion, Judge Robb writes:

Case Summary and Issues Following: a guilty plea, Kenneth Roney appeals his sixty-five-year sentence for murder, a felony. Roney raises two issues, which we restate as whether the trial court improperly found and weighed the mitigating and aggravating circumstances and whether his sentence is inappropriate given his character and the nature of the offense. We affirm, concluding that although the trial court found improper aggravating circumstances and failed to find a mitigating circumstance, the sixty-five-year sentence is still proper, and that the sentence is also not inappropriate.
NFP civil opinions today (3):

In Seymour Lodge No. 462, et al v. Frontier Leasing Corp. (NFP), a 7-page opinion, Judge Riley writes:

[Issue] Whether an Indiana court may give full faith and credit to a foreign judgment where personal jurisdiction was based on a forum selection clause in a lease agreement. * * *

Accordingly, before we can set aside the forum selection clause within the Lease in the case before us, the Lodge must clearly show that enforcement of the clause would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud and overreaching. See Dexter, 833 N.E.2d at 48. However, the Lodge fails to put forth any argument here or any support in its designated evidence to show that enforcement of the forum selection clause in the Lease is unreasonable, unjust, or invalid due to fraud or overreaching. Instead, the Lodge focuses on demonstrating why Indiana could have had personal jurisdiction over the parties in the Iowa action, pointing out Frontier’s contacts with the State of Indiana. In directing its argument in this fashion, the Lodge has failed to meet its burden of proving the invalidity of the forum selection clause. The fact that Indiana could have served as a proper venue and obtained personal jurisdiction over both parties does not nullify the Iowa court’s judgment. Thus, the Lodge leaves no genuine issue of material fact to be decided, and we find no misapplication of the law in this case. Accordingly, the presumption is in favor of the validity of the Iowa court’s judgment; consequently, we conclude the trial court properly granted summary judgment in favor of Frontier. See Tandy, 555 N.E.2d at 176.

In the Matter of K.M., Susan Knotts, and Child Advocates, Inc. v. Marion Co. Dept. of Child Services (NFP)

James Victor Hess v. Debra S. Hess (NFP) - "Here, however, our review of the trial court’s findings and conclusions indicates that the trial court considered the multiple factors that are relevant to this decision. Specifically, the court considered that Debra has a teaching degree and teaching experience, which indicate her ability to engage in gainful employment and earn adequate income. In addition, the court considered that James was ordered to pay Debra $628,615.25 over the course of fourteen years. James’ initial lump sum payment to Debra of $100,000.00 was due by March 1, 2006, two months after the court issued its order. Debra clearly had the liquid assets to pay her attorney fees whereas James did not after making the lump sum payment. Lastly, it was Debra who filed the dissolution petition. The trial court’s findings in this case clearly disclose a valid basis for the court’s failure to award Debra $30,000.00 in attorney fees. We therefore find no error. Conclusion. The trial court did not abuse its discretion in distributing the parties’ property. Further, Debra asked the trial court to order 4% annual interest on the judgment and cannot now complain about this rate. Lastly, the trial court’s findings disclose a valid basis for it’s failure to award Debra attorney fees."

NFP criminal opinions today (16):

Leonard F. Owens v. State of Indiana (NFP)

Charles A. Walker v. State of Indiana (NFP)

Phillip Eggleston v. State of Indiana (NFP)

Clifford C. Riley, Jr. v. State of Indiana (NFP)

Dorssie Carter v. State of Indiana (NFP)

Chad R. Sadler v. State of Indiana (NFP)

Roosevelt D. Brooks v. State of Indiana (NFP)

Clarence Covington v. State of Indiana (NFP)

Daniel D. Bollinger v. State of Indiana (NFP)

Gregory S. Tapely v. State of Indiana (NFP)

James W. Cordill v. State of Indiana (NFP)

Scott Allen Earlywine v. State of Indiana (NFP)

Charles C. Darr v. State of Indiana (NFP)

Clifford Helm v. State of Indiana (NFP)

Alton L. Taylor v. State of Indiana (NFP)

Chad Lemons v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 24, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 Thursday (and 23 NFP)

For publication opinions today (4): [details perhaps later]

David Moseby v. State of Indiana

William A. Griffin, Jr. v. Shari L. Griffin

Anthony L. Maloney v. State of Indiana

Barry Cade v. State of Indiana

NFP civil opinions today (6):

Amir H. Sanjari v. Rex L. Reed (NFP)

Termination of Parent-Child Relationship of K.T.N., Jr. and P.D.N.; Kyle Timothy Nance, Sr. v. St. Joseph County Department of Child Services (NFP)

John E. Hendrix v. Mary E. Hendrix (NFP)

Termination of the Parent-Child Relationship of D.G. and G.G.; Gerald Goss, Sr. v. Lake County Department of Child Services (NFP)

Jewel Food Stores v. Lana Bevil (NFP)

Michael & Julia Francis v.Joan Heinz, et al. (NFP)

NFP criminal opinions today (17):

Jason Reynolds v. State of Indiana (NFP)

George Sisk v. State of Indiana (NFP)

Sam C. Collins v. State of Indiana (NFP)

Brett Lee Copple v. State of Indiana (NFP)

Alphonzo Easley v. State of Indiana (NFP)

Timothy L. Wright v. State of Indiana (NFP)

Lloyd E. Hendricks, Sr. v. State of Indiana (NFP)

Demond Hughes v. State of Indiana

Benjamin R. Ortiz v. State of Indiana (NFP)

Jeramey D. Smith v. State of Indiana

Pamela Gomez v. State of Indiana (NFP)

Daniel C. Portee v. State of Indiana (NFP)

Jimmy Dale Edwards v. State of Indiana (NFP)

Gerald A. Norrell v. State of Indiana (NFP)

Anthony Hickman v. State of Indiana (NFP)

In the Matter of D.C. v. State of Indiana (NFP)

Jerry Lynn McClure v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 24, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One from 7th Circuit Thursday

In Pisciotta et al v. Old National Bancorp (SD Ind., Judge McKinney), a 21-page opinion, Judge Ripple writes:

Plaintiffs Luciano Pisciotta and Daniel Mills brought this action on behalf of a putative class of customers and potential customers of Old National Bancorp (“ONB”). They alleged that, through its website, ONB had solicited personal information from applicants for banking services, but had failed to secure it adequately. As a result, a third-party computer “hacker” was able to obtain access to the confidential information of tens of thousands of ONB site users. The plaintiffs sought damages for the harm that they claim to have suffered because of the security breach; specifically, they requested compensation for past and future credit monitoring services that they have obtained in response to the compromise of their personal data through ONB’s website. ONB answered the allegations and then moved for judgment on the pleadings under Rule 12(c). The district court granted ONB’s motion and dismissed the case. The plaintiffs timely appeal. For the reasons set forth in this opinion, we affirm the judgment of the district court. * * *

Without more than allegations of increased risk of future identity theft, the plaintiffs have not suffered a harm that the law is prepared to remedy. Plaintiffs have not come forward with a single case or statute, from any jurisdiction, authorizing the kind of action they now ask this federal court, sitting in diversity, to recognize as a valid theory of recovery under Indiana law. We decline to adopt a “substantive innovation” in state law, Combs v. Int’l Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004), or “to invent what would be a truly novel tort claim” on behalf of the state, Insolia, 216 F.3d at 607, absent some authority to suggest that the approval of the Supreme Court of Indiana is forthcoming. See Todd, 21 F.3d at 1412 (noting that federal courts should be wary of broadening untested theories of liability under state law); see also Insolia, 216 F.3d at 607 (noting that we would neither recognize independently nor certify a question to the state regarding “every creative but unlikely state cause of action that litigants devise from a blank slate”); Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir. 1996) (favoring narrow interpretation of undecided issues of liability under state law); Ry. Express Agency, Inc. v. Super Scale Models, Ltd., 934 F.2d 135, 138 (7th Cir. 1991) (noting that “recent opinions of this court have strongly encouraged district courts to dismiss actions based on novel state law claims”).

In sum, all of the interpretive tools of which we routinely make use in our attempt to determine the content of state law point us to the conclusion that the Supreme Court of Indiana would not allow the plaintiffs’ claim to proceed.

Conclusion Because we conclude that the damages that the plaintiffs seek are not compensable as a matter of Indiana law, we affirm the judgment of the district court.

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

Ind. Decisions - 2 transfers granted today

The following transfers were announced this morning:

Theron Hunter v. State, a NFP issued June 21, 2007, where Judge Riley concludes:

Here, Hunter admits to violating his probation, but nonetheless argues the trial court abused its discretion in ordering him to serve his entire suspended sentence. Hunter submits ordering a portion of his suspended sentence would be more appropriate. Hunter claims “[a]t the most, a mistake was made.” (Appellant’s Br. p. 10). Due to Hunter’s child molesting convictions leading to his probation, and the fact that this violation is directly related to children – improper contact with children – it was not an abuse of discretion for the trial court to require that Hunter serve his entire four-year suspended sentence. Conclusion. Based on the foregoing, we find the evidence was sufficient to revoke Hunter’s probation and the trial court appropriately imposed Hunter’s four-year suspended sentence.
Anthony Stewart v. Signe Vullient (see ILB summary here), issued May 30, 2007, where Judge Sharpnack wrote in part:
Anthony N. Stewart (“Father”) appeals the trial court’s grant of a motion to dismiss filed by Signe L. (Stewart) Vulliet (“Mother”). Father raises three issues, which we consolidate and restate as whether the trial court abused its discretion by dismissing child custody and visitation issues based upon inconvenient forum. On cross appeal, Mother argues that the trial court abused its discretion by finding that Mother waived any argument regarding their child’s home state under the Uniform Child Custody Jurisdiction Act (“UCCJA”), Ind. Code §§ 31-17-3-1 to -25. We affirm in part, reverse in part, and remand.

Posted by Marcia Oddi on Friday, August 24, 2007
Posted to Ind. Sup.Ct. Decisions

Not law but interesting - "At a Family Gathering, an Internet Cafe Breaks Out"

Here is a fun article from today's NY Times, by Robert Mummert. It begins:

I’VE always enjoyed filling our home with family guests, but when a special event brought together our extended clan recently, a new wrinkle emerged.

“Do you mind,” one in-law asked, as I rounded up bedding and fretted over having enough milk in the fridge to fill 12 cereal bowls in the morning, “if I just pop onto the computer and check my e-mail?”

“Oh, yeah,” remarked another. “Maybe I could just track my son’s flight from D.C.”

“Ooh, perhaps you could print something out for me ...”

That was my first inkling of how the vastly expanded electronic and informational needs of houseguests would flavor our time together. Soon guests were positioning themselves to get dibs on one of the three computers in our Long Island house the way they would otherwise line up to jump in the shower.

By the next morning, “I wonder if you could do me a favor?” was a question I fielded every few minutes as I tried to peck away at work in my home office before everyone in the house had awakened.

“Just need to have something faxed, and maybe I could scan this to a PDF and e-mail it, too, if it’s no trouble?”

No trouble, indeed, but such requests began to mount.

Posted by Marcia Oddi on Friday, August 24, 2007
Posted to General Law Related

Wednesday, August 22, 2007

Courts - "Close Enough for Government Work: Seventh Affirms George Ryan Conviction"

Robert Loblaw of the blog Decision of the Day has a great entry today that begins:

Remember George Ryan, the disgraced former governor of Illinois? In March 2006, Ryan was convicted of RICO violations and mail fraud for steering contracts and leases to a top “unpaid” advisor, who in turn, steered money into Ryan’s campaign and into his pocket. In a 74-page decision, a divided panel of the Seventh Circuit affirms the convictions of Ryan and his advisor.
The decision is US v. Ryan.

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

Ind. Decisions - Still more coverage of the appeal of Indiana voter ID case to U.S. Supreme Court

Updating this entry from August 10th, more briefs have been filed in the voter ID cert petition to the SCOTUS - Crawford v. Marion County Election Board. See the Election Law Blog's Rick Hasen's links to the briefs and his forthcoming article here.

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

Courts - Even more on: Kentucky fen-phen lawyers ordered to jail

Last Saturday, Aug. 18 we posted quotes from a story in the Louisville Courier Journal that:

The defense and prosecution both say that a federal judge has no authority to hold a hearing Tuesday on whether the lawyers in Kentucky's fen-phen case should be released from jail.
So what happened yesterday? According to this story by Andrew Wolfson in today's LCJ:
The lawyers accused of stealing $46 million from their clients in Kentucky's fen-phen case will remain behind bars.

U.S. District Judge William O. Bertelsman, who jailed the lawyers for fear they might flee abroad, postponed a hearing that had been scheduled for yesterday at which he was going to reconsider his decision to revoke their bond. * * *

Earlier this month, Bertelsman granted the defendants a continuance, but ordered them jailed pending a new trial date of Jan. 7. They had been free on their own recognizance.

In a 10-page opinion issued yesterday, Bertelsman wrote that he feared that "the defendants were beginning a delaying action intended to culminate in an O.J. Simpson-type trial, which would take several months, when really the underlying facts (primarily the disposition of the funds) were relatively simple."

Invited to submit a brief as representatives of crime victims, Angela Ford, who represents more than 400 of the lawyers' ex-clients in a lawsuit against them, said they should stay in jail because they are "textbook examples of flight risks."

"Each of them is extremely wealthy," she said, noting that they paid themselves $126 million from a $200 million settlement, $65 million of which belongs to the victims.

Posted by Marcia Oddi on Wednesday, August 22, 2007
Posted to Courts in general

Law - "Lawyers Gear Up Grand New Fees"

Nathan Koppel has a story ($$$) in the Wall Street Journal today on hourly rates of $1,000 per hour. It begins:

The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma.

A few attorneys crossed into $1,000-per-hour billing before this year, but recent moves to the four-figure mark in New York, which sets trends for legal markets around the country, are seen as a significant turning point.

On Sept. 1, New York's Simpson Thacher & Bartlett LLP will raise its top rate to more than $1,000 from $950. Firm partner Barry Ostrager, a litigator, says he will be one of the firm's thousand-dollar billers, along with private-equity specialist Richard Beattie and antitrust lawyer Kevin Arquit. The top biller at New York's Cadwalader, Wickersham & Taft LLP hit $1,000 per hour earlier this year. At Fried, Frank, Harris, Shriver & Jacobson LLP, also of New York, bankruptcy attorney Brad Scheler, now at $995 per hour, will likely soon charge $1,000.

The WSJ Blog picks up on the story with this entry, including photos, that begins: "Thanks to colleague Nathan Koppel, we now unveil perhaps the most elite fraternity ever assembled on these pages — the Law Blog Thousand-Dollar Bar."

Posted by Marcia Oddi on Wednesday, August 22, 2007
Posted to General Law Related

Law - Unsettled times at Ave Maria Law School

"Controversy Escalates Over Mich. Law School's Move: Professor suspended, and faculty protests intensify" is the headline to this story by Tresa Baldas in The National Law Journal. It begins:

A decision to move Michigan's Ave Maria School of Law to Florida has touched off a firestorm of controversy at the seven-year-old Catholic law school.

A disagreement over the relocation has escalated in the past few months into a feud between the dean and several faculty members who allege they are being mistreated and ignored. The claims have led to many students and faculty leaving the school and raised concerns about accreditation.

During the past year, the majority of faculty passed a vote of no confidence in the dean. Also, faculty members sent a formal complaint about the dean to the American Bar Association (ABA), alleging that he unfairly denied them a voice in the relocation decision, intimidated faculty members who opposed the move, cut pay raises for those who voiced objections and removed some professors from top committee chairs.

Meanwhile, three professors have resigned, including one last week. Also, two have taken leaves of absence, and one has been suspended.

Between 15 and 20 students are leaving the school, according to staff and the dean's office. Ave Maria currently has 380 students. The school received ABA accreditation in 2005.

Dean Bernard Dobranski insists that the problems will not hurt the school's accreditation status or its move to Florida in 2009.

"We received accreditation in the fastest amount of time possible. Why would we, less than two years later, somehow be at risk of losing that?" Dobranski said. "What we're seeing is an awful lot of stuff to create this notion that it's a law school that's falling apart and in dire straits, and that's simply not the case."

But, he added, "that doesn't mean that we don't have some faculty that are not happy."

For background on the Indiana connection, start with this ILB entry from May 1, 2007.

Posted by Marcia Oddi on Wednesday, August 22, 2007
Posted to General Law Related

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

For publication opinions today (2):

In James Atterholt v. Marilyn Robinson, a 25-page opinion, Chief Judge Baker writes:

Appellants-defendants James Atterholt, the Commissioner of Insurance of Indiana, and the Patient Compensation Fund of Indiana (collectively, the Fund) appeal the trial court’s $1,250,000 judgment in favor of appellee-plaintiff Marilyn Ruth Robinson, the personal representative of the Estate of Irene H. Gray (the Estate). Specifically, the Fund argues that the trial court erred by allowing the Estate to recover $1,250,000 of damages pursuant to the Indiana Survival Act (the Survival Act) because it should have, instead, awarded damages pursuant to the Indiana Adult Wrongful Death Statute (the AWDS). Alternatively, the Fund argues that even if the trial court did not err by awarding damages pursuant to the Survival Act, the award was excessive. Concluding that the trial court erred by not allowing the Fund to challenge the theory of compensation at the damages hearing but that such error was harmless and the resulting award was not excessive, we affirm the judgment of the trial court.
In New Albany Residential Inc. v. Karen Hupp, a 12-page, 2-1 opinion with a dissent beginning on p. 10, chief Judge Baker writes:
Appellant-plaintiff New Albany Residential, Inc. (New Albany) d/b/a Re/Max Associates of New Albany (Re/Max), appeals the trial court’s order granting appellee-defendant Karen Hupp’s motion for summary judgment on New Albany’s complaint against Hupp. In particular, New Albany argues that the trial court erroneously concluded that New Albany’s claim against Hupp is barred because it should have been raised as a compulsory counterclaim in separate litigation instituted by Hupp. Finding that because New Albany was not a party to the separate litigation and that, consequently, its claim is not a compulsory counterclaim, we reverse the judgment of the trial court and remand for further proceedings.

CRONE, J., concurs. FRIEDLANDER, J., dissents with opinion [which begins:] I believe New Albany Residential’s (New Albany’s) claims were compulsory counterclaims and should have been raised in Hupp’s prior lawsuit. Therefore, I respectfully dissent from the reversal of summary judgment in favor of Hupp.

NFP civil opinions today (6):

AMCO Insurance Co., et al. v. Global Group, Inc., et al. (NFP) - "Appellants-plaintiffs AMCO Insurance Company and Farm Bureau Insurance Company (collectively, the Insurers) appeal the trial court’s grant of summary judgment in favor of appellees-defendants Global Group, Inc. (Global), and Jay Shah (collectively, the appellees). Specifically, the Insurers argue that the trial court erred by granting summary judgment in favor of the appellees because Global breached its lease with Pulp Products (Pulp) by not obtaining fire insurance and, thus, the Insurers should be entitled to assert their subrogation claim against the appellees. Concluding that the lease’s subrogation waiver provision supersedes Global’s breach and bars the Insurers’ claim, we affirm the judgment of the trial court."

Carolyn Precht v. Franklin County Farmers Mutual Insurance Co. (NFP)

In Luke Oil Company, Inc., et al. v. Lake County, Indiana, et al. (NFP), an 18-page opinion, Judge Robb writes:

Luke Oil Company, Inc., an Indiana corporation, SVT, LLC, an Indiana limited liability company, and Van Til’s Supermarket, Inc., an Indiana corporation, individually and doing business as Almira’s, (collectively, “Luke Oil”) appeal the trial court’s partial grant of summary judgment to Lake County, the Board of Commissioners of Lake County, and Christine S. Clay, Director of the Lake County Department of Weights and Measures (collectively, “Lake County”). The order relates to an “Ordinance Establishing the Rules and Penalties for Weights and Measures” (“Ordinance No. 1264D”) passed by the Lake County Council that, in part, revised the license fee schedule for all businesses employing weights and measures in Lake County to double the license fee to $100.00 per location and established fines if specific requirements were violated. The trial court’s order declared that the ordinance is invalid as it relates to the imposition of fines, but valid as to the imposition of a licensing fee. Two issues presented for our review are: (1) whether Lake County has the authority to regulate weights and measures and impose license fees, and (2) whether the license fees are an unlawful attempt to impose fees for tests and inspections of weights and measures. Concluding that the trial court properly found Lake County had the authority to regulate weights and measures and institute a license fee, and that the license fee is reasonable and relates to the County’s administrative and regulatory costs, we affirm.
James R. Kinney v. Brenda K. Kinney (NFP)

In Jonathan E. Hadt v. Sharon Goodall (NFP), a 6-page opinion in an interlocutory appeal, Judge Bailey writes:

Case Summary. Jonathan E. Hadt appeals the trial court’s award of attorney’s fees and costs as a sanction for his refusal to increase his settlement offer. We reverse.

Issue. Hadt raises a single issue on appeal: whether the trial court abused its discretion in ordering him and his non-party insurer to pay the attorney’s fees and costs of other persons participating in a settlement conference. * * *

This Court has held repeatedly that an unwillingness to make or modify a settlement offer does not warrant sanctions. * * *

Additionally, while the trust of the court’s ire arose from Hadt’s unwillingness to increase his offer, the court also found Hadt’s failure to appear was a basis to support sanctions against him. Granted, Hadt did not attend the conference; but it was unclear that attendance was required. The trial court’s two orders, issued on the same day, were inconsistent in naming the persons required to attend. Ambiguous orders do not support sanctions. * * *

Finally, if Hadt’s absence had been the basis for the decision, Magistrate Miller should have immediately noted it on the record, rather than after learning that the parties had reached an impasse. The trial court abused its discretion in sanctioning Hadt. Reversed.

Paula A. Condon and Herbert L. Allison v. Robert J. Condon (NFP)

NFP criminal opinions today (8):

Franklin Johnson v. State of Indiana (NFP)

Lee Guzman v. State of Indiana (NFP)

Lester Rowe v. State of Indiana (NFP)

William C. Stitts v. State of Indiana (NFP)

Jerry Jackson v. State of Indiana (NFP)

Laef Lewis v. State of Indiana (NFP)

Joe Wade v. State of Indiana (NFP)

Samuel Pope, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 22, 2007
Posted to Ind. App.Ct. Decisions

Tuesday, August 21, 2007

Law - Update on lead paint lawsuits

The ABA Journal has a brief but comprensive article today by Debra Cassens Weiss headed "Setbacks in Lead Paint Suits."

See earlier ILB lead paint entries here.

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to General Law Related

Ind. Law - Brian Burke stepping down as chair and CEO of Baker & Daniels

Daniel Lee reports in the Indianpolis Star business section this afternoon:

Brian Burke, who helped turned his firm into a multinational legal powerhouse, is stepping down as chairman and chief executive of Indianapolis-based Baker & Daniels at the end of the year.

The 59-year-old Burke, who has served as Baker & Daniels' leader since 1993, will stay on at the firm as a partner. The firm said the search has begun to find a successor from within its own ranks.

Burke's term was not scheduled to end until the end of 2008. But he said that the time was right for a leadership change.

"Our success has enabled us to assemble a very deep bench of professional talent that has, in turn, contributed to our outstanding achievements to date and will continue to do so as we go forward," Burke said in a written statement.

"While I have thoroughly enjoyed my tenure as our firm's chair and CEO, I believe a leadership change at this time will bring important new perspectives, fresh insights and serve as a catalyst that will guide the firm to new levels of success. I look forward to assisting my successor in every possible way that is helpful and to continuing being a part of this wonderful organization."

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Indiana Law

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

For publication opinions today (3):

Billy Blixt v. State of Indiana - "Blixt has not demonstrated that the trial court abused its sentencing discretion in compiling its statement of reasons supporting the sentence imposed or in formulating the restitution order. Nor has Blixt persuaded this Court that his six-year sentence, with two years suspended to probation, is inappropriate."

In Timothy Kempf v. St. Paul Reinsurance Co. Limited, a 14-page opinion, Senior Judge Barteau concludes:

Indiana recognizes a cause of action for the tortious breach of an insurer’s duty to deal with its insured in good faith. See Erie Insurance Co. v. Hickman, 622 N.E.2d 515, 520 (Ind. 1993). We agree with Kempf that the Hack is not applicable to the instant case. While it is true that a contract seller’s position is analogous to that of a mortgagee, and that this similarity may entitle a contract seller to limited proceeds under the contract buyers’ policy, we do not conclude that the analogy limits a contract seller’s entitlement to proceeds under a contract in which he is the named insured. * * *

In the present case, the primary thrust of St. Paul’s summary judgment motion was the issue of coverage, while the only subject of Kempf’s motion was coverage. Neither party has established that summary judgment is warranted on this issue. Accordingly, the issue should be further explored by the parties on remand.

Conclusion. The trial court erred in determining that Hack is applicable to this case. Accordingly, the trial court erred in granting summary judgment on that basis. Furthermore, the grant of summary judgment is not warranted on the final two issues raised by Kempf. Reversed and remanded for further proceedings.

In Walter Breining, as attorney-in-fact for Raymond Breining v. Richard Harkness , an 11-page opinion, Judge Bailey concludes:
Here, Walter alleged a claim for conversion that lacked a factual basis. It was uncontroverted that Juanita transferred funds to Harkness from her joint checking account with Raymond; Harkness did not convert the funds because he did not exert unauthorized control. At the summary judgment hearing, Walter conceded that the funds transferred from Juanita to Harkness had largely been expended in payments to Hooverwood. He was unable to make a good faith argument to support his continued insistence upon a jury trial to litigate the conversion claim and his demand for treble damages. Thus, Harkness established the propriety of an award of attorney’s fees incurred when he was forced to continue to litigate a groundless claim. The trial court abused its discretion in summarily denying Harkness’s motion for attorney’s fees. Harkness established the propriety for an award of attorney fees; we remand for a hearing to determine the appropriate amount of the award.

Conclusion. Harkness is entitled to judgment as a matter of law upon the conversion claim. He is also entitled to reasonable attorney’s fees. Affirmed in part, reversed in part, and remanded for further proceedings.

NFP civil opinions today (5):

In Victor and Gloria Parsons v. Arrowhead Golf, Inc., and Gary and Kathy Oden (NFP), a 12-page opinion, Judge Robb writes in her Case Summary and Issues:

Victor Parsons was injured while golfing at Arrowhead Golf Course. Victor and his spouse, Gloria Parsons, brought suit against the golf course and its owners, Gary and Kathy Oden (collectively, “Arrowhead”). Arrowhead filed a Motion For Summary Judgment, which the trial court granted. The Parsonses now appeal, arguing that the trial court erred in applying the assumption of risk doctrine, that general principles of premises liability should control, and that the trial court improperly weighed the evidence. Concluding that the trial court properly found that Victor assumed the risks of playing golf, that Arrowhead did not breach any duty of care owed to its business invitee, and that the trial court did not improperly weigh the evidence, we affirm.
Robert Smith v. Miami Correctional Facility, et al. (NFP)

Gilbert L. Justice, Jr. v. Christine A. Justice (NFP)

In Karleen Spann Perry v. Madison Acquisition, LLC and Larry D. Spann, et al. (NFP), a 16-page opinion, Judge Robb writes:

Karleen Spann Perry brings this appeal from the trial court’s denial of her Motion to Transfer Venue and her Motion to Correct Error relating to the Partial Judgment and Decree of Foreclosure (the “Partial Judgment”) in the lawsuit filed by Madison Acquisition, LLC (“Madison Acquisition”) to foreclose its interests in various property through a receivership estate. Presented for our review are the issues of whether preferred venue lies in Marion County and whether the trial court’s Partial Judgment is a valid order. As intangible personal property in the form of stock certificates is physically located in Marion County, the complaint includes a claim for foreclosure relating to those stock certificates, and the receivership estate is being administered in Marion County, we conclude that preferred venue exists in Marion County. Further, we conclude the Partial Judgment is a valid judgment, and we accordingly affirm.
Byron Breaston v. David Bonfiglio (NFP)

NFP criminal opinions today (2):

Corey Rochell Fitch v. State of Indiana (NFP)

David A. Cavinder v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Ind. App.Ct. Decisions

Law - Outlawing video game violence

"Courts Block Laws on Video Game Violence" is the headline to a story today by Seth Schiesel in the NY Times. Some quotes from the lengthy report:

As video games have surged in popularity in recent years, politicians around the country have tried to outlaw the sale of some violent games to children. So far all such efforts have failed.

Citing the Constitution’s protection of free speech, federal judges have rejected attempts to regulate video games in eight cities and states since 2001. The judge in a ninth place, Oklahoma, has temporarily blocked a law pending a final decision. No such laws have been upheld.

The latest state to have its tentative game regulations stymied by a judge’s interpretation of the First Amendment is California. This month a federal judge in San Jose, Ronald M. Whyte, declared unconstitutional a 2005 bill that would have made it a crime to sell or rent certain violent games to minors in that state.

Gov. Arnold Schwarzenegger of California has said he plans to appeal the ruling, but he is merely the latest in a line of politicians whose attempts to regulate video games have been frustrated by federal courts. “It’s more than a trend,” said Ronald Collins, a scholar at the First Amendment Center in Washington. “It seems the cases are moving uniformly down the same track, and that is that such laws are unconstitutional. Such uniformity in declaring a category of laws unconstitutional is very rare.”

New York will probably be the next state to try its chances in court. Gov. Eliot Spitzer has declared regulating children’s access to video games a priority. The State Assembly passed a game-regulation bill in June, and the Senate could take up the measure when the Legislature reconvenes as soon as next month.

The New York bill has been phrased in an attempt to pass constitutional muster, but it will almost surely be challenged by the same game-industry legal team that has successfully opposed game regulations around the country.

“Video games are a new medium, and while people are used to scary stuff in the movies, they aren’t as used to having scary stuff in interactive media, so there is political value in passing these laws even if they are ultimately rejected by the courts,” said Paul M. Smith, a partner in the Jenner & Block law firm, which represents the game industry. “I think it’s fair to say that a lot of people who passed these laws knew they were unconstitutional, and they did it anyway.”

Put simply, the United States Supreme Court has interpreted the Constitution as allowing states broad leeway in regulating minors’ access to sexually explicit material. That is why it is illegal around the country to sell pornography to children. Courts have not, however, said that states have a similar right to regulate media based on violence. Most of the city and state video game laws that have been struck down in recent years have tried to ban the sale or rental of certain violent games to minors. In many of those cases, states and cities have tried to translate the legal rules for pornography into a new system for regulating violent media. * * *

The opinion in the first major video game case was written in 2001 by Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. In blocking an Indianapolis ordinance that would have regulated public game arcades, he wrote that exposure to imaginary violence — whether in “The Odyssey,” “War and Peace” or Ultimate Mortal Kombat 3 — can play an important role in the development of a child’s moral, social and political outlook.

“Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low,” he wrote. “It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.”

The ILB has had many entries on the topic of regulating video games. For background, begin with this entry from Feb. 20, 2007, headed "Another year, another effort to ban video games."

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to General Law Related

Ind. Courts - Howard County Courthouse installs metal detectors

An AP story in the Indianapolis Star this morning reports:

KOKOMO, Ind. -- Visitors to the Howard County Courthouse must now pass through metal detectors, 20 years after a man smuggled a bomb inside and detonated it, killing himself and injuring 15 others.

Those passing through the security checkpoint during its first hours of operation on Monday said they believed the increased measures were long overdue.

"I'm surprised it took them this long," Kokomo resident Maurice Lawson said. "I think people will come to appreciate the fact that the county is looking out for the public's safety." * * *

In 1987, Robert David Gray, who was being tried on drug charges, smuggled a briefcase loaded with four pipe bombs into the courthouse about 40 miles north of Indianapolis.

Then-Sheriff John D. Beatty steered Gray into his office to examine the contents of the briefcase, and the explosives went off, killing Gray. Beatty was standing about 5 feet away from Gray and was injured when the bomb exploded. He died in 1999.

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Indiana Courts

Ind. Law - Should sex offenders be required to pay to register?

From a story today reported by Joshua Stowe in the South Bend Tribune:

SOUTH BEND -- Sex offenders here would pay to register each year and to move, under a controversial proposal unveiled Monday.

Proponents say the plan would provide police with much-needed money, while critics say it would be unconstitutional and could undermine public safety by discouraging some offenders from registering.

Under the plan, proposed by St. Joseph County Sheriff Frank Canarecci, the county would pass an ordinance requiring convicted sex and violent offenders to pay $50 each year when they registered as required by law. In addition, the ordinance would require offenders to pay $5 each time they moved.

Canarecci said the plan would be a fiscally sound way to address the "unfunded mandate" of the state's sex and violent offender registry, which requires local police departments to track offenders.

"The cost has to come from somewhere," he said. "I would classify it as a user fee. I think those who use government services should pay."

Canarecci said the new fees would generate about $15,000 each year to help pay the fuel, salary and postage costs county police incur by maintaining and updating offenders' records for the registry. * * *

The plan also raises serious constitutional concerns, said Ken Falk, legal director for the ACLU of Indiana.

A $5 fee for changing one's address would violate the U.S. Constitution because it would essentially penalize people for moving, he said.

In addition, Falk said, he believes that because the state legislature did not impose a fee for annual registration, a county does not have the authority to do so.

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Indiana Law

Ind. Courts - "Evansville's drug court a model?"

Bryan Corbin of the Evansville Courier & Press writes today, in a lengthy article that begins:

INDIANAPOLIS — Knowing some drug offenders will eventually serve their sentences and be released from jails or prisons, state lawmakers are looking at ways to prevent them from falling back into drug-abusing lives of crime.

Vanderburgh County's success may help shape their ideas.

Lawmakers are focusing new attention on drug courts, programs where judges and substance-abuse experts intensely supervise recently released offenders and can send them back to jail if they test positive.

A summer study committee of the Legislature held a hearing Monday on both drug courts for addicts and "forensic diversion" courts for offenders with mental-health issues. They are looking at whether the state ought to expand such efforts beyond the 25 adult programs and three juvenile programs that now operate.

The drug court program in Greenwood, Ind., a rapidly growing suburb just south of Indianapolis, started in 1999. Its founder, Greenwood City Court Judge Lew Gregory, said his program is "very similar" to the drug court overseen by Vanderburgh Superior Court Judge Wayne Trockman of Evansville.

"In fact, our programs are probably more alike than any others. We went down and spent a day looking at Judge Trockman's (program) several years ago, and his is excellent," Gregory said.

While there are variations, such programs typically are geared toward addicted but nonviolent offenders. Random drug screenings, participation in 12-step groups and weekly appearances before the judge are involved. If offenders violate the rules or test positive for drugs, the consequences are usually jail time.

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Indiana Courts

Ind. Courts - Another upcoming COA vacancy, Judge Sharpnack retiring

Indiana Courts has a press release today stating:

Attorneys and trial judges interested in applying for the upcoming vacancy on the first district seat of the Fifth District of the Indiana Court of Appeals must submit applications by November 1, 2007, Chief Justice Randall T. Shepard announced today. The vacancy is occasioned by the May 3, 2008 retirement of Indiana Court of Appeals Judge John Sharpnack.

“A position on the Court of Appeals is a uniquely satisfying experience. The court is on the cutting edge of the many legal challenges facing our society. I would encourage any interested attorney or trial judge to apply and to urge others to consider this opportunity,” said Chief Justice Shepard.

Chief Justice Shepard chairs the Indiana Judicial Nominating Commission. The 7-member Commission includes three lawyers elected by their peers and three citizen members appointed by the Governor. The Commission will conduct initial public interviews of qualified candidates on November 12 and 13, 2007 in Indianapolis, followed by second interviews on December 12, 2007.

A candidate must have been an Indiana attorney for ten years or a trial judge for five years and must live in one of the 53 counties in the first geographic district of the Court of Appeals. The annual salary and allowances for a Court of Appeals judge is $143,367.00.

The application is available here on the judiciary website. Candidates should contact Meg Babcock, Counsel to the Commission, at (317) 232-4706 or at mbabcock@courts.state.in.us for more information about the process.

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Indiana Courts

Ind. Courts - Indiana Supreme Court has distributed a total of $750,000 to 12 legal aid organizations

A press release from the Indiana Courts announces:

The Indiana Supreme Court has distributed a total of $750,000 to 12 legal organizations that work to represent low-income Hoosiers involved in civil court cases. Chief Justice Randall T. Shepard announced today.

“This funding will assist organizations that help ensure all Hoosiers have their day in court – regardless of household income, said Chief Justice Randall T. Shepard.

The release lists the organizations receiving funding and the amounts. It concludes:
Lilly Judson, executive director of the Division of State Court Administration, said that her office has administered the state fund for legal assistance in civil cases since 1997. She explained that distributions are based on caseloads and the number of organizations serving a particular county.

In January 2008, the Division of State Court Administration, will distribute an additional $750,000. During the last legislatives session, the Indiana General Assembly increased the annual appropriation for the Civil Legal Aid Fund from $1 million to $1.5 million.

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Indiana Courts

Ind. Courts - "A day of 'firsts' for Rush Superior Court Judge Brian Hill"

Marcia Blair of the Rushville Republican reports that Aug. 4 was a day of "firsts" for Rush Superior Court Judge Brian Hill:

Judge Hill performed his first wedding ceremony that Saturday afternoon. Before the ceremony he scored his first hole-in-one while playing a round of golf with members of the Blair-Burkhardt wedding party Saturday morning at Antler Pointe Golf Club.

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Indiana Courts

Ind. Law - Brown County lawyer sells horse manure

A reader has sent along this story ($$$) by Laura Lane of the Bloomington Herald Times:

Rick Hofstetter doesn’t intend to get rich selling $2 bags of manure from his wife’s horses, but he hopes to unload a lot of poop.

Hofstetter, owner of Brown County’s Story Inn, calls himself a “high-horsepower” attorney who figures he has practiced law long enough to know a thing or two about horses’ behinds.

What he has come to know best is that his wife Angela’s horses produce mass amounts of waste. And it piles up in the scenic pastures surrounding his restaurant and bed-and-breakfast business. So he’s taken to composting the manure in a 4-by-4-foot wooden cube outside the horse barn.

Always the entrepreneur, Hofstetter decided to share his organic fertilizer with others. Manure from his wife’s horses now has a fancy name — Story Inn’s Appropriate Rural Meadow Muffins — packaged in quart-sized Ziploc bags.

Each has a computer-printed label with an ingredient list: Pure horse****, harvested, aged, composted and dried at the Story Inn.

The name is tongue-in-cheek; Hofstetter’s neighbors have organized a group called Citizens for Appropriate Rural Development, which opposes growth in the area that Hofstetter supports.

Posted by Marcia Oddi on Tuesday, August 21, 2007
Posted to Indiana Law

Monday, August 20, 2007

Ind. Decisions - 7th Circuit issues one

In USA v. Morris (ND Ind., Judge Springmann), a 19-page opinion, Judge Wood writes:

Denard Morris was convicted on various drug charges, for which he received a typically severe sentence of 262 months’ incarceration. His appeal centers on alleged governmental misconduct at the trial. Morris’s cousin, Tramayne Peterson, pleaded guilty to Count I of the indictment and testified against Morris as part of a plea bargain with the government. When questioned about his plea deal at trial, Peterson asserted that the mandatory minimum sentence for his plea was 10 years; the prosecutor reinforced this by arguing to the jury on multiple occasions that Peterson could not get less than 10 years. Following Morris’s conviction, the government moved under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 for Peterson to be sentenced below the mandatory minimum to a 70-month term; the court granted that motion. While we conclude that the prosecutor did commit misconduct by misleading the jury about the plea deal that the government reached with Peterson, this act was not enough to infect the fundamental fairness of the entire proceeding. With the exception of Morris’s challenge to the concurrent sentence he received on Count II, which the prosecution agrees is beyond the statutory maximum and must be fixed on remand, all of his other arguments lack merit. Thus, with that minor qualification, we affirm.

Posted by Marcia Oddi on Monday, August 20, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Craig P. Coffman and Coffman Proactive CPA Services, L.L.C. v. Olson & Company, P.C., a 7-page opinion, Judge Najam writes:

Craig P. Coffman and Coffman Proactive CPA Services, L.L.C. (“Coffman Proactive”) bring this interlocutory appeal from the trial court’s order denying their request for transfer of venue. Coffman and Coffman Proactive raise a single issue for our review, namely, whether the court erred in denying their request. We affirm. * * *

Here, the controlling provision of Trial Rule 75(A) is subsection (4). That subsection states that preferred venue lies in “the county where either the principal office of a defendant organization is located or the office . . . of a defendant organization or individual to which the claim relates or out of which the claim arose is located . . . .” T.R. 75(A)(4) (emphases added). In light of that subsection, Coffman and Coffman Proactive assert that they do not maintain an office in Monroe County and that their principal office is located in Owen County, which is, therefore, the preferred venue. We cannot agree.

NFP civil opinions today (2):

Paternity of L.M.R.; Joshua Burress v. Rhonda Ritchie (NFP)

Joshua and Bernice Yuen v. Tippecanoe County Division of Child Services (NFP)

NFP criminal opinions today (4):

Jesse Ortiz v. State of Indiana (NFP)

Bart Leroy Kimmel v. State of Indiana (NFP)

Kelly L. Stacy v. State of Indiana (NFP)

Terrance Pirtle v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 20, 2007
Posted to Ind. App.Ct. Decisions

Law - "A Quest to Get More Court Rulings Online, and Free"

John Markoff, technology reporter for the NY Times, writes today about "A Quest to Get More Court Rulings Online, and Free." As he notes, this effort has been ongoing for years now. "The two companies control the bulk of the nearly $5 billion legal publishing market. (A third, but niche, player is the Commerce Clearing House division of Wolters Kluwer)." More:

[Carl] Malamud is not the first person to attempt to unravel the control of West and LexisNexis. The issue of whether the companies have copyright protection over the published and online versions of the legal research reference materials led to legal challenges in the 1980s and ’90s. During the ’90s, a New York lawyer, Alan D. Sugarman, successfully challenged West, winning a ruling in a copyright protection lawsuit. However, Mr. Sugarman’s company, Hyperlaw, ultimately failed.

“It cost me a lot of money, and when it was all said and done I was wiped out financially, so I went back to the practice of law,” Mr. Sugarman said.

West’s electronic and print influence over the legal profession became so valuable that Thomson paid $3.4 billion for the company in 1996. The West books contain major court decisions, and they have been adopted as the standard in the nation’s courts and law firms, and the West method of identifying cases has remained the standard for citations in decisions and legal briefs.

However, Mr. Malamud and a diverse group of backers argue that the control of publishing court rulings subverts the original intent of the framers of the Constitution by making the nation’s laws difficult to obtain by those outside the legal profession.

In a letter to West Publishing last Wednesday, Mr. Malamud said his intent was to make federal and state court decisions available to a population that cannot afford the subscription costs.

Legal codes and cases are the “operating system” of the nation, he said. “The system only works if we can all openly read the primary sources,” he said in the letter. “It is crucial that the public domain data be available for anybody to build upon.” * * *

The Public Resource effort is one of several attempts to make the nation’s laws more accessible. One project, AltLaw (altlaw.org) is a joint effort by Columbia Law School’s Program on Law and Technology and the Silicon Flatirons program at the University of Colorado Law School to permit free full-text searches of the last decade of federal appellate and Supreme Court opinions.

“I’m a legal academic and I woke up one day and thought, ‘Why can’t I get cases the same way I get stuff on Google?’ ” said Tim Wu, a Columbia law professor who is one of the leaders of the project. “People should be able to get cases easily. This is a big exception to the way information has opened up over the past decade.”

The challenge faced by the various public interest and commercial efforts is the lack of standardization in the court system that makes it a technical nightmare for those who want to place information online for the public.

Actually, as many ILB readers are aware, much of the nation's statutory and caselaw is freely accessible online. However, one has to know where to look, there is no overarching system as there is with West and Lexis, who make finding the law "as easy as Google." And they offer consistency and quality control.

The ILB rarely has to turn to West or Lexis, and as each year passes more and more caselaw and statutory law becomes accessible. West and Lexis, I'm sure, see the day coming when they may lose their grip on this material. In the meantime, these companies wisely keep broadening their bases to include other materials, such as "enhanced" regulatory files, brief banks, trial and administrative rulings, and the like.

Posted by Marcia Oddi on Monday, August 20, 2007
Posted to General Law Related

About this blog - Announcement from the ILB editor

Dear friends and readers - I will be going through intensive chemo, breast surgery, and radiation over the next several months. It is certainly my intent to continue blogging throughout my treatment. However, it may be that some days there will be few to no entries. In fact, this week may be one of the "few entries" weeks. And I will be working from home more than usual.

I thought some explanation to my ILB readers was needed, but I don’t intend to use this platform for regular updates, as by nature I am a pretty private person. When I’m posting as usual, you will know I’m doing well, and when the blog is dark that I have my hands full.

Thank you for reading and contributing to this endeavor, and for your continued support in the coming months. Even though I most likely will not be able to respond individually to everyone's messages, please know that your thoughts are greatly appreciated.

Posted by Marcia Oddi on Monday, August 20, 2007
Posted to About the Indiana Law Blog

Environment - Good backgrounder on BP permit

The Fort Wayne Journal Gazette has a good backgrounder today on the BP permit.

The editorial column is accompanied by a Gary Varvel cartoon of a fish lining up to buy bottled water at a Lake Michigan bait store.

Posted by Marcia Oddi on Monday, August 20, 2007
Posted to Environment

Ind. Courts - Results of study of Marion County jurors published

Jon Murray of the Indianapolis Star reports today that:

A team of researchers from Indiana University and ThemeVision LLC conducted the study, one of the first surveys that systematically pulled data from real jurors.

ThemeVision is a jury consulting company affiliated with the Indianapolis law firm Barnes & Thornburg.
The results were published last month in the Journal of Empirical Legal Studies.

The survey seeks to remove some of the secrecy inherent in jury deliberations, which are conducted behind closed doors. Even court personnel are not allowed in the jury room.

While the researchers concluded that there was room for improvement, they also found much to praise about Marion County's jury system, pointing out that most juries thoroughly review the evidence before making a decision.

"There is this perception among the public that the jury system is not working as well as it is," said Dennis Devine, an associate professor of psychology at Indiana University-Purdue University Indianapolis. "Everyone who studies juries comes away with a better perception of juries, including me."

The survey, however, confirmed many jury experts' opinion that a few jurors can wield a disproportionate amount of influence over a trial.

The jury foreman's initial stance on a possible verdict and the presence of a leader of those on the jury supporting acquittal were both strong predictors of the verdict, the study found. Convictions, for example, were much more likely when the foreman initially thought the defendant was guilty, the study concluded.

About one in four juries included in the study reported deliberations were polarized enough that there were clear faction leaders, or noticeably vocal jurors.

Since the study began, the Indiana Supreme Court has relaxed some jury rules to encourage a fuller discussion of cases. Now, for example, jurors can discuss aspects of the case with one another during breaks in the trial, often resulting in speedier verdicts, some judges say.

This is just one section of today's story, which should be read in full. A side-bar sets out some suggestions on imrpoving juries in Marion County.

The ILB has checked for the article online, but it does not appear to be available at this time. See abstract here.

Posted by Marcia Oddi on Monday, August 20, 2007
Posted to Indiana Courts

Courts - SCOTUS to make briefs centrally available online, the day after filing

This is a great development, as SCOTUSblog noted on Friday:

That database will be an enormously helpful resource -- to litigants, counsel, scholars, students and researchers alike. The difficulty of finding all briefs in a readable format and a timely fashion has been a fairly obvious online gap for a while now, especially for those who have no access to Westlaw or Lexis. Many thanks to Bill Suter and the Clerk's Office for establishing the database.
Indiana has nothing like this, and the ILB has been pointing that out for years. See, for instance, this ILB entry from Nov. 25, 2005 Among the points the ILB made at the time:
On April 14th [2005] David C. Lewis, Clerk of the Supreme and Appeals Courts, issued a press release announcing "Indiana Appellate Briefs Now Available Online through Westlaw." Some quotes:
Westlaw subscribers have several options for adding this service to their current subscriptions. Individuals who are not Westlaw subscribers may access the service with a credit card, paying on a per-use basis. * * *

"West's online briefs project takes us another step closer to providing the public with greater access to court records," said Clerk David Lewis. "We applaud West's commitment to this project. Not only does it provide Indiana's attorneys with a significant new tool, but it promotes our office's goal of openness and accountability in the judicial system." [emphasis added]

I'm not out to burn any bridges here, but I just don't think so. I think promoting West's project to sell the briefs makes it unlikely that they will ever be available online to the public at no cost.

Posted by Marcia Oddi on Monday, August 20, 2007
Posted to Courts in general

Courts - Drafting an effective notice of appeal in the federal system

Howard Bashman's weekly column at Law.com this week is titled "You Call That a Notice of Appeal?." It concludes:

Drafting an effective notice of appeal may seem deceptively easy, but unfortunately the consequence of failing to file an adequate notice of appeal within the applicable deadline is harsh: the unavailability of appellate review. And even the most meritorious appeal cannot succeed if appellate review is not available due to the failure to file an effective notice of appeal.

Posted by Marcia Oddi on Monday, August 20, 2007
Posted to Courts in general

Sunday, August 19, 2007

Courts - "Sealed documents in otherwise 'unsealed' cases" redeux

This ILB entry from July 12th reported on the ILB's efforts to assure that there are docket entries in all cases on the appellate docket in Indiana, whether they are entirely sealed, or contain some sealed material. At the time, the ILB wrote:

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.
The ILB contacted the Clerk of the Court and ultimate received this response:
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 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.
This problem is not unique to Indiana, as a number of previous ILB entries about "sealed" cases in other jurisdictions will attest.

Today Frank Geary of the Las Vegas Review-Journal reports in a lengthy story:

Clark County's District Court authorities now admit they don't know how many lawsuits have been sealed from public view, why they were sealed, how many were sealed inappropriately, or who sealed many of them.

Judges making their own rules, clerks sealing court records without legal authority, and an outdated computer system were causes courthouse administrators last week blamed for interference with public access to court records that should not have been sealed.

Though ongoing for years, the scope of the problems was brought to light only after a Review-Journal series earlier this year and the court's subsequent examination of its own practices.

Posted by Marcia Oddi on Sunday, August 19, 2007
Posted to Courts in general

Ind. Law - New York has a good idea here

The ILB has posted many articles about interstate wine shipping, including this August 4th entry quoting from a Fort Wayne Journal Gazette column titled "Severe impact of 2006 wine-shipping law changes on small, family-owned wineries."

This article from the Long Island Suffolk Journal reports a good idea, although the problems pointed out in the Journal Gazette column need to be addressed first. Some quotes:

ALBANY, NY -- New York State Agriculture Commissioner Patrick Hooker today announced nearly $59,000 to create or improve the websites of 60 New York State wineries. This is the second round of these grants, which are designed to increase the visibility of New York wines via the internet, which in turn will help attract more tourists to New York’s wine regions, and expand the sales of New York wines to customers throughout the country.

“New York’s wineries experienced great success from the first round of website improvement grants that were issued last year, and we are pleased to offer another round to help continue this good work,” the Commissioner said. “The internet offers small businesses like our New York wineries to reach millions of consumers with the simple click of a button. I am pleased that we are able to help our wineries enhance their websites in order to take advantage of these endless opportunities the internet provides.”

The wine web improvement grants provide New York wineries with a matching grant up to $1,000 to create or improve their website. Eligible projects included adding age verification software, foreign language translation, direct shipment capabilities, shopping cart functions, credit card purchase capabilities, adding or improving photographs or maps, and increasing accessibility for persons with disabilities.

Since 2005, New York wineries have been able to direct ship wine in New York State and outside of the State if reciprocal shipping agreements are in place. This law allows for the shipment of up to 36 cases (9 liters) per year to a single individual. Safeguards in the law prevent the sale to individuals under 21 years of age. Since the law took effect, approximately one-quarter of New York’s wineries have begun selling their wines to out-of-state residents.

It is not so simple in Indiana, as the Journal Gazette column explained:
Adams said they constantly get calls from people who have had Winzerwald’s wines at a friend’s house and want to order some, but the winery has to turn them down.

“They say, ‘We had it at Bob and Jane’s, can we get some of it?’ ” Adams said. But if they haven’t been to the winery in person – and have the paperwork to prove it – the answer has to be no.

Posted by Marcia Oddi on Sunday, August 19, 2007
Posted to General Law Related

Ind. Courts - South Bend Tribune opines "Let Cameras In"

The South Bend Tribune, which on August 13th had a long report (see ILB entry here) headed "Indiana trial cameras shuttered: Main obstacle for pilot project is requirement that both parties agree to taping," today has an editorial headed "Let Cameras In." Some quotes:

This is a nation with open courtrooms. Civil and criminal issues are resolved in the light of day. Video and still cameras to record and report judicial processes are a logical extension of that openness.

But logic is not always applied everywhere. Not, for example, in Indiana and South Dakota, two states that still prohibit cameras in trial courts.

Indiana could've been on a path to make South Dakota the lone holdout. And it could be again, if there is a change in the criteria for a pilot courtroom camera project. We hope that there will be.

The purpose of the pilot program, approved by the Indiana Supreme Court and begun a year ago, is to determine what effect cameras would have on court proceedings. Eight judges are participating, including St. Joseph Circuit Judge Michael Gotsch.

According to the plan, after the 18-month experiment the Indiana Broadcasters Association and the Hoosier State Press Association will commission a study to quantify the experience, hoping to build the case that cameras in courtrooms are not disruptive.

The justices added one major caveat. They insisted that both the plaintiff and the defendant of a case agree to be taped or photographed. If either side said no, cameras would be kept out.

After 12 months, almost no one has said yes. Only six cases statewide have been taped or photographed. The participating judges had predicted that defendants, especially, would camera-shy. As it turns out, there probably won't be enough results to evaluate.

The Hoosier State Press Association plans to return to the Supreme Court and ask that it give trial judges discretion in deciding what happens in their courtrooms, instead of giving both sides veto power. If the high court were to extend the pilot program and allow judges that authority, the result could be a meaningful record -- the basis for an educated decision on the camera question. * * *

Even considering all our high-tech communication gadgets, people who lived a century ago had a better understand of courtroom procedures than do people today. In those days, the county courthouse was the center of activity in a community. These days, people seldom look on during a trial. Consequently, their ideas of courtroom conduct are formed by television dramas rather than reality.

It is commendable that the state Supreme Court is proceeding cautiously in order to protect Hoosier plaintiffs and defendants. But it is clear to us that trial judges are very capable of keeping disruption out of their courtrooms while at the same time letting cameras in. It has been done elsewhere -- hundreds of times. Dozens of other state have adapted to the presence of courtroom cameras.

We hope that the justices will come to see this as an opportunity to extend public understanding of judicial processes. They should grant trial judges discretion on the camera question.

Posted by Marcia Oddi on Sunday, August 19, 2007
Posted to Indiana Courts

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

Updating a long list of entries on this topic, today the Lafayette Journal & Courier's Sophia Voravong reports under the headline "Third lawsuit filed in Tippecanoe on behalf of sex offenders." some quotes:

Another John Doe lawsuit has been filed in Tippecanoe County -- this one attacking how officials interpreted a law that ordered sex offenders against children to move.

Ken Falk, an attorney with the Indiana Civil Liberties Union, filed the complaint on behalf of his anonymous client on Aug. 9 in Tippecanoe Superior Court 1.

His argument is that the legislation, which took effect July 1, 2006, should not apply to anyone who was convicted of a child sex crime before that date.

"I think this was a reflective response by the legislators to try and do something to protect children," Falk said this past week. "But what they're doing is not turning out to be positive."

Confusion comes from the statute's legislative history, which says it applies "only to crimes committed after June 30, 2006."

The lawsuit is the third one filed to date in Tippecanoe County challenging a state law that prohibits offenders against children from living within 1,000 feet of a school, public park or youth program center.

Together, they make up a handful of lawsuits that have been filed in Indiana in recent months. * * *

Here's the status of the other John Doe cases in Tippecanoe County:

  • A man who has lived in the Lafayette home owned by his in-laws for seven years filed a petition July 10 asking to no longer be considered a threat to children.

    A new law took effect July 1 that allows certain offenders to request that the designation be removed.

    The man, convicted in 1988 of child molestation, is waiting to be evaluated by two psychiatrists, as ordered by Judge Don Johnson of Tippecanoe Superior Court 1.

    Johnson denied the man's request for a preliminary injunction to stay in his home during pending litigation.

    His attorney, Chad Montgomery of the Earl McCoy Law Firm, is considering filing with the Indiana Court of Appeals.

  • A hearing date has not been set yet in the lawsuit of a Lafayette man who has less than four years before he'll be taken off the Indiana Sex and Violent Offender Registry.

    His attorney, Earl McCoy, filed petitions Aug. 9 in Tippecanoe Superior Court 2 challenging the state law requiring his client to move. The man was convicted of child seduction in 2000.

Posted by Marcia Oddi on Sunday, August 19, 2007
Posted to Indiana Law

Saturday, August 18, 2007

Ind. Decisions - "County shouldn't have issued hog farm permit"

The AP has a report today on the August 15th Court of Appeals ruling in the case of Rick Cook & Daniel Funk v. Adams County Plan Commission (see ILB entry here - 3rd case). From the story:

Planning officials incorrectly issued a permit that allowed construction of a northern Indiana hog farm that raises 1,000 swine, the Indiana Court of Appeals has ruled.

Although the court ruled in favor of two neighbors who sued over Jonas Hilty's permit, it's unclear what effect the ruling will have on the farm, which is already in operation.

At issue is Hilty's 2006 application to the Adams County Plan Commission to construct a hog-finishing facility capable of holding 1,000 hogs at a time.

According to the county's livestock operations ordinance, Hilty must own or have a long-term lease on at least 1 acre for every 10 hogs, or 100 acres. Hilty owned 20 acres on which he could spread manure, so he entered into a lease with Ruth Wilder for an additional 125 acres.

Opponents fought the farm before the plan commission based on the odor of the hogs and the expected decrease in property values, but the permit was granted.

Neighbors Rick Cook and Daniel Funk later sued, arguing the lease doesn't fit the legal definition of being long term because it is a one-year lease with automatic annual renewals and a cancellation notice of 180 days.

The ruling said there is no precise precedent on this issue.

Judge Michael Barnes said in a concurring opinion that "common sense tells me one year is not long term."

"The ordinance calls for a 'long-term' lease in order to ensure, I assume, a place to spread the manure for a defined, lengthy, and fixed period of time. The lease at issue here does not do that in my opinion," he wrote.

Posted by Marcia Oddi on Saturday, August 18, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Courthouse tree landmark gets long overdue trimming"

From the AP, a story that begins:

This southeastern Indiana city's top landmark _ a mulberry tree that juts from the roof of the Decatur County Courthouse's tower _ is now a little bit leaner following what city officials call a long overdue pruning.

A two-man crew armed with saws and pruning sheers was hoisted by a crane to the tower's roof in a metal basket Thursday to cut away dead limbs and perform other tidying up duties.

Marty Turner and Dave Howell pruned away the dead wood, removed grass that was growing between roof tiles and cut out a smaller mulberry tree that had sprouted from roof crevices.

Their last assignment was to take close-up pictures of the structure to help determine what kind of maintenance might be needed to preserve the tree and the tower. Those photos showed that the roof tiles and the area where the tree exits the rooftop could use some attention.

Posted by Marcia Oddi on Saturday, August 18, 2007
Posted to Indiana Courts

Ind. Gov't. - "East Chicago to stop insuring retirees over 65"

Joe Carlson of the NWI Times reports today:

Retired city workers who reach the age of 65 must now get their health care coverage through the Medicare program, instead of the city's insurance program.

It's a change in long-standing policy.

Formerly, the city gave retired city workers the option of staying on the city plan even after they would become eligible for the federal program.

East Chicago Corporation Counsel Carmen Fernandez said the new policy will save the city money on insurance costs, but that was not the motivating reason for the change.

"It will help the city. But it's something that we have to do pursuant to state law," Fernandez said. "The State Board of Accounts referred us to a statute that says we are not to pay for insurance for people after age 65, when Medicare kicks in."

Posted by Marcia Oddi on Saturday, August 18, 2007
Posted to Indiana Government

Ind. Gov't. - "Storm Water Board resigns: Council criticized no-bid contract"

A story from the August 5th Louisville Courier Journal (ILB entry here) was headed "No-bid contracts split council: New Albany debates 2 agreements' validity".

On Aug. 7th the LCJ story reported that "The New Albany City Council authorized legal action last night to determine whether two no-bid contracts, one for $3.3 million a year to run the sewer system and the other for $507,000 annually for storm drainage operations, are valid." - see ILB entry here.

Next, on Aug. 8th Dick Kaukas of the LCJ, who has reported all these stories, wrote: "Less than 24 hours after the New Albany City Council voted to file lawsuits to challenge the validity of two no-bid contracts, Mayor James Garner vetoed the resolution."

Today Kaukas reports:

Criticized by some New Albany City Council members for entering into a $507,000 no-bid contract, the city's three-member Storm Water Board resigned yesterday at the end of its regular monthly meeting.

"The board and the council have vastly different philosophies on how we should operate," said Tim Deatrick, who had been appointed head of the board by Mayor James Garner after it was set up by the council last year.

"Bottom line, the council created the board," Deatrick said, "and if the council doesn't agree with the board, we can acquiesce or resign. We decided to resign." * * *

Deatrick said a main factor in the unanimous decision to resign was the council's 6-2 vote last week to override a veto by Garner. The mayor had tried to block a council resolution that authorized filing a lawsuit to determine if two no-bid contracts, including the one involving the Storm Water Board, were valid.

Both of the contracts awarded last month are with Environmental Management Corp., the company that has run the city's sewer system since 2001. * * *

The agreements were awarded without competitive bidding. Lawyers for both boards have contended that bids are not required under state law because the contracts are for professional services, not for specific construction or other projects.

But the agreements prompted immediate council criticism, resulting in adoption of the resolution authorizing Jerry Ulrich, the council's lawyer, to ask Floyd Circuit Court if the contracts are valid. Ulrich has said he believes state law required bids for both contracts.

The lawsuit had not yet been filed as of yesterday, according to the court clerk.

Posted by Marcia Oddi on Saturday, August 18, 2007
Posted to Indiana Government

Ind. Decisions - Husband appealing disparate sentence

Shawn McGrath of the Anderson Herald Bulletin reported late Thursday, Aug. 16th, in a story that begins:

Everything should be equal between a husband and wife — including their individual prison terms for engaging in sex acts with teenage boys, according to an Anderson attorney.

Attorneys for Deckard K. Zicafoose have filed a notice of appeal, claiming Madison Circuit Court Judge Fredrick Spencer erred in sentencing the former Edgewood resident in July to four years in prison after he pleaded guilty to a single count of aiding, inducing or causing sexual misconduct with a minor, a Class B felony. He could be released from prison in about two years if he serves his sentence with good behavior.

Anderson attorney Jeffery Lockwood, who, along with David Happe, is representing Zicafoose, 42, in his appeal, said Spencer should have sentenced Zicafoose to the same term as that of his wife, Misty Zicafoose.

Misty Zicafoose, 30, was sentenced in July to two years in prison after pleading guilty to five counts of sexual misconduct with a minor, all Class B felonies punishable by six to 20 years in prison. With good behavior, she could be released in less than a year.

“We think the judge considered some inappropriate factors,” Lockwood said earlier this week. “And we think that’s shown by the disparities in the sentences.

“You have a woman who pleaded guilty to five counts, only one of which involved her husband. Why does she get half the sentence he gets?”

Specifically, Spencer gave both Zicafooses the minimum sentence. Deckard Zicafoose received a six-year sentence, with four years executed in prison. The last two were suspended, and he’ll serve them on probation.

Misty Zicafoose also got a six-year sentence, but only two were ordered to be served in prison. Spencer suspended the remaining four years, and she’ll spend that time on probation.

“Basically, what we’re saying is, when a judge sentences someone, it should make sense,” Lockwood said.

Posted by Marcia Oddi on Saturday, August 18, 2007
Posted to Ind. Trial Ct. Decisions

Courts - Yet more on: Kentucky fen-phen lawyers ordered to jail

Continuing the story of the jailed Kentucky fen-phen lawyers (see Wednesday's entry here), Andrew Wolfson of the Louisville Courier-Journal writes today under the headline "Jailed lawyers contest court hearing in diet-drug case: Parties say judge lost jurisdiction." Some quotes:

The defense and prosecution both say that a federal judge has no authority to hold a hearing Tuesday on whether the lawyers in Kentucky's fen-phen case should be released from jail.

Attorneys for both sides say U.S. District Judge William Bertelsman lost jurisdiction over the issue when Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. appealed his order to jail them.

Bertelsman ordered them confined Aug. 10, but a few days later said he would grant them an emergency bail hearing Tuesday. He directed them to file a full financial statement explaining the whereabouts of the $46 million they are accused of taking from clients in the 2001 settlement of the diet-drug case.

But in a motion, Gallion's lawyers, O. Hale Almand Jr. and Robert Lotz, said he won't be able to prepare such an accounting because he and the other two suspended lawyers are locked up in the Boone County Jail.

They also said the matter now rests with the Court of Appeals, and federal prosecutors, in a separate motion, concurred.

Waiting for the appellate court could mean more time in jail for the attorneys, because that court has given the government until Aug. 30 to file its brief.

Posted by Marcia Oddi on Saturday, August 18, 2007
Posted to Courts in general

Friday, August 17, 2007

Ind. Decisions - Court of Appeals issues 5 today (and 23 NFP)

More details coming

For publication opinions today (5):

In Jill Petersen v. Marty A. Burton , an 11-page opinion, Judge Crone writes:

[Issue] Whether the trial court abused its discretion by denying Mother’s verified motion to correct error. * * *

In sum, there is evidence that Father’s parenting, while admittedly not perfect, has improved significantly since paternity was established in 2003. He provides consistent financial support for his son, and he exercises regular visitation. His testimony expresses his desire to continue to improve his relationship with N.D.F. There is evidence that using Father’s surname will provide immediate emotional benefits to N.D.F. and will likely encourage the growth of stronger ties between Father and N.D.F. We conclude that the trial court did not err in denying Mother’s motion to correct error.

In Gordon B. Dempsey v. Auditor of Marion County, et al, a 13-page opinion, Judge Barnes writes:
Gordon Dempsey appeals the trial court’s denial of his motion for relief from judgment, which sought to set aside a tax deed issued to Marion County (“the County”). We reverse.

Dempsey raises three issues, but the dispositive issue is whether the County’s petition for issuance of a tax deed was void because it was filed after Dempsey had filed for bankruptcy. * * *

In other words, this court is powerless to validate the tax deed petition the County filed while the automatic stay in Dempsey’s bankruptcy case was in effect. Such relief falls exclusively within the jurisdiction of the bankruptcy court. We are compelled to reverse the issuance of the tax deed to the County, which was issued on the basis of a tax deed petition filed in violation of the Bankruptcy Code’s automatic stay provision. This reversal also necessarily invalidates the County’s sale of the parcel to Tew.

Conclusion. The trial court erred as a matter of law in concluding that the petition for a tax deed did not violate the automatic stay. We reverse the denial of Dempsey’s motion to set aside the issuance of the tax deed. Reversed.

In James L. Perry and Carolyn S. Perry v. Gulf Stream Coach, Inc. , a 19-page opinion, Judge Najam writes:
James L. Perry and Carolyn S. Perry (collectively, the “Perrys”) appeal from the trial court’s order granting Gulf Stream Coach, Inc.’s (“Gulf Stream”) motion in limine. The Perrys raise a single issue for our review, namely, whether the court abused its discretion in prohibiting the Perrys from pursuing claims and remedies available under the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (“Magnuson-Moss”). We affirm. * * *

We hold that the Perrys’ attempts to assert issues arising from the application of Magnuson-Moss are barred by the doctrine of claim preclusion. Thus, we need not address whether those issues fall within an exception to the law of the case doctrine. See Lewis, 543 N.E.2d at 1118. By now arguing that Hyundai applies, the Perrys are essentially seeking to apply Hyundai retroactively and relitigate Magnuson-Moss in their cause of action. But this court has already held that Magnuson-Moss does not apply to the Perrys’ claims. Therefore, the claim preclusion branch of res judicata bars the retroactive application of Hyundai to this case and the subsequent relitigation of any Magnuson-Moss issues. See Fairfield Dev., 768 N.E.2d at 476. As such, we cannot say that the trial court abused its discretion in granting Gulf Stream’s motion in limine.

In Judith Gorman v. William Larry Gorman, and Mark E. Neff, Judge Mathias writes for the panel:
In this purported appeal, Judith Gorman has attempted to relitigate matters that have been determined previously. Therefore, we dismiss with specific instructions as set out in the attached order.
The Order itself is 10 pages long. A sample from p. 8:
By her conduct, Judith rejects the legal finality of both trial and appellate court decisions and continues to challenge, albeit in a wide variety of ways, the enforceability and scope of the release she signed, with the advice of counsel, on August 9, 1999. As a result, valuable judicial resources are spent considering the same meritless legal and factual questions presented by Judith over and over again.
In Mary Johnson, et al v. Ruth Ann Morgan, an 8-page opinion, Judge Mathias writes:
At issue in this interlocutory appeal is whether the Tipton Circuit Court erroneously joined the Appellants as defendants in a will contest under Indiana Code section 29-1-7-17. We reverse and remand for proceedings consistent with this opinion. * * *

The trial court erroneously added Johnson as a defendant to the action. Because Johnson tendered a summons within the statutory time frame and because the Wessons had already commenced the will contest, Johnson’s motion to intervene is not precluded by the three-month statutory period contained in Indiana Code section 29-1-7-18. Therefore, we reverse and remand with instructions that Johnson et al be named as a plaintiff in this will contest.

NFP civil opinions today (8):

Steven A. Derr v. Genevieve Crane, Estate of Myrtle Crane (NFP)

Jill Hoffman-Waugh and Del Waugh v. Rosemary McGrogan (NFP)

Emma Bender v. State Employees Appeals Commission, Branchville Correctional Facility and Department of Correction (NFP)

Paternity of L.L.W.; Steven D. Holmes v. Melodee A. West (NFP)

Eugene P. Cornett v. Adaline & Wayne Cornett (NFP)

Munster Community Hospital, Cardiac Care Consultants, P.C., Shashidhar Divakaruni, M.D. and Jay C. L. Paik, M.D. v. Thomas Bernacke (NFP)

Termination of the Parent-Child Relationship of K.B.; Michael Black v. Marion County Department of Child Services and Child Advocates, Inc. (NFP)

Invol. Term. of Parent-Child Rel. of Q.B., S.B., Sh.B., T.B., and Bobby Bynum v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (15):

Tyrone Williams v. State of Indiana (NFP)

William Temple v. State of Indiana (NFP)

Larry Hackett v. State of Indiana (NFP)

Lindell Winn v. State of Indiana (NFP)

Christopher Naas v. State of Indiana (NFP)

Jarron Fifer v. State of Indiana (NFP)

Lloyd Beets v. State of Indiana (NFP)

Jermaine Foster v. State of Indiana (NFP)

Paul W. Bradley v. State of Indiana (NFP)

Ronald Burkes v. State of Indiana (NFP)

Sims Bledsoe v. State of Indiana (NFP)

James McDuffie v. State of Indiana (NFP)

Aaron Young v. State of Indiana (NFP)

Brian Lee Johnson v. State of Indiana (NFP)

Tyrone Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 17, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judge Cale Bradford will formally join the Indiana Court of Appeals in a robing ceremony Aug. 23rd

From a release issued by the Court of Appeals:

Judge Cale Bradford will formally join the Indiana Court of Appeals in a robing ceremony in the Supreme Court courtroom at 2:30 p.m. on Thursday, August 23, 2007. Chief Judge John G. Baker will preside. Governor Mitch Daniels will join Judge Bradford’s family, colleagues, and special guests to administer the oath of office at the ceremony, which will be followed by a reception. Judge Bradford will be introduced by former Marion County Prosecutor Scott Newman. Seating is by invitation, but the media is welcome to cover the event.

Judge Bradford was named to the Court of Appeals by Governor Mitch Daniels and took his seat on Wednesday, August 1, 2007. He joins Judge Ezra H. Friedlander and Judge James S. Kirsch in representing the Court’s 2nd District, which includes Marion County. For more than 10 years, Judge Bradford served on the Marion Superior Court, including two terms as presiding judge.

Posted by Marcia Oddi on Friday, August 17, 2007
Posted to Indiana Courts

Ind. Decisions - More on J. Bradley King, et al. v. Leo T. Burns

More J. Bradley King, et al. v. Leo T. Burns, et al., the case where the candidate for circuit court judgeship's paperwork was filed at the wrong office, which is on today's transfer list.

A reader has written in to point out that:

[W]hen the Supreme Court granted transfer this week on this, they also simultaneously disposed of the case by order. The order's not on the Court website as far as I can see but is on the electronic docket. From what I can see of the order they granted transfer, vacated the trial court's decision (to leave Burns on the ballot) but also said that this did not affect the validity of Burns' election or disqualify him from office.
Here is the wording of the order from the docket:
8/14/07 ISSUED THE ENCLOSED ORDER:
8/14/07 WE AGREE WITH THE ATTORNEY GENERAL THAT THE LIMITED RELIEF SOUGHT BY THE APPELLANTS IS WARRANTED. ACCORDINGLY, THE COURT GRANTS TRANSFER, IND. APPELLATE RULE 58(A), AND VACATES THE TRIAL COURT'S JUDGMENT. VACATION OF THE JUDGMENT DOES NOT INVALIDATE THE ELECTION'S RESULTS OR IN ANY WAY DISQUALIFY JUDGE BURNS FROM OFFICE. THIS ORDER CONCLUDES THIS APPEAL.
BRENT E. DICKSON, ACTING CHIEF JUSTICE
ALL JUSTICES CONCUR.

Posted by Marcia Oddi on Friday, August 17, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Transfer list for week ending August 17, 2007

Here is the Indiana Supreme Court's transfer list for the week ending August 17, 2007.

There were three transfers granted this week. One. Darius V. Bowles v. State. is summarized in this ILB entry from last Friday.

Two are summarized in this entry from yesterday, August 15th, including Derek Scott Geiger v. State, where the Supreme Court granted and summarily affirmed the COA opinion - the COA ruled "Concluding that Geiger can only be convicted of one count of impersonating a public servant pursuant to Indiana Code section 35-44-2-3 but finding no other error, we direct the trial court to vacate Geiger’s conviction for Count II and affirm the judgment of the trial court in all other respects." The other is J. Bradley King, et al. v. Leo T. Burns, et al., the case where the candidate for circuit court judgeship's paperwork was filed at the wrong office.

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, August 17, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - More on 7th Circuit decision re Orland's Deputy Town Marshal

The 7th Circuit's decision Wednesday in the case of Ryan Belcher and Daraina Gleason v. Vaughn Norton and Town of Orland (ND Ind. Judge Springmann) [see ILB entry here] is the subject of an AP story today:

ORLAND, Ind. -- A deputy marshal from a Northern Indiana town must face a lawsuit over claims that he illegally held a couple as they tried to retrieve personal belongings from their van at a tow yard, a federal appeals court ruled.

The 7th U.S. Circuit Court of Appeals on Wednesday reversed a judge's ruling in favor of Orland Deputy Town Marshal Vaughn Norton, saying he may have acted inappropriately and could be sued.

"I'm kind of excited, but I'm still kind of sad about the circumstances of the whole thing," plaintiff Ryan Belcher said. "I really do feel they violated me and my wife's rights."

Belcher, 25, and his then-fiancee, Daraina Gleason, say Norton detained them illegally in February 2004 after they went to a towing company's lot to retrieve items from their van four days after a breakdown on the Indiana Toll Road.

After four employees kept them from leaving, Norton arrived and threatened to arrest Belcher on a disorderly conduct charge unless he signed over the van's title to the tow company, court records said. Gleason eventually signed over the title.

The couple claim in the suit that they asked that a state trooper be called, but Norton refused, saying, "I am the law."

The appeals court agreed with the lower court that the town about 50 miles north of Fort Wayne could not be sued over the matter.

The appeals court ruling said the lien the towing company had against the van covered only the vehicle, not the contents, and that state law allowed the couple 20 days to claim the vehicle.

Posted by Marcia Oddi on Friday, August 17, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: "DNR permit for Cedar Creek invalid"

Updating this ILB entry from August 14th, thanks to a reader, here is a copy of Allen Circuit Judge Thomas Felts' one-page, April 8th opinion.

Posted by Marcia Oddi on Friday, August 17, 2007
Posted to Ind. Trial Ct. Decisions

Law - "Multiple Lawsuits Allege Laxative Causes Kidney Failure"

Steve Karnowski of the AP has a story today that begins:

A popular over-the-counter laxative used to flush out patients' bowels before procedures such as colonoscopies has caused serious kidney damage and even death, a series of lawsuits filed across the country alleges.

The lawsuits target Fleet Phospho-soda, made by C.B. Fleet Co. Inc. of Lynchburg, Va. More than 50 have already been filed in at least 20 states, Stephen Foley, one of the lawyers involved in the litigation, said Thursday. Nine of them were filed this week in federal court in Minnesota.

"It can kill your kidneys. In some cases it has killed people," said Foley, whose firm is part of a group of allied law firms pressing more than 50 lawsuits against Fleet. Other law firms have begun pursuing similar cases as well, Foley said.

Fleet issued a statement Thursday saying its studies show the product is safe when used properly, in the proper patients, with enough hydration.

Posted by Marcia Oddi on Friday, August 17, 2007
Posted to General Law Related

Ind. Decisions - "7th Circuit Breaks With Six Circuits Over Waiver of Appeal"

The July 31st 7th Circuit opinion in the Illinois case of Armando Nunez v. USA. is the focus of a National Law Journal article today by Pamela A. MacLean. It begins:

Charting its own course on when criminal lawyers may forgo appeals, the 7th U.S. Circuit Court of Appeals has broken with six other circuits to hold that a plea bargain that includes a promise to waive all appeals means what it says.

Six circuits have held that a waiver of appeal in plea bargain cases does not relieve counsel of a duty to file a notice of appeal at the client's request. Waivers are not airtight, and if a defendant wants a lawyer to argue that the plea was involuntary, he or she has that right. Failure to do so would be considered automatic ineffective assistance of counsel, according to the prior precedents.

But Chief Judge Frank Easterbrook confesses "[s]ome doubt about the constitutional reasoning of the circuits that have located in the Sixth Amendment a rule that a lawyer is the client's puppet."

He points out that a lawyer also has a duty to the judiciary to avoid frivolous litigation and to the client to avoid actions that could cost a client the benefits of a plea bargain. "The lawyer's duty is to do what's best for the client, which usually means preserving the benefit of the plea bargain," Easterbrook wrote.

Posted by Marcia Oddi on Friday, August 17, 2007
Posted to Ind. (7th Cir.) Decisions

Thursday, August 16, 2007

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

For publication opinions today (1):

In Megan Morris v. State of Indiana , a 14-page opinion, Judge Barnes writes:

Megan Morris appeals her convictions for Class A felony battery and Class A felony child neglect. We reverse.

Issue The restated issue before us is whether the trial court properly admitted Morris’s statements to police into evidence. * * *

Morris should have been advised of her Miranda rights when Sergeant Haalck began his interview of her, but she was not. Morris implicated herself in Romeo’s death, she then was Mirandized, and she repeated that confession in a taped statement. Clearly, Morris’s pre-Miranda, unrecorded statement is inadmissible. As for the post-Miranda, recorded statement, its admissibility is governed by Missouri v. Siebert, 542 U.S. 600, 124 S. Ct. 2601 (2004). Siebert disapproved of “question first-warn later” interrogation techniques whereby a person in custody is interrogated without Miranda warnings, the person confesses, and the police only then Mirandize the person and record the confession. The Supreme Court held that Miranda warnings “will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content.” Siebert, 542 U.S. at 613, 124 S. Ct. at 2610. The State does not argue that Morris’s post-Miranda interrogation was not close in time or not similar in content to her pre-Miranda interrogation; it focused solely on whether Morris was in custody at the time. Having rejected the State’s argument on that point, Siebert clearly precludes the admission of Morris’s post-Miranda, recorded statements.

The State also makes no argument that admission of Morris’s statements to Sergeant Haalck constituted harmless error, nor do we see how it possibly could be. Therefore, we must reverse her convictions. Because there is no claim that there was insufficient evidence to convict, Morris may be retried. See Camm v. State, 812 N.E.2d 1127, 1138 (Ind. Ct. App. 2004), trans. denied. Conclusion The trial court improperly admitted Morris’s inculpatory statements to Sergeant Haalck into evidence. We reverse her convictions.

NFP civil opinions today (0):

NFP criminal opinions today (8):

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

James M. Derenski v. State of Indiana (NFP)

Collier Heard v. State of Indiana (NFP)

Latonna Whitt v. State of Indiana (NFP)

John O. Philbeck v. State of Indiana (NFP)

Joann Sheridan v. State of Indiana (NFP)

John O. Philbeck v. State of Indiana (NFP)

Christopher Cowans v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 16, 2007
Posted to Ind. App.Ct. Decisions

Environment - Federal Judge dismisses shippers' suit against Michigan ballast law

John Flesher of the AP is reporting:

TRAVERSE CITY, Mich. (AP) -- A federal judge has thrown out a lawsuit challenging Michigan's new requirement that oceangoing ships treat ballast water for invasive species before discharging it at the state's ports.

A shipping coalition had sued in U.S. District Court in Detroit, claiming the law - which took effect this year - was unconstitutional. But Judge John Feikens on Wednesday granted the state's motion to dismiss the suit.

"We were successful in defending Michigan's law that protects the Great Lakes from even more of an invasion by these aquatic nuisance species," Rusty Hills, spokesman for the state attorney general's office, said Thursday.

Many of the 183 aquatic invasives in the lakes, including the notorious zebra and quagga mussels, are believed to have arrived in ballast tanks of ships from European or Asian ports.

Invasives compete with native species, disrupting the natural ecosystem, and cost the regional economy millions each year.

Shipping companies say they're making progress on technology to sterilize ballast tanks in ways that would kill foreign creatures but need more time. They argued the state law makes unreasonable demands and was an unconstitutional restraint on commerce.

They also said it made little sense for one state to impose a ballast policy when the Great Lakes network includes eight states and two Canadian provinces.

But supporters of the Michigan law said they were tired of waiting for the federal government to devise a ballast standard for U.S. waters. A new invasive species is believed to arrive in the Great Lakes on average every eight months.

Posted by Marcia Oddi on Thursday, August 16, 2007
Posted to Environment

Ind. Courts - News re Johnson County judge seats

From the Daily Journal News daily email update:

Look for a shakeup in some key positions in Johnson County's legal system.

Johnson Superior Court 3 Judge Kim Van Valer is announcing she does not plan to seek re-election. The two-term judge plans to establish a private practice, and her term ends in December 2008.

Johnson County Prosecutor Lance Hamner has said he plans to run for the seat.

An open judge seat is not common in Johnson County, and it will be interesting to see who else might throw his hat into the ring.

Posted by Marcia Oddi on Thursday, August 16, 2007
Posted to Indiana Courts

Ind. Courts - "Judge grants drug defendant use of computer legal service"

Rick Yencer reports today in the Muncie Star-Press:

MUNCIE -- As he prepares to represent himself in an upcoming trial, accused cocaine dealer Kelvin Lampkins will have access to the same online legal service that attorneys and courts use.

Delaware Circuit Court 5 Judge Wayne Lennington took that step Tuesday, giving Lampkins access to a computer and LexisNexis legal service while in jail to prepare his defense.

"If I give you this, you have the skills and ability to do your defense?" Lennington asked Lampkins, dressed in an orange jail jumpsuit.

Lampkins, who is a paralegal, replied affirmatively, and also asked the judge to set bond and release him on home detention.

"I can't let you out on the streets," Lennington said.

Lampkins faces three counts of dealing in cocaine, a class A felony carrying a standard 30-year prison term, and has prior drug-related convictions.

Deputy Prosecutor Judi Calhoun told the judge she wanted to confirm a trial date, noting the case had already been postponed four or five times.

The current Sept. 25 trial was reset to Oct. 2, giving Lampkins an extra week to prepare.

According to court records, Lampkins has changed public defenders six times and also sought a change of judge in his latest case. Last month, Lampkins petitioned to represent himself, and wanted the court to provide him a legal library.

Lampkins maintained the current law library in the Delaware County Jail was not up-to-date, and argued he needed the means to represent himself.

During an interview, Delaware County Sheriff George Sheridan disputed Lampkins's claim, saying current laws were maintained on CDs for inmates.

"It should not be a problem," Sheridan said after hearing about Lennington's ruling.

Lennington acknowledged there was no provision under current state law to allow an inmate access to online legal research.

"This is new ground," the judge said.

However, accused criminal defendants still have a right to legal counsel under the Constitution.

"You have the same thing that I have for your benefit and use," Lennington told Lampkins.

Posted by Marcia Oddi on Thursday, August 16, 2007
Posted to Indiana Courts

Ind. Gov't. - More on: Council has no authority to remove indicted Monticello mayor

Updating this ILB entry from June 21st, Sophia Voravong of the Lafayette Journal & Courier reports today:

MONTICELLO -- Anguish evident in his voice, Mayor Bob Fox did his best to stay calm Wednesday morning as he wondered whether he'll be booted out of office.

Because if a judge accepts his guilty plea on four charges of Class D felony theft, that's exactly what would happen.

"It's up to the court. ... I'm still working every day. I'm still doing my job," Fox said. "I will continue to do my job so long as I'm allowed."

Under the terms of his proposed plea agreement filed in White Superior Court, the two-term, Democratic mayor would be given a three-year suspended sentence -- with only one of those years on supervised probation.

The 71-year-old was arrested April 27 following an 11-week Indiana State Police investigation into allegations that he submitted $2,483 in false travel expenses. He had been charged with 39 felony counts.

Posted by Marcia Oddi on Thursday, August 16, 2007
Posted to Indiana Government

Ind. Courts - More on: More problems with the Camm trial transcript?

Updating an entry from earlier this morning, IU-Indy Law Professor Joel Schumm writes:

Re: The ILB wonders, how often does this sort of thing -- i.e. illegible parts of a transcript -- happen, and what is done?

I've done more than sixty appeals, mostly from Marion County. Inaudibles of important information are rare. They usually arise from a bench conference, where lawyers are supposed to talk quietly (so the jury doesn't hear the objections/arguments being made). I've encountered a couple of transcripts with material errors, however.

Appellate Rules 31 & 32 provide the means to address such disputes:

Rule 31. Statement of Evidence When No Transcript is Available

A. Party’s Statement of Evidence. If no Transcript of all or part of the evidence is available, a party or the party’s attorney may prepare a verified statement of the evidence from the best available sources, which may include the party’s or the attorney’s recollection. The party shall then file a motion to certify the statement of evidence with the trial court or Administrative Agency. The statement of evidence shall be attached to the motion.

B. Response. Any party may file a verified response to the proposed statement of evidence within fifteen (15) days after service.

C. Certification by Trial Court or Administrative Agency. Except as provided in Section D below, the trial court or Administrative Agency shall, after a hearing, if necessary, certify a statement of the evidence, making any necessary modifications to statements proposed by the parties. The certified statement of the evidence shall become part of the Clerk’s Record.

D. Controversy Regarding Action of Trial Court Judge or Administrative Officer. If the statements or conduct of the trial court judge or administrative officer are in controversy, and the trial court judge or administrative officer refuses to certify the moving party’s statement of evidence, the trial court judge or administrative officer shall file an affidavit setting forth his or her recollection of the disputed statements or conduct. All verified statements of the evidence and affidavits shall become part of the Clerk’s Record.

Rule 32. Correction or Modification of Clerk’s Record or Transcript
A. Submission of Disagreement Regarding Contents to Trial Court or Administrative Agency. If a disagreement arises as to whether the Clerk’s Record or Transcript accurately discloses what occurred in the trial court or the Administrative Agency, any party may move the trial court or the Administrative Agency to resolve the disagreement. The trial court retains jurisdiction to correct or modify the Clerk’s Record or Transcript at any time before the reply brief is due to be filed. After that time, the movant must request leave of the Court on Appeal to correct or modify the Clerk’s Record or Transcript. The trial court or Administrative Agency shall issue an order, which shall become part of the Clerk’s Record, that either:
(1) confirms that the Clerk’s Record or Transcript reflects what actually occurred; or

(2) corrects the Clerk’s Record or Transcript, including the chronological case summary if necessary; to reflect what actually occurred.

B. Transmission of Order. The trial court clerk shall transmit to the Court on Appeal:
(1) the trial court’s order or order of an Administrative Agency and any corrections to the Clerk’s Record; and

(2) any corrections to the Transcript by means of a supplemental Transcript. See Rule 9(G). The title of any corrected Transcript shall indicate that it is a corrected Transcript.

Posted by Marcia Oddi on Thursday, August 16, 2007
Posted to Indiana Courts

Environment - Petition filed to block BP permit from taking effect

Tom Coyne of the AP reported late yesterday:

SOUTH BEND, Ind. (AP) -- An environmental group on Wednesday appealed a state permit that allows BP PLC to release more pollution into Lake Michigan from its Whiting oil refinery, arguing that it and other opponents never had a chance to fight the decision.

The Alliance for the Great Lakes filed the petition asking the Indiana Office of Environmental Adjudication to block the refinery's permit. The petition also asks that opponents be given a chance to appeal the permit granted to the refinery located just east of Chicago. * * *

The appeal contends that IDEM should have served notice of final action on the permit to each person who submitted written comments on the permit application. Alliance contends it and others were not notified, so they never had the chance to appeal.

"The issue raised in this case is whether a permit appeal can expire - let alone even begin - if relevant parties were never adequately served about the permit issuance in the first place," the petition said.

IDEM issued a statement Wednesday, saying: "We believe we followed appropriate notification procedures."

IDEM spokeswoman Amy Hartsock said the agency would have no further comment.

Alliance contends because it was never notified that the permit was issued, the 15-day appeal process never started. Alliance also argues that there was no reason for it to expect the permit to be granted so quickly because Indiana "is widely known to take several years to reissue its most complicated" National Pollutant Discharge Elimination System permits.

"In this instance, the last time an NPDES permit was reissued for the BP-Whiting facility was 1990. As a result, the Alliance could not have anticipated that permit issuance this time would have been uncharacteristically expeditious, occurring approximately one month after the close of the comment period," the appeal says.

Alliance also argues that it had no way of knowing that the permit was final, saying the version posted to the IDEM web site did not have an effective date on it.

As the ILB understands it, it is the receipt of the notices of decision (NOD) mailed to the interested parties that start the clock. But if IDEM is going to set up a webpage and label it "BP Products North America Inc., Whiting Refinery NPDES Permit Information", it must be complete and accurate, as the public is likely to rely on it.

Here is the IDEM BP page as it exists today, many documents have been added to it in the past several weeks. (The ILB has retained a copy of the earlier version.) Even so, the updated page still does not address the objections the ILB posted on July 14th, at the end of this entry. The objections included:

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 ILB 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.

At the time the ILB first wrote this, it seemed like these were oversights IDEM would quickly correct. Now, a month later, it looks more that IDEM is simply clueless about its obligation to make information about permits (particularly one as important as this) readily accessible to those, other than the permitee itself, outside of IDEM. And it may be an indication that the same haphazard standard was used in notifying by mail those required by law to be notified of the permit issuance and of the opportunity to appeal.The AP story concludes:
Cameron Davis, president of Alliance, said he wants IDEM to start the clock on the appeal again.

"Just at a time when we are trying to restore the Great Lakes and have a massive restoration campaign, people deserve their say on these permits that would allow more pollution," he said. "That's the point of this thing."

Chief Environmental Judge Mary Davidsen said if the petition is complete, she likely would schedule a pretrial hearing in about 30 days. She said a hearing date on the stay request would likely be set then.

Davidsen said the pretrial hearing would focus on coming up with a schedule for how the case would proceed. She said by law she must consider whether mediation is an option.

The Office of Environmental Adjudication provides a Guide to the Administrative Appeals Process here. IDEM has information here.

Gitte Laasby of the Gary Post-Tribune also reports on this story today. She writes:

The Alliance for the Great Lakes has appealed BP's wastewater permit, saying the Indiana Department of Environmental Management failed to provide proper notice that the final permit was issued as state law requires.

In a petition to the Indiana Office of Environmental Adjudication, the Alliance argues that IDEM failed to send notice of permit issuance to people who participated during the public comment period, including the Alliance for the Great Lakes and the LaPorte County Environmental Association.

Indiana law requires IDEM to notify "each person who submitted written comments" when a permit is issued or denied. The notice must contain information on how to appeal the permit.

"This petition raises serious issues that go to the heart of citizens' rights to fully scrutinize governmental decisions to allow pollution discharges to the waterways they use for drinking, fishing, swimming or even spiritual renewal," Cameron Davis, president of the Alliance for the Great Lakes, said in the petition. "Fundamental to those decisions is the public's right to be notified of those governmental decisions."

Davis said the public "never had much of a chance" to challenge BP's permit.

"Indiana went from the close of the public comment period to permit issuance in about a month. This is unheard of," Davis said in a news release.

The OEA reviews IDEM's implementation of state and federal rules. In general, the OEA can give those who made comments permission to file a belated appeal if they weren't properly notified.

"If you did not receive notice and you're not on time filing your appeal, we can possibly allow them to go forward with their appeal," Catherine Gibbs, environmental law judge with the OEA, previously told the Post-Tribune.

IDEM posted notice that the final permit had been issued on its Web site, but Davis said it does not contain an effective date.

In the petition, the Alliance asks IDEM to give an effective date of the permit, provide notice to people of the final permit issuance and start the appeal period again. It also asks the agency for a "stay" -- a request that the approved action not be allowed to take place until a decision has been made regarding the appeal.

The petition would not block BP's wastewater permit. That would require granting another appeal that shows that IDEM did not properly implement state and federal law.

Davis said he wants to "bump open" the door to file an appeal of the contents of the permit. At a minimum, anybody who commented and wasn't notified would be able to file an appeal. He also wants the appeal period to start over so anyone can appeal.

Davis said he, Gary environmentalist Lee Botts and Tom Anderson, who represented the LaPorte County Environmental Association, never received notification. That deprived them of their right to appeal the permit, Davis states in the petition, because they did not know when the 15-day appeal period started. The appeals clock doesn't start ticking until people have been notified, Davis states.

Posted by Marcia Oddi on Thursday, August 16, 2007
Posted to Environment

Ind. Courts - More problems with the Camm trial transcript?

Remember al the stories from this spring about the transcript of last years' David Camm murder retrial, where the Supreme Court finally issued an order the beginning of June that ended:

This is a final extension. If the remaining portion of the transcript is not completed and filed on or before June 4, 2007, the court reporter will be ordered to appear before this Court in person to show cause why she should not be held in contempt.
See these ILB entries for background.

Today Ben Zion Hershberg of the Louisville Courier Journal reports:

Lawyers for former Indiana State Trooper David Camm asked the state Supreme Court today to accept as part of the official record their recollection of 21 objections raised during Camm’s murder retrial last year.

A 57-volume transcript of the eight-week retrial in Warrick County Superior Court said the objections were inaudible, according to Katharine Kiell, a lawyer for Camm. The transcript was prepared for Camm’s appeal of the guilty verdict.

“We hope the delay is limited” for the court’s consideration of the reconstructed objections, Liell said. But she said the objections and Judge Robert Aylsworth’s rulings on them are key to Camm’s appeal.

Floyd County Prosecutor Keith Henderson could not be reached late today for comment on the reconstructed objections.

The ILB wonders, how often does this sort of thing -- i.e. illegible parts of a transcript -- happen, and what is done?

A check of the docket in the case (87 S 00 - 0612 - CR - 00499) does not reveal this filing re the objections, but does reveal another issue. On July 26th the same court reporter who submitted the late, 54-volume transcript was ordered by Justice Sullivan "to comply with Rule 28(c) and submit a copy of the ttranscript in electronic format to the trial court clerk no later than August 3, 2007." The docket also includes an August 7th "verified motion to compel trial court clerk to provide transcript in electronic format."

Posted by Marcia Oddi on Thursday, August 16, 2007
Posted to Indiana Courts

Wednesday, August 15, 2007

Ind. Courts - Create state court for commercial truck violations?

Patrick Guinane reports today in the NWI Times:

INDIANAPOLIS | Indiana should establish a centralized administrative court to handle traffic infractions issued to commercial truck drivers, a retired Porter County judge told lawmakers investigating a rash of fatal wrecks involving semitrailers.

Senior Judge Raymond Kickbush said many local judges and prosecutors have very limited knowledge of the voluminous federal rules regulating commercial driver's licenses. The lack of expertise, he said, often allows truck drivers charged with drunken driving to keep their licenses despite federal rules mandating suspensions.

"The judges I've talked to, I found, didn't know beans about this," Kickbush told the Legislature's Interim Study Committee on Transportation Matter on Tuesday. * * *

Kickbush advocated a state commercial vehicle court staffed by regional hearing officers who know the commercial vehicle code inside and out. He said the more administrative statewide court, to be modeled after the worker's compensation system, could transfer serious cases involving deaths or potential prison sentences back to the criminal courts.

Kickbush said he has spent the past five years performing judicial outreach on commercial vehicle laws and has encountered many judges and prosecutors who don't realize truck drivers are not eligible for DUI diversion programs or hardship licenses allowing them to continue driving for work.

Posted by Marcia Oddi on Wednesday, August 15, 2007
Posted to Indiana Courts

Ind. Courts - Indiana Conference for Legal Education Opportunity (ICLEO), which is designed to enhance diversity in Indiana’s legal profession, celebrates its tenth anniversary

A press release issued today by the Indiana Courts reads:

At the urging of Chief Justice Randall T. Shepard, the Indiana General Assembly established this program to assist traditionally underrepresented groups pursue a legal education at one of Indiana’s four law schools. The inaugural class of 29 students began their journey as ICLEO fellows in the fall of 1997.

Indiana CLEO fellows receive specialized preparation for law school, a cash stipend, and access to employment and networking opportunities. Over ten years nearly 300 Indiana CLEO fellows have been part of the program and many have moved into positions of leadership in law firms, government, and Indiana businesses.

“It is remarkable to see how this program has provided a better chance for students from challenged backgrounds to succeed in law school. And it is especially gratifying to see how well so many of them have done,” said Chief Justice Shepard.

To help commemorate this landmark occasion, a series of anniversary events have been planned, including a mentoring session at the Indiana University School of Law-Indianapolis with Indiana CLEO alumni and a continuing legal education event on ethics co-sponsored by Indiana CLEO and the Indiana Continuing Education Forum.

This final event of the anniversary celebration will take place at the Indiana Historical Society, Wednesday, August 29th at 7:00 p.m. Current students, alumni and various friends and supporters of the program will reflect upon and celebrate the many accomplishments of the program and its participants.

The keynote speaker for the evening is Mr. Elliott Lewis. Mr. Lewis is a journalist from Washington, DC. He travels around the country presenting on various diversity and multicultural issues. He is also the author of a book entitled, Fade: My Journeys in Multiracial America.

For more information about Indiana CLEO or any of the events, contact Robyn M. Rucker at 317.234.1376 or rmrucker@courts.state.in.us.

Indiana CLEO website: www.in.gov/judiciary/cleo

Posted by Marcia Oddi on Wednesday, August 15, 2007
Posted to Indiana Courts

Ind. Decisions - One today re Indiana from the 7th Circuit

In Ryan Belcher and Daraina Gleason v. Vaughn Norton and Town of Orland (ND Ind. Judge Springmann), a 27-page, 2-1 opinion, Judge Ripple writes:

Ryan L. Belcher and Daraina Gleason brought this action against Deputy Marshal Vaughn Norton and the Town of Orland under 42 U.S.C. § 1983. They alleged that they were subject to an unlawful seizure in violation of the Fourth Amendment to the Constitution of the United States, as made applicable to the states by the Fourteenth Amendment. They also alleged that their rights to procedural and substantive due process under the Fourteenth Amendment were violated. They originally filed a complaint in state court, but the case subsequently was removed to the United States District Court for the Northern District of Indiana. The district court granted the defendants’ motion for summary judgment. Mr. Belcher and Ms. Gleason timely appealed. For the reasons set forth in this opinion, we affirm in part and reverse in part the judgment of the district court. * * *

To resolve this issue, we must determine, as a threshold matter, what constitutes an adequate state law remedy for the purposes of procedural due process analysis. The Supreme Court has made clear that, in order to constitute an adequate remedy, the remedy provided by state law need not be the same as that available under § 1983. * * *

We now must analyze the ITCA [Indiana Tort Claims Act] in light of these principles to determine whether, in this case, the ITCA can be considered an adequate remedy. * * *

Because we conclude that Deputy Marshal Norton is entitled to the broad statutory immunity afforded by ITCA, we also must conclude that the statute does not provide an adequate state law remedy to the plaintiffs. Relegating the plaintiffs to this state statutory scheme would deprive them of any meaningful avenue to seek redress for the deprivation that they claim to have suffered. Therefore, we must conclude that the district court erred in granting summary judgment in favor of the defendants on the plaintiffs’ procedural due process claim. * * *

For the foregoing reasons, we affirm the district court’s dismissal of the Town of Orland. We reverse the district court’s dismissal of the Fourth Amendment and procedural and substantive due process claims against the defendants because, on this record, these claims present genuine issues of triable fact. Accordingly, the judgment of the district court is affirmed in part and reversed in part. The plaintiffs may recover their costs from Deputy Marshal Norton.

J. Manion, Judge, concurring in part and dissenting in part.: * * * Where I disagree with the court is on its conclusion that, when viewing the record in the light most favorable to Belcher and Gleason, a reasonable trier of fact could conclude that Norton violated Belcher’s and Gleason’s substantive due process rights. * * *

The whole process was unfortunately clumsy and mishandled, but by no means shocking to the conscience. Therefore, on the issue of substantive due process, I respectfully dissent.

Posted by Marcia Oddi on Wednesday, August 15, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In Richard Bosley, Jr. v. State of Indiana , a 7-page opinion, Judge Bailey writes:

Appellant-Defendant Richard Bosley, Jr. (“Bosley”) attempted to challenge the fifty-year sentence imposed following his plea of guilty to Child Molesting, as a Class A felony,1 by filing motions, some having a criminal cause number and some having a post-conviction cause number. In 2005, Bosley was denied permission to file a belated direct appeal (Cause No. 06C01-9608-CF-133) and in 2006 he was granted permission to file a belated direct appeal (Cause No. 06C01-0208-PC-149). He now purports to bring a belated direct appeal with reference to both lower court cause numbers as if presenting a consolidated appeal. We affirm the first ruling of the trial court denying Bosley permission to file a belated direct appeal.
In James Lile d/b/a Lile's Body Shop and Trailer Sales v. Edward and Kelly Keisel, a 7-page opinion, Judge Riley writes:
Appellant-Defendant, James Lile (Lile) d/b/a Lile’s Body Shop and Trailer Sales (Lile’s), appeals the trial court’s judgment ordering him to refund Appellees-Plaintiffs, Edward (Edward) and Kelly Kiesel (Kelly) (collectively, the Kiesels), $3,059.00 plus post-judgment interest. We affirm. Issue: Lile’s raises one issue on appeal, which we restate as: Whether the trial court properly allowed the Kiesels to revoke their acceptance of a pull-behind enclosed trailer purchased from Lile’s. * * * [W]e conclude that the Kiesels rightfully revoked acceptance of the trailer they purchased from Lile’s, and the trial court properly ordered Lile’s to fully refund the Kiesels the purchase price of the trailer.
In Rick Cook & Daniel Funk v. Adams County Plan Commission, an opinion dealing with CAFOs totalling 17 pages, each judge writes a separate opinion. Judge Riley writes for the majority:
Issue. Whether the trial court erred when it found that a one-year lease for real estate which contained provisions for an annual automatic renewal and a notice of cancellation, constituted a long term lease in accordance with the Adams County Zoning and Land Use Ordinance Regulation of Intensive Livestock Operations. * * *

The sole issue before us revolves around the Ordinance’s requirements for obtaining an intensive livestock permit. Pursuant to Ordinances 2-16-2(B)(3) and 2-16-3(C), Hilty’s proposed intensive livestock operation required ownership or a long term lease to at least one acre of land per ten hogs, or one hundred acres, for spreading the hogs’ manure. As Hilty did not own the necessary acreage upon which to spread the manure of his proposed one thousand hog facility, Ordinance 2-16-3(C)(3) mandates him to present the Plan Commission with a long term lease granting permission to apply waste on the leased ground. To that end, Hilty entered into a lease with Wilder. * * *

Here, the lease is remarkably limited in its terms, and provisions typically found in a lease are absent. First and foremost, the agreement is silent with regard to its lease price, or any method to calculate such. Furthermore, paragraph 3 of the lease stipulates that the sole purpose of the lease is to comply with the Ordinance by providing Hilty with sufficient application land. As stated by the Geyer court, the restriction on the use of the premises indicates that the parties more probably contemplated a short term lease because “[c]onstrued as a lease in perpetuity it could serve to tie up this property forever for one particular and narrow use, regardless of whether, after the passing of many years, the location might make the property much more useful and valuable for other purposes.” Id. at 201. However, unlike Geyer, the lease does contain a general proviso extending and binding the lease’s covenants to the “heirs, executors and administrators of both [Wilder] and [Hilty].” * * *

[M]indful of the Geyer court’s prominent reliance on the parties’ unequivocal intention to enter into a perpetual lease, as mainly indicated by the use of phrases as ‘forever,’ ‘for all time,’ and ‘in perpetuity,’ we cannot conclude that the lease agreed upon by Wilder and Hilty is a perpetual lease. The mere use of the word “automatic” does not in and of itself obligate Hilty to renew the lease perpetually, particularly where the language, considered together with the other lease provisions, shows that such was not the intent of the parties. * * *

Accordingly, based on our analysis, the lease agreement at bar must be read as providing for a base term of one year with an automatic renewal of one additional year unless notice of termination is given at least one hundred and eighty days before the anniversary date. Thus, essentially amounting to a two-year lease, we refuse to characterize this agreement as long term. Therefore, as the lease clearly does not satisfy the provisions of Ordinances 2-16-2(B)(3) and 2-16-3(C), we reverse the trial court’s Order. * * *

NAJAM, J., dissents with separate opinion. BARNES, J., concurs in result with separate opinion.

J. Najam's dissent begins: I respectfully dissent from the majority’s holding that the lease in question is illegal under the Adams County Zoning and Land Use Ordinance Regulation of Intensive Livestock Operations (“Ordinance”). The discussion of what constitutes a perpetual lease is an unnecessary digression. The only question before us is whether the lease here is a long-term lease under the Ordinance.

J. Barnes' concurrence begins: I concur in result but write separately because I believe the only issue is whether Hilty’s automatically renewable one-year lease is a long-term lease. I acknowledge that we must give some deference to the Plan Commission’s interpretation of “long-term.” See Hoosier Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct. App. 2006), trans. denied. I simply cannot agree that it is reasonable to call a one-year lease a long-term lease. Common sense tells me one year is not long-term. * * *

It seems to me that the public policy underlying the Ordinance is primarily to assure that a hog CAFO has a place to dispose of the manure that is produced by the swine. Adams County, in enacting the Ordinance, had a legitimate interest in attempting to assuage the olfactory senses of those who may be affected by a CAFO operation. The Ordinance calls for a “long-term” lease in order to ensure, I assume, a place to spread the manure for a defined, lengthy, and fixed period of time. The lease at issue here does not do that in my opinion.

NFP civil opinions today (1):

Termination of the Parent-Child Relationship of J.S. & J.M.; Christina Smith v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - termination, affirmed.

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, August 15, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Do the changes to the sex offender law mean longtime homeowners must move?

Updating a long list of earlier ILB entries on this issue, Sophia Voravong of the Lafayette Journal and Courier reports today that the trial court yesterday denied John Doe's request for a priliminary injuction:

The Indiana Court of Appeals could now get involved in the case of a Tippecanoe County sex offender challenging a state law that forced him to move.

The 56-year-old man -- identified in court documents only as John A. Doe -- filed a petition last month asking to stay in his Lafayette home as the court considers his lawsuit to no longer be deemed a threat to children.

But the request was denied in an order filed Tuesday by Judge Don Johnson of Tippecanoe Superior Court 1.

"The statute is designed to provide a safeguard for minors by requiring convicted sex offenders not to reside within 1,000 feet of designated areas where children are likely to reside," he wrote in the two-page order.

"...The public interest will be disserved should the preliminary injunction be issued."

The law in question prohibits sex offenders convicted of crimes against children from living within 1,000 feet of a school, public park or youth program center. * * *

John Doe's attorney, Chad Montgomery of the Earl McCoy Law Firm, said Tuesday that Johnson's decision means he'll file an "interlocutory appeal" with the Indiana Court of Appeals.

That court will have 30 days to determine whether Johnson erred in not granting the preliminary injunction request.

"If that doesn't work, we still have one more petition on file -- the permanent injunction -- challenging the constitutionality of this law," Montgomery said.

"We hope that through the permanent injunction, they don't apply the law at all."

Johnson also is still considering John Doe's petition to no longer be deemed an offender against children. This is being done using a new law that took effect July 1.

Posted by Marcia Oddi on Wednesday, August 15, 2007
Posted to Ind. Trial Ct. Decisions

Courts - Still more on: Kentucky fen-phen lawyers ordered to jail

Updating yesterday's ILB entry, Andrew Wolfson of the Louisville Courier Journal reports today in a story headed "Judge sets hearing for 3 diet-drug lawyers he jailed, orders complete financial statements", that begins:

The three lawyers who were jailed Friday pending their criminal trial on fraud charges in the fen-phen diet-drug case have been granted a hearing that could lead to their release.

Citing information that wasn't available last week, U.S. District Judge William O. Bertelsman yesterday granted the three a hearing next Tuesday in Covington, Ky. The judge didn't say what the new information is.

Posted by Marcia Oddi on Wednesday, August 15, 2007
Posted to Courts in general

Law - Expanding a firm's pro bono services

"Lessons Learned in Boosting Pro Bono: Gibson, Dunn & Crutcher figured out what works best in a recent expansion of volunteer hours and commitment" is the title to a story today by Daniel Cantu in Legal Times. Some quotes from the long article:

What happens when a firm with a long tradition of pro bono service decides to make that tradition even stronger? One result is that the firm can learn some important lessons about what works. * * *

Some of the lessons that we have learned over the past three years would work for any firm seeking to expand its pro bono program. It cannot be denied, for example, that management commitment is essential to a successful pro bono effort. Other factors that helped us may be more unique to the firm, however. Gibson Dunn allows associates tremendous autonomy in selecting their projects; what works in such a decentralized environment may not work elsewhere. With that caveat in mind, here are some unscientific observations about our experience, with a particular emphasis on our efforts in the Washington, D.C., office. * * *

A key factor in encouraging pro bono work is recognizing the effort. When evaluating associates, the firm gives full credit to associates for time charged to approved pro bono matters. In addition, the firm announced the annual Frank Wheat Memorial Award in 2006, named in honor of a former Gibson Dunn partner who founded the Los Angeles-based Alliance for Children's Rights, helped found the Earthjustice Legal Defense Fund and served as a board member for the Center for Law in the Public Interest. The award is given to a team and an individual who display leadership and initiative, obtain significant results for a client and inspire others through pro bono work. The award provides a cash donation to the organization of the winner's choice.

The standards for the award have been high. In 2006, Washington, D.C., associate Mark Vlasic, who is now a White House fellow in the 2006-07 class, won the individual award for his role in training judges from the Iraqi special tribunal on international law and criminal procedure.

Recognition for outstanding pro bono effort does not end at the national level. The Washington, D.C., office recognizes all individuals who contribute a significant amount of time to pro bono work -- more than 200 hours in a billable year -- with special service awards, and the office also acknowledges the contribution of all associates who contribute more than 60 hours of pro bono work in a year.

Posted by Marcia Oddi on Wednesday, August 15, 2007
Posted to General Law Related

Ind. Decisions - Two cases granted tranfer yesterday by the Supreme Court

The following transfers were announced this morning, dated 8/14/07:

King v. Burns - This is the case where the Indiana Court of Appeals refused to disqualify a candidate whose paperwork was filed at the wrong office before he won the election. See ILB entry and links here from Feb. 1, 2007.

Derek Scott Geiger v. State - Where the COA ruled "Concluding that Geiger can only be convicted of one count of impersonating a public servant pursuant to Indiana Code section 35-44-2-3 but finding no other error, we direct the trial court to vacate Geiger’s conviction for Count II and affirm the judgment of the trial court in all other respects."

Posted by Marcia Oddi on Wednesday, August 15, 2007
Posted to Indiana Transfer Lists

Tuesday, August 14, 2007

Ind. Courts - "Gag order issued in Trudeau case"

Robert Annis reports on the Indianapolis Star web site:

LEBANON -- A Boone County judge is giving attorneys 10 days to file arguments on the admissibility of possibly damaging evidence from a Web site belonging to the daughter of former Colts quarterback Jack Trudeau, who is facing felony charges related to a party at his home.

And those arguments better not show up in the media. The judge also issued a gag order in the case. * * *

On Tuesday, Boone County Sheriff Ken Campbell testified at a Superior Court 2 hearing in Lebanon that "three to four sources" contacted him regarding the online posting in the IndyStar.com TalkBack feature written by a poster identified as "Michael Vick."

The post stated that Trudeau's daughter Danielle was bragging on her Facebook page about all the alcohol that her parents had bought for the party.

Sheriff Campbell was out of town, so he requested Det. Thomas Beard go before judge Rebecca McClure to obtain a warrant for the Facebook pages.

Facebook is a social networking Web site popular with high school and college students. In an earlier interview, Meyer said he obtained some of the information from Facebook, but is waiting for the company to comply completely.

Trudeau's attorney Mike Andreoli argued the comments on the Talkback site amount to hearsay, with no reliability and no solid basis for a warrant.

Boone County prosecutor Todd Meyer countered that information on the site is public domain and Danielle Trudeau had no reasonable expectation of privacy when posting information in the public domain.

Andreoli requested time to submit a brief disputing Meyer's argument, which the judge granted. McClure gave both attorneys 10 days to file any additional briefs, after which she'll issue a decision.

Also Tuesday, McClure issued a gag order on all of the trial participants. She gave no reason and there was no request made by either side for such an order.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Indiana Courts

Environment - NPR's All Things Considered has story on BP refinery permit

"BP Refinery Expansion Plan Sparks Opposition" is the title to this story on NPR this evening, reported by David Schaper. Read it, or listen to it.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Environment

Ind. Gov't - Governor Daniels appoints Honorable Sue Shields as a member of the State Ethics Commission

From a Governor's press release this afternoon:

State Ethics Commission: The commission receives complaints, initiates investigations, holds public hearings, decides if ethics violations have occurred and recommends or imposes appropriate sanctions.

Membership: The governor appoints five commissioners to four-year terms. They may not be elected officials, state employees or lobbyists.

Governor’s appointment: Honorable Sue Shields (Noblesville), retired U.S. magistrate judge and former Indiana Court of Appeals judge.

Shields will fill the remainder of a term that expires September 1, 2009.

Here is the Commsion web page.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Indiana Government

Courts - Missouri State Senate Majority Leader asks attorney general to investigate the State's appellate judicial nominating panel

Two recent ILB entries, this one from May 1st headed "Is the "Missouri plan" in danger in Missouri?" and this one from August 1st, headed "Problems in birthplace of the Missouri plan?" point to a contentious situation in Missouri.

Yesterday the Kansas City Star ran this story by Steve Kraske and Tim Hoover that reports:

The rhetoric keeps getting hotter when it comes to Missouri’s nonpartisan court plan.

State Senate Majority Leader Charlie Shields charged Monday that the Appellate Judicial Commission met in secret to pick the three finalists for the vacant Supreme Court seat “without giving the public notice of their meetings by date, time and place, all of which are required by the Sunshine Law.”

The St. Joseph Republican asked Attorney General Jay Nixon to investigate all seven members of the commission, which picks finalists for top court seats around the state. One member is state Supreme Court Chief Justice Laura Denvir Stith. The commission asserted recently that it did not have to abide by the Sunshine Law since it was governed by court rules. Those rules say the commission’s meetings are closed to the public.

Gov. Matt Blunt has demanded that the commission provide more information about the candidates who applied for the opening on the Supreme Court. The legal community has been critical of the governor and other Republicans who have attacked the state’s judiciary and its nonpartisan judicial selection process.

Indiana's judicial nominating process is based on the Missouri plan. However, in Indiana the nomination process is open to the public. See these ILB entries about the recent deliberations of the Indiana Judicial Nominating Commission to fill the spot on the COA vacated by Judge Sullivan:

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Roger Johnson, as Indiana State Fire Marshall v. Patriotic Fireworks, Inc., et al. , a 10-page opinion, Judge Darden writes:

Indiana State Fire Marshal Roger Johnson (“the Fire Marshal”), in his official capacity, and the State of Indiana, (collectively “the State,”) bring this interlocutory appeal from the trial court’s denial of the Fire Marshal’s motion to dismiss the consolidated complaints of Patriotic Fireworks, Inc. (“Patriotic”) and other fireworks wholesalers, in which they challenge the Fire Marshal’s requirement that fireworks wholesalers with multiple sales locations obtain separate certificates of compliance for each location that they operate. We reverse and remand. * * *

Our Supreme Court has categorically held that the question of whether Indiana Code section 22-11-14-5 requires fireworks wholesalers to obtain separate certificates of compliance for each of their locations is a question of fact that can be resolved through the administrative process. Patriotic was required to pursue administrative review before being granted access to the trial court for judicial review. Because Patriotic did not so act, the trial court lacked subject matter jurisdiction to hear Patriotic’s claim. Accordingly, we reverse and remand with instructions that Patriotic’s complaint be dismissed.

NFP civil opinions today (1):

Adam G. Bauer v. Jill M. Birk-Bauer (NFP) - "Adam Bauer (“Husband”) appeals the trial court’s order dissolving his marriage to Jill Birk-Bauer (“Wife”). We affirm.

"Issues. 1. Whether the trial court abused its discretion in establishing the visitation order. 2. Whether the trial court abused its discretion in its distribution of the marital estate. 3. Whether the trial court abused its discretion in awarding temporary maintenance to Wife."

NFP criminal opinions today (4):

Mary Francis Edwards v. State of Indiana (NFP)

Richard Samuels v. State of Indiana (NFP)

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

Jonnie Napier v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana case decided today by the 7th Circuit; plus an interesting decision out of Illinois

In Williams v. Rohm and Haas Pension Plan (SD Ind., Judge Barker), an 8-page opinion, Judge Kanne writes:

Gary Williams filed suit, individually and on behalf of all others similarly situated, alleging that the Rohm and Haas Pension Plan (Plan) violated the Employee Retirement Income Security Act (ERISA) by failing to include a cost-of-living adjustment (COLA) in his lump sum distribution from the Plan. 29 U.S.C. § 1054(c)(3). The district court granted class certification and entered summary judgment for Williams. The district court concluded that the terms of the Plan violated ERISA because the COLA was an accrued benefit as ERISA defines that term. We agree, and therefore affirm the judgment of the district court.
Cavel Int'l. v. Madigan, out of the ND Ill., is a 2-1 opinion by Judge Posner, with Chief Judge Easterbrook dissenting. From Judge Posner opinion:
Cavel International, the principal appellant (we can ignore the others), produces horsemeat for human consumption. The plant at which it slaughters the horses is in Illinois. Americans do not eat horsemeat, but it is considered a delicacy in Europe and Cavel exports its entire output. Its suit challenges the constitutionality of a recent amendment to the Illinois Horse Meat Act, 225 ILCS 635/1.5, that makes it unlawful for any person in the state to slaughter a horse for human consumption or “to import into or export from this State, or to sell, buy, give away, hold, or accept any horse meat if that person knows or should know that the horse meat will be used for human consumption.” Cavel lost in the district court, has appealed, and, after unsuccessfully moving the district court for an injunction pending appeal, has asked us for such an injunction, emphasizing the disastrous consequences for its business if the decision of the district court stands.

An affidavit by the firm’s general manager states that it is a virtual certainty that if the injunction is denied the result will be the “permanent closure” of its plant. * * *

We do not suggest that Cavel has a winning case or even a good case (the Fifth Circuit in Empacadora de Carnes de Fresnello, S.A. v. Curry, 476 F.3d 326, 336-37 (5th Cir. 2007), recently upheld a similar Texas law against a challenge based on the commerce clause), but only that it has a good enough case on the merits for the balance of harms to entitle it to an injunction pending an expedited appeal that will enable the merits to be fully briefed and argued. It is important to note in this regard that the slidingscale approach that governs Cavel’s request for an injunction pending appeal does not require a “strong showing” that the applicant will win his appeal. The Supreme Court was precise in stating in Hilton v. Braunskill, supra, 481 U.S. at 776, that among “the factors regulating the issuance of a stay are . . . whether the stay applicant has made a strong showing that he is likely to succeed on the merits.” Certainly that is one of the factors to be considered, but it has to be balanced against the harms to the parties of granting or denying the injunction.

The injunction pending appeal is therefore granted.

[CJ Easterbrook's dissent begins:] My colleagues assume that, when deciding whether to issue an injunction pending appeal, both the trial and appellate courts should use the same sliding scale that a district judge uses when deciding the case as an initial matter. This is a mistake. Once a plaintiff has litigated and lost, a higher standard is required for an injunction pending appeal.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "DNR permit for Cedar Creek invalid"

Angela Mapes of the Fort Wayne Journal Gazette reports today:

Environmental activists hope a recent Allen County court decision will improve the way the Department of Natural Resources issues permits.

Allen Circuit Judge Thomas Felts ruled last week that the DNR did not consider the cumulative effects of a permit it issued in 2001 to DeKalb County Surveyor Mark Strong, allowing Strong to remove logjams in Cedar Creek.

Felts also ruled that the Natural Resources Commission was wrong not to invalidate the permit even after it acknowledged that the DNR had not considered the cumulative effects, the court decision said.

Felts’ ruling came more than a year after the Indiana Court of Appeals ruled that a petition for judicial review of the permit should not have been dismissed – and more than five years after the logjams were removed while the case was pending.

The logjams could cause the water to change course, deposit sediment and swell over its banks, Strong said at the time.

Environmentalists worried that the removal of the logjams also could cause problems, such as shifting the edges of the rivers and creeks, stirring up sediment, affecting water quality and disturbing wildlife.

Along with four people, the Izaak Walton League and the Cedar Creek Wildlife Project filed a petition for judicial review of the permit, claiming the DNR had not considered the cumulative effects of granting the logjam renewal permit, as required by state law.

It’s impossible to reverse the logjam removal, but environmentalists hope the ruling will affect the way the DNR considers permit applications, attorney David Van Gilder said Monday.

“The effects of the ruling are going to be more to the future than to this particular issue,” Van Gilder said.

Angela Mapes' July 20, 2006 report on the Court of Appeal decision, Izaak Walton League of America, Inc. & Cedar Creek Wildlife Project, Inc. v. DeKalb County Surveyor's Office & Indiana Department of Natural Resources (access the ILB summary here - third case) is summarized in this ILB entry.

The ILB would be pleased to post Allen Circuit Judge Thomas Felts' opinion from last week - let me know any of you can forward it.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Ind. Trial Ct. Decisions

Environment - "Groups gather to meet on BP pollution permit"

Gitte Laasby's consistently good reporting in the Gary Post-Tribune continues with this story today, combining Gov. Daniel's announcement yesterday of a study to be conducted by SPEA's James Barnes (see ILB entry here) with a follow-up to the P-T report Saturday the 11th titled "EPA willing to talk with BP, others" (see ILB entry here). Some quotes from today's story:

BP officials will meet with environmental groups, legislators and government officials Wednesday to discuss alternatives to increasing discharges of ammonia and suspended solids from the Whiting refinery into Lake Michigan.

The U.S. Environmental Protection Agency confirmed Monday that it will host the Chicago meeting, where various groups can present practical solutions to BP.

Meanwhile, Gov. Mitch Daniels announced Monday that he is seeking "another opinion" on whether Indiana's environmental laws are sufficient to protect Lake Michigan.

Daniels has asked the former dean of the Indiana University School of Public and Environmental Affairs, James Barnes, to assess what the impact of BP's discharges will be on water quality and drinking water, and how well Indiana officials implemented state and federal laws in the case of BP. * * *

Scheduled to attend the so-called Lake Michigan Summit at EPA Region 5 headquarters in Chicago on Wednesday are U.S. Reps. Pete Visclosky, D-Merrillville, Judy Biggert, R-Ill. and Rep. Fred Upton, R-Mich., U.S. Sen. Dick Durbin, D-Ill., Indiana Department of Environmental Management Commissioner Thomas Easterly, Save the Dunes Council Executive Director Tom Anderson, President for the Alliance for the Great Lakes Cameron Davis, and an unknown number of BP officials.

EPA spokeswoman Anne Rowan said EPA officials intend to suggest solutions, too.

"The U.S. Great Lakes National office will be presenting some suggestions as well," Rowan said.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Environment

Ind. Law - Under purchasing laws, is insurance a professional service or a product?

An interesting story today in the Louisville Courier Journal, reported by Ben Zion Hershberg, begins:

Jeffersonville Mayor Rob Waiz has refiled a lawsuit against the City Council and Clerk-Treasurer Peggy Wilder challenging their authority to choose a property- and casualty-insurance provider for the city.

The lawsuit, filed Friday in Clark County Circuit Court, was prompted by the council's approval last week of a $356,175 payment to the Burnham and Flower Insurance Group for a contract that had been authorized by Wilder, the lawsuit said.

It also said Waiz and the city's Board of Public Works had already accepted a contract for insurance coverage costing $40,000 less from a different company.

Waiz originally filed suit in December challenging a council ordinance that gave Wilder the purchasing authority. He later withdrew the suit after the council amended the ordinance to exclude professional-service contracts from the clerk-treasurer's authority.

At least part of the dispute in the suit is over the definition of "professional services."

"I've talked to three insurance agents," said Councilman John Perkins, chairman of the city's insurance committee. "They said it's a product" and not a professional service, he said.

Council President Keith Fetz, an insurance agent, agreed that property and casualty insurance "is a product" that falls under the clerk-treasurer's purchasing authority.

It's different from health insurance, in which a company might provide professional services such as an administrator who decides which claims are valid, Fetz said.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Indiana Law

Ind. Decisions - Trial court upholds primary vote where candidate died but remained on ballot

Austin Arceo of the Terre Haute Tribune-Star reports:

Former Terre Haute City Council candidate Dan “Buford” Lockard has lost another key battle he hoped would spawn him a spot in November’s general election.

A judge late last week ruled against Lockard in his challenge to the results of the May 8 Democratic primary race. Lockard disputed the election after his opponent, incumbent Charles “Chuck” Miles, remained on the ballot and won the 6th District primary race despite dying April 18, nearly three weeks before the election.

In a judicial order received by the Vigo County Circuit Court clerk’s office Monday, Judge P.J. Pierson ruled that state code does not allow for a deceased candidate’s name to be removed from the ballot prior to a primary.

He ruled that the party, which elected John Mullican in a May 31 caucus after Miles’ victory, followed proper protocol.

“The intent of the statutory scheme, by not allowing the removal of a candidate’s name in a primary election, for any reason, must have been to allow the party members the opportunity to select someone other than the remaining candidates” if a candidate is ineligible, states the judicial order signed by Pierson and dated Friday.

“To do otherwise would be to invite or cause voters to waste their vote or allow them to vote for a candidate who cannot be removed from or replaced on the ballot,” the order says.

Pierson, a Sullivan County Circuit Court judge, was a special judge in the case. * * *

The disputed ballot issues began after Vigo County Clerk Pat Mansard initially said during an interview with the Tribune-Star that Miles’ name would be removed from the primary ballot. She later changed her stance, citing conflicting reports from state election officials as the reason for the dispute.

The Vigo County Election Board then voted 2-1 to keep Miles’ name on the ballot and in the election.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Ind. Trial Ct. Decisions

Courts - More on: Kentucky fen-phen lawyers ordered to jail

Following up on this ILB report from August 11th, Andrew Wolfson of the Louisville Courier Journal writes today:

Three national experts on judicial ethics said yesterday that a federal judge acted improperly Friday when he ordered the lawyers in Kentucky's fen-phen case thrown in jail after saying "the whole legal profession is on trial."

Judge William O. Bertelsman said during a hearing in U.S. District Court in Covington that if the three attorneys, charged with bilking clients out of $46 million, were allowed to remain free while their criminal trial was continued, "it's going to look like we're all in some kind of conspiracy together, and that is not the case -- at least it's not with me," according to a copy of the hearing transcript obtained by The Courier-Journal.

At the request of suspended lawyers Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr., Bertelsman continued their criminal trial from October to January, but he ordered them confined until then. They had been free on their own recognizance and are now in the Boone County Jail.

Attorneys for Gallion and Cunningham filed a notice of appeal yesterday, and Mills' lawyer said he was working on one.

Hofstra University law professor Monroe Freedman, who reviewed a copy of the transcript, said: "I have no sympathy for these lawyers, but there is only one purpose for pretrial detention, and that is to make sure defendants will appear again, not to make an example of them for image purposes."

Professor Steven Lubet of Northwestern University said: "The individuals are on trial, not the entire profession. The individual defendants, whether they are innocent or not, are entitled to individual justice."

Professor Steven Gillers of New York University said Bertelsman should have just denied the request for a continuance, which he noted judges do all the time.

The professors also said it is extremely unusual to revoke bond entirely for defendants charged with economic crimes, especially when, as in this case, they already had surrendered their passports and have appeared for several hearings after being released.

But Lexington lawyer Angela Ford, who represents more than 400 of the attorneys' former clients in a settlement involving the diet drug fen-phen, said Bertelsman was "right on target" in demanding a quick trial. "The case is very simple, and the real evidence needed to prove the case is not voluminous."

Ford said Bertelsman took the only step he could to make sure the defendants don't send the missing money abroad.

An editorial today in the LCJ is headed "Right price for delay" begins:
The wheels of justice turn slowly, but in time they do turn. And sometimes they turn sharply in the right direction.

That happened Friday in a federal courtroom in Covington, Ky., where a trio of fen-phen attorneys, already suspended from practicing law for allegedly bilking their clients of millions of dollars, sought a postponement in their criminal trial, scheduled for October.

Posted by Marcia Oddi on Tuesday, August 14, 2007
Posted to Courts in general

Monday, August 13, 2007

Environment - Governor Daniels asks former dean of SPEA to conduct 6 weeks study of Indiana's IDEM's BP permit [Updated]

In a press release just issued by the Govenor's office, headed "Governor asks former Indiana University SPEA dean to lead review of IDEM permit process," the operative pargraph seems to be:

The governor has asked Barnes to:
  • Conduct a review of the current federal and state laws concerning Great Lakes water quality and permitting, including assessment of whether these laws are sufficiently protective of the Great Lakes system.
  • Assess IDEM’s actions to implement those laws in BP’s permit, both in the form of discharge limits and other requirements such as monitoring, biological testing and assessment.
  • Evaluate the impact of BP’s proposed discharge on Lake Michigan’s quality and uses as a source of drinking water, recreation, and aquatic life.
Daniels asked Barnes to complete the review within six weeks. Barnes said he will contact other experts, as needed, to help him conduct the review.
Re James Barnes:
Barnes is the former dean of the School of Public and Environmental Affairs at Indiana University where he currently teaches. He has testified and consulted on a number of environmental matters and currently serves as the chair of the EPA’s Environmental Finance Advisory Board. He helped form the EPA, was the first chief of staff to then Administrator Bill Ruckelshaus, and later served the agency in other capacities. He previously was the vice president of America’s Clean Water Foundation as well as a trustee of the National Institute for Global Environmental Change (NIGEC).
[Updated 8/14/07] Here is today's coverage of the announcement in the Indianapolis Star and the NWI Times. Both pretty much follow yesterday's press release.

According to the Gov's press secretary yesterday, "Mr. Barnes will begin this assignment next week. He is traveling and not available to speak to reporters."

Posted by Marcia Oddi on Monday, August 13, 2007
Posted to Environment

Ind. Courts - Indiana trial court cameras shuttered

Jeff Parrott reports today in a lengthy story the South Bend Tribune that begins:

An experimental pilot project to allow news media cameras in Indiana courtrooms has largely been a bust.

The main obstacle has been a requirement that both parties in a case agree to allow the cameras. Overwhelmingly, defense attorneys in both civil and criminal cases are declining, judges say.

Only South Dakota and Indiana still prohibit cameras in trial courts.

Beginning July 1, 2006, eight courts across Indiana, including St. Joseph Circuit Court, agreed to participate in a pilot project in which video and still cameras could capture images in the courtroom while a trial is being conducted. After an 18-month trial, the Indiana Broadcasters Association and Hoosier State Press Association, groups that have long pushed Indiana to end its courtroom camera ban, would commission a study to evaluate the effect cameras had on the legal process.

But as of last month, only six cases had been taped or photographed statewide. As a result, there probably won't be enough data to study, said Steve Key, HSPA legal counsel.

"It hasn't gone overly well," Key said.

Key said the Supreme Court insisted on obtaining the consent of both parties because they feared failing to do so could open the door to appeals from the losing side. But states that have allowed courtroom cameras for years have not seen more appeals, Key said.

About 99 percent of the cases St. Joseph Circuit Judge Michael Gotsch handles are civil, such as personal injury, medical malpractice, divorce and contract disputes. The only criminal cases he hears involve felony child support delinquency and welfare fraud.

"I've offered it to people for trials but there have been no takers," Gotsch said, noting he seeks both parties' consent at pretrial conferences in all cases. "I might get one side interested, but I have never gotten both sides to agree."

He's heard objections from plaintiffs and defendants, but more have come from defendants, he said.

Gotsch thinks everyone anticipated it would be difficult to gain consent from both parties in a case, but the Indiana Supreme Court wasn't comfortable doing more yet.

"They wanted to see what would work with the consent of the parties before trying something else," Gotsch said.

Because so few cases had been taped, the media groups in January asked the state Supreme Court to, for the remainder of the project, give judges sole discretion on whether to allow cameras -- as at least 20 states now do. But the court denied the request.

The pilot project barely cleared the high court in the first place, winning approval by a 3-2 margin. Justice Brent E. Dickson, joined by Justice Robert D. Rucker, wrote a scathing nine-page dissent in which he encouraged the eight judges participating in the project to reconsider.

"If television coverage can safely be done in our trial courtrooms," Dickson wrote, "without harm to the effective ascertainment of truth, the reliability and fairness of trials, the quest for justice, and the provision of correct information to the public, such safety should be first conclusively demonstrated by a thorough and reliable scientific study in jurisdictions in which trial court television is presently permitted, without putting Indiana citizens at risk."

But the HSPA and IBA lack the resources to scientifically study how courtroom cameras have worked elsewhere, the HSPA's Key told The Tribune. It seems much more practical and relevant to analyze their use in Indiana courts, he said.

Check here for three ILB entries from from May 9 and 10, 2006, announcing the project in Indiana.

Posted by Marcia Oddi on Monday, August 13, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Marilyn Burton v. Bob Hall (NFP), is an essentially one-page opinion by Judge Crone:

Marilyn Burton entered into a conditional real estate contract to sell certain real property to Bob Hall. Burton now appeals the order finding that Hall did not breach the contract and ordering Burton to provide him with a warranty deed for the real estate. We find the following issue dispositive: whether Burton’s claim is waived.

[The Court than sets out Burton's two sentence argument in its entirety, followed by.]

Burton’s argument is supported by neither cogent argument nor citation to authority. See Ind. Appellate Rule 46(A)(8) (“The argument must contain the contentions of the appellant on the issues presented supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.”). Her argument is therefore waived. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (observing that failure to present a cogent argument or citation to authority constitutes waiver of issue for appellate review). In fact, Burton’s attorney would be well advised to carefully review the entirety of Indiana Appellate Rule 46 on the arrangement and contents of briefs.

NFP criminal opinions today (1):

Anthony Renshaw v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 13, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Federal judge John Tinder is described as fair, intelligent, thoughtful, modest

The Indianapolis Star has a feature today by Rob Schneider on SD Ind. federal Judge John D. Tinder, who has been nominated by President Bush to the 7th Circuit. Some quotes from the lengthy story, which also includes a side-bar listing some notable rulings:

Tinder's fellow judges on the federal bench sing his praises.

U.S. District Judge Larry McKinney, the chief district judge, said Tinder has a sense of humor that "brings perspective."

"It has the tendency to calm down an otherwise volatile discussion among the judges and give us some thoughts we hadn't considered," McKinney said.

"He was someone you could count on to be thoughtful in every sense of the word," added U.S. District Judge David Hamilton.

Tinder, he said, is good at thinking through an issue very carefully and adding a perspective that others might not have thought about.

Jason Basile, who served as a court clerk from 1998 to 2000, recalled Tinder was easily approachable, the kind of guy who often ate lunch with his staff and helped the clerks without making them feel like he was teaching.

"He was just extremely intelligent," Basile said. He never doubted that Tinder was the best lawyer in the room at any time.

"John Tinder has done everything," said Greg Garrison, a lawyer and radio talk show host on WIBC-AM (1070). "The guy is just a freaking journeyman. He knows everything.

"When he goes and sits down in one of those big plush chairs and starts thinking about the cosmos, he brings decades, a lifetime, of real-world experience to the bench."

Michael Gradison, a former executive director of the Indiana Civil Liberties Union, said there were times when he disagreed with Tinder's rulings, but he never doubted he would receive a fair hearing in Tinder's courtroom.

"We recognized he was a good judge," Gradison said. "I think he is a fine man."

Praise for Tinder from the likes of Gradison and Garrison, who are at opposite ends of the political spectrum, should serve him well during the confirmation process, according to Jeffrey W. Grove, a law professor and assistant dean of graduate studies at the Indiana University School of Law-Indianapolis.

In recent years, some judicial nominees have come under fire for being too liberal or too conservative, or for pushing policy preferences, Grove said.

"Tinder is an example of precisely the kind of judge about whom you simply can't find the basis for saying that sort of thing," he said.

Grove said Tinder is a good choice. "I think John will fit in and make a strong contribution to the reputation the court (7th Circuit) now has," he said. "John Tinder is known as a very independent judge who takes the cases one by one and does his best to resolve them in light of the facts and the basis of law."

See earlier ILB entries on Judge Tinder's nomination from July 17th and July 23rd.

Posted by Marcia Oddi on Monday, August 13, 2007
Posted to Indiana Courts

Environment - "High stakes for our Great Lakes"

Tim Maloney, Policy Strategist for the Hoosier Environmental Council, has a featured letter to the editor about the BP permit in today's Indianapolis Star. This is how it concludes:

BP and IDEM argue that they followed the letter of Indiana law in seeking and approving, respectively, this increased pollution. This question may be decided in court. But there's no question they strayed far from the spirit and language of the Clean Water Act, which seeks to protect America's high quality waters such as the Great Lakes, which provide drinking water for millions of people, from degradation of their water quality.

Relying on loopholes in Indiana's rules that implement the Clean Water Act, IDEM approved the added pollution based on BP's cursory demonstration that the company did not have sufficient land to construct added pollution treatment facilities. BP also benefited from use of a mixing zone, or zone of dilution, that helps it justify the added pollution. "Dilution is the solution to pollution" is an old and discredited approach to pollution control, but nonetheless is alive and well in Indiana.

This is not a choice between jobs and the environment. It is a matter of our state officials holding a global company with substantial resources accountable for doing everything it can to protect our drinking water and our Great Lakes.

Citizens throughout Indiana should join our fellow Hoosiers in northern Indiana, and our neighbors in Illinois, in condemning the BP permit, and demanding that our government officials require BP to reduce its pollution to Lake Michigan instead of increasing it.

Posted by Marcia Oddi on Monday, August 13, 2007
Posted to Environment

Sunday, August 12, 2007

Not law but irritating - College text book author "explains" how to deal with high cost of texts

College text books have gotten more and more expensive, nearing $200 per book. Students often try to find used texts; many go without. The answer?

Michael Granof, a professor of accounting at the McCombs School of Business at the University of Texas and a textbook author, writes today in an op-ed piece in the NY Times that the cause of the problem is that students are able to buy used textbooks.

He does not suggest lower-priced text books. Rather he urges licensing textbooks, as is currently the case with software. The university would collect and pay the licensing fee to the publisher. This would be on top of the cost of the textbook. Incredible.

Posted by Marcia Oddi on Sunday, August 12, 2007
Posted to General News

Law - "Anti-Same-Sex Marriage Laws and Their Intended and Unintended Consequences"

Joanna Grossman, a professor of law at Hofstra University, has a Findlaw column this week on the Ohio Supreme Court Case interpreting that State's anti-same-sex-marriage amendment. Here is the lengthy article's concluding section:

At this point, almost every state in the Union has enacted either a constitutional amendment, statute, or both, designed to prohibit the celebration or recognition of same-sex marriage. But some - like Ohio's - are drafted broadly to ban not only marriage, but any legal recognition of same-sex relationships.

As I have discussed in several previous columns such as this one, these laws are historically unprecedented -- particularly to the extent they seek to reach beyond marriage to all forms of legal recognition.

Moreover, these laws are in many cases poorly drafted, and likely to produce unintended consequences - such as the trial court's initial acceptance of Michael Carswell's argument that the amendment prevented his prosecution.

Another example comes from an appellate court in Michigan. In the case of National Pride at Work v. Governor of Michigan, that court recently ordered all public universities, state agencies, and local governments to cease providing health insurance to the partners of gay and lesbian employees because of a 2004 constitutional amendment stating that only a union of one man and one woman is valid "as a marriage or . . . for any purpose." A decision to opt to give equal health insurance benefits is very different from the compulsion to do so, and as in the Ohio case, it's unlikely that here, Michigan voters affirmatively intended, by their amendment, to prohibit the government from offering health insurance benefits in a fair and non-discriminatory way.

The intended consequences of such laws - to systematically deny rights to gays and lesbians based solely on animus against them - are bad enough. Their unintended consequences only pour salt into the wound these amendments create. Voters and legislatures should be cautious lest they discover that they have allowed irrational fear and hostility to menace the integrity of their state codes and constitutions.

See this July 25th ILB entry on Ohio, Michigan, and Indiana for background.

Posted by Marcia Oddi on Sunday, August 12, 2007
Posted to General Law Related

Ind. Law - "Sorrell to teach journalism, English at city private school"

A story today by Megan Hubartt in the Fort Wayne Journal Gazette begins:

A local teacher who was barred from teaching journalism in East Allen County Schools after allowing an opinion piece on tolerance toward homosexuals to be printed in a school newspaper has been hired to teach journalism at a private school in Fort Wayne.

Keystone Schools hired Amy Sorrell, a former teacher at Woodlan Junior-Senior High School, to teach English and journalism at the private K-12 school starting this fall.

A check of Keystone's website led to a page which sets out the school's core values, including:
A Christian world view is the foundation on which learning will occur. Rigorous curricula will be presented. Parent support will be expected. All students will be nurtured to achieve their fullest potential. Students will be empowered by the discovery of their unique gifts and abilities. Judeo-Christian heritage, ethics, and morality will be taught in a Christ-centered environment. A full understanding of the freedoms and responsibilities of citizenship will be taught to every student to encourage each to love, honor, and respect our country.
Apparently this school numbers free speech and tolerance among the "freedoms and responsibilities of citizenship."

More from today's story:

Sorrell was cited for insubordination, neglect of duty and substantial inability to perform teaching duties. She reached a settlement with EACS in April, which transferred her to Heritage Junior-Senior High School, barred her from teaching journalism for three years and required her to issue a written apology. She was on paid leave for the remainder of the 2006-07 school year and was set to begin teaching at Heritage this fall.

Instead, Sorrell will again have the opportunity to teach journalism.

“I think with the experience I’ve had over the past few months, I’ve proved to myself the First Amendment is important enough to me that I’ll fight for it,” she said. “I think Keystone understands that is one quality I’m going to bring – to teach these kids their constitutional rights.”

When Keystone officials found out Sorrell was certified to teach journalism, they added it to the job, despite the controversy her actions created while teaching at EACS.

“We are seeking for Keystone students additional public interface and impact through writing, school newspapers, speech classes and community-involved student council. We currently have well-developed enrichment programs in drama, art, technology, jazz band, music. However, it should be of local national interest to also support substantial programming and emphasis along a Constitutional thread. Ms. Sorrell has experience in these areas, has been recognized for her achievements, and will bring unparalleled life experiences related to our freedoms and responsibilities as citizens,” said Don Willis, Keystone Schools founder.

The ILB has had a number of earlier entries on this student free speech issue.

Posted by Marcia Oddi on Sunday, August 12, 2007
Posted to General Law Related

Law - "A little-noted side effect of the property boom of the past decade has been the real-estate-enabled divorce"

That is a quote from a story today in the NY Times titled "Buy Low, Divorce High." More from the story:

Home values might have slid in some markets, but in the New York City region, where prices remain high, divorce professionals like therapists and lawyers, along with real estate brokers, say unhappily married couples are cashing in appreciated homes to underwrite a split.

“The equity that there is in real estate is one of the impetuses why there are so many divorces,” said Nancy Chemtob, a Manhattan divorce lawyer, adding that the net worth of her clients has doubled in the past three years mainly thanks to real estate. The price of the average Manhattan apartment was $1.3 million as of June, up 7 percent from a year ago, according to the real estate brokers Brown Harris Stevens.

A spouse who has not worked, like Ms. Kleier’s client, might decide that with a divorce settlement enriched by real estate, it is possible to maintain a comfortable standard of living. Or a breadwinning spouse might recognize that even after dividing community property, it will be possible to live well as a single person.

“No matter what the net worth of the client,” Ms. Chemtob said, “the $3 million apartment is now the $7 million apartment, and the $7 million apartment is the $14 million apartment. Half of a lot is a lot.” * * *

Economists are familiar with this phenomenon. Even though divorce rates are declining over all, as far back as 1977 the economist Gary Becker showed that couples experiencing any unexpected, drastic rise in net worth are at risk of divorce. (The same holds true for a drastic decline in net worth.)

Extrapolating from survey data, Dr. Becker concluded in The Journal of Political Economy that “a greater deviation between actual and expected earnings increases the probability” of divorce.

Although couples who see their incomes rise steadily generally stay together, those who make more money than they ever expected are vulnerable to divorce. They realize that they are less financially dependent on each other and that they might have chosen different spouses if they had more choices at the time, said Dr. Becker, who teaches at the University of Chicago.

Dr. Becker, who won the Nobel Prize in 1992, also explored in his divorce study the economic argument for what many people today call trading up, or finding a trophy spouse.

Noting that 75 percent of men and more than 70 percent of women remarry within 15 years of a divorce, he found that divorced men with higher earnings have the greatest likelihood of remarrying. This implied, in his view, that men who have come into wealth have an incentive to divorce because they believe they could better their situation.

“They feel, given their status now, they can find other people of a type that appeals to them more than when they got married,” he said in a telephone interview.

Kenneth Mueller, an East Village psychotherapist, says he has about a half-dozen clients who are real estate executives. Some, he said, have used windfall wealth from property to strengthen their marriages — like paying for counseling or adopting children. But others are emboldened to divorce and remarry. He said some men conclude that they can find a new spouse because their first wives were “not what I really wanted.”

Posted by Marcia Oddi on Sunday, August 12, 2007
Posted to General Law Related

Legislative Benefits - "In Indiana, the gravy train is rolling on"

Here is an item from the Sunday Indianapolis Star's "Behind Closed Doors" column. The headline reads "The sky's the limit":

There soon may be no such thing as a free lunch in Congress. But in Indiana, the gravy train is rolling on.

Under new ethics rules passed by Congress -- but not yet signed into law by President Bush -- senators and U.S. representatives will no longer be able to accept gifts, meals and travel paid for by lobbyists. And legislators-turned-lobbyists would no longer have the floor, gym and parking privileges that let them mingle more easily on Capitol Hill with their former colleagues than other lobbyists could.

But in Indiana, to paraphrase a saying, "we don't need no stinking rules."

Gifts? Legislators can take anything, even a million dollars and a mansion, so long as they report it. And if the value is less than $100, it doesn't need to be reported at all.

Meals? They can eat as much as they want, as often as they want -- and it needs to be reported only if it clears the threshold of $100 to a lawmaker in one day or $500 to a lawmaker during a calendar year.

And if the lobbyist invites every member of the Indiana General Assembly to a function, that's not considered lobbying, no matter how lavish the affair.

All in all, members of Congress -- formerly the big shots in the political food chain -- might decide they'd be better off running for the state legislature, at least in Indiana.

Posted by Marcia Oddi on Sunday, August 12, 2007
Posted to Legislative Benefits

Law - "Students pay; Sallie Mae pays off big"

The ILB has had a number of entries on Sallie Mae, the nationwide student loan scandals, and the crisis in student debt. Today the Fort Wayne Journal Gazette has an editorial about the impending $25 billion buyout of Sallie Mae, and how "officers and directors of the student loan company stand to profit handsomely from the sale of their company stock." Some quotes from the conclusion of the piece:

The Student Loan Marketing Association (commonly known as Sallie Mae) was established by Congress in 1972 out of concerns that the banking industry would not have the resources to meet student-loan demands. Sallie Mae used U.S. Treasury funds to buy government-backed loans from banks, in turn providing banks with the money to make more loans.

With the federal government’s backing, the quasi-governmental agency prospered. Its assets multiplied through the 1990s, when its top officials began earning seven-figure salaries and prompting complaints that they were prospering at the expense of students and taxpayers. In 1996, Congress voted to privatize Sallie Mae, and it became SLM Corp. It now holds almost $100 billion in student debt – 40 percent of student loan assets. At Indiana University, Sallie Mae handles 98 percent of the loan business.

Not only was it a powerhouse lender thanks to its government boost, but SLM was a first-rate political operator. It made $1.4 million in contributions to congressional candidates in the 2004 election cycle. Indiana Sens. Richard Lugar and Evan Bayh both have traveled on Sallie Mae planes.

“Sallie Mae was built to serve a public purpose, of providing student loans,” Robert Shireman, executive director of the Project on Student Debt told InsideHigherEd.com. “This level of profiteering off the corporation suggests that ultimately the deal that was struck may well have under-compensated taxpayers.”

Among the Sallie Mae directors on the profitable end of the deal is Earl A. Goode, Gov. Mitch Daniels’ chief of staff. Last year, the Indianapolis Business Journal reported the Department of Administration had awarded a $15 million no-bid contract to a Sallie Mae subsidiary. As DOA commissioner at the time, Goode excused himself from negotiations in the deal and reportedly asked the state’s ethics commission to review the potential conflict, but the commission’s ruling was never publicized.

In light of Cuomo’s probe, Congress is considering cuts in subsidies to student lenders – a measure that will come after the Sallie Mae sale and its handsome payoff. That’s too late for student borrowers, who will continue to pay for the excess Congress permitted.

See also this July 30th ILB entry, including this quote from NY Times columnist Joe Nocera:
“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.

Posted by Marcia Oddi on Sunday, August 12, 2007
Posted to General Law Related

Ind. Decisions - More on: Trial court ruling could void IMPD arrests

The NY Times has now picked up on the Indianapolis story (see earlier ILB entry from Aug. 8th here). Some quotes:

The state said it planned to appeal the ruling, which Attorney General Steve Carter said raised “questions about the propriety of hundreds, if not thousands, of arrests that have been made this year by the Indianapolis Metropolitan Police Department.”

Even if the ruling is upheld, the jail doors would not necessarily be opened wide, said James Voyles, one of the defense lawyers who made the motion leading to the court decision. Some arrests could still be valid, and motions for dismissal would have to be filed and argued in each case, Mr. Voyles said.

Kobi Wright, the head city-county attorney, said the ruling baffled him. Two other judges have denied similar defense motions, Mr. Wright said.

“I don’t think it’s credible to state that the city should reswear officers who were already sworn in,” Mr. Wright said.

Mr. Wright and Mr. Carter both said there was no statutory requirement that police officers take an oath, and Mr. Wright said the state code cited by the judge in his ruling did not apply to police officers covered under a bargaining contract, like those in Indianapolis.

However, a professor who is an expert in criminal procedure said that the case was not so clear and that it raised a “legitimate question.”

The professor, Henry C. Karlson of the Indiana University School of Law in Indianapolis, said the question was not whether state law required an oath — he said it did — but whether the merged department was a new agency or a continuation of one of its predecessors.

If it is a new department, everyone should be sworn in, Mr. Karlson said. If it is a continuation, he said, then officers of the agency that was being absorbed would have to be sworn in.

A police spokesman, Capt. Phil Burton, said the department had no plans to require officers to take another oath.

Posted by Marcia Oddi on Sunday, August 12, 2007
Posted to Indiana Decisions

Saturday, August 11, 2007

Environment - EPA willing to talk, BP stands by permit

Dueling stories today in the two major NW Indiana papers.

"EPA willing to talk with BP, others"
is the headline to Gitte Laasby's story:

After weeks of bickering about BP's newly approved wastewater permit, stakeholders may be ready to come together to find a solution.

Sources said the U.S. Environmental Protection Agency's regional administrator, Mary Gade, is trying to arrange a meeting Wednesday to find alternative solutions to increasing BP Whiting's discharges of ammonia and suspended solids into Lake Michigan.

Gade reportedly invited officials from the Indiana Department of Environmental Management, BP and environmental groups, including Save the Dunes and Alliance for the Great Lakes, to EPA headquarters in Chicago.

"A lot of us are starting to think about how we can go beyond turning it into any more of a contentious issue than it is," said Cameron Davis, president of Alliance for the Great Lakes.

Environmental groups said they're ready to meet if BP is willing to take a serious look at alternatives.

"I don't really know if that's going to happen or not. We've said for us to meet, we need BP to be open-minded to being in compliance. I haven't heard back," Davis said. * * *

BP spokesman Scott Dean could not confirm the invitation.

Keith Beniman writes in the NWI Times, in a story headlined "BP stands by permit":
BP is seeking no changes in its controversial waste water permit to appease critics, officials said Friday.

"We have a water permit we think is a good water permit, and we need it to run the refinery," said Stan Sorrels, BP health, safety, security, and environmental manager.

The company also remains committed to its $3 billion expansion project, which will mean a sustainable future for the Whiting refinery and the thousands of jobs it supports, said Ted Krauss, BP's project director for the Canadian Crude project.

"With all the turmoil around the permit, the company is still fully committed to the project," Krauss said.

BPs new waste water permit, which will govern the release of pollutants at the expanded refinery, allows it to increase the amount of ammonia it dumps in the lake by 54 percent and the amount of suspended solids by 35 percent.

It has been fiercely opposed by politicians in Illinois and some environmental groups.

Krauss, Sorrels, and BP public affairs director Tom Keilman came to The Times in Munster on Friday to reiterate the company is taking all available precautions with the region's largest natural resource. [ILB - The NWI Times has editorialized in favor of the BP permit.] * * *

The three officials do not expect changes in the permit to be part of the conversation when company officials meet with congressional representatives in September.

In a related matter, the Gary P-T has an editorial headed "Indiana must improve wastewater process:"
Indiana wants to position itself as a state that courts industry. By eliminating its inventory tax, the state is winning favor with businesses, at the expense of residential taxpayers. At the same time, however, the state should have administrative controls in place to protect its citizens by regulating pollution from those huge industries.

An Indiana Department of Environmental Management official disclosed recently that U.S. Steel's wastewater permit had expired in 1999. It brought a gasp from a state lawmaker from Gary. "How does that happen?" he thundered.

The IDEM official said U.S. Steel's permit was among 10 of the state's worst polluters languishing in a backlog of ridiculous proportions. To be fair, IDEM has cut into its backlog. In 2005, there were 276 permits awaiting renewal consideration. The more complex permits were left for last. Steel mills have changed ownership during the wait for permits.

However, Indiana must do better. Too often, environmental interests are cast aside by a thirst for profits and votes.

A wastewater discharge permit for Mittal Steel, listed under its former owner International Steel Group, expired 16 years ago. The permit recently granted to BP Products North America had lapsed in 1995. To save face, IDEM has been extending the permits, which allow industries to discharge based on older requirements.

Since many of the permits were awarded, tougher standards concerning mercury discharges and other toxins have been adopted. Environmentalists contend Lake Michigan fish would be healthier if industries followed more current discharge requirements.

The state has an inherent responsibility to its citizens to safeguard sacred resources such as Lake Michigan. Stemming the permit backlog should be a state priority.

Posted by Marcia Oddi on Saturday, August 11, 2007
Posted to Environment

Courts - "Closing courts, erasing history"

The Fort Wayne Journal Gazette has a must-read editorial today opposing the ABA proposal to seal many criminal records. It begins:

Five years before he killed four people in a Bayer Avenue home, Joseph Corcoran was acquitted of slaying his parents. If a committee of the American Bar Association has its way, records of Corcoran’s arrest and trial in his parents’ killing would be sealed off from public view.

If the full bar association approves the committee’s proposal, it would start lobbying states and Congress to pass laws that would wipe out from public view records of the arrest and trial of O.J. Simpson, who was acquitted, Claus von Bulow, whose conviction was overturned, Enron CEO Kenneth Lay, whose conviction was set aside after his death – and anyone else who was charged but not ultimately convicted of a crime.

Even the records of people who are convicted should be sealed from public view after a certain amount of time has passed and they are not arrested on new charges, the committee proposes.

Lawyers have a valid concern that people arrested but never convicted of a crime and people who have followed laws for years after a conviction are too often wrongly denied jobs and housing. But the bar association proposes an un-American, Orwellian solution: Pretend the arrests and convictions never happened, and limit access to those records only to an inner circle of law enforcement insiders.

The proposal would inform people whose records have been sealed that, when asked, they can deny ever being arrested or convicted – unless a law enforcement official asks the question.

This proposal to close off public court and police records comes at a time when too many courts are already sealing too many civil records, often improperly.

Investigations by the Las Vegas Review-Journal, the Seattle Times and Miami Herald found that a number of cases just happened to involve lawyers, judicial colleagues and relatives, friends of judges, politicians and police officers.

The sealed records would still be available to court personnel, and previously sealed convictions could be used in weighing sentences. But they would be hidden from most of the public, making it difficult to impossible to monitor the court system for fairness, corruption and trends, not to mention wiping out historical records. And sealing records would raise a host of questions when the crimes involve pedophiles and other sex offenders.

Posted by Marcia Oddi on Saturday, August 11, 2007
Posted to Courts in general

Courts - Kentucky fen-phen lawyers ordered to jail

Andrew Wolfson reports today in the Louisville Courier Journal:

The three lawyers charged with bilking clients out of $46 million in Kentucky's fen-phen case went to court yesterday morning to argue for a delay in their trial.

By afternoon, they were in jail.

Finding too great a risk that they would move the missing money off-shore -- or themselves flee abroad -- U.S. District Judge William O. Bertelsman ordered attorneys Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. removed from the courtroom and confined in the Boone County Jail.

They apparently will have to remain there until their trial, which Bertelsman postponed from October until Jan. 7.

Bertelsman said in an order that "no conditions of release will reasonably assure the appearance of the defendants," whom he noted could face 20 years in prison under federal sentencing guidelines.

"They have a tremendous motive to stonewall," Bertelsman said in the order, which set no new conditions for release.

He also observed that the lawyers have provided no accounting for the money and that "there is a tremendous public interest in concluding this case in an expeditious manner."

The lawyers had been free on their own recognizance since they were indicted in June. * * *

Angela Ford, who represents [Sonya] Pickett and more than 400 others of the lawyers' 440 ex-clients, said, "I think Judge Bertelsman felt the outrage that the entire legal profession has felt about this case. And I am thrilled to see it happen."

During yesterday's hearing, which was expected to be a routine status conference, Bertelsman heard counsel for the lawyers request that their trial be delayed, and then warned that if he did so, he would revoke their bond. And after taking a 15-minute recess and hearing from the prosecution and the defense, Bertelsman did just that: He agreed to postpone the trial to Jan. 7, and then ordered the three men into custody. The government also had favored a continuance.

For numerous earlier ILB entries on the Kenctucky fen-phen scandal, type "fen-phen" in the search box in the right column.

Posted by Marcia Oddi on Saturday, August 11, 2007
Posted to Courts in general

Friday, August 10, 2007

Courts - Albany Law Review article looks at the success of NY's intermediate appeals justices on appeal

The current issue of the Albany Law Review, referenced in the preceding ILB entry, has another article that looks very interesting. It is titled "Appellate Division on Appeal: The Justices' Rates of Agreement, Rejection, and Vindication by the Court of Appeals." Access it here. From the beginning of the 19-page article, here is an explanation of the way the study was conducted:

New York State’s intermediate appeals justices vary widely in their rates of success on review by the Court of Appeals, the State’s highest court. At one end, there are those justices whose votes and opinions, whether majority or dissent, are consistently ratified by the high court. At the other end, there are those whose positions are regularly rejected. Analogously, when some of the justices dissent against the majority decision of their court, they are frequently vindicated by a reversal at the Court of Appeals. Other justices only see their minority positions rejected a second time upon appeal at the state’s highest court. These and other related observations are among the findings of a study examining Appellate Division decisions reviewed by the Court of Appeals since the year 2000.

The study examined every non-unanimous decision of each of the four departments of the New York State Appellate Division rendered between January 1, 2000 and December 31, 2005, which was in turn reviewed on appeal by the Court of Appeals by June 2006, the point at which the data collection for this study was completed. There were a total of 254 such Appellate Division decisions in which at least one justice wrote an opinion or cast a vote dissenting from the result reached by the majority.

This report begins with a preliminary overview of the study, providing some general observations about the number of decisions in the study from each Appellate Division department as well as some highlights of the findings about individual justices. This report then outlines the findings concerning those Appellate Division justices with high success rates when their opinions and votes have been subject to Court of Appeals review, and those justices with contrastingly low rates. Next, this report surveys those justices whose Appellate Division dissents have often become Court of Appeals majority rulings and those justices whose dissents rarely or never have. A brief conclusion offers some final thoughts and suggests some possible patterns corresponding to the high and low success rates of the justices. Finally, detailed findings of the study are illustrated in graphs and tables within this report to facilitate readily visual comparisons and contrasts.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to Courts in general

Ind. Courts - Exploration of "The Indiana Supreme Court's Voting Patterns in Criminal Decisions"

The focus of the current issue of the Albany Law Review is "State Constitutional Commentary." The Table of Contents shows a number of interesting articles (not all of which are yet accessible). The issue concludes with two student notes, the first, which is not yet available, is titled "Pennsylvania Supreme Court: The More Things Change, the More They Stay the Same." The second, which is available, is titled "The Indiana Supreme Court's Voting Patterns in Criminal Decisions," authored by Jason A. Cherna.

Access this 25-page article here. Some quotes:

The Indiana Supreme Court is starkly pro-prosecution. The court ruled in favor of the prosecution most frequently in cases involving the death penalty. On the other hand, the court was most lenient on the defendant when reviewing issues of search and seizure. Of the sixty-three total non-unanimous cases for the five years, 76% were decided in favor of the prosecution, stated otherwise, only 24% favored the defendant. In decisions involving the death penalty the court was in favor of the prosecution 88%, and in favor of the defendant 12%. Additionally, in decisions involving search and seizure the court was in favor of the prosecution 56%, and in favor of the defendant 44%. Further, in decisions involving fair trial the court was in favor of the prosecution 75%, and in favor of the defendant 25%.

Clearly, then, the criminal defendant is at a distinct disadvantage in most criminal cases. The Indiana Supreme Court’s law and order stance, in favor of the prosecution, has made it difficult for the criminal defendant to succeed on appeal, except perhaps in cases involving search and seizure. * * *

The justices on the Indiana Supreme Court can be divided into three groups. Shepard and Dickson fell on the far right of the court’s ideological spectrum, which was apparent through their voting patterns in favor of the prosecution. Sullivan and Boehm were the swing votes on the court and fell somewhere between the middle and right of the court’s ideological spectrum, ultimately favoring the prosecution. Rucker was the lone advocate for the defendant. Rucker’s ideology placed him on the left side of the spectrum favoring the defendant. He voted in favor of the defendant 58% of the time, and was by far the most pro-defendant justice on the court.

Thanks to IU-Indy law prof Joel Schumm for spotting this article.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to Indiana Courts

Ind. Decisions - Another transfer grant

Here is another transfer grant from Tuesday that apparently did not make it to the list:

Darius V. Bowles v. State of Indiana (NFP) (May 31, 2007) where the 17-page COA opinion by Judge Barnes concluded:

We conclude that police lacked reasonable suspicion to search Bowles’ trash as is required under Litchfield and, therefore, issuance of a search warrant based on what was found in the trash was improper. However, the good faith exception to the exclusionary rule fully applies in this case because police clearly relied on the warrant in objective good faith under the legal standards in existence at the time. The trial court did not err in admitting the evidence recovered under the search warrant. We affirm.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to Indiana Transfer Lists

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

For publication opinions today (2):

In Eric Smith v. Indiana Department of Correction, et al. , a 20-page opinion, Judge Crone writes:

Eric D. Smith filed a complaint against the Indiana Department of Correction and numerous individual prison employees (collectively, “the DOC”). Smith, pro se, appeals the grant of DOC’s motion for judgment on the pleadings, the denial of his request for appointment of counsel, the denial of his request to amend his complaint, and the denial of his motion to compel discovery. We affirm. * * *

Smith contends that “pro se litigants should be afforded some latitude when determining whether a suit has been properly filed.” However, it is well established that pro se litigants are held to the same standard as are licensed lawyers. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005). We conclude that under the operative facts and allegations made in his complaint, he cannot in any way succeed on these claims. Therefore, the trial court did not err in granting the DOC’s motion for judgment on the pleadings. * * *

Having already found, under the operative facts and allegations made in his complaint, that Smith cannot in any way succeed on his claims of state constitutional violations and negligence, we now conclude that he is unlikely to prevail on his claims. Accordingly, the trial court did not abuse its discretion in denying his request for appointment of counsel. * * *

We conclude that the conduct of the DOC does not constitute a violation of the prohibition against cruel and unusual punishment, and therefore an amendment adding an Eighth Amendment claim to Smith’s complaint would have been futile. Accordingly, the trial court did not abuse its discretion in denying Smith’s motion to amend his complaint. * * *

Smith contends that the trial court erred in denying his request to produce the videotape of the cell extraction. He argues that the tape would have clearly proven his claims and allegations. The DOC argues that any information regarding cell extractions is classified as confidential because “it may contain information such as any possible blind spots the cameras may have or the shift changes, and the number of correctional officers assigned to a specific location.” In support of its argument, the DOC cites Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003), for the proposition that an inmate is entitled to disclosure of material, exculpatory evidence in prison disciplinary hearings unless such disclosure would unduly threaten institutional concerns. * * * Here, we have analyzed Smith’s claims based on the premise that all the allegations set forth in his complaint and all favorable intendments arising therefrom are true, and we have found that he would not prevail. Therefore, even if the videotape confirmed all his allegations, it would not change the outcome. Accordingly, any error in denying Smith’s motion to compel discovery was harmless. We observe, however, that in these situations, the trial court would be in a better position to rule on a motion to compel discovery, and we would be in a better position to review its decision, if the DOC advanced specific security concerns related to the particular tape at issue. Depending upon the circumstances, it may be necessary for the trial court to conduct an in camera review.

In Kunta Gray v. State of Indiana , a 14-page opinion, Judge Friedlander writes:
4. Gray contends the evidence was not sufficient to support Gray’s convictions. Specifically, Gray contends his convictions are primarily based upon Avant’s testimony, which Gray claims was incredibly dubious. * * *

Gray seeks to invoke the incredible dubiosity rule. “Within the narrow limits of the ‘incredible dubiosity’ rule, a court may impinge upon a jury’s function to judge the credibility of a witness.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). For testimony to be disregarded based on a finding of “incredible dubiosity,” it must be inherently contradictory, wholly equivocal, or the result of coercion. Love v. State, 761 N.E.2d 806. Moreover, there must also be a complete lack of circumstantial evidence of the defendant’s guilt. Id. This rule is rarely applicable. Id. * * * We find that the incredible dubiosity rule does not apply here.

NFP civil opinions today (4):

Brandon M. Smith v. Review Board of The Indiana Department of Workforce Development and Forge Staffing, Inc. (NFP) - "Brandon Smith appeals the dismissal of his administrative appeal of the denial of his request for unemployment benefits. * * * Here, however, the Review Board promptly objected to the untimeliness of Smith’s attempted appeal and his lack of compliance with the statutory prerequisite. Under these circumstances, the Review Board properly dismissed Smith’s untimely appeal."

Jill A. Glusak n/k/a Jill A. Wolber v. Joseph Glusak (NFP) - custody, affirmed.

Luiz Alves, Individually and on behalf of Masters Entertainment Group, LLC v. Paulo Teixeria (NFP) - "Luiz Alves appeals the trial court’s confirmation of an arbitration award entered following Alves’s business dispute with Paulo Teixeria. The sole restated issue for our review is: did the trial court err in confirming the arbitration award and refusing to vacate it. We affirm."

Bruce A. Gazvoda v. Sabrina Wright (NFP) - "Bruce Gazvoda appeals the trial court’s judgment ordering him to pay $250,000 to Sabrina Wright, with whom he cohabitated for sixteen years and had a child. The sole issue for our review is whether there is sufficient evidence to support the trial court’s order. We affirm. * * *

"Here, Bruce and Sabrina lived together for sixteen years. During that time, Sabrina helped Bruce build up his electrical business and managed his rental properties. In addition, Sabrina took care of the parties’ daughter and home, allowing Bruce the time to develop his businesses. As in Turner, Bruce and Sabrina referred to the property acquired during their cohabitation as “ours.”

"The value of the assets acquired during the parties’ cohabitation was over one million dollars. Following a hearing, the trial court ordered Bruce to pay Sabrina $250,000.00 under a theory of unjust enrichment. We agree with the trial court that Bruce substantially benefited from the services that Sabrina provided and that Bruce would be unjustly enriched if Sabrina were awarded no part of the assets that Bruce acquired in his name during the cohabitation. As we did in Turner, we find sufficient evidence to support the trial court’s judgment."

NFP criminal opinions today (4):

Marie Davis v. State of Indiana (NFP)

Jesse Brandon v. State of Indiana (NFP)

John R. Park v. State of Indiana (NFP)

Shawn Lee Clark v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 10, 2007

Here is the Indiana Supreme Court's transfer list for the week ending August 10, 2007.

There were three transfers granted this week, summarized in this ILB entry Tuesday.

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, August 10, 2007
Posted to Indiana Transfer Lists

Environment - "Mega cow farm in Indiana faces legal issues"

A brief story from the Coldwater, Michigan Daily Reporter, dated August 8th:

ORLAND, Ind. — Indiana Environmental Management (IDEM) issued a permit in May to the Toll-Tail Dairy, LLC. in Lagrange County, Ind. for a Confined Animal Feeding Operation (CAFO), also known as a Mega Cow Farm.

However, Toll-Tail Dairy’s construction plans for a barn to house 3,600 cows on County Road 1100 E., east of Orland, Ind., is on hold. Hoosiers for Sustainable Agriculture filed two suits in Lagrange County Circuit Court and an appeal for the permit with IDEM’s adjudication committee [ILB - perhaps this should read "the Office of Environmental Adjudication"]. Hoosiers for Sustainable Agriculture objects to the Toll-Tail operation for environmental reasons. They say it could pollute the water aquifer and the air.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to Environment

Law - Nationally known conservative lawyer hired by Rhode Id. Governor to file a legal brief opposing same-sex marriage

Indiana Daily Insight this morning picked up on an interesting controversy going on in Rhode Island. The Providence Journal reports today:

PROVIDENCE — State Democratic Party Chairman William Lynch is questioning Governor Carcieri’s decision to pay a nationally known conservative lawyer to file a legal brief opposing same-sex marriage.

The governor’s office signed a $15,000 contract with Indiana lawyer James Bopp Jr. to file a friend-of-the-court brief last week with the state Supreme Court, which had invited public comments while deciding whether to grant a divorce to a lesbian couple married in Massachusetts.

The case has drawn national attention as it is believed to be the first time any of the same-sex couples married in the Bay State have sought a divorce in another state.

Bopp, a socially conservative Republican with a practice focused on issues such as gay marriage and abortion, was one of at least two nationally known lawyers to contact the governor’s office about writing the brief, according to, Michael Maynard, a governor’s spokesman.

After Bopp was chosen for the no-bid contract, he spent about two weeks writing the 27-page legal document. He will be paid with as much as $15,000 in taxpayer dollars, though he has yet to submit a bill, Maynard said.

The details of the arrangement were released yesterday shortly after Lynch filed an open records request with the governor’s office regarding Bopp’s work. Lynch asserted that the brief was filed to promote Carcieri’s personal views and should have been paid for with personal money. * * *

The governor “wanted to get someone who had expertise on this issue who could file a brief that would get to the core of the issue. That was Bopp,” Maynard said, adding that the governor’s office checked some area firms and determined that Bopp was the most qualified and that his $15,000 rate was the best price available.

A document signed by the governor’s executive counsel, Andrew Hodgkin, July 17 provides this justification for choosing Bopp: “Highly specialized area, no state employees currently practice in this area.”

Bopp, 59, is a Republican National Committeeman [from Indiana, appointed by Gov. Daniels], the general counsel for the National Right to Life Committee, and a former co-chairman for The Federalist Society, a national conservative organization. He has argued six cases before the U.S. Supreme Court, winning five of them. His loss came in North Carolina Right to Life’s unsuccessful argument that nonprofit organizations should be exempt from a ban on corporate contributions to federal candidates.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to General Law Related

Ind. Decisions - More coverage of the appeal of Indiana voter ID case to U.S. Supreme Court

The Fort Wayne Journal Gazette's Washington reporter, Sylvia A. Smith, who reported June 30th on the cert petitions filed in Crawford v. Marion County Election Board, reports today on the State of Indiana's response. Some quotes from today's story:

WASHINGTON – The 2008 presidential primaries would be thrown into flux if the Supreme Court agrees to weigh in on Indiana’s voter ID law, Attorney General Steve Carter told the justices. * * *

Last month the state Democratic Party and the American Civil Liberties Union of Indiana asked the Supreme Court to review the legal fight over Indiana’s law. The state’s voter ID requirement has operated in two primaries and a fall election.

“Despite the hue and cry about the supposed burdens of this law, and despite all of the politicians, political-party apparatus and political-interest groups in the case, no plaintiff could identify a single actual voter who could not or would not vote because of the voter ID law,” Carter said in the brief filed Monday with the Supreme Court. “This fact succinctly demonstrates why this case is unworthy of the court’s attention: It proves the law is benign.”

Besides that, Carter wrote, “granting review of the issue now would likely prompt a raft of last-minute voter-identification challenges that would disrupt the 10 2008 presidential primaries.”

The court will either agree to hear the case – ultimately choosing between the Indiana Democratic Party’s view and the state law – or refuse to consider it, which would be a victory for backers of the law. The justices have not yet said whether they will accept or reject the case.

Carter told the justices that if they are tempted to consider the case, they ought to wait until after the 2008 elections, when it would “not precipitate emergency, election-eve challenges” and when there would be a record of voter ID law enforcement to take into account.

He pointed out that by the end of February 2008, “well before this case would be decided,” 24 states and the District of Columbia will already have held presidential primaries.

“Fourteen of those states require some form of identification for all voters,” and agreeing to hear the case but not deciding the outcome before those people vote “would create new uncertainty as to the validity of all voter identification requirements, far more uncertainty than exists now,” Carter argued.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to Ind. (7th Cir.) Decisions

Environment - Pollution and justice: Kentucky judge orders state to rehear permit for coal-fired power plant

After all the stories about the proposed BP and U.S. Steel permits in NW Indiana and the outrage that has ensued, here is a very strong editorial this morning in the Evansville Courier & Press about a power plant permit in Kentucky. Although the permit process is different, the facts echo many of the same themes as the NW Indiana situation. In this case, however, the pollution would originate in Kentucky and Indiana would be impacted:

A Kentucky judge drew a line in the sand this week when he ordered state officials to redo their approval process for a coal-fired power plant. The case illustrates the importance of having an independent judiciary when the executive branch — in this case, the Kentucky Environmental and Public Protection Cabinet — tried to push through a permit that would have benefited a powerful industry.

Peabody Energy Corp. plans to build a 1,500-megawatt power plant near Central City, Ky., that would generate electricity using high-sulfur Kentucky coal from a nearby mine. In the past, officials have said the $2.5 billion Thoroughbred plant would create 450 mining and power-plant jobs in and around Muhlenberg County, Ky.

Job creation is laudable; but the concern on this side of the Ohio River is that the Thoroughbred plant, with its sulfur-dioxide and ozone emissions, could add to Southwest Indiana's air-quality problems. Vanderburgh and Warrick counties struggle to stay off the federal ozone violations list, and both still are in "nonattainment" for fine-particulate matter, or soot.

Because of emissions the Thoroughbred plant would produce, a Kentucky administrative hearing officer, Janet Thompson, heard weeks of testimony and reviewed 370 pages of documents in 2005 in considering whether the state should grant Peabody an air-pollution permit. Thompson recommended the state instead give further review to the permit request.

But that recommendation was rejected by Kentucky's environmental secretary at the time, LaJuana Wilcher. She decided to allow Peabody to build the plant without revisiting its permit, although she recommended tightening mercury-emissions limits.

Two environmental groups, the Sierra Club and Evansville-based Valley Watch, opposed the permit and sued the state to block it.

The Franklin County, Ky., circuit court judge who heard the case, Thomas D. Wingate, this week ruled in favor of the environmental groups and against the state. Wingate ordered the Peabody case sent back to the Environmental Cabinet to redo the air-pollution permit procedure.

Using unusually pointed language, Judge Wingate found that Wilcher had misstated both the facts of the case and Kentucky law in issuing the permit. Indeed, in reading the judge's ruling, it appears Kentucky officials tried to bend the rules to remove hurdles for Peabody while at the same time putting obstacles in the opponents' path.

The judge's ruling chided the environmental secretary on several points, including the push to use local high-sulfur coal instead of low-sulfur coal, the impact of emissions on Mammoth Cave National Park and nearby vegetation, and the lack of proper public notice.

Whether Kentucky restarts the permit process or appeals Wingate's ruling remains to be seen.

The point is, one county judge stood in front of the political freight train of the state government and a powerful industry and told them, in effect, "This far and no farther." Kentucky state laws and regulations will be followed, not disregarded as inconvenient, the judge essentially was saying in his 11-page ruling.

That's refreshing. It reflects one of the oldest traditions in American jurisprudence: that no matter how powerful or influential the litigant, all should be considered equal before the law.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to Environment

Ind. Courts - Ky. Judge refuses to validate Davis' marriage

Kate Braser writes in the Evansville Courier & Press:

A Kentucky judge's refusal this week to validate Misty Davis' marriage to convicted murderer Nicholas Harbison means she still must face a charge of assisting a criminal during a trial scheduled to begin in Pike County next month.

In the court order, Daviess County (Ky.) Circuit Court Judge Henry M. Griffin III wrote Davis failed to prove the marriage valid during a hearing in his courtroom on July 30.

Griffin concluded his order by writing, "The court finds that the controversy exists in the Indiana courts and should be litigated there and subject to appellate proceedings in Indiana." * * *

Davis is trying to prove she was married to Harbison. Her lawyer has contended that if the marriage is valid, prosecutors will have to drop charges against her. In Indiana a spouse cannot face a charge for assisting a criminal. * * *

Davis recently asked Griffin to validate her marriage to Harbison, even though a Pike County judge ruled the marriage invalid in January because Davis lied about her age on the license issued in Daviess County, Ky., in June 2002.

According to officials at the Daviess County clerk's office, a marriage certificate was obtained by Davis and Harbison under the impression that Davis' birthday was in 1983. Police said Davis was 17 at the time.

When the certificate was mailed back to the county clerk's office, a deputy clerk wrote "void" on it and did not sign the certificate. On the back of the certificate, a note was attached that said "sent a copy to Frankfort and advised customer lied about age so marriage is void."

In a hearing on the same matter in Pike County Circuit Court in December, Davis' mother, Debbie Davis, testified she always knew the marriage between her daughter and Harbison was legal, but had tried to have the marriage voided.

It wasn't until Debbie Davis learned criminal charges against her daughter could possibly be dropped if their marriage proved legal that she traveled to Owensboro, Ky., to retrieve a copy of the marriage certificate.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to Indiana Courts

Law - "A massive hot dog clogged Chicago's main artery Thursday morning"

This story, complete with photo illustration, in the Chicago Tribune this morning tickled me. From the story:

A massive hot dog clogged Chicago's main artery Thursday morning.

In a rare occurrence of an encased-meat vehicle committing a traffic violation, Chicago police ticketed the Oscar Mayer Wienermobile for illegal parking on the Magnificent Mile.

The incident began at 10:57 a.m. in the 400 block of North Michigan Avenue. At least two members of the Wienermobile entourage left the vehicle in the six-lane street with its emergency blinkers on. The vehicle is registered to Kraft Foods under the Wisconsin license plate "WEENR." * * *

Sydney Lindner, a spokeswoman for Kraft Foods, said the Wienermobile is on a nationwide tour promoting a contest to sing the Oscar Mayer jingle in an upcoming commercial.

She said "regardless of the reason" the driver had for parking there, the company neither condones nor relishes such actions.

Posted by Marcia Oddi on Friday, August 10, 2007
Posted to General Law Related

Thursday, August 09, 2007

Ind. Decisions - 7th Circuit "calls appeal of within-guideline sentence frivolous"

In a 7th Circuit ruling out of the ED Illinois today, USA v. Sam Gammicchia, Judge Posner begins:

The defendant appeals from his 30-month prison sentence for obstruction of justice. The appeal bespeaks a misunderstanding of federal sentencing law under the regime created by the Booker decision. When as in this case a criminal appeal is frivolous, the defendant’s attorney should file an Anders motion rather than waste the court’s time on a lost cause. We write in the hope of heading off what is assuming the proportions of an avalanche of utterly groundless sentencing appeals.
See the Sentencing Law and Policy entry here.

Posted by Marcia Oddi on Thursday, August 09, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions "Judge Posner for Seventh Circuit calls appeal of within-guideline sentence frivolous"

In a 7th Circuit ruling out of the ED Illinois today, USA v. Sam Gammicchia, Judge Posner begins:

The defendant appeals from his 30-month prison sentence for obstruction of justice. The appeal bespeaks a misunderstanding of federal sentencing law under the regime created by the Booker decision. When as in this case a criminal appeal is frivolous, the defendant’s attorney should file an Anders motion rather than waste the court’s time on a lost cause. We write in the hope of heading off what is assuming the proportions of an avalanche of utterly groundless sentencing appeals.
See the Sentencing Law and Policy entry here.

Posted by Marcia Oddi on Thursday, August 09, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit makes available two previously unpublished Indiana prisoner appeal decisions

Neither opinion is new.

Both were originally released as unpublished orders, Woods v. Buss on May 3, 2007, and Lambert v. Buss on June 13, 2007. In both cases, the Court notes in a footnote: "Upon request, the panel has determined that this decision should now issue as a published opinion.."

Michael Lambert was executed June 15th; David L. Woods was executed May 4, 2007.

Posted by Marcia Oddi on Thursday, August 09, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Christopher Brown, DDS, Inc. v. Decatur County Memorial Hospital , a 6-page opinion, Judge Riley writes:

Brown raises one issue on appeal, which we restate as follows: Whether prejudgment interest is available for belated payments to health care providers for services rendered under the Worker’s Compensation Act. * * *

Brown claims he is entitled to prejudgment interest for healthcare services rendered. Specifically, Brown argues that a contract for services was created when he was requested by the Hospital’s insurer to provide medical care to Trimnell. Thus, Brown contends this case should be treated as any other civil contract action addressing prejudgment interest and not under the worker’s compensation umbrella. Conversely, the Hospital maintains there is no provision for an award of prejudgment interest under the Worker’s Compensation Act (the Act); thus, Brown is not entitled to prejudgment interest. We agree with the State that neither the Act nor case law mandates the payment of interest under the circumstances presented. * * *

Thus, in the instant case, because the Legislature has not seen fit to amend the Act by incorporating a provision for prejudgment interest for balances owed to health care providers for services rendered to employees in Worker’s Compensation cases, Brown is not entitled to prejudgment interest. However, Brown claims that because he is not employed by the Hospital a contract outside the purview of the Act was created between him and the hospital. We cannot agree because he is seeking prejudgment interest pursuant to a Worker’s Compensation claim and because we have no authority to read into a statute a provision the Legislature has purposely omitted, i.e. a provision for prejudgment interest, we cannot find the Board incorrectly interpreted the Act.

NFP civil opinions today (1):

Jason Gates v. Peter D. Leadstrom (NFP) - "There is sufficient evidence to support the jury’s verdict in favor of Leadstrom on his complaint for conversion. We affirm."

NFP criminal opinions today (5):

Alvarnaz Moore v. State of Indiana (NFP)

Marvin L. Starcher v. State of Indiana (NFP)

Andrew McWhorter v. State of Indiana (NFP)

Brian Lee v. State of Indiana (NFP)

Dustin Lee Smart v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 09, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts two

The Indiana Supreme Court has posted two decisions, both dated Aug. 8th:

In Michael Robertson v. State of Indiana, a 10-page, 5-0 opinion, Justice Boehm writes:

We hold that under the sentencing laws from April 25, 2005, a court imposing a sentence to run consecutively to another sentence is not limited to the advisory sentence. Rather, the court may impose any sentence within the applicable range. * * *

Where the use of some aggravators violates Blakely and others do not, we will remand for resentencing unless we can say with confidence that the trial court would have imposed the same sentence if it considered only the proper aggravators. McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001) (citing Wooley v. State, 716 N.E.2d 919, 933 (Ind. 1999); Angleton v. State, 686 N.E.2d 803, 817 (Ind. 1997)). Given that Robertson had one prior conviction and one probation violation that occurred within two years of his offense, we conclude that the trial court would have imposed the same sentence based solely on these permissible aggravating factors. The trial court did not err in enhancing Robertson’s sentence.

In Philip Littler v. State of Indiana, a 5-page, 5-0 opinion, Justice Dickson writes:
Eighteen-year-old Neal Littler died from a gunshot injury suffered in a fight with his twin brother, defendant Philip Littler. Convicted of Neal's murder, Philip's direct appeal challenges the trial court's exclusion of their mother's testimony regarding Neal's prior conduct. The Court of Appeals affirmed in a memorandum opinion. We granted transfer and now reverse. * * *

The mother's testimony confirming Neal's numerous prior stabbings, his mental condition, and his history of violent behavior would be very probative and relevant to the jury's evaluation of the objective reasonableness of Philip's belief that he needed to use force against Neal and would also lend substantial credibility to Philip's assertions. We cannot conclude that the exclusion of the mother's testimony did not affect Philip's substantial rights. The harmless error doctrine does not apply here, and we reverse Philip's conviction.

The AP has a report headed "Court overturns man's conviction for killing twin brother."

Posted by Marcia Oddi on Thursday, August 09, 2007
Posted to Ind. Sup.Ct. Decisions

Environment - NW Indiana pollution update

"Pollution permits may spur activism" is the headline to this story today by Gitte Laasby of the Gary Post-Tribune. Some quotes:

Local concerned residents and long-term environmentalists came together Wednesday night in Gary to kick off what they call "a grass roots democratic push for public awareness and administrative accountability."

Karen Kroczek, a Munster resident and member of the League of Women Voters, organized the meeting of residents to formulate comments to the Indiana Department of Environmental Management's proposed wastewater permit for U.S. Steel Gary Works. But the citizen activism may evolve and persist well after the permit is issued.

"I see a lot of promise for future organization and environmental activism. These people felt empowered, focused and they were certainly informed," Kroczek said. "There's nothing official about us. We're just an ad hoc citizens group concerned about how IDEM's administering these resources."

Many attendees had never been involved with environmental issues before, but became interested after hearing about wastewater permits for BP Whiting and U.S. Steel.

"Everybody's got to know right now what's happening," said Edward Landmichl, a Chicago resident and long-term environmental activist. "We want change. We don't want pollution in the lake!" * * *

Tom Sourlis of Highland said outrage over industrial pollution in Lake Michigan compelled him to attend.

"It's an outrage they should dump this filth into a body of water. They say it's going to cost money (to treat the water). It's going to create jobs. What it's going to cost is profits. The company made $440 million a day. You tell me they don't have the money to deal with it?" Sourlis said.

He said he blames IDEM and Indiana laws for additional pollution as much as industries, but found the meeting useful.

"This group is fabulous. This educated us. I believe this could be the start of something that continues," he said.

The group felt encouraged after IDEM announced Wednesday afternoon that it has extended the public comment period on U.S. Steel's wastewater permit.

By requests from the public, the deadline previously set for Saturday was extended to Monday, Oct. 1.

State Sen. Karen Tallian, D-Portage, attended the meeting to teach a break-out group what she called "Permitting 101" -- background about the Clean Water Act and how standards are applied -- and discuss whether the limits are still appropriate.

"The legislators, IDEM, all of those, listen to grass roots, contacts and harassment," she told attendees. "Send us your e-mails. I get a sheet every time someone calls. When the sheets start stacking up, we take action."

Earlier Wednesday, Tallian said she asked IDEM Commissioner Thomas Easterly for a 60-day extension of the public comment period.

"We should learn a lesson from the public outcry engendered by the BP permit process. People feel that they were not informed and that they had no opportunity for input. In view of the fact that this application for renewal is several years behind schedule, I do not see a reason why another 60 days would be harmful," Tallian said in a statement. "The outcry over the BP permit was in part due to misinformation. IDEM should do everything possible to ensure that the public feels they had an opportunity for input."

The citizens group signed petitions asking IDEM to hold another public meeting on U.S. Steel's permit. An IDEM spokesman said IDEM had not yet made a decision about that.

Kroczek said the citizen group will most likely meet again within the next two or three weeks.

The NWI Times also has a story about the meeting, by Kass Stone. Some quotes:
GARY | The Indiana Department of Environmental Management's highly controversial wastewater permit change for BP's Whiting Refinery has galvanized local environmental activists.

An effort to organize various environmental organizations in Northwest Indiana and concerned residents kicked off Wednesday with a public meeting at the W.E.B. DuBois branch of the Gary Public Library.

Organized by Munster resident Karen Kroczek, the meeting attracted a number of different organizations, ranging from environmentalists such as the Save the Dunes Council to anti-war group Code Pink. The meeting centered around renewal U.S. Steel Gary Works' wastewater discharge permit.

Kroczek, a member of the Northwest Indiana Coalition Against the Iraq War, began by announcing IDEM had extended the public comment portion for the permit by 60 days.

"This is our land. This is our water. This is our air, and we need to have meaningful input in what is done to them," Kroczek said.

State Sen. Karen Tallian, D-Ogden Dunes, and state Rep. Scott Pelath, D-Michigan City, addressed those in attendance. Pelath promised to convene a hearing on the IDEM permit process Aug. 22 at the state Capitol.

While the immediate focus is on the U.S. Steel permit, the overall goal of the meeting, Kroczek said, is to create a unified movement that will be able to influence IDEM's decisions.

"BP variance awaits public hearing date" to this headline to another story today by Gitte Laasby of the P-T. Some quotes:
The Indiana Department of Environmental Management still plans to reschedule a public hearing on a commissioner's order accompanying a variance the agency issued to BP Whiting.

The variance allows BP to exceed its current permit limits for the amount of tiny particles the company can emit into the air in Lake County. * * *

IDEM has not announced a new date for the hearing, but said in a statement that the agency will provide "appropriate public notice announcing a written comment period and a new hearing date and location."

Officials said they postponed the hearing scheduled for Aug. 9 in Merrillville because people were confused about the subject matter.

Some people thought the hearing was about BP's air permit. IDEM has not yet put out an air permit for public comment because the agency is still reviewing BP's application. [Emphasis added by ILB]

The question here would be, whose fault is it that "people were confused"? With the BP NPDES permit, it appears from earlier stories that IDEM did, at most, the barest minimum to inform the public.

The Indianapolis Star today has a strong editorial that states its position as: "Indiana should listen to its neighbors about the BP permit.." It begins:

With water bidding strongly to usurp oil as the fluid of contention for the 21st-century world, it is no small irony that the two are having a hard time mixing at the far northwest end of Indiana.

Leaders and many residents of Illinois and Michigan are fighting mad over the Daniels administration's unilateral decision to allow BP America to increase pollution of Lake Michigan in the process of expanding its Whiting Refinery.

It means jobs and maybe cheaper gasoline, the governor says. It will not harm the water, say Indiana officials, BP representatives and the U.S. Environmental Protection Agency.

It is below federal limits for discharges of ammonia and suspended solids. But under the permit Indiana has issued for the $3.8 billion expansion of the refinery, BP could still release up to 1,584 pounds of ammonia into the lake every day, an increase of 54 percent; and nearly 5,000 pounds of suspended solids, a 35 percent increase.

In sufficient quantities, this is harmful stuff. So is mercury, which the permit does not limit immediately but is supposed to restrict eventually.

Is it any wonder that the governor of Illinois is threatening to sue Indiana over its treatment of a shared body of water? Is it any wonder the U.S. House overwhelmingly approved a nonbinding resolution against the terms of the permit?

Recent history is significant here. National and regional concern about both depletion and degradation of the Great Lakes has spurred urgent cleanup and management efforts involving remarkable coalitions of normally competing interests -- states, environmentalists, industry. * * *

Can the "green BP" of its lavish advertising truly not do any better? If not, are 80 permanent jobs and 2,000 or so temporary construction jobs worth the risk of contaminating a major source of drinking water and magnet for tourism? For that matter, is the pump price of gasoline really a compelling issue, as Daniels stated in his defense of the deal?

These and other interesting questions ought to be kicked around by the governor's people and fellow users of Lake Michigan while there's still time to reconsider permits and keep neighborly business out of court. The future health of the environment and its inhabitants will not respect state lines, and visionary leaders know when to cross them.

Posted by Marcia Oddi on Thursday, August 09, 2007
Posted to Environment

Wednesday, August 08, 2007

Ind. Decisions - More on: Trial court ruling could void IMPD arrests

Judge Rueben Hill has today commented on his ruling yesterday (see ILB entry from earlier today here), per this story by Jon Murray just posted on the Indianapolis Star website. It begins:

A Marion Superior Court judge said today that he reviewed a case carefully before ruling this week that an officer's arrest in a drunken driving case was illegal because he had not been sworn in after this year's police merger.

Judge Rueben Hill's ruling is a potential bombshell for thousands of cases pending in other courtrooms. But Hill said he would wait for an appeals court to review the ruling before applying it to any other cases in his courtroom.

Hill plans to release a written decision by the end of today. On Tuesday, he issued a ruling from the bench after hearing arguments on defense attorneys' motion to suppress evidence.

"I made the best decision I could under the circumstances that were presented to me in this case," Hill said during an interview in his office this morning at the City-County Building. "I have no delusions the decision would stand on its own without any review from the Court of Appeals." * * *

"This is probably not a case that should be decided by a lower court because it affects every other court down the line," said Hill, 69. He is in the first year of what he said will be his last six-year term on the bench.

Posted by Marcia Oddi on Wednesday, August 08, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 10 today (and 14 NFP)

For publication opinions today (10):

In Robert M. Knight v. Indiana Insurance Company and Indiana University , an 11-page opinion, Judge Bailey writes:

[ILB - This is the Ron Felling incident] Knight raises three issues, which we consolidate and restate as the following issue: whether the trial court erred by granting summary judgment to the Insurer upon Knight’s claims that the Insurer wrongfully denied homeowners policy coverage and breached its duty to investigate and defend a lawsuit arising from Knight’s workplace assault and battery of a co-worker that produced no bodily injury. * * *

It is the nature of the claim, not its merit, which establishes the insurer’s duty to defend. Trisler, 575 N.E.2d at 1023. Consequently, if it is determined that an insurer has a contractual duty to defend a suit based upon risks it has insured, the insurer will not be relieved of that obligation, regardless of the merits of the claim. Id. An insurer who concludes that a claim is “patently outside the risks covered by the policy” and elects not to defend an insured in the underlying tort action under a reservation of rights does so at his peril. State Farm Fire & Cas. Co. v. T.B. ex rel. Bruce, 762 N.E.2d 1227, 1230 (Ind. 2002). This is because the insurer will be “bound at least to the matters necessarily determined in the lawsuit.” Id. * * *

Felling brought a Section 1983 claim against Knight alleging that Knight attacked him. The Insurer conducted an interview with Knight before denying coverage and refusing to defend the Felling lawsuit. Knight reported that the incident provoking the lawsuit happened at his workplace, involved himself and a co-worker, and was prompted by the co-worker’s criticism of his professional abilities.

Knight also reported that he rose up during a verbal encounter and bumped Felling, but Felling was not hurt. Knight’s account that he “bumped” Felling might be interpreted as either a report of an accidental occurrence or a report of a rude touching amounting to battery. Regardless, it was a workplace incident that resulted in no bodily injury. A reasonable claims manager would be able to discern the lack of contractual obligation at that juncture. The Insurer did not need to rely upon the subsequently mediated settlement between Knight and Felling to determine that the event was patently outside the Policy coverage. The Insurer is entitled to judgment as a matter of law upon Knight’s claims that it breached its duties to reasonably investigate and to defend the Felling lawsuit.

In Norman R. Carlson, Jr., et al. v. Sweeny, Dabagia, Donoghue, Thorne, Janes & Pagos and John H. Sweeney, a 3-page opinion on rehearing, Judge Robb writes:
The parties filed a joint petition for rehearing, which we grant to correct an erroneous statement made in our earlier opinion. * * *

Unbeknownst to this court, the parties had entered into pre-suit agreements tolling the statute of limitations. Therefore, the Carlsons did not file their claim in violation of the statute of limitations, and the Lawyers did not waive the defense by failing to plead it. In sum, neither party’s attorneys erred regarding the statute of limitations. As the parties concede in their petition, the fact that pre-suit agreements existed has no effect on the outcome or rationale of our previous decision, and we grant the petition for rehearing for the sole reason of removing any suggestion that the parties’ attorneys acted negligently with regard to the statute of limitations.

In Jane H. Collins v. T. William McKinney , a 20-page opinion, Judge Vaidik writes:
Jane Collins (“Collins”) appeals the trial court’s grant of T. William McKinney’s (“McKinney”) motion for directed verdict as to Collins’ counterclaim for breach of a written lease. The trial court concluded that even if McKinney breached the lease, Collins cannot prevail because there is no evidence to show that the breach was material or that Collins incurred any damage. Finding that there is sufficient evidence to allow a reasonable finder of fact to conclude that McKinney did breach the contract, that the breach was material, and that Collins suffered damages as a result of the breach, we reverse and remand for a new trial. * * *

We affirm the trial court’s order that McKinney was required to obtain Collins’ consent before any assignment or sublease of the Sublease. We reverse the trial court’s grant of McKinney’s motion for directed verdict on Collins’ Counterclaim for breach of contract and remand for a new trial.

In Now Courier, Inc. v. Review Board of the Indiana Department of Workforce Development & Tommy Jones, an 11-page opinion, Judge Darden writes:
NOW Courier, Inc. (“NOW”) appeals the order of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“the Board”) that determined that Tommy C. Jones was entitled to unemployment compensation benefits. * * *

ISSUE Whether the order must be reversed because NOW was not allowed to assert Jones’ ineligibility for unemployment compensation benefits based upon a statutory exception. * * *

NOW argues that the Board’s decision is contrary to law because it was denied due process – specifically, the opportunity to litigate the issue of Jones’ exemption from eligibility for unemployment compensation benefits based upon a statutory provision. We agree. * * *

The Board also argues that because this was a benefits decision, our review is limited to whether the facts support the decision of the ALJ and Board that Jones was not discharged for just cause. However, whether NOW was denied due process is a matter of law. NOW was never allowed to present to evidence of Jones’ asserted ineligibility for benefits based upon the statutory exemption. The Board’s determination that Jones was eligible for benefits was erroneous as a matter of law because NOW was not given the opportunity to be heard at a meaningful time and in a meaningful manner on its argument of Jones’ ineligibility. Therefore, NOW was denied due process. Accordingly, we reverse and remand for the Department to provide that opportunity. Reversed and remanded.

In Dan & Susan Miller v. Hague Insurance Agency , a 6-page opinion, Judge Mathias writes:
Daniel and Susan Miller (“the Millers”) appeal from the Pulaski Superior Court’s order of summary judgment in favor of Indiana Farmers Mutual Insurance Co. (“Farmers Mutual”). Concluding that the Millers failed to timely file their brief according to Indiana Appellate Rule 45(B), we dismiss this appeal. * * *

The Millers filed a notice of appeal on June 7, 2006 and a case summary on June 22, 2006. Then the Millers’ counsel, Patrick McEuen (“McEuen”), went on vacation from mid-June until July 5, 2006. While McEuen was on vacation, his staff received a letter from the Pulaski Superior Court indicating that the record and the transcript were complete. The notice of completion of clerk’s record and completion of the transcript were filed on June 23, 2006. McEuen’s office paid the invoice for the transcript on June 30, 2006, while McEuen was still on vacation. * * *

Here, appellant’s brief was filed thirty-eight days after the July 24, 2006 deadline. In the Millers’ motions filed with this court, McEuen claims that his failure to timely file the appellants’ brief was due to mistake or excusable neglect. He explains that he was never aware that the transcript had been completed in this matter because the notice had arrived while he was on vacation. McEuen states that he did not learn that the transcript had been filed until August 29, 2006, sixty-seven days after the clerk had filed her notice of completion of transcript.

“[I]t is the duty of an attorney and his client to keep apprised of the status of matters before the court.” Sanders v. Carson, 645 N.E.2d 1141, 1144 (Ind. Ct. App. 1995).

While the filing of a brief one day late has been considered a minor violation of our appellate rules, the filing of a brief thirty-eight days late is not. Dismissed.

In Ralph Drake v. Old National Trust Company, et al., a 10-page opinion, Judge Darden writes:
Ralph Drake appeals the trial court’s grant of summary judgment to Old National Trust Co. and other defendants on Drake’s action seeking an order that he held the right to purchase certain real estate (“the Property”) owned by the late Frances G. Birdsong. We affirm. * * *

We find the designated facts to establish that three months after the testator’s death, Drake was given the opportunity to purchase the Property for a specific appraised value. Pursuant to Estate of Owen, 855 N.E.2d at 612, the price for the Property was set at that time – September 3, 2001. Drake neither challenged the price set, nor had his own appraisal made, nor attempted to negotiate for a different price; in other words, he failed to take any action toward making the purchase within the following three months given him to do so. We conclude that by mid-December of 2001, Drake had been given a reasonable time to exercise the bequeathed option to purchase the Property; that he failed to exercise the option or make an effort to exercise the option; and by failing to do so, he waived the right bequeathed to him. Accordingly, the trial court did not err in granting summary judgment to the defendants.

In Daniel E. Hoagland, Karen Hoagland and Hoagland Family Limited Partnership v. Town of Clear Lake Board of Zoning Appeals I I, a 13-page opinion, Judge Sharpnack writes:
In this appeal, the Hoaglands challenge the trial court’s dismissal of their petition for writ of certiorari regarding a second ILP issued concerning the Nevins’ property. * * *

Here, the Hoaglands filed their petition for writ of certiorari on April 7, 2006. Although the Hoaglands served notice upon the property owners, the Nevins, they did not serve notice upon Tagtmeyer, who was the “applicant” on the ILP. As a result, the trial court found that the Hoaglands had failed to follow the statutory requirements. * * *

Under Ind. Code § 36-7-4-1005, the Hoaglands were required to serve notice upon “(A) each applicant or petitioner for the use, special exception, or variance; and (B) each owner of the property that is the subject of the application or petition for the use, special exception, or variance.” If we were to accept the Hoaglands’ interpretation of the statute, the Hoaglands would not have been required to give notice to the Nevins either. The Nevins are not the owners of property that is the subject of an “application . . . for the use, special exception, or variance.” Rather, the Nevins are owners of property that is the subject of an application for an ILP. As a result, under the Hoaglands’ interpretation, the Hoaglands would not have been required to serve notice of their petition on anyone except the BZA. See I.C. § 36-7-4-1005(a) (discussing service of notice to the BZA). We conclude that such a result was clearly not intended by the legislature. Rather, a more reasonable interpretation of the statute is that the Hoaglands were required to serve notice upon “each applicant” and “each owner of the property that is the subject of the application.” Although the Hoaglands provided notice to the property owners, they did not provide notice to the applicant. Their failure to comply with the statute is fatal, and the trial court did not err by dismissing the Hoaglands’ petition.

In Daniel E. Hoagland, Karen Hoagland and Hoagland Family Limited Partnership v. Town of Clear Lake Board of Zoning Appeals I, a 12-page opinion, Judge Sharpnack concludes:
Even though the BZA in this case did not issue written findings of fact, the Hoaglands were aware of the BZA’s December 20, 2005, decision. As a result, under Biggs, the Hoaglands were required to file a petition for writ of certiorari and serve the required notices within thirty days of the BZA’s December 20, 2005, decision, and they failed to do so. Their failure to comply with the statute is fatal, and the trial court did not err by dismissing the Hoaglands’ petition. * * * For the foregoing reasons, we affirm the trial court’s dismissal of the Hoaglands’ petition for judicial review.
In Newnam Manufacturing, Inc. & Dalton Corporation v. Transcontinental Insurance Company , a 15-page opinion, Judge Mathias writes:
Dalton Corporation (“Dalton”) appeals from the Noble Superior Court’s order granting summary judgment in favor of Transcontinental Insurance Co. (“Transcontinental”) on the issue of whether Transcontinental was required to incur the costs to defend Dalton in a suit involving Dalton’s alleged violations of the Clean Air Act. Because there was no potential for coverage under the insurance policy, we conclude that Transcontinental had no duty to defend Dalton. Therefore, we affirm. * * *

However, Dalton maintains that the Cinergy opinion leaves open the possibility that other forms of PSD relief could be covered under a general liability policy. Therefore, Dalton contends that because there is a possibility of coverage, Transcontinental’s duty to defend was triggered. We disagree.

IDEM did not seek any other relief in its order besides the application of a permit to determine whether BACT needed to be installed. “In Indiana, it is well settled that an insurer’s duty to defend is determined by the allegations of the complaint coupled with those facts known to or ascertainable by the insurer after a reasonable investigation.” Cincinnati Ins. Co. v. Mallon, 409 N.E.2d 1100, 1106-07 (Ind. Ct. App. 1980) (citing Am. States Ins. Co. v. Aetna Life & Cas. Co., 379 N.E.2d 510 (Ind. Ct. App. 1978)). Consequently, because no other relief was sought besides the potential installation of BACT, Dalton was not liable for “damages” as defined by Transcontinental’s insurance policy.

Conclusion. For the foregoing reasons, we conclude that the facts and circumstances at issue were not an occurrence that caused bodily injury, property damage, or personal injury for which Dalton could have been liable for damages. Because there was no potential for coverage under the policy, Dalton’s lawsuit did not trigger Transcontinental’s duty to defend. Affirmed.

In Maria A. Mitchell v. Bobby A. Mitchell , an 11-page opinion, Judge Vaidik writes:
Maria Mitchell (“Maria”) appeals the trial court’s order setting aside and vacating a contempt citation and discharging a Rule to Show Cause, both of which were issued to her former husband, Bobby Mitchell (“Bobby”), for failing to perform according to the hold harmless provisions of their dissolution decree. Maria argues that the hold harmless provisions of the decree were enforceable through contempt proceedings, and therefore, the contempt citation was wrongly vacated and set aside, and the Rule to Show Cause was wrongly discharged. Because there was no money judgment here requiring one party to pay a fixed sum of money to the other, and thus, the trial court erroneously concluded that it could not use its contempt powers, we find that the trial court abused its discretion by vacating and setting aside the contempt citation and by discharging the Rule to Show Cause. We reverse and remand.
NFP civil opinions today (3):

Beverly Roberts, Estate of William L. Roberts, Jr. v. ACandS, Inc. (NFP) - "The dismissal of Roberts’s application for compensation under the ODA was not premature because Roberts’s Estate had obtained paid settlements and a judgment against liable third parties. The release of liability provision of the ODA is not unconstitutional as applied to the facts of this case."

Marion Community School Corporation v. Marion Teachers Association (NFP) - "The Marion Community School Corporation (“MCSC”) filed a motion in Grant Circuit Court to vacate arbitration award. The trial court denied the motion to vacate and the MCSC appeals arguing that the arbitrator exceeded his authority when he ordered the MCSC to pay attorney fees and to issue an apology to teacher Roger Sharp (“Sharp”). Concluding that the trial court did not err when it denied the MCSC’s motion to vacate arbitration award, we affirm."

Invol. Term. of Parent-Child Rel. of P.B., and Christina Beltran v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (11):

Wanda J. Osborne v. State of Indiana (NFP)

James Walsh v. State of Indiana (NFP)

Jeffrey C. Jones, Sr. v. State of Indiana (NFP)

Donald E. Spence v. State of Indiana (NFP)

Taiwan Manuel v. State of Indiana (NFP)

Frederick A. Young v. State of Indiana (NFP)

Alfred McGinnis v. State of Indiana (NFP)

Hashim Holly v. State of Indiana (NFP)

Mark Ruthrauff v. State of Indiana (NFP)

Benny Lucas v. State of Indiana (NFP)

Omar McIntosh v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 08, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Prospective juror's outburst during voir dire leads to mistrial

Dionne Waugh reports today in the Fort Wayne Journal Gazette:

An Allen Superior Court judge declared a mistrial for an accused murderer Tuesday after a potential juror blurted out that the man had robbed her relative seven years ago.

Antwain James Hines, 22, of the 3100 block of South Anthony Boulevard, was scheduled to face a three-day jury trial starting Tuesday, but his attorney asked for and received a mistrial after the woman’s statement.

Attorneys already had spent more than 2 1/2 hours selecting 12 jurors, and the woman was being considered as an alternate during the jury selection process. When asked whether she had any answers to the previously asked questions, the woman said Hines had robbed her nephew, which is why she couldn’t be fair and unbiased.

Ruling that the information could prejudice the jury, which is not supposed to know whether the accused has a prior criminal record, Judge John F. Surbeck granted defense attorney Robert Gevers’ request for a mistrial.

Posted by Marcia Oddi on Wednesday, August 08, 2007
Posted to Ind. Trial Ct. Decisions

Environment - Continuing coverage of: Communities seek to regulate outdoor wood-fired boilers

Adding to a long list of ILB entries on the regulation of outdoor wood-fired boilers in Indiana, the Michigan City News-Dispatch reports today, in a story by Laurie Wink:

La PORTE - The City of La Porte joined a growing list of communities taking seriously the public health threats believed to be posed by outdoor hydronic heaters, also known as outdoor wood-fired boilers.

The City Council voted 5-1 in favor of adopting an ordinance to limit the amount of emissions and particulate matter the units can emit within city limits. The La Porte ordinance is similar to one already enacted by Michigan City and one under consideration by Long Beach. * * *

Unlike fireplaces inside a home, outdoor units do not operate continuously at high heat, releasing smoke high into the air through a chimney. Instead, they're designed to dampen down the fire when sufficient heat has been produced. The reduced burning causes smoldering, which puts out emissions relative low to the ground as well as tiny particulars of chemicals such as benzene known health hazards.

In the city, residential lots are not large enough to allow the outdoor burners to be positioned far enough from the user's house and the neighbors' houses to keep the smoke and emissions from entering adjacent properties.

Posted by Marcia Oddi on Wednesday, August 08, 2007
Posted to Environment

Ind. Decisions - New Albany mayor vetoes sewer ruling

Updating this ILB entry from yesterday, Dick Kaukas of the Louisville Courier Journal reports today:

Less than 24 hours after the New Albany City Council voted to file lawsuits to challenge the validity of two no-bid contracts, Mayor James Garner vetoed the resolution.

Garner announced his decision yesterday at a meeting of the city sewer board, of which he is chairman, saying that bids aren't required for "professional service contracts" and that the litigation "will result in a wasting of taxpayer and/or utility funds" on legal fees.

Councilman Dan Coffey, who led the effort to go to court, said last night that he was "flabbergasted " by Garner's veto.

Coffey said he knew the mayor could veto ordinances but it wasn't clear whether he could veto resolutions. Coffey said he would seek legal advice and, if told the veto was proper, will ask for a special council meeting to try to override it.

That would require six of the council's nine votes. The council had voted 5-3 Monday night to sue, with one abstention.

Posted by Marcia Oddi on Wednesday, August 08, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Special judge to be assigned to child support case"

Kate Braser has a story in today's Evansville Courier & Press that begins:

A child support case in which an ex-wife claimed unfairness in the judicial system will be assigned to a special judge.

Suzanne Hebert Hamilton's attorney, Mary Lee Schiff, wrote a six-page letter to prosecutors in June complaining about the case. Hebert Hamilton's ex-husband, Richard Hamilton, is the son of Vanderburgh Superior Court Magistrate Allen Hamilton. A copy of the letter was also provided to the Courier & Press.

The couple separated in 2005 and finalized their divorce in February 2006. Hebert Hamilton lives in Florida with the couple's two children. In May 2006, she asked Vanderburgh Superior Court Judge Robert Pigman to enforce a Florida contempt order, alleging Richard Hamilton owes $25,000 in back child support.

Court records show that in June, just days after a story ran in the Courier & Press in which Hebert Hamilton expressed her frustration about the case, Pigman recused himself. The next day, Vanderburgh Superior Court Judge Wayne Trockman recused all Vanderburgh Superior Court judges from the case.

A hearing scheduled for this week to determine whether Hamilton was making progress on his child support payments was canceled until the case can be assigned to a new judge.

Posted by Marcia Oddi on Wednesday, August 08, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Trial court ruling could void IMPD arrests

Jon Murray reports this morning in the Indianapolis Star:

A Marion Superior Court judge ruled today that a woman's arrest on drunken driving charges was illegal because the police officer had not been properly sworn in after the creation of Indianapolis Metropolitan Police Department.

The ruling likely means charges against Cheryl Oddi-Smith, 44, will be thrown out of court. She was arrested Jan. 15 after a three-car fender-bender on Thompson Road near Arlington Avenue and was charged with misdemeanor and felony counts of operating a vehicle while intoxicated.

But Judge Reuben Hill's ruling could have wider impact. He agreed with defense attorneys Annie Fierek and James Voyles that officer William J. Bueckers, who arrested Oddi-Smith, was not sworn in after the merger of the Indianapolis Police Department and the Marion County Sheriff's Department took effect Jan. 1.

Matthew Symons, the Marion County prosecutor's spokesman, said the Indiana attorney general's office already agreed to appeal the decision, which only immediately applies to Oddi-Smith's case. During a ceremony Jan. 2, top brass and many officers took the oath of office, but attendance at the swearing-in was voluntary.

"We hope the Court of Appeals will take this up and rule on this quickly," Symons said. * * *

Under the defense argument, [Deputy prosecutor Page Prentice argued in a written response], "all of the arrests since January 1, 2007 that were executed by the hundreds of officers who transferred into IMPD ... would be illegal and in violation of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution."

ILB - For the record, no relation.

Posted by Marcia Oddi on Wednesday, August 08, 2007
Posted to Indiana Courts

Tuesday, August 07, 2007

Ind. Decisions - Still more on: Appeal of Indiana voter ID case to U.S. Supreme Court

The State of Indiana has filed its response to the cert petition filed July 2nd in the Indiana voter ID case (Crawford v. Marion County Election Board). Richard Winger of Ballot Access News has made it available here. Thanks to Rick Hasen for the tip.

For background on the suit, start with this June 30th ILB entry.

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Indianapolis native Dr. Christine Montross on C-Span Q & A

Some of you may have watched C-SPAN's Q & A Sunday evening. If you missed it, you may watch it here via the C-SPAN website.

Brian Lamb interviewed Dr. Christine Montross, who discussed her new book, "Body of Work: Meditations on Mortality from the Human Anatomy Lab," about her experiences as a Brown University Medical School student and her work on cadavers.

It was quite a fascinating show. Dr. Montross mentioned she grew up in Indianapolis. I put two and two together and sure enough, from Wikipedia:

Eric Scott Montross (born September 23, 1971 in Indianapolis, Indiana) is a retired American professional basketball player in the NBA.

A native of Indiana, Montross is the oldest child of Scott Montross and Janice (Townsend) Montross, and has one sister, Christine.

Father Scott Montross is of course a well known Indianapolis attorney.

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Indiana Law

Ind. Law - Attorney Earl C. Townsend, Jr., dies at 92

The Indianapolis Star has a long obituary today on the death of long-time Indianapolis attorney :

Mr. Townsend worked as a trial lawyer with his brother, John, at the downtown Indianapolis law firm, Townsend and Townsend, which they established in 1940 upon their graduation from the University of Michigan Law School. He served as a senior partner there from 1941 to present.

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Indiana Law

Ind. Decisions - "Judge dismisses Anderson couple's lawsuit fighting dress code"

The AP reports:

A federal judge dismissed a lawsuit filed by a couple who said the Anderson school district's new dress code violated state guarantees of a free education and students' right to free expression.

U.S. District Judge John D. Tinder ruled in favor of Anderson Community Schools on Monday on all federal law claims and dismissed the First Amendment claim. The lawsuit filed by Laura and Scott Bell of Anderson, who represented themselves in court, will next go to Madison Circuit Court to deal with matters concerning state law.

"Their unhappiness with ACS's ultimate decision on the Dress Code does not translate into a viable legal claim," Tinder wrote in the 25-page ruling. He also wrote that the Bells' First Amendment claims were too vague to be of merit. * * *

The policy is similar to a new one in Indianapolis Public Schools. IPS schools began enforcing its dress code Monday, and the district reported that the change went smoothly at its eight year-round schools. Most students arrived in white, navy or red collared shirts and dressy slacks or shorts.

The ILB has posted a copy of Judge Tinder's 25-page ruling here.

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court grants transfer in three cases today

Transfers have been granted today by the Supreme Court in three cases:

Emma McPeek v. Charles McCardle (5/17/07), where the COA held "We hold, therefore, that where, as here, a couple has complied with Indiana’s requirements regarding marriage licenses, certificates, and solemnizations, their marriage is not void even if the ceremony took place in another state and did not comply with that state’s law or public policy." [See ILB entry here. ]

Randolph County v. Leanne Chamness (1/12/07), where the COA ruled: "Appellant-defendant Randolph County, Indiana (Randolph County), brings this interlocutory appeal from the trial court’s denial of Randolph County’s motion to transfer venue. In particular, it argues that Randolph County is the preferred venue pursuant to the Indiana Trial Rules. Finding that the injury complained of by appellee-plaintiff Leanne Chamness occurred in Randolph, rather than Delaware, County, we reverse the judgment of the trial court and order it to grant the motion to transfer venue." There was a dissent. [See ILB entry here - 4th decision.]

Querrey & Harrow v. Transcontinental Ins. Co. (2/19/07), where the COA ruled: "Defendants-Appellees raise numerous issues, which we consolidate as: I. Whether the trial court erred in holding that Indiana allows an excess insurer to bring an action for legal malpractice against an insured’s attorneys. II. Whether the trial court erred in holding there was a genuine issue of material fact as to whether an attorney-client relationship existed between the insured’s attorneys and CNA. III. Whether CNA’s legal malpractice action was timely filed. * * * We remand with instructions that the trial court enter summary judgment for Querry and Sanders." [See ILB entry here.]

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Indiana Transfer Lists

Ind. Courts - Reminder: The Indiana Judges Association is accepting nominations for its annual “Excellence in Public Information and Education" awards

Reminder. As noted in this July 3, 2007 entry, the Indiana Judges Association is accepting nominations for its annual awards for “Excellence in Public Information and Education.”

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.

The nomination forms for both awards are available here, in the upper right-hand corner.

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, August 07, 2007
Posted to Indiana Courts

Ind. Courts - New Officers Elected to Supreme Court Disciplinary Commission

See the Court's press release here.

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Indiana Courts

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

For publication opinions today (1):

In Matter of the Paternity of C.M.R., A Child Born Out of Wedlock, a 9-page opinion, Judge Crone writes:

Kari Schenkel brings this interlocutory appeal from the trial court’s order for the genetic testing of her and her two children to determine whether their deceased father, Joseph Miller, is the father of a third child, C.M.R. We vacate and remand.

Issue. We raise sua sponte the following dispositive issue: whether the order for genetic testing is void due to a failure to join necessary parties. * * *

On appeal, Schenkel argues for the first time in this proceeding that the paternity action is untimely pursuant to Indiana Code Section 31-14-5-5 * * *

We need not specifically address these assertions, however, because a cursory review of the record reveals that several necessary parties have not been joined in this paternity action. Indiana Code Section 31-14-5-6 provides that “[t]he child, the child’s mother, and each person alleged to be the father are necessary parties to each [paternity] action.” * * *

In sum, we conclude that the order for genetic testing is void due to a failure to join necessary parties. We therefore vacate the order and remand with instructions to determine which of the participants in this paternity action should be joined as parties and to allow those parties to be served and given an opportunity to appear, answer, and defend their interests as appropriate. Vacated and remanded.

NFP civil opinions today (6):

Termination of Parent-Child Relationship of J.H. and S.H.; Monique Hayes v. Marion County Department of Child Services (NFP)

Termination of the Parent-Child Relationship of J.P. & J.W.; Bret Walters v. Allen County Department of Child Services (NFP)

Termination of the Parent-Child Relationship of K.L.B.; Roger M. Bachynski and Elizabeth I. Ward v. Tippecanoe County Department of Child Services (NFP)

Termination of the Parent-Child Relationship A.A. & T.A.; Shantia Artis v. Marion County Department of Child Services (NFP)

Scott and Becky Heckendorf v. Rush-Air, LLC and Michael Karpy (NFP) - - Re judgment on the evidence: "As the trial court properly concluded, Heckendorf failed to establish that the premises were dangerous or that Rush-Air breached a duty of care to him. Therefore, the trial court did not err in granting judgment on the evidence for Rush-Air." Re admission of evidence: "Heckendorf argues that the trial court committed reversible error when it denied the motion to admit Aaron’s deposition transcript. Specifically, Heckendorf contends that the language of Indiana Trial Rule 32(A) expressly provides for the admission of the deposition. * * * [T]he use to which a party may put an adversary’s deposition must be one consistent with the Rules of Evidence. * * * Heckendorf’s brief articulates a series of what he perceives to be “relevant” facts that were stated in Aaron’s deposition. However, these facts were not relevant to Heckendorf’s claim: that Rush-Air breached a duty to Scott. Therefore, the trial court did not abuse its discretion when it denied Heckendorf’s motion to admit the deposition. Affirmed."

In James H. Higgason, Jr. v. Indiana Department of Correction (NFP), a 10-page opinion, Judge Vaidik writes:

Appellant, and veteran pro se litigant, James Higgason, Jr., appeals the trial court’s dismissal of his complaint pursuant to Indiana Code § 34-58-2-1. Higgason presents two issues for our review: (1) whether I.C. § 34-58-2-1 is unconstitutional, and (2) whether “[t]he Indiana General Assembly and the complete Indiana Judiciary are conspiring to suppress and/or quash all state prisoner litigation.” We affirm. * * *

The legislature’s clear intent and purpose for enacting I.C. § 34-58-2-1, and other related statutes, is to prohibit civil actions by excessively litigious offenders, i.e. those who have had three civil complaints dismissed as frivolous, meritless, etc., except in those instances where the offender can demonstrate an immediate danger of serious bodily injury. Contrary to Higgason’s claim, the limitation found in I.C. § 34-58-2-1 is applicable to small claims complaints. In support of his claim that the legislature and judiciary of this State are conspiring to quash prisoner litigation, Higgason provides us with eighteen handwritten pages detailing his personal plight while incarcerated and making unsupported accusations, none of which support his contention that a conspiracy exists. Other than a rambling diatribe, Higgason has not presented us with a cognizable argument. The judgment of the trial court is affirmed.

ROBB, J., concurs
SULLIVAN, Sr. J., concurs in part and dissents in part with separate opinion [which reads] I dissent for the reason that I respectfully disagree with Smith v. Ind. Dep’t of Corr., 853 N.E.2d 127 (Ind. Ct. App. 2006) insofar as it holds that the same considerations that apply to a determination that I.C. § 34-58-1-2 is constitutional also apply to a review of I.C. § 34-58-2-1.

Indiana Code §34-58-1-2 requires a determination by the trial court that the proposed civil complaint “(1) is frivolous; (2) is not a claim upon which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from liability for such relief.” Only after such a determination has been made may the proposed complaint be rejected.

With regard to I.C. § 34-58-2-1, however, an arbitrary establishment of three prior unsuccessful law suits dismissed under I.C. § 34-58-1-2 absolutely precludes the filing of a fourth lawsuit unless there is immediate danger of serious bodily injury. This is so no matter how meritorious the current proposed complaint is. For this reason, I find I.C. § 34-58-2-1 to be in serious constitutional question.

Be that as it may, Higgason has not demonstrated or asserted that his instant lawsuit has merit. Therefore, the trial court was within is prerogative to dismiss the complaint on that ground.

NFP criminal opinions today (6):

Tony Dewayne Spaw v. State of Indiana (NFP)

James Moore v. State of Indiana (NFP)

Antoine D. Hill v. State of Indiana (NFP)

Devin Carter v. State of Indiana (NFP)

Heath Rutheford v. State of Indiana (NFP)

Ronnie Pringle v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Randolph County Courthouse story continues

Joy Leiker writes in the Muncie Star-Press today:

WINCHESTER -- For the first time in two years, on Monday the Board of Randolph County Commissioners was given an estimate of the cost of expanding and renovating the 130-year-old courthouse.

The $7 million figure is likely to go up, said Ron Ross of Martin Riley, the architect and engineering firm hired by the county to oversee the project. Ross said the $7 million includes only construction costs.

But it's the first time since June 2005 estimates were presented to officials in the ongoing discussion surrounding how to repair the existing structure and make more room for county offices. At that time, estimates, which included everything from the addition of an annex to destruction of the current building and construction of a new structure, ranged from $4.7-9.6 million.

The current proposal -- which county commissioners haven't voted on yet -- calls for the construction of a two-story annex with a basement. In all, the current drawings look to nearly double the courthouse space, from 8,207 square feet to 14,302 square feet.

Here is a list of many earlier Randolph County Courthouse stories.

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Indiana Courts

Ind. Decisions - Still more on: Impact of Fort Wayne Disability Center ruling in other areas of state?

Updating this ILB entry from August 5th, Dick Kaukas of the Louisville Courier Journal reports today that:

The New Albany City Council authorized legal action last night to determine whether two no-bid contracts, one for $3.3 million a year to run the sewer system and the other for $507,000 annually for storm drainage operations, are valid.

Both contracts were awarded last month to the same company, Environmental Management Corp., or EMC, which has run the city sewers since 2001.

Ever since then, some council members have questioned the agreements because no bids were sought by either the sewer board or the storm water board, which awarded them.

The resolution passed last night authorized a suit to be filed in Floyd Circuit Court, asking a judge to give a "declaratory judgment" and determine the validity of the contracts. The vote was 5-3 with one abstention. * * *

Generally, those who favored filing the suits said there was no other way to determine whether the contracts stood up because the opinions of attorneys were so far apart on the subject.

Jerry Ulrich, the council's lawyer, said it seemed clear to him that bids were needed.

But Greg Fifer, lawyer for the sewer board, and Mike Summers, the storm board attorney, both said they believe that the contracts for "professional services" did not have to be bid and would hold up in court. * * *

Ulrich, the council attorney, said last week that his research indicated bids were required. A memo he wrote concluded that a contract for $75,000 or more had to be awarded to "the lowest responsible and responsive bidder."

But in a letter to Ulrich dated yesterday, Fifer said an Indiana court wrote in a 1980 case involving the Muncie schools that "public bidding laws are not applicable" to contracts for "professional services." [ILB - emphasis added]

According to Fifer's letter, the ruling said bids are not mandatory if the contract involves "aesthetic, business or technical judgment."

In those circumstances, the court said, "it is assumed that the legislature could not have intended the lowest price to be the ultimate determining factor" in awarding the contract.

ILB observation - The governing statutes may have changed since 1980.

Posted by Marcia Oddi on Tuesday, August 07, 2007
Posted to Indiana Decisions

Monday, August 06, 2007

Ind. Gov't. - Indiana Tax Facts

Tracy Warner, editorial page editor of the Fort Wayne Journal Gazette, is editor a new blog, Indiana Tax Facts, produced by the Journal Gazette to provide information and informed discussion about the property tax issues facing Indiana.

This is a welcome addition to the roll of Indiana blogs and has great possibilities. Warner is very knowledgable in this area; see for example his July 31 column, "Taxes can rise under flat rates." Tomorrow's column is previewed here, in the new blog.

Posted by Marcia Oddi on Monday, August 06, 2007
Posted to Indiana Government | Indiana Law

Ind. Decisions - 7th Circuit decides one Indiana case today

In Hendricks v. Compass Group, USA (Judge Sharp), a 7-page opinion, Judge Manion writes:

Susan Hendricks filed a complaint against her former employer, Compass Group, USA, Inc. (“Compass Group”), seeking wages to which she claimed entitlement under the Family Medical Leave Act and a collective bargaining agreement. The district court granted Compass Group summary judgment. Hendricks appeals, and we affirm. * * *

Hendricks filed suit seeking recovery of the $3.23 per hour pay differential between her wages as a utility driver and her wages while on light duty. She asserted that while on light duty she was entitled to receive the pay rate she had received as a utility driver under both the FMLA and the collective bargaining agreement (“CBA”). The district court granted Compass Group’s motion for summary judgment, concluding that FMLA leave is unpaid leave and that the CBA did not entitle Hendricks to payment of the wage rate differential. Hendricks appeals. * * *

The FMLA does not provide for paid leave nor does it dictate the wage rate for an employee to receive while on light duty under a workers’ compensation plan. Light duty also is not covered by Compass Group’s CBA. Accordingly, we AFFIRM the district court’s grant of summary judgment to Compass Group.

Posted by Marcia Oddi on Monday, August 06, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Ricky Scott v. State of Indiana, a 10-page opinion, Judge Robb writes:

Following a bench trial, Ricky Scott appeals his conviction of theft, a Class D felony. Scott raises the sole issue of whether sufficient evidence supports his conviction. Concluding that sufficient evidence exists, we affirm. * * *

It is well-established that “the uncorroborated testimony of one witness may be sufficient by itself to sustain a conviction on appeal.” Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999). We recognize that Stewart’s testimony was equivocal, as she stated that she was only about eighty percent sure that Scott was the man whom she saw. * * *

This evidence does not overwhelm us, and clearly no single fact by itself could constitute sufficient evidence. However, we recognize that “[t]he trial judge heard all of the evidence and observed the witnesses [and] was more able than we are to determine their credibility and determine the probative value of all the evidence before him.” Jordan, 432 N.E.2d at 12. We cannot reverse the trial court unless we conclude that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Drane, 867 N.E.2d at 146 (emphasis in original). Based on the current state of the law relating to eye-witness testimony8 and our standard of review involving challenges to the sufficiency of the evidence, we cannot say that no reasonable fact-finder could have found beyond a reasonable doubt that Scott committed this crime.

In Edward Kessel & Margaret Kessel v. State Automobile Mutual Insurance Company , an 11-page opinion, Judge Barnes writes:
The Kessels argue that the trial court improperly granted summary judgment in favor of State Auto based on the business exclusion of the homeowner’s policy because the policy is ambiguous. * * *

State Auto responds that summary judgment was proper because, by leasing the barn to Lapham for $1500.00 per month and allowing her to operate the stables from there, the Kessels were engaged in business conduct, and that the dog bite occurred in connection with that business. We agree with State Auto. The contract is not ambiguous because it is not susceptible to more than one reasonable interpretation. * * *

The insurance contract is unambiguous. Because Howell’s injuries occurred in connection with the business conducted from an insured location, State Auto is not required to defend and indemnify the Kessels under the terms of the policy.

NFP civil opinions today (2):

Jack DeMoss v. Patricia Quintana (NFP) - "DeMoss has not established that the trial court improperly issued a civil order for protection. We affirm."

In Robert P. Spruitt, et al. v. Marshall County, Indiana Plan Commission, et al. (NFP) Judge Barnes writes:

We grant the Neighbors’ petition for rehearing; however, we affirm our opinion in all regards. In their petition for rehearing, the Neighbors contend, “the Marshall County Plan Commission is not an ‘agency,’ and the procedural provisions of the AOPA therefore do not apply. This Court erred in applying the procedural requirements of AOPA, in particular, I.C. 4-21.5-5-10, to this case.”

Even if we were to assume that the Neighbors’ argument is correct, any error was invited. See In re Guardianship of Knepper, 856 N.E.2d 150, 156 (Ind. Ct. App. 2006) (“This court has determined that a party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct.”). In their reply brief, the Neighbors asserted, “There is no dispute that this Court should review the issue employing the standards set forth in the Administrative Orders and Procedures Act, specifically Ind. Code 4-21.5-5-14.” Based on this assertion, the Neighbors may not now claim we erred in applying AOPA in our review of their claims.

NFP criminal opinions today (3):

Darrell Taylor v. State of Indiana (NFP)

Alexander Michael Peebles v. State of Indiana (NFP)

Timothy Ray Creech v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 06, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals Court reduces former firefighter's sentence"

Reporting on the July 31st COA decision in Joshua Cunningham v. State of Indiana (NFP), Shawn McGrath of the Kokomo Herald Bulletin writes today in a long story that begins:

In a 2-to-1 opinion, the Indiana Court of Appeals halved a former firefighter’s sentence for child solicitation.

Madison Circuit Court Judge Fredrick Spencer sentenced Joshua Cunningham, 31, formerly of Chesterfield, to eight years in prison after Cunningham pleaded guilty to two counts of child solicitation, Class C and D felonies, and one count of dissemination of harmful materials to a minor, a Class D felony.

In June 2006, Cunningham exchanged explicit e-mails with what he thought was a 15-year-old girl, including sending the teen nude photos of himself. The teen girl, however, was actually an undercover Noblesville police officer. Cunningham pleaded guilty as charged, with the stipulation that the sentences run at the same time. Spencer sentenced Cunningham in October to the maximum for a Class C felony, eight years.

Cunningham has been a firefighter in Marion and Chesterfield, and Spencer cited his role as a public servant in giving him the harsh sentence. In his appeal, however, Cunningham argues that the mitigating factors in his case outweigh any aggravators, and he should have been given a lighter prison term.

Posted by Marcia Oddi on Monday, August 06, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Indy Star discovers Atkins guardianship/visitation rights dispute

The Indianapolis Star appears to be playing "catch-up" this week with stories it failed to cover in the past. Yesterday the Star discovered the BP permitting dispute in Lake County, giving it front-page play. (See ILB entry here.)

Today the Star is giving front-page coverage to a Court of Appeals decision from June 27th, the case of the Guardianship of Patrick Atkins; Brett Conrad v. Thomas Atkins and Jeanne Atkins.

Some quotes from the lengthy story by Melissa Patterson:

Brett Conrad spent more than half his life as Patrick Atkins' partner. For 25 years, the men shared bank accounts, apartments and eventually a home in Fishers.

But when Atkins, 47, fell seriously ill in 2005, Conrad faced what many gay Hoosiers consider a travesty: no law guaranteeing them the same rights as married couples to participate in care decisions for their ill partners.

Conrad, 47, spent much of the past two years trying to win guardianship of Atkins from Atkins' parents, Thomas and Jeanne of Carmel. Jeanne Atkins is quoted in court documents as saying she believes homosexuality is a sin and that she disapproves of the men's relationship. The parents have barred Conrad from visiting their now-disabled son in their home where he lives.

In June, Conrad won visitation rights from the Indiana Court of Appeals, but the court upheld an earlier Hamilton County ruling that left control of Atkins' care to his parents.

Gay-rights activists say the men's story illustrates the discrimination embedded in Indiana law and underscores why gay marriage should be allowed.

On the other side, opponents of same-sex marriage say the case could have been prevented if Conrad and Atkins had used existing laws that can give unmarried couples -- straight and gay -- the legal right to act on each other's behalf.

In its ruling, the appeals court recognized the human suffering at the center of the case:

"We are confronted here with the heartbreaking fracture of a family," the judges wrote in their ruling. "Brett and Patrick have spent 25 years together as life partners -- longer than Patrick lived at home with his parents -- and their future life together has been destroyed by Patrick's tragic medical condition and by the Atkinses' unwillingness to accept their son's lifestyle." * * *

Before falling ill, Atkins had been chief executive of his family's business, Atkins Elegant Desserts and Atkins Cheesecake. * * *

Jeanne Atkins testified at trial that it was "probably true" she would not let the men see each other unless required by law.

The record also shows that she told Conrad that if her son was going to return to life with his partner after recovering from his stroke, she would prefer he not recover at all.

In the bid for a rehearing, the Atkinses' lawyer denies Jeanne Atkins made the comment.

Apparently neither side is happy with the Court of Appeals result: the senior Atkins retain guardianship of their 47-year-old son, while his life-partner, Brett Conrad, has been granted visitation rights by the COA ruling. According to a sidebar to the story:
The Atkins' family attorney, David Richey, said he is in the process of filing an appeal of an appellate court ruling granting Brett Conrad visitation rights. The state Supreme Court could decide to hear the case or let the appellate court's decision stand.

Conrad's attorney, Jeffrey Dible, declined to comment on whether Conrad would appeal again.

The side-bar continues with a useful ABA list of the documents that should constitute "the bare-minimum protection couples should have to protect their property, health, assets and relationship."

Posted by Marcia Oddi on Monday, August 06, 2007
Posted to Ind. App.Ct. Decisions

Sunday, August 05, 2007

Environment - More on the U.S. Steel Gary Works/Grand Calumet permit, and related issues

The second part of this ILB entry from July 26th quoted from a story by Gitte Laasby in the Gary Post-Tribune that began:

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.
A July 29th P-T editorial about the draft permit concludes:
What we don't understand is the logic behind the Indiana Department of Environmental Management drafting a permit that would allow U.S. Steel 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 U.S. Steel is trying to clean up on orders of the U.S. Department of Justice.

We don't understand why regulators OK'd this oil and grease disposal plan in the first place and don't understand why it would be allowed to continue. Let's move the Grand Cal clean-up process forward and find another alternative for grease and oil disposal.

The 800,000 cubic yards of harmful sediment U.S. Steel has removed from the river is a good start, but the river won't see much improvement with a continued daily dose of oil and grease.

This pre-meeting P-T article from July 31st began "Environmentalists are gearing up for the public meeting on U.S. Steel Gary Works' new wastewater permit Wednesday." The results of the meeting are given in reports by both the P-T and the NWI Times. From the P-T story, dated 8/2/07:
Some attendees brought up the fact that U.S. Steel's previous permit expired in 1999. The permit was issued in 1994 and has been administratively extended. That means the company is allowed to continue to discharge what the old permit allows.

IDEM is required to renew permits every five years to reflect more recent, and usually stricter, limits for pollutants. State Rep. Charlie Brown, D-Gary, asked why it wasn't renewed earlier.

"I don't have a good excuse. It's been too long," Pigott admitted.

Kim Ferraro, attorney from the Hoosier Environmental Council, pointed out that IDEM had years to review the permit and asked for additional time to prepare comments to the permit. The deadline is set for Aug. 11.

Pigott asked attendees to make the request in writing and said he would confer with Commissioner Thomas Easterly about an extension of the comment period and possibly another public meeting.

An addendum to the story reports:
In response to a Post-Tribune request earlier this week, an IDEM spokesman said the agency still has 10 major and 29 minor backlogged permits that have been administratively extended. Among the major facilities are U.S. Steel, U.S. Steel Midwest, I.S.G. (formerly LTV steel), Mittal Steel (formerly Bethlehem Steel), Mittal Steel (formerly ISPAT Inland), G.E. Plastics, a landfill and two municipal treatment plants, in Indianapolis and Speedway. That's down from 276 backlogged permits in 2005.
From a story in the NWI Times on the same meeting by Dan Hinkel, which begins:
Wednesday night's public meeting on the renewal of a long-lapsed wastewater permit for U.S. Steel Gary Works turned into a complaint session over environmental management in Indiana. The Indiana Department of Environmental Management's controversial wastewater permit change for the BP Whiting Refinery surfaced a few times.

"After BP, everybody is pretty ticked off at your organization," said Paula Peeples, of Miller.

Valparaiso lawyer Kim Ferraro cited a study that panned Indiana's environmental quality.

"We're 48th out of 50, and that really sucks," Ferraro said.

The P-T's Gitte Laasby follows up on IDEM's permit backlog in this comprehensive August 5th story that should be read in full:
When an Indiana Department of Environmental Management official told attendees at the public meeting about U.S. Steel's new wastewater permit that the company's permit expired in 1999, sighs and shouts of shock billowed through the crowd.

"How does that happen that it's now seven or eight years old?" state Rep. Charlie Brown, D-Gary, burst out Wednesday night.

"I don't have a good excuse. It's been too long," IDEM Assistant Commissioner Bruno Pigott said. "It's been administratively extended, and administratively extended too long."

But U.S. Steel's permit is not the only one that's backlogged.

When IDEM's backlog was at its highest in 2005, the agency was 276 permits behind.

Today, the agency is down to 29 minor facilities plus 10 of the state's biggest polluters, including a handful in Northwest Indiana that are coming up for public comment. The permit listed for International Steel Group -- now Mittal Steel in East Chicago -- expired 16 years ago. The one for Mittal Steel Burns Harbor expired in 1993. The controversial permit for BP Products North America Inc., that IDEM just renewed expired Feb. 28, 1995.

Since then, IDEM has administratively extended the permits, which allows polluters to continue to discharge according to the old requirements.

For regular residents, that means beach closings and mercury releases may have been avoided if permits were updated to reflect tougher standards on mercury release, monitoring and temperature of the discharge, Tom Anderson, executive director of Save the Dunes, said. * * *

Had the permit for U.S. Steel Gary Works been renewed before it expired in 1999, conditions may have been better for the salmon in Grand Calumet River, he said. The old permit allows the company to discharge about 4 pounds of cyanide into the river per day regardless of the season. The permit that's currently up for public comment requires the company to cut cyanide discharges by 20 percent while salmon are present in the river.

Lee Botts, environmental activist from Miller, said administrative extensions also go against the intent of the Clean Water Act to work toward reducing pollution over time.

"So the law says that the water quality standards should be reviewed very three years, and that the discharge permits should be reviewed and renewed every five years with the goal of reducing the amount that's released," Botts said. "When the permits are not renewed, technically that means the discharger can continue to discharge at the rate allowed by the permit. From the discharger's perspective, when the permit is not renewed, not having it renewed means they're living with uncertainty what the future requirements would be."

The Clean Water Act also asks environmental regulators to consider advances in technology to remove pollution when they set discharge limits.

"If we would have had more attention on both the deadlines and the technology forcing requirements of the Clean Water Act, I think we would have had cleaner water," Anderson said. * * *

The EPA told states to process permits for major facilities first, setting the deadline for 90 percent of major permits at the end of 2001. For minor ones, the end of 2004.

IDEM prioritized differently, starting with the simpler permits.

"We had a huge backlog so the harder ones got to sit on the back burner," said Steve Roush, IDEM policy analyst and permit writer. "The folks above us wanted the numbers down. We've got all the steel mills up in northern Indiana" yet to go.

Finally, here is an Aug. 2nd column in the P-T by their biweekly columnist, Michael Goodson. The headline: "There was a time we accepted polluting air, lake." Goodson must have grown up in "The Region" about the same time as I did. Some quotes from the end of the piece (but read the whole thing), following a description of how as a kid he had to hold his breath when passing through East Chicago/Whiting:
What could be worse? How about giving BP permission to increase dumping of sediment and ammonia into the lake, and entertaining U.S. Steel's request to continue its dumping in the Grand Calumet River? The Indiana Department of Environmental Management didn't see a problem with BP expanding its production capacity without expanding its water-treatment facility.

The ghost of James G. Watt strikes again. As secretary of the Interior, he was the Reagan administration's fox in charge of the environmental henhouse. Watt called for more mining, drilling and logging.

Well, Indiana has his clone. Thomas Easterly is his name, and he was appointed by Gov. Mitch Daniels because he was good at developing partnerships between industry and environmentalists. His top priority, though, is industry -- not the environment. After all, there will be 80 new jobs at BP, and its request slipped quietly through the approval process, just as Daniels wanted.

Now, however, outraged Illinois politicians are up in arms. Illinois congressmen have introduced resolutions criticizing Indiana and BP. Maybe with that kind of clout, Indiana will roll back this attack on our fragile environment. Maybe it can do something about this property tax problem, too.

Maybe I'd better not hold my breath.

Posted by Marcia Oddi on Sunday, August 05, 2007
Posted to Environment

Ind. Decisions - Yet more on: Impact of Fort Wayne Disability Center ruling in other areas of state?

"No-bid contracts split council: New Albany debates 2 agreements' validity" is the headline to a story today by Dick Kaukas in the Louisville Courier-Journal. Some quotes:

Members of the New Albany City Council will be asked tomorrow to authorize litigation to determine if a $3.3 million, no-bid contract awarded by the sewer board and another for $507,000 awarded by the storm water board are valid.

Both contracts went to Environmental Management Corp., the company that has operated the New Albany sewers since 2001.

The issue of whether bids should have been sought for the contracts has split the council.

Three members, Jeff Gahan, Dan Coffey and Bill Schmidt, met as a council committee considering no-bid contracts Friday afternoon, and all indicated they think bids should have been sought for both agreements.

Jerry Ulrich, the council's attorney, told the three that his review of state statutes has led him to that same conclusion.

If a resolution authorizing a lawsuit to determine the validity of the contracts is adopted at tomorrow night's council meeting, Ulrich said he would file a request for a judicial determination in Floyd Circuit Court. * * *

[Council member Larry] Kochert said he believes it's well established that contracts for professional services do not have to be bid. He described the council members who are opposing the agreement with EMC as "misinformed."

Several people with knowledge of contract practices around the state said yesterday that agreements for services apparently are exempt from bidding requirements.

David Bottorff, executive director of the Association of Indiana Counties, said that was his understanding.

So did Charles Pride, office supervisor for the Indiana State Board of Accounts.

But Pride added that the details of an agreement would be crucial in determining if bidding was required. And he pointed out that one section of state law requires "requests for proposals" for some management agreements.

Rick Fox, Floyd County attorney, also said he believes professional-services contracts are exempt from bidding. The question, he said, would be whether a particular agreement could accurately be described as covering only such services.

There is no mention in the story of the July 16th Indiana COA decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al, involving the now-closed Fort Wayne Disability Center (see initial ILB entry here, July 17th entry here, July 20th entry here) , but the ruling surely must be part of the discussion, as it has been in two recent stories out of Bloomington re a contract with a private company to take over operation of three public garages (see ILB entries from 8/1/07 and 8/2/07), as well as a story out of Fort Wayne involving a contract to have a private company manage the city-owned baseball stadium (see 7/20/07 ILB entry here).

Posted by Marcia Oddi on Sunday, August 05, 2007
Posted to Indiana Decisions

Environment - The outrage over Indiana's pollution of Lake Michigan continues

The outcry began three weeks ago, following a front-page story in the Chicago Tribune (see this ILB entry of that date). Rather than quieting, the outrage appears to be mounting.

The Indianapolis Star today, finally, has weighed in on the story, with this front-page report by Kristina Buchthal, headlined "Chicago cries foul over Indiana wastewater: State has said oil refinery can pour more pollutants into Lake Michigan." Some quotes:

Since word broke that BP America's Whiting Refinery had received a permit to release more waste into Lake Michigan, Chicagoans have been railing at BP and the Indiana Department of Environmental Management, which issued the permit.

"We get our water from Lake Michigan, we swim in its beaches, we eat fish out of the lake," said Sadhu Johnston, commissioner for the city of Chicago's Department of the Environment. "We were not approached by BP or IDEM. We are a big neighbor to the north, and I would have hoped we'd have been reached out to."

While Chicago has led the way, officials from Illinois, Wisconsin and Michigan have joined the protest. * * *

"We've got thousands of jobs that will be at risk if it doesn't go forward," [Indiana Governor Mitch] Daniels told the Gary Post-Tribune last month. "And I would only point out that people who are upset about $3 gas now know why it's that high." * * *

Despite the protests, a spokeswoman for IDEM said the agency doesn't have plans to reconsider issuing the permit. She said the substances are not "sludge," as critics maintain.

"Sludge has a very specific environmental definition. Sludge is something removed from wastewater in the treatment process and does not come back in contact with the water," said Sandra Flum, a spokeswoman for IDEM.

"There is some perception that we have given BP a break or been more lenient with them. That is simply not true."

[U.S. Rep. Mark Kirk, a Democrat [ILB - no, a Republican - see here] whose district includes 10 communities on Illinois' north shore of Lake Michigan,] said Indiana and BP have earned their reputation in Chicago as polluters, arguing that Indiana has approved the permit because "they don't drink Lake Michigan water." He said federal regulators should remove Indiana's authority to approve such a permit.

David Ullrich, executive director of the Great Lakes and St. Lawrence Cities Initiative, an advocacy group, also said IDEM has too much power in the permit decision.

"IDEM is saying everything is safe, but I don't think they can say that with that degree of confidence," Ullrich said. "The fundamental problem with what BP is doing is that they are going to increase the pollution load to Lake Michigan and, more broadly, to the Great Lakes." * * *

Landlocked residents of Central Indiana just don't have an appreciation for the importance of keeping Lake Michigan clean, said Jack Darin, director of the Illinois chapter of the Sierra Club, an environmental group.

"Where does Indianapolis get its drinking water from? It's not the Great Lakes, and that's what is at the heart of the matter," Darin said.

"People remember when Lake Michigan was polluted and not a reliable source of drinking water. Everyone around the Great Lakes is doing everything they can do to comply with tougher standards," he said. "And it strikes people as odd -- if not infuriating -- that one of the richest corporations in the world isn't willing to do what it takes to install the best possible pollution controls to protect our drinking water."

The NY Times beat the Star to the punch, with a major report on the BP story on July 31st, complete with photos of children frolicking in the waters of Lake Michigan, headlined "Chicagoans Protest as Indiana Lets a Refinery Add to Lake Pollution."

The Gary Post-Tribune has taken the lead in reporting the story in Indiana. The ILB has posted quotes from many of the P-T stories in earlier entries, all reported by P-T staff writer Gitte Laasby. Here is another, from Aug. 1st, headed "Environmentalists contend BP answers contradictory." It concludes with this:

Tom Anderson, executive director of Save the Dunes, said BP's own experts indicated more treatment was possible when they told environmentalists and state officials that additional treatment would take 12,000 square feet of space for larger wastewater vessels.

"They told us they needed more space for larger vessels - for denitrification. It was not a technical issue. This seems to be a contradiction. According to what they told us, it was a money issue because they couldn't find the space," Anderson said. "I don't understand why they can say it's not feasible to treat ammonia. It's very feasible to treat ammonia. That's according to their own engineers."

Anderson said that's the spin the company and government officials are putting on the issue. He said people are outraged because the company is allowed to increase its discharges to Lake Michigan after efforts to clean up the lake --regardless what is discharged.

"They can explain it away and say, 'The process is this' but it comes down to, are you adding more pollution to the lake? You're going to benefit, we're going to lose. People are saying, 'You can't do this anymore,' " Anderson said.

According to IDEM Commissioner Tom Easterly:
[T]he recent controversy over a discharge permit issued to the BP Amoco refinery in Whiting has prompted other people whose permits were in the process of being renewed to ask that they be put on hold.

That’s preventing negotiations to reduce or modify discharges from taking place.

IDEM staff even fear it’s becoming impossible to issue a permit in Northwest Indiana, Easterly added, after officials in the State of Illinois, especially Chicago, are fighting both the BP permit and Indiana’s attempt to have a federal agency redesignate the air quality in Lake and Porter counties to “attainment".

That quote is from a story by Paulene Poparad in the 7/28/07 Chesterton Tribune. Chesterton is known as "The gateway to the Dunes." A letter to the paper dated July 31st includes this quote:
I have not heard anyone (in spite of our governor’s assertions) say that BP should not build their new plant, which would increase our nation’s oil supplies and provide jobs. What people are calling for is a clean plant - no increase of certain pollutants by 35-55%. Legal or not, these discharges will damage the Lake’s ecosystem and directly conflict with Indiana’s anti-degradation policies for protecting Lake Michigan.

Mr. Easterly, Indiana Dept. of Environmental Management Commissioner, tells us the firestorm surrounding BP’s permit has done “damage” throughout northwest Indiana. Other companies are halting their permit application processes because they don’t want to go through similar criticism.

How is this damage? Industry in northwest Indiana inflicted 50-75 years of unbridled pollution on our air, land, and water until the 1960s.

Today, water permits are supposed to be reviewed by IDEM every five years. BP’s permit had not been reviewed since 1989. Most other lakefront industries still haven't been.

Maybe the “damage” is a more informed, proactive public no longer willing to be dumped on by industry.

It’s a shame that BP’s permit was not dissected in the media prior to its issuance. But the public is engaged now, and I hope the “damage” will be more media coverage and public scrutiny of industrial discharges permits - during their review.

I’m not asking BP to shut down, but to use the latest technology in pollution controls just as they plan to use the latest in production methods.

Here is another letter, from Aug. 3rd, headed "BP should tell the whole story on Lake Michigan project."

Northwest Indiana's other big paper, the NWI Times, has moderated its reporting on the BP water permit. See this story, a retrospective by Andrea Holecek dated July 29th, headed "From hero to goat." An editorial from July 29th is headed "BP argument shows
amazing lack of logic,"
and ends with "If ever there was an issue clouded by media reporting, this is it. It’s time for the media and the politicians to get the facts straight and stop sensationalizing. It’s time for BP to get a fair shake."

The NWI Times has, however, had several stories on a related issue, where BP has run afoul of local building permit requirements, building a major "construction command center without city permission," according to a July 25th story, noted at the end of this ILB entry from that date. This Aug. 4th report from Steve Zabroski continues this important but perhaps overlooked story:

HAMMOND | City officials want answers to some tough questions before giving BP North America a green light to begin the first phase of its planned $3.8 billion refinery expansion.

A July 25 inspection of the trailer complex that would serve as command center for the four-year project to increase refinery operations in East Chicago and Whiting, as well as Hammond, found building and health code violations -- including raw sewage accumulating under some of the trailers from a leaking septic system at the site.

Refinery officials assembled the trailer complex without seeking required city permits, leading the Hammond Redevelopment Commission to withhold its approval for the center last month.

Concerns over BP's compliance with city health and safety regulations also led the Board of Zoning Appeals to postpone any approval of a $110 million asphalt production facility planned for North Hammond, which company officials said was the first step in the project to bring Canadian crude oil to its refinery. * * *

Of particular concern are plans to move the refinery's wastewater outfall -- recently approved by Indiana regulators to discharge increased levels of ammonia and particulate material -- 3,520 feet closer to Hammond's drinking water intake in Lake Michigan. [ILB emphasis]

Besides Hammond, the intake provides water for Dyer, Griffith and Munster, in addition to 10 communities in Illinois.

"The city was not given any information about the change in outfall location," Wielgos said.

The city is asking for "all documents, plans, drawings, and the supporting studies, calculations, assumptions and any other documents submitted to the Indiana Department of Environmental Management" for approval of the new water discharge permit.

Officials also want copies of all air emission permits, whether approved or pending, for the reconfigured refinery and a list of contaminants allowed to be emitted, along with their maximum concentrations.

Mercury is another BP permit issue. The Chicago Tribune led the way here too, with a lengthy July 27th story by Michael Hawthorne reporting:
Although the federal government ordered states more than a decade ago to dramatically limit mercury discharges into the Great Lakes, the BP refinery in northwest Indiana will be allowed to continue pouring small amounts of the toxic metal into Lake Michigan for at least another five years.

A little-noticed exemption in BP's controversial new state water permit gives the oil company until 2012 to meet strict federal limits on mercury discharges. In documents, Indiana regulators predict the refinery won't be able to comply and will ask to continue polluting after that date. * * *

The BP refinery and a power plant in nearby Chesterton, Ind. [the ILB believes that is the Bailly powerplant] , are the only two industrial polluters that still dump mercury directly into Lake Michigan, federal records show. Under standards adopted by the U.S. Environmental Protection Agency in 1995, BP's annual discharge of the metal should be reduced to 8/100th of a pound. * * *

"With one permit, this company and this state are undoing years of work to keep pollution out of our Great Lakes," said U.S. Rep. Rahm Emanuel (D-Ill.), co-sponsor of a resolution overwhelmingly approved by the House this week that condemned BP's plans. "Nothing surprises me at this point about what Indiana is allowing them to do."

The story is spun differently in this NWI Times story of July 28th, that begins:
BP Whiting and environmental regulators say the Whiting refinery's new wastewater permit will result in less mercury being dumped into the lake by 2012.

"Over the next five years, BP will be working with regulators to make our small mercury discharges even smaller," said BP spokesman Thomas Keilman, on Friday. "We do not expect the modernization project or the processing of heavy Canadian crude to cause any net increase in mercury levels in our Whiting effluent."

The Fort Wayne Journal Gazette had an editorial August 3rd on Lake mercury. Some quotes:
Indiana is being an incredibly bad neighbor.

Despite protests from the state’s neighbors, Gov. Mitch Daniels remains unapologetic about a decision from state regulators allowing an Indiana refinery to increase the amount of pollution it dumps into Lake Michigan.

Concerns about a permit the Indiana Department of Environmental Management issued to the BP refinery in Whiting continue to grow, with the U.S. House voting 387 to 26 for a resolution urging Indiana to reconsider. Much of the opposition concerned increasing the amounts of ammonia and silt the refinery can send to the lake.

Now, concerns are rightly being raised about the portion of the recent permit that allows the refinery to discharge more mercury into the water than federal regulations allow.

In 1995, the federal Environmental Protection Agency ordered states to severely limit mercury discharges into the Great Lakes – and for good reason. Mercury is a dangerous neurotoxin. People can be harmed by eating fish contaminated with high levels of mercury. But the permit gives BP until 2012 to meet the federal mercury limits, effectively giving the refinery an extra five years to exceed the limit.

The federal mercury limit is 1.3 ounces per year. According to the EPA Toxic Release Inventory, BP releases about 3 pounds of mercury into the lake each year.

The inventory also shows that the refinery is the biggest industrial source of lead, nickel and ammonia pollution going into Lake Michigan. And it appears that state regulators don’t think BP will be able to toe the mercury line by 2012 and expect the company to ask for an extension to the mercury rule exemption. * * *

In addition to the congressional resolution, many thousands of people have signed petitions protesting the permit decision from Indiana regulators. But IDEM and the governor appear unmoved, giving neighbors in Illinois, Wisconsin and Michigan every right to kick us out of the water.

The J-G editorial also notes that "Air pollution causes the vast majority of mercury pollution in the Great Lakes." And in fact BP is also asking for an air variance. An Aug. 1st Gary P-T story headed "IDEM postpones hearing on air variance for BP" reports:
The Indiana Department of Environmental Management has cancelled the public hearing about BP's air variance scheduled for Thursday, Aug. 9, in Merrillville.

"We did postpone the meeting. It will be rescheduled when we make arrangements for a time and location," said Amy Hartsock from IDEM.

"This permit hearing has to do with the variance and the commissioner's order. I think we recognize that people may think it has something to do with the wastewater permit or the air permit that's currently under review. We want to make sure folks know" that.

Finally, for now, this story from the Aug. 2nd NWI Times. Written by Christine Kraly, the story is headed "BP holding steady." Some quotes:
WASHINGTON | In the face of mounting criticism, BP is "moving ahead" with its Whiting expansion plans and use of a controversial wastewater discharge permit, the company told lawmakers Wednesday.

BP executives, including Bob Malone, chairman and president of BP America, met with members of Indiana's congressional delegation and Gov. Mitch Daniels' staff in Washington on Wednesday. * * *

Keilman said BP is not halting its plans for the Whiting plant, noting that its permit is valid.

"It's important that our congressional delegation understands that the process was an open process, with regards to public participation, and that BP followed all the regulatory requirements," [BP spokesman Tom Keilman] said.

The company is seeking approval for the first step in the project -- construction of a $110 million asphalt facility -- from Hammond's Board of Zoning Appeals at the end of the month.

Note that the proposed asphalt plant expansion and the concerns of the Hammond Board of Zoning Appeals was mentioned earlier in this entry.

Posted by Marcia Oddi on Sunday, August 05, 2007
Posted to Environment

Saturday, August 04, 2007

Ind. Gov't - Indy Star opines on ethics and the General Assembly

From an editorial today in the Indianapolis Star:

Let's hope the ethics reform legislation passed so decisively by Congress inspires similar action by Indiana's General Assembly. The proliferation of highly paid lobbyists in Washington and Indianapolis has created the perception that the interests of average citizens come in second to those able to buy political clout. * * *

In Indianapolis, where the state legislature is employed on a part-time basis, there are 629 registered lobbyists, or about six for every representative.

Congress didn't intend to eliminate lobbying, just to set limits. Lobbying is a traditional part of American politics, and it is available to all citizens. The limits were prompted by a series of scandals involving lobbyists and representatives.

Some of the federal reform -- limits on use of private jets, for example -- might not be relevant to Indiana state government. But many of the other reforms would help improve the image of the Statehouse, including:

» A ban on lobbyist gifts to legislators. The state should be strict and avoid the loopholes in the congressional ethics package. Last year, lobbyists spent almost $2 million wining, dining and providing gifts to Indiana legislators. In Indiana, gifts are allowed as long as lobbyists report them.

» Representatives who leave Congress will have to wait two years before becoming registered lobbyists. In Indiana, there is no wait. Legislators can immediately cash in on their connections, as several have done recently.

» Pet projects will be clearly "earmarked" in Congress. Coming up with ways to point out bad legislation being slipped into the process would also benefit the Statehouse, too.

Other provisions impose tougher guidelines on campaign donations and the disclosure of spending by lobbyists.

Posted by Marcia Oddi on Saturday, August 04, 2007
Posted to Indiana Government | Legislative Benefits

Environment - Indianpolis Business Journal writes about "greenwashing"

An interesting article by Chris O’Malley of the Indianapolis Business Journal headed "It’s not easy being GREEN: Experts say it’s tough to pull the (recycled) wool over eyes of those wary of ‘greenwashing’" reports:

With the gospel of global warming raising the call for “green-ness” to a near-hysterical pitch, there’s a growing sense that creating an earth-friendly image will bring companies a strategic advantage.

Yet the contradictions between what companies do day in and day out and what they do to improve the environment can create a marketing minefield.

“Companies are grappling with this right now,” said John W. Maxwell, professor of business economics and public policy at Indiana University-Bloomington.

Maxwell, in a study co-authored with University of Michigan researcher Thomas P. Lyon, said companies “are often surprisingly hesitant” to mention their environmentally friendly actions, for fear of being dismissed as “greenwashers” by some environmental groups.

He pointed, for example, to the “Greenwash Academy Awards” at the Earth Summit in Johannesburg, South Africa, in recent years. Among the winners was petroleum giant BP, for its “beyond petroleum rebranding campaign.” Besides appearing to be wringing its hands worrying about motorists, BP pointed out how it is a major maker of solar cells and how it uses them atop the canopies of its service stations to power lights and refrigerators.

That’s the same BP that lately has been under fire from environmentalists for seeking a permit from the Indiana Department of Environmental Management to dump more treated wastewater into Lake Michigan from its Whiting refinery.

“All that PR spin and investment—was it actually a win for them or did it hold them up for further scrutiny?” asked Marc Zucker, CEO of Synergy Marketing Group in Indianapolis.

Posted by Marcia Oddi on Saturday, August 04, 2007
Posted to Environment

Law - "Homeowners Insurers' Secret Tactics Cheat Fire Victims, Hike Profits"

Bloomberg.com has a very long story by David Dietz and Darrell Preston revealing the shoddy practices of the home insurance industry. Some quotes from the lengthy and detailed report:

``It was devastating; I stood there and cried,'' says Tunnell, 42, who teaches accounting at San Diego City College. ``I felt absolutely abandoned.''

Tunnell joined thousands of people in the U.S. who already knew a secret about the insurance industry: When there's a disaster, the companies homeowners count on to protect them from financial ruin routinely pay less than what policies promise.

Insurers often pay 30-60 percent of the cost of rebuilding a damaged home -- even when carriers assure homeowners they're fully covered, thousands of complaints with state insurance departments and civil court cases show.

Paying out less to victims of catastrophes has helped produce record profits. In the past 12 years, insurance company net income has soared -- even in the wake of Hurricane Katrina, the worst natural disaster in U.S. history. * * *

Property insurers systematically deny and reduce their policyholders' claims, according to court records in California, Florida, Illinois, Mississippi, New Hampshire and Tennessee.

The insurance companies routinely refuse to pay market prices for homes and replacement contents, they use computer programs to cut payouts, they change policy coverage with no clear explanation, they ignore or alter engineering reports, and they sometimes ask their adjusters to lie to customers, court records and interviews with former employees and state regulators show. * * *

Reducing payouts is just one way the industry has improved profits.

Carriers have also raised premiums and withdrawn from storm-plagued areas such as the Gulf Coast of the U.S. and parts of Long Island, New York -- to lower costs and increase income, says Amy Bach, executive director of United Policyholders, a San Francisco-based group that advises consumers on insurance claims.

``What this says is that the industry has been raking in spectacular profits while they're getting more and more audacious in their tactics,'' she says.

Posted by Marcia Oddi on Saturday, August 04, 2007
Posted to General Law Related

Ind. Law - A convicted sex offender in White County is challenging new state law

Sophia Voravong of the Lafayette Journal Courier reports today in a story that begins:

MONTICELLO -- A convicted sex offender in White County is challenging a new state law that is forcing him to move from the home he chose so his children could be near their school.

The man identified only as John A. Doe in court documents is following in the footsteps of a similar offender against children who recently filed a petition in Tippecanoe County, asking that he no longer be considered a threat to kids.

White County's John Doe was told to move by the end of July.

"He needs relief, he needs help," John T. Million, Doe's attorney, said Friday afternoon. "He's lived in his house for 15 years and all of a sudden, the act of living in his home is a Class D felony? Boom -- he gets a letter that he has to move."

A list of some earlier, related ILB entries may be found here.

Posted by Marcia Oddi on Saturday, August 04, 2007
Posted to Indiana Law

Ind. Law - More on: Lake election board reversed by court on party-change issue

Updating this ILB entry from Aug. 3rd, the Gary Post-Tribune editorializes today:

Highland residents got the justice they deserved this week when a judge ruled a town councilman can continue his quest to seek election as a member of a political coalition he helped found.

Mark Herak broke away from Republicans this spring to form the Highland First Party, citing several town needs he believes aren't being met by Democrats or the GOP. His plan was immediately challenged by Lake County Republican leadership, which took the case to the Election Board. That body ruled to bar Herak from the ballot, saying he could not renounce his party membership and retain the seat he won as a Republican.

But that ruling, the Lake County judge pointed out, neglected a little matter called state law. Under the Indiana Constitution, Herak is, indeed, free to change his party affiliation without stepping down from public office.

It's this issue, we believe, that goes beyond Highland town politics and cuts to the heart of the right of individuals to free political expression.

When an elected leader believes it's time to raise a new voice on the public square, the law rightly allows voters -- not party leadership -- to decide if that's a voice worth heeding.

Posted by Marcia Oddi on Saturday, August 04, 2007
Posted to Indiana Law

Ind. Law - Severe impact of 2006 wine-shipping law changes on small, family-owned wineries

Dan and Krista Stockman, "wine lovers – not wine experts – and reporters" at The Fort Wayne Journal Gazette, write today in their weekly column "Uncorked," that "Shipping laws hurt wineries." This is a very good overview of how we got where we are now in Indiana, and with what result. Some quotes from the long column:

So how has this wonderful “compromise” worked out?

It hasn’t gone well for most wineries.

The state’s largest winery, Oliver Winery in Bloomington, lost 75 percent of its shipping market. That’s a pretty sizable chunk for the employee-owned winery.

“It’s just such a nightmare,” Bill Oliver said of the new regulations. “They make it so inconvenient it just isn’t practical.”

Other wineries have also suffered, with one paying the ultimate price: Terre Vin Winery, in Rockville north of Terre Haute, closed this year, citing the new regulations as being too much for a small staff.

Lawmakers love to talk about supporting family businesses, farms, Indiana products and agritourism, but the shipping debate showed they were much more willing to listen to big-money distributors. The law was called a “compromise,” but it’s hard to see it that way when the wholesalers essentially held a gun to the head of small wineries to win their agreement.

Many winemakers we talked to were disgusted by the whole thing, and especially by the stench of money in the debate: The Institute for Money and Politics’ Web site, www.followthemoney.org, shows contributions by “Beer, Wine & Liquor” special interests in Indiana made more than $300,000 in contributions from 41 different political action groups, businesses and business owners in that industry just in 2006.

Small, family-owned wineries will never be able to match those kinds of contributions – as if that should matter – to get lawmakers’ attention, so they have to do what they can.

“None of us – none of us – can afford to not be there and put a face on it and show who we are,” Winzerwald’s Dan Adams said. “Where the legislature’s concerned, anything’s possible.”

Adams said they constantly get calls from people who have had Winzerwald’s wines at a friend’s house and want to order some, but the winery has to turn them down.

“They say, ‘We had it at Bob and Jane’s, can we get some of it?’ ” Adams said. But if they haven’t been to the winery in person – and have the paperwork to prove it – the answer has to be no.

For many earlier ILB entries on the wine shipping issue, check this list.

Among the entries is this one from April 4, 2007, headed "Liquor wholesalers launch attack on IU Law professor." The ILB wonders what is the status of (to quote Leslie Stedman Weidenbener 's story of April 4th in the LCJ) Indiana University's "internal investigation to determine if one of its law professors improperly used state resources or time for lawsuits aimed at allowing winery shipments across the country." More:

"I think it's totally inappropriate for a state employee to be pursuing things on behalf of an outside client and trying to get paid on the state taxpayers' nickel to do it," said Senate President Pro Tem David Long, R-Fort Wayne. * * * [who] told IU School of Law Dean Lauren Robel last year he was concerned about Tanford's actions and had questions about whether he was working on state time.

Posted by Marcia Oddi on Saturday, August 04, 2007
Posted to Indiana Law

Friday, August 03, 2007

Ind. Decisions - Federal Judge McKinney denies injunction in nerve agent shipping case [Updated]

Updating these ILB entries from July 16th and July 19th, re the hearing by U.S. District Judge Larry McKinney in Indianapolis, where, to quote the July 16th AP story:

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.
Judge McKinney this afternoon has denied the plaintiffs' motion to grant the preliminary injunction. The decision concludes:
The Court concludes on the record before it that Plaintiffs have failed to show a likelihood of success on the merits of their claims that Defendants’ shipment of CVXH from Newport, Indiana, to Port Arthur, Texas, and subsequent incineration of CVXH at Veolia violates NEPA, RCRA, the DAA, or Indiana and Texas RCRA-based statutes. Because the Court concludes that Plaintiffs cannot make the requisite showing on this factor, the Court need not discuss the other factors for a preliminary injunction because a party must satisfy all three threshold requirements before a Court will balance the interests of the parties and weigh the impact on public interest. See Cooper, 196 F.3d at 813. For this reason, Plaintiffs’ Motion for Preliminary Injunction must be DENIED.
The ILB has posted the 57-page ruling in the case of The Sierra Club, et al v. Sec. of Defense, et al, here.

[Updated 8/4/07] Here is AP coverage of federal Judge McKinney's action, by Charles Wilson. Some quotes:

A federal judge on Friday denied environmentalists' request that he block truck shipments of nerve agent waste from western Indiana's Newport Chemical Depot to an incinerator in Texas.

Environmental groups failed to make their case that the Army did not fully consider the risks involved in moving the neutralized VX nerve agent waste across some 900 miles of highways in the nation's midsection, U.S. District Judge Larry McKinney wrote in the 57-page ruling.

He also ruled the Army had considered the scientific evidence before concluding that the deadly VX would not reform in the waste called hydrolysate that is the byproduct of the neutralization process.

Posted by Marcia Oddi on Friday, August 03, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

For publication opinions today (1):

In Bobby Lee Turner, Jr. v. State of Indiana , a 9-page opinion involving the doctrine of amelioration, the issue is: Whether the trial court properly sentenced Turner for nonsupport of a dependent child, a Class C felony, Ind. Code § 35-46-1-5(a). Judge Riley concludes:

For the following reasons, we finally conclude that Turner – as a defendant charged when the old statute was in effect and sentenced when the new statute was in effect – was entitled to take advantage of the more lenient sentencing available under the new statute: (1) the new statute contains no saving clause to exclude the doctrine of amelioration from applying; (2) the new statute does have an ameliorative effect in Turner’s case; and (3) the full intent of the legislature cannot be determined, and therefore we err on the side of giving Turner the advantage; and (4) Turner was charged less than one year before the new statute took effect; and furthermore, even if his trial had not been continued for more than five years, he nonetheless would have been convicted after the new statute’s effective date. Consequently, we conclude that the trial court erred in sentencing Turner for nonsupport of a dependent child as a Class C felony. As a result, we remand this case to the trial court with instructions to sentence Turner in accordance with a Class D felony.

CONCLUSION Based on the foregoing, we conclude the trial court improperly sentenced Turner. Due to the application of the doctrine of amelioration, Turner’s sentence should reflect that of a Class D felony rather than a Class C felony. Reversed and remanded with instructions to resentence Turner under the amended version of I.C. § 35-46-1-5(a).

NFP civil opinions today (2):

In Dennis Chavez v. Victoria (Chavez) Mason (NFP), a 30-page opinion, Judge Barnes concludes:

The trial court erred in ordering Dennis to pay for one-half of K.C.’s private school education without making the necessary findings that would support such an order. We remand for further consideration of that issue. We also remand for further consideration of Dennis’s motion for attorney fees as sanctions for Victoria’s alleged violations of discovery orders. We reverse outright the finding that Dennis was in arrears in his child support obligation and the accompanying contempt finding. We affirm outright the judgment in favor of Victoria with respect to the Gillette retirement account, subject to a slight recalculation of the amount owed. We also affirm outright the trial court’s refusal to hold Victoria in contempt and to appoint a “parenting time coordinator” for the parties. Affirmed in part, reversed in part, and remanded.

NAJAM, J., concurs. RILEY, J., concurs in result

Matter of the Termination of the Parent-Child Relationship of T.A.D., Dawn M. Dillon v. White County Department of Child Services (NFP) - "The evidence presented at trial is sufficient to support termination of Dillon’s parental rights. We affirm."

NFP criminal opinions today (11):

William Tyrone Thomas v. State of Indiana (NFP)

John Crump v. State of Indiana (NFP)

Eric Justin Dove v. State of Indiana (NFP)

William Mann v. State of Indiana (NFP)

Javon Cushenberry v. State of Indiana (NFP)

Casey Seyfried v. State of Indiana (NFP)

Brett A. Baker v. State of Indiana (NFP)

Ricky W. Outlaw v. State of Indiana (NFP)

Guy Dean Smith v. State of Indiana (NFP)

Eric Guess v. State of Indiana (NFP)

Ronald Simes, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 03, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case

In USA v. Mallett (ND Ind., Judge Springmann), a 7-page opinion, Judge Bauer writes:

A jury convicted Jimmie Mallett of knowingly and intentionally maintaining a place for the purpose of manufacturing, distributing, or using crack cocaine, in violation of 21 U.S.C. § 856(a)(1), and possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to 210 months’ imprisonment. On appeal, Mallett challenges the district court’s transfer of the case from the Hammond Division to the Fort Wayne Division, the district court’s ruling to admit evidence of prior conduct, and his sentence. We affirm. * * *

In calculating Mallett’s base level offense of 32, the district court included the 85 grams of cocaine recovered from Mallett’s house in April 2001 as relevant conduct. The district court found that this prior incident was part of the same course of conduct for which Mallett was convicted because the same drug type and the same drug paraphernalia were recovered from the same residence. The district court reasoned that the nature of the crime indicated that there was one drug operation run by Mallett out of the residence that he maintained for the purpose of ongoing drug activity. We agree.

Posted by Marcia Oddi on Friday, August 03, 2007
Posted to Ind. (7th Cir.) Decisions

Law - Katrina Flood Victims Lose Insurance Appeal [More]

The ILB has a long list of earlier posts on flood insurance and Katrina coverage.

Yesterday the 5th Circuit issued its 52-page opinion in In re: Katrina Canal Breaches Litigation, involving Louisiana litigants.

According to an AP story in the NY Times today:

The decision overturns a ruling by United States District Judge Stanwood R. Duval Jr., who in November sided with policyholders arguing that language excluding water damage from some of their insurance policies was ambiguous.

Judge Duval said the policies did not distinguish between floods caused by an act of God — such as excessive rainfall — and floods caused by an act of man, which would include the levee breaches after Katrina’s landfall.

But the appeals panel concluded that “even if the plaintiffs can prove that the levees were negligently designed, constructed or maintained and that the breaches were due to this negligence, the flood exclusions in the plaintiffs’ policies unambiguously preclude their recovery.”

This was a consolidated case, including about 40 named plaintiffs, including Xavier University, and more than a dozen insurance companies. It is just one of the cases pending in federal court over Katrina damage. The Army Corps of Engineers faces thousands of claims for damage after the levees breached; Judge King noted in her opinion that dozens more cases, some consolidated and involving property owners suing insurers, are pending in federal court in New Orleans.

[More] This story from the Times-Picayune has some interesting points:
James Garner, attorney for Xavier University, which suffered flood damage, said the 5th Circuit decision was incorrect and the plaintiffs will seek a rehearing.

Garner said what's at issue in the federal case is Louisiana law. Earlier this year a Civil Court jury ordered an insurer to pay the flood damage costs for Joseph Sher, a 92-year-old Holocaust survivor. The jury's verdict is on appeal and the final word will come from the Louisiana Supreme Court.

In their decision Thursday, the 5th Circuit judges sided with attorneys for the insurance companies, who told the panel during a packed hearing on the case in June that Duval erroneously distinguished between manmade floods and natural ones. * * *

LaPlace attorney Daniel Becnel, one of a large group of lawyers that has pushed for the court to order the hazard insurers to pay for the post-Katrina flooding damage, said the 5th Circuit panel's decision will be appealed to the U.S. Supreme Court.

Becnel said the 5th Circuit panel's members are all from Texas, where judges are "trained completely differently than Louisiana judges. That's why we have the Napoleonic Code, unique compared to other states."

"They have every right to do what they did, but they interpreted Louisiana law, reversing a Louisiana jurist who's one of the most respected judges in the country."

Posted by Marcia Oddi on Friday, August 03, 2007
Posted to General Law Related

Ind. Courts - Porter County Courthouse cell phone ban begins

From a story by Diane Krieger Spivak in the Gary Post-Tribune:

VALPARAISO -- The cell phone ban at Porter County's courthouses has gone relatively smoothly. So far.

"There were no problems," Porter Superior Court Judge David Chidester said Thursday.

The ban went into effect on Wednesday.

Chidester was instrumental in getting the ban placed on the books, after the Porter County Sheriff's Department reported information that weapons, including guns, have been disguised as cell phones and laptop computers.

Security guards at the Valparaiso courthouse said things went smoothly the first day but were concerned about this morning, since criminal calls on Fridays bring hundreds of people into the building.

Security in the Portage Courthouse reported the same as Valparaiso.

"We've had no problems," Porter County Sheriff Officer Larry Widener said. "A few people gave us a funny look and asked how come, but nobody was yelling at us. They just didn't like having to walk back to the parking lot."

The phones not only have the potential to be dangerous, but already have proven to be an interrupting annoyance when they've gone off in the courtroom.

Porter Circuit Court Judge Mary Harper said one such instance took place in her full courtroom the day before the ban went into effect.

Harper was in midsentence when, she said, she heard a click, then a recorded ring tone saying, "What's up?"

The bailiff and a security guard confiscated the phone and gave it back to the owner later.

"It's a huge annoyance," Harper said.

"If an individual would do that today, they'd be found in contempt of court," Harper said.

Here is a list of some earlier ILB entries on Indiana courthouse cell phone bans.

Posted by Marcia Oddi on Friday, August 03, 2007
Posted to Indiana Courts

Ind. Law - Lake election board reversed by court on party-change issue

Sharlonda L. Waterhouse reports today in the Gary Post-Tribune:

A judge has upheld Highland Town Councilman Mark Herak's right to be on the November ballot as a Highland First Coalition Party candidate.

Lake Superior Judge Pro Tempore Duane Daugherty overturned a July 17 decision of the Lake County Combined Election Board and Registration that disqualified Herak.

In a split 3-2 vote, the board voted to uphold a petition brought by Republican John Franklin, who said Herak had been GOP for 28 years and still held Republican ties.

But on Thursday, Daugherty ordered the board to "reverse and vacate" that decision because no statutory grounds for disqualification were proven.

Daugherty also ordered the board to reinstate Herak "as a candidate for the Highland, Indiana Town Council representing the Second Ward as a candidate for the Highland First Coalition Party ticket and his name shall appear on the ballot as a candidate for said election" which is Nov. 7.

Herak, who was represented by attorney Kenneth D. Reed, was elated to win the injunction. * * *

Reed had argued that a person should be able to run a race under new party affiliation without penalty since "bond servitude ended long ago."

Herak said the board's decision deprived voters of a choice: "Hopefully, voters will listen to the issues I present them and come with me. Highland is a great community that has always voted for individual persons."

Bruce Lambka, an attorney for the Election Board, said the board can still take the matter to the Indiana Court of Appeals.

The next chance to discuss it is an Aug. 21 meeting.

Lambka declined to react to Daugherty's ruling: "Until the board makes some decision as to what they are going to do, I don't have a position."

David Saks, also an attorney for the board, had told the board July 17 that he didn't believe they had legal grounds to support Franklin's petition. On Thursday, he declined to say anything that could be against Herak's case or "detrimental to the board."

Posted by Marcia Oddi on Friday, August 03, 2007
Posted to Indiana Law

Courts - "States Look for Ways to Gauge Judge Performance"

Brittney Pescatore of The National Law Journal has this story today, headlined: "States Look for Ways to Gauge Judge Performance: Judicial evaluation programs catching on." Some quotes:

As public interest in judges' professional performance grows, states' use of judicial performance evaluations has been on the rise.

States are increasingly institutionalizing the evaluation process, passing statutes requiring the formation of a judicial evaluation commission.

Kansas is the most recent to launch an official judicial performance evaluation program. A state commission was established in 2006. It will send out its first questionnaires to evaluators this month for judges on the 2008 ballot.

In March of this year, a Minnesota commission chaired by former Gov. Al Quie released its report on ways to preserve an impartial judiciary. * * *

Florida also explored the possibility of implementing a formal judicial evaluation system, but its commission recommended against doing so in June.

Performance-evaluation programs measure criteria such as the professionalism of judges, how well they manage caseloads and the respect with which they treat people in the courtroom.

The Kansas commission plans to survey a variety of people who interact with the judges, including attorneys, jurors, appellate judges and members of the court staff. The state will issue a voter guide to the public, including a recommendation on whether to retain judges in the upcoming election, said Malia Reddick, a member of the Kansas commission and director of research and programs at the American Judicature Society.

The AJS and other legal reform groups are hailing performance evaluations as a way to hold judges accountable while respecting their independence.

"It's the right way to provide judicial accountability," said Reddick, adding that initiatives such as J.A.I.L. 4 Judges in South Dakota, or Judicial Accountability Initiative Law, are the wrong direction. J.A.I.L. 4 Judges was a failed constitutional amendment on the ballot in South Dakota last year that would have curtailed judicial immunity and allowed judges to be prosecuted for their rulings. The group that sponsored the amendment is seeking to get it passed in other states.

The Institute for the Advancement of the American Legal System (IAALS), based at the University of Denver, published a report in 2006 called "Shared Expectations: Judicial Accountability in Context," which recommended performance-evaluation programs as a responsible way to hold judges accountable. According to the report, 19 states now have systems, including Arizona, Colorado, New Mexico, Tennessee and Utah.

"Accountability for the judiciary is a hot topic," said Rebecca Kourlis, executive director of the IAALS and a co-author of the report, "but the term 'accountable' is being held hostage by people who have political agendas."

See the website for the Institute for the Advancement of the American Legal System here. From the website:
As a continuation of the work begun last year with the release of "Shared Expectations: Judicial Accountability in Context", we have just released a companion report entitled, "Transparent Courthouse™: A Blueprint for Judicial Performance Evaluation." Together, these reports provide exhaustive research showcasing the challenges and opportunities faced by jurisdictions as they work to build robust judicial performance standards and metrics.

We will also be working in coming months to educate the community about the importance of aligning proven methods of judicial selection with a robust judicial performance program. Written remarks on this subject were recently offered to the New York Assembly Committee on the Judiciary, as they work to build a new system of judicial selection in that state. (click here for testimony). We are excited about the potential for real reform to our courts in 2007 and look forward to sharing news of progress with you.

You can access the two reports online. However, and I find this somewhat offputting, you cannot do so without providing at least your first and last name, email address, affiliation. Your phone number is also requested.

Posted by Marcia Oddi on Friday, August 03, 2007
Posted to Courts in general

Ind. Courts - "Publisher of details in case taken to court"

This is a pretty interesting story today by RuthAnn Robinson of the NWI Times:

HAMMOND | A Gary couple upset regarding details of their case printed in the legal publication the Indiana Jury Verdict Reporter asked a judge to find the publisher in contempt of court.

On Thursday, the case was handed over to Lake Superior Court Judge Gerald Svetanoff.

In 2002, the family of Neal Boyd IV sued the Gary Community School Corp. saying it did not protect their 16-year-old son, who was fatally shot at Lew Wallace High School on March 30, 2001.

Donald Ray Burt Jr. is serving a 57-year prison sentence after a jury convicted him of murder. Burt was 17 at the time he shot Boyd.

In January, a jury found against the school and awarded Boyd's parents almost $4 million. The school corporation asked Judge Diane Kavadias Schneider to limit the award and filed a notice to appeal the jury verdict. The case is pending.

In April, the Indiana Jury Verdict Reporter, a publication for lawyers, printed an outline of the Boyd case. The Boyds claim the information printed was false and was not allowed in trial. The couple want the publisher held in contempt of court.

Publisher Shannon Ragland, of Louisville, Ky., said all the information printed was gleaned from the public record.

Here is a link to the Indiana Jury Verdict Reporter website.

Posted by Marcia Oddi on Friday, August 03, 2007
Posted to Indiana Courts

Thursday, August 02, 2007

Law - More on: "Annual Survey Shows the New Reality of Associate Life"

Following up on yesterday's entry , see this entry and comments today in the blog Above the Law.

Above the Law also has this posting today that begins:

Clerkship Bonus Watch: Dewey Ballantine. Please welcome a new member to the $50K Club:
“Dewey Ballantine just raised its clerkship bonus. $50K for a federal clerkship or the highest court of any state.”
The ILB has posted before about the $250,000 bonus for SCOTUS law clerks -- see these 3/11/07 and 6/19/07 ILB entries.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to General Law Related

Law - A neat story today about a family law firm

Peter Lattman of the WSJ Law Blog did a great interview today under the heading "Here’s a Story . . . of a Firm Called Munley" about an "8-lawyer Scranton personal injury firm comprised of seven Munleys and a Cartwright." Read it here.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Farm Bureau General Insurance Company of Michigan v. Robert M. Sloman, a 19-page opinion, Judge Vaidik writes:

Farm Bureau General Insurance Company of Michigan (“Farm Bureau”) sought this interlocutory appeal after the trial court denied its motion for summary judgment regarding whether Farm Bureau’s forum selection clause negated Elkhart County, Indiana, as a proper venue for Robert M. Sloman’s suit against Farm Bureau and whether Sloman failed to provide Farm Bureau with specific written notice of his uninsured motorist claim within the one-year contractual limitations period. Finding that Farm Bureau’s forum selection clause, under the circumstances, is unjust and unreasonable and that a genuine issue of material fact exists as to whether Farm Bureau was provided with written notice of Sloman’s uninsured motorist claim within one-year of the accident, as required by his policy, we affirm the judgment of the trial court.
In Elmer Bennett v. State of Indiana , a 17-page opinion, Judge Sharpnack concludes:
The facts most favorable to the conviction reveal that Hardison last saw the hunting knife and three toolboxes in his vehicle on the morning of October 22, 2005. Later that day, Bennett asked Hardison if he could use his car and Hardison refused. The following morning, both Bennett and the car were gone and Hardison reported the car as stolen. When the vehicle was recovered, Hardison’s hunting knife and toolboxes were not in the vehicle. Evidence of probative value exists from which the trial court could have found Brown guilty of theft as a class D felony. See, e.g., Kindred v. State, 254 Ind. 73, 76, 257 N.E.2d 667, 668 (1970) (holding that the evidence was sufficient to support the defendant’s conviction for theft where the defendant was the only person in the filling station at the time the money was taken). For the foregoing reasons, we affirm Bennett’s convictions for auto theft as a class D felony and theft as a class D felony. Affirmed.

BAILEY, J. concurs, MAY, J. concurs in result with separate opinion [which begins] I believe M.Q.M. was correctly decided and a defendant may not be convicted of theft or auto theft without proof of intent to permanently deprive the owner of the item’s value or use. Nevertheless the evidence most favorable to the judgment is sufficient to meet this standard. I would therefore affirm Bennett’s convictions and I concur in the result.

In The State of Indiana, Morgan County Office of the Department of Child Services v. Roland W. Hammans and Sue E. Hammans, Co-Trustees of the Nicholas Hammans Disability Trust , a 17-page opinion, Judge Crone writes:
The State of Indiana, Morgan County Office of the Department of Child Services, appeals the order authorizing payment to Roland W. Hammans and Sue E. Hammans (“the Hammanses”), co-trustees of the Nicholas W. Hammans Disability Trust (“the Disability Trust”), for their administrative services as co-trustees and for personal services rendered to their son, Nicholas. We affirm.

Issue. The State raises one issue, which we restate as whether the trial court’s order granting the Hammanses’ petition for co-trustee fees and personal services rendered to Nicholas is clearly erroneous.

NFP civil opinions today (2):

Terry Custis v. Dondra Custis (NFP) - "Terry Custis appeals the trial court’s dissolution of his marriage to Dondra Custis. Terry raises one issue, which we revise and restate as whether the trial court abused its discretion in the valuation and division of marital property. We affirm."

In Melina F. Stewart n/k/a Melina A. Fox v. Thomas C. Stewart (NFP) , a 24-page opinion, Judge Vaidik writes:

Melina A. Fox, formerly Melina F. Stewart (“Wife”), appeals the trial court’s grant of summary judgment in favor of her former husband, Thomas C. Stewart (“Husband”), in Wife’s action for contempt, which alleged that Husband had failed to comply with the requirements of a settlement agreement incorporated in the dissolution decree. Wife also appeals the trial court’s order on her motion to compel discovery, which, she argues, improperly limited the documents that Husband had to provide during the discovery process. Concluding that there are genuine issues of material fact regarding the settlement agreement and that the trial court improperly restricted discovery, we reverse the trial court’s grant of summary judgment in favor of Husband and remand to the trial court for additional discovery and further proceedings. * * *

Because we concluded that the trial court erred by granting summary judgment to Husband due to the existence of genuine issues of material fact regarding the Settlement Agreement and the nature of the Monsanto transaction, we also conclude that the trial court’s limitation of discovery—to the extent that it limited discovery to the first transaction only—was against the logic and natural inferences to be drawn from the facts of the case. Wife’s action for contempt is based upon the allegation that Husband failed to comply with the requirements of the Settlement Agreement incorporated in the dissolution decree when he failed to compensate her for the sale of stock that occurred as a result of the Monsanto transaction. The documents regarding the nature and value of the entire Monsanto transaction would seemingly contain information that is relevant to Wife’s case and/or could be reasonably calculated to lead to the discovery of admissible evidence. Therefore, we reverse the trial court’s ruling on this issue and remand for additional discovery, with instructions that the trial court determine if a protective order is necessary for any document that may contain confidential information. See, e.g., Turner, 856 N.E.2d at 113 (reversing the trial court’s discovery ruling because the requested documents were relevant to the plaintiff’s case and/or could be reasonably calculated to lead to the discovery of admissible evidence). In summary, we reverse the trial court’s grant of summary judgment to Husband and remand for additional discovery and further proceedings. Reversed and remanded. SULLIVAN, SR. J., and ROBB, J., concur

NFP criminal opinions today (6):

Christopher G. Washington v. State of Indiana (NFP)

Kawauan Bluitt v. State of Indiana (NFP)

Kristopher McKinley v. State of Indiana (NFP)

Stephanie R. Clay v. State of Indiana (NFP)

Jesse L. Whitfield v. State of Indiana (NFP)

Phillip L. White v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Impact of Fort Wayne Disability Center ruling in other areas of state?

Updating yesterday's ILB entry on the possible impact of the July 16th Indiana COA decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al, (involving the now-closed Fort Wayne Disability Center) on other areas of the State, and quoting from a story about questions involving a recent Bloomington contract, today the Bloomington Herald Times has an opinion piece ($$$ only) which includes the following:

Whether or not the contract with REI was legally procured — we leave that determination to the lawyers and jurists — the city ought to consider using a bid process for any major contracts of this scope and magnitude, whether for goods or for services. Parking management is not such a unique service that it would be impossible to obtain bids from more than one company. And despite what may seem like an urgent situation for local residents who regularly find themselves hunting for parking spaces, the downtown parking situation is hardly the type of public emergency that justifies a quick-to-be-executed, no-bid contract.

The major reason for using a bid process with high-dollar contracts is to ensure integrity and transparency in the negotiation of arrangements with private companies for the provision of services that government has traditionally supplied. Contracts like this one, which guarantees monthly income of $11,100 to the management company regardless of actual parking receipts, are just the sort that the public might question, in the absence of competing bids.

Indiana law allows a municipality the ability to adopt the requirements of the state’s more restrictive law governing public-private agreements. Before entering into further major agreements for privatization of public services, the city should consider adopting a new policy on no-bid contracts. While the city probably shouldn’t be burdened with obtaining bids for every minor service provided by outside contractors, an ordinance that would require bidding for service contracts in excess of a certain threshold dollar amount would be a welcome reform — one that could only serve to reinforce the public trust in our city’s contracting process.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Indianapolis firefighter's bias suit can proceed"

A brief story today in the Indianapolis Star reports:

A federal judge is allowing a sexual discrimination lawsuit filed by an Indianapolis firefighter to go to trial.

U.S. District Judge Sarah Evans Barker says the city did not make its case to have the lawsuit filed by fire Capt. Ruth M. Morrison thrown out.

A jury trial is set for Sept. 5 in Barker's courtroom.

Morrison, who has been in the department since 1986, maintains she was the victim of sexual discrimination, failing to get promotions because of her gender. She also says she faced retaliation for complaining about discrimination.

Re the retaliation issue, see the discussion on pages 33-34 of the opinion, concluding with:
Without a doubt, Morrison has established that triable issues of fact exist which suggest a causal connection between her protected activity and the IFD’s treatment of her. The clearest example is the meeting Morrison audiotaped between herself and Chiefs Van Sant and Walker in which Van Sant and Walker allegedly threatened and intimidated her while Van Sant held a copy of Morrison’s grievance in her lap, and made statements such as “I’ve been to the EEOC before, you want to do that[,] you want to go that way[,] you go ahead and go. The best thing you could do is grit your teeth and push on and do your job and keep this house out of trouble.” Def.’s Ex. M. This evidence by itself is sufficient to survive summary judgment on the retaliation issue.
The ILB has posted the 39-page, 7/31/07 opinion here.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to Ind Fed D.Ct. Decisions

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

Robert Annis of the Indianapolis Star, who also wrote the story quoted in this July 26th ILB entry, has this report today that begins:

The Boone County Commissioners will decide at their next meeting whether they will appeal an Indiana Court of Appeals ruling in a land dispute with Whitestown.

The appeals court ruled July 20 that Whitestown had jurisdiction over 1,425 acres on the west side of I-65 in Boone County, an area considered to be a prime corridor. The court also said Boone County could develop its economic development area on 2,500 acres in the same area.

Whitestown still wants to annex those 2,500 acres.

The commissioners held a special executive session on July 26 to discuss the case, but didn't come to a decision, said commissioner Huck Lewis.

"We've got a lot of things to consider," Lewis said. "We've talked to the attorneys and now we've got to weigh what's best for the county."

It's still to be determined how much control Boone County will have over the economic development area. The area currently is zoned residential, and Lewis believes Whitestown has zoning authority, not Boone County's Area Planning Commission.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to Ind. App.Ct. Decisions

Law - "High-tech billboards targeted: Kentucky officials want them gone"

Tony Lang reports today in a lengthy story in the Cincinnati Enquirer:

Kentucky's Transportation Cabinet has told outdoor advertising companies operating in Northern Kentucky that the digital boards should be torn down, turned off or converted back to static displays. No state law specifically permits electronic billboards, and their changing messages may violate other state and federal highway rules, the cabinet says.

Meanwhile, today, the Kenton County Planning Commission is to consider a ban on any more high-tech signs at least through Dec. 31, when a consultant can recommend new sign regulations.

Twelve electronic billboards have been planted in Greater Cincinnati and Northern Kentucky along Interstates 75, 71, 275 and 471. At night, they're often the brightest objects in the landscape.

Some motorists love the sharp color and rotating ads. Critics say they're a neighborhood nuisance and perhaps unsafe. * * *

Ohio permits the digital signs, provided each commercial message remains fixed for at least 8 seconds, and that the sign itself is at least 1,000 feet from another multiple-message board.

Some 156 electronic displays already line the state's interstates and highways, according to the Ohio Department of Transportation. Another 13 are in the pipeline.

That ranks Ohio among the leading electronic-billboard states. Nationwide, they total 500 plus. Several hundred more are expected to be added each year.

Three outdoor advertising giants - Clear Channel, CBS Outdoor and Lamar - control about 75 percent of the U.S. market.

What about Indiana? It turns out we passed a law allowing such billboards this year. Here is a story by Patrick Guiane of the NWI Times dated Feb. 13, 2007. It reports:
A House panel granted initial approval Tuesday to moving interstate billboards into the digital age.

Sponsored by state Rep. Dan Stevenson, D-Highland, House Bill 1373 would have Indiana join the majority of states that permit electronic billboards. It passed the Indiana House Government and Regulatory Reform Committee 12-0.

Electronic billboards can be used for weather and disaster bulletins, which Stevenson said "really would have been helpful (Tuesday during the heavy snows)." The displays, which morph to a different advertisement every several seconds, also are used to display missing persons information in other states.

"I think there's a few spots around Lake County that would definitely be appropriate for a digital sign and would be attractive to advertisers," said Jon Terpstra, vice president and general manager for Lamar Advertising, which owns billboards along the Borman Expressway, the Indiana Toll Road and Interstate 65.

Of the 46 states that allow any billboards, 42 already permit digital displays, Terpstra said. Another industry representative said the displays change every six to eight seconds and advertisers aren't allowed to use videos or flashing images that might distract drivers. HB 1373 now goes to the full House.

HEA 1373 took effect 4/25/07. Note the potentially interesting language the new IC 8-23-20-25.5(d), added on p. 4 of the bill.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to General Law Related

Law - "High-tech billboards targeted: Kentucky officials want them gone"

Tony Lang reports today in a lengthy story in the Cincinnati Enquirer:

Kentucky's Transportation Cabinet has told outdoor advertising companies operating in Northern Kentucky that the digital boards should be torn down, turned off or converted back to static displays. No state law specifically permits electronic billboards, and their changing messages may violate other state and federal highway rules, the cabinet says.

Meanwhile, today, the Kenton County Planning Commission is to consider a ban on any more high-tech signs at least through Dec. 31, when a consultant can recommend new sign regulations.

Twelve electronic billboards have been planted in Greater Cincinnati and Northern Kentucky along Interstates 75, 71, 275 and 471. At night, they're often the brightest objects in the landscape.

Some motorists love the sharp color and rotating ads. Critics say they're a neighborhood nuisance and perhaps unsafe. * * *

Ohio permits the digital signs, provided each commercial message remains fixed for at least 8 seconds, and that the sign itself is at least 1,000 feet from another multiple-message board.

Some 156 electronic displays already line the state's interstates and highways, according to the Ohio Department of Transportation. Another 13 are in the pipeline.

That ranks Ohio among the leading electronic-billboard states. Nationwide, they total 500 plus. Several hundred more are expected to be added each year.

Three outdoor advertising giants - Clear Channel, CBS Outdoor and Lamar - control about 75 percent of the U.S. market.

What about Indiana? It turns out we passed a law allowing such billboards this year. Here is a story by Patrick Guiane of the NWI Times dated Feb. 13, 2007. It reports:
A House panel granted initial approval Tuesday to moving interstate billboards into the digital age.

Sponsored by state Rep. Dan Stevenson, D-Highland, House Bill 1373 would have Indiana join the majority of states that permit electronic billboards. It passed the Indiana House Government and Regulatory Reform Committee 12-0.

Electronic billboards can be used for weather and disaster bulletins, which Stevenson said "really would have been helpful (Tuesday during the heavy snows)." The displays, which morph to a different advertisement every several seconds, also are used to display missing persons information in other states.

"I think there's a few spots around Lake County that would definitely be appropriate for a digital sign and would be attractive to advertisers," said Jon Terpstra, vice president and general manager for Lamar Advertising, which owns billboards along the Borman Expressway, the Indiana Toll Road and Interstate 65.

Of the 46 states that allow any billboards, 42 already permit digital displays, Terpstra said. Another industry representative said the displays change every six to eight seconds and advertisers aren't allowed to use videos or flashing images that might distract drivers. HB 1373 now goes to the full House.

HEA 1373 took effect 4/25/07. (Note the potentially interesting language the new IC 8-23-20-25.5(d), added on p. 4 of the bill.)

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to General Law Related

Courts - "Videos from W.Va. malpractice cases surface on YouTube"

Larry Messina of the AP reported this story yesterday, dateline Charleston, W.Va:

To avoid a media circus, a judge ordered evidence kept under wraps in scores of malpractice lawsuits against a former West Virginia doctor. But that hasn't stopped someone from posting videotaped testimony from the cases on YouTube.

The three-minute video features outtakes from the pretrial testimony, or depositions, of six people suing Dr. John A. King. Five of the snippets are followed by surveillance-style video or photos that purport to contradict those persons' claims.

The plaintiffs allege King harmed them or their loved ones during the six months he practiced at the former Putnam General Hospital, in late 2002 and early 2003.

One man testifies he cannot grip items after King operated on him, and is then allegedly caught carrying beer to his car from a store. Another segment shows a woman testify that King left her unable to dance, followed by photos of her apparently doing just that at a wedding.

The video was posted on the popular video-sharing site June 26. More than two weeks earlier, Putnam County Circuit Judge O.C. Spaulding had ordered the sealing of all filings in the pending lawsuits.

Spaulding's ruling was partly prompted by the release of another video, also via YouTube. It claimed to show a plaintiff under surveillance - the same woman in the wedding photos in the current video. But that earlier footage turned out to be of someone else.

The defendants had apparently shared the footage with a public relations firm. The plaintiffs had also posted information about the case online. Spaulding barred both sides from releasing anything further to the media.

"I decided that both sides were trying potentially to influence the public before we went to trial," Spaulding said Wednesday. * * *

The first malpractice case is set for trial in late November.

Several lawyers with jury trial experience, who aren't involved in the King cases, told The Associated Press on Wednesday that they were unaware of any prior attempt to sway potential jurors through online video.

Putnam General hired King as an orthopedic surgeon in November 2002. It suspended his privileges the following May after a review of his work. He later surrendered his West Virginia license and left the state.

A civil jury on Tuesday found Putnam General negligent in granting King credentials, exposing its then-owners to damages in the 122 pending malpractice cases.

Thanks to Michael Stevens of the Kentucky Law Blog for pointing to this story.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to Courts in general

Ind. Law - "Candidate's husband charged with taking opponent's campaign signs"

From a story by Amy Bartner in today's Indianapolis Star:

The fight for the position of Bargersville clerk-treasurer turned dirty in the past week when a candidate's husband was arrested on a charge of stealing campaign signs belonging to his wife's opponent.

Elmer A. Roy, 46, was arrested on a preliminary misdemeanor charge of theft after admitting to police that he snatched 15 signs belonging to Clerk-Treasurer Amy Carson. Roy's wife, Carla, is running against Carson for the GOP nomination for the job this weekend.

Elmer Roy is out of jail on $3,000 bond.

He was caught on security tape taking signs from a gas station just after 4:30 a.m. Friday.

"I was shocked, but I think their actions speak for themselves," Carson said.

Carson said her husband noticed the signs missing from around town Friday afternoon, and she contacted Bargersville police. They obtained surveillance video from the gas station and said they saw Roy circling the station in his tan truck before stopping, getting out and taking the signs.

Police went to his home, where he admitted to the crime, according to the police report. * * *

According to the police report, Elmer Roy said he knew it wasn't right to take the signs but didn't realize it was a crime.

The Star reports the charge here was theft. A column by Frank Gray of the Fort Wayne Journal Gazette last year (see Nov. 9, 2006 ILB entry here) said:
The state has no laws at all addressing campaign signs. Decisions like that are left up to counties, cities and towns, we were told by the state’s Election Division.

Allen County has no laws concerning political signs, either. You can put as many as you want pretty much anywhere you want and leave them there as long as you want. In the county, campaign signs are like meteors. Once they hit the ground, they can stay there forever.

That bothers some people. Last spring, near New Haven, a guy who said the signs were an eyesore and who believed they were illegal, picked up a bunch of them and tossed them into the back of his pickup truck. He was arrested and charged with theft. It’s not clear what came of the case, but he called the newspaper to talk about it, saying he did it to call attention to himself and a custody dispute he’s involved in.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to Indiana Law

Ind. Courts - "Vigo courts receive two state grants"

Deb McKee reports today in the Terre Haute Trib-Star:

The Indiana Supreme Court has awarded two grants to Vigo County courts to help with the costs of court interpreters and to support the county’s Drug Court.

Chief Justice Randall T. Shepard earmarked end-of-the-year funding available in the Supreme Court’s trial operations account to be awarded to state-certified drug courts.

The Vigo County Drug Court, recently re-certified through the Indiana Judicial Center for a three-year term, received $3,982.

The money will be used to supplement the Drug Court’s budget, which suffered a shortfall this year because of decreased federal grant funding, according to Vigo County Superior Court Division 5 Judge Barbara L. Brugnaux.

Brugnaux, who has been instrumental in developing the county’s 11-year-old drug court system, said, “We appreciate Chief Justice Shepard’s continued support of the drug court movement in Indiana.”

In addition to the grant received by the drug court, Vigo County was one of 36 court systems in Indiana to receive a $1,000 Court Interpreter Grant, which will be used to help local trial courts break down language barriers faced by non-English-speaking litigants. This is the third consecutive year Vigo County courts have received the interpreter grant.

Posted by Marcia Oddi on Thursday, August 02, 2007
Posted to Indiana Courts

Wednesday, August 01, 2007

Ind. Law - Volunteers needed for ‘Ask Me What's Great About America’ Sept. 17

From the ISBA:

The Indiana State Bar Association is seeking volunteers to participate in "Ask Me What's Great About America," a program to help educators comply with the federal regulation requiring the development of student programming to celebrate Constitution Day on Monday, Sept. 17.

This is a wonderful opportunity for volunteer attorneys to speak in 8th grade classrooms statewide about the Bill of Rights and the Constitution. Attorneys who volunteer will be provided presentation materials for a one-hour program.

More information is available here on the ISBA site.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Indiana Law

Ind. Decisions - 7th Circuit rules in case challenging sentencing distinction between cocaine base and cocaine

In USA v. Williams (ND Ind., Judge Springmann), a 19-page opinion, Judge Kanne writes:

Sylvanus Williams was arrested after police found a stolen gun in his car and marijuana in a bag that he had left behind in a store. A search of his car led to additional drug-related charges being brought by the United States, and after two years of pre-trial wrangling a jury convicted him on three counts. He raises four issues on appeal: he challenges the admission of certain evidence which he argues was seized in violation of his Fourth Amendment rights, he argues that his right to due process of law was denied, he challenges the district court’s sentence, and he challenges the constitutionality of the United States Sentencing Guidelines’ distinction between cocaine base and cocaine powder. Because we find no error, we affirm. * * *

Finally, the appellant argues that the one hundred-to-one sentencing ratio for crack versus powder cocaine is unconscionable and unconstitutional. Whether the ratio is unconscionable is a matter for Williams to raise with the legislature. Whether the ratio is unconstitutional is an argument that was not made at sentencing, so we review it for plain error. As the appellant concedes, our circuit precedent is clear that the ratio is not a violation of the Constitution. See United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006). There was no error.

III. CONCLUSION. In ruling on the various motions to suppress, the district court did not make any findings of fact that are clearly erroneous and did not err on any questions of law. The district court did not deprive Williams of due process in violation of the Fifth Amendment. The sentencing regime in place under Booker remains constitutional, and the sentencing disparity between crack and powder cocaine has been considered on numerous occasions by this court. Accordingly the judgment and sentence of the district court are AFFIRMED.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - COA rules "Molester's sentence too long"

Patrick Guinane of the NWI Times writes today on yesterday's COA ruling in Rickey L. Schultz v. State of Indiana (NFP). Some quotes:

A repeat sex offender convicted of molesting several Portage children in 2005 was improperly sentenced last year, the Indiana Court of Appeals ruled Tuesday. * * *

Schultz's status as a repeat offender allowed the trial court to enhance the consecutive eight-year sentences stipulated in his plea agreement. But the appeals court ruled Porter County Circuit Judge Mary Harper didn't follow sentencing guidelines when she added 10 years to Schultz's sentence.

The appeals court ruled only four years could be added to the plea deal and remanded the case to Harper with instructions she reduce Shultz's sentence from 18 years to 12 years.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Louis Townsend v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court overturns conviction stemming from seat belt stop"

Charles Wilson of the AP writes today on yesterday's COA ruling in Gary W. Pearson v. State of Indiana. Some quotes:

A police officer exceeded the boundaries of the state's seat belt law when he asked a man following a stop if he was carrying anything the lawman should know about, the Indiana Court of Appeals ruled.

The court on Tuesday reversed Gary W. Pearson's conviction in Warrick County on charges of possession of methamphetamine and possession of marijuana _ along with the seat belt infraction.

Pearson was stopped for driving without a seat belt on Sept. 9, 2004, by a Chandler police officer who asked him to step out of the car so he could do a pat-down search for weapons.

During the search, Officer Matt Hastings asked Pearson if he was carrying anything the officer should know about, and Pearson told him he had marijuana in a pants pocket, according to court documents. Hastings then searched Pearson's car and found methamphetamine. * * *

In a 13-page opinion, the Court of Appeals said that the stop and the weapons search were legal. But, Judge Patrick Sullivan wrote, the attorney general had issued an opinion that legislators had sharply limited what police could do following a seat belt stop. Hastings had overstepped those limits, rendering the evidence inadmissible, the opinion said. [emphasis added by ILB]

"Notwithstanding the fact that Officer Hastings may have had reasonable suspicion to justify the pat-down search for weapons ... the marijuana was not discovered as a result of the pat-down search, but rather upon Pearson's response to Officer Hastings' question during the pat-down search," Sullivan wrote.

And on the basis of the attorney general's position, "we conclude that Officer Hastings was not justified in asking Pearson if he had anything on his person."

The ILB thought it was odd that the COA was basing its ruling on an Attorney General's opinion and reread the ruling. Looking at p. 9 of the decision, the Court references the "Attorney General's assertion" - which presumably was made as a representative of the State in this and earlier appeals. No "AG Opinion" is mentioned.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Ind. App.Ct. Decisions

Environment - "BP permit appeal may be possible"

That is the headline to this story today by Gitte Laasby of the Gary Post-Tribune. Some quotes:

Environmental groups and residents who commented on BP's new wastewater permit may be able to appeal the permit even though the appeal period is officially over.

The LaPorte County Environmental Association and the Alliance for the Great Lakes claim that the Indiana Department of Environmental Management failed to notify them that the permit was issued and inform them about appeal procedures. Several residents told the Post-Tribune the same.

State law requires that IDEM notifies "each person who submitted written comments" to a permit when a permit is issued or denied. That way people know when the appeal period starts.

IDEM says it did respond to comments, but could not confirm whether those responses included notification that the permit was issued.

IDEM spokeswoman Amy Hartsock said the state did notify a list of "interested parties," but a Post-Tribune analysis shows that list was outdated and did not include the addresses given by the people who commented.

If IDEM did, indeed, fail to notify people, that could be the basis for asking the Indiana Office of Environmental Adjudication for permission to file a belated appeal, said Lew Beckwith, a Baker & Daniels partner and environmental lawyer.

"You might be allowed to file a belated appeal. It's certainly an argument that ought to be addressed," Beckwith said.

Catherine Gibbs, environmental law judge with the OEA, confirmed that her office may give permission to file a belated appeal under certain circumstances.

"If you did not receive notice and you're not on time filing your appeal, we can possibly allow them to go forward with their appeal," Gibbs said.

Tom Anderson, who represented the LaPorte County Environmental Association in a letter to IDEM, said his group was never notified and that it appears IDEM did not follow the required procedure.

"That you have to find out for yourself even though you followed their process doesn't seem fair," he said. "They need to provide their notice." * * *

"The comments we received, along with the responses, were sent to the folks who submitted comments," Hartsock said. "I can promise you, we did mail or e-mail this post-public notice addendum. Staff confirmed that e-mail and mailings were sent."

She could not say when that information was sent.

IDEM did post a notice on its Web site that the final permit had been issued.

Well, not exactly. As the ILB pointed out near the end of its initial entry on the BP permit, from July 14th:
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.

In short, IDEM appears to have made only a cursory effort to make even some of the BP documents accessible online. No one at IDEM appears to have taken a look at this page which it has referenced as the place to go for BP permit information, even after all the controversy. Particularly egregious, in my opinion, is (1) the fact that the cover letter to BP is in TIFF format, and only the first page is available, and (2) the fact that no Notice of Decision is posted. There should be little surprise then, that actual notice of permit issuance and opportunity to appeal was not mailed out as required by law.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Environment

Courts - Problems in birthplace of the Missouri plan?

"Judicial process continues to roil Missouri" is the headline to a story earlier this week in the St. Louis Post-Dispatch that begins:

JEFFERSON CITY — The political tension gripping Missouri's judiciary grew more apparent Thursday as rival interest groups lambasted and lauded the three finalists among whom Gov. Matt Blunt is to appoint Missouri's newest Supreme Court judge.

A group advocating an overhaul in Missouri's judicial selection process denounced the three candidates as "blatantly liberal." A group defending the status quo praised the trio as "diverse and well-qualified."

But just as revealing as their words was the mere fact that Missouri now has multiple interest groups intensely focusing on the way its judges are selected — a scenario that didn't exist when a governor last filled a Supreme Court vacancy three years ago. * * *

Dissatisfaction with the selection process has been building among some Republicans, including Blunt, who contend the nominating panels don't always give the governor choices that match his conservative philosophy.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Courts in general

Ind. Decisions - Impact of Fort Wayne Disability Center ruling in other areas of state?

The July 16th Indiana COA decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al, involving the now-closed Fort Wayne Disability Center (see initial ILB entry here, July 17th entry here, July 20th entry here) caused at least some concern re the Fort Wayne Harrison Square development project (see July 20th entry here).

Today, according to a story ($$$ only) in the Bloomington Herald Times by Sarah Morin, the decision raised at least in question involving a recent Bloomington contract. Some quotes:

A recent court ruling that found state officials violated state law by hiring a private firm to manage a facility without taking bids does not apply to the city of Bloomington — or its hiring of a private firm to manage its downtown parking garages.

REI Real Estate Services takes over operations today of the three public garages.

The three-year contract, which guarantees the Indianapolis firm $11,100 a month for the remainder of 2007, was awarded without other companies placing an offer for parking management. That’s often the case when it comes to service contracts, city officials say.

City legal chief Kevin Robling said it’s different from contracting for products, in which a public bidding process is required by state law.

“One reason the state doesn’t require them (service contracts) to be competitively bid, you may not want to have the lowest bidder design your building,” he said as an example. “I’m guessing that’s the legislative intent.”

But a state law does go a step further in dealing with public-private agreements for services at the state and unigov — consolidated city and county — level, and any other government entity that chooses to adopt the law.

“We haven’t ever done that, don’t know of any that have,” Robling said.

IC 5-23 was cited by the Indiana Court of Appeals in its July 16 ruling that stated Gov. Mitch Daniels and other officials ignored the law when they privatized management of the Fort Wayne State Development Center without opening up a public bidding process.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: 7th Circuit rules on Dunkin Donuts case out of Illinois

Following up on this brief ILB entry from July 10th, the Chicago Tribune has a long feature today on the dispute. Headed "Pork at issue in doughnut franchise row: Discrimination claimed in lawsuit as Muslim proprietor is threatened with loss of business," the article by Ameet Sachdev begins:

Every day for nearly 30 years, Walid Elkhatib has sold doughnuts. Glazed, chocolate frosted, Bavarian Kreme and other varieties. As a Dunkin' Donuts franchisee, he expanded the menu to include breakfast sandwiches, such as egg and cheese bagels.

But he drew the line at serving sandwiches with sausage, ham or bacon because his Muslim faith forbids him from eating or handling pork -- a departure from company policy that led Dunkin' Donuts in 2002 to threaten it would take away his two Chicago-area franchises.

So for five years Elkhatib has been waging a legal battle against the Boston chain claiming racial bias, not religious discrimination. The federal court of appeals in Chicago last month reinstated the case, blurring the lines between religion and race.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: Admissibility of electronic evidence -- is it "authentic"?

On June 14th the ILB posted this entry on the admissibility of electronic evidence, including links to my June Res Gestae article, "Assuring Authentic Legal Information in the Digital Age: Part I - the Acts of Indiana and the Indiana Code."

Today I am posting for ILB readers the draft of "Assuring Authentic Legal Information in the Digital Age: Part II - The Indiana Register and the Indiana Administrative Code." This article is slated to appear in the combined Aug-Sept. issue of Res Gestae. Don't miss the chart on p. 8.

Part II concludes: "[N]either the Indiana Code nor the Indiana Register and Indiana Administrative Code meet requirements for trustworthy state-level primary legal resources on the Web."

More: The June 14th ILB entry included discussion of the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel (D Md). Here is another take on that decision, this one from the July 27, 2007 issue of Legal Times. The article, by Bradford E. Biegon, of counsel at Washington, D.C.’s Spriggs & Hollingsworth, concludes:

These concerns are not merely academic. They go directly to the rising costs of litigation. Last year's amendments to the discovery rules opened the floodgates of electronic discovery, which can be expensive and time-consuming. Yet the changes did not address whether any of the resulting discovery materials were actually admissible at trial.

To be sure, parties may seek discovery of materials that are not admissible. But courts are charged with weighing the burdens and benefits of discovery. If a party seeks discovery of electronically generated information such as metadata, which may not be evidence at all -- or at best, hearsay -- the courts might do well to consider such discovery unjustified, particularly considering that the desired information might be found through more traditional and less burdensome means.

But whether electronically generated information is evidence at all or hearsay, Grimm's opinion has given corporate counsel and their trial lawyers much to think about as they prepare to prove their cases with electronic information. Lawyers may ignore this opinion at their peril and hope that lightning strikes for them -- but as Grimm observed, "counsel would be wise not to test their luck unnecessarily. If it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied."

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to Indiana Courts

Law - "Annual Survey Shows the New Reality of Associate Life" [Updated]

The American Lawyer has an article today on "the state of associate life." The article begins with some findings:

# Associates aren't miserable, except perhaps in certain high-pressure New York precincts. The average satisfaction score hit a record high this year: 3.81 on a five-point scale.

# Associates don't plan on staying. Despite the high level of job satisfaction, only 44.9 percent of the respondents predicted that they would be at their firms in five years, and only 11.7 percent expected that they would become equity partners at their current firm.

# Despite all the hand-wringing over associate retention, law firms report that in nearly half the associate departures -- 49 percent -- the firms were either neutral about the departures or happy to have the associates leave. (This statistic comes from the latest survey by the National Association for Law Placement.)

# There may not be enough lawyers to feed the hiring appetite. According to our survey of summer associate hires, Am Law 200 firms expect to bring on roughly 10,000 associates next fall. That astonishing number equals about one-quarter of all the students who will graduate from U.S. law schools next year. To put it another way, the top 20 law schools will only produce about 6,500 graduates.

[Updated] For more, see today's posting in the WSJ Law Blog.

Posted by Marcia Oddi on Wednesday, August 01, 2007
Posted to General Law Related