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Friday, September 07, 2007

Ind. Decisions - Transfer list for week ending September 7, 2007

Here is the Indiana Supreme Court's transfer list for the week ending September 7, 2007. Be sure to view all five pages.

There were no transfers granted this week.

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

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Indiana Transfer Lists

Courts - Michigan lawyer courtesy rule overruled

From the ABA Journal:

Controversial Michigan lawyer Geoffrey Fieger has won a round in his battle with Michigan state judges.

A federal judge has struck down a state court rule used to sanction Fieger for calling state appeals judges jackasses in a radio interview and comparing them to Nazis, the Detroit News reports. The rules require lawyers to treat those involved in the legal process with "courtesy and respect" and bar “undignified or discourteous conduct" toward judges.

U.S. District Judge Arthur Tarnow of Detroit said the rules violate the First Amendment because they are overly broad and vague.

Mike Dezsi, who represented Fieger in the case, said lawyers need to be able to engage in robust discourse. "All lawyers should rest easier, knowing they are not going to be disciplined for criticizing or speaking out against judges," he told the Detroit News.

Paul Egan reported in the Sept. 5 Detroit News:
DETROIT -- Embattled Southfield attorney Geoffrey Fieger scored a victory Tuesday when a federal judge in Detroit declared unconstitutional Michigan court rules that were used to discipline him.

"It's satisfying to know that the U.S. Constitution survives a little in Michigan," said Fieger, who along with Detroit attorney Richard L. Steinberg sued the Michigan Supreme Court over its Rules of Professional Conduct for attorneys.

The Supreme Court used the rules to discipline Fieger after he gave a radio interview in 1999 in which he referred to specific state appeals court judges as jackasses and compared them to Adolph Hitler and his associates.

The rules say lawyers must treat everyone involved in the legal process with "courtesy and respect" and should "not engage in undignified or discourteous conduct" toward the bench.

In the decision released late Tuesday, U.S. District Judge Arthur J. Tarnow said "the rules are unconstitutional on their face because they are both overly broad and vague." * * *

Contempt rules still apply, meaning lawyers can't say something outside court that could affect a case.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Courts in general

Courts - "McDonald's sanctioned in strip-search case"

Remember the case in Indiana where a man posing as a radio disc jockey tricked other men into disrobing? See this June 23rd ILB entry titled "Court overturns conviction in disc jockey charade" for background.

Apparently someone or several people have done the same sort of thing up to 44 times at various McDonald's restaurants, according to a story today by Andrew Wolfson in the Louisville Courier Journal. Some quotes:

A judge has sanctioned McDonald's Corp. for withholding evidence in a lawsuit by a former employee who was the victim of a strip-search hoax at its Mount Washington store in 2004.

Senior Judge Tom McDonald [ILB - apparently no relation] said Wednesday that the company either engaged in "plausible deniability" or deliberately "hid the ball from the court, opposing counsel and its own lawyers" when it failed to disclose at least four prior hoaxes at other McDonald's restaurants around the country.

Noting that the company had been sued in three of the incidents, McDonald said: "it is inconceivable to the court how somebody could not know of cases in which they were sued."

Judge McDonald ordered the company to pay discovery costs for plaintiff Louise Ogborn, whose suit is scheduled to go to trial Monday in Bullitt Circuit Court. He also gave McDonald's 48 hours to disclose all information about 44 previous hoaxes at its restaurants before the incident at the Mount Washington store in April 2004.

As part of the sanction, McDonald ordered the company to also surrender material that would normally be protected by attorney-client privilege. He said he could have imposed more severe penalties, including striking the company's answer to Ogborn's lawsuit, which would allow her to win by default. * * *

Issuing the sanction from the bench, McDonald noted that in May he ordered the restaurant company to make an exhaustive search of its records and to check with its franchise stores. He said it wasn't until last month that McDonald's acknowledged the four additional hoaxes.

Ogborn, was 18 and working at the Mount Washington restaurant when she was detained and directed to remove her clothes by managers after a caller pretending to be a police officer accused her of stealing a purse from a customer. A man called in by an assistant manager to watch her forced her to do calisthenics in the nude and to perform oral sex on him, at the behest of the caller.

The incident finally came to an end 3½ hours later when a maintenance man realized the call was a hoax.

This sentence the ILB found of particular interest: "As part of the sanction, McDonald ordered the company to also surrender material that would normally be protected by attorney-client privilege."

See also this entry from the Kentucky Law Blog.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Courts in general

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In USA v. Emerson and Ingram (SD Ind., Judge Hamilton), a 19-page opinion, Judge Bauer writes:

Sherman Emerson and William E. Ingram were already known to law enforcement when a confidential informant, Edwin Douglas, contacted Detective Kenneth Martinez of the Indianapolis Police Department in November of 2004 about Ingram’s interest in committing “licks” or “drug rips”—robbing drug dealers of their drugs. At that time, Ingram had prior convictions for dealing in a sawed-off shotgun, criminal confinement, receiving stolen property, and intimidation. He and Emerson also had been charged with murder arising from an earlier lick. The Indianapolis Police Department referred the matter to federal authorities, who launched a sting operation that nabbed Ingram and Emerson, as well as four other individuals. Only Ingram and Emerson proceeded to trial, where a jury convicted them of conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). The jury also convicted Ingram of carrying a firearm in furtherance of a drug-trafficking crime and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 924(c) and 922(g), respectively. Ingram and Emerson appeal their convictions and sentences. We affirm.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

For publication opinions today (1):

In State Farm Mutual Automobile Insurance Company v. Troy E. Cox. an 11-page opinion, Judge Darden writes:

State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the order awarding to its insured, Troy D. Cox, the sum of $50,000.00 deposited with the trial court by Kentucky National Insurance Company (“Kentucky”) on behalf of Aaron McCauley. We affirm. * * *

The trial court found that State Farm’s claim to the $50,000.00 was one of subrogation, and we agree. The policy provides that State Farm may recover its uninsured motor vehicle coverage payments “only after the insured has been fully compensated.” (App. 136). Whether Cox had “been fully compensated” remained a material question of fact when State Farm made its second motion for summary judgment. After trial, the trial court determined that Cox’s damages totaled $182,000.00 and that he had only received a total of $130,000.00 to date from State Farm. Therefore, pursuant to the terms and the “Conditions” of State Farm’s policy, (App. 136), Cox had not been fully compensated, and State Farm was not entitled to any of the $50,000.00 made available by Kentucky.

The policy contains “clear and unambiguous” language regarding State Farm’s ability to recover payments from its insured. Dunn, 836 N.E.2d at 251. Specifically, the provision states that State Farm’s “right to recover [its] payments under uninsured motor vehicle coverage applies only after the insured has been fully compensated.” (App. 136). The provision does not reference its earlier anti-stacking and policy-to-policy comparison limitations. Observing its obligation to read the policy as a whole and to interpret the policy so as to harmonize its provisions rather than place them in conflict, Dunn, 836 N.E.2d at 251, the trial court did not err as a matter of law in concluding that State Farm was not entitled to the $50,000.00 because, after having received $130,000.00, Cox had not been fully compensated for the $182,000 in damages he suffered as a result of the accident.

NFP civil opinions today (5):

Jason Dobosiewicz v. David J. Drajer and Irene Carlson (NFP) - "The trial court’s conclusion that a partnership did not exist between Dobosiewicz and Carlson and Drajer was not clearly erroneous. We affirm."

Dennis Conwell, Frank Splittorff, and Piece of America, LP v. Gray Loon Outdoor Marketing Group, Inc. (NFP) - This is a 8-page opinion involving payments for making alterations to a web site. Senior Judge Hoffman concludes:

[I.] The trial court concluded that the changes to the website were made at POA’s request for the purpose of enhancing the website and giving it additional capabilities. (Trial Court’s Conclusion of Law #8). In this process, the original digital files were altered to create the requested website, and the digital files that POA originally paid for were incorporated into the new website. In this manner, the original digital files were “destroyed.” The trial court reasoned that because the “destruction” through incorporation of the original digital files took place at POA’s behest, Gray Loon could not be found liable for converting the original files by either appropriation or destruction of POA’s personal property. Stated differently, the trial court’s judgment acknowledged that “forfeiture” of the $8,500 invested in the original website was occasioned by POA, not Gray Loon. We see no engrafted forfeiture provision here. Furthermore, we cannot say that the trial court erred in concluding that there was no conversion under the facts of this case. * * *

[II.] We further note that even though the cost of creation of a new website exceeded $500.00, POA cannot avail itself of the protection provided by the Statute of Frauds. The oral agreement between the parties is enforceable under Ind. Code § 26-1-2-201(3)(a) because the website was specially modified for POA and is not suitable for sale to others in the ordinary course of Gray Loon’s business. Also, the oral agreement is enforceable under Ind. Code § 26-1-2-201(3)(b), which provides that an oral agreement is enforceable “if the party against whom enforcement is sought admits in his pleading, testimony, or otherwise in court that a contract for sale was made. . . .” Here, POA admitted in both its answer and in Conwell’s and Splittorff’s testimonies that it requested the creation of a new website. Furthermore, Conwell and Splittorff both admitted that Gray Loon created the new website at Conwell’s behest.

The parties’ failure to establish price at the time of the agreement does not render the contract unenforceable. Ind. Code § 26-1-2-305 governs contracts in which the price is not settled. Given the fact that the only evidence presented was that the price was $5,224.50, we cannot say that the trial court was clearly erroneous in assigning that price. Even though it may have been a better practice for Gray Loon to inform POA of the cost before performing the requested modifications, we cannot say that the failure to do so should render the contract unenforceable.

Matthew S. Strahle v. Lisa M. Rhorer (NFP) - "Matthew S. Strahle (“Father”) appeals the trial court’s order modifying child support. We dismiss. * * * Here, only a partial transcript of the final dissolution hearing has been made available for our review, and Father has not provided a verified statement of evidence.3 We therefore are unable to conduct a meaningful review of the issues presented by Father. Accordingly, we must dismiss Father’s appeal."

Charles A. Warnsley v. Sheila A. Warnsley (NFP) - "Charles A. Warnsley (“Husband”) appeals the trial court’s order dissolving his marriage to Sheila A. Warnsley (“Wife”). We reverse and remand with instructions. Issue. Whether the trial court erred in valuing Husband’s retirement fund."

In Alvena Perry v. Rick Patterson, Individually and d/b/a Record Cellar (NFP), a 4-page opinion, Judge Darden writes:

Alvina Perry appeals the trial court’s granting of the motion to correct error filed by Rick Patterson, individually and d/b/a Record Cellar (“Patterson”). We reverse.

Issue. Whether the trial court improperly granted Patterson’s motion to correct error. * * *

In this case, the trial court did not set a hearing on Patterson’s motion to correct error. Thus, the motion was deemed denied on or about August 28, 2006, or forty-five days after Patterson filed it. Patterson did not timely initiate an appeal after the motion was deemed denied. Perry, however, timely appealed the belated granting of the motion.

Given the facts before us, we find that the motion to correct error was deemed denied on or about August 28, 2006 pursuant to Trial Rule 53.3(A), and the trial court’s belated granting of the motion cannot stand. Reversed.

NFP criminal opinions today (13):

Ira C. White v. State of Indiana (NFP)

Ernest Smith v. State of Indiana (NFP)

Michael Kelnhofer v. State of Indiana (NFP)

Farrell Henderson v. State of Indiana (NFP)

Dale Mundy v. State of Indiana (NFP)

John Taylor v. State of Indiana (NFP)

Ronnie E. Polk v. State of Indiana (NFP)

Antonio Stoudemire v. State of Indiana (NFP)

Lynn Wiggins v. State of Indiana (NFP)

Jamel Gilbert v. State of Indiana (NFP)

Francis Lamarr Sims v. State of Indiana (NFP)

Richard Williams v. State of Indiana (NFP)

Charles Duff v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - A number of stories today about property tax legal challenge

Carmel attorney John Price has filed suit in the Indiana Tax Court challenging the property tax. "The lawsuit is the third that Price has filed concerning property taxes this year," according to Lesley Stedman Weidenbener's story in the LCJ, "Lawsuit challenges property tax rates: Questions also raised on assessment process," is available here.

Tim Evans' story, "Lawsuit challenges property tax system: Plaintiffs allege the state doesn't apply tax rates fairly," is available here in the Indianapolis Star.

Patrick Guinane's story in the NWI Times, is available here. It begins:

Indiana's property tax morass deepened Thursday with the launch of a broad lawsuit challenging whether the primary means for supporting local government and schools is administered fairly or competently across the state.

The lawsuit, filed in Indiana Tax Court by Indianapolis attorney John Price, addressed several issues limited to Marion County, but it represents individuals and advocacy groups across the state, including region activist Wes Miller and his Team Hammond Taxpayers Group.

The plaintiffs have requested class-action status, so that the suit could represent all of Indiana's roughly 2 million property owners.

"Taxpayers take reform battle to court" is the heading to a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:
The new complaint filed Thursday involves 14 counts. Two of them relate directly to Marion County, challenging a recently passed income tax increase and seeking immediate tax refunds to homeowners who overpaid while a new assessment is ongoing.

The claims of more statewide importance include:

• Tax rate equality. Although the Indiana Constitution requires a “uniform and equal rate of property assessment and taxation,” the lawsuit points out that the numerous taxing districts in a county have resulted in widely varying tax rates.

“The differential tax rates are the result of intentional state discrimination,” the complaint said. “While absolute uniformity cannot be expected, differential effects of over 100 percent simply do not comport with the requirements of Article 10, Section 1.”

• Unfair assessment practices. Specifically, the suit points out that the Indiana Department of Local Government Finance instructed assessors to exclude foreclosures and tax sales when assessing a home’s new market value. This practice “skews and distorts the true market value of residences.”

Also, the complaint contends that tax abatements for businesses are unfair, as is a state rule that prohibits reassessing land purchased by a developer based on the sales price until the buyer obtains a building permit for the land.

• Extension of local option income tax deadlines. The lawsuit said the legislature passed a law allowing local governments to increase income taxes as long as they did so by Aug. 1. But Gov. Mitch Daniels has arbitrarily extended that deadline twice.

“We’re asking the court to enforce the statute as written regarding the income tax rate increases on the local level because the legislature said Aug. 1st is the deadline and neither the governor nor the Department of Local Government Finance can rewrite statutes,” Price said. “If they could we wouldn’t need a legislature.”

Daniels said Wednesday in an unrelated news conference that he may very well need to ask the legislature to retroactively ratify his action when lawmakers return in November for Organization Day.

A statement released Thursday from Daniels’ general counsel, Mark Massa, said, “Governor Daniels has acted boldly to protect property taxpayers and shouldn’t be included in this lawsuit.”

• The Common School Fund. The lawsuit claims the Constitution restricts the collection of property taxes for schools to corporations – not homes. But the lawsuit bases the argument solely on a section setting up the Common School Fund, a revolving account to give school districts with lower assessed values low-interest construction loans, technology grants and charter school startup assistance.

Gary Welsh of Advance Indiana has a long post on the suit. Gary has also sent the ILB a copy of the 32-page complaint, which the ILB has posted here.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Indiana Courts

Environment - The Economist features BP story

The weekly British publication, The Economist, has a well-written story, dateline Chicago, titled "Muddy waters: The murky rules for keeping the Great Lakes clean." Some quotes:

IT IS not often that Whiting, Indiana, makes the national news. But Indiana's plan to let BP, a British energy company, expand an oil refinery there, possibly increasing pollution in Lake Michigan, has raised hackles not just in neighbouring Illinois but all the way to Capitol Hill. Barack Obama, a senator from Illinois, wrote a stern letter. Illinois's governor and Chicago's mayor threatened to sue.

Faced with such protests (and a petition signed by more than 100,000 people), on August 23rd BP agreed to limit discharges to the lake. But the scuffle goes on. Not only does BP now face scrutiny over its atmospheric emissions, but Indiana's permit allowing the company to increase pollution to the lake also remains valid. In October a judge will consider a lawsuit that seeks to revoke it.

The brawl has made two things clear. First, there is widespread hostility to polluting any of the five Great Lakes, which supply drinking water to some 30m Americans, not to mention many Canadians, each year. Second, despite the common desire to keep the lakes clean, there is confusion over who is in charge of doing so. Of the many rules that limit pollution to the lakes, the most important is the Clean Water Act. But implementing it remains as tricky as ever. * * *

Of course, some states are stricter than others. Indiana gave a permit to BP that allows it to increase emissions of ammonia and suspended solids (critics call it sludge) by 54% and 35% respectively. Lawyers at the Environmental Law and Policy Centre protest that this defies a basic provision of the Clean Water Act, that states cannot let pollution rise. But there is a loophole: a state may in some cases allow a facility to increase pollution, though not past federal limits, if it is able to show that more filth is necessary to produce an important economic or social benefit.

Though the EPA does have the power to intervene in such cases, states usually end up doing as they please, according to Cameron Davis, president of the Alliance for the Great Lakes. The EPA did not reject BP's permit, so a neighbourhood fight broke out. Indiana's scheme was bound to anger the other states around the lake—Illinois, Michigan and Wisconsin—which would have dirtier water without the benefit of new jobs.

The muddle over how to limit water pollution from a refinery, which at least is easy to identify, does not bode well. How to regulate “non-point source” pollution, such as pesticides from agricultural run-off, is a continuing, and harder, debate. Another question is who should oversee construction on wetlands: a Supreme Court ruling in 2006 only increased confusion over the federal government's role. It is not just environmentalists who want to clear this up. “Regulatory certainty is very important when companies are making multi-billion dollar investments,” explains Scott Dean, a spokesman for BP.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Environment

Law - There is hope for old lawyers!

"Desperately Seeking Seniors" is the heading of a long and fascinating story by Elizabeth Goldberg
in The American Lawyer. It begins:

When Howrey decided to open a New York office, CEO Robert Ruyak knew that the firm needed lawyers wise to the ways of the city. So three months after the November launch, Ruyak convinced three self-described "old geezers" with 129 years of combined experienced to come aboard. Sure, Michael Armstrong, 74; William Purcell, 65; and Paul Rooney, 69, are old enough to remember Mayor John Lindsay and $6,500 associate salaries. They're also old enough to have vast networks of contacts that Howrey can now ply for recruits and clients.

Howrey isn't the only firm eager to snap up senior talent. McDermott Will & Emery poached trusts and estates expert Henry "Terry" Christensen III, 62, from Sullivan & Cromwell in July to globalize its private clients group. LeBoeuf, Lamb, Greene & MacRae hired securities litigator Ralph Ferrara and international arbitrator Arthur Marriott from Debevoise & Plimpton in 2005, when both were in their 60s. And several large firms competed for William Carmell, 67, last fall when he faced mandatory retirement at Winston & Strawn. He is now helping the labor boutique Ford & Harrison grow its New York outpost.

No longer will the 60-plus set just take a pension and slink off into the sunset. Lawyers are living longer and healthier, and many want to stay professionally active well into their 70s. According to the American Bar Association, which has called for the elimination of mandatory retirement, the median age of all lawyers rose from 39 in 1980 to 45 in 2000 and is still climbing.

This demographic change has split the legal industry. On one side are law firms (57 percent of firms with more than 100 lawyers, according to a survey by Altman Weil Inc., legal consultants) that require older lawyers to leave at a certain age. On the other side are firms without strict age limits.

Economics are driving the split. "The younger people want to make more money," says James Matthews III, explaining the view of firms on the mandatory retirement side of the divide. He is a lawyer at Fox Rothschild who represents law firms in labor and employment matters. "The senior people have been making money for a long time, and for the young people to make more, the old people need to go. It is just as mercenary as it sounds."

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to General Law Related

Environment - Purdue sets up CAFO site

The Grant County Chronicle-Tribune reports:

WEST LAFAYETTE - A new Web site featuring scientific information about concentrated animal feeding operations was developed by Purdue University to help people who make decisions about CAFOs.

"We wanted to develop a source of information that is based on science, not sentiment," said Alan Grant, head of the Department of Animal Sciences. "We are excited because this Web site brings information from multiple disciplines together and is easy for people to access."

The information, written by Purdue experts, is targeted to zoning boards, planning commissions, agricultural Extension educators, as well as citizens and farmers.

The Web site covers environmental issues, public health issues, social and economic issues, and general information. Additional content will be added in the coming weeks.

"It's designed to be a clearinghouse of unbiased scientific information covering different issues related to modern animal agriculture," said Paul Ebner, Purdue Extension expert in animal science and Web site operator. "Let's say a zoning board has to make a decision about allowing a producer to build a CAFO within five miles of an elementary school," Ebner said. "That zoning board is receiving information from the producer, the local commodity group's organization, parents of school children, as well as neighbors of the producer and the school."

Here is the link.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Environment

Ind. Decisions - "Court of Appeals sides with county in Jackson Township, Porter County case"

The COA's NFP decision August 31st in the case of John and Dorothy Arndt & Arndt, LLC v. Porter County Plan Commission (NFP) (see ILB entry here) is the subject of a story in Thursday's Chesterton Tribune:

The Indiana Court of Appeals has upheld a 2005 decision by the Porter County Plan Commission against a proposed 12-lot subdivision in Jackson Township.

In a ruling last week, the court rejected the appeal brought by John and Dorothy Arndt of Romeo, Mich., who proposed the Rilan Acres subdivision on 20 acres at C.R. 988N 400E.

The county plan commission in September of 2005 voted 8-1 against the primary plat, and the Arndts appealed. Porter Superior Court Judge William Alexa upheld the plan commission’s rejection, and the Arndts appealed to the higher court.

In its ruling last week, the appellate court said the plan commission did not err when it concluded that Arndt did not provide enough evidence to demonstrate that the land was unsuitable for development under the county’s open space ordinance.

At the public hearing held on Rilan Acres, the plan commission heard from neighboring residents who spoke about the high water table and flood-prone conditions at the site. Residents also spoke of the pristine quality of nearby Sand Creek, raising concerns that a new development would negatively impact the natural environment.

The court of appeals’ ruling noted that it does not reverse a decision by an administrative agency -- in this case, the plan commission -- unless the evidence as a whole demonstrates that its conclusions were erroneous. In their court fight, the Arndts argued that the plan commission had no discretion to deny the primary plat since it complied with the requirements of the Porter County subdivision control ordinance.

Citing a Marshall County case, the court of appeals stated that a plan commission’s only task is to determine if a proposed primary plat complies with the standards of the subdivision control ordinance, and that a commission cannot deny an application for factors not in the ordinance.

But in the Rilan Acres ruling, the court noted that one of the county ordinances that must be adhered to is the open space ordinance. Its ruling includes a portion of that ordinance that describes lands that are unsuitable for development. The description includes those that are prone to flooding, improper drainage or having other features that may be harmful to the present or future residents of the development. If the unsuitable conditions cannot be remedied, then the lands involved should be set aside and remain as open space, under the ordinance.

The court noted that the plan commission had testimony and evidence regarding the soil, water table, swampy conditions, undisturbed natural features and the fragile environment at Rilan Acres. “We must defer to the Commission’s expertise in finding (that) ‘standard management practices may not be sufficient to protect this fragile environment’ and ‘natural features on this property ... may require a greater set aside under the open space requirements,’” the court ruling states.

The plan commission also raised concerns about the soil’s suitability for septic fields. The Arndts argued that the septic suitability is an issue for the County Health Department. But the court of appeals found that while health department approval is necessary before the plan commission may approve a primary plat, the health department approval is not enough to guarantee plan commission approval.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals court upholds Burke’s appointment of Ralston as chief"

Reporting today on the COA decision Aug. 31st in the case of International Union of Police Associations, Local No. 133 v. George Ralston, et al (ILB summary here - 3rd case), the Terre Haute Trib-Star writes:

Terre Haute Mayor Kevin Burke was within his right to appoint Police Chief George Ralston to his position, an appeals court ruled late last week.

The Indiana Court of Appeals issued a ruling dated Aug. 31 in Terre Haute’s favor in a case challenging Burke’s appointment of Ralston. The International Union of Police Associations Local 133, which represents Terre Haute police officers, had challenged the appointment since Ralston was not on the Police Department before Burke appointed him.

The court ruled that state law does not require a police chief to be a member at the time he is appointed.

“It’s always been clear for [first- and second-class] cities … that the chief does not have to come from the department if he meets all the other qualifications,” said Bill Drummy, an attorney who represented the City of Terre Haute in the litigation.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to

Ind. Courts - "Court of Appeals Administrator Named to National Office"

From a press release yesterday:

Steve Lancaster, the Administrator for the Indiana Court of Appeals, was selected as President of the National Conference of Appellate Court Clerks (NCACC) by the group’s membership last month. He took office on August 9, 2007 at the conference’s annual meeting in New Orleans. His term will last one year.
Read the entire article here.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Indiana Courts

Ind. Law - Not golfcarts, but ATVs

"It's official: ATV's allowed on county roads" is the heading to this story by Lisa Meyer Trigg in the Greencastle Banner Graphic. Some quotes:

Starting Oct. 1, individuals can ride all-terrain vehicles legally on Putnam County roads.

With a unanimous vote from Commissioners Jim Baird, Gene Beck and Kristina Warren, the county ATV Ordinance received unanimous approval on Tuesday night.

They set Oct. 1 as the effective date to give ATV owners time to register their vehicles with the Indiana Department of Natural Resources, and to notify local law enforcement of the new ordinance.

About 15 people supporting the ordinance quietly awaited the commissioners' decision, and no one spoke against the measure, which has been under consideration since spring.

Each commissioner said they had received phone calls both in favor and opposed to the ordinance.

Warren said some people have concerns about ATV riders on the heavily traveled Manhattan Road.

Baird said he has heard about damage to the roads, primarily from irresponsible people doing "doughnuts" which rut the county roads.

"But they do that anyway," Warren said of joyriders spinning circles in the roads.

While the commissioners have noted they could make certain county roads exempt from the ordinance, that might be more trouble than it's worth.

"It could be problematic to start picking roads," Baird said.

They agreed the law will be in effect for all county roads.

State roads can only be crossed at a 90-degree angle by an ATV rider. Riders can also utilized the right-of-way running along the side of state roads, according to state code.

Keith Hutcheson, who has represented a group in support of the ATV law, said DNR will give stickers to registered vehicles that should be visibly posted on both sides of the ATV. The registration and proof of insurance could be kept with the ATV at all times, he said.

Warren pointed out that the visible stickers will make it easier for police to see which vehicles are in compliance with the ordinance without having to stop each ATV rider seen on a county road.

Here is a list of earlier ILB entries mentioning "golf carts."

IC 14-19-1 deals with the authority of DNR to re "motorized carts," which include "a golf cart, utility cart, or similar form of motor vehicle." The definition specifically excludes "off-road vehicles." A rule that DNR adopted earlier this year, 05-344, "Amends 312 IAC 8-2-8 to provide for the use of motorized carts at state parks and recreation areas consistent with amendments to IC 14-19-1-1 that were enacted through HEA 1765-2005." None of this deals with authority of DNR to authorize the use of ATVs on state roads.

Posted by Marcia Oddi on Friday, September 07, 2007
Posted to Indiana Law