Sunday, September 30, 2007
Ind. Courts - More on: "Five applicants have submitted their names to be considered for the new Monroe County judge position that will open on Jan. 1, 2008"
Five attorneys have applied for the judgeship of Monroe County’s ninth circuit court, scheduled to begin Jan. 1, 2008. Pursuant to the new court’s enabling legislation, Governor Daniels will appoint a judge to serve for an initial term of one year. If the new judge wants to stay in office, he or she will have to run for election to a six-year term in November 2008.
Some say the new judge has an unfair advantage; as an incumbent, even a short-timer incumbent, the sitting judge may have a head start on the candidates who have to run in the general election. But as illustrated by the case of former judge Jeffrey Chalfant, who received a one-year appointment and then lost in the subsequent November election, that advantage may be slight compared to the power of the political process.
Few dispute that anyone who volunteers to take on a one-year appointment to a new court under the current system faces a huge challenge. The new judge must hire staff, establish policies and procedures, organize and manage the case load, preside over court proceedings, and attend required judicial events. While these duties are expected for any judge, for a new appointee, there is yet another burden: as soon as he or she crosses the judicial threshold, it’s time to run for office — a job which any county officeholder would acknowledge requires planning, networking, volunteer coordination, and public appearances.
One solution would be to establish new courts with a general election instead of an appointment. Another would be to adopt legislation that would provide for a bipartisan commission to select new appointees instead of the governor, with the initial appointments being for a longer period of time before a general election is held. Even more radical would be the elimination of partisan elections for judges altogether.
Until a better system is adopted, a new judicial appointee to a newly created court faces a very busy first year in office. We trust these five candidates have their eyes fully open to the challenges ahead for the winner.
Ind. Courts - CASA partners with IRTA
From a story in the Brazil Times dated 9/24:
Leaders of the Indiana Retired Teachers Association (IRTA) announced a new partnership recently between IRTA and CASA (Court-Appointed Special Advocates), in which IRTA members will be encouraged to serve as CASA volunteers across the state.
The partnership was introduced at IRTA's annual fall workshop, which took place in South Bend, Delphi/Lafayette, Pendleton and Corydon. * * *
"We have chosen this partnership with CASA as a statewide project for the next two years," IRTA President Gene Wease said.
"The National Retired Teachers Association is looking at Indiana to use our program as a national model. I am excited about the opportunity to help children across Indiana."
Ind. Decisions - John Myers, convicted of killing IU student Jill Behrman, files appeal
[Defense attorney Patrick] Baker filed the appeal Sept. 21 after being granted three extensions of time. In June, Appeals Court Chief Judge John G. Baker granted the trial lawyer’s request to file an “oversized brief.” Appellate rules generally limit appeals briefs to 14,000 words, but the judge said Myers’ lawyer could submit up to 28,000 words.
Baker agreed to continue representing Myers, without pay, during the appeals process.
The brief includes a statement of issues Baker addresses at length:
Should Burnham have granted a change of venue, given the blanket coverage of the case by local media? Baker wrote that the public was influenced “by the media hysteria, which memorialized Ms. Behrman, while demonizing and displaying Mr. Myers as an evil person.” He said the trial should have been moved “to a county as far away as possible from Morgan County.” He accused the media of engaging in “a clear pattern of prejudicial press coverage” that caused his client to be “the subject of vicious character assassination.”
Should the judge have not allowed damaging testimony from Myers’ former girlfriend and from his grandmother? The girlfriend said he took her to the spot where Behrman’s body was later found. The grandmother testified Myers told her he had done a very bad thing that could send him to jail for life.
Should a forensic pathologist’s opinion that Behrman was raped, even though there was no evidence available of sexual assault, have been admitted?
Should the jurors have been allowed to listen to an audiotape of police interrogating Myers?
Should the judge have excluded an FBI report that focused on other suspects in Behrman’s killing?
Was the separation-of-witness order violated?
Should the judge have granted a mistrial when a police officer referred to Myers’ refusal to take a lie detector test, and after another officer’s statement that Myers knew things about the crime that only the killer would know?
Does the jurors’ conduct, including the high-heels incident, nightly drinking at dinner and reports that they smuggled a TV and cell phone into their hotel, warrant a mistrial? “Is this the type of conduct expected from grown adults involved in such an important case, deciding a man’s liberty?” Baker asked.
Was there enough evidence presented to support a guilty verdict?
Do the alleged errors combined, even if each is not substantial enough on its own, meet the legal standard of cumulative error, justifying overturning the verdict?
The Morgan County Prosecutor’s Office has 30 days to respond. Then, members of the Indiana Court of Appeals will consider the case and issue a ruling.
Courts - More on Indiana Voter ID Law goes to Supreme Court [Updated]
The Evansville Courier & Press today editorializes in favor of upholding Indiana's voter ID law, concluding:
Passing this law was more about political posturing than integrity of the ballot box. To the extent that voter fraud exists in Indiana, it's more likely to occur with mail-in absentee ballots.Hmmm, the voter ID law as a post 9/11 security measure.
While there was little need for this law, we don't have a huge objection to requiring ID at polling places. People are asked to show identification every day to board airplanes, cash checks or buy alcohol. Flashing ID before voting is not particularly onerous — as long as the ballot remains secret and there are backup measures for Hoosiers who lack identification. For example, someone who just lost his home, possessions and ID in a pre-election tornado or house fire might very well need provisional balloting.
The current Supreme Court under Chief Justice John G. Roberts has been relatively supportive of post-Sept. 11 security measures. We hope the justices will see through the political machinations motivating both sides in this case. The eventual decision ought to be crafted narrowly enough to uphold the basic legality of the voter ID law, while still ensuring that no eligible voter is disenfranchised.
[Updated] The NY Times today, in an editorial runthrough of some upcoming issues before the Supreme Court, says this about the voter ID case:
The case that will most test the court’s ability to rise above partisanship is a challenge to Indiana’s voter ID law. Indiana is one of a growing number of states that require voters to present a government-issued photo ID. Such laws have been billed as anti-vote-fraud measures, but there is little evidence of vote fraud at the polls. The Republicans who have pushed these laws are trying to make it hard for poor and minority voters, who are less likely than other groups to have drivers’ licenses — and more likely to vote Democratic — to cast ballots. The court has traditionally championed voting rights, but a conservative majority may boost Republican chances in 2008 by endorsing this disturbing barrier to voting.
Ind. Courts - "Two courts set to test records system"
Information on the progress of this project is not frequent. The most recent ILB entry was this one from June 11, 2007, based on a press release from Tyler Technologies, announcing that the company had signed a contract with the Indiana Supreme Court. At that time, and today, the most recent information on the Court's website was dated May 24, 2007. A quote:
JTAC is working with Tyler Technologies, Inc., to implement Odyssey in a phased approach. Phases 0 and 1 are currently in progress. During these two phases, Odyssey will be implemented in two pilot locations: all Monroe County Circuit Courts and Washington Township Small Claims Court in Marion County. Odyssey is anticipated to be live in these courts by the end of 2007.From half-way through Jon Murray's story today in the Indianapolis Star we get the news:
Monroe Circuit Court and Washington Township Small Claims Court in Marion County are up first. They plan to switch to Tyler's Odyssey case-management software in December.But perhaps the real news is in the next paragraphs:
Frustrated by the delays, however, Marion Superior Court judges sought permission from the Supreme Court to proceed with their own upgrade of the county's nearly 20-year-old case-management system, JUSTIS.The initial story on the Court's project appeared in the Indianapolis Star on March 8th, 2005. Written by Staci Hupp, it was headed "Plan to link 400 courts hits a wall: Costly software glitch halts effort to computerize records statewide". Portions are quoted in this 3/8/07 ILB entry, including:
Like Odyssey, the county's new system will be Web-based and promises many of the same improvements. Employees have been working with consultants to build it from the ground up, paying for the work within the court's maintenance budget.
"Our courts have been chomping at the bit to move forward," said Glenn Lawrence, the Marion Superior Court administrator. "It's a film camera as opposed to a digital camera." * * *
Marion County's system could be ready to go live in the spring. But the judges also will keep an eye on the state's efforts, Lawrence said, and could decide to wait it out based on a financial analysis and how well the pilot testing goes. If the county keeps its own system, Lawrence said, it still would be able to connect with those in the state's web. * * *
The Supreme Court's Judicial Technology and Automation Committee (JTAC) is overseeing the effort. Its other projects include the computerization of traffic tickets and protective orders.
The computerized court system could expand across the state over six years, beginning in 2009, if later pilot counties are successful. Counties won't be forced to make the switch, DePrez said. If Marion County, which handles one-quarter of the state's cases, signs on, it likely would get priority, she said.
With both systems, the public likely would be able to view some case information online.
The breakdown surfaced in December, as Marion County officials tested a piece of software designed for Indiana civil courts. They found it lacked a critical element -- the ability to keep tabs on court fines and costs.Today's Star story includes this Timetable for the revamped project:
• June 2007: Initial analysis of Indiana courts' needs. Completed.
• December 2007: Begin a test drive of Tyler's Odyssey software in Monroe Circuit Court and Washington Township Small Claims Court in Marion County.
• By mid-2009: Continue refining the program based on the first two sites. Convert five other pilot counties to the new system.
• 2009 to 2015: Begin sending "deployment teams" county to county to install the system across the state.
Ind. Gov't. - Ed Thuma, first head of the Legislative Services Agency, dies at 74
The Indianapolis Star today contains the obituary of Edison L. Thuma, who died Sept. 16th in Danville. From the obit:
Ed then served in state government in Indiana in various capacities, including the first Executive Director of the Legislative Services Agency and served as Governor Otis Bowen's budget director during the Governor's first term in office. He served as Deputy Health Commissioner and Mental Health Commissioner for Governor Robert Orr. * * *Ed was a well-liked and well-respected figure in state government for many years. I worked for him at the Legislative Services Agency and at the State Budget Agency. He will be missed.
Ed is survived by his wife, Sharon, and his four children, Nathan of Napa Valley, California, David of Albuquerque, New Mexico, Jennifer of Indianapolis and Eric of Bloomington, as well as four grandchildren, Tobin, Gabrielle, Malcolm and Kate. * * *
A memorial service in his honor will be held Saturday, October 6, 2007 at 1 p.m. at Blanton House, 625 N. Washington St., in Danville.
Ind. Courts - More on: Judge Tinder sails through confirmation hearing
Maureen Groppe of the Indianapolis Star Washington Bureau has a second report today (see earlier 9/26 report here) on Judge John Tinder's Sept. 25th hearing before the Senate Judiciary Committee. It is very similar to the first story.
Ind. Gov't. - More on: - Should legislators be allowed to serve as officers or directors of state universities and schools?
The ILB posted this entry on Oct. 8, 2006, quoting from several earlier entries, including: "The fact that Ivy Tech employs both the Senate President Pro Tem and the House Minority Leader (or Speaker, depending on the year) has been a subject of conversation for years. But nothing has been done about it." This ILB entry from March 30, 2007 is headed "More on "Ivy Tech’s troubled roots: Political entanglements deter community college mission". This ILB entry from April 17, 2007 describes the Pulitzer Prize for Investigative Reporting this year:
INVESTIGATIVE REPORTING: BRETT J. BLACKLEDGE, The Birmingham NewsToday's top story in the Indianapolis Star, reported by Brendan O'Shaughnessy, is headed: "Does Monroe Gray have two different jobs? The council president draws two paychecks, but the city can't produce work from his Fire Department job." But it includes plenty of mention of the long-time situation at Ivy Tech, including:
Mr. Blackledge, 43, won for his work exposing extensive corruption and cronyism in Alabama’s network of 26 two-year colleges and training schools.
Mr. Blackledge’s reporting has led to the chancellor’s dismissal and to a move by the governor to ban the hiring of any state legislator by any of the colleges.
His dual role is an example of a larger issue in Indiana: the potential conflict of interest that can result when state and local laws allow elected officials to work in government jobs.The Star's newly updated government salaries database, released last week, remedies the shortcomings of last year's database, as the ILB wrote in this entry last Sunday, salaries of Ivy Tech employees are included in this year's database.
Other states, including Ohio and Kentucky, have made it illegal for public employees to hold office in the same jurisdiction in which they work. State law changes in 1981 and 1995 made it legal to hold dual roles in Indiana. * * *
Gray is not the only public official working in a potentially conflicting role. Others include House Speaker B. Patrick Bauer, D-South Bend, and Rep. Bill Crawford, D-Indianapolis, who are among legislators who collect paychecks from Ivy Tech Community College of Indiana and from the legislature while voting on measures that affect state colleges. Bauer earns $137,289 for the two roles; Crawford earns $106,153 for them.
A side-bar to today's front-page Star story restates the updated salary information:
House Speaker B. Patrick Bauer, D-South Bend; Rep. Bill Crawford, D-Indianapolis; and former Senate President Pro Tem Robert D. Garton, R-Columbus, received more than $40,000 each annually for their service to the Indiana General Assembly and receive additional pay for working for Ivy Tech, a state college funded by taxpayer dollars. Bauer earns a total of $137,289 for both jobs; Crawford, $106,153. All three men have voted on the budget, which includes state college funding.
Saturday, September 29, 2007
Ind. Courts - "Caesars' bid to dismiss suit rejected"
"Caesars' bid to dismiss suit rejected: Woman says casino exploited addiction," is the headline to a story by Grace Schneider in today's Louisville Courier Journal. Some quotes:
A request by Caesars Indiana to dismiss a Tennessee woman's lawsuit claiming that the casino took advantage of her gambling addiction was rejected yesterday by a Harrison County judge.Here are some quotes from an earlier story (9/3/07) by the same reporter:
Circuit Judge H. Lloyd Whitis' ruling in the case of Jenny Kephart could open the door to a trial examining a casino's duty in handling compulsive gamblers. * * *
Whitis did not explain his reason for denying Caesars' motion. Kephart sued the casino in May after Caesars had taken her to court to recover $125,000 that Kephart lost during a single night of gambling in 2006.
Kephart, 52, of suburban Nashville, Tenn., has admitted losing more than $900,000 at casinos owned by Harrah's Entertainment Inc., which owns Caesars.
Her counterclaim alleges that Caesars knew that she had received a $1 million inheritance and enticed her with giveaways such as meals and overnight hotel stays and provided money on credit for her to gamble, despite knowing she was a compulsive gambler.
Noffsinger has said that casino executives also knew that Kephart had gone through bankruptcy four years earlier when parent Harrah's was one of her creditors. Kephart has worked in real estate but is now unemployed.
Indiana courts have shown little sympathy to gamblers who insist that casinos should be liable for their losses, ruling in similar cases that casino operators don't have to prevent customers from gambling.
Langdon had argued in written briefs and during a hearing before Whitis in August that Caesars employees had no way to know that Kephart was addicted to gambling because she didn't ask to be placed on a self-exclusion list allowing gamblers to have themselves banned from casinos.
In Indiana, 2,097 gamblers have requested self exclusion -- for periods of one year, five years or life -- since the program's inception in July 2004, according to Indiana Gaming Commission reports.
Kephart's case centers on whether a casino has a duty to protect an addicted gambler from himself or herself.
Her lawyer, Terry Noffsinger, Evansville, contends that pathological gambling is widely viewed as a mental illness. He argued that Caesars' representatives knew Kephart couldn't control her gambling binges but still took "affirmative steps to persuade her to gamble" by calling her at home and offering her credit and complimentary hotel rooms, meals and limousine rides.
In similar cases, Indiana courts have held that casino operators don't have to prevent customers from gambling and consequently aren't responsible for their losses.
But Noffsinger stressed that the law is not fully settled in cases involving problem gambling.
"If she had just gone in (to Caesars) on her own, that would be one thing," he said. Instead, he told the judge Wednesday, he intends to prove that casino officials knew that Kephart was an addicted gambler and that they pursued her because she had money to spare from a $1 million inheritance she received in 2004. * * *
Noffsinger previously represented Evansville resident and professed gambling addict David Williams in a federal lawsuit in which the precedent that casinos have no duty to protect a compulsive gambler from himself was upheld.
Ind. Courts - Updating: More problems with the Camm trial transcript?
Updating these ILB entries from August 16th and August 16th-2 on reconstructing the inaudible objections in the David Camm transcript, Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:
Lawyers for David Camm will have two more weeks to file the appeal of his convictions in his second murder trial, but Indiana Chief Justice Randall Shepard won't let them write as much as they want about the case.
In an order issued yesterday, Shepard agreed to another extension of the deadline for the brief supporting Camm's appeal to the Indiana Supreme Court.
But Shepard denied the attorneys' request to increase the size limit on the brief from 21,000 words to 28,000. * * *
Shepard's ruling on the appeal extension gives court officials in Warrick County time to incorporate in the transcript reconstructed versions of objections raised during the trial. The court reporter had not been able to hear discussions about the objections, which took place near the judge's bench, so they were not included in the official transcript.
Warrick County Superior Court Judge Robert Aylsworth earlier this week approved some reconstructions of the discussions for inclusion in the transcript. The court reporter has until Oct. 3 to complete the new transcript, and then Camm's attorneys have until Oct. 12 to finish the brief.
Ind. Courts - More on: Vigo County Drug Court has saved taxpayers nearly $3 million over 10 years
Updating this ILB entry from yesterday, this ILB has located the NPC Research reports referenced in the stories. Here is the April 2007 report titled "Indiana Drug Courts: Vigo County Drug Court - Process, Outcome and Cost Evaluation - FINAL REPORT." Here is the entire list of reports, including several other Indiana counties.
Here is the Indiana Courts page on Drug Courts.
Ind. Decisions - More on the Supreme Court's probation fees decision
Updating this entry on Wednesday's Supreme Court decision in Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, the probation fees decision, Larry Thomas of the New Albany News and Tribune reports on what is next :
Clark County’s Circuit and Superior court judges are largely thankful that a nearly three-year lawsuit with the County Council has ended following an Indiana Supreme Court decision on Wednesday.
Justices ruled 5-0 that the County Council illegally exerted control over probation user fees in 2005 and 2006, and remanded the case to DuBois County Superior Judge Elaine Brown — who is special judge in the case — to determine how much money the council must repay the courts’ probation user fee funds.
Superior Court 3 Judge Steve Fleece said he would prefer to return to Brown with an agreement with the council that stipulates the amount of money to be repaid, rather than forcing Brown to sort through budgets and other documents before imposing a figure on the sides.
“This all requires that they’re going to act in good faith,” said Fleece, referring to council members.
Fleece added that the county’s 2004 budget — the last before the council began supplementing the county’s budget with probation funds — would likely be the starting point for such research.
“We’re pulling those budgets to take a look,” said Superior Court 2 Judge Cecile Blau.
Blau said judges are likely to consider the county’s current fiscal health if the council will participate in repayment negotiations.
“We want to ascertain what the condition of the council really is,” she said.
On Wednesday, County Council President David Abbott said he wants to resolve the repayment matter quickly and plans to call an executive session next week to discuss the Supreme Court’s ruling with other council members and the board’s lawyer.
Abbott was not a member of the council when the 2005 and 2006 budgets were approved.
The Supreme Court’s ruling grants the council the authority to appropriate probation user funds, but found that its use of the money during the previous two years was contrary to state law.
Friday, September 28, 2007
Ind. Decisions - Transfer list for week ending September 28, 2007
Here is the Indiana Supreme Court's transfer list for the week ending September 28, 2007. Be sure to view all 7 pages.
Nearing four 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.
Courts - Kentucky lethal injection case granted cert Tuesday by SCOTUS [Updated]
James R. Carroll of the Louisville Courier Journal reported Sept. 25th in a story that began:
The Supreme Court agreed yesterday to hear a Kentucky case that challenges the constitutionality of the mix of drugs used in lethal injections.Today the NY Times reports:
This will be the first time the high court will consider whether such injections violate the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment.
The decision to hear the case is likely to have an immediate impact beyond Kentucky, said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization based in Washington.
"Virtually all executions are by lethal injection," Dieter said. "It will at least hold up all executions in the country for a time and may require broad revisions in the law."
In a fresh sign that the use of lethal injection in capital punishment faces an uncertain future, the Supreme Court issued an unusual last-minute reprieve for a death-row inmate in Texas late last night.Regular ILB readers may recall this May 1, 2007 entry headed "Judge Young denies challenge to Indiana's lethal-injection procedures," perhaps worth rereading.
Although the court gave no reason for its decision, the inmate, Carlton Turner Jr., had appealed to the court after it agreed on Tuesday to consider the constitutionality of lethal injection, the most commonly used method of execution in the United States. The decision suggests that until it issues a ruling on lethal injection, the court may be receptive to requests to delay such executions, at least for defendants whose cases raise no procedural issues. * * *
Earlier in the day, another rare stay of an execution came in Alabama, where Gov. Bob Riley said the state would not execute an inmate named Tommy Arthur while it came up with a new formula for lethal injection. State officials said they wanted to make sure prisoners were completely unconscious before they were killed.
The full effect of the Supreme Court’s decision is not yet known, but it may interrupt what appears to be emerging as a patchwork, state-by-state response to its decision Tuesday to look at whether lethal injection causes unnecessary suffering.
Some states, even ardent pro-death penalty ones like Alabama, are slowing down. Others, like Texas, had been cruising at full speed; the state executed a prisoner a few hours after the court’s decision on Tuesday and was planning to proceed with its 27th execution of the year last night when the Court intervened. Eleven states have stopped lethal injections altogether, as litigation proceeds.
Three Indiana Death Row inmates had joined the request for a preliminary injunction. Subsequently, David Leon Woods and Michael A. Lambert have been executed by lethal injection. Norman Timberlake, who filed the original suit last December in U.S. District Court in Indianapolis, remains on Death Row. For more, see this list of ILB entries.
[Updated 9/29/07] "Lethal Injection Under Scrutiny" is the heading of a comprehensive story by the AP's Ron Word.
"Texas Planning New Execution Despite Ruling" is the headline to a story in today's NY Times by Ralph Blumenthal and Linda Greenhouse that begins:
HOUSTON, Sept. 28 — A day after the United States Supreme Court halted an execution in Texas at the last minute, Texas officials made clear on Friday that they would nonetheless proceed with more executions in coming months, including one next week.See this entry today from Sentencing Law Blog, headed "Everyone trying to figure out if there is now an execution moratorium."
Though several other states are halting lethal injections until it is clear whether they are constitutional, Texas is taking a different course, risking a confrontation with the court.
“The Supreme Court’s decision to stay convicted murderer Carlton Turner’s execution will not necessarily result in an abrupt halt to Texas executions,” said Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas. “State and federal courts will continue to address each scheduled execution on a case-by-case basis.”
Shortly before midnight on Thursday, the Supreme Court stayed the execution of Mr. Turner, who had been scheduled to become the 26th Texas inmate executed this year by lethal injection in Huntsville. * * *
Several legal experts said the Supreme Court reprieve would be seen by most states as a signal to halt all executions until the court determined, probably some time next year, whether the current chemical formulation used for lethal injections amounts to cruel and unusual punishment barred by the Eighth Amendment.
Eleven states had halted executions for that reason. On Thursday, Alabama stayed an execution for 45 days to come up with a new formula.
“There is a momentum quality to this,” said Douglas A. Berman, a law professor at Ohio State University who has a blog, Sentencing Law and Policy. “Not only the Supreme Court granting the stay, but also the Alabama governor doing a reprieve that is likely to lead to other states with executions on the horizon waiting to see what the Supreme Court does. I’ll be surprised if many, and arguably if any states other than Texas, go through with executions this year.”
On his blog on Friday, Professor Berman predicted that there would be few if any executions in the country for the next 9 to 18 months, while the court deliberates and, later, as lower courts parse the meaning of its eventual ruling.
Texas, which has a history of confrontations with the Supreme Court over its prerogatives in criminal justice, does not appear interested in waiting. That forces lawyers for condemned prisoners to appeal each case as high as the Supreme Court.
Ind. Law - Restrictive covenants in Allen County
Ind. Courts - List of those applicants who were successful on the July 2007 Indiana Bar Examination
Access the results here, 5 single-spaced, double-columned lists of names,
Ind. Decisions - Court of Appeals issues 3 today (and 22 NFP)
For publication opinions today (3):
In Crider & Crider, Inc. v. Royal Downen and Anthony Ross "Tony" Downen , a 9-page opinion, Judge Bailey writes:
Appellant-Defendant Crider & Crider, Inc. (“Crider”) appeals the denial of its motion to correct error, which challenged the $37,267.52 award of damages to Appellees-Plaintiffs Royal Downen and Anthony Downen (collectively, “the Downens”) after Crider admitted it breached its contract for the rental of the Downens’ farm property to dispose of muck generated in the process of highway construction. We revise the award of damages to $35,760.00. * * *In Delta Building Group, Inc. v. Michael A. Laurenzano and Livia A. Laurenzano and Newcomer Lumber and Supply Co., Inc., et al., a 12-page opinion, Judge Crone writes:
The trial court properly awarded damages for partial restoration of the property and for diminution in value and the amount of those damages was within the range of the evidence presented. However, the evidence on damage to personal property supports a maximum award of $8,000.00. Therefore, we reduce the award of damages by $1,507.52, providing for a revised damages award of $35,760.00. Revised.
Case Summary. Delta Building Group, Inc. (“Delta”) appeals the trial court’s finding in favor of Michael A. Laurenzano and Livia A. Laurenzano (collectively “the Laurenzanos”) on their complaint for interpleader. We affirm.In Carl A. Major v. State of Indiana , a 19-page opinion, Judge Bradford writes:
Issue. The dispositive issue is whether the trial court violated the Uniform Arbitration Act (“the UAA”) by improperly modifying or vacating a prior arbitration award. * * *
Delta claims that the trial court violated the UAA by improperly modifying and/or vacating the arbitration award in the instant case. The Laurenzanos counter that they never intended to challenge the arbitration award and that the trial court’s orders “simply enforce[d] the arbitration award and protect[ed] the Laurenzanos from multiple liability.” We agree. * * *
[W]e agree with the Laurenzanos that the trial court’s orders enforced the arbitrator’s award and distributed it so as to protect the Laurenzanos from multiple liability as to these particular funds.1 In sum, we see no error in the trial court’s decision to find in favor of the Laurenzanos on their complaint for interpleader. * * *
The trial court distribution order simply enforced the agreed stipulation entered into by Newcomer, Window One, and Thermocore. We find no error in the trial court’s distribution of funds.
Following a jury trial, Appellant-Defendant Carl Major appeals his convictions for three counts of Murder in the Perpetration of a Robbery, a felony,1 and one count of Aggravated Battery as a Class B felony2 and his corresponding aggregate sentence of 175 years. Upon appeal, Major claims the trial court erred in empaneling an anonymous jury and that his sentence was inappropriate. Concluding that the trial court erred in empaneling an anonymous jury but that such error was harmless, and further, that Major’s sentence was not inappropriate, we affirm.NFP civil opinions today (7):
Dawn D. Davis v. Review Board and Rossville Consolidated School District (NFP) - denial of unemployment benefits affirmed.
Stephen H. and Jennifer A. Perlmutter v. E.E. Brandenberger Construction, Inc. (NFP) - "We conclude the Perlmutters were unjustly enriched by improvements they requested and then refused to pay for, the parties’ conduct modified the terms of the construction contract, and the Perlmutters breached the contract. The trial court did not err in awarding Brandenberger attorney fees; however, the trial court awarded double recovery to Brandenberger and the judgment should be reduced by the amount of that double recovery. Judgment affirmed in part and remanded in part."
Termination of the Parent-Child Relationship of E.E.S. and E.T.S. and J.S.S.; Melissa Plumm v. Bartholomew County Department of Child Services - "The BCOFC agreed to support “the family bond” until Plumm was released from prison and had an opportunity to carry out the case plan requirements, and it violated that agreement by proceeding with termination prior to her release from prison. We disapprove of this type of agreement, because it restricts the OFC from acting pursuant to the termination statutes or in the best interests of the children. Nevertheless, neither can we allow an OFC to ignore such an agreement when the parent’s consideration for the agreement was, in essence, waiver of the right to due process at the CHINS proceeding. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion."
Termination of the Parent-Child Relationship of E.N.; Dawn Nowak v. Lake County Department of Child Services and CASA (NFP) - Dawn Nowak appeals the termination of her parental rights to E.N. Affirmed
Matter of the Commitment of H.H. v. Wishard Health Services Midtown Health Center (NFP) - "H.H. appeals from the trial court’s order involuntarily committing him temporarily to a mental institution.1 He raises one issue, which we restate as whether sufficient evidence supported the finding that he is dangerous or gravely disabled. * * * Given the evidence presented, and applying the proper standard of review, we find that the temporary involuntary commitment order represents a conclusion that a reasonable person could have drawn. Indeed, there was sufficient evidence to meet one or both prongs of Indiana Code Section 12-26-6-1. Hence, we must affirm."
Steven E. Jahn, Greg Tucker and Cindy Tucker v. Patrick Hogan and Cynthia Hogan (NFP) - 27-page opinion. "Appellants Greg and Cindy Tucker (collectively, “the Tuckers”) and Steven Jahn (“Jahn”) appeal an order of the Allen Superior Court providing that Jahn is liable for damages and punitive damages attributable to his fraud in a real estate transaction, and also liable for contract-based attorney’s fees, and the Tuckers are liable for nuisance and for interference with an easement possessed by Patrick and Cynthia Hogan (collectively, “the Hogans”) across a pond touching the Tucker and Hogan properties. We affirm in part, reverse in part, and remand for further proceedings with respect to damages."
Tracy A. Butler v. Alan D. Butler (NFP) - "Tracy Butler (“Mother”) appeals the grant of custody of their two children to her ex-husband Alan Butler (“Father”). Mother claims the court erroneously gave preference to Father because he would be “co-parenting” with Nancy Butler, the children’s paternal grandmother (“Grandmother”). This was improper, she asserts, because the court did not enter the findings required for Grandmother to be a de facto custodian. Because the evidence, findings, and judgment do not support Mother’s position regarding the court’s consideration of Grandmother, we affirm."
NFP criminal opinions today (15):
Law - "Ohio Wine Lovers to be Cut-off October 1" [Updated]
A press release from Free the Grapes begins:
NAPA, Calif.--(BUSINESS WIRE)--A new law effective Monday, October 1 will prevent Ohio wine lovers from continuing to purchase wines directly from many popular mid-sized wineries, according to Free the Grapes! (www.freethegrapes.org)[Update 10/19/07] Here is a story the ILB just ran across in the Cleveland Plain Dealer, dated Sept. 26th. Some quotes:
During the closing stages of this year’s budget process, an amendment was slipped into the budget bill that prohibits medium and large wineries and wine companies whose total production exceeds 62,500 cases from shipping wine directly to Ohio consumers. The law was signed in June and goes into effective Monday.
Additionally, the law creates a potentially unworkable system that may scare eligible wineries from shipping any wine to Ohio consumers. The bill sets a 24-case annual shipping limit per “family household,” rather than an annual limit per winery, per individual, as is common in most states. Because wineries cannot be sure how much wine a household has purchased directly from others, wineries will not risk the penalties of non-compliance. Other states using a similar measurement, including Indiana and Massachusetts, have been considered “prohibited” by wineries and common carriers.
Columbus- Jack West likes a nice bottle of California wine now and then. For the last few years, the Chagrin Falls man has belonged to the Merryvale Vineyards' wine club, which ships him four bottles every couple of months.
But beginning Monday, because of a new state law lobbied for by the state's powerful Wholesale Beer and Wine Association, West's shipments will stop. And so will deliveries for thousands of other Ohioans who order wine from out of state.
That's because a provision was slipped into the state budget without public debate that will ban direct shipping to Ohioans from wineries producing over 150,000 gallons a year - roughly 63,000 cases. The more than 100 Ohio wineries all fall under that threshold, according to the Ohio Wine Producers Association.
"We're talking about four bottles every two months," said West. "We're not bringing it in by the truckload; that's what makes the whole thing so ridiculous. Someone pulled a fast one here."
But one of the main architects of the budget said the ban, which was added in the Senate Finance Committee this spring, wasn't what he meant to do.
"It was not supposed to apply to consumers," Rep. Matthew Dolan, a Russell Township Republican and chairman of the House Finance Committee, said Tuesday. "When it came back from the Senate, I probably didn't read it as closely as I should have."
Courts - More on Indiana Voter ID Law goes to Supreme Court
Daniel P. Tokaji, a law professor at Ohio State University, where he teaches election law, has an Op-Ed piece today in the LA Times. It begins:
The U.S. Supreme Court announced this week that it would hear a challenge to an Indiana law that requires people to show government-issued photo identification in order to have their votes counted. Two other states have passed such laws in recent years, and others have debated the issue. Promoters of these laws argue that they are needed to prevent fraud. Opponents claim that they will impede eligible citizens from voting -- a disproportionate number of them poor, elderly, disabled or racial minorities.From an editorial today in the Fort Wayne Journal Gazette:
In fact, there's reason to believe that suppressing turnout is precisely the motivation behind the strictest voter ID laws. There are almost no documented cases of people pretending to be someone they're not at the polls, the only "problem" that these laws purport to address. On the other hand, there is considerable evidence that requiring ID will suppress turnout among some groups of voters.
A sharply divided Supreme Court could issue a sharply divided opinion in its review of Indiana’s restrictive voter identification law. But it’s gratifying to see the decision won’t rest with the Court of Appeals and on Judge Richard Posner’s troubling views on the value of voting.
The high court’s decision will represent a test to more than Indiana’s law, which was challenged in two separate suits now consolidated by the Supreme Court. As it did in the Indiana General Assembly, support for voter-ID laws elsewhere breaks clearly on partisan lines. Indeed, Posner’s ruling conceded that the voters who most likely don’t have photo identification are those “low on the economic ladder” and thus are more likely to vote for Democratic than Republican candidates. Posner was joined in affirming the lower court decision by Judge Diane Sykes, another Republican appointee. Judge Terence T. Evans, who dissented, was a Democratic appointee.
Ind. Courts - Vigo County Drug Court has saved taxpayers nearly $3 million over 10 years [Updated]
Deb McKee Kelly reports today in the Terre Haute Tribune Star: in a story that begins:
TERRE HAUTE — The Vigo County Drug Court saved taxpayers nearly $3 million over 10 years from its inception in 1996 to June 2006, according to a new report commissioned by the Indiana Judicial Center.[Updated 9/29/07] This story by Katie Shane of WOWO reports:
The evaluation, by NPC Research of Portland, Ore., studied Vigo, Marion, Monroe, Vanderburgh and St. Joseph counties’ drug courts, and was funded by a $250,000 grant from the Indiana Criminal Justice Institute.
The study was designed to show whether the drug courts reduce recidivism (re-arrest of offenders after completing the program), whether they save taxpayers money, whether they reduce substance abuse and whether they deliver services to the targeted population.
For every question explored in the study, the answers were positive, making the 11th anniversary of Vigo County’s drug court – “almost to the day,” according to Judge Barbara Brugnaux – a sweet one.
Brugnaux said the results of the study “blew me away.”
Among other findings, the Oregon research company found that the re-arrest rate for graduates of the Vigo County Drug Court is 7 percent, compared to a 39 percent re-arrest rate for nonparticipants.
For those participants in drug court who did not complete the program, the re-arrest rate is 20 percent.
The taxpayer savings were calculated for Vigo County by determining the cost per participant in drug court, which is $3,684, compared with the adjudication costs for nonparticipants, which is $7,935.
One Valley court is making good things happen and saving tax payers money in the process.
Division 5, which serves as the Vigo County Drug Court, was reviewed by NPC research.
The study looked at four other courts in Indiana to determine goals of reducing re-arrests and saving taxpayer money.
NPC studied Vigo County over a ten year period from September 1996 to June 2006.
In that time division five saved 2.9 million tax dollars.
Another high note for the court was the low amount of re-arrests for graduates of the drug court.
Only 7 percent of graduates were re-arrested after completing the program.
Division 5 Judge Barbara Brugneaux says the study will be important in the future in order to receive additional state funding.
"It's absolutely reaffirming," Judge Brugneax said. "I was just blow away when I saw that 2.9-million dollar figure. It took me a while to understand how they calculated that figure and it was very impressive to me and I hope that it will be equally impressive to members of the General Assembly when we go and ask for state funding."
The court's findings will be held and presented to the state during the 2008 budget talks.
Judge Brugneax says she hopes with the positive report the court will receive more state and federal funding.
Ind. Decisions - Montgomery County paper's take on the Supreme Court's mandate ruling
Updating this ILB entry from yesterday, today we have The Paper of Montgomery County's report, written by community editor Barry Lewis, on the Supreme Court's decision Wednesday in the court employee salary case: In Re: Order for Mandate of Funds; Montgomery County Council v. Hon. Thomas K. Milligan, Hon. David A. Ault and Hon. Peggy Q. Lohorn:After nine months of waiting the Indiana Supreme Court has rendered its decision in the case between the Montgomery County Council and the judges' mandate of funds.
In a decision made Wednesday and received Thursday, the Supreme Court did not agree with the findings special trial Judge Julian L. Ridlen who ruled in favor of the judges. After a two-day trial in July of 2006, Ridlen issued an order on Sept. 19, 2006 that the Montgomery County Council pay the salaries mandated by the three Montgomery County judges, along with attorney fees of more than $124,000.
The Supreme Court's decision did give all nine court employees pay raises, but not at the level the judges had sought. The ruling also cut the amount of the judges' legal fees from $124,525 to $72,810.29.
"We felt like what the judges had asked for was excessive and it's nice to see that the Supreme Court agreed with us," current Council President Don Peterson said.
Sen. Phil Boots, who was a council member at the time of the mandate and the trial, had mixed feelings about the decision.
"I am happy that the Supreme Court basically agreed with what we were willing to offer originally," he said. "I am disappointed that the fact that we had to go through all this legal mumbo-jumbo to get to this point. We tried to negotiate a number very similar to this and the judges refused. Now, we are about where we could have been, but it has cost the taxpayers a lot more money to get to that point."
The judges declined comment individually, but released a statement, which in part, read:
"Adequate funding for the courts' staffs had become an issue that could not be postponed any longer. The judges regret that the conflict developed as it did. To the credit of both the council members and the judges the disagreement did not become personal, but all parties remained professional."
The judges had mandated that court reporters and administrative assistants be paid $31,200 and that the secretary/ bailiff/ receptionist be paid $27,200. The Council offered the judges $27,000 for the court reporter and administration assistant positions.
According to the ruling, court reporters will receive $29,800 for time worked from Aug. 15, 2005 (when the original mandate was issued) to Dec. 31, 2005 and $30,700 for 2006. The salary for 2007 will be the 2006 salary, plus whatever raise was given. The administrative assistants will be awarded $27,600 for 2005, $28,400 for 2006 and 2007 will be whatever raise was given. The secretary/ bailiff/ receptionist salary will go to $26,100 for 2005, $26.900 for 2006 and the salary for 2007 will be whatever raise was given.
According to the Supreme Court ruling the figures were based on comparison salaries from the contiguous counties (Boone, Clinton, Tippecanoe, Fountain, Parke, Putnam and Hendricks).
"Comparisons with competing and contiguous counties take into account the most immediate 'threat' to a court's ability to attract and retain employees," the ruling said. This is what the Supreme Court used as its benchmark to determine the salaries.
"To me it was a win-win for us," Councilman Jim Fulwider said. "The figures came back about where we had offered. I was very impressed with the Supreme Court taking the time to study the issues and make a very well-informed decision. I think most people didn't ever think a group of judges would rule against another set of judges. The Supreme Court proved those people wrong. They looked at the evidence and made a good decision. The employees got a raise, but it was in line with what it should have been, not some artificial figure."
According to Peterson the court employees will have their extra money by the end of the year and "more than likely, sooner than that."
"It will take some time to recalculate everything, but they will get their money as soon as we can get it to them," he said.
The county has until the end of 2008 to pay the judges' legal fees. Three equal installments are to be paid on Dec. 31, 2007, June 30, 2008 and Dec. 31, 2008. No appellate attorney fees were awarded. Furthermore, the Supreme Court ruled that Montgomery County Auditor Jeff Dossett was not in contempt after Ridlen found him in contempt earlier.
Thursday, September 27, 2007
Ind. Decisions - Supreme Court interprets tax sale statute
In In Re: Parcels Sold for Delinquent Taxes; Vanderburgh County Auditor, et al. v. Michiana Campgrounds, LLC, a 6-page, 5-0 opinion, Justice Boehm writes:We hold that a purchaser at a tax sale who does not seek an order to issue a deed is not entitled to the partial refund of the purchase price provided in Indiana Code section 6-1.1-25-4.6(d). * * *
The trial court and the Court of Appeals agreed with Michiana that it was entitled to the refund under section 4.6(d). The County responds that Michiana is not entitled to the refunds because section 4.6(d) allows a refund only where a petition for a tax deed is filed and the trial court refuses issuance of the deed. The County argues that because Michiana issued the first notice under section 4.5 but never attempted to issue the second notice required by section 4.6, Mi-chiana was not “refused” a deed. Rather it chose to fail to fulfill the requirements for issuance of a deed. The County also contends that section 4.5(j), discussed below, addresses situations where, as the County puts it, a “tax sale purchaser simply elects not to file a petition for a tax deed.” Michiana does not address section 4.5(j). * * *
We think that the statutory reference to “refusal” purposefully limits refunds to purchasers who go to the time and expense of seeking a deed. Buyer’s remorse is not a basis for a refund. * * *
The trial court’s grant of Michiana’s motion for refund of the purchase price minus a twenty-five percent penalty is reversed.
Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)
As of 1:30 PM today, no cases posted. As of 3:13 PM, however, the following had been posted:
For publication opinions today (1):
John Eversole v. State of Indiana - "As a result of our review, we believe evidence of Eversole’s good character, including his guilty plea, present an arguable case for a lesser sentence. However, at the same time, we find it difficult to ignore the serious nature of Eversole’s offense -- specifically, that his actions resulted in the death of another human being. Thus, ultimately, it is our opinion that the trial court arrived at an appropriate sentence after considering these factors. Additionally, we note the trial court followed the recommendation of Eversole’s Probation Officer in sentencing him to the advisory sentence of thirty years. Accordingly, we conclude the trial court appropriately sentenced Eversole."
NFP civil opinions today (1):
Termination of the Parent-Child Relationship of K.H. and R.M.: Billie Jo Hiner v. Whitley County Department of Child Services (NFP) - "Based on the foregoing, we find the trial court used the correct standard when entering its findings of fact, and there was sufficient evidence to support the trial court’s termination of Mother’s parental rights to K.H. and R.M."
NFP criminal opinions today (4):
Ind. Courts - "Five applicants have submitted their names to be considered for the new Monroe County judge position that will open on Jan. 1, 2008"
According to the story in the Bloomington Herald Times:The applicants are all from Bloomington, and some applied for the most recent judicial opening back in 2005, for the court that came online in 2006.
This year’s candidates are:
-- Donald Francis Jr., 43. Francis is in private practice with a focus on family law and is a judge pro tempore in Monroe Circuit Court.
-- Joby Jerrells, 40. Jerrells, a former deputy attorney general and Monroe County deputy prosecutor, is in private practice and assists with appellate work for the Indiana attorney general.
-- Valerie Haughton, 58. Haughton, a candidate for judge last year, is a former deputy Monroe County prosecutor and current deputy public defender.
-- Christine Haseman, 41. Haseman is in private practice, focusing on child advocacy, family law and estate planning.
-- Herb Kilmer, 60. Kilmer, a former Monroe County commissioner, is currently in private practice and teaches at Indiana University’s Law Enforcement Academy.
Indiana Gov. Mitch Daniels is expected to name the new judge sometime before the end of November, spokeswoman Jane Jankowski said. “Interviews will likely be sometime in October, and the goal is to have the new appointee selected by November,” Jankowski said.
The new judge is expected to oversee a mixture of small claims and domestic relations matters.
Kilmer and Haseman, along with five others, applied for the county’s last judicial opening in 2005.
Frances Hill was appointed to that position and then survived a challenge by Haughton in the 2006 countywide election.
Ind. Law - Legislative Annexation Study Committee hears testimony
"Annexation tactics prompt complaints: Remonstrance rules unfair, panel told" is the headline to this story by Niki Kelly in today's Fort Wayne Journal Gazette:INDIANAPOLIS – Citizens from various parts of Indiana urged a state panel Wednesday to make major changes to the state’s annexation law or possibly prohibit forced annexations altogether.Here is a link to the webpage of the Annexation Study Committee. The Committee was created by SECTION 143 (pp. 163-164) of HEA 1478, which reads in part:
Matt Milam, president of a central Indiana group fighting an annexation in Hamilton County, said Indiana is one of only six states that allow involuntary annexations.
He claimed some cities looking to annex are unethical, even setting hearings on holidays or during the winter when it is hard to get the necessary signatures to remonstrate.
Milam told the Annexation Study Committee that his tax bills would go up 24 percent as a result of the annexation.
But he said that’s not why he is in opposition. It’s because the officials in Carmel – the city trying to annex Home Place – are on a spending spree.
Aboite Township Trustee Barbara Krisher, a member of the panel, empathized with the effort it takes to fight an annexation and the tactics used.
“I don’t think it’s just about money,” she said.
She also criticized the new annexation technique of having subdivision developers who are seeking city sewer and water service on their land waive the future right of homeowners to remonstrate against annexations.
Krisher said some people are not told about the waiver until the day of closing and are forced to make an immediate, untenable decision. She supports more notice requirements for these types of waivers.
That issue will be discussed in more depth at the panel’s Oct. 10 meeting.
Meanwhile, some communities in southern Indiana have begun to get crafty with the waivers. In one Floyd County annexation, the specific boundaries made it impossible to reach the 65 percent remonstrance threshold because more than 35 percent of the landowners were bound by such waivers.
Gene Thompson, who fought a forced annexation in Boone County, said the 65 percent amount is hard to achieve and does nothing but get the remonstrator a day in court.
He believes the law should be changed so that a remonstrator must get signatures of 65 percent of those who are able to sign, which would exclude those with waivers. Otherwise, those who are not bound by waivers are disenfranchised because they can’t meet the threshold. Thompson likened the current rules to requiring a city council member or state representative to receive votes from 51 percent of all registered voters – not 51 percent of the votes cast.
He said the entire process would be smoother and cleaner if there were a simple referendum on the annexation of the affected landowners.
“Let the citizens vote on who is going to govern them,” he said.
The committee will have at least two more meetings and recommendations to the General Assembly for the 2008 legislative session.(b) The annexation study committee is established. The committee shall study:
(1) revising the statutes concerning municipal annexation of territory. The committee's study may not include the annexation statutes in IC 36-3-2; and
(2) whether "one and fifteen hundredths (1.15)" in STEP THREE of IC 6-1.1-18.5-3(a) and STEP THREE of IC 6-1.1-18.5-3(b) is sufficient to raise adequate property taxes for a municipality annexing territory.
Ind. Courts - "Terre Haute attorney Craig McKee is installed as a new part-time federal magistrate judge"
Deb McKee Kelly of the Terre Haute Tribune-Star reports:TERRE HAUTE — Under a 20-foot mural depicting the signing of the Magna Carta, Terre Haute attorney Craig McKee was sworn in Wednesday afternoon as a part-time United States magistrate judge.
The ceremony took place in the courtroom of the U.S. District Court for the Southern District of Indiana, in the federal building on Seventh and Cherry streets – a courtroom that McKee recalled seeing for the first time as a young lawyer, when he clerked for the Judge Gene E. Brooks of the district court.
During an address to assembled colleagues, friends, family and presiding federal Judge Larry J. McKinney, McKee expressed his initial awe at the courtroom, a massive space with nearly 30-foot ceilings, walls of cherry wood and the colorful mural.
McKee, 49, replaces longtime Magistrate Jordan Lewis, who retired from the federal bench earlier this year after more than 28 years of service.
During his comments, McKee said serving as part-time federal magistrate will allow him to experience “the best of both worlds,” as judge and practicing attorney. * * *
McKee’s magistrate duties will focus on the court’s pre-trial criminal proceedings in the Terre Haute division. The position oversees arraignments and initial appearances by criminal defendants facing charges through the U.S. Attorney’s office in U.S. District Court.
Part-time magistrate judges are appointed through a merit-selection process by the judges of the U.S. District Courts for terms of four years, and are eligible for reappointment to successive terms. The court anticipates that McKee will be appointed upon completion of required Internal Revenue Service and FBI background investigations.
Courts - "Supreme Court to Address Pharmaceutical Companies' Protection From State Suits" [Updated]
AP reporter Christopher S. Rugaber writes today:The Supreme Court said Tuesday it will decide a case that centers on whether federal regulation of pharmaceuticals pre-empts state law.[Update] SCOTUS Blog has just posted an entry on this case.
The case involves a product liability lawsuit against Pfizer's Warner-Lambert unit.
A group of Michigan plaintiffs led by Kimberly Kent in April 2000 sued Warner-Lambert Co. over alleged injuries caused by its Rezulin diabetes drug. Rezulin was ordered off the market in March 2000 by the Food and Drug Administration after it was linked to nearly 400 deaths and hundreds of cases of liver failure.
A federal district court dismissed the suit in 2005, citing a Michigan law that shields FDA-approved pharmaceuticals from liability lawsuits. The case was brought under Michigan law but was moved to federal court because other states were also involved.
An exception in Michigan's law that allowed the suits to proceed if a pharmaceutical company misrepresents information presented to the FDA was pre-empted by federal laws governing the regulation of pharmaceuticals, the district court said.
The 2nd U.S. Circuit Court of Appeals, based in New York, reinstated the suit. The appeals court disagreed that the exception in Michigan's law for cases involving fraud against the FDA was pre-empted by federal law.
That decision conflicted with other appeals court rulings in previous cases. Such conflicts in the federal appeals courts are one criterion the justices consider when deciding to take a case.
The Supreme Court's interest in weighing in on the federal pre-emption of state laws is rooted in a surge of product liability lawsuits in state courts, "particularly in the area of drugs and medical devices," said Paul Smith, an attorney at Jenner & Block.
The industry, Smith said, has sought to use pre-emption as a way to protect itself and "this court has a majority that is sympathetic to that view."
The justices have already agreed to hear a similar case, Riegel v. Medtronic, which focuses on whether the federal approval of a medical device shields the device from liability claims under state law.
The case is Warner-Lambert v. Kent, 06-1498. Oral arguments haven't yet been scheduled. The case will likely be decided before the Court's term ends in June.
Ind. Decisions - More on: Supreme Court issues two anticipated mandate decisions today
Updating this ILB entry from yesterday (or simply scroll down one), Ben Zion Hershberg of the Louisville Courier Journal writes on yesterday's Supreme Court decision in Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, the probation fees case. Some quotes:In a case watched closely by judges statewide, the Indiana Supreme Court said yesterday that Clark County's judges -- not the County Council -- have the authority to determine how to use about $500,000 in probation fees collected annually.The only coverage of the second Supreme Court opinion yesterday, In Re: Order for Mandate of Funds; Montgomery County Council v. Hon. Thomas K. Milligan, Hon. David A. Ault and Hon. Peggy Q. Lohorn, , dealing with court employee salaries, is this brief AP story, which reports:
But the court also upheld the council's appropriation authority, saying the council can determine how much of the fees are spent from year to year.
Clark County Superior Court 3 Judge Steven Fleece called the decision a powerful victory for the judges and estimated the council will have to repay the local courts "several hundred thousand dollars" for spending fees on court costs that the Supreme Court said are not allowed.
But Scott Lewis, a lawyer for the council, said the ruling was "a split decision" because it said the council can decide how much will be appropriated for use by the courts in a given year. The council has more authority than the judges recognized in their arguments, he said.
Fleece responded, "If it was a split decision, it was split in our favor 99.9 percent and .1 percent" for the council.
David Lewis, a lawyer representing Clark County's four elected judges, said the ruling is an important victory for his clients and other judges across the state.
"It clarifies the relationship between the council and the judges" and gives the judges the authority to determine how the fees are used to support probation activities, said David Lewis, who is not related to Scott Lewis.
The Supreme Court did not determine how much money, if any, the council must repay the courts. That issue will go back to the trial judge for a ruling or may be settled by agreement between the council and the judges.
The dispute began in late 2004 when the council, struggling with a fiscal crisis, began appropriating probation fees to pay various court expenses.
The judges argued that state law strictly restricted the use of such fees to supplement the salaries of probation officers and probation program expenses at the discretion of the courts.
State law says such fees can't be used to replace county general fund money that is spent on the courts, the judges argued. Making the judges rely on fees raised from people being sentenced to pay a large part of court operating expenses would put their objectivity at risk, they said.
Special Judge Elaine Brown of Dubois County ruled in favor of the judges in March 2006, ordering the council to repay hundreds of thousands of dollars in probation fees the council appropriated for court expenses.
The council appealed, and after mediation failed, the Supreme Court heard arguments in December.
The Supreme Court agreed with most of the judges' arguments. In its decision, the court said, "The language of the statute itself and its legislative history make clear that it was contrary to law" for the council to use probation fees to pay court costs other than probation-related expenses budgeted by the judges.Montgomery County officials must raise the pay of nine court employees to make their salaries more competitive with counterparts in other Indiana counties, the Indiana Supreme Court has ruled.
The justices on Wednesday modified a judicial mandate issued in September 2006 by Special Judge Julian L. Ridlen of Cass Circuit Court. Ridlen's ruling upheld an August 2005 mandate issued by Montgomery County's three judges that required the county to increase pay for each court's reporter, administrative assistant and secretary/bailiff.
The judges said they were losing staff to higher-paying jobs, but county officials argued that the county could not afford the raises.
The state Supreme Court said judges can order that court employees be paid enough to attract and keep workers.
However, the raises it ordered for court employees were smaller than those in the original mandate.
Wednesday, September 26, 2007
Ind. Decisions - Supreme Court issues two anticipated mandate decisions today
This first decision is in the long-time dispute over the control of adult probation services funds, which has impact beyond Clark County.
In Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, an 8-page, 5-0 opinion, Justice Sullivan writes:A dispute has arisen in Clark County over the purposes for which “probation users’ fees” collected from persons placed on probation can be spent and the authority for making those spending decisions. State law is clear that probation users’ fees may be spent only to supplement probation services and to supplement salaries for probation officers; they may not be used to re-place other funding of probation services. The county fiscal body shares authority for spending decisions with the courts in the county that provides probation services. * * *The ILB has posted many entries on this dispute. For background, start with this one from March 2, 2007.
The dispute in this case is over the purposes for which money in the county supplemental adult probation services fund can be spent and the authority for making those spending decisions. The Clark County Council takes the position that it has the power to appropriate from the county supplemental adult probation services fund without the participation of county judges and that its use of the funds has not constituted the “replacement” of other funds. The judges of the Clark Circuit and Superior Courts take the position that county judges should decide how to spend the county’s supplemental adult probation services fund, and that the Indiana Code does not allow for money from the fund to replace money budgeted for probation services in prior years. * * *
Although we agree with the Clark County judges that the decision of the County Council to spend money in the supplemental adult probation services fund for general court and probation services violated the statutory restrictions that the money be spent only to supplement probation services and probation officer salaries, we do not agree with the judges that the County Council’s role with respect to appropriating money in the fund is purely ministerial. * * *
We have been gratified at the extent to which county fiscal bodies and courts throughout our state have been able to cooperate on the use of probation users’ fees. Probation departments, persons on probation, and the communities of this state have been the beneficiaries of this cooperation. We have attracted and retained high-quality probation officers by supplementing their salaries and have been able to keep many low-risk offenders who otherwise would have been incarcerated close to their families and in productive employment. We are hopeful that today’s decision clarifies the respective roles and responsibilities of the county fiscal bodies and the courts so that this highly productive degree of cooperation continues apace.
Conclusion. This case is remanded to the trial court with directions that the Clark County Council is to appropriate or otherwise return to the county adult probation services fund an amount, if any, equal to that expended from the fund for purposes other than to supplement probation services and probation officer salaries.
This second opinion today involves the more traditional issue of who sets salaries of court employees.
In In Re: Order for Mandate of Funds; Montgomery County Council v. Hon. Thomas K. Milligan, Hon. David A. Ault and Hon. Peggy Q. Lohorn, a 10-page, 5-0 opinion, Justice Sullivan writes:Indiana Trial Rule 60.5 establishes procedures by which intra-county disagreements about court funding may be resolved. These procedures are infrequently invoked in Indiana. In this case, however, T.R. 60.5 has been called into play in a dispute about salaries for court staff in Montgomery County.For background on this case, see this Feb. 10, 2007 ILB entry, as well as this Feb. 22nd, 2007 entry about proposed legislation relating to judicial mandates and the Montgomery County dispute.
For several years, the Judges of the Montgomery Circuit Court, Montgomery Superior Court 1, and Montgomery Superior Court 2 had requested that the Montgomery County Council increase the salaries of their employees to a level that would be competitive with court staff salaries in neighboring or comparable counties. Although the Council had approved salary increases approximating increases in cost of living indices in most budget years, no salary increase was granted in 2005.
After their efforts in 2004 to obtain salary increases failed, and following the loss within a relatively short time period of three Circuit Court staff members to, and the offer to the Circuit Court administrative assistant of, higher-paying jobs in both the public and private sectors, the Judges issued an order on August 16, 2005, and an amended order on August 22, 2005. As amended, the order directed the Council to show cause why the annual salaries for all Montgomery County court reporters, administrative assistants, and positions classified as “secretary/bailiff/receptionist” should not be increased to specified levels for the balance of 2005 and for the 2006 budget year. * * *
Part I. The issues to be decided in a mandate proceeding are whether the funds ordered paid are reasonably necessary for the operation of the courts and any court-related functions and whether any specific fiscal or other governmental interests are so severely and adversely affected by the payment as to require the order to be set aside. * * *
As noted above, salaries of court employees may be ordered paid at sufficient levels to attract and retain qualified persons. See Morgan Circuit Court, 550 N.E.2d at 1304. Mandated funds must be “reasonably necessary” for the operation of the courts, and a mandate may be issued when there is a “clear and present danger” of impairment to the courts’ operation. Id. * * *
Tables 1, 3, and 4 show that all but one of the salaries of Montgomery County court staff prior to the mandate were below the low end of the salary ranges of contiguous counties, and all of the salaries were below both the mean and median salaries of contiguous counties. However, the mandated salaries of $31,200 for court reporters and administrative assistants and $27,200 for SBRs exceed both the means and medians of the 2005 salary ranges in contiguous counties, by anywhere from several hundred dollars to several thousand dollars. Accordingly, while a mandate was warranted, it cannot be approved in the amounts requested.
We direct that the salaries of each category of employee be as set forth in the following table. [see opinion] * * *
Part II. Given that the proper delivery of judicial services is often at stake in T.R. 60.5 proceed-ings, this Court has recognized the necessity of proper compensation for attorneys who represent courts in such matters. Kramer v. Hancock County Court, 448 N.E.2d 1190, 1192 (Ind. 1983). At the completion of the trial in the present matter, counsel for the Judges submitted an invoice for legal services and expenses totaling approximately $128,300. The Council challenges this amount as excessive.
The amount of attorney fees awarded in T.R. 60.5 proceedings has occasionally been challenged, but not in the recent past. Perhaps as a consequence, the amounts at stake were far less than the amount involved here. * * *
This case was protracted, including as it did a full trial and all of the time and labor that requires. The hourly rates initially charged by the lawyers involved in the case were $320 by the senior-most lawyer involved, $190 by a second, and $140 by several law clerks assigned to the case. (The rates of the two lawyers were increased by $20 per hour during the course of the rep-resentation.) The senior lawyer testified that the firm’s billing rates are reviewed and adjusted annually by the firm based on factors including the type of work, degree of sophistication, years of practice, experience, and survey of other lawyers’ rates in the Indianapolis and Carmel areas. He further testified that an extensive amount of “legwork” was required to collect evidence on comparative salary data. There was no evidence that the firm was precluded from other em-ployment because of this representation. The substantial experience and superior reputation and ability of the lawyers here and of their firm are well known. * * *
We have examined the fee and expense request in some detail and note that it seeks $124,525 in fees and $3,772.79 in costs. The fee request is based on 574.25 hours. The Council does not contest the number of hours nor the amount of costs; its only request is that the hourly rate for the work be limited to the normal range for attorney fees in Montgomery County. Based on the factors set forth in the preceding two paragraphs and particularly on the fact that the Council does not contest the number of hours worked, we conclude that the attorney fee award shall be $72,810.29, calculated as set forth in the margin. * * * No appellate attorney fees shall be awarded. * * *
Conclusion. The order of the trial court mandating certain salary increases for employees of the Circuit and Superior Courts is affirmed to the extent set forth in part I of this decision. The request of counsel for attorney fees is affirmed to the extent set forth in part II.
Ind. Decisions - Three cases granted transfer today, including whether myspace.com postings are protected political speech
Three cases granted transfer today by the Supreme Court
Adkins v. State - The ILB summary to the COA opinion reads: "Henry J. Adkins appeals his conviction for pointing a firearm as a class D felony. Adkins raises two issues, which we restate as: I. Whether the trial court abused its discretion when it did not allow Adkins’s wife to testify as a witness; and II. Whether the trial court erred when it instructed the jury regarding the elements of the offense. We affirm."
Baxendale v. Raich - The very brief ILB summary to the COA opinion reads: "Valerie Baxendale appeals the denial of her request to relocate to Minneapolis that resulted in the modification of the custody of her eleven-year-old son, A.R., to her ex-husband, Samuel Raich, III. We reverse."
A.B. v. State - The ILB summary to the COA opinion sets out the issue: "Whether the message authored by A.B. and posted on a myspace.com website is protected political speech." See also this ILB entry from April 10, 2007, this one from July 17, 2007, and this one from Sept. 2, 2007.
Ind. Decisions - Court of Appeals issues 0 today (and 0 NFP)
As of 1:30 PM today:
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (0):
Ind. Courts - More on: Supreme Court asked to intervene in election disputeThe state Supreme Court has ruled: Anthony Copeland can remain on the ballot for East Chicago City Council.Bill Dolan of the NWI Times writes:
The court Tuesday denied a move by three Democratic council candidates and the Lake County Election Board to get a new hearing in their fight to halt Copeland's Independent candidacy for an at-large seat.
At-large candidates Richard Medina, Myrna Maldonado and Juda Parks wanted a change of venue after Lake Superior Court Judge Diane Kavadias Schneider ruled last week that Copeland's name could appear on the November general election ballot.
Kavadias Schneider overruled the election board, which had said Copeland couldn't run as an Independent because he currently holds an at-large seat as a Democrat.
In its ruling, the Supreme Court stated it would not be appropriate to address the plaintiffs' argument for a change of venue, because they made the request after Kavadias Schneider ruled.EAST CHICAGO | The Indiana Supreme Court is reaffirming the right of City Councilman Anthony Copeland, D-at large, to run for re-election Nov. 6 as an independent candidate.
Three city Democrats were challenging Copeland's campaign on grounds he couldn't run for a new term as an independent while continuing to hold his council seat under the Democratic party label.
The Lake County Board of Elections and Registration ruled against Copeland earlier this month and removed his name for the ballot.
Lake Superior Court Judge Diane Kavadias Schneider ruled last week Copeland's political strategy is proper under state law and returned him to the ballot.
The Supreme Court, in an order dated Tuesday, refused to review Kavadias Schneider decision.
Ind. Courts - Judge Tinder sails through confirmation hearing
Maureen Groppe of the Indianapolis Star Washington Bureau reports today:The Indianapolis native's confirmation hearing was uncontentious and short, a contrast to the lengthy battles the president and Senate Democrats have had over some of the president's judicial nominees.
Tinder received bipartisan backing from Indiana's senators, Republican Richard Lugar and Democrat Evan Bayh.
"He is the embodiment of good judicial temperament, intellect and even-handedness," Bayh said.
Lugar praised Tinder's opinions as "clear, well reasoned and thorough."
The American Bar Association gave Tinder its highest rating of "well qualified."
The only questions for Tinder came from Sen. Richard Durbin, D-Ill., who chaired the hearing and praised Tinder's "excellent reputation."
But Durbin did ask Tinder about a racial discrimination case Tinder dismissed that was later reversed on appeal. Tinder said he made a mistake in ruling that there was not enough evidence for the suit to go forward.
"I was incorrect," he said.
Pointing out that Tinder has been reversed on some of the cases in which he has ruled against an employee, prison inmate or criminal defendant but never when he ruled in favor of them, Durbin asked whether that record suggests any tendencies.
"I try to look at each case on its own merits and don't approach any case with a predisposition on how it should come out," Tinder said, adding that he's handled thousands of cases and been reversed on few.
Asked what about his background would give a poor person hope that he would be treated fairly in Tinder's courtroom, Tinder noted that when he served as a public defender, he worked with criminal defendants, many of them indigent.
"I've been in their jail cells talking to them, waiting for the juries," he said. "I've been in their homes, investigating their cases, talking with their families. ... I've been there so that should give them some comfort."
The Senate Judiciary Committee could vote in the next month on whether to confirm Tinder to the appeals court, which serves Indiana, Illinois and Wisconsin and is one step below the Supreme Court.
Tinder was unanimously confirmed for his current position, which he has held since 1987, as well as when he was nominated to be U.S. attorney for Indiana's southern district in 1984.
Courts - Still more on: Outcome of Indiana cert petitions to SCOTUS - voter ID review gets nod
Stories today on the Indiana voter ID case:
"High court takes case on voter ID in Indiana: Ruling on state law may affect elections across the U.S." reported by Rob Schneider of the Indianapolis Star.
"Justices to consider voter IDs: Supreme Court agrees to rule on document required by Indiana," reported by David G. Savage in the Baltimore Sun.
"Supreme Court to Examine Lethal Injection, Voter Identification," written by Tony Mauro of Legal Times.
"Supreme Court to Consider Use of Voter ID: Justices Will Also Hear Lethal-Injection Case," reported by Robert Barnes of the Washington Post.
"Justices Agree to Hear Case About Voter ID Laws" by Linda Greehouse of the NY Times.
"High court takes voter-ID challenge: Justices to review state law in '08" reported by Sylvia A. Smith, Washington editor of the Fort Wayne Journal Gazette.
"Justices to rule on Indiana's voter-ID law: Critics call rule an unfair burden," reported by Grace Schneider of the Louisville Courier Journal.
For background, start with this ILB entry yesterday.
For more on the lethal injection grant, yesterday, see "Ky. case may settle issue of execution: Lethal-injection drug combo challenged," reported by James R. Carroll of the LCJ.
Ind. Courts - "Five attorneys — two Republicans and three Democrats — have applied for Jackson County’s newest judgeship"
Dan Davis of the Seymour Tribune reports, in a story that begins:Five attorneys — two Republicans and three Democrats — have applied for Jackson County’s newest judgeship.
Those applying were Republicans Bruce MacTavish and Stephanie Mellenbruch, both of Seymour, and Democrats Susan Darlage and Joseph M. Robertson of Seymour and Loren Reuter of Nashville.
Gov. Mitch Daniels’ staff is expected to review the applications, with interviews expected to take place sometime in October, Mary Ann Longwith of Daniels’ office said Monday afternoon.
Longwith said she was unsure whether all five applicants would be interviewed.
The appointee will fill the opening created when the Indiana General Assembly established a second superior court. The court must be running Jan. 1, 2008.
The job pays $119,893.80 annually, according to the Indiana Judicial Center.
Whoever the governor appoints, they’ll sit on the bench for three years and face election to a six-year term in 2010.
Tuesday, September 25, 2007
Ind. Courts - More on: Federal District Judge John Tinder Senate hearings on nomination to 7th Circuit Tuesday, Sept. 25th
Courts - More on: Outcome of Indiana cert petitions to SCOTUS - voter ID review gets nod
Lyle Denniston of SCOTUS Blog has an entry titled "Analysis: An election issue for an election year," here. A quote:The Justices will be deciding on the constitutionality of an increasing popular form of balloting restriction: requiring those who show up at the polls to vote to first show a photo ID, such as a driver's license or a passport. In perhaps half of the states and in the federal government, such identification requirements have been written into law in varying forms -- defended by their sponsors as necessary checks upon voting fraud, assailed by their critics as cynical efforts to keep poor and minority (and likely Democratic) voters away from the polls.
Ind. Decisions - Supreme Court decides insurance assignment case
In State Farm Mutual Automobile Insurance Co. v. Ruth Estep, a 24-page, 3-2 opinion, Chief Justice Shepard writes for the majority:In this motor vehicle collision case, defendant’s insurance carrier offered to pay policy limits even as it continued to defend its insured. Plaintiff refused the offer. A jury awarded damages above policy limits, and the carrier immediately paid on its policy.
In proceedings supplemental, the trial court ordered the insured to assign any cause of action he might have against his insurer and directed plaintiff’s counsel to prepare the assignment. The assignment became a global one, which plaintiff deployed to sue both the carrier and defendant’s personal attorney. We held fifteen years ago, however, that assigning claims against lawyers is impermissible. Most of the reasons for that rule also pertain to involuntary assignments such as the one before us. * * *
The trial court’s order requiring Perkins’ forced assignment of his chose in action against State Farm was error. This does not in any way prohibit Perkins from directly suing State Farm or from voluntarily assigning his chose in action.
Conclusion. We reverse the order issued during proceedings supplemental forcing Perkins’ assignment of any potential chose in action against State Farm and hold invalid any assignment by Perkins against his attorneys.
Sullivan and Rucker, JJ., concur.
Boehm, J., concurs and dissents with separate opinion in which Dickson, J., joins. [which begins on p. 11 of 24]
I agree with the majority that under this Court’s precedent in Picadilly, Inc. v. Raikos, 582 N.E.2d 338 (Ind. 1991), Perkins’s legal malpractice claims against his attorney Jerry L. Susong are not assignable. I also agree with the majority’s brief statement that because proceedings supplemental are “merely an extension of the underlying action, the merits of any assigned claim should not be tried in this limited forum.”
I dissent in part because I do not agree with the majority that State Farm should have been allowed to intervene in the proceeding supplemental. The Court of Appeals concluded that State Farm had a right to intervene pursuant to Indiana Trial Rule 24(A). The majority does not directly address intervention as of right but finds permissive intervention proper. I do not agree that State Farm should have been permitted to intervene pursuant to Indiana Trial Rule 24(B). I also disagree with the majority’s view that the trial court erred in ordering assignment of Perkins’s claims against State Farm. * * *
Finally, I believe the majority is mistaken in its concern that permitting involuntary assignments will result in widespread use of that technique. Most insureds cheerfully assign bad faith claims to settle with a plaintiff who obtains a judgment in excess of policy limits. In the rare case where that does not occur, the plaintiff/judgment creditor must evaluate the risks and potential rewards of pursuing a bad faith claim on behalf of an insured when the insured professes satisfaction with the insurer’s performance. The practical barriers to such a claim will deter many if not most such claims. I would permit the Estate to take its chances.
Dickson, J., joins.
Ind. Courts - 2007 Excellence in Public Information and Education Awards go to two judges
In a press release dated Sept. 24 and issued today:Two trial judges were honored by the Indiana Judges Association for their outstanding efforts to educate the public about the working of the state’s judicial system, Judge Tom Felts of the Allen Circuit Court announced today.
Judge Felts, president of the Indiana Judges Association, said the association solicited nominations from the judiciary and the public for its Commendations for Excellence in Public Information and Education Awards.
“These awards give us a wonderful opportunity to celebrate the very fine work done by judges across Indiana to help citizens gain a better understanding of the justice system,” Judge Felts said.
Judge John Rader of Warren Circuit Court received the award for Excellence in Public Information and Education. He was nominated by Judge Susan Orr Henderson of Fountain Circuit Court for his efforts to educate the community about the judicial system and the workings of his court. He writes a weekly column featured in the Review Republican in Williamsport, Indiana.
Judge Christopher Burnham of Morgan Superior Court #2 was also honored with a Special Merit Award for his cooperative efforts in working with the media during the John R. Myers murder trial in 2006. Judge Burnham created an innovative media plan that allowed reporters to have immediate access to court rulings and evidence presented during the trial, allowing for a smooth trial and minimal disruption to the operation of the Morgan County Courthouse.
The awards were presented during the Indiana Judges Association luncheon in Fort Wayne on September 20, 2007.
Ind. Decisions - 7th Circuit decides Indiana case today
In USA v. Jeffrey Collins (SD Ind., Judge McKinney), a 5-page per curiam opinion, the panel of Coffey, Evans and Sykes writes:Five years after Jeffrey Collins’s plea agreement and conviction, the government asked the district court to find him in breach of the agreement. In this appeal we review whether the district court had jurisdiction to do this, and if so, whether the district court’s finding of breach was clearly erroneous. We hold that the district court had jurisdiction, and that its finding was not clearly erroneous.
Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)
For publication opinions today (2):
In Mark Dorman and Tracy Dorman v. Osmose, Inc. , a 14-page opinion, Judge Crone writes:Mark and Tracy Dorman appeal the denial of their motion to correct error following the verdict in favor of Osmose, Inc., on their amended complaint alleging negligence and strict liability. We affirm.In Keith A. Adams v. Lisa A. Adams , a 9-page opinion dealing with an denial of a petition for modification of child support, Judge Sharpnack writes:
Issues. The Dormans raise three issues, which we restate as follows: I. Whether the Dormans waived their claim that the trial court abused its discretion in deciding not to replace a juror; II. Whether the trial court abused its discretion in excluding certain language from Osmose’s brief submitted in a prior appeal; and III. Whether the trial court abused its discretion in instructing the jury on contributory negligence.Because the trial court did not issue findings of fact and conclusions thereon, we do not know whether the trial court deviated from the Child Support Guidelines by imputing income to Keith. “There is a rebuttable presumption that an award of child support based on application of the Guidelines is the correct amount.” Sims v. Sims, 770 N.E.2d 860, 864 (Ind. Ct. App. 2002); Ind. Child Support Rule 2. “If a court concludes that a particular amount reached by application of the Guidelines would be unjust, then it must ‘enter a written finding articulating the factual circumstances supporting that conclusion.’” Sims, 770 N.E.2d at 864 (quoting Ind. Child Support Rule 3). “For this reason, the trial court was required to enter written findings detailing the circumstances making application of the Guidelines unjust.” Id. (citing Child Supp. R. 3). Therefore, we remand this cause to the trial court for entry of findings showing why application of the Guidelines would be unjust in the instant case. See, e.g., id.NFP civil opinions today (5):
For the foregoing reasons, we remand for proceedings consistent with this opinion.
Matter of C.W. and S.R.; Patrice Roberson v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "Under the facts and circumstances before us, DCS presented sufficient evidence to support the CHINS determination. Affirmed."
In Estate of William Garey v. Larry E. Geswein and South Capitol Properties, LLC (NFP), a 12-page opinion, Judge Crone writes:The Estate of William Garey (“the Estate”) appeals the denial of its motion to correct error, following the trial court’s determination that the Estate committed actual or constructive fraud in making a real estate contract with Larry E. Geswein and South Capitol Properties, LLC (collectively, “Geswein”). We reverse and remand.North Side Service Center, Inc. and Henry Duncan v. Herbert Kulwin and Shirley Kulwin (NFP) - "North Side Service Center, Inc., and Henry Duncan (collectively, “North Side”) appeal the trial court’s denial of their motion for relief from judgment filed in the action brought against them by Shirley Kulwin and the Estate of Herbert Kulwin (collectively, “the Kulwins”), predecessors-in-interest to SMK Ventures, Inc. (“SMK”). North Side raises one issue, which we restate as whether the trial court abused its discretion by denying their motion for relief from judgment under Ind. Trial Rule 60(B)(7). We affirm."
Issue. The dispositive issue is whether the trial court clearly erred in concluding that the Estate committed actual or constructive fraud. * * *
Geswein used the tires as an excuse to stop making payments on the contract. It is undisputed that the Estate fulfilled its contractual obligation to remove all tires from the property; any delay in removing the buried tires was due solely to Geswein’s refusal to allow the Estate to enter the property. On appeal, Geswein wisely does not argue that he was injured by any material misrepresentation regarding the buried tires or that his failure to make payments on the contract was otherwise legally justifiable. In light of the foregoing, we conclude that Geswein defaulted on the contract and that the trial court clearly erred in concluding that the Estate committed actual or constructive fraud. Therefore, we reverse and remand for a determination of the Estate’s damages and remedies pursuant to the contract, including the recovery of trial and appellate attorney’s fees.
Rose Mary Whitson and Joseph E. Whitson v. Diane West (NFP) - appeal of a decision of the small claims court, reversed. "Our review of the record reveals no basis for the judgment of $3230 in favor of Vest. At the time Fifth Third Bank repossessed the vehicle, Vest had enjoyed its use for two years and ten months. Fifth Third Bank sold the vehicle for $4283, an amount less than the amount still owed to Fifth Third Bank. The vehicle had a negative value, and therefore, as a matter of law, Vest could not have suffered a loss by reason of the bank’s repossession of the vehicle. * * * To suppose that Vest was unaware that failure to make the required payments would result in anything other than the bank’s repossession of the vehicle strains credulity. Further, we stress that throughout the years that Vest made payments to the bank, she enjoyed the full use of the vehicle. Based on the foregoing, we conclude that the judgment of the small claims court is clearly erroneous. Reversed."
James Hodapp and Sarah Hodapp v. Bartholomew Co. Dept. of Child Services (NFP) - termination, affirmed.
NFP criminal opinions today (8):
In State of Indiana v. Damon Lewis (NFP), an 8-page, 2-1 opinion, Judge Crone writes:The State appeals the order granting the trial court’s motion to correct error, in which it vacated Damon Lewis’s convictions and habitual substance offender finding and ordered a new trial. We affirm.Lukuman Aderibigbe v. State of Indiana (NFP)
Issue. The issue is whether the trial court abused its discretion in ordering a new trial. * * *
Here, the parties’ failure to establish during voir dire that Orcutt was related to Officer Berner, and the trial court’s refusal to allow further questioning of Orcutt once that information came to light, prevented all concerned from determining whether Orcutt could render a fair and impartial verdict. Under these circumstances, we cannot conclude that the trial court abused its discretion in ordering a new trial.
FRIEDLANDER, J., concurs.
BAKER, C. J., dissents with opinion. [which concludes] Concededly, Orcutt’s presence on the jury was not ideal. But I do not believe that this error—if it can be called an error—was so egregious that it caused the convictions. At the most, it was relevant only during the habitual offender proceeding, inasmuch as Officer Berner had no involvement whatsoever with the underlying charges. Consequently, I would reverse the trial court’s order awarding Orcutt a new trial.
Law - NYT review of Charlie Savage's book on presidential power
Michiko Kakutani of the NY Times has a good review today of a new book the ILB has been reading, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, by Boston Globe reporter and Fort Wayne native Charlie Savage.
The ILB has had a number of earlier entries on Savage's Pulitzer Prize winning stories on presidential signing statements and the theory of the unitary executive.
From today's article:Mr. Savage won a Pulitzer Prize this year for a series of articles he wrote for The Globe about executive power and Mr. Bush’s use of “signing statements,” which the president has attached to dozens of laws enacted by Congress, asserting his authority to disregard certain provisions because they conflicted with his interpretation of the Constitution. With “Takeover” Mr. Savage has expanded those articles into a book that is important reading for anyone interested in how the current administration has amped up presidential power while trying to undermine Congress’s powers of oversight and the independence of the judiciary. * * *
But this volume is distinguished by his ability to pull together myriad story lines into a succinct, overarching narrative that is energized by his own legal legwork and interviews with key figures like John C. Yoo, a former deputy assistant attorney general, and Brent Scowcroft, who was national security adviser to the first President Bush.
Mr. Savage — who holds a master’s degree from Yale Law School — not only situates moves made by the current administration in historical perspective with earlier assertions of unilateral presidential power (made by the likes of Harry S. Truman and Nixon), but also shrewdly assesses those moves in terms of mainstream constitutional scholarship. * * *
At the end of this chilling volume Mr. Savage offers a concise and powerful conclusion: “The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history — not controversies but facts. The importance of such precedents is difficult to overstate. As Supreme Court Justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, ‘lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes.’
“Sooner or later, there will always be another urgent need.”
Courts - Outcome of Indiana cert petitions to SCOTUS [Updated]
A pair of Indiana voter ID cases on the order list were granted cert:07-21 ) CRAWFORD, WILLIAM, ET AL. V. MARION CTY. ELECTION BD., ET AL. )Thanks to SCOTUS Blog.
07-25 ) IN DEMOCRATIC PARTY, ET AL. V. ROKITA, IN SEC. OF STATE, ET AL.
The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument. The brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, November 5, 2007. The brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, December 3, 2007. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 28, 2007. Briefs of amici curiae are to be filed with the Clerk and served upon counsel for the parties on or before 2 p.m., 7 days after the brief for the party supported is filed, or if in support of neither party, within 7 days after the petitioners’ brief is filed.
Here is early AP coverage.
Rick Hasen of Election Law Blog has this "breaking news" post.
[More] See also this entry from Ballot Access, which discusses the fact that "The Court did not say anything today about the Pennsylvania ballot access case, Rogers v Cortes, no. 06-1721."
The WSJ Blog has a new entry, with comments, here.
Ind. Courts - More on: Federal District Judge John Tinder Senate hearings on nomination to 7th Circuit Tuesday, Sept. 25th
Reminder: Check here to watch the Tinder hearing at 2:30 pm.
Law - More on "The Dark Side of the Legal Job Market"
Updating yesterday's ILB entry on the WSJ story about the job market awaiting new attorneys, a reader has pointed out to me that at least one of the charts provided by the WSJ website "was first presented, by IU Law Prof, Bill Henderson, at the ISBA Solo and Small Firm Conference in early June this year. He also did the Bi-modal chart that is cross referenced in the comments." See also this earlier ILB entry titled "Results available early in ISBA salary survey of Indiana attorneys."
Courts - Outcome of Indiana cert petitions to SCOTUS
The SCOTUS Blog reports this morning:The Court is scheduled to release orders at 10 a.m. Eastern of cases granted at yesterday's conference. We will provide coverage as soon as the list becomes available.Three Indiana cases on the list were discussed in this ILB entry on Sat., Sept. 22nd:
- Gilles v. Blanchard, et al., a case involving religious speech on a public university campus - Vincennes Unniversity.
- Mayer, Deborah v. Monroe County - "Honk for peace" case
- Crawford v. Marion County Election Board - voter ID case
Check back here or go to the SCOTUS Blog site for updates later this morning.
Meanwhile, check out this story today by Marcia Coyle of the National Law Journal on cases to be considered in the upcoming term of the Supreme Court.
Ind. Courts - "Oversight in place for prosecutors across state"
A.J. Nelson reports in the Martinsville Reporter-Times about what happens when the county prosecutor is unable to serve:Morgan County Prosecutor Steve Sonnega doesn't anticipate any problems with his office while he is away serving in the National Guard. If problems do arise, there is a place to turn, however.
The state's highest court has the final say on whether a prosecutor's office is working correctly, and can enforce that oversight by appointing its own special prosecutor to oversee that county's office.
According to Indiana Prosecuting Attorney Council executive director, Steve Johnson, if something went wrong and a prosecutor's office stopped working correctly, the Indiana Supreme Court can step in and remove an elected prosecutor and appoint another in his or her place.
"Just as a private attorney can be disciplined for neglect of a private duty, so can a prosecutor be disciplined for neglecting the state's duties," Johnson said.
Johnson gave the example of the Washington County Prosecutor, Cynthia L. Winkler, who was suspended for 120 days in 2005 for unethical conduct, and her chief deputy was suspended for two months. The Supreme Court appointed a special prosecutor to run that county's office for the month of suspension.
Morgan County Prosecutor Steve Sonnega will hire a temporary deputy prosecutor to help in his department when he is called up for active duty with the Indiana National Guard at the end of the year.
Sonnega said that while he will continue being the county prosecutor while he is away, his chief deputy, Robert Cline, will take over his duties.
The state is paying the salaries of temporary judges who are filling in for regular judges who have been called up for active military duty, however, there is no money to pay for county prosecutors who are called up.
The two areas that may be a problem, calling a grand jury and asking for a special prosecutor. Sonnega said if there is a document that has to have his signature, it can be sent to him by overnight delivery.
Law - More on: Lawyer in Kentucky schools case seeks fees, bonus
The SCOTUS ruling on June 28, 2007, where, per this Louisville Courier Journal story dated June 29th: "In a 5-4 decision, Chief Justice John Roberts said that by classifying students by race, the Louisville and Seattle school districts perpetuated unequal treatment and had failed to justify the use of race," has led to actions by the winning counsel in both cities to recover their "pro bono" fees.The Louisville attorney who helped overturn Jefferson County Public Schools' student-integration policy is asking a federal judge to order the district to pay him $750,000 in fees and bonuses.
Attorney Ted Gordon filed a request yesterday in U.S. District Court for the Western District of Kentucky in Louisville that includes $228,022 in fees and court costs and a $521,977 bonus based on the difficulty, complexity and scope of the case. He is asking for a $400 hourly fee, saying he worked at least 560 hours on the case, excluding 50 hours of media time.
"It is critical for the court to award sufficient attorney fees in cases such as this one" so that lawyers continue to risk the loss of personal income to pursue civil-rights "cases that should be prosecuted," the filing said.
The fee request is less than the $1.8 million requested by attorneys representing Seattle school parents, whose lawsuit was decided June 28 in tandem with the Jefferson County case and together invalidated similar desegregation policies nationwide. * * *
The winning parties in civil-rights cases are typically allowed to recover attorneys' fees from the losing side, and a premium or bonus can be added for complex cases.
"A court will typically look at the rate, hours and both the quality of the work and the outcome," said Louisville attorney David Friedman, who has litigated many civil-rights cases.
Some courts have been "reluctant" to enhance fees, he said, but "it doesn't mean it can't be done."
David Vladeck, a law professor at Georgetown University and former director of the watchdog group Public Citizen, said the request seemed "excessive." He said the Seattle case was more complex procedurally; was argued before the full 9th U.S. Circuit Court of Appeals; and had a longer factual record.
Further, he said, the U.S. government was on Gordon's side.
"He's entitled to a fee, but not a windfall," he said.
Courts elsewhere have approved some substantial awards.
Last year the Dover School District in Pennsylvania was forced to pay $1 million in legal fees to the American Civil Liberties Union and the Americans United for Separation of Church and State, which successfully represented parents who sued the district for teaching the theory of intelligent design in ninth-grade biology classes.
Monday, September 24, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)
For publication opinions today (1):
In Rosalio Pedraza v. State of Indiana , a 20-page opinion, including a concurring opinion beginning on p. 18, Judge Robb writes:Following a jury trial, Rozalio Pedraza was convicted of two counts of operating a vehicle while intoxicated (“OWI”) causing death and having a prior OWI conviction in the last five years, both Class B felonies, and OWI causing serious bodily injury and having a prior OWI conviction in the last five years, a Class C felony, and was determined to be an habitual substance offender. The trial court ordered that Pedraza serve an aggregate term of fifty-two years. Pedraza now appeals his sentence, arguing that the trial court erroneously entered a judgment of conviction for OWI causing serious bodily injury, that the trial court found an improper aggravating circumstance, that the trial court abused its discretion in failing to find mitigating circumstances, that Pedraza’s sentence is inappropriate based on his character and the nature of the offenses, and that the trial court erroneously ordered Pedraza’s sentences to run consecutively. Concluding that the trial court properly entered a judgment of conviction for OWI causing serious bodily injury, that the trial court did not abuse its discretion in its identification of the aggravating and mitigating circumstances, that Pedraza’s sentence is not inappropriate, and that the trial court properly ordered Pedraza’s sentences to run consecutively, we affirm. * * *NFP civil opinions today (2):
BRADFORD, J., concurs.
VAIDIK, J., concurs in result with separate opinion. [that concludes] I would hold that the trial court abused its discretion in finding as an aggravating circumstance the same convictions supporting Pedraza’s habitual offender finding. Nonetheless, because the other aggravating circumstances identified by the trial court are sufficient to support Pedraza’s sentence, I concur in the result reached by the majority.
Wernle, Ristine & Ayers v. B.O.M. Corporation d/b/a Tonertek and Jamie Phillips (NFP) - "Wernle, Ristine, & Ayers (“WRA”) appeals the trial court’s apportionment of liability between Jamie Philips and B.O.M. Corp. d/b/a Tonertek. WRA raises two issues, which we revise and restate as: I. Whether the trial court’s finding that Philips hired WRA to draft a franchise agreement was clearly erroneous; and II. Whether the trial court’s failure to award prejudgment interest to WRA was clearly erroneous. We affirm."
Larry E. Becker v. T II, LLC (NFP) - This 5-page opinion by Senior Judge Barteau, where the issue was "Whether the trial court abused its discretion when it denied Becker’s motion to vacate a default judgment," includes a one-page concurring opinion by Senior Judge Sullivan.
NFP criminal opinions today (7):
Ind. Decisions - Upcoming oral arguments this week
Upcoming oral arguments before the Supreme Court:
This Tuesday, Sept. 25th:
9:00 AM - Chi Yun Ho, M.D. v. Loretta Frye - Frye sued Dr. Ho and the Putnam County Hospital for medical malpractice as a result of a sponge that mistakenly was left inside Frye following surgery. After the hospital settled, Frye filed a motion for partial summary judgment against Dr. Ho on the issue of liability, which the trial court denied. Frye’s suit against Dr. Ho proceeded to jury trial, and the jury rendered a verdict in favor of Dr. Ho. The trial court subsequently granted Frye’s motion for a new trial and vacated the jury verdict. Dr. Ho appealed and Frye cross-appealed. The Court of Appeals held that Frye was entitled to partial summary judgment against Dr. Ho on the issue of liability. Ho v. Frye, 865 N.E.2d 632 (Ind. Ct. App. 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
9:45 AM - Micahel Cubel v. Debra Cubel - In the parties’ marital dissolution proceeding, the Hendricks Superior Court ordered the father to maintain medical insurance on the couple’s daughter until she reaches age 23. The Court of Appeals affirmed in an unpublished memorandum decision, Cubel v. Cubel, No. 32A04-0605-CV-268, slip op. (Ind. Ct. App. Apr. 30, 2007). The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal.
Upcoming oral arguments before the Court of Appeals that will be webcast:
This Monday, Sept. 24th:
2:00 PM - State Farm Mutual Automobile Insurance v Jelana Hobbs D'Angelo - State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the trial court’s entry of summary judgment in favor of Jelana Hobbs D’Angelo and against State Farm, finding that D’Angelo is entitled to underinsured motorist coverage from State Farm for her negligent infliction of emotional distress claims arising out of the death of her son after he was struck by an automobile. State Farm contends that because “bodily injury,” as that term is defined by its automobile-insurance policy, does not include emotional damages, D’Angelo may not recover from State Farm under separate “Each Person” limits. State Farm further contends that its underinsured-motorist policy does not violate Indiana Code section 27-7-5-2.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Tuesday, Sept. 24th:
5:00 PM (at IU - School of Law, Indianapolis, Indiana) - Anthony Hayes vs. State of Indiana - Anthony Hayes appeals from a bench conviction in Marion Superior Court of a Class D felony possession of cocaine. Hayes was arrested after an Indianapolis police officer recovered a bag of crack cocaine from a trash bin that he observed Hayes reach into with a closed fist. Hayes argues that the evidence presented is insufficient to sustain his conviction because the trash bin where the cocaine was discovered was left unattended by a police officer and in the presence of other individuals while the police officer chased Hayes. The Scheduled Panel Members are: Judges Kirsch, Mathias and Bradford.
This Wednesday, Sept. 24th:
2:00 PM - State of Indiana vs. Kimco of Evansville - In 2000, the State appropriated property from Kimco and began a construction project reconfiguring the road on one side of Kimco's property. As a result of the construction and resulting reconfiguration, Kimco has suffered economic loss. At trial Kimco sought and received damages for that loss. The State now appeals the jury's verdict of $2,300.000 in favor of Kimco. In 2000, the State appropriated property from Kimco and began a construction project reconfiguring the road on one side of Kimco's property. As a result of the construction and resulting reconfiguration, Kimco has suffered economic loss. At trial Kimco sought and received damages for that loss. The State now appeals the jury's verdict of $2,300.000 in favor of Kimco. The scheduled panel members are: Judges Kirsch, Robb and Barnes.
Law - "The Dark Side of the Legal Job Market"
"A Stingier Job Market Awaits New Attorneys" is the headline to the top story today (perhaps $$$) in the Wall Street Journal. A couple brief quotes from the long and comprehensive story reported by Amir Efrati that gives the other side of the $160,000 starting salaries in NYC. It begins "A law degree isn't necessarily a license to print money these days." But perhaps starting a law school is, according to this:On the supply end, more lawyers are entering the work force, thanks in part to the accreditation of new law schools and an influx of applicants after the dot-com implosion earlier this decade. In the 2005-06 academic year, 43,883 Juris Doctor degrees were awarded, up from 37,909 for 2001-02, according to the American Bar Association. Universities are starting up more law schools in part for prestige but also because they are money makers. Costs are low compared with other graduate schools and classrooms can be large. Since 1995, the number of ABA-accredited schools increased by 11%, to 196.Later in the story:Many students "simply cannot earn enough income after graduation to support the debt they incur," wrote Richard Matasar, dean of New York Law School, in 2005, concluding that, "We may be reaching the end of a golden era for law schools."The freely accessible WSJ Law Blog has a post this morning by the author of the WSJ article, headed "The Dark Side of the Legal Job Market." It begins:For graduates of elite law schools, prospects have never been better. But the majority of law-school graduates are suffering from long-term economic trends are suppressing pay and job growth. The result: Graduates who don’t score at the top of their class are struggling to find well-paying jobs to make payments on law-school debts that can top $100,000. Some are taking temporary contract work, reviewing documents for as little as $20 an hour, without benefits. And many are blaming their law schools for failing to warn them about the dark side of the job market.The entry is already followed by a lng list of comments.
That’s the subject of a page-one story in the Journal Monday. The story includes lots of data and real-life examples showing how life outside BigLaw has gotten tougher, and how some law schools are doing their best not to let the word out. The 2,300-word story even has a shout-out to the infamous Loyola 2L, who has been beating a drum of discontent about the legal market around the legal blogosphere.
Courts - More on: Indiana cert petitions to SCOTUS to be considered Sept. 24th
Updating this ILB entry from Saturday, which listed three Indiana-based cases eligible for cert grant at the SCOTUS conference today, including Indiana's voter ID case, Crawford v. Marion County Election Board, Adam Littak has a timely column today in the NY Times titled "Fear but Few Facts in Debate on Voter I.D.’s." A quote:In a private conference today, the Supreme Court will consider whether to hear an appeal from Judge Posner’s decision.Accompanying the article, in a sidebar, are a number of useful links to background materials.
Indiana has the strictest voter-identification law in the nation, lawyers for the Indiana Democratic Party told the Supreme Court in July, but a handful of states have similar ones and more than a dozen are considering following suit. “The restrictive conditions imposed in Indiana are a harbinger,” the brief said.
Sunday, September 23, 2007
Ind. Courts - Federal District Judge John Tinder Senate hearings on nomination to 7th Circuit Tuesday, Sept. 25th
From the Indianapolis Star's weekly Behind Closed Doors column today:Sen. Richard Lugar, a Republican, and Sen. Evan Bayh, a Democrat, plan to give U.S. District Judge John Tinder of Indianapolis a bipartisan introduction at Tinder's confirmation hearing Tuesday to the federal appeals court.Here is the link to the official Senate Judiciary Committee hearing page for Sept. 25th. Scheduled at 2:30 p.m.:
Unlike some of President Bush's judicial nominations, Tinder has not run into trouble with congressional Democrats.
Conservative and liberal advocacy groups have argued over who's to blame for some long-standing vacancies on the federal appeals court.
Sen. Pat Leahy, the Vermont Democrat who chairs the Senate Judiciary Committee, points out that his panel has confirmed more judges this year than were confirmed in 2005 when Republicans controlled Congress.
Tinder would replace Judge Daniel Manion, a former Indiana state senator, on the 14-member appeals court for the Seventh Circuit.John Daniel Tinder to be United States Circuit Judge for the Seventh CircuitYou will be able to listen to the hearing via this C-Span site, by selecting "SD-226" at 2:30 pm on Tuesday.
Robert M. Dow, Jr., to be United States District Judge for the Northern District of Illinois
For background on the Tinder nomination, start with this ILB entry from August 13, 2007.
Ind. Courts - Waivers to adult court
Diane Krieger Spivak writes today in the Gary Post-Tribune, under the heading "High-profile cases waive teens to adult court." Some quotes:Rules for waivers are controlled by Indiana statute, says Nick Snow, a deputy Porter County prosecutor.
"There are specific requirements," Snow said. "There has to be probable cause that an act was heinous and aggravated or part of a repetitive pattern of conduct."
A criminal act can be an isolated incident "but really bad, or a kid can have 10 different arrests and be beyond the rehabilitative powers of the juvenile system. In those cases the juvenile system has tried everything and the juvenile continues to re-offend," he said. * * *
Each juvenile is taken on a case-by-case basis and the statute's standards are vague, which is why a waiver hearing before a juvenile judge or magistrate is necessary for a prosecutor to prove to the court that a child's crime should be dismissed and refiled in an adult court, says Snow.
The exception is if there is probably cause that a child over the age of 10 has committed murder. "That's an automatic waiver to adult court," Snow said.
[Porter Circuit Court Judge Mary Harper,] who spoke to the Post-Tribune prior to being selected to preside over Phelps' trial, hesitated to say whether or not requests for waivers by local prosecutors are becoming a trend.
Harper had declined comment because of the pending cases in Porter County. It was Harper who approved Magistrate Edward Nemeth's recommendation that Phelps be tried as an adult and that Garza remain in the juvenile system.
What Harper would say, however, is: "We have a lot of very challenging cases within the juvenile justice system, and our challenges have been increasing over the past 10 years."
Harper added, "Lack of parental supervision is a clear factor in many of the more serious matters presented to the juvenile court.
"We work really hard to do whatever we reasonably can to help and rehabilitate children within the juvenile justice system, but occasionally there are those that have not benefited from it," she said.
Even if a child were waived to adult court, he or she, if convicted, would not be placed in a prison with adult offenders, but in a juvenile correctional facility until the age of 18.
Ind. Gov't. - Is Gov. Daniels overstepping his executive authority?
A fascinating column in the Louisville Courier Journal today by Lesley Stedman Weidenbener, pulls together many threads -- instances where the Governor may have waived laws without legal authority, may have taken affirmative action without legislative authorization, and may have taken the opposite course, claiming lack of authority, when it suited his ends.
Ind. Gov't. - More on: State and university salaries
Last year the Indianapolis Star put out a database of state and university salaries. See this ILB entry from Aug. 20, 2006. While useful, that database had some major omissions that the ILB noted at the time, such as: "Salaries of the Legislative Services Agency do not appear to be included in the database. Neither do the salaries of House and Senate staff. All of these salaries are paid, of course, by the taxpayers." Further, not all state universities, such as Ivy Tech, were included.
The new September 2007 database, announced in today's Star, cures those omissions. So far, the ILB sees only one shortcoming, but it is a significant one. With the 2006 database (still available here) you could search by department code - i.e. you could pull up the individual departments of state government and see at a glance all the salaries in that department. With the 2007 database, the categories are built into the "employer" pull-down list, which has only the category "state government," plus the individual universities.
One option. Once you have retrieved a long list of names, such as by choosing "state government" and salary range", for instance, you may click the "employer" heading at the top of the resulting table to sort by department, within that salary range.
Saturday, September 22, 2007
Environment - More on: Status of the BP appeal before the Office of Environmental Adjudication
In this entry from Sept. 18th, the ILB reported on a story from the Gary Post-Tribune that began:The Alliance for the Great Lakes filed a petition on Aug. 15 asking for permission to file a belated appeal.Today Gitte Laasby, Post-Tribune staff writer who has been covering all these BP stories, reports:
Briefs in the case were due Monday, but the Alliance, BP and the Indiana Department of Environmental Management asked for more time. Environmental Law Judge Catherine Gibbs of the Office of Environmental Adjudication granted the request.
The new date for oral argument is 11 a.m. Dec. 14 in Indianapolis.The Alliance for the Great Lakes is voluntarily dropping its appeal of BP Whiting's wastewater permit.
The organization announced Friday in a letter to the Office of Environmental Adjudication that it was withdrawing its Aug. 14 petition.
"We won, in that BP has vowed to live within the pre-existing limits. Had they not made that announcement, I think we would have maintained it," Alliance president Cameron Davis told the Post-Tribune.
Davis said the organization proved that the Indiana Department of Environmental Management did not notify the Alliance and at least one person who commented on BP's permit that the final permit was issued, as state law requires.
But the organization decided limited staff resources are better spent on changing and developing legislation and on reviewing other upcoming permits.
"While the reality is that the Alliance -- and possibly many others -- did not receive notice, the legal reality is that proving IDEM did not send notice presents an extreme burden for the Alliance, especially in the wake of BP's announcement and as the Alliance now turns its attention to future permit renewals in the Great Lakes -- such as U.S. Steel permit renewal in Indiana," Davis said in the letter.
"I think there are still other channels at hand. We've got legislative, regulatory fixes we might try to look at. But I think it's an individual call for every organization," Davis said.
The Alliance plans to comment on U.S. Steel's permit and be involved in developing Indiana rules regarding anti-degradation.
In the letter, the Alliance also offers to work with IDEM to improve the agency's notification practices "to ensure that the public's participation and appeal rights aren't compromised in the future."
Several people told the Post-Tribune in July that IDEM had never notified them. A Post-Tribune analysis, published Aug. 1, confirmed their names were not on IDEM's notification list.
IDEM has maintained the agency believes it followed appropriate notification procedures.
Courts - Indiana cert petitions to SCOTUS to be considered Sept. 24th
According to SCOTUS Blog, among the cert petitions more likely to be granted on Monday, Sept. 24th is the case of Gilles v. Blanchard, et al. (06-1617), a case involving religious speech on a public university campus. The university is Vincennes University. Here is a quote from the SCOTUS Blog entry:The petition argues that the Seventh Circuit’s decision stands in contrast to rulings in the Fifth, Eighth, Ninth, Tenth, and D.C. Circuits on whether open, park-like areas on public university campuses are public forums. The petitioners also allege a split “over the unbridled discretion doctrine and its application within nonpublic forums,” with the Federal, First, and Seventh Circuits disagreeing with the Fourth, Eighth, Tenth, and Eleventh Circuits.Here is the 7th Circuit opinion. SCOTUS Blog lists this case as among those that "have a reasonable chance of being granted at the Sept. 24th conference in this table.
For its part, the university disputes Gilles’ characterization of the lawn as a public area. Its brief in opposition says the lawn is not adjacent to any public street or sidewalk, and that all previous speakers on the lawn spoke at the invitation of a member of the university. The university downplays the former split by arguing that “no circuit has held that an open area of a campus distinguishable from a city sidewalk is a traditional public forum,” and spends just a paragraph diminishing the latter split.
Other Indiana cases that the ILB believes to be on the cert list for Monday is the 'Honk for peace" case out of Bloomington, Mayer, Deborah v. Monroe County, see ILB entries here, 7th Circuit opinion here.
The Indiana voter ID case, Crawford v. Marion County Election Board, also is on the Sept. 24th list. Start with this ILB entry for background.
Neither of these two cases, however, has been included in the SCOTUS Blog "most likely to be granted" list.
Ind. Decisions - More on: 7th Circuit decision on validity of Illinois Horse Meat Act
The Chicago Tribune today has a brief item on the 7th Circuit ruling yesterday in the case of Carvel International v. MadiganILLINOIS - A federal appellate court panel on Friday upheld the constitutionality of an Illinois law that prohibits the slaughter of horses for human consumption. The ruling effectively shuts down a DeKalb horse-slaughtering plant, the last facility of its kind in the country. Cavel International Inc., a Belgium-based company, kills horses and ships meat overseas for human consumption. Plant officials declined to comment on Friday's ruling. Cavel's attorney, J. Philip Calabrese, said he and the company are evaluating whether to further appeal the matter. Cavel had asked the court to invalidate a statute signed in May that prohibited the slaughter of horses for human consumption and the possession, import or export of horse meat for humans. Cavel also argued the state law discriminates against foreign commerce. The appellate panel expressed some reluctance in its decision, saying in its opinion that "... we are not entirely happy about having to uphold the Illinois statute." But it concluded that the law does not improperly discriminate and does not significantly interfere with interstate or foreign commerce. The appellate opinion noted that the Illinois law does not prohibit the slaughter of horses for animal food. The Cavel plant at one time slaughtered about 1,000 horses a week, according to plant officials.See ILB summary here.
Ind. Courts - Supreme Court asked to intervene in election dispute
From the Gary Post-Tribune:EAST CHICAGO -- Anthony Copeland's on-again, off-again independent run for the East Chicago City Council is headed to the state Supreme Court.The Clerk's Docket lists this case as: Case Number: 45 S 00 - 0709 - OR - 00366; STATE OF INDIANA EX REL LAKE CTY BD OF ELEC -V- LAKE SUP CT
Attorneys for the Lake County Election Board and three Democratic City Council candidates fighting to keep Copeland off the ballot have asked the Supreme Court to intervene to expedite the legal fight.
Lake Superior Court Judge Diane Kavadias Schneider issued a temporary and permanent injunction Monday allowing Copeland's name to appear on the ballot as an independent candidate for the at-large council seat.
The judge's ruling reversed that of the election board, which ruled Copeland, who now holds an at-large seat as a Democrat, couldn't run as an independent because he was a Democratic officeholder at the time.
Kenneth Reed, attorney for the other candidates -- Richard Medina, Myrna Maldonado and Juda Parks -- argued Kavadias Schneider only had jurisdiction to issue a temporary injunction. Reed also wants the Supreme Court to grant a change of venue for a follow-up hearing on the issue.
Ind. Law - Passwords and probate
An editorial today in the Fort Wayne Journal Gazette talks about problems with accessing financial and other information locked behind passwords in decedents' estate. The article concludes:The issue received national attention in 2005 when the parents of a Michigan man killed in combat in Iraq sought his e-mails, hoping to preserve the messages he sent and received. Initially, e-mail provider Yahoo! refused, saying it wouldn’t give e-mail access to someone other than the account holder. The parents sued in probate court, and Yahoo! complied.Here is the new law referenced in the editorial, SEA 212 (PL 12-2007, SEC. 1). You can also find the new provision, IC 29-1-13-1.1, here, in the Indiana Code.
“This used to be a fairly large problem because we had no process in place for how you deal with everything stored on someone’s computer,” said Kristin Fruehwald, an attorney with Barnes & Thornburg in Indianapolis.
“Used to” because the Indiana General Assembly – in legislation authored by Sen. David Ford, R-Hartford City – adopted procedures this year that took effect July 1. The common-sense requirements: A personal representative of an estate is entitled to receive the electronically stored account information of a deceased person by presenting a death certificate and proof of being the representative. The custodian of the information must not destroy it for at least two years after receiving a request.
Electronically stored information could have its own value, Ford said. For example, a book in progress may be stored over an online service.
The issue may seem like a good reason to keep copies of passwords, but Fruehwald encourages people to remember those warnings – writing down passwords does make you more vulnerable. And giving them to a trusted relative or friend is a risk – they don’t always remain trusted for lifetimes.
Fruehwald does encourage people to keep a written record of the account in a safe place, though, so relatives and others dealing with an estate at least know early on what accounts to look for.
Though the new law addresses how to get the proper information from banks, the password question raises other issues. What about password-protected photo albums stored on a computer, for example?
And though the law deals with estates, it doesn’t address situations when people become ill, can’t remember their passwords and aren’t able to contact the account holder.
“It’s going to be a big problem in the future,” Fruehwald said.
Courts - Now there are two: Idaho joins Indiana as only states where no women on highest court
"Horton gets high court job" is the headline to this story earlier this week in the Spokesman Review, out of Spokane Washington.Betsy Russell reports:BOISE – Gov. Butch Otter appointed 4th District Judge Joel Horton to replace retiring Justice Linda Copple Trout on the Idaho Supreme Court on Tuesday – making Idaho one of just two states in the nation with no female justices on its highest court.Here is a list of earlier ILB entries on this topic.
Otter passed over two female finalists and a Coeur d'Alene attorney, all of whom he said were well-qualified, to select the Boise judge.
"I did not see this as a gender seat. What I looked for was the best candidate," Otter said. * * *
The only other state with no women on its highest court is Indiana. Washington has four.
In Idaho, six of 42 state district court judges are women, and 10 of 87 magistrate court judges. One member of the three-member Idaho Court of Appeals is female.
Friday, September 21, 2007
Environment - PBS News Hour on "Oil Refinery Expansions Face Opposition"
From the Sept. 19th PBS News Hour, the introduction is "An oil refinery in Detroit wants to expand its capacity by 15 percent, but neighbors and environmentalists oppose the project. This report describes how the Michigan case is indicative of the situation nationwide." Indeed, much of the report talks about the Indiana BP water and air permit issues.
Read it here, or watch or listen to it online.
Ind. Decisions - 7th Circuit decision on validity of Illinois Horse Meat Act
In Carvel International v. Madigan, a 15-page opinion, Judge Posner writes on a challenge to the validity of the Illinois Horse Meat Act that makes:it unlawful for any person in the state either “to slaughter a horse if that person knows or should know that any of the horse meat will be used for human consumption,” § 635/1.5(a), 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.” * * *From Judge Posner's opinion on p. 11-12:
Cavel International, the plaintiff in this case, owns and operates the only facility in the United States for slaughtering horses. Until recently it was one of three such facilities, but the other two, both in Texas, stopped slaughtering horses after the Fifth Circuit upheld a Texas law similar to the Illinois law challenged in this case. Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326, 336-37 (5th Cir. 2007).There is a wrinkle in this analysis, however, though unremarked by the parties. Zoos feed a considerable amount of horse meat to their charges. Brad Haynes, “Zoos in a Pickle Over Horse Meat,” Seattle Times, Aug. 14, 2007, http://seattletimes.nwsource.com/html/localnews/200 3835227_horsemeat14m.html (visited Sept. 18, 2007). For living proof, we reproduce a photograph from Haynes’s article, with its caption:[More] - See the Decision of the Day entry here, headed "Only A Temporary Reprieve for Horse Meat." See the WSJ Law Blog entry here.“Kwanzaa, a young South African lion at Cameron Park Zoo in Waco, Texas, celebrates his birthday with a cake made from 10 pounds of horse meat, plus whipped cream and a carrot.”[Notes from ILB: Emphasis added. Unfortunately, the photo is embedded in the PDF document, you will have to access the opinion to view it. And the Seattle Times story referenced in the opinion already is "no longer available."]
As the article explains, American zoos, seeing the handwriting on the wall so far as the domestic slaughter of horses is concerned, are shifting to importing horse meat. So the slaughter of horses will continue. For all we know, Cavel may seek out a new market in America’s zoos. We do not know why, with the cessation of horse slaughtering at the Texas slaughterhouses, Cavel has not done so already.
But even if no horses live longer as a result of the new law, a state is permitted, within reason, to express disgust at what people do with the dead, whether dead human beings or dead animals. There would be an uproar if restaurants in Chicago started serving cat and dog steaks, even though millions of stray cats and dogs are euthanized in animal shelters. A follower of John Stuart Mill would disapprove of a law that restricted the activities of other people (in this case not only Cavel’s owners and employees but also its foreign consumers) on the basis merely of distaste, but American governments are not constrained by Mill’s doctrine. * * *
The fact that the governor’s signing statement acknowledges the role of the Hollywood actress Bo Derek, author of the book Riding Lessons: Everything That Matters in Life I Learned From Horses (2002), in outlawing the slaughtering of horses could be thought to inject a frivolous note into a law that forces the closing of a business that has very little to do with the people of Illinois. But this is not a basis for invalidating a nondiscriminatory statute that interferes minimally with the nation’s foreign commerce and cannot be said to have no rational basis. * * *
Although the appeal is from the denial of a preliminary injunction, the merits of Cavel’s challenge to the horsemeat law have been fully briefed and argued and there are no unresolved factual issues the resolution of which in a trial would alter the result. In such a case, courts treat the appeal as if it were from a final judgment. [cites omitted] So the judgment is affirmed, the suit dismissed with prejudice, and the injunction that we granted pending appeal dissolved.
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In Alan C. Jones v. State of Indiana , a 7-page opinion, Judge Barnes writes:Alan Jones appeals the revocation of his probation, the reinstatement of his suspended sentence, and the trial court’s determination that he is a sexually violent predator. We affirm. * * *In In re: The Marriage of Barbara Kenda and Boris Pleskovic , an 18-page decision, Judge Bailey writes:
Plainly, the statute provides that it applies “whenever” a defendant is sentenced. I.C. § 35-38-1-7.5(c). It does not specify that such a time is limited to the initial sentencing. Moreover, this trial court did consider the issue during a sentencing hearing–just a hearing subsequent to the original one. Nothing in the statute expressly prohibits consideration at this stage. Given the potential for very serious probation violations, we find that trial courts should have discretion to consider assigning sexually violent predator status when considering probation violations and determining the sentence to be imposed for such violations. We conclude that the plain language of the statute here does not limit the consideration to the initial sentencing hearing, and Jones’s arguments to the contrary must fail.Barbara Kenda (“Mother”) appeals a custody modification order awarding Boris Pleskovic (“Father”) custody of their child, A.P.K. We affirm. * * *NFP civil opinions today (2):
Fostering a child’s relationship with the noncustodial parent is an important factor bearing on the child’s best interest and, ideally, a child should have a well-founded relationship with each parent. Johnson v. Nation, 615 N.E.2d 141, 146 (Ind. Ct. App. 1993). When the custodial parent denies visitation rights to the other parent without evidence that the noncustodial parent is a threat to the child, it may be proper based upon the circumstances for the trial court to modify custody. See Bays v. Bays, 489 N.E.2d 555, 561 (Ind. Ct. App.1986), trans. denied. In addition, when a parent blatantly disregards a court custody order, a trial court can draw a reasonable inference of future lack of cooperation. Id.
Here, the trial court found that the relationship between Father and A.P.K. was substantially changed due to Mother’s efforts to prevent such a relationship by cutting off Father’s visitation rights provided by the terms of the divorce decree. This conclusion is supported by evidence, which shows that Mother went as far as seeking the assistance of England’s courts so that she could keep A.P.K. in her care rather than Father’s. Based on the evidence, the trial court did not abuse its discretion in modifying custody.
Penny E. Pitcock v. Roth Associates, Inc. and Mary Roth (NFP) - "The trial court found that “Plaintiff admit[ted] that there was no written partnership agreement.” Accordingly, by virtue of Penny’s own affidavit, the Statute of Frauds precluded the entry of summary judgment in her favor.
"Conclusion. The trial court did not abuse its discretion in granting Roth’s Motion to Correct Errors and vacating its earlier entry of Partial Summary Judgment. Affirmed."
Termination of the Parent-Child Relationship of L.V.; Krystal Cheever and Mario Villegas v. Marion County Department of Child Services (NFP) - "The DCS established by clear and convincing evidence the requisite elements to support the termination of Father’s parental rights to L.V. Affirmed."
NFP criminal opinions today (6):
Ind. Decisions - Transfer list for week ending September 21, 2007
Here is the Indiana Supreme Court's transfer list for the week ending September 21, 2007.
There were no transfers granted this week.
One interesting transfer denied today is the case of Indiana Patient's Compensation Fund v. Lori and Darrin Winkle, a 16-page COA opinion, (see March 16, 2007 ILB entry here) where Judge Robb wrote:Concluding that Lori and Darrin are not entitled to separate excess damage awards arising from the death of their unborn child, we affirm the trial court’s award of one statutory excess damage award to Lori, and reverse the remainder of the trial court’s order. * * *And in a surprise, after holding oral arguments, the Court has decided in the case of Rebecca Shaw, et al. v. LDC Enterprises, Inc. d/b/a I & I Steakhouse, et al.: "Order that granted transfer is vacated/Transfer is now denied." This was a choice of law case involving, inter alia, the availability of relief under the Illinois and Indiana dram shop acts. See a list of ILB entries on the case here, including the March 30, 2007 COA decision here.
Lori is entitled to a statutory cap for her injuries. Because the Winkles’ unborn child is not a “patient” pursuant to the Act and because Lori and Darrin therefore have no one from whom their negligent infliction of emotional distress claims can derive, they are not entitled to separate statutory caps for their emotional damages. The trial court’s order is therefore affirmed as to a single cap to Lori, and reversed as to the remainder.
Nearing four 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.
Ind. Decisions - "Ruling on Charlestown sewer line overturned: Home didn't have to be connected"
Ben Zion Hershberg of the Louisville Courier Journal reports on the Court of Appeals decision yesterday in the case of Mike Perry, City of Charleston Sewer Dept. v. Jesse Ballew. Some quotes:The Indiana Court of Appeals yesterday overturned a Clark County Circuit Court ruling that required connecting a home in the Highview subdivision to a sewer line that a developer built to the nearby Danbury Oaks subdivision. * * *
[Charlestown Mayor Mike] Hall said he didn't know yet whether the city would disconnect the home from the sewer line.
Attorney Dan Moore, who represents KBJ, said he will discuss with his clients whether to appeal to the Indiana Supreme Court. * * *
The ruling overturned yesterday involved a rental house owned by Jesse Ballew, a KBJ partner.
The house is on Locust Street in the Highview subdivision. Its septic tank had failed, according to the appeals court decision, and when Ballew asked to connect it to the Danbury Oaks line, the Charlestown Sewer Department, which treats sewage from the line, refused.
In his ruling late last year, Clark Circuit Judge Daniel Donahue said Charlestown officials "have the responsibility" to allow sewer connections for health and other reasons.
But the appeals court disagreed, saying "there is no authority clearly requiring the (Charlestown) Sewer Department to issue" a connection permit for the house. Without such a clear requirement, the judges said, Donahue shouldn't have ordered the connection.
Attorney David Lewis, who handled the appeal for Charlestown, said he doesn't expect yesterday's decision to impact the other litigation between the city and the developer. That includes a ruling by Donahue that the sewer-construction agreement between Charlestown and KBJ is invalid. Donahue issued that ruling in July, and the developer has filed a notice of appeal.
Moore said he believes the appeals court made a mistake in saying there is no clear authority requiring the city to allow the sewer connection.
There are a number of cases in which courts have held that a resident must be given access to a utility such as a sewer line if it is requested, he said.
Ind. Law - Patient privacy and the pharmacy
Thomas B. Langhorne reports today in the Evansville Courier & Press:Two Evansville pharmacies are among 36 pharmacies and pharmacists Indiana's attorney general says violated patient privacy by improperly disposing of private health information. * * *
Carter said the pharmacies are accused of jeopardizing customers' personal prescription information in the form of containers for prescription medicine and related written information.
"Generally, I think what's happened is too much of this information has been placed out in regular Dumpsters, the general trash, with other items that we don't have to maintain security about, and that's made it available for others who might 'Dumpster dive' into those materials," he said.
This makes the information too easily available to individuals seeking controlled substances, Carter said.
"Think about it: If they've actually got the bottle that has the consumer's name on it, their address and the type of controlled substance it is, it's pretty easy to know where to go if they would want to rob somebody to try to gain those prescriptions for themselves," he said.
In 2006 a reporter for WEHT-News25 did just that. On more than one occasion, the reporter climbed into Dumpsters at both pharmacies being charged and found information on customers including their names, addresses and the medications they were taking.
Carter's office is alleging a violation of Indiana Code 856 IAC 2-3-30 (a), which states: "All applicants and registrants shall provide and maintain effective controls and procedures to guard against theft and diversion of controlled substances."
The attorney general said sanctions range from loss of state pharmacy licenses to suspensions, probation of licenses, reprimands and fines.
The accused pharmacies have been cooperative, Carter said, retraining employees and taking other steps to correct mistakes, but he said they still must face the state Pharmacy Board.
"We don't have any information indicating that these actions were intentional, but even so, if they're violations of putting people's personal information into a vulnerable condition, that's a very serious matter," he said.
"... Some personal information could be used to gain access to property, accounts, to create havoc in somebody else's life. It's just too important to ignore this kind of thing."
Ind. Decisions - "Appeal gains killer hearing" [Corrected]The Indiana Court of Appeals found Thursday that an Allen County judge used an inappropriate factor to add time to a murderer’s sentence in 1993 and should consider other items that might further reduce the prison term. * * *In another opinion yesterday, Bruce Howard v. State of Indiana ,
Allen Superior Court Judge John Surbeck gave Reed a 50-year sentence in the case, which consisted of the presumptive 40-year term for murder at the time plus 10 years for Reed’s lack of remorse and because a lesser sentence would depreciate the seriousness of the crime.
The appellate court [in an opinion by
Chief Judge Bakersorry, a reader has pointed out my error, it was Judge Robb] found Surbeck abused his discretion in using the latter factor to enhance the sentence and ordered him to re-sentence Reed, whose earliest possible release date now is 2016. The court also urged Surbeck to reconsider its finding on lack of remorse and consider whether Reed’s relative lack of criminal history should have been a mitigating factor. alsowritten by Chief Judge Baker, appealing a ruling by Judge Jerome Frese of St. Joseph Circuit Court, the COA wrote: "the trial court erroneously believed it could not suspend any portion of [defendant's] sentence because he was a habitual offender."
Thursday, September 20, 2007
Ind. Gov't. - More on: "Recording ban to end in City-County Building"
Updating this entry from earlier today titled "Recording ban to end in City-County Building", the ILB has been able to locate two past Indiana Public Access counselor Advisory Opinions on videotaping or photographing public meetings of county councils or planning commissions.
Advisory Opinion 01-FC-48; Alleged Violation of the Indiana Open Door Law by the Hendricks County Council. This is a Sept. 6, 2001 opinion by PAC Anne Mullin O’Connor. The opinion cites Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231, 234 (1989).
Formal Complaint 06-FC-176; Alleged Violation of the Open Door Law by the Michiana Shores Planning Commission. This is a Nov. 13, 2006 opinion by PAC Karen Davis. This opinion also cites Berry.
Here is a quote from the Supreme Court's opinion in Berry v. Peoples Broadcasting Corp:IV. Use of Cameras and Recorders
The trial court and the Court of Appeals both held that Rule 505(B)(3) banning cameras and tape recorders must fall before the Open Door Law's directive that the public may "observe and record" public meetings. Ind.Code § 5--14--1.5--3(a). While the Open Door Law does not define "record," the trial court interpreted it to mean "the reasonable use of recorders, cameras and any other recognized means of recording." The trial court found that one stationary camera and a splitter box were a standard method of pooling video and audio equipment.
When a local board regulation is in conflict with a state statute, the local regulation is subordinated. [cites omitted] Those portions of Rule 505(B)(3) that prohibit use of recorders are in contravention of the Open Door Law and are void. We conclude that the trial court's definition of the word "record" is a sound one, and that its finding concerning the reasonableness of requiring pooling of equipment properly balances the public's statutory right to record with the deputies' right to due process and the public interest in the effective performance by the board of its duties.
Ind. Decisions - "Ruling against cell tower upheld"
Bryan Corbin writes today in the Evansville Courier & Press about the Supreme Court's decision Tuesday in St. Charles Tower, Inc. v. Board of Zoning Appeals of Evansville-Vanderburgh County (see ILB summary here):The Indiana Supreme Court has upheld the ruling of the Board of Zoning Appeals of Evansville-Vanderburgh County, which blocked St. Charles Tower Inc. from building a 185-foot cell phone tower at 5909 Felstead Road.
The company's application to build the cell tower was denied by the zoning board in May 2005. The company appealed the ruling to Vanderburgh Circuit Court Judge Carl Heldt and lost, then it appealed again up to the Indiana Court of Appeals and won. The zoning board in turn appealed that ruling to the Indiana Supreme Court.
On Tuesday, the state's highest court sided with the zoning board and with Heldt in saying that Missouri-based St. Charles Tower Inc. did not qualify for a special permit to build its cell tower at the Felstead Road location. In a nine-page decision overturning the appeals court, the supreme court unanimously affirmed the zoning board's interpretation of a county zoning ordinance.
That ordinance requires that cell phone towers be located a distance of two feet for each foot of the tower's height, or 300 feet, whichever is greater, from any residence. Since St. Charles Tower planned to construct a 185-foot tower within 370 feet of three residences, one of which was within 168 feet of the tower site, then the zoning board properly rejected the company's application, the supreme court decision said.
No building permit ever was issued and the tower never was constructed, said Brad Mills, executive director of the Evansville Metropolitan Planning Organization. "Neighbors in the area were opposed to it and fearful that it might fall on their property," Mills said, recalling the testimony of remonstrators from the May 2005 zoning board hearing.
Ind. Decisions - Court of Appeals issues 6 today (and 12 NFP)
For publication opinions today (6):
In Mike Perry, City of Charleston Sewer Dept. v. Jesse Ballew, a 10-page opinion, Judge Barnes concludes:Because there is no authority clearly requiring the Sewer Department to issue a tap-in permit to Ballew, the trial court’s conclusion is clearly erroneous. A petition for mandate is not the proper avenue for relief. Although the Sewer Department may be in breach of its contract with K.B.J. or Ballew may eventually be able to establish that the permit was wrongfully denied through judicial review proceedings, the trial court improperly granted Ballew’s petition for mandate.4 Conclusion In the absence of a clear legal duty to issue a tap-in permit to Ballew, the trial court improperly granted Ballew’s petition for mandate. We reverse.In Kevin Hampton v. State of Indiana , a 15-page opinion, Chief Judge Baker writes:Appellant-defendant Kevin L. Hampton appeals his convictions for Murder, a felony, Rape, a class B felony, and Criminal Deviate Conduct, a class B felony. Specifically, Hampton claims that the trial court erred in denying his motion for a mistrial, that the evidence was insufficient to support his convictions for rape and criminal deviate conduct, and that the trial court erred in imposing the maximum sentence on all counts and ordering his sentence for murder to run consecutively to the sentences imposed for rape and criminal deviate conduct, which were ordered to run concurrently with each other. Hampton further claims that the trial court erred in ordering those sentences to run consecutively to one that he was already serving in an unrelated cause. Concluding that the evidence was sufficient to support the convictions and finding no other error, we affirm the judgment of the trial court.In David M. Peters v. Julie Perry, Elzie D. Hale and Theresa A. Hale, a 5-page opinion, Judges Barnes writes:We address one dispositive issue, which is whether Peters’s notice of appeal was timely filed. * * *In Lisa K. Hastetter v. Fetter Properties, LLC, a 10-page opinion, Chief Judge Baker writes:
Initially, we note that Peters proceeds pro se. Peters, however, cannot take refuge in the sanctuary of his amateur status. * * *
Peters’s November 22, 2006, notice of appeal would be a timely notice of appeal from the trial court’s October 23, 2006 denial of his motion to correct error. This is not a basis for denying appellate jurisdiction.
Our analysis does not end there, however. Peters filed two motions to correct error. The first was filed on June 19, 2006, and was denied on July 5, 2006. We conclude that Peters had thirty days from the July 5, 2006 denial to file his notice of appeal. In reaching this conclusion, we rely on Indiana Trial Rule 53.4, which applies to repetitive motions and motions to reconsider a ruling on a motion. * * *
Although Indiana Trial Rule 53.4(A) does not specifically mention the Indiana Appellate Rules, we do not believe that Peters’s filing of a second motion to correct error extended the time in which he could file a notice of appeal. Indiana Appellate Rule 9(A)(1) provides, “if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion, or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first.” There is no suggestion that filing a second motion to correct error extends the time for filing a notice of appeal.
In Indiana, timeliness of filing a notice of appeal is of the utmost importance. This is evidenced in part by Indiana Appellate Rule 9(A)(5), which states, “Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited . . . .” * * *
We conclude that Peters had thirty days from the date of the denial of his first motion to correct error, July 5, 2006, to file his notice of appeal. Thus, Peters’s November 22, 2006, notice of appeal was not timely filed.
Even if we were to consider Peters’s second motion to correct error in determining whether his notice of appeal was timely, Indiana Trial Rule 53.4(B) provides that a repetitive motion shall be ruled upon within five days or it shall be deemed denied. Thus, when Peters filed his second motion to correct error on July 17, 2006, it was deemed denied on July 24, 2006, and Peters had thirty days from that date to file his notice of appeal. He did not do so. Because Peters did not file a timely notice of appeal, he forfeited his right to appeal.Appellant-defendant Lisa K. Hastetter appeals from the trial court’s judgment in favor of appellee-plaintiff Fetter Properties, LLC, (Fetter Properties), awarding Fetter Properties damages and attorneys’ fees for Hastetter’s breach of an agreement to reimburse Fetter Properties for storm damage to an awning on property that Fetter Properties had contracted to purchase. Specifically, Hastetter argues that the judgment must be reversed because the alleged agreement requiring her to reimburse Fetter Properties for the damage was not merged into the deed and Fetter Properties waived any right that it may have had to recover damages. Hastetter also claims that the award of attorneys’ fees to Fetter Properties was erroneous because the claim against her was frivolous, without “good faith,” and there was no “legal justification for bringing this action.” Additionally, Hastetter argues that the trial court should have awarded her attorneys’ fees in light of Fetter Properties’ frivolous claim. Finding no error, we affirm the judgment of the trial court and remand this cause for the calculation of reasonable appellate attorneys’ fees to which Fetter Properties may be entitled.In Bruce Howard v. State of Indiana , a 12-page opinion, Chief Judge Baker writes:Appellant-defendant Bruce Howard appeals his conviction for Burglary, a class B felony. Specifically, Howard argues that (1) the evidence presented at trial was insufficient to sustain his conviction, (2) the trial court erroneously believed it could not suspend any portion of his sentence because he was a habitual offender, and (3) his sentence is inappropriate in light of the nature of the offense and his character. Although we find that the evidence presented at trial was sufficient and that Howard’s sentence is not inappropriate, the trial court incorrectly described the applicable law during the sentencing hearing; therefore, we remand this cause to the trial court for an opportunity, if it so desires, to suspend up to nine years of Howard’s sentence. Additionally, we instruct the trial court to amend the sentencing order to reflect that Howard’s habitual offender enhancement is not a separate conviction.Lumbermens Mutual Casualty Co. v. Donna Combs is a complex, 50-page opinion relating to "various rulings and the award of damages, attorney’s fees, and prejudgment interest in favor of Donna Combs on her claims for breach of contract and bad faith termination of her long-term disability benefits." Judge Crone concludes:In summary, we hold that the trial court correctly concluded that Combs’s claims are not preempted by ERISA; that the trial court properly denied Lumbermens’ motions for judgment on the evidence; that Lumbermens waived any claim of error regarding the admission of Fuller’s testimony and the exclusion of Dr. Warfel’s testimony; that Lumbermens has not shown that it was prejudiced by the admission of Dr. Johnston’s and Dr. Ehlich’s testimony; that the bad faith damages award is supported by the record; that the trial court’s failure to enter detailed findings regarding the propriety and amount of attorney’s fees requires a new evidentiary hearing; and that the trial court abused its discretion in awarding prejudgment interest to Combs. We therefore vacate the award of attorney’s fees and remand for a new evidentiary hearing and the entry of detailed findings, vacate the award of prejudgment interest, and affirm in all other respects.NFP civil opinions today (6):
Cardiac Pacemakers, Inc. v. Ryan Terry and Linda Mason (NFP) - "Cardiac Pacemakers, Inc., (“CPI”) appeals the trial court’s denial of its motion to intervene in a product liability suit. CPI raises the sole issue of whether the trial court abused its discretion in denying the motion. Concluding that the trial court acted within its discretion, we affirm."
Janetta McClellan v. 4 Rent Inc. d/b/a Thrifty Car Rental (NFP) - "Janetta McClellan (“McClellan”) appeals the trial court’s denial of her Motion to Set Aside Default Judgment. We affirm."
Termination of the Parent-Child Relationship of S.A.; Valerie Averyheart v. Marion County Department of Child Services (NFP) - "Appellant-respondent Valerie Averyheart appeals the trial court’s order terminating her parental relationship with her minor daughter, S.A. Averyheart contends that the alleged policy of appellee-petitioner Marion County Department of Child Services (DCS) of removing a child from a parent’s home based on the fact that the parent has other children who have been removed from her care is unconstitutional. She also argues that there is insufficient evidence supporting the termination of her parental rights. Finding that Averyheart has waived the argument regarding DCS’s policy, that, in any event, there is no evidence in the record establishing that DCS follows such a policy, and that there is sufficient evidence supporting the termination, we affirm the judgment of the trial court."
Andres Vega v. Galfab, Inc. (NFP) - "Vega’s attempt to direct our attention to evidence supporting his claim is merely a request that we reweigh the evidence and judge witness credibility—a practice in which we do not engage when reviewing a decision of the Board. Essentially, the Board concluded that Vega failed to present any credible evidence in support of his claim, as it was entitled to do given the evidence establishing his changing version of events and attempts to hide his medical history. We find that the record supports the Board’s denial of Vega’s claim."
Romilda Smith v. Denise Stadelmaier, D.O. and St. Vincent Hospitals and Health Services (NFP) - "Smith has not demonstrated good cause for failing to timely submit her evidence to the Panel. Therefore, the trial court did not abuse its discretion in dismissing the proposed medical malpractice complaint."
Termination of the Parent-Child Relationship of W.K. and R.K.; William Knapp and Meredith Knapp v. Bartholomew County of Department of Child Services (NFP) - "Appellants-respondents William and Meredith Knapp (collectively, the Knapps) appeal from the involuntary termination of their parental rights with respect to their minor children, W.K. and R.K. Specifically, Meredith claims that her due process rights were violated because the trial court waited approximately nine months after the fact-finding hearing to enter the termination order. The Knapps further maintain that the evidence was insufficient to support the termination of their parental rights because appellee-petitioner Bartholomew County Department of Child Services (DCS) failed to show that the conditions resulting in the children’s removal would not be remedied or that the continuation of the parent-child relationship posed a threat to the well-being of the children. Finding no error, we affirm the judgment of the trial court."
NFP criminal opinions today (6):
Ind. Courts - More on: COA is hearing oral arguments at Allen County Courthouse; discussion of cameras in the courtroom followsThe Indiana Court of Appeals made a stop in Fort Wayne Wednesday night when it heard a case from Allen County. * * *Rebecca S. Green of the Fort Wayne Journal Gazette also reports on the arguments today, in a story that begins:
Wednesday, the court heard a case in Superior Court II about whether the trial court properly suppressed evidence of a handgun found in a vehicle during a traffic stop for speeding and drunk driving. The trial court judge ruled the handgun evidence inadmissible, but the state is appealing that ruling. [ILB - the case is State of Indiana v. Charles Parham]
The Appeals Court will decide if the search of the car was legal, and therefore, if the handgun can be used as evidence in the trial. After hearing oral arguments from both sides for an hour, the three judges will discuss the case and issue a decision in the next 30-60 days. * * *
After the case was over, the judges answered questions from the audience about how the appellate system works. The Appeals Court will rule on around 3,000 cases a year, but will hear oral arguments on around 150 of them.
Because it was an Appeals Court case, NewsChannel 15 could take a camera inside the courtroom to record video. Right now, Indiana law allows cameras inside the Supreme Court and Appeals Court, but not any courtrooms on the trial level.
"With certain restrictions and guidelines from the trial court, I think it's a good idea," Allen County Superior Court Judge Fran Gull said. "We have here in Allen County beautiful courtrooms, wonderful attorneys and I get a front seat to see some of the most fascinating things that go on in the community. I think it's good to let the public see what it is the judiciary does in their community."
Indiana is in the middle of a pilot program for cameras in the trial court level. It started July 1, 2006 and ends in December. During the 18-month program, eight courts would allow cameras to come in if the judge, defense and prosecution all agreed to it. So far, only six cases actually let cameras in.
Even when the cameras do get in, the jury is not allowed to be taped.
"Jurors are not brought in voluntarily, so it's important to maintain their privacy," Gull said.
In most cases when cameras weren't allowed in, it was because the defense denied the request.
"I think there's a fear that the attorneys will grandstand and the courts will grandstand, or the judge will play to an audience and people won't get a fair trial, but when you look at other states that have cameras in the courtroom ... they are unobtrusive," Gull said.
Gull thinks the decision to let cameras in should lie with the judges, not lawyers.
"Judges can institute and adopt rules that will require decorum in the courtroom and maintain the privacy of things that need to be private," Gull said. "We have the ability to monitor our courtroom."
At the end of the trial period, the Indiana Supreme Court will decide on a permanent law.
"I hope they open Indiana courtrooms," Gull said. "I'll respect whatever decision they make, obviously, but I do hope they open the courtrooms."n a sort of traveling legal road show, the Indiana Court of Appeals heard arguments Wednesday evening concerning a 2005 Allen County case, in the Allen County Courthouse.
A three-judge panel – Paul D. Mathias, Michael P. Barnes and Terry A. Crone – heard 30-minute presentations from both the state of Indiana, represented by Gary Secrest, chief counsel of the Appeals Division of the Indiana Attorney General’s Office, and P. Stephen Miller, a Fort Wayne attorney representing Charles Parham.
Ind. Decisions - 7th Circuit opinion today orders plaintiff-appellant's attorney to show cause why he should not be sanctioned
In Charles Price v. Wyeth Holdings (ND Ind., Judge Simon), a 15-page opinion, Judge Sykes writes:Charles Price voluntarily dismissed his Indiana state-court lawsuit against American Cyanamid Company and Lederle Laboratories in 1993. Unbeknownst to the defendants, Price then reinstated the suit five years later and obtained a $5 million default judgment from the state court. Price’s attorney gave the defendants no notice of these proceedings until he soughtt o collect on the judgment in 2004, at which point the defendants quickly removed the case to federal court and had the default judgment vacated based on the lack of notice. The district court ultimately granted summary judgment for the defendants dismissing Price’s claim on statute of limitations grounds.Robert Loblaw of the blog Decision of the Day writes about this ruling today, under the heading "Another Seventh Circuit Lawyer Gets Reamed for Frivolous Appeal."
Price has appealed, challenging the removal of the action and the district court’s orders granting relief from the default judgment and summary judgment for the defendants. Price’s attorney takes the extraordinary position that his ex parte reinstatement of the lawsuit was perfectly appropriate under Indiana law. It certainly was not. The defendants were entitled to notice of the motion to reinstate and all subsequent proceedings under Indiana’s trial procedure rules; ex parte conduct of this sort also violates Indiana’s Rules of Professional Conduct for attorneys. We affirm the orders of the district court and order Price’s attorney to show cause why he should not be sanctioned for filing this frivolous appeal. We also direct the clerk of this court to transmit a copy of this opinion to the Indiana Supreme Court Disciplinary Commission for any action it deems appropriate. * * *
Price maintains that he voluntarily dismissed only his “cause of action” in 1993; he insists that his “cause” remained pending (emptied, as it were, of its “cause of action”), and the 30-day removal clock kept on ticking and expired.
What utter nonsense. To the extent there is a difference between a “cause” and a “cause of action” under Indiana law, that difference is completely irrelevant here. * * * Price cannot identify a single case supporting the notion that a voluntary dismissal terminates the “cause of action” but not the “cause.” This is undoubtedly because the idea is so ridiculous; a “cause” (that is, lawsuit) cannot continue to exist once every “cause of action” within it has been dismissed. The Prices’ voluntary dismissal terminated the entire case against the defendants. The “cause” did not remain pending, nor did the removal clock continue to run after the voluntarily dismissal.
Based on this same theory of a continuously pending lawsuit, Price also maintains that the defendants had a duty to continuously check the docket and therefore should be charged with constructive notice of the reinstated proceedings. This argument badly misconstrues basic principles of voluntary dismissal under Indiana law. * * *
Before moving on, we pause to emphasize the absurdity of Price’s arguments about the timeliness of the removal. Neither the language of nor the purposes behind the time limits contained in § 1446(b) could possibly support a reading that the limits run against defendants who are unaware of the pending claim. * * * That an attorney could in good faith expect to prevail on such baseless arguments is difficult to fathom. * * *
As is clear from the 1993 correspondence in the record, Price’s attorney knew the defendants had legal representation, yet he made no effort to inform either the defendants or known counsel that the default proceedings were occurring. Because the default judgments failed to comply with these requirements of Indiana law, they were void; the district court was therefore required to vacate the judgments, making this appeal of its order doing so frivolous. * * *
Conclusion. For the foregoing reasons, we affirm the district court’s orders denying remand, vacating the default judgments, and dismissing Price’s claim on statute of limitations grounds. Price’s attorney, Delmar Kuchaes, is ordered to show cause why he should not be sanctioned for filing a frivolous appeal. See FED. R. APP. P. 38. He has 21 days to file a response. We also direct the clerk of this court to transmit a copy of this opinion to the Indiana Supreme Court Disciplinary Commission for any action it deems appropriate.
Ind. Gov't. - "Recording ban to end in City-County Building"
Yesterday the ILB posted an entry headed "Lake Station City Council wants to ban public vidoetaping of meetings." Today the Indianapolis Star reports, in a story by Brendan O'Shaughnessy, that Indianapolis has had such a ban all along, but now may be changing it. Some quotes:Residents who want to record sound or shoot pictures of the City-County Council will soon get their chance when county officials relax their prohibition on recorders and cameras inside the City-County Building.This story also raises questions about the numerous counties, including most notably Allen County, which have in recent months totally banned cell phones throughout their county's courthouses, partially on the basis that the phones may be used to snap photos. Here is a long list of earlier ILB entries on cell phone bans.
Implementation is expected as soon as Circuit Judge Theodore Sosin approves the plan. The change will bring hundreds of government meetings each year into compliance with Indiana's Open Door Law on public access for the first time since 1999. * * *
"We were updating the policy," Chief Deputy Kerry Forestal said. "We just took a more realistic look at what was allowed, but still conscious of post-9/11 security."
Forestal said the 1999 policy barred things such as boomboxes, which are no longer a common problem. Also, almost all cell phones have cameras now. He said the department's leadership looked at restrictions in federal buildings and the airport and decided to mirror those less-restrictive regulations.
Civil deputies in the Sheriff's Department provide security in the City-County Building, which houses courtrooms where cameras and recorders are barred.
But the building also hosts meetings of government entities -- including the City-County Council and dozens of other city and county boards and agencies -- that must follow open-meetings laws. Media members are generally allowed to bring their equipment past security.
The problem, according to Forestal and courts administrator Glen Lawrence, is that the only security checkpoint is at the outside doors. There is no distinction inside the building between the areas for courts and the rooms where public government meetings are held.
The state law says "all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them."
Stephen Key, counsel for the Hoosier State Press Association, said government bodies can't use the presence of the courts as a reason to impose a ban on the rest of the building.
"You can't just blanket ban recorders or cameras," Key said. "Those would all be violations of the Open Door Law."
The issue reached a head this week when some critics of Mayor Bart Peterson noted that a known Democratic Party supporter, Wilson Allen, was taking pictures at the council meeting Monday. Ernie Shearer, wearing a "Bart Lies" T-shirt, said it's not fair that Democrats can bring cameras past security while his camera has been barred repeatedly.
[More] This story today in the NWI Times by Deborah Laverty reports:LAKE STATION | Randall Alexander said Wednesday he doesn't plan to stop videotaping City Council meetings, a practice he started two years ago.The ILB plans to post a copy of this decision later.
He said he and his wife, Pat, who also videotapes some of the meetings, are the object of the council's recent discussion about a proposed ban. Alexander said he knows his rights and will mount a legal challenge if the council attempts to ban either his or his wife's videotaping of public meetings. * * *
Public Access Counselor Heather Willis Neal said if Alexander filed suit, he would likely win in any challenge.
She said the right to videotape public meetings is one that is backed by both the Open Door Law as well the Indiana Supreme Court.
Neal said the Indiana Supreme Court ruled in the 1989 case Berry vs. People's Broadcasting Corp. that videotaping is allowed at public meetings.
Wednesday, September 19, 2007
Not law - NY Times online abandons pay-for-view requirements
From NPR's All Things Considered this evening, a story by Laura Sydell headed "Firms Abandon Online Subscription Plans." The blurb:The New York Times has cancelled its online subscription service "Times Select." Rupert Murdoch says The Wall Street Journal may follow suit. And a music download service now allows users to get music for free after they watch an ad. The message many companies are learning? People expect the Web to be free.Here is the story from the NY Times itself. Some quotes:What changed, The Times said, was that many more readers started coming to the site from search engines and links on other sites instead of coming directly to NYTimes.com. These indirect readers, unable to get access to articles behind the pay wall and less likely to pay subscription fees than the more loyal direct users, were seen as opportunities for more page views and increased advertising revenue.
“What wasn’t anticipated was the explosion in how much of our traffic would be generated by Google, by Yahoo and some others,” Ms. Schiller said. * * *
“The business model for advertising revenue, versus subscriber revenue, is so much more attractive,” he said. “The hybrid model has some potential, but in the long run, the advertising side will dominate.”
In addition, he said, The Times has been especially effective at using information it collects about its online readers to aim ads specifically to them, increasing their value to advertisers.
Many readers lamented their loss of access to the work of the 23 news and opinion columnists of The Times — as did some of the columnists themselves. Some of those writers have such ardent followings that even with access restricted, their work often appeared on the lists of the most e-mailed articles.
Experts say that opinion columns are unlikely to generate much ad revenue, but that they can drive a lot of reader traffic to other, more lucrative parts of The Times site, like topic pages devoted to health and technology.
The Wall Street Journal, published by Dow Jones & Company, is the only major newspaper in the country to charge for access to most of its Web site, which it began doing in 1996. The Journal has nearly one million paying online readers, generating about $65 million in revenue.
Dow Jones and the company that is about to take it over, the News Corporation, are discussing whether to continue that practice, according to people briefed on those talks. Rupert Murdoch, the News Corporation chairman, has talked of the possibility of making access to The Journal free online.
The Financial Times charges for access to selected material online, much as The New York Times has.
The Los Angeles Times tried that model in 2005, charging for access to its arts section, but quickly dropped it after experiencing a sharp decline in Web traffic.
Ind. Decisions - Supreme Court decides one today
In Eusebio Kho, M.D. v. Deborah Pennington, et al., a 14-page opinion in which Boehm, J., concurs, Shepard, C.J., concurs in result with separate opinion, Sullivan, J., concurs in part and dissents in part with separate opinion in which Rucker, J., concurs, Justice Dickson writes for the majority:The Indiana Medical Malpractice Act generally requires that actions for medical negligence against health care providers must first be submitted to and considered by a medical re-view panel. For limited purposes, the Act permits such actions to be contemporaneously filed in court, provided that the complaint contains no information that would allow the defendant provider(s) to be identified. We hold that the violation of this defendant identity confidentiality provision may be actionable. * * *
The Court of Appeals affirmed the trial court's grant of summary judgment against the doctor. Kho v. Pennington, 846 N.E.2d 1036, 1048 (Ind. Ct. App. 2006). We granted transfer to address one issue: whether violation of the defendant identity confidentiality provision of Indiana Code § 34-18-8-7 in the Indiana Medical Malpractice Act may give rise to an action for damages. As to all other issues, we decline review of the opinion of the Court of Appeals and summarily affirm. Ind. Appellate Rule 58(A)(2). * * *
Although the statutory requirement that the complaint not disclose the defendant's identity during the preliminary period of consideration by the medical review panel may be less than foolproof protection for the health care provider's good name and reputation, it serves a significant ameliorative function clearly intended by the legislature. We decline to countenance disregard of the provision.
We hold that the doctor's claim against the malpractice claimant and her attorneys for violation of the statutory defendant identity confidentiality provision presents a cognizable negligence action for violation of an express statutory duty. The importance of the right to seek a remedy for harm to one's reputation has been safeguarded in Indiana since 1851 by Article 1, section 12, of the Indiana Constitution. Our decision today is consistent with the values thereby protected.
Separate from his statutory negligence claim, the doctor also contends that he is entitled to bring a private right of action for damages based on the same statutory violation. A violation of an obligation imposed by statute may give rise to a civil damage claim under traditional tort doctrine. * * * Because of the availability of a remedy for statutory negligence, however, we need not determine whether the statute creates a private cause of action.
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Rick Tucker v. Deborah Duke, a 15-page, 2-1 opinion, Judge Vaidik writes:Rick Tucker (“Tucker”) appeals from the small claims court’s judgment in favor of Deborah Duke (“Duke”) on her claim for medical expenses stemming from a dog biting incident. Because the evidence shows that Tucker kept the dog—a pit bull—on his property staked to a chain for four months and that the pit bull became loose on the day in question and attacked Duke on her own property, the small claims court’s judgment that Tucker is liable on grounds of negligence is not clearly erroneous. We therefore affirm the small claims court. * * *Mildred Whiteside v. Indiana Department of Workforce Development, Unemployment Insurance Review Board and Division of Family & Children - "There is no question that Whiteside voluntary left her employment for a cause unrelated to her work and personal to her. She left on her own accord to take care of her son, an admirable decision, yet we conclude the ALJ and the Review Board were correct in their findings of fact and application of the law to deny unemployment benefits to Whiteside pursuant to Indiana Code Section 22-4-15-1(a).
BRADFORD, J., concurs.
ROBB, J., dissents with separate opinion: I respectfully dissent. The majority acknowledges that “there was no evidence presented at the small claims trial that Tucker possessed actual knowledge that the pit bull had dangerous propensities.” The majority nonetheless concludes, based on evidence that Hall previously had two pit bull-sharpei mixes put to sleep for exhibiting possible signs of viciousness and evidence that the pit bull was chained to a stake in Tucker’s backyard for four months, that Tucker “knew or should have known that the pit bull was dangerous or vicious.” I disagree. * * *
I agree with the majority that there is no evidence that Tucker had actual knowledge that the dog was dangerous. I also agree with the majority that the law in Indiana is that even where there is no evidence of actual knowledge, there can still be liability if there is evidence that the particular breed to which the dog belongs has dangerous propensities. See Poznanski, 788 N.E.2d at 1259. I part ways with the majority, however, with respect to its conclusion that there was such evidence in this case. * * *
Although I agree it is unfortunate that Duke incurred medical expenses as a result of an injury that was not her fault, and I acknowledge that Duke was representing herself in the small claims trial and was probably unaware of the proof she needed to present to succeed on her claim, we are a court of law and must find as a matter of law that there is evidence to support holding someone else responsible. I do not believe we can do so in this case. I would reverse the judgment of the trial court against Tucker.
"Whiteside contends that one of the exclusions for physical disability in the statute should have been applied to her to allow receipt of benefits. That section provides: “An individual whose unemployment is the result of medically substantiated physical disability and who is involuntary unemployed after having made reasonable efforts to maintain the employment relationship shall not be subject to disqualification under this section for such separation.” I.C. § 22-4-15-1(c)(2). Whiteside argues that this subsection should be interpreted to excuse employees not only for their own disability, but also for the disability of a family member. We disagree. This subsection does not expressly include any language to indicate disability of anyone other than the claimant should be considered. This subsection is not ambiguous and giving the words their plain and ordinary meaning, it does not include disability of relatives of the claimant. * * *
"Indiana Code Section 22-4-15-1(c)(2) does not include exclusions for disability of a claimant’s relative and therefore does apply to make Whiteside eligible for benefits due to her son’s disability. The Review Board had no reason to apply this statute and its conclusions of law were correct. We affirm."
NFP civil opinions today (0):
NFP criminal opinions today (5):
Ind. Law - More on: Not golfcarts, but ATVs
Remember this ILB entry from Sept. 7th that began:"It's official: ATV's allowed on county roads" is the heading to this story by Lisa Meyer Trigg in the Greencastle Banner Graphic. * * * Starting Oct. 1, individuals can ride all-terrain vehicles legally on Putnam County roads.Another day, another county, another story -- today Dick Kaukas reports in the Louisville Courier Journal, in a story headed "Plan to let ATVs use roads dies before Floyd commission." Some quotes:An ordinance that would have allowed farmers to use all-terrain vehicles on roads in Floyd County died last night after the Floyd County Sheriff's Department and police chief opposed it. * * *
Floyd County Sheriff Darrell Mills and police Chief Ted Heavrin opposed the plan.
In a letter dated Sept. 5 to Steve Bush, the council president and a New Albany police detective, Mills and Heavrin said that "we both feel that this ordinance would not benefit the county" and that some residents would complain that officers and the commissioners were "helping the farmer or benefiting some agricultural activity."
Because county police already get complaints about people riding ATVs on roads, the letter continued, "it would be to our benefit" if the ordinance was not approved.
During last night's meeting, Heavrin repeated another point in the letter, saying that officers may decide "at their discretion" to allow farmers to proceed along a road if they are moving from field to field.
Most of the time, Heavrin told the commissioners, farmers ride on grassy areas on the side of the road.
Mann argued that the ordinance would protect farmers from liability if they were involved in an accident that they did not cause because the party at fault could argue that the farmer should not have been on the road in the first place.
Bush said state law forbids ATVs on roads.
Courts - More on "Transcripts of Federal Court Proceedings Nationwide To Be Available Online"
This ILB entry yesterday ended with "The release contains a number of other interesting items."
Here is one of this, as reported in this Legal Times story by Joe Palazzolo headed "Judicial Conference Votes to Curb Career Clerks":As expected, the Judicial Conference voted Tuesday to head off the pricey trend of federal judges stacking their chambers with multiple long-haul clerks. One judge, one career law clerk. That's the new rule.
Chief Judge Thomas Hogan, chairman of the conference's executive committee, told reporters that tens of millions of dollars would be saved over the next decade by managing the career clerk population. Currently, there are 291 career clerks, each with an annual salary of around $100,000, in chambers where another career clerk is employed. They'll be grandfathered into the new system, of course.
The temporary -- or "term" -- clerks make anywhere from $50,000 to $80,000 a year, depending on their level of experience. Speaking of which, Hogan also touched on another trend: Anecdotally, he said, fewer law school grads are jumping right into clerkships. Instead, they're working for a year or two at private firms, and then applying to the courts once they've paid off a good hunk, if not all, of their law school loans. It's a win-win, he said. The judges get better help, and the help gets better pay.
The judges also voted to make transcripts of federal district and bankruptcy court proceedings available on the judiciary's online database, Public Access to Court Electronic Records. The transcripts will cost 8 cents a page, but they won't be available online until 90 days after they've been filed with the clerk. The idea is to protect the court reporters, whose income depends on transcript proceeds, Hogan said.
Fortunately, the conference also made it easier to circumvent the fees by agreeing to a joint pilot project with the Government Printing Office and the Administrative Office of the U.S. Courts to provide free PACER access at 15 federal depository libraries. The participating libraries have yet to be named, Hogan said.
Ind. Gov't. - Lake Station City Council wants to ban public vidoetaping of meetings
"I've heard the talk. They go to a bar and play back certain parts and make fun of certain councilmen." That is a quote attributed to City Council president Keith Soderquist in this story by Deborah Laverty today in the NWI Times. More from the story:The City Council at its meeting on Thursday will further discuss the issue but on Tuesday removed from the agenda an ordinance prohibiting the use of recording, video and photographic devices at meetings.From a story by Karen Snelling in the Gary Post-Tribune:
"We're sending out a revised agenda because I don't want to do anything reckless," he said.
Soderquist said he is aware of the state's Sunshine Law and it's clear to him that the public does have the right to record meetings.
"I'm a little surprised our attorney didn't look into it a little harder," he said.
Staci Schneider, a spokeswoman for the Indiana Attorney General's office, echoed his comments.
Although she said she couldn't directly comment on the law, Schneider did point out a paragraph in the "Handbook on Indiana's Public Access Laws" which states citizens under the Open Door Law are allowed to record public meetings by videotape, shorthand or any other method of recording. * * *
Lake Station City Attorney Raymond Szarmach said the issue the City Council is proposing is narrow and, if approved by Lake Station, could be the first challenge of its kind to the state's ruling.
"It's a very narrow issue whether or not a municipality can control videotaping by private citizens at a public meeting," he said.
City Council Attorney Michael Deppe, who had been asked by the City Council to draft an ordinance barring private videotaping, couldn't be reached for comment.
Soderquist said it's his understanding that both attorneys had told officials they could place restrictions.
"They used the precedent of the courts where videotapes aren't allowed," he said.
Soderquist said he doesn't have a problem with anyone videotaping meetings if they don't later tamper or edit their results.
"I hope they'd use the best judgement and that nothing is being edited. You can alter the tape and hurt someone bad," he said.The City Council could be inviting a lawsuit if it moves ahead with plans to bar cameras from its meetings.
Heather Neal, Indiana's public access counselor, said the proposed restriction violates the state Open Door Law.
"The public has a right to observe and record public meetings," Neal said. "And public bodies have no authority to impose sanctions or restrictions," she said.
Councilman Todd Rogers called for the ban to stop a Lake Station precinct committeewoman from taping council meetings. Rogers said the woman refused to tell him what she does with the recordings.
That disclosure is not required under state statues.
The Open Door Law was enacted in 1977 to give people easy access to meetings held by governing bodies.
Under the law, anyone can attend and record a public meeting.
"Rules and regulations that prohibit the use of cameras, tape recorders or other recognized means of recording a meeting are void," the state's handbook on public access laws reads.
Environment - "New Indiana regulations aim to protect Ohio River paddlefish"
From the AP:Ohio River paddlefish, whose eggs are sought by poachers as a lucrative source of caviar, are being protected by new regulations from the Indiana Department of Natural Resources.
The agency approved emergency rules that include limits on catching paddlefish from Nov. 15 to April 15 and a minimum size of 34 inches from eye to tail fork.
"Our recent investigation clearly revealed that existing regulations are insufficient to protect this unique resource," agency director Robert Carter Jr. said Monday.
A two-year investigation led to arrests of more than 20 people on charges including illegal taking of paddlefish, money laundering, and racketeering and corrupt business influence, Carter said. * * *
The emergency rules, valid for one year and renewable for another year, also prohibit the snagging of paddlefish by people with sport-fishing licenses. They also prohibit the use of gill nets and trammel nets during the closed paddlefish season, and standardize a method for commercial fishers to check paddlefish for the presence of eggs.
Courts - Continuing with "McDonald's sanctioned in strip-search case"
Today's story is headed "Ex-agent tells how hoax caller wielded power: Jurors also see first part of strip search."
Ind. Decisions - Yet more on: Appeal of Indiana voter ID case to U.S. Supreme Court
Richard L. Hasen, professor at Loyola Law School in Los Angeles, and editor of the Election Law Blog, has an oped today in the Washington Post on the Indiana voter ID case (Crawford v. Marion County Election Board) pending a cert decision before the Supreme Court. It begins:At a private conference next Monday, the Supreme Court will consider whether to hear a challenge to Indiana's new law requiring voters to show photographic identification at the polls. The court should take the case, both to correct a troubling partisan divide among lower-court judges over the constitutionality of such laws and to reject a pernicious opinion by federal Judge Richard A. Posner that belittles the right to vote.For background, start with this June 30, 2007 entry.
It is no secret that a partisan divide over election administration has emerged since the 2000 Florida debacle. Republican state legislators push for laws that they say will prevent voter fraud, and Democratic legislators push for laws they say will prevent voter intimidation and remove barriers to voting. Every state legislature that has passed a voter identification law since 2000 has done so along party lines.
Less well known is that a partisan divide has also emerged in the courts. The Michigan Supreme Court, for example, recently voted 5 to 2 to uphold that state's voter identification law, with all five Republican justices voting to uphold and both Democrats concluding that the law is unconstitutional.
That vote came on the heels of the decision by the U.S. Court of Appeals for the 7th Circuit regarding the Indiana law. Democrats and the American Civil Liberties Union argued that Indiana's law, passed by the state's Republican-controlled legislature, would have a disparate impact on the poor and minorities, who are least likely to have proper voter identification or to be able to afford the documentation (such as a certified copy of a birth certificate) necessary to procure it. Although the law allows someone to file an "indigency affidavit" in lieu of producing ID, the process is burdensome. A poor voter in Gary, for example, would have to cast a provisional ballot at a polling place, then make a 30-minute car trip within 10 days to file an affidavit in the county seat. There's no public transportation or government subsidy available to help the voter get there.
Indiana has conceded that there have been no cases in state history of voter impersonation that an ID law would have prevented. While there is a history of voter fraud through absentee ballots, such ballots -- often favored by Republicans -- were not covered by the new law.
A three-judge panel of the 7th Circuit split: The two Republican-appointed judges voted to uphold the law and the one Democratic appointee dissented. When the entire 7th Circuit considered whether to rehear the case, the court again split, almost perfectly along party lines.
Ind. Courts - Perry County’s new truancy court begins Oct. 2
Kevin Koelling of the Perry County News reports:“The law says if you have 10 unexcused absences, you will be seeing me Tuesdays in truancy court,” Perry Circuit Judge Lucy Goffinet said Thursday about a program set to begin Oct. 2.
“When I first took the bench in January, I was seeing referrals about absences in September,” she said.
A parent will have to accompany each student appearing before the judge, she said, adding that consequences can begin with community service and curfews.
“In worst-case scenarios, the kids can be detained,” Goffinet said. She didn’t know whether a truancy court has been tried here before, but said in the opinion of local school superintendents, it’s needed.
The problem is big enough to have caught her attention, she said. “I don’t think it’s a crazy problem; it won’t overwhelm the court or schools, but it needs to happen.”
“I have lots of problems with students just not coming to school,” County Probation Officer Jamie Lloyd said Thursday. “This court will be held every week as a deterrent.”
She gets five to 10 calls per week, she said, explaining the county’s schools “just don’t have anything with teeth” to combat the problem.
An attendance-review panel that included representatives of different agencies tried to combat the problems at home or school that kept children from going to school, she said. But by the time the issue got to court, a student would have missed so much school it was difficult for him or her to catch up.
Ind. Law - Fort Wayne Observed writes on proliferating law schools [Updated]
Mitch Harper of Fort Wayne Observed has an interesting post this morning titled "Proliferating law schools,", including quotes from the third item in a column today in the Wall Street Journal [may be $$$] titled "Vegas Judge Has to Take Time Out For O.J. Simpson Media Frenzy."
[Updated at 10:00 am] More on this today in the WSJ Law Blog - the entry is headed "Do We Really Need Another Law School?"
Tuesday, September 18, 2007
Ind. Decisions - "Court of Appeals hears Home Place annexation case" [Updated]
Updating yesterday's ILB entry, Bill Ruthhart of the Indianapolis Star reports this afternoon on the oral arguments, beginning at 1:00 pm, in the case of City of Carmel, Indiana vs. Certain Home Place Annexation Territory Landowner.Much of today’s arguments focused on how much consideration the Court of Appeals should give to the southwest Clay decision in its ruling on the Home Place case.[Updated 9/19/07] In the updated story published in today's Star, Ruthhart writes:
Bryan Babb, the attorney representing Carmel, argued the southwest Clay case had set a precedent. It is not a judge’s duty to micromanage a city’s annexation, which he said Hamilton County Superior Court 3 Judge William Hughes did in his Home Place decision.
Home Place attorney Stephen Buschmann told the court the issues involved in the other decision were not the same as the Home Place case, because Hughes did not dispute whether Carmel could afford to annex southwest Clay.Carmel argued Hughes overstepped his judicial authority.
"That fiscal plan met the requirements of the statute, and it doesn't really matter whether Judge Hughes believed Carmel could fund the annexation," Babb said.
"But if you look at how well Carmel has managed itself over the years and the fact the city has one of the lower tax rates in the state . . . to suggest Carmel can't afford to annex Home Place is laughable."
Buschmann, though, said that just because Carmel is an affluent community, that doesn't excuse it from providing the proper evidence in court.
While the court homed in on the annexation's financial issues, justices [sic.] also questioned how much consideration should be given to the Indiana Supreme Court's ruling in June that Carmel could annex southwest Clay Township.
Hughes also had ruled against Carmel in that case, and the city's appeal in the Home Place case was delayed for nearly a year, pending its outcome.
Buschmann argued that the southwest Clay decision should have little impact on the Home Place case because Hughes ruled Carmel could afford that annexation.
Babb argued that since the Supreme Court rejected challenges by southwest Clay to the same fiscal plan prepared by the same Carmel financial analysts, the Court of Appeals should do the same in the Home Place case.
Courts - "Transcripts of Federal Court Proceedings Nationwide To Be Available Online"The Judicial Conference of the United States today voted to make transcripts of federal district and bankruptcy court proceedings available online through the Judiciary's Public Access to Court Electronic Records (PACER) system.The release contains a number of other interesting items.
Under the new policy, transcripts created by court reporters or transcribers will be available for inspection and copying in a clerk of court’s office and for download from PACER 90 days after they are delivered to the clerk. Individuals will be able to view, download, or print a copy of a transcript from PACER for eight cents per page.
During the initial 90-day period, transcripts will be available at the clerk’s office for inspection only, or may be purchased from the court reporter or transcriber.
Implementation of the Case Management/Electronic Case Files (CM/ECF) system over the past decade has allowed remote electronic access to most federal case files. The only type of court document not yet publicly available online nationwide has been the transcript of court proceedings.
Ind. Decisions - Supreme Court decides Vanderburgh County cell tower case
In St. Charles Tower, Inc. v. Board of Zoning Appeals of Evansville-Vanderburgh County, a 9-page, 5-0 opinion, Justice Sullivan writes:The Vanderburgh County Zoning Code requires cellular telephone towers to be located a distance of two feet for each foot of height of the tower or 300 feet, whichever is greater, from any residence. St. Charles Tower, Inc., proposed to erect a 185-foot cell tower within 370 feet of three residences, one of which was within 168 feet of the tower’s proposed location. The Board of Zoning Appeals of Evansville-Vanderburgh County properly rejected an application to erect the cell tower based on these facts. * * *Here is a list of earlier ILB entries on this case.
Although we agree with the Court of Appeals in its analysis of the legal effect of the TCA substantial evidence test on this case, we part company from our colleagues in their conclusion that the test was not met here. We find that there is substantial evidence in the record to support the BZA’s denial of St. Charles’s application for a special use permit to erect the cell tower. * * *
[T]he Court of Appeals was of the view that (1) the question of whether the proposed location of St. Charles’s cell tower complied with the setback requirement was ir-relevant to the determination of its entitlement to a special use permit and (2) because St. Charles’s special use permit should have been approved, it was entitled to a new proceeding as to whether it was entitled to a variance. Judge Bailey dissented from the majority opinion, on these points and we agree with his dissent. * * *
Conclusion The decision of the trial court and that of the BZA is affirmed.
Ind. Courts - COA is hearing oral arguments at Allen County Courthouse Wednesday, as part of the 2007 annual meeting of the Judicial Conference of Indiana
According to the press release:The Indiana Court of Appeals will hear oral argument in State of Indiana v. Charles Parham on Wednesday, September 19th at 7:00 p.m. in the Allen County Courthouse. A panel of Judge Paul D. Mathias, Judge Michael P. Barnes, and Judge Terry A. Crone will hear the case on appeal from Allen Superior Court.
The Court is asked to decide whether the trial court properly suppressed evidence of a handgun found in a vehicle during a traffic stop for speeding and operating while intoxicated. Arguing for the appellant, the State of Indiana, is Gary Secrest, Chief Counsel of the Appeals Division, Indiana Attorney General; P. Stephen Miller of the Miller Law Firm in Fort Wayne will argue for Mr. Parham.
The Court is hearing oral argument in Allen County as part of the 2007 annual meeting of the Judicial Conference of Indiana. The conference is presented by the Indiana Judicial Center, based in Indianapolis.
Courts - Firms to market major civil trials, hearings, and oral arguments
ALM "currently owns and publishes 33 national and regional magazines and newspapers, including The American Lawyer, Corporate Counsel, The National Law Journal and Real Estate Forum." A press release announces:ALM, a leading media company serving legal and business professionals, and Courtroom View Network (CVN), a legal news organization providing video coverage of newsworthy and precedent-setting legal proceedings, today announced a new partnership, designed to bring courtroom proceedings, including live and archived online video of courtroom proceedings, to litigators, law firms, in-house counsel, financial analysts and law schools. Under the agreement, ALM and CVN will identify major civil trials, hearings, and oral arguments for video coverage, and package and market live and archived video for use in trial preparation, expert witness evaluation, and education and training. Video will also be used to enhance news coverage on ALM’s Law.com network.Presumably, Indiana's prohibition against cameras in trial courtrooms, unless changed, will keep Indiana trials out of the package.
Video products and services will [allow] subscribers to view full trials or key elements such as opening and closing arguments and expert witness testimony, along with all exhibits presented to the jury. Attorneys can use video to evaluate opposing counsel, assess witness credibility and effectiveness, and analyze related litigation to assist in trial preparation. Video can also be used by in-house counsel to track trial progress, by law schools for teaching in conjunction with classroom work, and by law firms for in-house training of associates.
“We believe that courtroom video will represent a significant new addition to ALM’s already substantial legal practice offerings for attorneys,” said Jack Berkowitz, senior vice president at ALM. “Courtroom View Network has extensive experience in working with courts across the country to obtain video taping access and in the technical areas of video recording, as well as storage and distribution technologies. Our new partnership will allow us to combine this expertise with ALM’s strong relationships with the legal profession and marketing capabilities.”
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
Johnnie R. Gosha v. State of Indiana - "Here, Gosha admitted to four of the seven alleged probation violations, including failing to obtain a substance abuse evaluation, complying with treatment recommendations, and providing written verification of successful completion of a treatment program. Gosha admitted that he was abusing drugs at the time of the revocation hearing. This evidence was sufficient to support the revocation of Gosha’s probation. See Wilson, 708 N.E.2d at 34. Gosha merely asks us to reweigh the evidence, which is a task not within our prerogative on appeal. Affirmed."
In CSX Transportation, Inc. v. Robert D. Gardner, a 30-page opinion, Judge Robb writes:Following a jury trial, at which the jury found CSX Transportation, Inc., liable for injuries sustained by an employee, Robert Gardner, CSX appeals the trial court’s denial of its post-trial motion to offset the amount awarded to Gardner by the amount CSX had contributed to a fund from which Gardner was receiving a disability annuity pursuant to the Railroad Retirement Act (the “RRA”). CSX raises the sole issue of whether it is entitled to setoff this amount as a matter of law. Concluding that CSX is not entitled to setoff this amount, we affirm. * * *NFP civil opinions today (2):
A strong basis exists for affirming the trial court based merely on federal precedent indicating that Eichel controls the outcome of this case. However, we do not affirm the trial court based solely on Eichel, and instead conclude that the federal common law and our interpretation of FELA and the RRA indicate that the collateral source rule prevents CSX from setting off disability payments made to Gardner under the RRA from the FELA award. We recognize that as a result of the trial court disallowing setoff, Gardner has been made more than whole. This situation is common under the collateral source rule, and CSX’s argument that such overcompensation is unjust is not persuasive. The solution to this overcompensation is not to reduce a negligent employer’s liability. We conclude that the trial court properly denied CSX’s motion for setoff.
In Simon Fire Equipment and Repair v. Town of Cloverdale, Indiana (NFP), a 10-page opinion, Judge Mathias writes:Simon Fire Equipment and Repair, Inc. (“Simon”) appeals the Putnam Circuit Court’s grant of summary judgment in favor of the Town of Cloverdale, Indiana (“the Town”) in Simon’s breach of contract action. Upon appeal, Simon claims: (1) that the trial court erred in failing to consider evidence it designated in its cross-motion for summary judgment, and (2) that the trial court erred in granting the Town’s motion for summary judgment. We reverse and remand for proceedings consistent with this opinion. * * *NFP criminal opinions today (4):
Simon claims that the designated evidence reveals that the conditions precedent of “favorable financing” and the Town being “comfortable” with the financing were met, giving rise to an enforceable contract. However, given the record before us, we cannot say as a matter of law that these conditions precedent were fulfilled. Rather, there appear to be genuine issues of material fact as to whether these conditions were fulfilled or whether the Town made a reasonable and good-faith effort to fulfill them. Because of this, summary judgment in favor of either party was improper; the Town has not designated evidence negating a material element of Simon’s claim of breach of contract. For this reason, the trial court should not have granted summary judgment in favor of the Town. Upon remand, these issues will be among those to be determined by the trier of fact.
Law - Pro-business interest group proposes "transparency code" for state attorneys general
Quotes from a press release issued yesterday by the American Tort Reform Association (ATRA):WASHINGTON, Sept. 17 /PRNewswire-USNewswire/ -- In a commentary published today in the National Law Journal, American Tort Reform Association president Sherman "Tiger" Joyce proposed new voluntary standards designed to improve government transparency and accountability when state attorneys general hire outside counsel to litigate on behalf of state residents.Here are the five principles set out in the Code:
"With increasing regularity, state attorneys general are hiring personal injury lawyers from the private sector to perform legal work for the state, and hundreds of millions of dollars in contingency fees are sometimes at stake," explained Joyce. "Yet some state AGs award such lucrative contracts to their political supporters without competitive bidding and with little or no oversight from the public or state legislatures.
"As ATRA issues its Transparency Code today," Joyce continued, "we urge all attorneys general to adopt it so their respective states' citizens, taxpayers and legislators can more readily understand the value of outsourced legal work."
Joyce said the Transparency Code comprises the good-government principles of public disclosure, competitive bidding, oversight and fiscal accountability.To ensure transparency in these contracting processes and relationships, these five principles should be followed:What about Indiana's Attorney General? A check of Indiana Attorney General Steve Carter's website shows a list of current in-house contracts and contract totals, Links lead to the actual contract documents.
A. DISCLOSURE: All contracts with vendors, including outside counsel, who provide services to the state or perform legal work in the name of the state, should be posted on the Internet for public inspection.
B. VALUE: In every instance, the attorney general should seek to provide the highest quality services at the best value to state citizens when contracting with outside counsel. Unless an extraordinary situation requires assistance from a specific legal expert with technical or scientific experience not generally available, every effort should be made to competitively bid contracts for outside counsel.
C. OVERSIGHT: Given that contingent fee-based contracts are often used when attorneys general are pursuing litigation that potentially has a significant public policy or regulatory impact, such contracts should be subject to review by the Legislature.
D. REPORTING: Outside counsel providing services to the attorney general on behalf of a state's citizens and taxpayers on a contingent fee basis shall be required to disclose detailed information on the hours worked, services performed, and fees received from the state, as long as this reporting does not undermine the attorney-client privilege.
E. ACCOUNTABILITY: All monies recovered by the attorney general in excess of $250,000 as a result of lawsuits won or settled by the state should be deposited in the state treasury for appropriation by the legislature unless a settlement with the attorney general's office stipulates that the funds shall be allocated to a specific entity. At no time, shall an attorney general enter into a settlement that allows the office of the attorney general to disseminate funds at its discretion.
Environment - Status of the BP appeal before the Office of Environmental Adjudication
Gitte Laasby of the Gary Post-Tribune writes today:The Alliance for the Great Lakes filed a petition on Aug. 15 asking for permission to file a belated appeal.For background, see this lengthy August 16th ILB entry.
Briefs in the case were due Monday, but the Alliance, BP and the Indiana Department of Environmental Management asked for more time. Environmental Law Judge Catherine Gibbs of the Office of Environmental Adjudication granted the request.
The new date for oral argument is 11 a.m. Dec. 14 in Indianapolis.
Gibbs has up to 90 days to make a decision unless the parties agree to another date, Chief Environmental Law Judge Mary Davidsen told the Post-Tribune on Monday.
Until the oral argument, the parties will build their cases by exchanging information in writing and at a deposition in Chicago Oct. 10 and 11, she said.
"They can focus on what's disputed and develop their dispute better," Davidsen said. "It pins down what's really at issue, or not, and what each party thinks helps their case."
The Alliance for the Great Lakes argued that IDEM failed to notify people who commented on the permit that the final permit had been issued as state law requires. As a result, opponents did not have a chance to appeal before the 18-day appeal period ended.
IDEM maintains it followed appropriate notification procedures.
Courts - Still more on "McDonald's sanctioned in strip-search case"
The Louisville Courier Journal continues its all-out coverage of the McDonald's strip search trial. From today's lengthy report by Andrew Wolfson:One of McDonald's top lawyers acknowledged yesterday that the voice-mail warning the company sent about strip-search hoaxes to its Mount Washington restaurant was inadequate and "should have contained more information."See also this ILB entry from Sept. 9th.
"Unfortunately, there was a communication break ... and it didn't get to people who answered the phone," company attorney Jill Daugherty testified as the second week of the trial began in Louise Ogborn's lawsuit against McDonald's.
Questioned for more than six hours by Louise Ogborn's lawyer and an attorney for former assistant manager Donna Summers, Daugherty acknowledged that McDonald's knew the details of dozens of incidents in which girls and young women were stripped and degraded by supervisors on orders of a caller impersonating a police officer.
They included incidents in which the victims were digitally penetrated, forced to masturbate and ordered to run naked in place. In one, the caller had a manager go to a parking lot and pick out an old man at random to witness the search.
"Donna didn't know about these incidents, and you did, isn't that true?" Summers lawyer, Glenn Cohen asked Daugherty, McDonald's senior labor-relations counsel.
"Yes sir," Daugherty said.
"And you knew she was facing criminal charges, and you let her twist in the wind?" Cohen asked angrily.
"No," Daugherty said, although she acknowledged that McDonald's offered none of the evidence it collected on prior strip searches at McDonald's when Summers, who led the search of Ogborn, was prosecuted for unlawful imprisonment in Bullitt District Court.
Monday, September 17, 2007
Law - Tax profs say Bill Belichick Can Deduct His $500,000 Fine under IRS Sec. 162 as a “trade or business expenses.”
See this WSJ Blog entry for details.
Courts - South Carolina's judicial selection process
The Charleston, South Carolina Post and Courier reports today on a legislative study underway in the state to perhaps allow public election of judges. Currently, the judges are elected by lawmakers. Yvonne Wenger writes:COLUMBIA — South Carolina is one of two states in which lawmakers elect judges.Accompanying the story is a useful chart that shows the judicial selection process in the various states.
Critics of the system say the practice can lead to political activism on the bench or make it possible for lawmakers to hand out judgeships to friends and supporters.
Proponents say South Carolina and Virginia have it right.
They argue that legislative elections, unlike public ones, don't require costly campaigns and leave little room for special interests or trial lawyers to win favor with judges through cash contributions. What's more, supporters argue, judicial candidates don't run on platforms, rendering public elections essentially meaningless.
Opponents argue that important judgeships in the state are contingent on relationships and behind-the-scenes deals, possibly on future constitutional rulings.
Senate President Pro Tem Glenn McConnell, R-Charleston, called for a Senate study committee to convene today to begin evaluating the process and potential alternatives, including public elections. Set to testify are trial lawyers, members of the defense bar and state Chief Justice Jean Toal.
The last round of judicial elections left many thinking it was time for reform. In May, the Legislature, among other judicial elections, voted to seat a new state Supreme Court justice and sent Circuit Judge Daniel Pieper of Hanahan to the Appeals Court.
Courts - More on: Furor Over Presentence Story About Jurors
Updating this ILB entry from Sunday about a Connecticut paper's disclosure of information, including names, of newly selected jurors in a high-profile case, the NY Times has a brief story today by Desiree J. Hanford, headed "A Newspaper Defends Naming Jurors." The story concludes:Some less partial observers — journalism professors — also said they thought the paper may have shown poor judgment.
Publishing the jurors’ names could expose them to pressure from advocates on both sides of the death penalty, said Christopher Hanson, who teaches journalism ethics at the University of Maryland. Newspapers need to balance the public’s right to know with the potential risk of harm to jurors, he said.
One alternative would have been to have given substantive details about the jurors, but no names, said Robert M. Steele, a faculty member at the Poynter Institute, a journalism school.
The newspaper also could have waited until the proceedings were complete, he said.
As for Mr. Smith, the editor, said if he had it to do over again, he would have skipped the illustration. “I’d let the story speak for itself,” he said.
Ind. Courts - More on the property tax challenge in TaX Court
Updating this ILB entry from Sept. 7th reporting that "Carmel attorney John Price has filed suit in the Indiana Tax Court challenging the property tax," here is a copy of the Order re CMP schedule issued by Judge Fisher on Friday, Sept. 14th.
Ind. Decisions - Upcoming Court of Appeals oral arguments this week and early next
Upcoming oral arguments before the Court of Appeals that will be webcast:
This Tuesday, Sept. 18th:
1:00 PM - City of Carmel, Indiana vs. Certain Home Place Annexation Territory Landowners - Landowners within the proposed Home Place Annexation Territory successfully challenged an annexation attempt by the City of Carmel. Carmel appealed, complaining that the trial court improperly engaged in an audit of its fiscal plan for annexation when it found that Carmel failed to sufficiently and specifically set forth the methods by which it planned to finance the services to be provided to Home Place following annexation. [Here is a long list of ILB entries mentioning the Home Place annexation. Here is a copy of the 10/4/05 trial court opinion.]
Next Monday, Sept. 24th:
2:00 PM - State Farm Mutual Automobile Insurance v Jelana Hobbs D'Angelo - State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the trial court’s entry of summary judgment in favor of Jelana Hobbs D’Angelo and against State Farm, finding that D’Angelo is entitled to underinsured motorist coverage from State Farm for her negligent infliction of emotional distress claims arising out of the death of her son after he was struck by an automobile. State Farm contends that because “bodily injury,” as that term is defined by its automobile-insurance policy, does not include emotional damages, D’Angelo may not recover from State Farm under separate “Each Person” limits. State Farm further contends that its underinsured-motorist policy does not violate Indiana Code section 27-7-5-2.
Webcasts will be available here.
Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)
For publication opinions today (4):
In Estate of Helen Moffitt Mueller v. William Karns , a 13-page opinion, Chief Judge Baker writes:Appellant-respondent Estate of Helen Moffitt Mueller (the Estate) appeals the trial court’s judgment in favor of appellee-claimant William Karns on his claim against the Estate seeking payment for services he provided prior to Mueller’s death. Specifically, the Estate argues that the trial court erroneously found that the parties executed a binding contract regarding Karns’s compensation.In Steve Carter in his role as Attorney General v. Carolina Tobacco Company, a 31-page opinion, Chief Judge Baker writes:
Finding that Karns’s offer was never accepted, that even if there was a contract its enforcement is barred by the Statute of Frauds, and that Karns is entitled to quantum meruit compensation but failed to provide evidence supporting the valuation of his services apart from evidence that he has received between $2500 and $10,000 on past projects, we reverse the judgment of the trial court and remand with instructions to hold a hearing on the amount of compensation to which Karns is entitled, with a minimum of $2500 and a maximum of $25,000.Today we are asked to determine what it means to manufacture cigarettes under Indiana law. The trial court determined that the Indiana Office of Attorney General (OAG), the appellant-defendant in this case, erroneously refused to list the “Roger” brand of cigarettes in its Directory of Cigarettes Approved for Stamping and Sale (the Directory) because appellee-plaintiff Carolina Tobacco Company, Inc. (CTC) allegedly was not a tobacco product manufacturer (TPM). In essence, if CTC is not the manufacturer of “Roger” cigarettes, CTC may not sell that product in Indiana.In Chad McKinney v. State of Indiana , a 25-page opinion, Judge Vaidik writes:
Steve Carter and Adam Warnke in their official capacities as Attorney General and Deputy Attorney General and Section Chief for Tobacco Litigation, respectively, claim that the trial court erred in entering injunctive and declaratory relief against them requiring that CTC and Roger cigarettes be certified and listed as a non-participating TPM in the Directory. Put another way, the OAG asserts that CTC did not manufacture Roger cigarettes and thus is precluded from selling cigarettes in Indiana. Alternatively, the OAG maintains that even if CTC can be deemed the manufacturer of the cigarettes, the trial court’s order granting CTC’s request for injunctive relief was overly broad. Concluding that the trial court properly determined that CTC was the manufacturer of the cigarettes and finding no other error, we affirm.After his first trial for murder resulted in a hung jury, Chad McKinney (“McKinney”) was retried, convicted, and sentenced to fifty-five years in prison. On appeal, he contends that the trial court clearly erred in denying his motion for change of judge, that the trial court abused its discretion in denying his motion for mistrial, that the prosecutor committed misconduct by failing to notify the defense of changes in the testimony of certain witness from the first trial to the second trial, that the evidence is insufficient to support his conviction, that the trial court abused its discretion in refusing to instruct the jury on the lesser included offenses of reckless homicide and criminal recklessness, that the trial court abused its discretion in sentencing him, and that his sentence is inappropriate in light of the nature of the offense and his character. Because McKinney’s motion for change of judge was not filed within ten days of his plea of not guilty in accordance with Indiana Rule of Criminal Procedure 12(D), the trial court did not clearly err in denying it. We affirm the judgment of the trial court in this and all other respects.In Max Stillwell v. Deer Park Management Association, a 9-page opinion, Chief Judge Baker writes:Appellant-defendant Max Stillwell appeals the trial court’s judgment in favor of appellee-plaintiff Deer Park Management (Deer Park). Specifically, Stillwell argues that (1) Deer Park was not represented by counsel in violation of Indiana Small Claims Rule 8, (2) the trial court abused its discretion by granting Deer Park’s requests for continuances, and (3) the trial court improperly engaged in ex parte communication with Deer Park. Additionally, Deer Park requests appellate attorney fees pursuant to Indiana Appellate Rule 66(E). Finding that Deer Park should have been represented by counsel from the initiation of its action but that such error is not reversible because Deer Park was represented at trial, and finding no other error, we affirm the judgment of the trial court and deny Deer Park’s request for appellate attorney fees.NFP civil opinions today (1):
David C. Carrington v. Linda S. Carrington (NFP) - "A finding that property was inherited, without more, is insufficient to justify an unequal division of the marital estate. * * * Here, the reasons stated by the trial court to justify setting off a portion of Wife’s inheritance to her without an equal distribution to Husband are that the asset was inherited solely by wife, was never co-mingled with Husband’s or joint assets, and was never added to or managed by Husband. But we cannot discern from the Decree whether the trial court considered any of the other statutory factors listed in Indiana Code Section 31-15-7-5.
"We remand with instructions for the trial court to issue a revised Decree in accordance with this Opinion. In particular, in its revised Decree, the trial court should make findings showing that the court has taken into account not only Wife’s inheritance but the other statutory factors listed in Indiana Code Section 31-15-7-5 and state the reasons for its disposition of Wife’s inheritance."
NFP criminal opinions today (6):
Ind. Law - "Tragedies, single incidents often lead to laws"
A good column this morning by Mike Smith, AP political writer, about the origins of many Indiana laws. The article begins:When a man was severely injured after being thrown from a mechanical bull at a county fair, state lawmakers responded.
They enacted a law that subjects mechanical bull rides to state regulations and requires their operators to carry liability insurance.
When a tornado wiped out a mobile home park in Evansville and killed 25 people in southwestern Indiana in late 2005, lawmakers responded. Under a new state law, those who install mobile homes must now equip them with special radios that alert people to pending dangerous weather.
And since publicity erupted over the dogfighting case involving NFL quarterback Michael Vick, at least two lawmakers have responded by saying they will back legislation in 2008 that would stiffen penalties for the crime.
If there are tragedies or incidents that makes big news - big, bad news - it's common for legislators to respond by filing bills aimed at addressing them. Whether they're knee-jerk reactions or rational responses depends on who you talk to, but they've resulted in a lot of Indiana laws.
Ind. Courts - Lake County judges reject plan to convert East Chicago civil court to full-time probate court
From a story today in the Gary Post-Tribune:Chief Judge John Pera introduced a measure that would have reconstituted the East Chicago civil court as a full-time probate court, to cover the heavy, increasing number of cases involving the administration of estates.
The county could then do away with three probate commissioners and save about $150,000 per year, Pera said.
"I figured it was a good time to go ahead with the plan, because the new judge coming in to replace Judge Pete would understand the deal, that he or she would be handling probate cases," Pera said.
The judges of the civil court defeated the proposal in a vote, however.
Sunday, September 16, 2007
Courts - In Connecticut: Furor Over Presentence Story About Jurors
Martha Nell of the ABA Journal had a really interesting story Friday about a front-page story in the Connecticut Post naming and detailing jurors in a high-profile case. Some quotes from the ABA story:An unusual front-page newspaper article about jurors selected, after four months of questioning, to determine the sentence in a high-profile death-penalty case has caused a furor.Some readers may recall this ILB from July 10, 2006, on the "South Bend Osco Triple Murder Trial," but no jurors are named in the stories, even in the "profile" of Juror #12.
The prosecutor, defense counsel, at least some jurors, and journalism experts are among those questioning the Connecticut Post's judgment in printing the article, according to Al Tompkins of the Poynter Institute, a Florida journalism think tank.
The Sunday article [ILB - be sure to check this out], which is linked by the Poynter Institute site, names jurors and details where they live and work. After Judge Robert Devlin Jr. told them of the article, one juror and one alternate, concerned about their safety, asked to be excused. Devlin agreed, but denied a mistrial request, the Post reported Monday.
A jury was selected only to sentence defendant Russell Peeler Jr. because a previous jury convicted him but deadlocked on the penalty.
The Sunday article ran after the jury was seated but before the Bridgeport, Conn., case—in which an 8-year-old boy and his mother were murdered as the boy about to testify in a case over the killing of his mother's boyfriend—was concluded. Public outrage over the murders resulted in state legislation to better protect witnesses, another Post article notes.
Juror identities generally are public, but increasingly courts allow anonymity, Tompkins writes. In an ongoing trial of reputed Chicago organized crime family members, for instance, juror names have been kept secret, as an ABAJournal.com post notes.
Ind. Courts - Microsoft sues alleged typo-squatter in Fort Wayne
Rebecca S. Green of the Fort Wayne Journal Gazette reported Saturday:A Fort Wayne man is at the center of a trademark infringement lawsuit filed by techno-giant Microsoft, but it’s not the first time he has found himself in this position.Typo-squatting is not new, see this story from Set. 23, 2000 titled "'Typosquatters' turn flubs into cash."
Microsoft sued Anthony Peppler this week, one of three lawsuits filed by the Washington-based company. Filed in the U.S. District Court for the Northern District of Indiana, the lawsuit against Peppler also names his companies, 260.com, RealTimeInternet.com, based in Delaware, and Modern Limited, with offices in the Cayman Islands.
The lawsuit is similar to suits filed this week against different individuals in federal courts in Washington and New York.
All the suits allege trademark infringement by creating and registering Internet domain names “confusingly similar” to marks belonging to Microsoft. Such actions are in violation of the Anticybersquatting and Consumer Protection Act, according to the court documents.
For example, if a Web surfer was looking for Microsoft’s Internet portal for news, www.msn.com, but they mistakenly typed in msnnew.com, they would find a site that provided some news links but also links to other fake sites.
The Web site is one of the 95 listed in the lawsuit against Peppler.
Within the past few years, Peppler has been sued in similar cases by companies ranging from America Online Inc.; Linens ‘n Things; Syracuse University; Stargate Communications (Chuck E. Cheese); and, most recently by Express Franchise Services, according to federal court records.
Attempts to locate Peppler were unsuccessful. A search of court documents and recent public records indicate he lived in Fort Wayne within the last couple of years. His current whereabouts are not known.
This particular type of trademark infringement is known as “typo squatting,” and involves registering Internet domain names similar to licensed trade names, said Fred Cate, a professor at the Indiana University School of Law. * * *
People usually typo-squat or cyber-squat – using companies’ actual names in a Web site. But in this case, Cate suspects it is a form of extortion, an attempt to make money deviously by creating a similar site, creating confusion and then demanding money from the legitimate company to go away, he said.
“It’s irritating for customers who are trying to get to a site and go to a wrong site,” he said.
Peppler is listed on the Web site Hourlylaff as a member of the top 100 people who made $1 million selling domain names.
Besides seeking money from the real company, it is possible to make money by selling ads on the copycat Web pages. Customers, who may think they are on a different site, click on the ads, making money for whoever owns the similar Web page.
“If I can get you to my site mistakenly and you click on a banner ad, I’m going to make money,” Cate said. “It’s like collecting a toll on the way to the site that you want.”
Law - "New York Subpoenas 5 Energy Companies"
Felicity Barringer and Danny Hakim report today in the NY Times in a story that begins:Attorney General Andrew M. Cuomo of New York has opened an investigation of five large energy companies, questioning whether their plans to build coal-fired power plants pose undisclosed financial risks that their investors should know about.
Mr. Cuomo, using the same state securities law wielded by his predecessor, Gov. Eliot Spitzer, to investigate corruption on Wall Street, sent subpoenas late Friday to the top executives of the five companies, seeking internal documents.
The companies, which have projects in various states, are AES Corporation, Dominion, Dynegy, Peabody Energy and Xcel Energy.
It is rare, if not unique, for a securities law to be used for an environmental purpose, in this case the fight against new coal-fired power plants. The plants’ main emission, carbon dioxide, has been linked by scientists to global warming.
In letters accompanying the subpoenas, the attorney general’s office asked whether investors received adequate information about the potential financial liabilities of carbon dioxide emissions that exacerbate climate change.
“Any one of the several new or likely regulatory initiatives for CO2 emissions from power plants — including state carbon controls, E.P.A.’s regulations under the Clean Air Act, or the enactment of federal global warming legislation — would add a significant cost to carbon-intensive coal generation,” the letters said.
Ind. Courts - Still more on the cameras in courtrooms pilot project
The Evansville Courier & Press, which last Wednesday, Sept. 12th, ran a news story on problems facing the cameras in trial courtroom pilot project (see ILB entry here), today has an editorial recommending that trial judges have the final say in whether cameras will be permitted in a specific trial, or parts of it. the editorial concludes:This newspaper has long believed that trial courtrooms are as much public meeting halls as are city council chambers or county commissioners meeting rooms, where cameras are routinely allowed. Every effort should be made to open those courtrooms to the eyes and ears of the public.
[Vanderburgh Superior Court Judge Wayne Trockman], too, is an advocate for opening the doors of the courtroom to modern media technology.
"There are certain safeguards that should be observed, but our business should be as transparent as possible," he said.
We could not agree more.
Trockman said one compromise might be to give the trial judge the authority to deny cameras for any pretrial matters, but allow them in the courtroom once the jury is seated. It is a point the Indiana Supreme Court must consider once the pilot period ends.
Until the high court gives trial judges sole jurisdiction in allowing cameras — so that defense attorneys cannot veto them — the experiment will be meaningless.
Media organizations were extremely careful in helping design the rules so that cameras would not be intrusive, but this nearly complete non-access has thwarted the purpose of the experiment.
Ind. Courts - "Allen Courthouse needs fixes on exterior"
From the Fort Wayne Journal Gazette, a long story today by Amanda Iacone that begins:After an $8.6 million renovation on the inside a decade ago, the Allen County Courthouse is on the verge of receiving some much-needed exterior maintenance.
Although the previous renovation work focused on preserving murals and artwork inside the building, this project would focus on the limestone and granite that form the 105-year-old building. The limestone blocks and the mortar that holds those blocks together have deteriorated in places during the historic building’s long reign in downtown Fort Wayne.
Commissioner Linda Bloom is working with the Allen County Courthouse Preservation Trust to determine the scope of the damage and how to repair it correctly.
The county commissioners, who are responsible for the building’s maintenance, have set aside $256,000 to help cover costs related to repairing the limestone, a project that Bloom says is not intended to make the building look like new.
Officials involved in the project don’t yet know how much such work will cost. But Madelane Elston, president of the preservation trust board, said it will likely not cost as much as the interior restoration.
Bloom and members of the trust want to repair the mortar where it has weathered away to prevent water from seeping in between the huge limestone blocks. Over time, that water could damage the stone or even seep into the building.
Law - "In Turnaround, Industries Seek U.S. Regulation"
Eric Lipton and Gardiner Harris of the NY Times have a lengthy story today. Here are some quotes:WASHINGTON, Sept. 15 — After years of favoring the hands-off doctrine of the Bush administration, some of the nation’s biggest industries are pushing for something they have long resisted: new federal regulations.Read this story in conjunction with the Sept. 11th ILB entry quoting from a Washington Post column on regulatory preemption.
For toys and cars, antifreeze and fireworks, popcorn and produce and cigarettes and light bulbs, among other products, industry groups or major manufacturers are calling for federal health, safety and environmental mandates. Some of those industries are abandoning years of efforts to block such measures, often in alliance with the Bush administration, which pledged to ease what it views as costly, unnecessary rules.
The consequences for consumers, though, are not yet clear. The tactical shift by industry groups is motivated by a confluence of self-interests: growing competition from inexpensive imports that do not meet voluntary standards, and a desire to head off liability lawsuits and pre-empt tough state laws or legal actions that were a response to laissez-faire Bush administration policies. Concerns that Democrats could soon expand their control in Washington have also prompted manufacturers or producers to seek regulations that they consider the least burdensome, regulatory experts say.
“There seems to be, at the moment, a fair amount of efforts under way by individual industries to put into statute what had either previously been voluntary consensus standards or industry goals,” said Rosario Palmieri, a regulatory lobbyist at the National Association of Manufacturers, which has often opposed government regulations. “This year, we have seen quite a bit of it.” * * *
The practice of industry groups turning to regulators or legislators in Washington for a national standard or mandate is not new, of course. While businesses often oppose requirements by saying they are unnecessary as it is already in their interest to produce safe products, at other times they have asked for them to avoid a patchwork of state regulations, to ensure that competitors must meet the same standard or to provide legal protection.
Warning labels on cigarettes, certain workplace safety laws and even nutritional labels on food packaging can be attributed, in part, to actions by industries over the last four decades to push for a federal standard, industry lawyers and lobbyists said.
But industry officials, consumer groups and regulatory experts all agree there has been a recent surge of requests for new regulations, and one reason they give is the Bush administration’s willingness to include provisions that would block consumer lawsuits in state and federal courts.
Such pre-emption clauses were included, for example, in a drug label rule issued by the Food and Drug Administration in 2006 and in a new fire-prevention standard for mattresses imposed by the Consumer Product Safety Commission in July, said David C. Vladeck, a professor at the Georgetown University Law Center.
The pre-emptions bar consumers from filing liability claims in courts and supersede any tougher state regulations, extremely valuable protections for a major manufacturer, Mr. Vladeck said. “This is Christmas,” he said of industry, “this is their wish list.” A number of businesses are seeking such pre-emptions, though the clauses are being challenged in many courts.
Saturday, September 15, 2007
Courts - New book about the Supreme Court
Read NPR's Nina Totenberg's review of the new Jeffrey Toobin book, The Nine, plus read the first chapter of the book itself.
Law - How electonic evidence has transformed divorce
An important story today by Brad Stone on the front page of the NY Times. Some quotes:The age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.
Spurned lovers steal each other’s BlackBerrys. Suspicious spouses hack into each other’s e-mail accounts. They load surveillance software onto the family PC, sometimes discovering shocking infidelities. * * *
“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.” * * *
Three-quarters of the cases of Nancy Chemtob, a divorce lawyer in Manhattan, now involve some kind of electronic communications. She says she routinely asks judges for court orders to seize and copy the hard drives in the computers of her clients’ spouses, particularly if there is an opportunity to glimpse a couple’s full financial picture, or a parent’s suitability to be the custodian of the children.
Lawyers must navigate a complex legal landscape governing the admissibility of this kind of electronic evidence. Different laws define when it is illegal to get access to information stored on a computer in the home, log into someone else’s e-mail account, or listen in on phone calls.
Divorce lawyers say, however, if the computer in question is shared by the whole family, or couples have revealed their passwords to each other, reading a spouse’s e-mail messages and introducing them as evidence in a divorce case is often allowed. * * *
Lawyers say the only communications that are consistently protected in a spouse’s private e-mail account are the messages to and from the lawyers themselves, which are covered by lawyer-client privilege.
Perhaps for this reason, divorce lawyers as a group are among the most pessimistic when it comes to assessing the overall state of privacy in the digital age.
“I do not like to put things on e-mail,” said David Levy, a Chicago divorce lawyer. “There’s no way it’s private. Nothing is fully protected once you hit the send button.”
Ms. Chemtob added, “People have an expectation of privacy that is completely unrealistic.”
James Mulvaney agrees. A private investigator, Mr. Mulvaney now devotes much of his time to poking through the computer records of divorcing spouses, on behalf of divorce lawyers. One of his specialties is retrieving files, like bank records and e-mail messages to secret lovers, that a spouse has tried to delete.
“Every keystroke on your computer is there, forever and ever,” Mr. Mulvaney said.
He had one bit of advice. “The only thing you can truly erase these things with is a specialty Smith & Wesson product,” he said. “Throw your computer into the air and play skeet with it.
Courts - Missouri chief justice defends "Missouri plan" for judicial selections
Virginia Young of the St. Louis Post-Dispatch reported this week:JEFFERSON CITY — Missouri Supreme Court Chief Justice Laura Denvir Stith defended the state's nonpartisan court plan on Tuesday, calling it "a brilliant compromise" that minimizes politics in the judicial selection process.
Testifying before the Senate Rules Committee, Stith said the plan was drafted nearly three-quarters of a century ago because Missourians "decided that they were sick of politicians picking their judges."
Stith said the plan's drafters came primarily from the Republican Party and included Rush Limbaugh Sr., the grandfather of Missouri Supreme Court Judge Steve Limbaugh and political commentator Rush Limbaugh.
Under the plan, Stith heads the seven-member Appellate Judicial Commission, which screens candidates for the Supreme Court and the Court of Appeals. Three of the commissioners are lawyers elected by the Missouri Bar. Three are non-lawyers appointed by the governor.
The commission meets in private to interview applicants and narrow the field to three people. The governor must choose from among those finalists. Voters decide the following year whether to retain the judge for a full term.
The process came under fire this summer when the commission picked finalists for a Supreme Court vacancy. On Friday, Gov. Matt Blunt appointed Patricia Breckenridge to fill that vacancy.
Conservatives said Blunt had little ability to influence the process and appoint a judge who matched his philosophy. Blunt has appointed only one of the screening panel members, who serve staggered, six-year terms.
Although critics of the plan had hoped for a showdown with Stith on Tuesday, the tone of the hearing was friendly.
Ind. Courts - Federal Judge Hamilton hears arguments on I-69 route
Bryan Corbin of the Evansville Courier & Press reports today:INDIANAPOLIS — Opponents of the route for Interstate 69 from Evansville to Indianapolis want the state to consider a route using existing roads — U.S. 41 to Interstate 70 near Terre Haute. They are asking a federal judge to order the state to re-evaluate its route options and reconsider the indirect route it previously rejected.
At the federal courthouse in Indianapolis, a judge heard hours of arguments Friday by lawyers for the state and federal governments, and environmentalist opponents of the new-terrain route.
U.S. District Court Judge David Hamilton did not say when he will rule on the lawsuit, but his decision will be closely watched. The Indiana Department of Transportation plans to break ground on the first section of Interstate 69, Evansville to Oakland City, Ind., about one year from now.
If the plaintiffs — the Hoosier Environmental Council and other groups and citizens from Martinsville and Bloomington, Ind. — prevail in the lawsuit, then Interstate 69 could be sent back to the state transportation department for a new environmental-impact study, conceivably delaying the project for an undetermined period.
"We want the judge to send this back to INDOT and order them to do an evaluation of a fuller range of alternatives for the project, including multiple road upgrades," said plaintiffs' attorney John N. Moore of the Environmental Law and Policy Center in Chicago.
If the defendants — state and federal agencies — prevail in the lawsuit, then one of the final hurdles to building the first leg of the Evansville-to-Indianapolis highway would be removed. Each side is asking the federal judge for summary judgment — to rule in its favor based on facts not in dispute, without going to trial. * * *
Among other things, the plaintiffs allege the state and federal governments, in selecting the 142-mile new-terrain route, violated several federal laws: the National Environmental Policy Act, the Clean Water Act and the Endangered Species Act. State and federal attorneys contend the laws were followed during the years of planning and studies that went into the I-69 project. * * *
[T]he lawsuit may require the federal judge to interpret the Major Moves law, which a sharply-divided Legislature passed in 2006. To get the bill passed, legislators inserted two concessions: The interstate could not go through Perry Township in suburban Indianapolis without the Legislature's approval. And, motorists could not be charged tolls on I-69 between Martinsville, Ind., and Indianapolis without the Legislature's approval. Attempts by lawmakers this year to remove those concessions failed.
With the Major Moves law unchanged, Hamilton questioned the attorneys about the implications for Interstate 69's current plan, envisions the interstate terminating at I-465 in Perry Township. "The language is clear: It prohibits construction of I-69 through Perry Township," Moore replied.
An attorney for the state, Albert Ferlo, suggested there was room for interpretation. Asked by the judge if the state takes the position that it is free to build I-69 through Perry Township, Ferlo answered that it does.
"There is a lot of concern by the folks at the southern end of the highway that the Perry Township maneuver will delay or prevent construction of this highway that those advocates want," Hamilton observed. "That's an interesting problem." * * *
Much of Friday's arguments dealt not with motorists or their interstate transportation needs but instead with an animal, the endangered Indiana bat. The plaintiffs contend the U.S. Fish and Wildlife Service violated the Endangered Species Act, through backing off its earlier predictions of how I-69 construction might jeopardize the bat population.
Federal government attorney Rebecca Riley described how 32 individual trees were identified as bat roosting sites through tagging the animals. The interstate route was positioned at least a 21/2 mile radius away from the roosting trees, the farthest the bat is known to travel, Riley told the judge.
Law - "Who pays if your neighbor's tree damages your house? Va. High Court Breaks New Ground on Tree Liability"
Brigid Schulte of the Washington Post reports today in a lengthy story that begins:In the suburbs, there are few issues that can cause as much rancor and neighborhood discord as a deep-rooted, mature tree that has no regard for the neat boundaries of a property line.The decision is Fancher v. Fagella (09/14/2007).
Who pays if your neighbor's tree damages your house?
Yesterday, the Virginia Supreme Court weighed in on the contentious issue with a decision that overturns a nearly 70-year-old precedent. Now, for the first time, homeowners can sue to force a neighbor to cut back branches or roots or take out the tree altogether if it poses a risk of "actual harm" or an "imminent danger" to their houses, the court ruled. Tree owners can now be held liable for any damage caused by the tree.
The reasoning? The court realized just how much Virginia has changed.
The justices ruled in a Fairfax County case that the old law made perfect sense in a rural world, but now, with townhouse and condo developments springing up on former farmland, with infill development in cities and densely packed neighborhoods, the law "is unsuited to modern urban and suburban life."
Virginia is the latest state to make such a change. And in other states, it has resulted, at least initially, in far more than heated over-the-back-fence negotiations.
"This is the trend around the country, as we go from having arbitrary distinctions that made more sense in a rural economy," said Steven J. Eagle, a law professor and property rights expert at George Mason University law school. "This is a better line of reasoning. The problem is, it probably will result in more litigation.
Ind. Law - No unlicensed golf carts on Wabash County highways, streets or alleys
From a story Thursday in the Wabash Plain Dealer, Robert Bryan reporting:If you choose to operate your motorized golf cart on the public highways, streets or alleys, you are required by law to have them registered with the Bureau of Motor Vehicles and plated as you would any other motor vehicle.Here is a list of earlier ILB entries on golf carts.
Also, since golf carts are classified as "slow moving vehicles," the law requires they display a triangular "slow moving vehicle" emblem and use red or amber flashing lights at times when other motor vehicles are required to use headlights.
Those interpretations of Indiana law as they apply to golf carts on public streets, highways and alleys were made to Wabash County law enforcement agencies by Wabash County Prosecuting Attorney William C. Hartley Jr.
In essence, the interpretation is the go-ahead for police agencies to ticket alleged violators.
The interpretation was in part in response to a request from Wabash County Sheriff Leroy Striker.
In a note to news media outlets, Striker wrote in part, "Within the county, we have received numerous complaints about golf carts operating on the roadways; additionally, many golf cart owners are unfamiliar with the Indiana State Statute and the laws pertaining to golf cart usage on the roadways."
In his analysis, Hartley starts by determining that golf carts fit the definition of motor vehicles in Indiana Code and are not exempted from the registration and plate requirement.
"Thus, golf carts must be properly registered with the BMV and plated in order to be lawfully operated on public highways, including city streets. Proper traffic citations can be issued for violations of the registration and plate requirements ... Violations of these requirements are punishable as a Class C Infraction."
Friday, September 14, 2007
Ind. Courts - New Marion County Superior Court Judge David Certo takes oath
The Indanapolis Star reports this afternoon:[David Certo,] a new judge on Marion Superior Court received his robe this afternoon during a ceremony marking his appointment to the bench. * * *
Seventeen judges were among the attendees. Certo, 35, took the oath of office from Indiana Court of Appeals Judge Cale Bradford while his hand rested on a Bible held by his wife, Megan. Bradford's appointment to the appeals court opened up the vacancy filled by Certo.
The new judge started work last month and oversees the protective order court, which primarily handles domestic violence-related cases. He said such situations sometimes escalate into more serious crime.
Until his appointment, Certo, a Republican, was legal counsel at the Indiana Department of Natural Resources. He has held other government positions at the state and local levels.
Ind. Decisions - Transfer list for week ending September 14, 2007
Here is the Indiana Supreme Court's transfer list for the week ending September 14, 2007. Be sure to view all three pages.
There were no transfers granted this week, other than the Dowell grant with a per curium opinion yesterday.
One interesting transfer denied today is the case of Donald J. & Jacquelyn Lindsey v. De Groot Dairy, LLC and IDEM, thereby upholding a June 4, 2007 COA opinion (see ILB entry here), where Judge Bailey's opinion concludes:Indiana law strongly prefers disposition of cases on their merits. Coslett v. Weddle Bros. Constr. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003), reh’g denied. We prefer not to erect procedural obstacles to their presentation. Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (1976). In light of the considerations noted above, we conclude that service pursuant to Trial Rule 5 satisfies Indiana Code Section 4-21.5-5-8. To rule otherwise would create a procedural trap for unwary litigants, especially where, as here, the parties had already been engaged in the dispute for some time. If the General Assembly would prefer service to be achieved under Trial Rule 4, it should so specify. Conclusion We conclude that the trial court erred in dismissing the Lindseys’ Verified Petition for Judicial Review. Reversed.
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.
Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)
For publication opinions today (1):
In Eric D. Smith v. State of Indiana, a 7-page opinion, Judge Vaidik writes:Following our reversal and remand to the trial court, Eric D. Smith (“Smith”), an inmate in the Indiana Department of Correction (“DOC”), now appeals the trial court’s grant of summary judgment in favor of the Maximum Control Facility and DOC employees Daniel R. McBride, Nell Hayes, Pam Bane, and Elaine Zschoche (collectively, “the Defendants”) on his complaint for violation of Indiana’s Access to Public Records Act. Because Smith has not paid for copies of the public records and because he is a prisoner in the DOC, which places restrictions on his ability to inspect the records himself, the Defendants did not violate the Access to Public Records Act by providing Smith with a summary of the records. We therefore affirm the trial court. * * *NFP civil opinions today (1):
Smith’s appeal focuses on his right to inspect the records. See, e.g., Appellant’s Br. p. 5 (“The failure to allow such ‘inspection’ is actionable.”). Smith does not claim that he has paid the statutory copying fee or that he is entitled to a copy of the records at public expense because he is indigent. As for Smith’s right to inspect the records, we point out that his status as a prisoner greatly frustrates this right. Smith is currently incarcerated in the DOC, and at least during one point in these proceedings, he was in punitive segregation. See Appellant’s App. p. 12. Implicit in Indiana Code § 5-14-3-3 is practicality. And at this point in time, it is simply not practicable for Smith either (1) to be brought to the location of the records so that he can inspect them on location or (2) to have the records brought to him in the DOC so that he can inspect them while imprisoned. By providing Smith with a summary of the requested documents, the Defendants have not violated the Access to Public Records Act. We therefore affirm the trial court’s grant of summary judgment in favor of the Defendants.
In Termination of the Parent-Child Relationship of J.J.; Tony E. Jones v. Elkhart County Department of Child Services (NFP), a 9-page opinion, Judge Bradford writes:Appellant-Respondent, Tony E. Jones, appeals the juvenile court’s involuntary termination of his parental rights.1 Specifically, Tony E. claims that the Elkhart County Department of Child Services (“ECDCS”) did not present sufficient evidence to prove that termination of his parental rights was justified. Concluding that the evidence was sufficient, we affirm.NFP criminal opinions today (1):
The intertwining relationships in the Jones family are most clearly depicted by the diagram below: [ILB - p. 2 contains a chart of the relationships]
Courts - Monday is Constitution Day
The Indiana Supreme Court is hosting an event:The Indiana Supreme Court's "Courts in the Classroom" program, in collaboration with the U.S. District Court for the Southern District of Indiana and the Indiana Department of Education, will host a one-hour educational program recognizing “Constitution Day” on Monday, September 17 from 10-11 a.m. in the Supreme Court courtroom.The Annenberg Public Policy Center has put out a release that begins: "Americans know little about the workings of the U.S. Supreme Court, including the fact that Supreme Court rulings are final, according to a national survey conducted for the University of Pennsylvania’s Annenberg Public Policy Center."
Ind. Courts - "Indiana Authorities Investigate Whether Fake Obit Attempted to Keep Woman Out of Jail"
From FOX News:
MUNCIE, Ind. — Prosecutors are investigating whether a phony obituary was placed in a newspaper in an attempt to keep a convicted forger out of prison.
The obituary reporting the supposed death and cremation of Shawnda K. Hatfield was faxed to Delaware Circuit Court Judge Robert Barnet Jr.
But Hatfield, 41, was later found at her home in nearby Dunkirk and arrested. Barnet sentenced her Thursday to four years in prison for altering a check drawn on the account of White Feather Farms, where she formerly worked.
Hatfield said she had no idea how her obituary ended up in The Star Press.
Kathy Whittenburg, an employee in the newspaper's classified advertising department, said the obituary appeared after a caller purporting to be Hatfield's niece phoned The Star Press and later provided a telephone number she said belonged to a Florida crematory.
Deputy Prosecutor Joe Orick told Hatfield that if an investigation showed her relatives were involved in the fake obituary, "You can have a family reunion upstairs" — in jail.
Ind. Law - Finals of Parts I and II of "Assuring authentic legal information in the digital age" now available
Access them here:
"Assuring authentic legal information in the digital age: Part I – the Acts of Indiana and the Indiana Code," 50 Res Gestae 10 (June 2007), pp. 20-25.
"Assuring authentic legal information in the digital age: Part II - The Indiana Register and the Indiana Administrative Code," 51 Res Gestae 2 (Sept. 2007), pp. 33-37.
I'll be posting a draft of Part III, dealing with admissibility of electronic evidence, including the text of Indiana's statutes and rules, within the next few weeks.
Some earlier ILB entries:
Ind. Courts - Admissibility of electronic evidence -- is it "authentic"? June 18, 2007
Ind. Courts - More on: Admissibility of electronic evidence -- is it "authentic"? Aug. 1, 2007
Law - " Authenticating E-Discovery As Evidence" Sept. 5, 2007
Ind. Gov't. - DLGF puts assessed value and sales information online
Both Lesley Stedman Weidenbener of the Louisville Courier Journal (here) and John Byrne of the Gary Post-Tribune (here) have stories today about the Department of Local Governmental Finance's website, offering statewide data on sales and assessments. From the LCJ:The Indiana Department of Local Government Finance announced yesterday a searchable database on its Web site that allows anyone to put in names or addresses and find sales information from 2003 through 2006.The ILB agrees. Check it out, here.
The system also provides information about property assessments but is dependent on data provided by counties. That means information may be missing for some counties or some years, although it will be updated as it is submitted to the state.
Department Commissioner Cheryl Musgrave said she hopes the data will help homeowners with appeals of their assessments, which are based partly on area sales data. She called it a one-stop source for assessment information.
"One of the things close to my heart has always been public access for free to data that the government collects," she said. "It's really valuable information."
Environment - More on: Wabash Environmental trial in federal court concludes
Here is a list of a number of earlier ILB entries on the trial of Derrik Hagerman and his company, Wabash Environmental Technologies LLC, for violations of the Clean Water Act. The most recent is dated May 25th.
Today the Terre Haute Tribune-Star reports:Sentencing for a Terre Haute businessman convicted in May of fraud in violating the federal Clean Water Act has been rescheduled for Oct. 23 in the U.S. District Court for the Southern District of Indiana in Indianapolis.
Derrik Hagerman, 53, president and owner of Wabash Environmental Technologies LLC, had been scheduled for sentencing Thursday.
Hagerman’s defense attorneys, William E. Marsh and James C. McKinley, withdrew their representation of Hagerman on July 31, according to court documents, but no reason for the withdrawal was given.
The defendant now is represented by Steven L. Blakely of Danville, Ill.
At the request of Hagerman’s attorney, Judge David F. Hamilton granted a motion to continue the sentencing hearing. Hagerman is objecting to a pre-sentence investigation report. Such reports contain information about a defendant’s past and are used by a judge to determine the appropriate sentence.
Ind. Courts - Grant County Courthouse may be restored
Maribeth Holtz reports today in a story that begins:Local leaders hope the Grant County Courthouse can be restored to its former profile, dome and all.
How a new dome could be funded, however, is uncertain as plans for repairing the historic building and designing a new county building remain in flux.
"Do the dome," Commissioner Mark Bardsley said. "Not only for its historical accuracy, but I believe it will be a restored symbol of the seat of authority downtown."
A dome that would replicate the one removed in 1943 could come with a price tag of $750,000, according to American StructurePoint, the architectural firm working on plans for a new county building.
The dome would be built with modern, less-costly materials than the original. It would not be visible from inside the courthouse because the rotunda no longer exists.
According to historic documents from the Marion Public Library, the dome was removed under a re-design after a fire in the courthouse in 1939. An elevator shaft took the place of the rotunda, and the dome, which was damaged by the fire, was taken off, along with the Lady Justice statue that stood atop it.
Environment - Chicago River's link to illness studied
Michael Hawthorne of the Chicago Tribune, who wrote one of the first stories on Indiana's BP permit, reports today:Most of the water in the Chicago River is treated sewage loaded with bacteria, but officials contend they shouldn't be forced to clean up the waterway unless a newly commissioned study finds people are getting sick from the murky flow.
Under pressure from Mayor Richard Daley and others to turn the stagnant canals into civic amenities, the Metropolitan Water Reclamation District asked researchers to survey folks who dip a canoe or kayak into the river during the next year. The goal is to compare their rates of illness to the rates for people who swim in Lake Michigan or have no contact with either body of water. * * *
Until the district commissioned the study, the Illinois Environmental Protection Agency had been on track to move forward with standards that for the first time would limit the amount of bacteria allowed in the river. Environmental groups grumble that the study could delay or scuttle those efforts.
District officials are drawing up plans to disinfect the region's treated sewage, something most other large cities already do. But they also argue that it might not be worth it to clean up the river. * * *
he project is another sign of changing attitudes about an erstwhile prairie stream that for more than a century has been seen as little more than an industrialized sewage canal.
Chicago reversed the flow of its river in 1900 to keep the burgeoning city's waste out of Lake Michigan, its source of drinking water. For decades the river was fenced off to prevent human contact and was exempt from the toughest requirements of the Clean Water Act.
But with water quality steadily improving, people have been increasingly drawn to the dredged and straightened channels for recreation.
Environmental advocates say there's no doubt that bacteria levels in the Chicago River are higher than what is allowed in other waterways. They note that Chicago is the only large U.S. city that doesn't disinfect its treated wastewater, a throwback to days when officials assumed people wouldn't come near the river.
"Times have changed and the standards need to change with the times," said Margaret Frisbee, executive director of Friends of the Chicago River, an advocacy group that organized Sunday's canoe race. "This study will show us what we already know: The river isn't clean enough for human contact."
Ind. Courts - Case of the mother who took the court records resolved for nowThe volumes of missing files from a 2006 murder case have been returned to an Allen County Superior Court judge, but the woman who took the documents will spend 90 more days in jail for not returning the materials.
After a month of wrangling with Adela Favela over the official court record of her son’s murder trial, Allen Superior Judge Fran C. Gull received the final four sections of the 13-volume file late Thursday morning. She received the first nine volumes Wednesday afternoon.
Each set of documents was wrapped in aluminum foil, put in plastic grocery bags and then sealed with clear plastic tape. They had been hidden inside the frame of a dresser and stashed under a 5-foot-tall bookshelf, according to court testimony.
At a hearing Thursday afternoon, Gull sentenced Favela to 90 days in the Allen County Jail for being in direct criminal contempt of court.
The 58-year-old woman had been in jail for the past 17 days on indirect contempt of court until she told authorities where to find the court’s file.
The file – the complete record of Daniel Favela’s 2006 murder trial – was found largely with the help of Adela Favela’s 17-year-old daughter Maria, a senior at North Side High School.
The file contains transcripts of hearings related to the murder case, court testimony and physical evidence. * * *
On Wednesday, Maria Favela told a resource officer at her school that she had learned where the documents were. According to testimony at Thursday’s hearing, she took school officials over to her mother’s Centlivre Village apartment, where they found the first nine sections – located in the dresser.
Thursday’s hearing was delayed until Thursday afternoon to allow police to search for the other four sections.
Adela Favela disclosed their location to her court-appointed attorney, Phil Terrill.
By 10 a.m., Fort Wayne police officers and crime scene technicians waited for Maria Favela and prosecutors to arrive at the apartment to find the other parts of the file. Those were found under the bookcase.
Thursday afternoon, Allen County Chief Deputy Prosecutor Michael McAlexander argued Adela Favela’s “painstaking” packaging and hiding of the file indicated she had no intention of ever turning them over to another attorney.
He called the weeks-long saga of the missing file “ridiculous” and asked Gull to sentence Favela to 180 days in jail.
“Our system as a whole, we rely on the orders the court gives us,” McAlexander said. “This is a very serious matter.”
But Maria Favela asked Gull to release her mother, describing how an already difficult life got harder the past few weeks – she’s staying with a friend, worrying about how to find enough money for food, having contact with child protection officials, missing school tests to appear in court and trying to figure out how she’s going to get accepted and go to college.
Through an interpreter, Adela Favela tearfully apologized to the court, saying she did not think the situation would get to the point it had. She said she wrapped the documents and hid them to protect them because they represent the life of her son. She also detailed a number of health problems.
In sentencing her, Gull told Favela her conduct was reprehensible because she failed to consider what it did to her daughter.
“You should be ashamed of yourself for what you put your daughter through,” Gull said.
Not law but interesting - Ideafest in Louisville
Diana Skaggs of the Divorce Law Journal has been attending the Louisville Ideafest, which sounds like great fun! Read all about it here.
Ind. Courts - "Hammond lawyer arrested for intoxication in court"
Sophia Voravong of the Lafayette Courier & Journal reports:An attorney and long-standing political figure in Hammond was arrested Thursday morning in Lafayette after officials say he showed up drunk, with a flask of whiskey in his suit pocket, to a juvenile court hearing.
Bailiff Chuck Molter said Peter Katic, 53, came to an 11 a.m. hearing in Tippecanoe Superior Court 3 -- Judge Loretta Rush's courtroom -- with bloodshot eyes, a flushed face and smelling of alcoholic beverages.
He consented to a portable breathalyzer test, which registered an alcohol content of 0.201 percent, Molter said. That's more than twice the legal limit to drive in Indiana.
Katic is a former judge of Hammond City Court. He also served as a District 12 state representative for Indiana in the late '70s and '80s, according to state Rep. Sheila Klinker. She said she was shocked to hear of her colleague's arrest.
"This is hard for me to believe. It's very difficult," said Klinker, D-Lafayette, who served in the General Assembly with Katic. "Peter was a mentor to so many new people at the Statehouse. He was in a leadership position -- showing others how to organize and categorize."
Katic, a Democrat, served three terms as a state representative, beginning in 1978. He was a Lake County deputy prosecutor when elected. Katic also was a Lake County commissioner in the '90s.
Ind. Gov't. - "Loophole Allows States To Avoid Covering Breast, Cervical Cancer Treatments for Some Uninsured Women"
A troubling story on the front page of the Wall Street Journal yesterday, as reported here in the ABA Journal:A little-known federal law entitles breast and ovarian cancer patients under age 65 to Medicare treatment, even if they wouldn't normally qualify for the federally funded health care program for the indigent.The Wall Street Journal lists 21 states "where uninsured women with breast or cervical cancer are denied Medicaid coverage if they wern't diagnosed at the right clinic. The list includes Indiana.
But in a number of states only some health care centers qualify for Medicare reimbursement under the Breast and Cervical Cancer Prevention and Treatment Act. That means it can be crucial to patients to seek treatment initially at a facility that receives federal funding for a cancer-detection program, reports the Wall Street Journal (sub. req.).
From the Kaiser Network:A legal loophole in the federal Breast and Cervical Cancer Prevention and Treatment Act allows states to not cover some uninsured women diagnosed with breast or cervical cancer in their Medicaid programs, the Wall Street Journal reports. Under the law, enacted in 2000, uninsured women younger than age 65 diagnosed with breast or cervical cancer can have their treatments covered by Medicaid, even if they are not otherwise eligible for coverage.
According to the Journal, the law allows states to choose to cover only women diagnosed at clinics that receive funding from a federal cancer-detection program. Twenty-one states do not cover treatment costs for women diagnosed at facilities that do not participate in the federal cancer-detection program, and Texas only began providing coverage for women diagnosed at any health provider on Sept. 1. According to the Journal, "thousands" of women annually "get caught" in the loophole, which "can turn the quest for care into a daunting obstacle course."
Thursday, September 13, 2007
Ind. Decisions - In Illinois case, 7th Circuit rules that church cemetary will not stand in the way of airport expansion
In St. John’s United Church of Christ v. City of Chicago, a 54-page, 2-1 opinion issued today, Judge Wood writes, inter alia:We are not persuaded by the district court’s brief dicta in Cottonwood that eminent domain is always and inevitably a land use regulation under RLUIPA. Given the importance of eminent domain as a governmental power affecting land use, we think that if Congress had wanted to include eminent domain within RLUIPA, it would have said something. Indeed, before federal law (even under the Spending Clause) starts interfering with the fundamental state power of eminent domain, it is likely that we would need a clear statement from Congress. See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989) (“[I]f Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.”) (internal quotation omitted). Congress did not mention eminent domain in so many words in RLUIPA’s definition of a land use regulation, which is enough for us to consider it excluded.The decision is also featured today in Robert Loblaw's Decision of the Day.
Ind. Gov't. - Logistics of public records requests challenge Morgan County officials
A.J. Nelson from the Martinsville Reporter-Times reported in a lengthy story on Sept. 8 that began:A sizeable records request has one Morgan County trustee scratching his head to find a way to answer it, while another trustee said she has received several form letters requesting identical records from her township.
Brown Township Trustee Al Hornaday said "a massive" Access to Public Records request from a large Indianapolis law firm, Baker and Daniels, seeks to look at nearly every record the township has generated in the past five years, and several going back as far as 10 years.
Ind. Courts - Miami County Circuit Court judge retiring
From the Peru Tribune:Rosemary Higgins Burke, who has been Miami County Circuit Court judge since 2002, has announced she'll be retiring at the end of the year - but by no means does that mean Peruvians won't see her smiling face around town.
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In James Keeney v. State of Indiana , a 7-page opinion, Judge Najam writes:James Keeney appeals the trial court’s order requiring him to provide a DNA sample to the State after he pleaded guilty to Forgery, a Class C felony. He raises a single issue for our review, namely, whether Indiana Code Section 10-13-6-10, which requires felons to submit such DNA samples, is unconstitutional. We affirm. * * *In Nationwide Insurance Company v. Frances A. Heck and Larry L. Heck , an 11-page opinion, Judge Najam concludes:
Keeney contends that Indiana Code Section 10-13-6-10, which requires “[a] person convicted of a felony . . . after June 30, 2005, whether or not the person is sentenced to a term of imprisonment,” to provide a DNA sample to the State is unconstitutional in light of the recent decision of the Supreme Court of the United States in Samson v. California, ___ U.S. ___, 126 S. Ct. 2193 (2006). The State responds that Samson does not overrule our precedents on this issue, namely Balding v. State, 812 N.E.2d 169 (Ind. Ct. App. 2004). We agree with the State. * * *
Unfortunately, we must call attention to the fact that the appellate attorney for Keeney has filled her brief with uncited material. Specifically, the brief’s entire “Argument” section is a near-verbatim replication of a recent Memorandum and Order from the United States District Court for the District of Massachusetts. Compare Appellant’s Brief at 2-29 with United States v. Stewart, 468 F. Supp. 2d 261, 263-82 (D. Mass. 2007). Each contention in an appellate brief “must be supported by citations to the authorities . . . relied on.” App. R. 46(A)(8)(a). But Keeney’s attorney has not cited Stewart, nor has she otherwise indicated to this court that she is relying on that case. * * *
The importance of proper attribution cannot be understated. While lawyers and judges regularly borrow reasoning from others, both ethics and the appellate rules require that the source be given credit. Nonetheless, Keeney’s appellate attorney merely transplanted the District Court’s order into her brief as if it were her own work. * * *
We confine our criticism here to an admonishment. However, we note that it is within our authority to require Keeney’s attorney to not collect a fee for her appellate services in this case, and to return any fee she may have already received to the payor with interest. We also note that, while we have considered Keeney’s brief to the extent possible, it was within our authority to strike the brief entirely. See App. R. 42. It is also within our authority to refer this matter to the Supreme Court Disciplinary Commission for investigation, as Indiana Professional Conduct Rule 1.1 requires attorneys to represent their clients competently. See Gibbs, 426 N.E.2d at 1159 (referring attorney to the Disciplinary Commission). Or we could have ordered Keeney’s attorney to show cause, if any, why she should not be held in contempt. We choose, however, not to sanction Keeney’s attorney beyond the reprimand within this opinion. Affirmed.Here, the undisputed designated evidence shows that on July 18, 2003, Jeffrey and Niles entered into an agreement whereby Nationwide accepted liability on behalf of Larry, agreed that Ohio law would apply to the matter, and agreed that the only issue to be resolved was the amount of Frances’ damages. There is no evidence that the signature of the parties was a condition of the agreement. On appeal, Nationwide disputes that it ever entered into such an agreement, but the conduct of its agent, Niles, over the course of twenty-eight months demonstrates, as a matter of law, that there was such an agreement. Indeed, none of the evidence Nationwide designated in support of summary judgment or in opposition to Larry’s summary judgment motion contradicts that such an agreement existed. Given the unambiguous terms of the parties’ agreement, Nationwide’s contention now that Larry is not covered under the policy is not well-taken. The trial court did not err when it denied Nationwide’s summary judgment motion and granted summary judgment for Larry. Affirmed.In T.D. v. State of Indiana , a 5-page opinion, Judge May writes:T.D. appeals the true finding that he is a juvenile delinquent for possession of marijuana, which would be a Class A misdemeanor if he were an adult. He asserts the court should have suppressed all the evidence because the stop of the car in which he was riding violated Article I, section 11 of the Indiana Constitution. We affirm. * * *NFP civil opinions today (2):
Officer Brinker testified the windshield was cracked sufficiently to obstruct the driver’s view. This evidence was sufficient to support his reasonable belief that a traffic stop was required to determine whether the obstruction made the vehicle sufficiently unsafe warrant a traffic citation. Cf. Hilton v. State, --- So.2d ----, 2007 WL 1932071 (Fla. 2007) (motion to suppress should have been granted where officer testified seven inch crack did not obstruct driver’s view, and therefore the officer had no reasonable suspicion car was not unsafe).
Taking into account the factors to be considered under Meyers, 839 N.E.2d at 1153, we cannot say Officer Brinker’s action was unreasonable under the Indiana Constitution. Accordingly, we affirm.
Lieu B. Hoang v. Jamestown Homes, Inc., PGPM, Inc., Fort Wayne Police Department and City of Fort Wayne (NFP) - "The record shows that the trial court gave Hoang every opportunity to comply with discovery and to cure his previous failures to comply, but that he steadfastly and deliberately defied the court’s orders. Hoang has not demonstrated that the trial court abused its discretion when it dismissed his complaint."
Christine A. Ankney v. Gregory A. Ankney (NFP) - "The trial court did not make a finding of a substantial change in circumstances or that modification was in the best interest of the children. And we cannot say that the evidence in this case supports either determination. We reverse the trial court’s order modifying physical custody and parenting time."
NFP criminal opinions today (6):
Ind. Courts - Orders Amending Indiana Rules of Court [Updated]
The Supreme Court has posted new Orders Amending Indiana Rules of Court. All are effective Jan. 1, 2008 except for the "Order Amending Rule for Admission to the Bar and the Discipline of Attorneys," which is effective immediately.
[Updated] The Rule issued Sept. 10, 2007 and effective immediately raises the annual attorney registration fee from $105 to $115. The amended language specifically provides: "This amendment shall be effective for registration fees due by October 1, 2007 and thereafter."
And in case you are wondering, the annual registration statement you received from the Clerk of the Courts some weeks ago already reflected the new $115 amount.
Ind. Decisions - Continuing coverage of: "'Honk for peace' case tests limits on free speech"
The U.S. Supreme Court should be deciding shortly whether to hear the "honk for peace" case - see a list of earlier ILB entries here.
Today the Orlando Sentinel has a story on the case, reported by Tamara Lytle, headed "Fired teacher honking for justice: Now in Osceola, she is appealing her dismissal in Indiana to the U.S. Supreme Court." It begins:Kissimmee Middle School reading teacher Deborah Mayer said her world has been "devastated" by four words she uttered in an Indiana classroom four years ago: "I honk for peace."
Mayer, who now lives in Celebration, was fired from her teaching job in Bloomington, Ind., after that 2003 comment. Now she's appealing to the U.S. Supreme Court, asserting that her dismissal for expressing her political views violated her First Amendment rights.
It's a case with national implications for what teachers can -- and can't -- say in a public-school classroom.
"This has been devastating to me," Mayer, 57, said of her case, which has cost her $70,000 in legal fees. "What's important is that when I decided to stand up for my rights and take this school system to court, the court said teachers have no right of free speech."
But Thomas Wheeler, attorney for the Monroe County Community School Corp., said her real problem is she was a bad teacher. Besides, he said, teachers don't have First Amendment rights in the classroom because they teach a curriculum decided by state and local officials. So far, lower courts have agreed -- and the Supreme Court has not decided whether to hear her appeal.
Martin Sweet, an assistant professor of political science at Florida Atlantic University, said Mayer's case has a decent chance of getting a hearing.
"The First Amendment does not go away for either teachers or students. But it has to be measured," he said. One measure is subject matter, he said: A teacher discussing current events could more appropriately voice political opinions than, for instance, a biology teacher.
Ind. Decisions - "Court upholds automated phone call ban"A state law that bans automated phone calls unless recipients have previously agreed to receive them has survived a federal court challenge -- at least by default.
The 7th U.S. Circuit Court of Appeals in Chicago on Wednesday ordered a district judge in Indianapolis to dismiss a complaint involving the ban, saying the case doesn't belong in federal court.
The case stemmed from automated calls made by FreeEats.com on behalf of a California group called the Economic Freedom Fund during the 2006 congressional campaign.
Virginia-based FreeEats.com was appealing an October ruling by U.S. District Judge Larry McKinney that found Indiana's automated calls ban does not violate the First Amendment nor restrain interstate commerce as the company had contended.
Indiana Attorney General Steve Carter had sued the company in Brown County in September after receiving 12 consumer complaints regarding automated calls that attacked 9th District congressional candidate Baron Hill, who ultimately won, in his race against Republican then-Rep. Mike Sodrel.
FreeEats then filed its federal lawsuit, which the state sought to have dismissed on the grounds that it fell under case law by which federal courts generally abstain from hearing constitutional claims involving cases where state court action is pending.
The 7th Circuit ruled Wednesday that McKinney should have dismissed the case, because among other things FreeEats had not demonstrated a pressing need for immediate relief and had itself delayed court proceedings.
"We will not reward FreeEats with its desired federal forum merely because it decided to delay seeking injunctive and declaratory relief until the eve of the election, regardless of the harm it potentially could have suffered at that eleventh hour," the three-judge panel ruled.
Ind. Courts - "A judge has ordered a defendant to 'return to the South Bend Tribune and admit that he lied' to a reporter."
The South Bend Tribune today has a somewhat unusual story reported by Jeff Parrott. It begins:A judge has ordered a defendant to "return to the South Bend Tribune and admit that he lied" to a reporter.
The case involves defendant Michael Sheneman, a self-described "high-profile" 55-year-old real estate investor who is charged with having sex with a 15-year-old girl on multiple occasions.
In a hearing Wednesday, Superior Judge Jerome Frese chastised Sheneman for pleading guilty in his courtroom June 4, then later telling a Tribune reporter for a June 17 article that he had not committed any such crime.
The judge told Sheneman that his conflicting stories in court and to Tribune readers had cast the entire criminal justice system in a "bad light."
Frese's order Wednesday also requested that The Tribune give the follow-up story the same "prominence" as the June 17 article, which ran atop Page A1.
Ind. Law - "Zoning rule changed, Henry residents now must petition for protection"
Joy Leiker writes today in the Muncie Star-Press:NEW CASTLE -- Henry County residents worried that a confined feeding operation might move next door to their rural homes have one protective option -- ask the planning commission to rezone their property.
But that request comes with a price -- $145 to pay for a public hearing and notice in the newspaper -- and without a guarantee that the planning commission will approve it.
After the Henry County Board of Commissioners voted to change its zoning law on Wednesday, that public hearing and request process became all the more important for rural residents living in homes built on land zoned for agriculture, rather than zoned for residential use. The public hearing is now the last layer of protection for residents who want to keep at bay confined feeding operations, and any other facility that requires permission to build.
On Wednesday commissioners approved a one-word change to the zoning law that eliminated some security for homeowners. For those with homes built on property zoned for agriculture, the zoning change means confined feeding operations can be 300 feet, instead of 2,000 feet, away.
And it's not just about confined feeding * * *
The zoning change also means less protection for those same rural homeowners from an airport, prison or junk yard.
As just one example, a junk yard could be built 300 feet away from a neighboring agricultural-zoned property, compared to 2,000 feet from residential-zoned land.
Ind. Law - Still more on: Jeffersonville bans sex offenders from parks
This ILB entry from July 14th reported: "The Indiana Civil Liberties Union has filed a lawsuit challenging a Jeffersonville ordinance that prohibits convicted sex offenders from entering city parks." Today Ben Zion Hershberg of the Louisville Courier Journal writes:A lawsuit challenging the constitutionality of Jeffersonville's ordinance prohibiting sex offenders from entering city parks has moved a step closer to trial, with the city filing its response this week.
Larry Wilder, the city's lawyer in the case, argued in the response that questions about whether the ordinance is constitutional shouldn't be considered because the man challenging it didn't follow established procedures to get an exemption. * * *
The next step is to schedule depositions about the purpose of the ordinance and the city's experience with it, said Ken Falk, legal director of the American Civil Liberties Union of Indiana. The ACLU is handling the challenge filed on behalf of Eric Dowdell of Clarksville.
Falk said his basic argument is that "there is an inherent right we have to enter public spaces" unless there's reason to believe someone will act improperly. He also maintains that it's unreasonable "to brand someone for life" and prohibit the use of public parks based on an offense that occurred many years ago.
The Jeffersonville City Council unanimously enacted the ordinance in January. It prohibits sex offenders from entering city parks and a number of other city facilities, including the aquatic center.
But it allows sex offenders to seek an exemption from Jeffersonville City Court to take part in park activities with a close relative. Exemptions require providing the court with certain documents, including proof that probation and counseling were completed and verifying that an accompanying child is a close relative.
In the lawsuit against the ordinance filed in July, Dowdell says he attempted to get an exemption from City Court Judge Scott Lewis so he could coach his son's youth baseball team in a game on May 10. But Lewis rejected the request because Dowdell didn't provide some of the documents required by the ordinance, including proof that he had successfully completed probation and counseling for a 1996 sexual battery conviction.
Ind. Courts - Continuing story: Indiana Supreme Court only Supreme Court in Nation with No Women Members!
Legal Newsline.com reports, in a story by Tom Hermann headed "Four named finalists for Idaho Supreme Court":BOISE -- Two women are among the final four candidates to take the seat on the Idaho Supreme Court left vacant by the August retirement of Linda Copple-Trout, who was the first woman on the state's highest court when she was appointed by former Gov. Cecil Andrus in 1992.
Judges Juneal Kerrick of the 3rd District and Darla Williamson of the 4th District court were nominated by the Idaho Judicial Council along with 4th district Judge Joel Horton and Coeur d'Alene attorney Kenneth Howard to succeed Trout.
Gov. C.L. "Butch" Otter has not indicated when he will name the state's newest Supreme Court justice.
The nominations of Kerrick and Williamson eased concerns of some that Idaho would join Indiana as the only states without a woman sitting on its highest court.
Wednesday, September 12, 2007
Ind. Courts - More on the cameras in courtrooms pilot project
The ILB has quoted from several recent stories about how the cameras in trial courtrooms pilot project sponsored by the Supreme Court is failing. See this entry from August 13th, quoting from a South Bend Tribune story headed "Indiana trial court cameras shuttered," and this one from May 24th headed "Courtroom camera plan fizzles". "Doomed from the start" might be another apt title.
The headline writer at the Evansville Courier & Press titled today's story by Bryan Corbin "Camera test hasn't developed: Cameras in the courtroom: Media's exposure has been limited." A quote:Vanderburgh Superior Court Judge Wayne Trockman, whose courtroom was the first in the state to participate, said defense attorneys don't have to cite reasons for denying requests, but some have.Cole Banks, an Evansville defense attorney, is also quoted:
"The comments I've heard cited have been one, this would be disruptive; two, they don't know what effect it would have on the jury; and three, even though these are public proceedings, it makes it even more public when live footage or a photograph could be in the print media or on TV or on the radio," he said.
Trockman says a compromise would protect the defendant's right to a fair trial while allowing news-camera access.
"If the trial judge was given the authority to say, 'There aren't going to be any cameras in the courtroom for any pretrial matters on a high-profile case, and the cameras can come in when the trial starts after the jury is already seated,' then the whole procedure hasn't increased the likelihood of tainting the jury pool in a particular county or area," Trockman suggested.
"I'm an advocate that the doors of the courthouse should be open, and technology has advanced to the point where it is not nearly the distraction that it once was, and what happens in a courthouse should be transparent," Trockman added. "There are certain safeguards that should be observed, but our business should be as transparent as possible.""You have an absolute obligation to go to your client and say, 'Do you want to do this?'" Banks said. "The client will approach this from a personal perspective: 'Do I want myself in the newspaper or does my family want that?' And generally the answer is no because we're dealing ... with people who have committed crimes or done something that they don't want to put on their resume."
Banks believes attorneys are gun-shy about allowing cameras, and he questions whether most judges support cameras in court.
"I think honestly the only people advocating this are people from the press and people from the broadcast industry — and if I was from that industry, I would advocate it, too," Banks said.
With so little data to collect from the 18-month study, the broadcasters association started documenting the number of rejections. The association also sent a request to the Indiana Supreme Court, asking it to grant judges the sole authority to decide whether to grant requests so attorneys couldn't veto them. But the experiment's rules remain unchanged, he said.
Law - "Brokers welcome in Kentucky: Ruling opens state for real estate deals"
Here is a story the ILB missed last week -- the Louisville Courier Journal reported:In a sweeping ruling that frees up Kentucky real estate to the national market, U.S. District Judge Charles R. Simpson III has overturned a state law banning brokers not licensed in Kentucky from doing deals in the state.The WSJ Blog writes about the opinion this afternoon, in this entry, that concludes:
Kentucky was one of a handful of states, including New Jersey and Nebraska, with real estate "turf laws," restricting state-licensed brokers from sharing information or splitting fees with out-of-state brokers. * * *
The law that Simpson rejected as unconstitutional on Tuesday said an out-of-state broker could refer a client to a Kentucky-licensed broker, who would handle the transaction from that point. The law allowed a Kentucky broker to pay a referral fee to an out-of-state broker for passing on a client.
In ruling for plaintiffs River Oaks Management Co., a client of Marcus & Millichap, a national brokerage firm, Simpson wrote that the state prohibitions "constrain interstate commerce … isolating Kentucky from the national brokerage market."
The law was designed to protect consumers from unscrupulous or unlicensed brokers from outside Kentucky and is enforced by the five-member state Real Estate Commission, whose members are appointed by the governor to serve four-year terms.
Simpson suggested a remedy in his order. The judge wrote that Kentucky's goal "can be accomplished by requiring an out-of-state broker to partner with a Kentucky licensed broker who would oversee the transaction and be responsible for the actions of the out-of-state broker."Believe it or not, this isn’t the only Kentucky dormant commerce clause we’re following. In its upcoming term, the Supreme Court will examine the constitutionality of a Kentucky law that exempts interest on bonds issued within Kentucky while taxing interest on most non-Kentucky municipal bonds. The case has major implications for the muni bond market, as most states with an income tax have similar laws.
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
In Steve Silveus Insurance, et al v. Richard Goshert, et al, a 32-page opinion, Judge Vaidik summarizes the case as follows:The events giving rise to this appeal began in 1994, when Steve Silveus hired former business associate and longtime friend Richard L. Goshert (“Richard Goshert”) to sell crop insurance on behalf of the Steve Silveus Insurance Agency. The agreement between the parties included a provision requiring thirty days’ notice of termination and a covenant by Richard Goshert not to compete with Silveus. Silveus subsequently signed identical agreements with Richard Goshert’s sons, David Goshert and Richard D. Goshert (“Rick Goshert”). When Steve Silveus believed that the Gosherts had begun competing with him and his agency, he terminated the agreements without providing the Gosherts with thirty days’ notice. When the Gosherts separated from Silveus, Rick Goshert took back-up tapes containing certain trade secrets belonging to Silveus, and the Gosherts formed Goshert Insurance, LLC to compete with Silveus.In Michael D. Collins v. State of Indiana , a 17-page opinion, Judge Bradford writes:
These actions prompted Steve Silveus Insurance, Inc. and Silveus Insurance Group, Inc. (collectively “Silveus”) to file a lawsuit against the Gosherts alleging breach of contract, conversion, and misappropriation of trade secrets and asking for injunctive and declaratory relief and monetary damages. The Gosherts filed a counterclaim against Silveus, alleging breach of contract, unfair competition, defamation, fraud, and conversion. The trial court concluded that Silveus was the first party to breach the agreements due to its failure to provide the Gosherts with thirty days’ notice of termination. As such, the trial court awarded the Gosherts $512,170.91 on their breach of contract claim and rejected Silveus’ breach of contract claim based on the covenants not to compete, concluding that the first party to materially breach a contract is precluded from enforcing such covenants. However, the trial court ruled in favor of Silveus on its claim for misappropriation of trade secrets and awarded it equal damages of $512,170.91, thereby offsetting the Gosherts’ damage award.
Silveus appeals the trial court’s judgment and damages award as to the parties’ breach of contract claims. Silveus also appeals the trial court’s refusal to award it attorney fees on its conversion claim against the Gosherts, contending that it prevailed on that claim. The Gosherts cross-appeal the trial court’s judgment in favor of Silveus on Silveus’ claim for misappropriation of trade secrets. We affirm the judgment of the trial court in all respects.Michael D. Collins appeals from his conviction for Murder. Collins claims that the trial court abused its discretion in admitting certain out-of-court statements made to a 911 dispatcher, in admitting his videotaped statement to police, in admitting photographs of his victim’s body, and in declining his request to instruct the jury on voluntary manslaughter. We affirm.In Clinton Carden v. State of Indiana , an 8-page opinion, Judge Vaidik writes:Clinton Carden (“Carden”) appeals the revocation of his probation for entering within two blocks of a daycare center. Because the only evidence used to prove that Carden entered within two blocks of a daycare center does not have a substantial guarantee of trustworthiness and the error in admitting the evidence is fundamental, we reverse the revocation of Carden’s probation. * * *NFP civil opinions today (1):
Here, the only evidence used to revoke Carden’s probation was Jarosh’s testimony that some unidentified mapping system showed that the Barnett address was within two blocks of some unnamed daycare center. And there was no information that the daycare was even in business when Carden spent the night at the Barnett address.
The error in admitting Jarosh’s testimony is so prejudicial to Carden’s rights as to make a fair trial impossible. Without Jarosh’s testimony, there is simply no evidence to show that Carden entered within two blocks of a daycare center. We therefore reverse the revocation of Carden’s probation and sentence imposed thereon. Reversed.
Shavaughn Carlos Wilson-El v. State of Indiana, Dept. of Corrections (NFP) - "Here, the Statement of Evidence indicates that Wilson-El failed to present any evidence “as to any proof of damages and gave no monetary value to the items he claims were improperly destroyed.” An essential element of any small claim is the amount of money in controversy, and Wilson-El produced no evidence on this point. While it is true that Wilson-El, in his Notice of Claim, specified damages of $1805.70 and attached to his Notice an exhibit detailing his claimed damages, we must assume that the exhibit was never admitted at trial and that Wilson-El otherwise failed to substantiate his claimed damages. As such, the trial court properly entered judgment in favor of the defendants. Because we conclude that the fundamental deficiency in Wilson-El’s small claim is dispositive, we need not address his specific claims that the trial court erroneously entered judgment in favor of the defendants and that it abused its discretion in the admission or exclusion of various pieces of evidence."
NFP criminal opinions today (6):
Ind. Decisions - 7th Circuit decides one Indiana case today
In FreeEats.com, Inc. v. State of Indiana and Steve Carter, AG (SD Ind., Judge McKinney), an 18-page opinion, Judge Manion writes:FreeEats.com, Inc., a provider of prerecorded telephonic messages, filed in federal district court a motion for a preliminary injunction and a declaratory judgment seeking to prevent Indiana from enforcing its statute prohibiting the use of automatic dialing machines to send prerecorded messages to Indiana telephone subscribers. Three days earlier, Indiana had filed an action in an Indiana state court against one of FreeEats’ clients, the Economic Freedom Fund, and numerous thenunknown prerecorded telephonic message providers, to enforce the Indiana statute. Based on its first-filed state court action, Indiana moved the district court to abstain from exercising jurisdiction pursuant to the principles of Younger v. Harris, 401 U.S. 37 (1971), and to stay the case pending the resolution of its motion. The district court denied both of Indiana’s motions, as well as FreeEats’ motion for a preliminary injunction. Indiana and FreeEats cross-appealed. We reverse the district court’s denial of Indiana’s motion to dismiss pursuant to the Younger abstention doctrine, and vacate its denial of FreeEats’ motion for a preliminary injunction.
Courts - Pennsylvania Chief Justice Cappy stepping down
Gina Passarella of The Legal Intelligencer writes today in a lengthy report:In a stunning close to an at times tumultuous chapter in the Pennsylvania Supreme Court's history, Chief Justice Ralph J. Cappy told his colleagues in Pittsburgh Monday that he would step down from the bench by year's end, according to sources in Harrisburg and Philadelphia. * * *Here is a list of some earlier ILB entries on the earlier judges' retention battles in Pennsylvania.
There had been speculation for months, given the fallout from the pay-raise fiasco, about whether Cappy would go through another retention-election race. At least one source said many thought Cappy was waiting to see what happens to Justice Thomas G. Saylor, who is up for retention this November.
After the General Assembly voted to give legislators and judges a pay raise in 2005, Cappy became a lightning rod for voter anger because of his role in the pay-raise legislation and by publicly supporting the raise. State legislators later bowed to public pressure and repealed all the raises. However, when some judges sued to get the raise back, the matter wound up in Cappy's -- and the court's -- lap again.
Although Cappy recused himself from ruling on the case, he remained a frequently criticized figure, particularly after the court ruled the repeal was unconstitutional, giving the raises back to the judges.
"Pennsylvanians may ask if the controversy over judicial compensation played any part in my decision to retire," Cappy said in the statement. "Let me be clear: The fact is that the controversy played no part in this decision."
Cappy said his feelings on judicial compensation have not changed in the 30 years he has served on the bench. The judiciary, he said, must be an equal branch of government.
"Yet, without an army or the power of the purse, the judiciary is the weakest of the three branches, and thus must depend on the quality of the people who serve it for its strength and independence," Cappy said.
Cappy said he knows judicial salaries won't compete with the private sector, but they should be high enough to attract and retain "outstanding people as judges."
Environment - No overall data on Lake Michigan discharges
"What's dumped in the lake? ... nobody knows" is the headline to this story today in the Gary Post-Tribune, reported by Gitte Laasby. She writes:In response to Post-Tribune inquiries last week, officials from the U.S. Environmental Protection Agency and the Indiana Department of Environmental Management said a document or database showing the cumulative discharges of all facilities into Lake Michigan doesn't exist. * * *
Illinois Sen. Richard Durbin knows BP is not the only Lake Michigan polluter. So he turned to the U.S. Environmental Protection Agency for answers.
"After the BP decision, I said, 'Let's take a look, find out what's going on around that lake,'" Ill. Sen. Richard Durbin said at a Great Lakes conference last week in Chicago.
That was easier said than done. When Durbin's staff called for a list of polluters and how much they discharge, EPA officials said the office didn't have it.
"I found it hard to believe. We were told that would take some time to gather," Durbin told the Post-Tribune.
"You'd think, in the age of computers, that'd be a reasonable request."
Government officials say they simply don't compile such statistics.
"In terms of an overall number, I'm certain that does not exist," said Phillippa Cannon, EPA Region 5 spokeswoman.
"I don't think anybody does have that. Because apparently, that would be quite a complicated and time-consuming exercise to calculate it."
Cannon said about 385 plants discharge more than a million gallons of wastewater each into Lake Michigan per day. EPA keeps permits on file for those facilities, but the permit limits don't reflect actual discharges.
To get that information, EPA would need to ask the individual facilities or the states -- Indiana, Illinois, Michigan and Wisconsin, she said.
"I appreciate that these issues are technically complex, but improving the environmental health of the lake requires better information about the threats to its water quality," Durbin said in a Sept. 10 letter he sent to EPA Administrator Stephen Johnson.
Durbin asked for the number of permits in effect for Lake Michigan discharges, a list of contaminants, the level of contaminants in the lake today and trends over the past 20 years, as well as information on who releases the pollutants and which contaminants present the greatest risk to health and the environment.
Tim Eder, executive director of the Great Lakes Commission, said a database of discharges would be a good tool for following pollution trends over time.
"The overall goal of the Clean Water Act is to eliminate discharges. We have not reached the goal overall of zero discharges. It would be nice to know if we're making progress in that direction," Eder said.
Several other U.S. senators, including Richard Lugar (R-Ind.) have made similar requests for discharge information from the EPA.
Ind. Decisions - "Indiana wine lovers may still have trouble getting wines shipped to their homes"
So writes Eric Arnold in a feature in the Wine Spectator Online, headed "Indiana and Oregon Change Laws on Direct-to-Consumer Wine Shipments: States now have similar, consumer-friendly rules, but Indiana wine lovers may still have trouble getting wines shipped to their homes." Some quotes:Advocates of direct-to-consumer wine shipments recently scored two points in the win column: Oregon and Indiana. Both states now have more open direct-shipping laws, though they came about in starkly different ways and, unfortunately for Indiana wine lovers, probably face different levels of success in the long term. But for now, consumers in both states can legally receive wine shipments directly from in- and out-of-state wineries.Check here for a list of links to other ILB wine shipping entries.
Oregon's change was a simple legislative matter. * * * Indiana's new law is similar to Oregon's, but there the transition wasn't nearly as smooth. In Indiana it took a federal court ruling, handed down at the end of August.
In 2006, Indiana passed a law to bring itself into compliance with the 2005 Supreme Court decision, but like the law currently under scrutiny in Massachusetts, Indiana's rules presented a level playing field in theory rather than in practice, opponents argued. On the surface, Indiana's law appeared to allow direct-to-consumer wine shipments: Wineries could apply to the state for a direct-shipping license, had to report regularly to the state on what was sold to whom, and pay all appropriate taxes on each shipment. But there were two additional provisions in the law that federal Judge John Daniel Tinder struck down, ruling that they were discriminatory against out-of-state wineries.
The problematic provisions, explained Alexander Tanford, a professor at the Indiana University School of Law who argued in court against the law, was that "they imposed a peculiar requirement, which was that the winery, to be eligible for [a direct-shipping] permit, must not have wholesale privileges in any state." That, of course, rules out wineries in California, Washington, Oregon, since they have the right to sell direct to retailers and restaurants in their own states. Tanford called it a "Trojan Horse" provision in that "it appears to make no sense whatsoever but … had the effect of disqualifying most out-of-state wineries from eligibility for a direct-shipping permit."
The judge also struck down a provision of Indiana's direct-shipping law that required consumers to first visit a winery in person to show proof of legal drinking age before direct shipments could commence. "Again, it appears perfectly neutral on its face," said Tanford, since the law applies equally to in- and out-of-state wineries. "[But] if you live in Indiana, the economic burden of making an in-person visit to an Indiana winery is trivial, and a visit to a California or Oregon winery is substantial. [Consumers] can't possibly, as tourists, visit all 50 states."
Because the judge focused on those two particular elements of Indiana's law, the state's existing direct-shipping rules remain intact. So long as the wineries are willing to ship and the courier services such as FedEx and UPS are willing to deliver, direct wine shipments to Indiana residents can commence. Unfortunately, however, Indiana consumers can't count their chickens just yet. Since the law is written to limit individual households to 24 cases per year rather than the wineries themselves, the wineries have no way of knowing if they'll be sending, say, the 25th case to a particular Indiana resident, and therefore violating the law. It's a risk some wineries are willing to take—but not all of them.
"Right now we are not shipping but are informing our Indiana wine lovers that we need their help to fix poor legislation," said Dennis Cakebread, director of marketing for Cakebread Cellars in Napa, Calif.
Despite that remaining barrier in Indiana, the state's wine wholesalers are unhappy with the decision. "We think the judge erred," said Jim Purucker, executive director of the Wine & Spirits Wholesalers of Indiana. "We think the legislature has the right to regulate alcohol under the 21st Amendment, and it's unfortunate that the legislature tried to do their best to … treat everybody equally, but I guess that didn't satisfy the judge. There are other places around the country where the face-to-face provision has been upheld. We would hope that on appeal his decision would be overturned."
Whether such an appeal will be filed, however, remains to be seen. "We're evaluating what we're going to do. A determination hasn't been made yet," Purucker said. Part of the reason may be, as Tanford pointed out, that if the state does not appeal a decision in which it was involved, a private third party, the wholesalers' association in this case, usually lacks the grounds to do so.
They’ll also face formidable opposition. In the months leading up the court decision, a group of Indiana consumers, led by Indiana resident Allen Dale Olson, formed an advocacy group called VinSense to fight the state's shipping laws. The only other state to see a group of consumers unite in protest of its direct-shipping laws was Michigan, one of the two states at the center of the 2005 Supreme Court decision.
Ind Decisions - Challenge to Indiana judicial canons goes before 7th Circuit
This Friday, Sept. 14th at 9:30 am, oral arguments before the 7th Circuit in the case of Indiana Right Life v. Shepard (06-4333).
Access the briefs here.
The statement of the issues from the appellant's brief:1. Whether a political-interest group wishing to survey judicial candidates concerning legal rights to abortion, assisted suicide, and related issues—or a voter wishing to review the results of that survey—has standing to challenge Canons prohibiting judicial candidates from pledging, promising, or committing themselves with respect to cases or issues likely to come before them as judges when there are no candidates willing to respond to the survey who feel constrained by the Canons from doing so.An MP3 of the oral argument should be available via this link sometime Friday and thereafter. Enter "06-4333" at that time.
2. Whether, under the First Amendment standard set forth in Republican Party of Minn. v. White, 536 U.S. 765 (2002), a State may protect the due-process rights of litigants by prohibiting judges and judicial candidates from pledging, promising, or committing themselves with respect to cases or issues likely to come before them as judges.
[Thanks to Ed Feigenbaum's Indiana Daily Insight for the heads up.]
Tuesday, September 11, 2007
Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)
For publication opinions today (3):
In Robert Williams v. State of Indiana , a 10-page opinion, Chief Judge Baker writes:Appellant-defendant Robert Williams appeals his conviction for Residential Entry, a class D felony. Williams presents us with a novel issue, claiming that his conviction must be set aside because the State failed to establish that Williams “entered” the victim’s residence within the meaning of the statute because the evidence showed that he only partially leaned into the victim’s residence through a window that he had broken. The State cross-appeals, claiming that this appeal should be dismissed because Williams failed to show that the failure to file a timely notice of appeal was through no fault of his own and that he was diligent in pursing his right to appeal.In Ronald Mayes v. Second Injury Fund, an 11-page opinion, Chief Judge Baker writes:
While we conclude that the trial court properly granted Williams’s motion to file a belated notice of appeal, we also find that the evidence is sufficient to support the conviction. Thus, we affirm the judgment of the trial court. * * *
Williams’s proposed rule of complete entry would lead to the absurd result that an individual could avoid prosecution for residential entry by simply ensuring that a foot or hand remained outside the threshold of the residence. Such a rule is untenable.
It is axiomatic that entering a home violates the occupant’s possessory interest in the building and presents the possibility of a situation that may be dangerous to personal safety. Just as the offense of burglary is designed to deter activity leading to such situations, so does the crime of residential entry. Put another way, a partial entry into a home creates the same situation that the crime of residential entry is designed to deter in the same manner as a complete entry. Therefore, partial entry falls within the scope of residential entry. Thus, we conclude that the State produced sufficient evidence to sustain Williams’s conviction.Appellant-petitioner Ronald Mayes appeals the Indiana Worker’s Compensation Board’s (the Board) denial of his petition for payment from Indiana’s Second Injury Fund1 (the Second Injury Fund). Specifically, Mayes argues that the Board erred by denying him compensation from the Second Injury Fund because he met the requirements for compensation and that his settlement with a third-party tortfeasor does not bar his recovery as a matter of law. Concluding that Mayes has failed to prove that he is entitled to compensation from the Second Injury Fund, we affirm the Board’s decision. * * *In Eric M. Briggs v. State of Indiana , a 13-page 2-1 opinion with a dissent beginning on p. 8, Judge Crone writes:
The effect of a third-party settlement on an employee’s petition for compensation from the Second Injury Fund is an issue of first impression. However, as previously noted, the burden is on Mayes to prove that he is entitled to compensation for the Second Injury Fund. * * * [E]ven if we assume for the sake of the argument that Mayes was entitled to compensation from the Second Injury Fund in spite of the third-party settlement, he still must prove that such compensation would not result in double recovery. * * *
Here, Mayes’s settlement with Federal Express remains “confidential” and is not included in the record. * * *
Based on the limited information in the record, we cannot discern the amount of compensation Mayes obtained from the third-party settlement. Because it is his burden to prove that he is entitled to compensation from the Second Injury Fund and we cannot conclude that he has not already been compensated, Mayes has failed to carry his burden. In sum, even if we assume for the sake of the argument that Mayes was entitled to compensation from the Second Injury Fund in spite of the third-party settlement, he has failed to prove that further compensation would not result in double recovery. Therefore, we cannot conclude that the Board erred by denying his petition.Eric M. Briggs appeals his conviction for class A misdemeanor resisting law enforcement. We reverse.NFP civil opinions today (2):
The issue is whether the State proved beyond a reasonable doubt that the law enforcement officers who arrested Briggs were lawfully engaged in the execution of their duties. * * *
Here, the officers detained Briggs based solely on a hunch that he could have a weapon in his bedroom. This amounted to an unreasonable seizure in violation of the Fourth Amendment. See State v. Atkins, 834 N.E.2d 1028, 1033 (Ind. Ct. App. 2005) (“Officer safety is always a legitimate concern, but standing alone officer safety cannot form the basis for a valid investigatory stop.”), trans. denied. Therefore, we conclude that the officers were not lawfully engaged in the execution of their duties and reverse Briggs’s resisting law enforcement conviction for insufficient evidence. Reversed.
BAKER, C. J., concurs. FRIEDLANDER, J., dissents with separate opinion. [which begins] I disagree that this was a consensual encounter, and therefore respectfully dissent from the majority’s reversal of the conviction on that basis.
Jane Ann Hoium v. David Hoium (NFP) - "Appellant-petitioner Jane Ann Hoium appeals the trial court’s order refusing to require appellee-respondent David Michael Hoium to reimburse Jane for expenses that she incurred in paying for the parties’ children’s higher education retroactive to a date prior to the filing of the petition for educational expenses." Affirmed.
In Roger & Shannon Willett v. William & Joyce Long (NFP), a 10-page opinion, Chief Judge Baker writes:Appellants-plaintiffs Roger J. Willett and Shannon Willett (collectively, the Willetts) appeal the trial court’s judgment in favor of William E. Long and Joyce Long (collectively, the Longs) with regard to a prescriptive easement on certain real property in Fountain County. Specifically, the Willetts argue that the Longs failed to satisfy the requirements for adverse possession to gain an easement for their septic system that encroached on the property. Moreover, the Willetts claim that only a license was created for the Longs’ permissive use of the property and that the license was revocable without any remuneration due to the Longs. Concluding that the trial court properly determined that the Longs satisfied the elements of adverse possession with regard to the establishment of a prescriptive easement, we affirm.NFP criminal opinions today (13):
Ind. Courts - Update on the case of the mother who took the court recordsA woman jailed for refusing to return a 13-volume court record of her son's 2006 murder trial has rejected a judge's impassioned plea to turn them over.
"Give them back to the court, ma'am," Allen Superior Court Judge Fran Gull told Adela Favela, 58, on Monday during a hearing on the contempt of court charges that Favela faces.
Tuesday marked the 15th day that Favela had been behind bars over her refusal to produce the massive official record of her son's trial. The file includes transcripts of Daniel Favela's hearings, the trial and actual physical pieces of evidence related to the case.
Gull refuses to release Favela until she returns the documents, which were given this summer to Favela, who has claimed she paid more than $4,000 for them.
During Monday's hearing, Favela's defense attorney, Phil Terrill, asked the judge to release her for 72 hours so she could retrieve the file. Favela's 17-year-old daughter, Maria Favela, said she has been unable to find the files in her mother's home.
Maria Favela said after the hearing that she believed her mother might be trying to protect her brother by concealing the files.
Gull denied Favela's request to leave jail to find the files out of concern that she might destroy documents.
"She knows where they're at, and she won't even tell her daughter," Gull said. "This is so, so simple ... Mrs. Favela, tell Mr. Terrill where the transcript is so I can let you go."
Speaking through a translator, Adela Favela said she paid for the files, signing pieces of paper that said the documents would be hers.
Law - "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"
Cindy Skrzycki, who writes the weekly column, The Regulators, for the Washington Post, writes today about:the Bush administration's increasing use of federal health and safety regulations in defense of manufacturers trying to fend off multimillion-dollar liability claims from consumers in state courts.This is not, of course, the first time ILB readers have heard of these preemption controversies. See, for example, this ILB entry from Nov. 25, 2006, and this one from Feb. 19, 2006, headed "Federal agencies try to limit suits in state courts."
The fine print of a 2006 Food and Drug Administration rule on prescription labeling that preempts, or overrides, state laws is proving to be a powerful weapon in the courtroom at a time when Merck is fighting thousands of lawsuits from consumers claiming they were harmed by its painkiller Vioxx. * * *
Since 2005, federal agencies, including the Consumer Product Safety Commission, the National Highway Traffic Safety Administration and the Department of Homeland Security, have issued more than a dozen rules that stress the primacy of federal law. * * *
The Senate Judiciary Committee has scheduled a hearing for tomorrow: "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"
"If Congress does not act, the Bush administration's escalating use of stealth preemption will deprive consumers of their right to hold negligent corporations accountable for injuries caused by defective products while these same corporations continue to increase their bottom line," said Gerie Voss, regulatory counsel for the American Association for Justice, a trade group in Washington that represents 52,000 trial lawyers. * * *
"The authority for preemption is constitutionally derived," said Sean Kevelighan, an OMB spokesman. "Decisions about whether federal and state laws conflict, and whether particular rules should preempt state laws, are made on a case-by-case basis by agencies consistent with their missions and relevant facts."
The trend started in 2002 when the FDA began filing briefs and statements in drug and medical-device cases asserting that the agency prevails when there is a conflict over a rule.
Since then, the agency has issued numerous rules that preempt state law, including the one last year on drug labeling. An Aug. 27 proposal concerning labeling for sunscreen says it would have "a preemptive effect on state law."
Ind. Law - "Who will be the new CEO of Baker & Daniels?"
"Stakes high for law firm's CEO choice" is the heading of John Ketzenberger's column today in the business section of the Indianapolis Star. A quote:Six contenders have emerged since Brian Burke shocked the legal community last month with plans to leave the top job a year earlier than scheduled. The firm expects to select Burke's successor at the Oct. 13 annual partners meeting, and there's no shortage of interest in the job or who will get it.
Ind. Courts - Still more on: Indiana Supreme Court only Supreme Court in Nation with No Women Members!
Updating this ILB entry from August 29th, which reported concerns in Idaho that their state might join Indiana, which is currently the only state in the nation with no women members:
Yesterday, according to this story in the Louisville Courier Journal, a second woman was appointed to the Kentucky Supreme Court:Lisabeth Abramson becomes the second woman on the seven-member court, joining Justice Mary Noble of Lexington. Abramson drew praise yesterday for her judicial skill from colleagues.In Missouri Saturday, where the "Missouri plan" has been under attack, the St. Louis Post Dispatch reported:JEFFERSON CITY — Gov. Matt Blunt picked Court of Appeals Judge Patricia Breckenridge to be the newest Supreme Court judge on Friday, offering a restrained endorsement that hinted at his dissatisfaction with the options before him. * * *
Her appointment gives the seven-member high court three women judges for the first time. Breckenridge will join Chief Justice Laura Denvir Stith and Judge Mary Rhodes Russell.
Doreen Dodson, a former president of the Missouri Bar, said Friday that women constitute more than half the population of the state and more than half the students at law schools. "It's a great thing that we have moved beyond a woman's slot" on the court, she said.
Monday, September 10, 2007
Ind. Courts - Staff attorney and judicial law clerk opportunities at the Court of Appeals
Just posted, a number of attorney opportunities with the Indiana Court of Appeals.
Ind. Decisions - One today from the Supreme Court
Regunal R. Dowell v. State of Indiana is a 4-page Per Curiam opinion, with the Court writing:We grant transfer to address the Court of Appeals’ resolution of a conflict between the trial court’s oral pronouncement of sentence and the written sentencing order. * * *
We grant transfer to apply McElroy. * * * We agree with the Court of Appeals that the trial court’s intent was to impose the sentence recommended in the pre-sentence report, which called for an executed three-year sentence on the criminal confinement conviction.
Accordingly, we grant transfer of jurisdiction, address the conflict between the oral pronouncement of sentence and the written sentencing order, affirm the 43-year executed sentence as stated in the trial court’s written sentencing order, and summarily affirm the remaining portions of the Court of Appeals opinion.
Courts - Protecting the identiy of innocents in appellate court opinions
"No Names, Please: The Virtual Victimization of Children, Crime Victims, the Mentally Ill, and Others in Appellate Court Opinions" is the title to an upcoming law journal article by Indiana University School of Law-Indianapolis professor Joel M. Schumm, to be published in the Georgia Law Review in January. He writes "Although it is national in scope, it cites quite a bit of Indiana authority, including Atkins." The abstract:Google and other search engines allow anyone with Internet access the ability to obtain a wealth of information about their neighbors, acquaintances, employees, or even adversaries. Although easy access to information is generally a positive development, the easy discovery of highly personal and stigmatizing information often is not. It is particularly disconcerting when the information is being purveyed by appellate courts around the nation when they post hundreds of opinions to court websites every day.Access it here, now, from SSRN.
This Article surveys the use of initials and pseudonyms in appellate opinions for victims of crime, children, the mentally ill, jurors, and others. It discusses the relatively few and sometimes inconsistent rules or procedures applied by courts in deciding whose identities will be protected and whose will be exposed in very public opinions that will follow individuals for their lifetimes. It also offers four possible approaches to reform and concludes with a call for courts to be purposeful in adopting rules and procedures that provide meaningful protection, whatever form it might take.
Law - Troubles continue for law school founded in 2000 by Domino’s Pizza founder Tom MonaghanThe recent turmoil at Ave Maria School of Law, which has led to exits of several professors and dozens of students, may carry another big price: revocation of its accreditation. * * *
Few law schools have ever been stripped of their accreditation. Western State University College of Law in Orange County, Calif., lost its provisional accreditation in 2004 due to poor academic results but regained it a year later.
Ind. Decisions - Upcoming Supreme Court oral arguments this week
Upcoming oral arguments before the Supreme Court this Thursday, Sept. 13th:
9:00:00 AM - American Fire & Cas. Co. v. Thomas Roller - In this insurance coverage dispute, the insurer moved for summary judgment, contending the policy does not cover claims based on faulty workmanship. The Hamilton Superior Court denied the motion. The Court of Appeals affirmed, holding factual disputes regarding the insurer's alleged bad faith precluded summary judgment. See American Fire & Casualty Co. v. Roller, 2007 WL 1139422 (Ind. Ct. App. 2007), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. (See Feb. 8., 2007 ILB COA summary here.)
9:45:00 AM - Rebecca Shaw v. LDC Enterprises, Inc. - The parents of a minor involved in a fatal one-car accident in Indiana filed a complaint against an Illinois restaurant, alleging restaurant employees served their daughter alcohol. The restaurant moved to dismiss the common law and statutory nuisance claims, contending Illinois substantive law governed the claims. The Fountain Circuit Court granted the motion. The Court of Appeals reversed, concluding that under choice of law principles, Indiana substantive law applied and the trial court erred in dismissing the common law and statutory nuisance claims. Shaw v. LDC Enterprises, Inc., 863 N.E.2d 424 (Ind. Ct. App. 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. (See March 30, 2007 ILB COA summary here.)
Webcasts will be available here.
Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Ralph Mitchell v. Lisa Dawn Mitchell (NFP) - "We note that the trial court stated that it was necessary to impute income to Husband because Husband failed to produce adequate and complete evidence of his income. In fact, Husband did not submit a child support worksheet. Since 1989, the Indiana Child Support Guidelines have required, in all cases in which the court is requested to order support, that both parents complete and sign, under penalty of perjury, a child support worksheet to be filed with the court verifying the parents’ incomes. * * *
"Here, although the trial court purported to adopt Wife’s child support worksheet, the evidence does not support a finding that Husband earns $900 a week and Husband did not submit his own worksheet. Accordingly, we reverse and remand for the trial court to obtain Husband’s verified child support worksheet and recalculate Husband’s child support."
NFP criminal opinions today (5):
Courts - "Supreme Court Memo: New Focus on the Effects of Life Tenure"
Linda Greenhouse of the NY Times has an interesting column today on life tenure. Some quotes:But it is beyond debate that interest in re-examining the wisdom of the Constitution’s grant of life tenure to Supreme Court justices, a lively topic at the time of Chief Justice Rehnquist’s illness and death, has continued to grow.
The interest, admittedly, remains largely limited to the corridors of law schools and university political science departments. No member of Congress or candidate for office has taken up the call. But the range of scholars across the ideological spectrum who are pushing or endorsing various proposals for restricting justices’ tenure is impressive, numbering in the dozens of leading conservatives and liberals.
In fact, with the Supreme Court itself sharply polarized, one of the few things that this array of experts might be able to agree on three weeks before the start of the new term is that life tenure may no longer be what Alexander Hamilton called “the best expedient which can be devised in any government” to protect judicial independence.
One reason for the growing consensus is that the practical meaning of life tenure has changed dramatically in recent years. Between 1789 and 1970, according to statistics in an article by Profs. Steven G. Calabresi and James Lindgren of Northwestern University Law School, Supreme Court justices served an average of just under 15 years, with vacancies on the court occurring about once every 2 years.
Since 1970, justices have served nearly twice as long, more than 26 years, with the average interval between vacancies stretching to more than 3 years. (Life tenure today, of course, has a dimension that would surprise the Constitution’s framers; since 1900, the average life expectancy, now 77 years, has increased by 30 years.)
Environment - "Twisting facts to defy the rules: Dairy, BP get permits despite science indicating environmental threats"
That is the heading to an interesting column today in the Fort Wayne Journal Gazette, written by Bill Grant , a retired administrator with the LaGrange County Health Department. Here is a quote:In LaGrange County, the Daniels’ administration approved a permit for a 3,600-head dairy to be located in an area where the groundwater is extremely sensitive to contamination. Most places measure groundwater flow in inches per year, but in the area of the dairy, flow is measured in feet per day . That indicates how permeable the soil is.
To approve a permit, the administration ignored the best science available on the groundwater. LaGrange County, in cooperation with the Indiana Geological Survey, completed the most extensive scientific study ever completed on Indiana groundwater, a study that took more than five years to complete. The facts and science say a large dairy operation should not be built in this area because groundwater contamination is almost impossible to prevent. In fact, IDEM’s own regulation indicates a permit should not be issued. The facts and science dictated a decision contrary to what the administration wanted, so it decided to ignore the facts and science.
A lawyer from the Indiana Farm Bureau in Indianapolis attended a meeting of county residents who were discussing the issues presented by very large animal operations. We were informed that it would be illegal for local citizens or governments to institute any regulation, environmental or otherwise, dealing with such operations. It was made clear that such jurisdiction was IDEM’s alone, and any attempt by a local entity to implement such regulations would immediately trigger a lawsuit by IDEM.
Ind. Decisions - Still more on federal Judge Tinder's wine shipping decision
Another editorial today lauding Judge Tinder's ruling in the wine shipping case, this time from the Indianapolis Star, headed "Decision to end ban goes down like fine wine."
For the ruling and background, see this ILB entry from August 29th.
[More] "The Wine Guy" in Zionsville gives his take on Judge Tinder's ruling here, concluding:I'm no lawyer, but it appears that until the wholesaler's lobby comes up with another trick, Tinder's order stops the state from enforcing the rules he declared to be unconstitutional. So, now you do not have to appear in person at the winery to place your first order and you now can order wines from wineries that are already distributed in Indiana. Kind of makes you glad we have that third branch of government... one that lobbyists can't influence!
Courts - "How Should a Federal Appellate Court Decide Whether an Appeal Should Be Orally Argued?"
Howard Bashman of How Appealing has an interesting article today in Law.com asking "How Should a Federal Appellate Court Decide Whether an Appeal Should Be Orally Argued?" It begins:The crush of an incredibly burdensome caseload has made oral argument a scarce commodity in many federal appellate courts. Throughout most of the country, long gone are the days where federal appellate courts will schedule each and every appeal in which both sides are represented by counsel for oral argument unless the attorneys convince the court that oral argument is unnecessary.
Today, only a minority of the federal appellate courts leave it up to the lawyers to decide whether an appeal should be argued.
Ind. Courts - Who will replace Susan Brooks as US Attorney?Questions linger about who might replace Susan Brooks after she leaves her post as U.S. Attorney for the Southern District of Indiana next month to begin a new job at Ivy Tech Community College. * * *
Brooks, 47, was appointed by President George W. Bush in 2001. As head of the Southern District of Indiana, she has supervised two-thirds of the state and a staff of 29 assistant U.S. attorneys.
Her appointment would have expired at the end of Bush's second term, but she assumes her new duties for Ivy Tech on Oct. 1.
Tim Morrison, first assistant U.S. attorney, explained the process for filling Brooks' position.
He said it took 10 months for Brooks to be appointed by Bush and confirmed by the Senate.
"But she walks out the door in one month," he said. "So what could happen is the Department of Justice could appoint an interim U.S. attorney for a period of 120 days. Following the 120 days, the district court judges in that district can select a replacement until the president appoints a new one."
In 2000, Morrison was appointed by then-U.S. Attorney General Janet Reno to replace Judith Stewart, who left her post to become a judge in Brown County, Ind.
Morrison served the 120-day period, then was appointed by the district judges and remained in the position until Brooks was appointed and confirmed.
Sunday, September 09, 2007
Courts - More on "McDonald's sanctioned in strip-search case"
Updating this ILB entry from Friday, Andrew Wolfson has a very long story today in the Louisville Courier Journal headed "$200 million strip-search case to begin: Teen worker says McDonald's is to blame; company disagrees." It is accompanied by a graphic locating previous strip-search hoaxes at McDonald's on a map of the United States. Number 20 took place March 3, 2001 in Linton, IN.
Here are a few quotes from the story today:Three years ago, in a case that eventually drew national attention to Bullitt County, Ky., an 18-year-old high school senior making $6.35 an hour at McDonald's was subject to the cruelest of hoaxes -- accused by a caller of theft, then detained, stripped and sexually humiliated for hours in the restaurant office.
Two others, also duped by the hoax, were convicted of crimes, though a jury acquitted the man police charged with orchestrating the entire thing.
Now, a jury will decide what price -- if any -- the $59 billion McDonald's Corp. should pay for Louise Ogborn's degrading ordeal.
In a fiercely litigated lawsuit scheduled to go to trial tomorrow, Ogborn will ask a Bullitt Circuit Court jury to make the company pay her more than $200 million -- including $100 million in punitive damages -- for failing to warn her and other employees about a hoax caller who had already struck 32 other McDonald's stores and as many as 130 other fast-food restaurants and retail stores across the nation.
It is believed to be the first such suit to go to trial; the rest were settled.
McDonald's says it's not to blame and that the real culprits include the caller -- and Ogborn herself.
The trial is expected to take four weeks. Stacked one atop the other, the pleadings in the case -- 815 documents in 35 volumes -- would stand 10 feet tall, twice the height of Ogborn herself.
"It is an interesting collision of forces going to battle over a bizarre set of facts," said William McMurry, the Louisville lawyer who helped win a $25.7 million settlement in sex-abuse cases against the Archdiocese of Louisville.
"There is no middle ground," he said. "It will be either a zero verdict for the plaintiff or a gazillion dollars. I have never seen as sensational a case as this, with so much to lose on both sides."
Lawyers have taken 57 depositions from more than 40 witnesses, and each side lists more than 80 people it might call to the stand.
McDonald's has retained eight expert witnesses in fields as diverse as psychiatry, probability, corporate security and human behavior, and it will employ two major law firms in its defense.
The principal antagonists are two of Kentucky's leading trial attorneys, Ann Oldfather for Ogborn and W.R. "Pat" Patterson for McDonald's.Ogborn, claiming she is wracked by fear and depression, is seeking compensation for her lost enjoyment of life and an expected lifetime of therapy and medication costs. A psychiatrist, hired last year by her attorneys, said her symptoms were worse than the typical rape victim's.
Ind. Decisions - "Supreme Court refuses to reconsider lower court opinion that overturned manslaughter conviction"
The Anderson Herald Bulletin reported yesterday evening, in a story by Shawn McGrath:Three months after the Indiana Court of Appeals threw out Ralph Barnett’s voluntary manslaughter conviction, he was officially released from custody on Friday.The Supreme Court's "transfer denied" determination may be found in Friday's transfer list, on page 3, second from the end. For background, start with this May 30th ILB entry, headed "More on yesterday's CA decision on murder charge filed 12 years later."
Ralph Barnett, 55, Indianapolis, is a free man after the Indiana Supreme Court declined to reconsider the Appeals Court’s opinion, which overturned his conviction in May.
Barnett was sentenced to 30 additional years in prison on Class A felony voluntary manslaughter in March 2006 for stabbing to death fellow Pendleton Correctional Facility inmate 29-year-old Ricky L. Combs in January 1993. Originally charged with murder, a jury found him guilty of the lesser charge.
Anderson attorney Bryan Williams, who represented Barnett on the murder count, said he’s pleased the Supreme Court kept in place the lower court’s decision.
“Very,” Williams said late Friday, the day he learned of the Supreme Court’s decision. “For Ralph, that is what I’m happy about.”
Barnett, who is deaf, has been in declining health. He suffered a heart attack, stroke and diabetes while incarcerated, his attorney said.
The appeals court said in its opinion that the state erred in waiting 12 years to charge Barnett, effectively denying him his right to a fair trial because some evidence couldn’t be located and many witnesses were unavailable.
“It really was a due process issue, where, do to the passage of time, he couldn’t get a fair trial and the court of appeals recognized that,” Williams said. “It’s over. The Indiana Supreme Court was the last resort.
Saturday, September 08, 2007
Ind. Courts - "Ex-Nappanee attorney sentenced"
John Kline reports in the Goshen News, in a story that begins:Charles Davis Jr., Nappanee, was sentenced Thursday to four years in the Indiana Department of Corrections on two felony counts of securities-related violations.
Davis was sentenced in Elkhart County Superior Court III by Judge George W. Biddlecome.
Thursday’s sentencing serves as the second hit to Davis’ reputation in several years. In 2001, Davis had his attorney’s license suspended by the Indiana Bar Association in an unrelated case.
According to Deputy Prosecutor Charles Wicks, Davis’ current case originated in October 2006 when he was charged with 18 counts of various securities-related violations in connection with the failed creation of a comprehensive Internet-based background search program.
Courts - Continuing saga of Kentucky fen-phen lawyers ordered to jail
"Court won't hear diet-drug lawyers' appeal: Bond hearing set for Monday" is the headline to Andrew Wolfson's story today in the Louisville Courier Journal. It begins:The three suspended lawyers accused of fraud in Kentucky's fen-phen case will be staying behind bars for a while longer.See background entries list here.
The 6th U.S. Circuit Court of Appeals has decided not to hear their appeal of an order last month in which they were jailed pending their trial in January.
A three-judge panel sent the appeal back to U.S. District Judge William O. Bertelsman, who last month granted Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. a continuance in their trial but ordered them confined in the meantime, saying they posed a risk to flee or transfer abroad the $46 million they are accused of stealing from their clients in the $200 million diet-drug settlement.
The appeals court ordered Bertelsman to hold a bond hearing within a week, and Bertelsman has set one for 9:30 a.m. Monday.
In an order issued yesterday, Bertelsman found that there is a "serious risk that the defendants will obstruct or attempt to obstruct justice" by fraudulently transferring the missing money.
That finding means the defendants will have the burden of proving they don't pose such a risk and should be released on bond.
Law - Perfect storm hits real estate industry
A story in Friday's NY Times, reported by Katie Hafner, reports:“It’s a perfect storm for real estate agents,” said Glenn Kelman, chief executive of Redfin, an online brokerage in Seattle. “Not only have unprecedented numbers flocked to the profession, but at the same time you have the mortgage meltdown, the housing bubble bursting, and online competitors attacking the commission structure.”For background, start with this ILB entry from May 11, 2007.
Law - More on: Attorney who represented Seattle parents in a race-based lawsuit aims to recover his pro bono legal costs
More on this ILB entry from July 2, 2007, which included this quote from the Seattle Post-Intelligencer:Seattle Public Schools, already stung from losing its long-running legal fight over voluntary desegregation measures, now faces a new trial: paying the seven-figure legal fees of the parents who sued the district.The Seattle Times reported Sept. 6th:
Just one day after the U.S. Supreme Court ruled the district cannot use a racial tiebreaker in determining school assignments, the parents' "pro bono" attorney indicated he will try to recover legal costs he estimates will be seven figures.Technically, the parents group still has to get a U.S. district judge to declare them the "prevailing party," said Seattle Public Schools attorney Shannon McMinimee.For background, see these ILB entries.
McMinimee says it's "disingenuous" for the law firm, Davis Wright Tremaine, to go after money when the firm took the case pro bono. But firm spokesman Mark Usellis said "pro bono" means their clients don't have to pay.
"The thing that's really important to us in a civil-rights case is that Congress specifically and explicitly wrote into the law that if the government is found to have violated citizens' civil rights, then the prevailing party should seek fee recovery," he said.
Most governments can argue, as Seattle Public Schools is, that they don't have much money. But going after the fees helps deter other government bodies from violating civil rights, Usellis said.
The parents who sued the district in 2000 did not seek damages but asked the court to force Seattle to stop using the race-based tiebreaker that prevented their children, who are white, from attending Ballard High School. The district did, in 2002, but continued to fight for the policy in court, eventually making it all the way to the U.S. Supreme Court last year.
The 9th U.S. Circuit Court of Appeals will decide whether to award the fees to the firm. If the firm wins, the fees likely wouldn't be covered by the district's insurance carrier, McMinimee said. So the money would have to come out of the district's $490 million general-fund budget.
Courts - Attorney sanctioned for plagiarizing material for briefs and by unreasonably billing his client for preparation of the briefs
Well, this is an attention getter. This order from an Iowa bankruptcy court, dated August 21, 2007 includes the following:After reading both briefs filed by Mr. Cannon, and concluding that both contained an extraordinary amount of research, the Court directed Mr. Cannon to certify the author or authors of the two briefs. On December 22, 2006, Mr. Cannon certified that while he had prepared both briefs, he had "relied heavily" on an article written by others. The article upon which Mr. Cannon relied is Why Professionals Must Be Interested in "Disinterestedness" Under the Bankruptcy Code, May 2005, ("the Article") by William H. Schrag and Mark C. Haut, two attorneys of the New York office of Morgan, Lewis & Bockius LLP. The Court located this article on the internet. Mr. Cannon fails to acknowledge or cite this article in either brief.Thanks to The Volokh Conspiracy for its entry, check out the comments following the entry.
Seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article. Mr. Cannon added some introductory material, a one-page section titled "Argument," and a conclusion. In between the introduction and argument, most of the first twenty pages of the Article are reproduced verbatim. The twenty pages Mr. Cannon reproduced appear as they did in the Article, with slight variations in formatting of the type that result when material is copied from one electronic document into another. * * *
While Mr. Cannon's post-hearing brief contains more original material than his pre-hearing brief, it still continues to borrow heavily from the Article. Mr. Cannon wrote much of the brief's text, but reproduced string citations from the Article for supporting authority. The citations he selected are presented in the same order in which they appear in the Article, with the same parenthetical explanations. Aside from these reproduced citations, Mr. Cannon did not add any case law in support of his position. * * *
Mr. Cannon violated the Iowa Rules of Professional Conduct by plagiarizing material for briefs and by unreasonably billing his client for preparation of the briefs. These violations are sanctionable misconduct under Local Rule 83.2(g). Given the egregiousness of Mr. Cannon's conduct, the Court has determined that the appropriate sanctions include 1) completion of a law school course in professional responsibility and 2) disgorgement of fees charged for preparing the plagiarized briefs. While the sanctions imposed by this Court are not de minimus, they are not as severe as ordered in many Courts. This Court, however, has only the limited jurisdiction allowed by informal sanctions. The Court also recognizes that the U.S. District Court has authority to commence a formal procedure and the Iowa Attorney Disciplinary Board will also review this conduct. As such, the sanctions imposed are adequate at this time.
For background, see this ILB entry from May 27, 2007, headed "'Is It OK for Lawyers to Copy Complaints?' And what about copyrighting briefs?"
Courts - California Chief Judge creates commission to study possible changes in state's judicial election laws
From a story by Bob Egelko in the San Francisco Chronicle that begins:California's chief justice, citing the increasing influence of money and partisan politics on judicial campaigns elsewhere, has created a commission to study possible changes in the state's judicial election laws.More, from a story in the Inland Press Enterprise:
The study topics will include the timing and financing of elections, as well as campaign ethics in the wake of a U.S. Supreme Court ruling loosening restrictions on judges' public comments.
Members of the new Commission for Impartial Courts include judges, lawyers, government and business officials and public representatives. Among the proposals it may forward to the Legislature, Ronald George said, are taxpayer financing of judicial elections and changes in election schedules for appellate and Supreme Court judges, who now must face the voters at the same time as the first governor's election after their appointment.
George announced the formation of the commission this week in response to what he described as "developments in other states that have changed the tone, tenor and cost of judicial elections."
He pointed to recent multimillion-dollar campaigns largely funded by interest groups for state Supreme Court seats in Ohio, Wisconsin and Washington state, and partisan battles over top judicial posts in Texas, where all judges are elected by political party.George announced creation of the commission Tuesday.
Its purpose, he said in a statement, was to ensure judicial impartiality and accountability in the face of developments in other states "that have changed the tone, tenor and cost of judicial elections."
Judges have traditionally run restrained, low-budget campaigns.
The code of ethics called judicial canons prevents them from making statements or promises that could be seen as taking sides in issues that might come before them.
But recently judicial elections have become more strident, and spending, especially in television advertising, has increased.
"2006 was the most threatening year yet to the fairness of America's state courts," concluded a report co-authored by the Brennan Center for Justice at the New York University School of Law.
Candidates for an Alabama Supreme Court seat spent a combined $13.4 million in their campaigns.
In Missouri, a trial court judge was defeated when out-of-state interests put $175,000 into the campaign against him, the report said.
Ind. Courts - "New role seen for court referee"BROWNSTOWN — Jackson County’s judges hope to retain funding for a part-time referee at least through next year.
For the past decade, the courts have made use of a part-time juvenile referee to handle youth-related court matters.
But those issues will be handled by the county’s second superior court when it comes online Jan. 1, 2008. Indiana Chief Justice Randall T. Shepard has ordered that the county’s new court handle family matters such as dissolutions, child custody and visitation issues.
“The idea is to convert that from the juvenile referee to a countywide referee,” Jackson Circuit Judge Bill Vance said this morning. “If we lose that position, we only gain a half position with the third court.”
Vance and Jackson Superior Judge Bruce Markel III hope to create a role where the referee could serve all three courts, spending perhaps four mornings or four afternoons a week handling matters across the jurisdictions, Vance said.
“They could help get the new court started and the influx of cases it’s going to have but also help reduce the backlog of Superior Court with its traffic cases and small claims, and in Circuit Court help handle initial hearings, preliminary motions and that sort of thing,” Vance said. “We’re making real headway of getting the backlog of cases under control. We’d hate to lose that momentum.” * * *
A referee differs from a magistrate in some basic ways. Magistrates can issue orders and are created by the Indiana General Assembly. Referees can issue recommendations for judges to consider and are created by local order of a judge. Those orders are reviewed for approval by the state supreme court.
Ind. Courts - Applications open for the Jackson County’s new superior court judge
The Seymour Tribune reports:The governor’s office will start accepting applications for the county’s new superior court judge on Monday. The application period closes Sept. 21, Brad Rateike of the governor’s office said Thursday.
Interviews will take place in October once the governor’s staff reviews the applications, he said.
“There is no timeframe on making the appointment, but we expect there to be plenty of time for whoever is appointed to transition,” Rateike added. Notice of the application period was to be posted starting today. No early applications have been received, Rateike said.
The court must be up and running by Jan. 1, 2008, according to this year’s state budget law, which included language creating the court, the county’s second superior court and third court overall.
Following an order by Chief Justice Randall T. Shepard, it will serve as a family court, encompassing dissolutions of marriage, child custody and other related issues.
So who’s going to apply?
Most likely Republicans, but Democrats can do so as well.
Anita Samuel, assistant general counsel for Daniels, said Thursday the process is open to anyone interested, regardless of their party affiliation. She added the Republican governor has appointed some Democratic applicants as judges, even when party affiliation wasn’t a requirement as they can be in Marion County.
Law - Gun laws in court
"D.C. Case Could Shape Gun Laws: Supreme Court Is Asked to Uphold Ban" is the headline to a lengthy Sept. 5th story by Robert Barnes and David Nakamura in the Washington Post. Some quotes:The District asked the Supreme Court yesterday to save the city's ban on handgun ownership, saying an appeals court's decision overturning the prohibition "drastically departs from the mainstream of American jurisprudence."And what of the Indiana's Gary-based gun suit? Here are some quotes from a news release in a Dec. 23, 2003 ILB entry (which contains a lot of valuable information):
If the court agrees to take the case, as most legal experts believe is likely, it could lead to a historic decision sometime next year on whether the Second Amendment to the Constitution protects an individual's right to own a gun or simply imparts a collective, civic right related to maintaining state militias.
It is a question that has been hotly debated in the nation's courts and legislatures for years, and a decision by the Supreme Court to settle the issue could carry broad implications for local governments and thrust gun control as an issue into the 2008 elections.
The District argues in its petition that its law -- one of the strictest in the nation -- should be upheld regardless of whether the court sides with the individualist or collective legal theory. * * *
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 2 to 1 in March to throw out the District's law, which prohibits handgun ownership except by active and retired law enforcement officers. It also struck down a law requiring that rifles and shotguns kept in private homes be unloaded and disassembled or bound by trigger locks.
The court ruled that the Second Amendment "protects an individual right to keep and bear arms" and that "once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."
The court acknowledged that its decision was groundbreaking; only one other federal appeals court -- that of the 5th Circuit, based in New Orleans -- has recognized an individual's right to gun ownership, and it nevertheless upheld the federal gun-control law at issue. Nine other circuits around the country have endorsed the collective right.
That split is what makes it likely that the justices will accept the case. The lawyers who brought the case on behalf of six D.C. residents who wanted to overturn the ban also want the court to take the case.In an important legal victory against the gun industry, the Indiana Supreme Court today unanimously ruled that the city of Gary may proceed with its lawsuit against gun manufacturers and sellers. The court reversed a lower court ruling dismissing the city's claims and rejected virtually every argument made by the industry against the suit.Here is a link to the Supreme Court's Dec. 23, 2003 opinion in Gary v. Smith & Wesson.
This ruling comes as Congress is considering legislation to ban civil suits by gun violence victims and cities and immunize negligent gun sellers. Currently, 44 states allow suits by victims or cities against negligent gun sellers. The federal immunity bill would override all of these states' laws. Attorneys with the Brady Center to Prevent Gun Violence represent Gary, Ind., in this case.
Fast forward to Oct. 6, 2006, where then Lake Superior Court Civil Division 5 Judge Robert Pete "ruled a year-old federal law shielding gun makers from lawsuits" to be unconstitutional. See this Oct. 30, 2006 ILB entry. Check here for a copy of Judge Pete's ruling. "Gun makers appeal Hoosier's ruling" is the heading to this Nov. 27, 2006 ILB entry.
A check of the Clerk's docket shows that "Case Number: 45 A 05 - 0612 - CV - 00754, SMITH AND WESSON ET AL. -V- CITY OF GARY, Interlocutory" is set for oral argument . The question is whether the federal immunity bill (the Protection of Lawful Commerce in Arms Act of "PLCAA") shields gunmakers from the lawsuit. There are at this count 25 attorneys-law firms, including the U.S. Attorney, listed in the docket.
Oral argument is set for Oct. 1, 2007, in the Supreme Court courtroom, at 10:00 am. The argument will be web-cast. The scheduled panel members are Judges Sharpnack, Friedlander, and Riley.
[More] For more on the DC gun suit, see this Sept. 6, 2007 entry in SCOTUSblog.
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.
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.Paul Egan reported in the Sept. 5 Detroit News:
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.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.
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.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."
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.
See also this entry from the Kentucky Law Blog.
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.
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.NFP criminal opinions today (13):
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.
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."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 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.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.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.
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.
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.
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."
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.Here is the link.
"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."
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.
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
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.
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.Here is a list of earlier ILB entries mentioning "golf carts."
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.
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.
Thursday, September 06, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 1 NFP)
For publication opinions today (1):
In Kirk Reuille v. E.E. Brandenberger Construction, Inc., a 13-page opinion, Judge Sharpnack writes:Kirk Reuille appeals the trial court’s judgment in favor of E.E. Brandenberger Construction, Inc. (“Brandenberger”). Reuille presents two issues on appeal, which we restate as: I. Whether the trial court erred in interpreting the phrase “prevailing party” in the contract between Brandenberger and Reuille; and II. Whether the trial court erred when it characterized Reuille’s motion for attorney fees as one for summary judgment. We affirm.NFP civil opinions today (0):
The relevant facts follow. In February 1997, Reuille and Brandenberger entered into an agreement for the construction of a new home in Fort Wayne, Indiana. In the construction contract, a section entitled “Costs and Attorney fees” provided: “In any action at law or in equity, including enforcement of an award from Dispute Resolution, or in any Dispute Resolution involving a claim of five thousand dollars or more, the prevailing party shall be entitled to reasonable costs and expenses, including attorney fees.” * * *
Thus, even under current precedent, Reuille does not qualify as a prevailing party because, although the parties entered into a settlement agreement, Reuille had neither a consent decree nor an enforceable judgment entered along with his settlement agreement. Unlike the court in Daffron, where the court entered a consent judgment after the settlement, Reuille had nothing but a private settlement agreement. As a result, the trial court was correct in its judgment that Reuille was not a prevailing party. Cf. D.S.I., 742 N.E.2d at 25 (holding that settlement agreement, along with an injunction, was sufficient judicial intervention to entitle plaintiff to prevailing party status).
NFP criminal opinions today (1):
Ind. Courts - "New federal courts building planned in Terre Haute"TERRE HAUTE - A downtown site has been selected as the location for a new building that will house federal courts and other agencies.A more detailed story, by Howard Greninger of the Terre Haute Trib-Star, is available here.
The U.S. General Services Administration announced Wednesday it had agreed to lease the building from Thompson Thrift Development, a Terre Haute-based real estate firm.
The new building would replace the city's existing federal building that is to be turned over to Indiana State University as the new site for its College of Business.
Federal officials had announced plans in 2005 to close the court office, but reversed that decision to allow city officials time to find a new location. * * *
The federal court for the Southern District of Indiana covers about the southern two-thirds of the state, with other court offices at Indianapolis, Evansville and New Albany. The Terre Haute court typically has a part-time magistrate judge assigned to it.
Ind. Courts - More on: Another case today of missing court records
The Fort Wayne Journal Gazette has an editorial today about the the missing court records the JG reported about on August 30th (see ILB entry here). This is the case where the defendant's mother has the transcript and evidence and won't give it back. Some quotes:Attorney Robert Gevers II took custody of the official trial record of the case involving a client, Daniel Favela. The record includes a 13-volume transcript of everything said during the trial. More seriously, the record also includes all of the trial evidence – the originals of paper documents and other written evidence, plus photographs of the physical evidence and audio and video recordings.
The practice of an attorney taking the record to his or her law offices while preparing a criminal appeal is routine.
What happened later, though, is far from routine.
After the defendant’s mother said she wanted to talk to a different attorney, Gevers should have returned the official court record to the Courthouse or, at worst, the new attorney. Instead, someone in his office gave it to the mother, Adela Favela – who is not even a party in the case. She has refused to return the transcript and is in jail for contempt of court.
Adela Favela’s motivations are unclear, but it’s possible that in some ways, she may think she is entitled to the record. The side that seeks the appeal must pay the cost of the transcript, which can reach thousands of dollars. When the defendant has a public defender, the taxpayers foot the bill, but when the attorney is privately hired, the defendant pays. Daniel Favela’s family may have paid a large sum of money for the transcript.
Even though the defendant pays for the transcript, the original document is the property of the clerk of courts. Plus, remember that what Adela Favela has is not merely the transcript but the entire court record, complete with evidence. * * *
The knee-jerk reaction would be to call for tighter rules – yet officials in the judicial and legal communities can’t recall a similar incident ever happening, and the rules already state that only a party to the case may withdraw the file.
The courts could make copies of the official record – indeed, the rules expressly permit it – but it would cost taxpayers hundreds of dollars each time. The courts could forbid attorneys from taking records from the Courthouse, but that would punish the countless attorneys who have followed procedures without problems.
Now, the clock is ticking on Daniel Favela’s new attorney to file an appeal – which requires the official record. The accuracy of a re-created record will pose significant questions for the Indiana Court of Appeals.
Whatever is motivating Adela Favela from returning the record, with luck she will come to understand that this matter involves not just her son but the integrity of the court’s record-keeping system.
In any event, Daniel Favela’s trial record is destined to be used as an example in law schools and law firms, and indeed, to us all – don’t borrow something and lend it to someone else.
Law - Ohio federal judge rules sex offender living near school can't be evicted
Joe Milicia of Associated Press reports in a story in the Cincinnati Post:CLEVELAND - Authorities cannot evict a convicted rapist whose home is near a school, a federal judge in Akron ordered Tuesday, ruling that the state's law limiting where sex offenders live is unconstitutional if applied to crimes committed before the law went into effect. * * *"Sex offenders ruling could have wide effect: Barring reversal on appeal, Akron decision is viewed as binding on other cases" is the headline to this story by Ed Meyer in the Akron Beacon Jounral. Some quotes:
Judge James S. Gwin ruled that the law cannot be applied to sex offenders who committed crimes before July 31, 2003, the effective date of the Ohio legislature's ban on offenders living within 1,000 feet of school property.
Gwin ruled that the law punishes sex offenders and ordered county Prosecutor Sherri Bevan Walsh not to enforce the law against Mikaloff.
John Manley, chief counsel with the Summit County prosecutor's office in Akron, said the prosecutor's staff disagreed with the ruling and that an appeal was likely.
"We maintain it's not a punitive measure, it's merely a protective measure," he said.
If not considered punishment, the law wouldn't violate the constitutional prohibition against imposing a new penalty retroactively, Manley said.Thousands of Ohio sex offenders could be affected by this week's federal court ruling that a law barring offenders from living near a school is unconstitutional, defense lawyers said.The same issue is pending before a number of state courts in Indiana - see this list of ILB entries.
David A. Singleton, executive director of the Ohio Justice and Policy Center in Cincinnati, said Tuesday's ruling in U.S. District Court in Akron is binding on all similar cases that might arise in the court's northern district, unless it is reversed on appeal.
In a 21-page decision, Judge James S. Gwin found that the state law prohibiting sex offenders from living within 1,000 feet of a school is unconstitutional for those who committed their crimes before the law took effect on July 31, 2003.
[More] The Terre Haute Trib-Star has an article today by Laura Followell that reports:BRAZIL — When it comes to the sex offender registry, Clay County Sheriff Mike Heaton has decided to relieve some of the taxpayers’ burden.
As of Wednesday, sex offenders must pay a $50 yearly fee when they register in Clay County.
The money will help offset costs associated with processing, tracking and communicating with sex offenders, Heaton said.
“Right now the taxpayers are footing the bill for everything we do. But as part of these individuals’ sentences, for whatever their offense is, this is part of it. They have to register. It’s putting some of the cost off on them,” Heaton said.
The State of Indiana collects 10 percent of an offender’s first registration fee, thereafter Clay County gets 100 percent of the fee for the duration of the offender’s required registration. * * *
The registration fee is optional for every county in Indiana, and the Clay County Council passed Heaton’s proposal.
Each Indiana sheriff is responsible for the sheriff’s registry because of a state law mandating that their departments establish and maintain a Web site providing detailed information about sex offenders.
Wednesday, September 05, 2007
Ind. Decisions - "Clark County judge publicly discusses Knight case for first time"
Larry Thomas of the Clark County News and Tribune reports this afternoon that: "Nearly seven years after then-IU President Myles Brand fired basketball coach Bob Knight, a judge involved in one of the lawsuits related to Knight’s dismissal publicly discussed her role in the case for the first time." Some quotes from the two-part story:In December 2000, Indiana Supreme Court Chief Justice Randall Shepard asked Clark Superior Court 2 Judge Cecile Blau to serve as special judge in a Monroe County suit filed by 46 IU basketball fans who claimed Brand lacked the authority to fire Knight without a vote of the IU Board of Trustees, and that Brand’s meeting with groups of trustees to discuss his decision to fire Knight on Sept. 9, 2000, represented a violation of Indiana’s open-door meetings law. * * *Check here for Part 2.
During an address to the Jeffersonville Rotary Club on Tuesday at Clarksville’s Holiday Inn Lakeview, Blau recalled with some amusement the message to call Dave Remondini, Shepard’s legal counsel.
Blau said her staff puts urgent phone messages on her chair to ensure that she will see them, and that when she saw that Remondini had phoned her, she became concerned that a complaint had been filed against her.
“This call may change your life,” Blau recalled Remondini as saying.
She said Remondini told her that Shepard wanted her to serve as special judge in a case. While the appointment of special judges is a common practice in Indiana courts, Shepard is only involved in such appointments a few times a year, and those generally relate to high-profile murder or other criminal cases.
Then, Remondini told Blau about the case.
“He said, ‘It’s the Bobby Knight case.’
‘I thought, ‘Maybe a murder case would be better,’” Blau said.
When Blau accepted the assignment a day later, the first call she received — even before the case’s lawyers had been notified of her appointment — was from her son in Australia.
“Mom, you’re on ESPN,” Blau recalled her son as saying.
Law - " Authenticating E-Discovery As Evidence"
The Metropolitan Corporate Counsel has an article today on authenticating electronic evidence. A quote from the introduction:Recent precedent confirms that courts are requiring rigorous electronic record authentication. In Lorraine v. Markel American Insurance Co ., 241 F.R.D. 534 (D. Md. 2007), United States Magistrate Judge Paul W. Grimm refused to allow either party to offer emails in evidence to support their summary judgment motions, finding that they failed to meet any of the standards for admission under the Federal Rules of Evidence. The emails were not authenticated but simply attached to the parties' motions as exhibits, as has become common practice. Magistrate Judge Grimm opined: "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."A quote from the conclusion, from the interviewee, who runs a data security software company :We're working closely with the legal community to educate the industry on the evidentiary issues associated with electronic evidence. There are specific authentication issues associated with producing electronic records that lawyers haven't had to deal with in the past. Because we've been dealing with data authentication issues for years, a significant number of e-discovery leaders have been coming to us for advice on how to advise their clients, and what processes need to change in order to ensure the admissibility of critical electronic evidence. The attorneys I've talked to are worried about chain-of-custody issues associated with the electronic records of their clients. Without a method to authenticate content and its associated metadata, attorneys run the risk of losing the ability to enter key electronic records into evidence.Regular ILB readers may recall that the ILB has had a number of entries on this issue, including this one from June 18, 2007, headed "Ind. Courts - Admissibility of electronic evidence -- is it "authentic"?", including: (1) access to a copy of Lorraine v. Markel complete with a linked TOC to make review easier, plus a link to Part I of my three-part Res Gestae series on "Assuring Authentic Legal Information in the Digital Age." Part I deals with the Acts of Indiana and the Indiana Code.
Part II, dealing with electronic authentication issues involving the Indiana Administrative Code and Indiana Register, including a great overview in the way of a comparison table, is available via this August 1, 2007 ILB entry.
Ind. Decisions - Court of Appeals issues 4 today (and 16 NFP)
For publication opinions today (4):
In Cinergy Corporation, et al v. St. Paul Surplus Lines Insurance Co., et al, an 18-page opinion dealing with whether there was an "occurrence triggering the policies’ coverage provisions," the court finds in favor of the insurers. Judge Robb writes on p. 17:Thus, in order for the Insurers to bear any responsibility for payment of costs, there must first be a claim or claims arising out of an occurrence. The insurance contract provides that the Insurers are liable for personal injury or property damage caused by an event taking place during the policy period. As the supreme court stated, “the installation costs for equipment to prevent future emissions . . . is not caused by the happening of an . . . event . . . but rather result from the prevention of such an occurrence.” 865 N.E.2d at 582 (emphasis in original). The preventive measures the underlying lawsuit seeks were not “caused by” the event in question. Thus, Cinergy’s arguments in this appeal are to no avail; not only was there no actual occurrence bringing the claims against Cinergy within the terms of the policies, but also there was never a potential occurrence under the terms of the policies. The trial court properly found that there was no occurrence during the relevant policy term, and the Insurers were entitled to judgment as a matter of law that they are not responsible for contributing to Cinergy’s defense costs.
Maureen Reel, Thomas Dullen and Ned Milby, et al v. Clarian Health Partners, Inc. - "In conclusion, Clarian correctly points out that it would be within its right to completely deny payment of PTO to terminated employees. ... However, having granted employees the right to their PTO upon termination, such PTO is a wage under the Wage Claims Statute. Thus, despite Clarian’s policy to the contrary, Clarian must pay the PTO in a timely manner as required in the Wage Claims Statute."
Donna Helm v. Steven D. Helm - a 13-page opinion that may be the first COA opinion authored by Judge Bradford, who writes:Respondent-Appellant Donna Helm appeals from the trial court’s division of the marital estate following the dissolution of her marriage to Petitioner-Appellee Steven Helm. We reorder and restate Donna’s claims as whether the trial court erred in excluding unpaid future lottery payments from the marital estate and whether such exclusion, if erroneous, constituted harmless error. We affirm.George Evan and Christine Evan v. Poe & Associates, Inc. and Warren Tilford - "Because we find that the release is unambiguous, we need not look to parol evidence to determine the intent. The release unambiguously releases Poe and Tilford in addition to Safeco. We conclude that the trial court did not err by granting Poe and Tilford’s motion for summary judgment. See, e.g., Dobson, 634 N.E.2d at 1345 (holding that the trial court properly entered summary judgment because the release barred the plaintiff’s claims)."
NFP civil opinions today (3):
Harold Fields and Pamela Mae Fields v. Ralph Baker and Sue A. Baker (NFP) - "Harold Fields (Harold) and Pamela Mae Fields (collectively, the Fields) appeal the trial court’s Findings of Fact and Conclusions of Law granting Appellees-Plaintiffs’, Ralph and Sue Baker (the Bakers), request for a permanent injunction that prevents blocking part of a local roadway. We affirm."
NFP criminal opinions today (13):
Ind. Decisions - One today from 7th Circuit
In USA v. Kollintzas, a 13-page opinion, Judge Sykes writes:A jury found Frank Kollintzas guilty of converting large sums of money from the City of East Chicago, Indiana. After the trial Kollintzas disappeared. The district court sentenced him in absentia and ordered that he pay over $25 million in restitution. The government immediately initiated collection proceedings, including garnishment, under the existing criminal docket number. While the garnishment proceedings were pending, Kollintzas’s wife, Joanna, filed for divorce in Indiana state court. The government served her with notice of the garnishments pursuant to the requirements of the Federal Debt Collection Procedures Act (“FDCPA”), and she made a general appearance in the district court. She subsequently filed a brief asserting an interest in the property being garnished; she argued that her interest in the marital assets was a matter for the state court, not the federal court, to decide. The district court disagreed and ultimately concluded Mrs. Kollintzas had failed to establish her property interest under Indiana law. The court granted the government’s motion to release the funds for garnishment, and Mrs. Kollintzas appealed. We affirm.
Ind. Law - Brooks role at Ivy Tech to include both general counsel and senior vice president of workforce and economic development
Per a statement from Ivy Tech posted this morning by the Indianapolis Star:[US Attorney Susan W.] Brooks will serve as both general counsel and senior vice president of workforce and economic development starting October 1.
In the vice president role, according to a statement from the college, "Brooks will provide vision, leadership and direction of Ivy Tech's workforce and economic development activities on a statewide basis. She will also serve as an integral part of the state's strategic initiative to develop a trained workforce and to attract and retain businesses in an effort to bolster the economic viability of the state."
Ind. Law - ND Indiana decision on gender stereotyping cited
"Employers Should Be Mindful of Sex-Stereotyping Claims in Dealing With Gender Identity" is the title to an article by Jenner & Block's Carla J. Rozycki and David K. Haase available at Law.com. A few quotes:Courts have long been in agreement that discrimination against a transgendered person is not sex discrimination actionable under Title VII of the Civil Rights Act of 1964, as amended, because "sex" means biological male or female status, not sexuality or sexual orientation. * * *The ILB has downloaded Chief Judge Robert L. Miller's August 3rd opinion in Creed, access it here.
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (finding that a post-operative transsexual was not protected by Title VII, the 7th Circuit held that "The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be female, or [vice versa]; a prohibition against discrimination based on an individual's sex is not synonymous with a prohibition against discrimination based on an individual's sexual identity disorder or discontent with the sex into which they were born."). * * *
Most recently, while finding no cause of action under Title VII for discrimination against a transgendered employee, the U.S. District Court for the Northern District of Indiana held that an employee going through the process of gender transition from male to female could proceed with claims that the employee was terminated for not meeting male gender stereotypes. Creed v. Family Express Corp., No. 3:06-CV-465RM, 2007 WL 2265630, at *2-4 (N.D. Ind. Aug. 3, 2007). Amber Creed presented as a male when hired by Family Express as a sales associate. Over the next six months, however, Creed began to wear clear nail polish, black mascara, trimmed eyebrows and a more feminine hairstyle while wearing the required polo shirt and slacks. Creed alleges she was finally told not to present herself in a feminine manner at work. When she told her employer that she was going through the process of gender transition and refused to present herself in a more masculine way at work, she was terminated.
While concluding that the 7th Circuit holding in Ulane -- that discrimination against transsexuals because they are transsexuals is not discrimination "because of sex" -- remains controlling law, the court held a transgender plaintiff can state a "sex stereotyping" claim under Price Waterhouse for discrimination due to the failure to act or appear masculine or feminine enough for an employer. Id. at *3. The court emphasized that such a claim could only be successful if the plaintiff could prove that the claim arose from the employee's appearance or conduct and that the employer acted with stereotypical motivation about how a male or female should present. Denying Family Express' motion to dismiss the sexual-stereotyping claim, the court concluded that Creed's allegations adequately supported a "plausible" claim of discrimination due to sex. Id. at *4. The court observed: "[A] man who is harassed because his voice is soft, his physique is slight, his hair is long, or because in some other respect he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave, is harassed 'because of' his sex." Id. at *4, quoting Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997), vacated and remanded on other grounds, 523 U.S. 1001 (1998).
Employers dealing with issues of gender identity need to carefully analyze their decisions to make sure they do not fall within this "sexual stereotyping" theory recently recognized by several courts. Further, employers need to check the laws of their state and local municipalities, which increasingly have added "gender identity" as well as "sexual orientation" to the protected classes of employees.
Tuesday, September 04, 2007
Law - Federal Election Commission applies media exemption to political blogs
In a news release this afternoon, the FEC announcement begins:WASHINGTON – The Federal Election Commission announced today that it has unanimously resolved two complaints alleging that Internet blog activity is subject to Commission regulation, finding that the activity is exempt from regulation under the media or volunteer exemption.
In Matter Under Review (MUR) 5928, the Commission determined that Kos Media, L.L.C., which operates the website DailyKos, did not violate the Federal Election Campaign Act. The Commission rejected allegations that the site should be regulated as a political committee because it charges a fee to place advertising on its website and it provides “a gift of free advertising and candidate media services” by posting blog entries that support candidates. The Commission determined that the website falls squarely within the media exemption and is therefore not subject to federal regulation under the Act.
Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In March 2006, the Commission made clear that this exemption extends to online media publications and that “costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station. . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate. With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos website does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media, DailyKos.com, or Markos Moulitsas Zuniga violated federal campaign finance law.
Ind. Law - More on "Schools struggle to secure students in cyber world"
Supplementing this ILB entry from Sept. 2, see this posting today by Howard Bashman in his blog, How Appealing, re "a decision that U.S District Judge Mark R. Kravitz of the District of Connecticut issued last Friday" on student postings on blogs and social networking sites.
Law - Two fascinating economics articles today in NY Times
The ILB has spent a lot of mornings sitting around in waiting rooms lately, reading the paper. This diligence was rewarded today by really interesting stories, one on electricity deregulation and one on the rise of milk, in the NY Times.
From a story headed "A New Push to Regulate Power Costs," by David Cay Johnston, some quotes:More than a decade after the drive began to convert electricity from a regulated industry into a competitive one, many states are rolling back their initiatives or returning money to individuals and businesses. * * *From a story headed "A Thirst for Milk Bred by New Wealth Sends Prices Soaring," by Wayne Arnold, some quotes:
Of the 25 states, and the District of Columbia, that had adopted competition, only one, California, is even talking about expanding market pricing.
The main reason behind the effort to return to a more regulated market is price. Recent Energy Department data shows that the cost of power in states that embraced competition has risen faster than in states that had retained traditional rate regulation.
One prominent critic of competitive pricing — Marilyn Showalter, a former Washington state utility regulator who has become an advocate of publicly owned power systems — has calculated that, in the year ending May 31, customers in competitive states paid an extra $48 billion for their power, compared with what they would have paid under rates in regulated states.
The combination of higher and faster-rising prices has outraged individual consumers and small businesses and prompted big electric customers to fight back on political, regulatory and legal fronts.
“It is fair to say that in the states that did restructure, we are on the defensive,” said John Shelk, president of the Electric Power Supply Association, which represents owners of competitive power plants. * * *
Big industrial and commercial customers, the very forces that agitated for competition originally, are leading the return to traditional regulation. Then, and now, these big customers say they are being charged too much.Driven by a combination of climate change, trade policies and competition for cattle feed from biofuel producers, global milk prices have doubled over the last two years. In parts of the United States, milk is more expensive than gasoline. There are reports of cows being stolen from Wisconsin dairy farms.
“There’s a world shortage of milk,” said Philip Goode, manager of international policy at Dairy Australia in Canberra.
But the biggest force driving up milk prices is the same one that has driven up prices for conventional commodities like iron ore and copper: a roaring global economy. Rising incomes in emerging economies from China and India to Latin America and the Middle East are lifting millions of people out of poverty and into the middle class.
It turns out that, along with zippy cars and flat-panel TVs, milk is the mark of new money, a significant source of protein that factors into much of any affluent person’s diet. Milk goes into infant formulas, chocolate, ice cream and cheese. Most baked goods contain butter, and coffee chains like Starbucks sell more milk than coffee. * * *
What is unusual, and somewhat confusing, about the milk boom compared with other booming commodities is that milk is not like oil: You cannot stick it in barrels and stockpile it. It goes sour. Even in powder form, the most commoditized version, milk has a shelf life. As a result, only about 7 percent of all the milk produced globally is traded across borders. The rest is consumed in domestic markets, which are protected by geography and just as often by tariffs or subsidies.
Big buyers like chocolate makers and grocery stores buy their milk under long-term contracts and so can smooth out sudden spikes or dips in prices. Thus, the full effect of the global shortage varies from country to country, and not all consumers are yet suffering the full impact.
But because of the local nature of the market, there is little spare capacity. In the past, the world could always count on the United States and Europe to fill shortages by exporting some of their subsidized stockpiles of cheese, butter and milk powder. But the United States has drawn down its butter mountain and other stockpiles; the same is true of the European Union, which started cutting dairy subsidies in 1993 and will finish this year. Rising dairy demand in the United States and among the European Union’s new members, moreover, is draining supplies. As a result, Mr. Hemme said, “This storage capacity is empty now.”
At the same time, rising demand for biofuels is pushing up the price of corn and other grains, which is what farmers in the United States, Europe, Canada and Japan feed their cows instead of grass. Rising feed costs help to push milk prices even higher.
Environment - More on: Study shows how BP could likely could expand its refinery without the added pollution
This ILB entry from August 25th quotes from an Aug. 23rd story in Crain's Chicago Business that BP's announcement that it was backing off on plans to sharply increase pollutants to Lake Michigan authorized by the controversial Indiana permit:... 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.Today the Indianapolis Star catches up, in a story by Tim Evans. Some quotes:
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.”The expansion of the BP refinery in Whiting can move ahead with existing technology that would keep the pollution it dumps into Lake Michigan at current levels and would mean only a small increase in the cost of the project, according to environmentalists and a report commissioned for the city of Chicago.
The report, prepared by Tetra Tech, a California-based engineering firm, concluded that BP could upgrade the Whiting refinery's wastewater treatment plant for less than $40 million.
Law - Legal aid in Louisville offering do-it-yourself divorce packet
Jason Riley reports today in the Louisville Courier Journal:[E]ase and affordability, along with the goal of reducing crowded dockets, led the Jefferson Circuit Court Clerk's office -- working with Legal Aid, Family Court and the Louisville Bar Association, among others -- to make self-help divorce packets available recently.Indiana Courts has sets of forms online for divorce, child support, etc., at its Self-Service Legal Center. Here is an example of the instructions for the "divorce without children and without assets" form set.
For $10, couples without major settlement issues can get a packet and quickly navigate the often treacherous and expensive path to divorce without attorneys or possibly even setting foot in a courtroom.
"The inability to pay should not be a barrier to accessing justice," said Chief Family Court Judge Stephen George, who worked with Legal Aid to create the packets. * * *
In recent years, George said, some people seeking more expedient and less costly divorces in Jefferson County have downloaded self-help divorce packets from the Internet -- sometimes for hundreds of dollars -- only to learn that the documents weren't usable in Kentucky. But the idea resonated with George and his staff.
The trend toward do-it-yourself divorces has grown across the country for a very simple reason, George said: money.
A typical attorney's fee will run $150 to $225 an hour, meaning even an uncomplicated and uncontested divorce will cost $750 to $1,500, he said. Complicated divorces can cost tens of thousands of dollars.
"It's a lot cheaper to get married than it is to get divorced," said Family Court Judge Jerry Bowles. "There's been a large segment in our community that before didn't have the resources" for a divorce.
Bowles said many couples who have been separated for years are coming forward to get divorces they hadn't been able to afford. * * *
Since Legal Aid started offering self-help divorce packets last August -- through what George called a pilot project for the packages now available -- about 600 people have at least started the process.
"The response has been overwhelming," said Nellie McCall , an attorney with Legal Aid who noted that they have been holding packed clinics to teach citizens how to use the packets. "All the judges we've talked to, from throughout the state, want something similar." * * *
Court officials, however, stress that the self-help packets are not for most divorces. If there's any disagreement over assets or custody, lawyers will most likely be necessary.
Divorce lawyers say they are not threatened by the self-help packets because getting a divorce is, in most cases, too complex for couples to do without legal help.
Ind. Decisions - More on federal Judge Tinder's wine shipping decision
The Richmond Palladium-Item has this editorial today, headed "Ending state's protectionism":A federal judge has leveled the playing field for wineries seeking to ship their products.From a story ($$$) by Sarah Morin in the Bloomington Herald-Times:
It's time Indiana get in step with the nation and discontinue old protectionist strategies.
The U.S. Supreme Court said as much in mid-2005 when it ruled that laws in Michigan and New York could not give state wineries special treatment.
Robert Garton, the former Indiana Senate president pro tem, did not lose his important seat last year over the wine issue. But he probably lost it over the arrogance that saw him unilaterally kill a bill that would have allowed wine to be shipped to customers in Indiana.
That kind of action necessitated last week's federal ruling clarifying and enforcing the Supreme Court's ruling.
The Wine and Spirits Wholesalers of Indiana no doubt harbors real concerns about protecting minors. But that concern is less apparent where its own members are concerned. Its first order of business seems transparently to be economic protectionism for its members.
U.S. District Judge John Daniel Tinder said as much in his ruling, calling the dual system for wine shipments employed by Indiana "a form of economic protectionism" because it favors in-state wineries at the expense of those in other states. Tinder's ruling allows Hoosiers to more freely make online and phone orders from wineries in Indiana and other states, while still being required to collect personal information and sworn statements from those placing orders to assure they are legal age and to enable prosecution for falsification.
This is a good day for Indiana's fledgling state wine industry. It's a good day for consumers.
It's a good day for equal and fair application of the law.Jim Butler is excited that he can now sell his Bloomington wines to Indiana customers over the phone and from the Butler Winery Web site.
A new ruling by a federal judge this week allows Butler and other wineries in the state to reach more customers by lifting previous shipping sales restrictions.
“It’s a very good outcome. It’s a good outcome for Indiana wineries and wine consumers,” Butler said Friday.
He predicts a 10 percent sales increase given the addition of telephone and Web sales of his local wines within Indiana.
State law had required customers to have a face-to-face transaction before receiving home shipments. The ruling by U.S. District Judge John Daniel Tinder called that unconstitutional. * * *
The ruling also struck down a provision that barred wineries that possess wholesale privileges in other states from seeking a direct wine seller’s permit in Indiana. But it hasn’t cleared up any confusion about whether Hoosier wine drinkers can order their favorite cabernet sauvignon or chardonnay out of state.
That depends on whether the winery has a direct-shippers permit that allows it to ship to individuals in Indiana.
“The law is still somewhat restrictive; (you’d) need enough business to make it worthwhile,” Butler said of the necessary permits to ship directly to customers. * * *
“We are elated with this decision,” Bill Oliver, president of Bloomington’s other winery, Oliver Winery, said in a prepared statement. “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.”
Ind. Law - Gary Legal Services group providing free legal services in Jasper County
Dave Ake of The Rensselaer Republican reports:Jasper County residents in need of a legal clarification or unable to afford the advice they may need to represent themselves, now have an alternative.
Attorneys Gale Carmona and Sean Newberry of Indiana Legal Services, a pro se clinic based in Gary, are currently providing free legal services once a month to Jasper County.
“There is an initiative from the Indiana Supreme Court to provide 50 hours of pro bono service a year,” Carmona said.
One must understand, in the sometimes cloudy world of legal terms, there is what is referred to as ‘pro se’ and ‘pro bono’. Pro se is when a defendant appeals to their right for self representation. Pro bono is when a lawyer takes a case free of charge.
On Thursday, Newberry and Carmona met with several people to answer questions they may have had regarding legal issues such as the plethora of forms a person may be required to fill out in the judicial system. In some other cases, a person may choose to go pro se and the Legal Clinic can also help them through that process.
“I need clarification on a child support order. I read about the free legal services in the paper. Karen Craig encouraged me to come up and see about it. Last time I spent over $4,000 and lost. That money is gone and it did no good,” a client stated last week.
The attorneys were there to help answer simple, but not always easy, questions that may have otherwise cost a citizen hundreds of dollars in legal fees. It should also be noted that the legal team does speak Spanish.
“Sometimes the biggest thing they need on there [downloaded legal forms] is just a cause number,” Newberry said. * * *
The program started when Carmona asked Jasper County Superior Court Judge Philip McGraw for his approval on the program. Having known each other for a long time, McGraw gave Carmona his approval and the Legal Clinic was born.
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
In Indiana Department of Transportation, et al. v. Robert Howard, et al. , a 5-page opinion, Judge Robb writes:The State of Indiana and the Indiana Department of Transportation (collectively referred to as “INDOT”) appeal the trial court’s denial of their motion for summary judgment. Concluding that the order denying summary judgment is an interlocutory order that INDOT did not have certified by the trial court and accepted by this court as an interlocutory appeal, we do not have subject matter jurisdiction over this case and therefore dismiss. * * *NFP civil opinions today (0):
The parties in this case have apparently proceeded under the assumption that the trial court’s order denying INDOT’s motion for summary judgment is a final appealable order under Trial Rules 54(B) and 56(C). * * *
However, to be a final judgment under Trial Rules 54(B) and 56(C), a judgment “must possess the requisite degree of finality and must dispose of at least a single substantive claim.” An order denying summary judgment is not a final appealable order, and cannot be made into one via Trial Rules 54(B) or 56(C), because no issues have been irretrievably disposed of and no rights have been foreclosed by such an order. Bd. of Tr. of Ball State Univ. v. Strain, 771 N.E.2d 78, 81 (Ind. Ct. App. 2002). Rather, a party seeking review of a denial of a motion for summary judgment must do so by seeking an interlocutory appeal pursuant to Appellate Rule 14(B). Cardiology Assocs., 804 N.E.2d at 155. * * *
For INDOT to appeal the denial of its motion for summary judgment, it was required to first seek and obtain certification from the trial court authorizing an appeal from the interlocutory order and then seek acceptance of the interlocutory appeal from this court. INDOT failed to do so. Because this is not a final appealable order and INDOT did not follow the proper procedure for bringing an interlocutory appeal, we do not have jurisdiction over this appeal. We therefore dismiss and remand to the trial court for further proceedings.
NFP criminal opinions today (4):
Monday, September 03, 2007
Environment - Even more on: Pollution and justice: Kentucky judge orders state to rehear permit for coal-fired power plant
Updating this most recent ILB entry from August 31st, James Bruggers writes today in the Louisville Courier Journal about this controversy.
In the original ILB entry, from August 10th, 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." In NW Indiana, Indiana's allowing BP to increase pollutant discharges into Lake Michigan would impact other Great Lakes states. From today's LCJ story:A Franklin Circuit Court ruling won by environmentalists threatens the state's coal industry and economy by requiring "drastic changes" in how power plants get approved, Kentucky regulators are asserting.
At issue is a decision on Aug. 6 by Judge Thomas Wingate that rejected the air-quality permit for the 1,500-megawatt Thoroughbred plant planned by Peabody Energy for Muhlenberg County.
In newly filed court papers seeking an expedited appeal, attorneys for the state say the ruling jeopardizes all pending air-quality permits, including two more challenged by environmentalists: Louisville Gas and Electric's 750-megawatt expansion of its Trimble County electric generating plant, and East Kentucky Power's 278-megawatt expansion of its Spurlock Power Station in Maysville. * * *
The lawyers said Wingate's ruling had created "an uncertainty that is disruptive" to both state officials and industry, and has "implications that extend to the mining of coal, which is an essential element of the economy of Kentucky, and therefore raises an issue of public concern." * * *
Hank Graddy, a Midway attorney who represented the Sierra Club and others in the Thoroughbred case, said the state is exaggerating the ruling's impact.
The ruling, he said, "does not say that plants can't be built and electricity can't be generated," said Graddy, who is also involved in challenging the LG&E and East Kentucky Power permits. "The judge found (cabinet officials) weren't implementing the (federal) Clean Air Act and their own regulations. They should follow their own regulations." * * *
Environmentalists then took the matter to circuit court.
Among other problems, [Judge] Wingate found that the cabinet had not thoroughly evaluated the "best available" pollution control technology for the plant and had not fully alerted the public to its environmental consequences.
Law - "Is the Future of Legal Scholarship in the Blogosphere?"
Margaret A. Schilt of Legal Times had an interesting article Friday titled "Is the Future of Legal Scholarship in the Blogosphere?" The focus is on law professor blogs.
Sunday, September 02, 2007
Courts - Pressure continues in Missouri against the "Missouri plan" for judicial seelction; WSJ chimes in
"Is the "Missouri plan" in danger in Missouri?" is the title of an ILB entry from May 1, 2007, followed on August 1st with this entry titled "Problems in birthplace of the Missouri plan?." On August 14th the ILB quoted from a story in the Kansas City Star, including this quote: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.”Last Thursday the WSJ editorial section chimed in to what had been a local Missouri matter, writing under the heading "Review and Outlook". The article begins:For the latest proof that you can't get politics out of politics, see the battle in Missouri over how the state selects its judges. All three branches of that state's government are arguing over a system that was designed to protect judicial independence from the rowdier environs of democratic elections. What it now has is worse.The following day, on Aug. 31st, the Columbia (Mo.) Daily Tribune opined:
Launched in 1940, the so-called "Missouri Plan" was once considered state of the art and imitated by many other states. An ostensibly non-partisan seven-member commission chooses a slate of three nominees and the Governor chooses among them. The idea was to produce candidates based on merit while diluting political influence over courts.
But that was then. Anybody with the power to choose judicial candidates was also destined to become a political actor. And that's exactly what has happened to the Appellate Judicial Commission, made up of three members chosen by the Missouri Bar Association, three picked by current and past Governors, and the chief justice of the state supreme court. Now Republican Governor Matt Blunt finds himself battling the Missouri bar over the commission's latest panel of candidates to fill the seat of retiring state Supreme Court Justice Ronnie White.All of a sudden this year, opponents of Missouri’s vaunted system for appointing judges to the state Supreme Court and appellate courts have mounted an offensive. The most aggressive among them want to throw out the so-called Missouri Plan altogether.
Conservative Republicans think the Missouri Plan has of late produced too many “activist” judges — meaning too many liberals. They think this happens because the commission is dominated by trial lawyers who are able to manipulate the nomination process so a governor like Matt Blunt, who would like to appoint certified conservatives or “strict constructionists,” finds none to suit him among the three nominees.
Critics should make their case using specific criticisms of particular decisions to show a verifiable trend. Instead, they want a system more quickly reflective of the political philosophy of the party in power.
In their dreams, Blunt & Co. want the federal system in which the governor appoints any person he wants, subject to confirmation by the Senate. In the dreams of those who favor a less partisan system that would be a nightmare.
Law - Starting law school this month?
Then check out the WSJ Blog's entry "Advice For One Ls," which solicited advice from readers and so far has 94 responses. In earlier entries, editor Peter Lattman asked for suggestions from authors including Jeffrey Toobin and Scott Turow.
Ind. Courts - More on: Electronic trafic ticketsThe electronic ticketing system will mean big changes for the motoring public:
• If you're stopped: The amount of time you spend squirming while the officer writes your ticket will be cut to about five to seven minutes from 15.
• If you get a warning: Police will be able to see almost immediately whether you were stopped earlier in the day by another officer and given a warning.
• If you're the officer: Worries about your handwriting will be a thing of the past. The system scans driver's license and registration information.
• If you're the courts: Say goodbye to typing ticket data into your computers. The new system does that for you.
Ind. Law - "Schools struggle to secure students in cyber world"
Sue Loughlin of the Terre Haute Tribune-Star writes today on "a whole new territory" - the impact of MySpace and Facebook on students. Some quotes from the long and excellent article:From cyberspace threats and bullying to false teacher profiles, social networking sites such as MySpace and Facebook have opened a new frontier of safety, security, ethical and legal concerns for schools:The COA decision was the April 9th ruling in A.B. v. State of Indiana. See initial ILB entry here. Here is a list of later entires.
• Teachers and administrators might be the victims of false profiles or inappropriate comments.
• Online threats can create school disruptions, even if the authors have no serious intent to carry them out. Also, what starts as an online dispute between students can carry over into the classroom.
“It’s worrisome” said Ray Azar, Vigo County School Corp. director of Student Services. “It’s a whole new territory.”
The Internet offers much that is good, but at the same time, “There’s so much out there [students] can get in trouble with,” he said.
The district has become aware of instances of false profiling and other cases involving inappropriate comments about staff members.
When that happens, school district security officers will contact MySpace administrators and ask them to review the site and take it down if it’s inappropriate.
“They don’t want illegal activity,” said Franklin Fennell, school district supervisor of security and support services.
MySpace has provided a telephone number that law enforcement officers can call if there are security concerns, inappropriate postings or false profiles, Azar said.
MySpace has become more cooperative, he said.
“A few years ago, you had to go through a lot of hoops to get anything done and they didn’t want to share any information because of confidentiality,” Azar said. “But now, if a school corp. is working with law enforcement, they’ve made it pretty easy to determine if something is inappropriate and to take it down … We find we can do that pretty easily.”
Other social networking sites aren’t as easy to work with, he said.
Just because someone posts inappropriate or false comments about a teacher or administrator doesn’t meant it’s illegal. It may come down to victims deciding if they want to pursue civil action and whether it’s worth the effort, Azar said.
While typically students use MySpace on a home computer, comments and threats can trickle over into the school setting.
Last year, some Terre Haute South Vigo High School parents became concerned about a MySpace posting that involved threatening comments toward black students. School officials and police investigated.
“We look really seriously at threats and anything that can cause a disruption in school,” Azar said.
Students might also say things about themselves online that are “really incriminating. We try to inform parents,” he said.
Because accounts are private, the school district won’t necessarily have direct access to what is on MySpace or other social networking sites. If parents become aware of something inappropriate or threatening, they should make a printout, if possible, so school officials and law enforcement can more easily investigate, Azar said.
The district doesn’t “go out and search” the sites, he added, but it does act on complaints.
MySpace and free speech. School officials can be limited in their response when it comes to students’ off-school use of MySpace, Azar said.
“One of the things we have to tread lightly on is the issue of free speech. We don’t want to infringe on someone’s free speech. But it’s a fine line sometimes,” Azar said.
“You have to determine what laws have been broken and what school rules have been broken. In some cases, it’s just distasteful, but it’s nothing we can really do anything about” except ask MySpace or other sites to remove the offensive material, he said.
Under the Constitution, a school cannot discipline a student for exercising protected speech. That First Amendment protection does not extend to speech that is criminal or defamatory, or speech that causes a substantial disruption.
Indiana law takes things a step further. A state law says that for a school to apply its disciplinary policies to off-school conduct — including off-school computer use — the incident must be unlawful and interfere with school purposes, said Dave Emmert, attorney with the Indiana School Boards Association.
The issue of false profiles raises another question, Emmert said. What did the General Assembly mean by “unlawful” in a statute that dates back to the 1990s — the pre-MySpace era? The Legislature didn’t clearly define “unlawful,” Emmert said.
He believes that if a student clearly defames a teacher or administrator online and makes false statements, that would be civilly unlawful and would interfere with school purposes, particularly if it led to an investigation of that individual.
In his opinion, a school could discipline a student for such online, defamatory remarks, even if those comments are made off school property.
The issues are complicated and often require school officials to consult attorneys about what they can and cannot do, Emmert said, something Azar acknowledged.
“It gets pretty complicated, and we deal a lot with lawyers,” Azar said. The district will seek a legal opinion about whether a certain course of action is appropriate. “We don’t want to subject the corporation to any kind of legal liabilities,” he said.
Student use and misuse of MySpace has prompted lawsuits and counter-lawsuits across the nation — including Indiana.
Earlier this year, the Indiana Court of Appeals ruled that a Putnam County judge violated a middle school student’s free-speech rights when he placed her on probation for posting an expletive-laden entry on a MySpace page.
The entry criticized a Greencastle Middle School principal over school policy on body piercings. The girl’s comments were posted on a page created by another student who falsely claimed it belonged to the principal, Shawn Gobert.
The three-judge panel ordered Putnam Circuit Court to set aside its penalty against the girl. She had been named in a juvenile petition, found to be delinquent and placed on nine months probation.
The Court of Appeals found that the comments were protected and that the juvenile court had unconstitutionally restricted her right of free expression, according to an Associated Press report.
The court determined the student’s comments were protected political speech relating to government [school district] policy on body piercings.
“While we have little regard for [the student’s] use of vulgar epithets, we conclude that her overall message constitutes political speech,” the court opinion states.
Ind. Gov't. - Indiana property taxes: Who benefits from taking property off the Center Twp. tax rolls?
Karen Eschbacher of the Indianapolis Star has a front-page story on the impact of tax abatements and tax increment financing districts in Marion County. A side-bar explains "How tax abatements, districts work."
Earlier, on August 19th, the Star ran this story on property tax exemptions, including this quote:All told, Marion County exempts more than $2.7 billion worth of property. And that doesn't include Marion County's many government buildings, which are exempt, and breaks offered to prospective new businesses.So we in Marion County, and particularly Center Township, have the quadruple whammy: tax abatements, TIFs, permanently tax-exempt not-for-profit properties, and permanently tax-exempt state and local governmental properties. The properties remaining on the tax rolls after all these carve-outs finance the governmental operations and schools in the County.
The ILB resides in Center Township in a historic district and over the years has talked about the tax situation with a number of different residents who have moved into the downtown area from out-of-state to take prestigious jobs downtown at our major sports NFP, our university system, and our Fortune 500 pharmaceutical company, all of which benefit from major property tax breaks. In every case, she has heard that the strong advice these newcomers received from their recruiters and/or real estate agents was to purchase homes in the counties to the north of Marion, where "the schools were good, crime was not an issue, property taxes were lower," etc. These few people who did end up locating near the downtown did so only by ignoring such advice and acting on their own.
And to the ILB, that states the problem in a nutshell. Yes, there is much to be said for all these programs. But how on earth can it be reasonable to put the burden for them upon the taxpayers in one county, and one township, when the benefits are so much more diverse?
Eschbacher's story today makes the same point:A big chunk of property value in Downtown Indianapolis doesn't help fill the public kitty: 14.5 percent of assessed value in Center Township was diverted in 2006.See also this Star editorial from August 23rd, including this list of questions:
That translates into more than $35 million in property taxes that was siphoned off.
The situation there is magnified because of additional abated and exempted properties such as hospitals and churches.
Among the tax districts, abatements and exemptions, 28 percent of all assessed value in Center Township either is not taxed, or the revenue generated from it is diverted.
That chiefly affects Indianapolis Public Schools, the core of which is in Center Township and which relies on property taxes to pay for capital expenses and some operating costs.
The result: Other taxpayers must chip in more than they would have to if that revenue were on the rolls and available.
And unlike abatements, which last up to 10 years and require businesses to pay a growing portion of their tax bill each year, the tax districts can remain in place for up to 30 years. They used to be limitless, and some are grandfathered in under that rule. * * *
Incentive programs for businesses are unlikely to go away, but some are suggesting more oversight or spreading the burden.
As the General Assembly looks to ease the burden on property owners, abatements and special tax districts are certain to be discussed. Already this summer, a bipartisan legislative panel studying the property tax problem held a session mostly about the topic.
Rep. Craig R. Fry, D-Mishawaka, would like both incentive programs done away with.
"TIFS and tax abatements are a direct shift of responsibility from businesses to homeowners," Fry said. But he concedes that view puts him in the minority.
Others said they want to look at tweaking the programs.
Rep. David Orentlicher, D-Indianapolis, said the state could consider modifying the programs so homeowners in areas heavy with abatements and the tax districts -- such as the IPS taxing districts -- don't have to bear so much of the burden.
"If these (incentives) are appropriate for the region, we shouldn't put all of the burden on the taxpayers in IPS," Orentlicher said. "We need to figure out a way to make sure the costs are shared."What might be done to help offset the disproportionate tax exempt property load carried by Center Township? Almost 22 percent of its land is tax exempt, and that does not include government buildings. It is the hub of our region, and its residents must pay for services used by all who visit, shop, work and use government services based Downtown.Lesley Stedman Weidenbener of the Louisville Courier Journal has a useful article today, complete with a number of links, on how the homeowner can have input in the current property tax crisis.
Is it time to review all nonprofit exemptions to make certain they qualify for a break? Many states are looking at charging nonprofits fees for police, fire and other basic services. That's especially relevant to Indianapolis, where public safety has been chronically underfunded. The Town of Cumberland, for example, bills nonresidents for police services in an effort to shift some of the expense off property taxes.
Should nonprofits be required to pay for various public services in the same way they pay for other business expenses such as legal and banking fees?
Could user fees be charged to nonprofits on a sliding scale, or based on their ability to pay? Those with robust revenues and extensive resources cited in The Star would pay one rate, and those operating on a smaller scale would pay less. Those that showed a loss could be exempted from the fees.