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Thursday, July 02, 2009

Courts - "Supreme Court Closes Deeply Divided Term"

Listen to Nina Totenberg's nearly 8 minute wrapup of the SCOTUS term here, on NPR.

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Courts in general

Ind. Courts - "Marion County Public Defender On Leave After Arrest: Lawyer Accused Of Breaking Into Home, Battery"

Jack Rinehart of INDY 6 News has this story this evening.

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending July 2, 2009

No need this week to wait till Monday/

Here is the Clerk's transfer list for the week ending July 2, 2009. It is three pages long.

Five case were granted transfer, see entry immediately below -- more later.

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Five cases granted transfer July 2nd

The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has received notice that transfer was granted July 2nd in five cases. (I'll be adding details later)

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Indiana Transfer Lists

Ind. Law - Golf carts in the news

Laura Lane of the Bloomington Herald-Times had this story ($$) June 25th, headed "Golf carts get the go-ahead: Starting July 1, change in state law clears the way for small towns to allow carts on roads." Some quotes:

WORTHINGTON — In just six days, Worthington Town Council president Hal Harp will be street legal in his 1995 golf cart.

He has everything in line to comply with a new state law that allows towns and cities to adopt regulations making golf carts legal on local roads.

“The insurance policy I received today is effective first of July,” he said this week. “I have lights on the front and back, a rearview mirror and also a ‘slow-moving vehicle’ sign bolted on the back.”

He also has a valid driver’s license, another requirement for anyone who wants to take to the streets behind the wheel of a golf cart.

And his town has passed the necessary ordinance allowing the legal operation of golf carts starting July 1, when the state law goes into effect.

For years, small-town residents — including those in Worthington, population 1,452 — have tooled around to nearby businesses and neighbors’ homes in battery-operated carts that once were used only as a way to travel from hole to hole on golf courses. More recently, they have been seen as economical, fuel-saving and very slow modes of transportation. * * *

Harp said golf carts are fine for Worthington, but not a good fit for the streets of other towns, such as Bloomington. For him, he can drive from his house on Edwards Street down to the hardware store, the grocery, the baseball park or even to town hall for council meetings.

“It’s good news for a lot of people here in town who have golf carts,” Harp said. “I was thrilled the state Legislature passed the law, and hopefully we won’t have any major problems. There is a place for them. But they aren’t right for all towns.”

Like Harp, [Town Clerk-Treasurer Gloria Klass] has her golf cart ready to hit the road. All she has left to do is buy liability insurance, required by law. With a safe driver discount, she hopes to purchase a policy for $50 a year.

She usually drives her car two blocks to work, since she has to run errands for the town from her office. But starting Wednesday, she can take the golf cart to work and drive it to the post office, bank and other destinations close by.

She will encounter Harp and others in similar vehicles.

“I’ve already had inquiries from people on how to take care of them and where to get the lights and other things you need to have,” said Harp, who drove his golf cart around town for years until 2008, when the Indiana State Police issued a statement saying golf carts were not legal on the road and that people caught driving them would be ticketed.

Harp said then it was essential that golf cart drivers be careful, stay off heavily traveled roads and follow safety rules. “I think the state Legislature should legalize the use of them and allow the town councils to decide if it is right for their town or not,” Harp said last fall.

He and others lobbied their state representatives to change the law, and they did, making Harp’s wish a reality come Wednesday.

Other towns may soon follow suit; the golf cart issue is on the town council’s July 7 meeting agenda in nearby Bloomfield.

From the Washington Times-Herald, a story today by Nate Smith:
The streets in Daviess County have been littered with outlaw vehicles, slowly holding up traffic in areas that some would call dangerous.

But soon, golf carts will be legal in several cities and towns in the state. Starting July 1, carts with the proper modifications will be legal if the cities and towns a driver lives in passes an ordinance doing so.

Depending on where one lives in Daviess County, the debate on the ordinance may come as soon as the law takes effect. Town council members in Odon, Montgomery and Plainville said this week the ordinance will be discussed at their July meetings.

“We’ll probably present it for a vote in our July meeting,” Odon Town Council President Keith Bechtel said.

Bechtel went on to say the council had discussed the ordinance at a meeting in June and asked its attorney to draw up the ordinance.

Another town board member, Tommy Noble, said the town will probably pass the ordinance.

“I’m completely for them and most of the council is for them,” Noble said. “We won’t be charging a (cart) fee, unlike Loogootee.”

Loogootee already passed an ordinance earlier this month, according to Mayor Don Bowling. The fee, $25, will not go into effect until July 1.

In Plainville, Town Board President Dick Heshelman said the issue will be brought up at the board’s next meeting in July. The usual date, the second Thursday of the month, is being changed for July, Heshelman said.

Washington Mayor Larry Haag said Thursday the city is looking at the law and asked City Attorney Jeff Norris to research it, but could not say if the council would see or vote on an ordinance in July.

“There’s been some discussion and we are continuing to do some research,” Haag said.

A message was left with Elnora Town Board member Jerry Beck.

The largest issue on the carts may be in Montgomery, where many carts can be seen on the town roads. Board President Mike Healy said the town board will discuss the matter but he said “on a personal basis, I don’t want (an ordinance.)”

“I can’t speak for the rest of the board,” Healy said. “But I don’t think they are safe to be on city streets.”

Earlier this summer, accidents have been reported in the town from golf carts. On May 30, a child was taken to Daviess Community Hospital after a cart flipped over onto her. On May 20, a 12-year-old girl sustained injuries to her legs after a cart accident in Montgomery.

From yesterday's Lebanon Reporter, this story:
Lebanon Mayor Huck Lewis helped put up new golf cart restriction signs Tuesday with street department staff. Twelve new signs went up Tuesday on Ind. 39, Ind. 32, Indianapolis Avenue and Lafayette Avenue. A new ordinance created in the state legislature’s last session allows cities and towns to decide whether golf carts are allowed on state highways or not, Lewis said. Lebanon has had an ordinance for a while, but the new bill requires road signs be put up on state highways. Indianapolis Avenue and Lafayette Avenue were exceptions because, though they are not state highways, golf carts are prohibited. Also, starting today, all golf carts must have a permit. “We’re expecting a lot of people at the office,” Lewis said.

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Indiana Law

Law - "It’s Now Legal to Catch a Raindrop in Colorado"

Kirk Johnson of the NY Times had a story June 28th on "Western" water law. It began:

DURANGO, Colo. — For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West.

Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.

Now two new laws in Colorado will allow many people to collect rainwater legally. The laws are the latest crack in the rainwater edifice, as other states, driven by population growth, drought, or declining groundwater in their aquifers, have already opened the skies or begun actively encouraging people to collect.

“I was so willing to go to jail for catching water on my roof and watering my garden,” said Tom Bartels, a video producer here in southwestern Colorado, who has been illegally watering his vegetables and fruit trees from tanks attached to his gutters. “But now I’m not a criminal.”

Who owns the sky, anyway? In most of the country, that is a question for philosophy class or bad poetry. In the West, lawyers parse it with straight faces and serious intent. The result, especially stark here in the Four Corners area of Arizona, Colorado, New Mexico and Utah, is a crazy quilt of rules and regulations — and an entire subculture of people like Mr. Bartels who have been using the rain nature provided but laws forbade.

See also this companion piece headed "The Legalities of Rainwater Harvesting," by Leora Broydo Vestel.

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Environment | General Law Related

Courts - Even more on: NY high court rules police need warrants for GPS trackers

Updating this ILB entry from May 18th, Sherry F. Colb, Professor of Law and Charles Evans Hughes Scholar at Cornell Law School, had this Findlaw column June 24th, headed "The Highest Court of New York State Protects Privacy from GPS Monitoring."

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Courts in general

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

For publication opinions today (1):

In David and Connie Long v. IVC Industrial Coatings Inc., et al. , a 17-page opinion, Judge Brown writes:

The Longs argue that the trial court erred by granting summary judgment to IVC/Contractors. Specifically, the Longs argue that the trial court erred by finding that the common enemy doctrine applies because: (A) the mechanism that cast mud upon the Longs’ property was surface water and not a natural watercourse; and (B) the water contained mud, silt, and sediment. * * * Under the common enemy doctrine of water diversion, it is not unlawful for a landowner to improve his land in such a way as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land even where his land is so situated to the land of an adjoining landowner that the improvement will cause water either to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the waters were accustomed to flow. * * *

If the water here is characterized as surface water, then the common enemy rule may apply to preclude the Longs’ claims for damages caused by rainwater runoff from the IVC parcel. On the other hand, if the water here is a natural watercourse, then the common enemy doctrine is not applicable. [cites omitted] * * *

Construing the facts and reasonable inferences drawn from the facts in the Longs’ favor, we cannot say that a jury could not determine that the discharge here, with its large content of mud, silt, and sedimentary material, ceased to be mere surface water. From the designated facts, a jury could conclude: that a large mound of surplus dirt was left on the IVC property; that for approximately one year erosion occurred which resulted in extensive amounts of mud, silt, and sedimentary material draining to a collection point, through ditches, culverts, and ravines and into the Longs’ two ponds; that IVC/Contractors took no or few steps to prevent the flow of mud, silt, or sedimentary material with water as evidenced by its repeated violations of “Rule 5;” and that a very large flow of mud or sedimentary material was deposited into the Longs’ ponds causing one of the ponds to fill approximately ten feet at its lowest elevation and the other pond to fill approximately seven feet at its lowest elevation. * * * Therefore, summary judgment on this issue is not appropriate.

For the foregoing reasons, we reverse the trial court’s grant of summary judgment to IVC/Contractors and remand for proceedings consistent with this opinion. Reversed and remanded.[5]
__________
[5] The Longs also argue that the trial court erred in granting summary judgment to IVC/Contractors on the basis that the Longs are non-riparian owners. However, because we reverse the trial court’s grant of summary judgment on other grounds, we need not address whether the Longs are non-riparian owners. Moreover, we note that resolution of this issue may be affected by the fact-finder’s determination of whether the water containing mud, silt, and sedimentary material at issue in this case constituted mere surface water.

NFP civil opinions today (1):

Randy McGee v. Michael Osburn (NFP)

NFP criminal opinions today (7):

Brandon Cravens v. State of Indiana (NFP)

Virginia Cheesman v. State of Indiana (NFP)

Michael T. Freckman v. State of Indiana (NFP)

Lonnie White v. State of Indiana (NFP)

Chad Pemberton v. State of Indiana (NFP)

Jose Jenkins v. State of Indiana (NFP)

Michael L. Rutledge v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from the 7th Circuit

In Glaser v. Wound Care consultants (SD Ind., Judge McKinney), a 31-page opinion, Judge Sykes writes:

Carol Glaser received medical treatment from Wound Care Consultants and was later contacted by an attorney who told her that Wound Care might have improperly billed Medicaid for her treatment. She filed this qui tam action under the False Claims Act (“FCA”), 31 U.S.C. § 3730, seeking recovery as a relator for money the government paid as a result of alleged false or fraudulent Medicare and Medicaid claims submitted by Wound Care. But the government was already aware of the possible improprieties in Wound Care’s billing practices and had commenced an investigation more than four months before Glaser filed her lawsuit. Accordingly, the district court dismissed Glaser’s complaint for lack of subject-matter jurisdiction under 31 U.S.C. § 3730(e)(4), which blocks jurisdiction if the FCA action is “based upon” a “public disclosure” of the alleged fraudulent conduct “unless . . . the person bringing the action is an original source of the information.” Glaser appealed.

The district court correctly concluded that the jurisdictional bar of § 3730(e)(4)(A) applies to Glaser’s qui tam suit. The allegations in Glaser’s complaint about Wound Care’s billing practices are based upon publicly disclosed information, and Glaser has not shown she is an original source of the information used to support the allegations. We therefore AFFIRM the judgment of the district court dismissing the case for lack of subjectmatter jurisdiction.

In U.S. V. McGraw (ND Ind. Judge Springmann), a 15-page opinion, Judge Sykes writes:
While executing a search warrant for drugs inside a Fort Wayne, Indiana apartment building, police officers noticed that the building had several housing-code violations. Police called a neighborhood code-enforcement officer, who arrived and determined that the apartment building must be condemned. That determination required officers to go door-to-door and notify the building’s residents that they needed to leave their apartments. When Frank McGraw, the second floor tenant, arrived on the scene, officers instructed him to secure his dog and collect the belongings he would need for a few days. They also explained their need to inspect his apartment for housing-code violations and to search for potential stragglers. McGraw consented to the search three times before leaving the apartment building with his dog. During that search, police observed narcotics in plain view, and McGraw was charged with possession of crack cocaine.

McGraw moved to suppress the evidence, claiming that any consent he gave was not voluntary but instead constituted acquiescence to the officers’ display of authority. The district court denied the motion, finding that McGraw’s consent was voluntary. McGraw then entered into a conditional plea agreement, in which he waived his right to appeal sentencing determinations but preserved his right to appeal the court’s suppression ruling. At sentencing the district court classified McGraw as a career offender under the guidelines and sentenced him to 262 months’ imprisonment. On appeal McGraw challenges the court’s suppression ruling and its determination that he qualified as a career offender.

We affirm. The district court did not clearly err in finding that McGraw voluntarily consented to the officers’ search. The court analyzed the totality of the circumstances and determined that despite the way in which some of the officers phrased their request to search McGraw’s unit, McGraw voluntarily consented to their search. Because the court’s conclusion is entirely plausible in light of the record viewed in its entirety, the court properly denied McGraw’s motion to suppress. Further, we hold that McGraw waived his right to challenge the district court’s sentencing determination.

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Ind. (7th Cir.) Decisions

Law - Passes NY bar, but denied character and fitness approval because of amount of outstanding student loan

Or, as the headline in the NY Times story by Jonathan D. Glater reads, "Finding Debt a Bigger Hurdle Than Bar Exam." The lengthy story begins:

All his life, Robert Bowman wanted to be a lawyer. He overcame a troubled childhood, a tragic accident that nearly cost him a leg and a debilitating Jet Ski collision.

He put himself through community college, worked and borrowed heavily to help pay for college, graduate school and even law school. He took the New York bar examination not once, not twice, not three times, but four, passing it last year. Finally, he seemed to be on his way.

In January, the committee of New York lawyers that reviews applications for admission to the bar interviewed Mr. Bowman, studied his history and the debt he had amassed, and called his persistence remarkable. It recommended his approval.

But a group of five state appellate judges decided this spring that his student loans were too big and his efforts to repay them too meager for him to be a lawyer.

“Applicant has not made any substantial payments on the loans,” the judges wrote in a terse decision and an unusual rejection of the committee’s recommendation. “Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law.”

Mr. Bowman, 47, appears to have crossed some unspoken line with his $400,000 in student debt and penalties, accumulated over many years.

New York’s courts have overlooked misconduct like lawyers’ solicitation of minors for sex, efforts to deceive judges and possession of cocaine. Those instances have led merely to temporary suspensions from practice.

“It usually takes a pretty significant record of some underlying misconduct to keep you out permanently,” said Deborah L. Rhode, a law professor at Stanford who has studied bar admissions across the states. Excluding someone for having too much debt was odd, she said; the hard questions about loans usually involve applicants who have used bankruptcy to try to escape loans, she said, and Mr. Bowman has not.

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to General Law Related

Courts - Suit against Kentucky newspaper to reveal anonymous poster's identity

Jason Riley has this story today in the Louisville Courier Journal, under the headline "EKU student sues over anonymous post." Some quotes:

The anonymous post appeared online Aug. 13, 2008, under a Richmond Register story, headlined, “You can buy it at the mall, but you can't wear it there.”

The newspaper story, which made national news, was about a college student who'd been kicked out of a central Kentucky mall because she was told the dress she was wearing — bought there the day before — was too short.

But the online poster, identified only as l2bme, claimed to have the true story behind Kymberly Clem's eviction — that she had exposed herself to a woman and her children who remarked on the dress.

A furious Clem alleged defamation, with her attorney filing a lawsuit against l2bme and subpoenaing the newspaper to provide the anonymous poster's identity.

“This person basically fabricated something they wrote as factual,” said Clem's attorney, Wesley Browne.

In an era where newspaper Web sites and blogs allow anonymous commenters increasing freedom, lawsuits and subpoenas seeking their names are becoming much more common.

Earlier this month, the U.S. attorney's office in Las Vegas demanded the identities of everyone who wrote on The Review-Journal's site about a criminal tax trial in progress.

The newspaper had planned to try to quash the subpoena on First Amendment grounds, but the U.S. attorney's office narrowed its request to two comments that it said could be construed as threatening jurors or prosecutors. The newspaper agreed to give up the names, but the American Civil Liberties Union of Nevada is fighting to stop them, according to a Review-Journal article.

In Kentucky, the subpoena against The Richmond Register remains a rarity — one that is breaking new legal ground.

“This is the first of probably many times in the future when the laws that were created during an age when the Internet didn't exist are being applied to a new medium of information,” said Kenyon Meyer, an attorney for The Richmond Register.

While the Register took down the comment and banned l2bme from further posts, the paper is fighting the subpoena. As part of its defense, it cites the First Amendment rights of the paper and the poster to speak freely in a public forum — the same defense used by other papers with online sites and bloggers.

"Anonymous posters" has been a subject for several earlier ILB entries -- see this Dec. 29, 2008 ILB entry. One involved Indiana newspapers -- can anyone provide updated information?

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Courts in general

Courts - "Tweeting, Texting, Googling Banned for Mich. Jurors"

Tresa Baldas of The National Law Journal has this long story today. A quote:

The Michigan Supreme Court has laid the hammer down on gadget-happy jurors in banning all electronic communications by jurors during trial, including tweets on Twitter, text messages and Google searches.

The ruling, which takes effect Sept. 1, will require Michigan judges for the first time to instruct jurors not to use any hand-held device, such as iPhones or BlackBerrys, while in the jury box or during deliberations.

The state's high court issued the new rule on Tuesday in response to prosecutors' complaints that jurors were getting distracted by their cell phones, smartphones and PDAs, in some cases texting during trial or digging up their own information about a case and potentially tainting the judicial process. * * *

According to the National Center for State Courts, a number of states have grappled with the problem of allowing jurors to bring cell phones to the courtroom. A recent questionnaire sent to court administrators across the country showed that many courts are addressing the problem of potential juror misconduct through hand-held devices.

For example, courts in Ramsey County, Minn., recently issued a new cell phone policy that prohibits jurors from brining any wireless communication device to court after two mistrials were declared when jurors used cell phones during deliberation against the court's order.

New Jersey, however, allows jurors to bring cell phones to court, but they must be turned off during trial. Cumberland County, Penn., has a similar phone policy. In Malheur County, Ore., jurors are not allowed to bring cell phones to court at all.

The ILB has had many earlier entries on jorors' tweeting, courts banning cellphones in the courthouse or courtroom, etc. See a list here.

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Courts in general

Environment - More on "Federal judge won't block BP refinery expansion"

Updating yesterday's ILB entry, Gitte Laasby of the Gary Post-Tribune has this story today. Here is a quote:

U.S. District Court Judge Philip Simon, sitting in Hammond, dismissed the case Friday, stating the NRDC's federal case is "nearly identical" to three appeals filed in state court by other environmental groups, some of whom are represented by NRDC attorneys. He said the approach "smells fishy" and called it a "divide and conquer

"A cynic might conclude that the NRDC and its colleagues at the Sierra Club were trying to fight the war on two fronts," Simon stated in his ruling.

He added the state cases are further along and judges at the state Office of Environmental Adjudication have more expertise in reviewing IDEM permit decisions.

The NRDC had argued that BP violated the Clean Air Act by not obtaining the right type of permit. The group said BP's modifications would result in increased emissions of various hazardous pollutants and that IDEM was duped into giving BP the wrong permit because BP underestimated emissions from the expanded refinery.

"The NRDC thinks the IDEM got the call wrong. It may have. But the proper remedy is through the Indiana regulatory and state court process," Simon wrote. "What is the point of having an expert agency appeals process -- or a state court appeals process -- if litigants can simply side-step it by turning to federal courts?"

The P-T also provides a link to Judge Simon's June 26, 2009, 32-page opinion

Posted by Marcia Oddi on Thursday, July 02, 2009
Posted to Environment | Ind Fed D.Ct. Decisions