Monday, March 26, 2012
Environment - More on: Indiana Antidegradation Standards and Implementation Procedures
Updating this ILB entry from March 14, 2012, which references the history of the "long, long awaited antidegradation standards," the Fort Wayne Journal Gazette on March 23rd ran an editorial applauding the new rules. Some quotes:
IDEM too infrequently gives Hoosiers reason to applaud the agency’s regulatory efforts. But the vote by the Indiana Water Pollution Control Board last week to adopt rules that will lower the amount of pollution that companies are allowed to release into state waterways was such an exceptional occasion.The editorial also has this side-bar on the environmental board consolidation that was enacted by this General Assembly:
The old rules set standardized limits on the pollution companies could release with no consideration of existing pollution in a waterway. The new rules ensure it will be considered. * * *
Getting the rules approved took months of public comment and review from the Water Pollution Control Board. The next step is a review from Indiana Attorney General Greg Zoeller’s office and Daniels’ signature.
Hoosiers should know that this praiseworthy decision from the state [water] pollution control board is likely to be one of the board’s last. The General Assembly passed a bill during the recently concluded session that eliminates IDEM’s Water Pollution Control Board, Air Pollution Control Board and Solid Waste Management Boards. It replaces them with a consolidated environmental rules board. Gov. Mitch Daniels signed the bill into law.As the ILB wrote in the March 14th entry:
The new anti-degradation rules are an excellent example why consolidation is a bad move. It took months [ILB - make that "many years"] of review of technical and scientific data for the board to reach its conclusion. The knowledge differs for each of the boards, and the expertise of those board members serving on the three separate boards will be lost with consolidation.
The consolidated board will have to depend heavily on opinions and information provided by IDEM staff, making the board little more than a perfunctory step in approving IDEM policies. It will no longer be a crucial check in the process to ensure the public’s interests are served. [ILB emphasis]
[T]he General Assembly passed a bill this session to abolish the Water Pollution Control Board, along with the Air and Waste Boards, and merge them into an a single "environmental board." The bill is pending before Gov. Daniels. Many people have commented that the complexities in the regulation of the three different media are too much to expect a single board, meeting occasionally, to address adequately, and that it will risk becoming simply a rubber stamp for the Department. The bill is HEA 1002.
Courts - SCOTUS releases audio and transcript of this morning's health care argument
Environment - "North Carolina Rose Acre Farms clean-water debate goes to civil court"
The North Carolina News & Observer, in a story reported by Craig Jarvis, begins:
A dispute over whether North Carolina environmental regulators have the authority to restrict airborne emissions under federal clean-water laws has shifted to civil court.
The case, which is being watched by livestock operators and environmentalists across the country, involves a massive egg farm near a national wildlife refuge in northeastern North Carolina. Rose Acre Farms contends the state Division of Water Quality exceeded its authority and imposed impractical requirements on the operation.
Earlier this month, the Indiana-based company filed suit in Hyde County asking a judge to delay and review a January decision by a committee of the state Environmental Management Commission that went against the farm, which has more than 3 million hens housed in 12 high-rise hen houses.
The committee had reversed an administrative law judge’s ruling in October that airborne ammonia discharges can’t be regulated under the federal Clean Water Act. But the committee referred the case back to the Office of Administrative Hearings for a full hearing to determine if airborne emissions are ending up in the water.
Last week, two environmental groups filed a motion asking a superior court judge to allow them to be parties to the lawsuit, which was filed against the state Department of Environment and Natural Resources. Earlier, the N.C. Poultry Federation was involved in the case.
Ind. Gov't. - "Time for governor to stop denying DCS failures"
That was the heading to this editorial column yesterday by Jack Colwell in the South Bend Tribune. The long column concludes:
The Tribune and the Indianapolis Star have run stories about numerous cases of child abuse in Indiana. Tramelle was far from the only victim.Tim Evans of the Indianapolis Star, in a StarWatch entry just posted, picks up the SBT column and quotes from and expands upon it.
In response, the governor went to the DCS to cite statistics the department had compiled to show a heck of a job was being done and to denounce the newspapers for reporting troubles.
Daniels has in many ways been a good manager of state government, bringing efficiency in such places as the licenses branches, but he couldn't take criticism of the DCS, where he also was boasting of efficiency.
That call to the "hot line" and the response to it revealed less than efficiency in the plight of Tramelle and his siblings.
The DCS was aghast that Judge Peter J. Nemeth ruled in St. Joseph County that The Tribune could have a recording of that call. The department rushed to the Indiana Court of Appeals, obtaining a stay of Nemeth's order, thus blocking publication or website release of audio recordings of the call.
After all, that call wasn't helpful to the DCS image.
Attorney General Greg Zoeller, elected in his own right and aware of the Constitution, halted the censorship. As the official attorney for the state, he dismissed the DCS appeal, letting Nemeth's ruling stand and letting the public read about and hear the call.
Now, Indiana University School of Medicine professor Antoinette Laskey resigns as head of a state team investigating child deaths, saying the Daniels administration was making it impossible for her to do her job. She also questioned those statistics of a drop in child abuse deaths.
"There is no success story in being able to recategorize them as not the responsibility of the Department of Child Services," she said.
Doing a heck of a job?
Some DCS workers no doubt do a great job. But the department failed Tramelle and many other children.
Facts should be faced, not covered up with prior restraint or doctored statistics. As the Indianapolis Star editorialized: "Children's lives are at stake. There's no room for politics or ego here."
Ind. Decisions - Transfer list for week ending March 23, 2012
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]
Here is the Clerk's transfer list for the week ending Friday, March 23, 2012. It is one page (and 9 cases) long.
No transfers were granted last week.
The original grant of transfer was VACATED in one case for which transfer was granted Feb. 2, 2012, Indiana-Kentucky Electric Corporation v. Save the Valley, et al., and in which oral argument was heard March 15th, 2012. The vote was 3-2. See this March 24th ILB entry for details.
Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)
For publication opinions today (1):
In Lavern Ceaser v. State of Indiana, a 17-page opinion, Judge Vaidik writes:
Lavern Ceaser appeals her conviction for Class D felony battery on her daughter, M.R. Ceaser contends that the trial court erred by allowing the State to present evidence regarding her prior conviction for battering M.R. Ceaser also contends that the trial court erred by denying her motion to dismiss and that evidence at trial was insufficient to rebut her claim of parental privilege. We conclude that Ceaser’s prior conviction for battering the same child in a manner similar to the underlying incident was admissible under the intent and lack of accident or mistake exceptions to Indiana Evidence Rule 404(b). We further conclude that the trial court properly denied Ceaser’s motion to dismiss and the evidence at trial was sufficient to rebut her claim of parental privilege. We affirm.NFP civil opinions today (0):
NFP criminal opinions today (2):
Courts - Follow health care argument at WSJ
The WSJ is liveblogging the arguments:
The Supreme Court, starting Monday, is hearing three days of arguments on the constitutionality of President Obama’s health overhaul. A ruling is expected in late June. On Monday, the justices hear arguments on whether to shelve the entire case until 2014, when most of the law takes effect.
The Journal has several reporters at the court, and they will rotate in and out of the courtroom to post updates here.
Vacancy on Supreme Court 2012 - Region native takes helm as Indiana's acting chief justice
A great story in the NWI Times today, reported by Dan Carden. Some quotes:
INDIANAPOLIS | A Northwest Indiana native is the top judge in the state.
Supreme Court Justice Brent Dickson, who was born in Gary and grew up in Hobart, became acting chief justice of Indiana on Saturday upon the retirement of Chief Justice Randall Shepard.
He will lead the state's high court and manage Indiana's court system until a new chief justice is selected later this year from among the Supreme Court's five justices by the Indiana Judicial Nominating Commission.
Dickson, 70, has served on the Supreme Court since Jan. 6, 1986, and as the longest-serving justice automatically became acting chief after Shepard's departure. Dickson was a general practice attorney in Lafayette when then-Republican Gov. Robert Orr appointed him the 100th justice on the high court.
Orr said he selected Dickson because "he is an outstanding attorney and legal scholar with a good dose of common sense and practical judgment."
By all accounts, Dickson has lived up to Orr's expectations. Among his many written rulings for the court, Dickson authored the decisions in two cases involving the town of St. John that led to a complete restructuring of Indiana's property tax system.
Ind. Decisions - A report on the ongoing State/IBM trial
First news since March 20th on the ongoing IBM/State trial before Marion Superior Court Judge David Dreyer, who apparently is working on the case 24/7. From the Indianapolis Star:
A Marion County judge has dismissed some of the state's claims against IBM in dueling lawsuits over a canceled welfare-modernization contract.
The state has claimed, among other things, that IBM had provided false information throughout the project.
Marion Superior Court Judge David Dreyer signed an order Sunday dismissing 17 of the state's claims that addressed those issues.
"Specifically, the state has introduced no credible evidence that IBM knowingly or intentionally made any false statements to the state or any other governmental entity," according to Dreyer's order.
Courts - Historic Health Care arguments this week before the SCOTUS
Too big a topic for the ILB, but SCOTUSblog's Lyle Denniston has done great prep work with his four introductory articles:
- Argument preview: Health care, Part I — The power to decide? - This is TODAY, March 26
- Argument preview: Health care, Part II — Fate of the mandate
- Argument preview: Health care, Part III — Beyond the mandate
- Argument preview: Health care, Part IV — The Medicaid expansion
Catch-up: What did you miss over the weekend from the ILB?
Below is the answer to "What did you miss over the weekend from the ILB?
But first, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB.
From Sunday, March 25, 2012:
- Ind. Courts - "Prosecutor Hermann worries complaint could discourage attorneys from part-time post: Rule could restrict lawyers' work in private practices"
- Vacancy on Supreme Court 2012 - "He's no longer chief justice, but don't call Shepard retired"
- Ind. Gov't. - "Sharing concerns about children: Cases raise questions about how police are alerted to possible abuse"
- Ind. Law - SEA 1, "Restoring the Castle Doctrine"
- Ind. Courts - "Widow waits years for action in malpractice lawsuit"
- Law - "Are child porn laws unfair? Viewers' sentences can be worse than molesters'"
- Ind. Decisions - "New trial ordered for woman convicted of Hammond homicide"
- Ind. Gov't. - "The End of an Era in Indiana: The Wigwam, a nearly 9,000-seat field house in Anderson, Ind., closed in 2011, making this the first season in 50 years that the Anderson High School Indians did not play their home games there."
- Environment - More on "Rural Bloomfield company specializing in 'meth lab' clean ups"
From Saturday, March 24, 2012:
- Courts - "Courtroom trials, the stuff of television dramas, almost never take place"
- Vacancy on Supreme Court 2012 - Governor Daniels fails again to appoint a woman to the Supreme Court
- Stage Collapse - "Indiana judge orders Sugarland to testify in April"
- Courts - "A Bizarre Outcome on Generic Drugs"
- Ind. Courts - "Daniels says the current state system for appointing judges works in Indiana, but calls the Marion County slating system for judicial selection a travesty"
- Vacancy on Supreme Court 2012 - One take on Daniels' Supreme Court selections
- Ind. Decisions - Associational standing challenge fails, Court rules transfer improvidently granted
From Friday afternoon, March 23, 2012:
- Vacancy on Supreme Court 2012 - Massa appointed [Updated]
- Vacancy on Supreme Court 2012 - Gov. Daniels names ...
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 3/26/12):
Wednesday, March 28th
- 9:00 AM - Plank v. Community Hospitals of Indiana, Inc. (49S04-1203-CT-135) - CANCELLED
- 9:45 AM - J.M. v. Review Board (93S02-1203-EX-138) - J.M. attempted to make up missed work time after having been told not to do so by his manager. J.M.’s employment was terminated and J.M. applied for unemployment benefits. The Review Board reversed an ALJ’s award of benefits, determining that the employer had just cause to discharge J.M. from his employment. The Court of Appeals reversed the Review Board. J.M. v. Review Board, No. 93A02-1102-EX-146 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
This was a Dec. 29, 2011 NFP opinion. In a concurring opinion Judge Baker writes: "I concur in the result reached by the majority but write separately to express my disagreement with the majority’s use of initials."Correction: This was a Sept. 19, 2011 NFP opinion, also titled J.M. v. Review Board.
- 10:30 AM - Hugh Reed v. Edward Reid, et al. (40S01-1107-PL-436) - Plaintiff alleges that several Defendants illegally dumped hazardous waste instead of "clean fill" on his property. The Jennings Superior Court entered five partial summary judgment orders in favor of Defendants. The Court of Appeals dismissed Plaintiff's appeal by unpublished order. The Supreme Court granted a petition to transfer the case, assumed jurisdiction over the appeal, and ordered briefing on the merits.
- 5:00 PM - Dalmas Anyango v. Rolls-Royce Corp., et al. (49A04-1011-CT-679) - Plaintiffs’ son was killed as a result of a helicopter crash in British Columbia. Plaintiffs filed a wrongful death action in the Marion Superior Court against the manufacturers of the helicopter, the engine, and the engine’s components. The trial court granted the defendants’ motion to dismiss on grounds of forum non conveniens, and the Court of Appeals affirmed. Anyango v. Rolls-Royce Corporation, 953 N.E.2d 1147 (Ind. Ct. App. 2011). The plaintiffs have petitioned the Supreme Court for transfer. [Note: The oral argument will be held at Grand Theatre, 138 East Market St., New Albany. No webcast will be available.]
ILB: This was an Aug. 24, 2011 COA opinion.
Next week's oral arguments before the Supreme Court (week of 4/2/12):
- No oral arguments currently scheduled.
This week's oral arguments before the Court of Appeals (week of 3/26/12):
Thursday, March 29th
- 10:00 AM - State of Indiana vs. Blake Lodde (79A02-1111-CR-1067) - An officer stopped at the home of Blake Lodde to check on him because Lodde was a convicted sex offender assigned to the officer. As the officer and Lodde spoke the officer noticed some indicia of Lodde’s possible intoxication. The officer returned to his vehicle, Lodde entered his car to drive away, and the same officer pulled him over. The trial court granted Lodde’s motion to suppress evidence, and the State now appeals. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Kirsch. [Where: Ivy-Tech-Lafayette, Ivy Hall 3101 South Creasy Lane Lafayette]
Next week's oral arguments before the Court of Appeals (week of 4/2/12):
Monday, April 2nd
- 3:30 PM - Latisha A. Lawson vs. State of Indiana (02A03-1107-CR-350) - Latisha Lawson appeals her convictions for Class C felony neglect of a dependent, Class D felony neglect of a dependent, Class D felony battery, and murder. On appeal, Lawson contends that her convictions cannot be sustained because she was legally insane when she committed the offenses. The Scheduled Panel Members are: Judges Najam, Mathias and Barnes. [Where: Notre Dame Law School, South Bend]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.