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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 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.

The editorial also has this side-bar on the environmental board consolidation that was enacted by this General Assembly:
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.

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]

As the ILB wrote in the March 14th entry:
[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.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Environment

Courts - SCOTUS releases audio and transcript of this morning's health care argument

See SCOTUSblog.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Courts in general

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.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Environment

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.

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."

Tim Evans of the Indianapolis Star, in a StarWatch entry just posted, picks up the SBT column and quotes from and expands upon it.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Indiana Government

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.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Indiana Transfer Lists

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):

Adrien Newson v. State of Indiana (NFP)

Lawrence Roper v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Ind. App.Ct. Decisions

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.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Courts in general

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.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Vacancy on Supreme Court 2012

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.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Ind. Trial Ct. Decisions

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:

See also the perspective offered by Denniston in this essay from Sunday, headed "Taking its place in history…."

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Courts in general

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:

From Saturday, March 24, 2012:

From Friday afternoon, March 23, 2012:

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Catch-up

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

Thursday, March 29th

Next week's oral arguments before the Supreme Court (week of 4/2/12):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 3/26/12):

Thursday, March 29th

Next week's oral arguments before the Court of Appeals (week of 4/2/12):

Monday, April 2nd

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.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Upcoming Oral Arguments