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Tuesday, April 24, 2012

Environment - "Army Corps expands list of options for stopping Asian carp"

Here is the list, from an AP story in the Chesterton Tribune:

The U.S. Army Corps of Engineers has added three options to list of possible measures for preventing Asian carp and other invasive species from migrating between the Great Lakes and Mississippi River watersheds.

In December, the corps released a draft report suggesting methods such as overfishing, ultraviolet light, water guns and introducing native predators in Chicago-area rivers and canals that link the two massive aquatic systems.

A final version issued last week also raised the possibility of freezing or drying sections of the waterways, or zapping organisms with carbon dioxide pellets. Next, the corps will decide which options merit further consideration.

Seriously.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Environment

Ind. Decisions - "Jill Behrman killer to have 2013 hearing"

Keith Rhoades has the story in the Bloomington Herald-Times ($$).

John R. Meyers II was convicted of the murder of Jill Behrman in 2006:

Myers appealed his conviction, but it has been upheld by the Indiana Supreme Court. He filed for conviction relief in February of 2009.

The case is in Morgan County Superior Court under Judge G. Thomas Gray. In August 2010, the judge granted requests from Myer’s new lawyers — Anne Murray Burgess and Joanna Green, who were appointed to represent Myers — to make available all evidence collected in the case. * * *

An attorney conference is scheduled for 4 p.m. Nov. 1. The post conviction relief hearing is scheduled for April 23-26, 2013.

Myers is being held at the state prison in Michigan City.

Here is a long list of earlier ILB entries on the Myers case.

Recall that Myers' attorney, Patrick V. Baker of Indianapolis, was suspended from the practice of law in late 2011, for "6 months" plus the ominous "without automatic reinstatement."

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "A schoolteacher claims in ND Ind. that the Diocese of FtW-SB and St. Vincent de Paul School fired her and called her a "grave, immoral sinner" because she and her husband were trying to have a baby through in vitro fertilization"

That is the lede to this story today in Court House News, written by Joe Harris. Read the details at CHN, and read the 11-page complaint here, via the ILB - the case is Emily Herx v. Diocese.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In George Clements v. Kimberly Hall and Stanley Harmon, a 7-page opinion, Chief Judge Robb writes:

George Clements (“Clements”) filed a motion for relief from judgment requesting the trial court set aside summary judgment granted in favor of Kimberly Hall and Stanley Harmon in a dispute over real property. The trial court denied Clements’s motion. Clements raises two issues for our review, one of which we find dispositive: whether the trial court erred in denying Clements’s motion for relief from judgment. Concluding the trial court’s denial of Clements’s motion for relief from judgment was in error because Hall and Harmon’s attorney knew Clements was represented by counsel and failed to serve notice of the motion for summary judgment, we reverse and remand for further proceedings. * * *

Pursuant to Johnston, we conclude Foland’s knowledge that Clements was represented by Voils gave rise to an obligation to notify Voils when Hall and Harmon moved for summary judgment even though Voils had not yet filed an appearance. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

In Shawn A. Keckler, Kari Felda, Special Admin. to the Estate of Ryan S. Holloway, Janice Norman, Dewayne Scott, Timothy J. Boganwright, et al. v. Meridian Security Insurance Company, a 21-page opinion, Judge Barnes writes:
Shawn Keckler, Kari Felda (as Special Administrator to the Estate of Ryan Holloway), Janice Norman and DeWayne Scott (as the mother and father of Bryant Scott), Timothy and Sara Boganwright, and Indiana Farm Bureau Insurance Company (“Farm Bureau”) (collectively, “the Appellants”) appeal the trial court’s entry of summary judgment in favor of Meridian Security Insurance Company (“Meridian”) in Meridian’s declaratory judgment action. We reverse and remand.

The Appellants raise five issues, which we combine and restate as the following two issues:
I. whether the trial court properly concluded as a matter of law that an exclusionary clause in Meridian’s umbrella insurance policy that insured Nathan Creighton at the time of a severe automobile accident caused by him precludes any and all claims by the Appellants against Meridian’s policy; and
II. whether public policy requires exclusion of coverage for the Appellants’ claims. * * *

In sum, we conclude that Meridian has not met its burden on summary judgment of establishing that the exclusionary clause for injuries arising out of the use of marijuana applied in this case. Our holding today has no effect on the validity of cases such as Bennett and Shepler that decided much different questions in the context of the criminal law. As the Pennsylvania Supreme Court noted in Eisenman, “the insurance policy in no way saves the insured from the consequences of his criminal act.” Eisenman, 264 A.2d at 675. Creighton has been penalized for that act. Denying insurance coverage here, on the other hand, would have drastic consequences not only for Creighton, but also for “innocent” injured parties seeking recompense for the injuries he caused.

We reverse the entry of summary judgment in favor of Meridian and remand for further proceedings consistent with this opinion.

In Delbert Conklin v. Review Board of the Indiana Department of Workforce Development and Carter Express, Inc. , a 9-page opinion, Judge Barnes writes:
Delbert Conklin appeals the denial of his application for unemployment benefits by the Review Board of the Indiana Department of Workforce Development (“the Board”). We reverse.

The sole restated issue we need address is whether there is sufficient evidence to support the Board’s decision that Conklin was terminated from his employment for just cause. * * *

The Board’s determination that Conklin was discharged for “just cause” was unreasonable because of the lack of evidence that the accident was his fault. We reverse the denial of unemployment benefits to Conklin.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of M.B., D.B., and D.S.; M.B. (Mother) v. Indiana Dept. of Child Services (NFP)

In Re The Marriage of: Leanne Kathleen Johnson v. Florenzo Johnson (NFP)

NFP criminal opinions today (3):

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

Harold W. Reynolds v. State of Indiana (NFP)

Releford Green, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Ind. App.Ct. Decisions

Not law - "The Confusion of Hospital Pricing"

Roni Caryn Rabin, who writes the Consumerist column in the NYT, writes today at length on:

... the report published Monday in the Archives of Internal Medicine, [showing] fees for a routine appendectomy in California can range from $1,500 to — in one extreme case — $182,955. Researchers found wide variations in charges even among appendectomy patients treated at the same hospital.
More from the story:
The wide range of hospital prices isn’t limited to appendectomy. In 2007, researchers at the University of Pittsburgh and elsewhere posed as patients trying to get pricing information from hospitals in advance of a procedure, a right under California state law. Hospital hysterectomy charges ranged from $3,500 to $65,300, the researchers found. Gallbladder removal charges ranged from $2,700 to $36,000, and a colonoscopy screening might cost anywhere from $350 to $5,805.

Fewer than one-third of the 353 hospitals that were queried even responded to requests for pricing information. Those that did often did not provide all the information requested or say whether physician fees were included, said Dr. Ateev Mehrotra, an assistant professor of medicine at University of Pittsburgh School of Medicine and a RAND policy analyst who was the senior author of that study.

“In the past decade, there has been an aggressive push to make the patient a more active consumer who shops around for care,” Dr. Mehrotra said. “The question is, can they do it?”

He does not think so. “The current process does not facilitate that by any means,” he said. “It’s a crazy process. If we want consumers to play this role, we need to fix this system.”

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to General News

Law - "Analysis: State attorneys general: New Republican power"

Joan Biskupic, now at Reuters, has this long, interesting story today about federal challenges brought by state attorneys general:

Abbott and Bondi [Texas AG Greg Abbott and Florida AG Pam Bondi] said litigation costs are largely absorbed through their in-house legal staffs. For the 26-state healthcare challenge, the states hired outside lawyer Paul Clement, a former U.S. solicitor general under President George W. Bush. Clement agreed to a flat $250,000 fee, divided among the states.

On Wednesday, Clement will be representing Arizona in its defense of its immigration law before the Supreme Court. Clement and his legal team will receive $250,000 for work in preparation on this week's case, said Matthew Benson, a spokesman in the Arizona governor's office.

Among those leading the expanding Republican contingent of state attorneys general are veterans such as Abbott, elected in 2002, and new figures backed by the conservative Tea Party movement such as Bondi, who was sworn in last year. Their lawsuits have touched on a myriad of politically charged issues.

In February, seven Republican attorneys general, including Abbott and Bondi, joined Catholic institutions in a case against the Obama administration and its new contraceptive coverage required by the healthcare overhaul. Separately, Abbott and Virginia Attorney General Ken Cuccinelli have taken the lead in ongoing challenges to U.S. environmental protection regulation.

Many of the Republican top state prosecutors also have vigorously fought against Department of Justice efforts to block state voter-identification and other new electoral rules that could themselves affect turnout and ballot results. Texas and Florida have, in addition, challenged the longstanding federal law that requires places with a history of bias against blacks and other minority voters to clear any electoral changes with the federal government. * * *

Major Republican challenges related to the environment, including one Virginia joined with industry groups against regulation of carbon-dioxide emissions, now at the U.S. Court of Appeals for the District of Columbia Circuit, are still awaiting resolution. * * *

To be sure, attorneys general, most of whom are elected to four-year terms and whose work mainly involves consumer advocacy and crime busting, still join forces across party lines. "Attorneys general, Republican and Democratic alike over the last 10 years, have become somewhat more partisan and more aggressive," said Iowa Attorney General Tom Miller, a Democrat who was first elected in 1978. "But ... the vast majority of things that AGs do are on a bipartisan basis." In March, 49 state attorneys general (all but Oklahoma's) joined the U.S. government in a $25 billion settlement with five major mortgage lenders to help distressed borrowers.

The fact that the partisan split between states' attorneys general is now nearly even has largely gone unnoticed by the public. But during arguments on the healthcare law, Supreme Court Justice Antonin Scalia wryly asked Clement, who was representing the state challengers, "Is there any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors? Is that possible?"

"There's a correlation, Justice Scalia," said Clement.

ILB: What about Indiana? Discovering what federal lawsuits the State of Indiana is participating in is not an easy matter. See this ILB entry from August 7, 2009 headed "Who should decide Indiana's position on national legal issues? Who should know?, calling for transparency.

Several years ago, with cooperation from AG Zoeller's office, the ILB was able to prepare a 2009 table of AG Zoeller Amicus Briefs. My hope had been that the AG's website would initiate a similar table, continuously disclosing the lawsuits the AG has elected to participate in, and to take a position in on behalf of Indiana's citizens.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to General Law Related | Indiana Government

Ind. Law - "Sheriffs Ask For Consistency With Sex Offender Registry"

Jason Gabrick of Indiana Public Media writes today:

Marion County Sheriff John Layton recently removed 520 names from the county’s Sex Offender Registry after erroneous records were discovered. Layton’s legal counsel, Kevin Murray, says the names removed were those of sex offenders who had been sentenced before Indiana had enacted a Sex Offender Registry law. * * *

Morgan County Sheriff’s Office Investigator, Don Abel, says the problem is Wallace offenders have been registering since 1994 and every county has to decide what to do with that registration information now that they are no longer required to register.

“Some county’s prosecutors, I’m sure, said take them out of the list whether there is a court order or not, other prosecutors said don’t make them register but leave them on the list,” Abel says. “And there was a third set of prosecutors who said don’t make them register, leave them on the list, but don’t put their address on the list because if they’re not required to register they may no longer be living at that address.”

Abel’s biggest concern is a lack of standardization across the state.

Indiana Sheriffs Association Director, Steve Luce, says although no state entity regulates how the counties interpret the State Supreme Court ruling, his agency is trying to help sheriffs standardize their practices.

“It’s their record and they have to interpret. What we try to do with the Sheriff’s Association is to reach out to the legislators and try to get the legislation to where it can be interpreted one way so that everybody is consistent in how they do the registration,” Luce says.

Murray, Abel, and Luce say the legislation needs to catch up with the judicial decision regarding Wallace v. State. All three say they hope the general assembly will meet this summer to determine what the legislative reaction should be.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Indiana Law

Stage Collapse - More on "State Fair report will lead to best practices in industry"

Updating yesterday's ILB entry, some quotes from John Tuohy's story today in the Indianapolis Star, which is headed "Event Safety Alliance putting together guidelines for concert safety: Music industry organization calls it No. 1 issue; governor says stage collapses are a 'global problem'":

But one critic of the group called its formation a "publicity stunt," intended to stop stricter government regulation.

"This is just another fake PR group that the industry always creates after a disaster to get publicity and then nothing happens," said crowd safety consultant Paul Wertheimer, founder of Crowd Management Strategies, of Los Angeles, who has advised cities and groups around the world on how to improve safety at events.

About 40 members of the consortium held a closed-door meeting with Gov. Mitch Daniels and other top administration officials. * * *

The Alliance is reviewing a manual used in Europe since 1993 called the Event Safety Guide, or "purple guide," and plans to use it as a model for a standard in the United States. The guide emphasizes communication and safety planning among those responsible for putting on concerts.

Many of the recommendations mimic those suggested by Witt Associates, which conducted an independent investigation of the State Fair accident. Among the purple guide suggestions are "creating a health and safety policy; planning to ensure the policy is put into practice; and organizing an effective management structure and delivery of the policy."

After the meeting, Daniels called deadly stage collapses at public events a "global problem." He said the state already has moved to toughen its safety standards and could incorporate some of the Alliance's suggestions into its regulations.

"We are on full and maximum alert now," Daniels said. "You won't be putting up anything much bigger than a pup tent in Indiana from now on that somebody doesn't come by and ask questions first."

Senate Bill 273 requires those who put up temporary stages at events to conduct inspections of them and submit proof to the state. The law will expire Jan. 1, 2014. In the meantime, a summer study committee will delve more deeply into the safety concerns. In 2013, the Indiana General Assembly could approve more thorough legislation.

Daniels said that falling stages are a problem around the world, and he rattled off a handful of other tragedies that occurred last year. * * *

Wertheimer scoffed at that characterization.

"It is only a global problem among reckless, careless and incompetent event organizers," Wertheimer said. "It is not a global problem among people who know what they are doing."

The investigations by Witt and the construction firm, Thornton Tomasetti, criticized the Fair Commission as unprepared for the storm that blew the rigging and scaffolding over. The probes also concluded that the rigging was not as sturdy as it should have been and that nobody bothered to inspect it.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Stage Collapse