« December 03, 2012 | Main | December 05, 2012 »

Tuesday, December 04, 2012

Courts - More on: SCOTUS to hear cases on water runoff this week

Updating this ILB entry from Monday, the oral argument on "stormwater discharges through logging-road ditches and culverts" took a surprising turn, as explained in this SCOTUSblog post by John Elwood - a quote:

As it happens, the Court spent little time at argument Monday on any of the questions it granted cert. to decide, and instead devoted nearly the entire hour to discussing a new rule EPA promulgated unexpectedly on Friday – just days before argument, and likely after all of the advocates had completed their moot courts. And it seems to be a foregone conclusion that that Rule, which is so new it hasn’t yet made its way into the Federal Register (and even the version posted on the EPA website is labeled “not the official version”), will determine the outcome of these cases.
[More] For rulemaking geeks, this article by Lawrence Hurley and John McArdle, E&E reporters, headed "High Court puts spotlight on speed of rulemaking ," is absolutely fascinating. Hijinks involving the timely publication, or not, of the Unified Agenda of Regulatory and Deregulatory Actions?

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Courts in general

Ind. Gov't. - Governor-Elect Pence appoints several attorneys

Ice Miller partner Marilee J. Springer has been named Senior Policy Director by Governor-elect Pence.

Tony Bennett’s Chief of Staff (and former Public Access Counselor) Heather Neal will be Legislative Director.

More details here from Indy Politics.

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Indiana Government

Ind. Gov't. - "States’ Film Production Incentives Cause Jitters"

Today the NY Times has the 3rd in its series on state tax incentives. The headline "Michigan Town Woos Hollywood, but Ends Up With a Bit Part."

The NY Times also wrote about this topic in 2008, as seen in this Oct. 12, 2008 ILB entry. The entry notes that Gov. Daniels had vetoed such incentives for Indiana, but the General Assembly overrode the veto. However, according to a IndyStar story from Aug. 15, 2008 quoted in the entry:

Indiana has finally positioned itself to become the real-life backdrop for blockbuster films and network TV shows.

But in the six weeks or so since offering its new film incentives program -- which went into effect July 1 -- no new film or television productions have qualified for the tax rebates offered. No applications have even been received.

Compare this to Michigan, which introduced its own film incentives just three months earlier. Since then, more than $150 million in film business has flooded into the state, including Clint Eastwood's newest film, "Gran Torino."

The difference? With up to a 42 percent rebate on production costs, Michigan's incentives are nearly triple the 15.percent in rebates the Hoosier state offers.

This July 16, 2009 ILB entry quotes from a Lesley Stedman Weidenbener Louisville Courier Journal report on budget cutbacks in the Indiana film tax credit program.

Also today, Maureen Hayden of the CNHI Statehouse Bureau has a story in the Logansport Pharos Tribune headed " Indiana's Hollywood Moment: ‘Parks and Rec’ meets real politics in Indiana shoot." It begins:

INDIANAPOLIS — What do you do when a political celebrity shows up for impromptu lunch at a landmark restaurant where the cast and crew of NBC’s “Parks and Recreation” are shooting a scene?

You ask him if he wants in on the action and then, on the spot, you write up a cameo role.

That’s what happened Monday when former presidential candidate Newt Gingrich walked into St. Elmo’s Steak House in downtown Indianapolis as actor Rob Lowe and his male co-stars were filming a scene for an upcoming episode of the popular sitcom based in fictional Pawnee, Ind.

“This is wild,” actor Adam Scott said as Gingrich passed by on his way to makeup.

It’s Scott’s character, Ben Wyatt, who’s the reason Hollywood had taken over much of the iconic steakhouse: St. Elmo’s is the scene of Ben’s big bachelor party in Indianapolis, thrown by his steak-loving co-worker, Ron Swanson, and attended by some of the civil servants who populate Pawnee’s city hall. (Ironically, Scott’s character has recently returned from a job on Capitol Hill.)

Gingrich had stopped by the restaurant, not knowing of the film shoot, on his way to an appointment with Indiana Gov. Mitch Daniels.

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Indiana Government

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

For publication opinions today (3):

In Lane Alan Schrader Trust as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self-Declaration of Trust v. Larry Gilbert and Nancy J. Malecki, a 3-page opinion in a petition for rehearing in a case challenging a legal survey, Judge Baker concludes:

Petition for rehearing granted for the purpose of clarification. Otherwise, we stand by our previous opinion.
In James T. Mitchell v. 10th And The Bypass, LLC, and Elway, Inc., a 6-page opinion on a petition for rehearing, Judge Najam writes:
James T. Mitchell has filed a petition for rehearing asking that we reconsider our holding that the trial court did not abuse its discretion when it vacated its interlocutory partial summary judgment for Mitchell under Indiana Trial Rule 54(B). We grant Mitchell’s petition to address his contention that our opinion misunderstands and mischaracterizes his argument. We think not. After careful consideration, we conclude that on rehearing Mitchell attempts to adjust and supplement his original argument, which he cannot do. Having reviewed the original briefing, we conclude that we correctly decided the question presented in the first instance on appeal, and, therefore, we affirm our opinion in all material respects.
In Jerry Vanzyll v. State of Indiana , a 15-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion when it admitted the jail guard’s testimony that Vanzyll admitted to writing the letter that was also admitted at trial as State’s Exhibit 8A. The evidence was sufficient to prove that Vanzyll manufactured methamphetamine. However, the State failed to present sufficient evidence that Vanzyll committed Class A misdemeanor resisting law enforcement, and therefore, we reverse that conviction.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

NFP civil opinions today (1):

Richard Eric Johnson v. Gillian Wheeler Johnson (NFP)

NFP criminal opinions today (4):

Brian A. McKinney v. State of Indiana (NFP)

B.W. v. State of Indiana (NFP)

Robert E. Eastwood v. State of Indiana (NFP)

S.J. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: "RFP to replace legislative systems"

This July 23rd ILB post discussed the the Indiana Legislative Services Agency RFP, issued July 9th:

seeking a qualified vendor to provide business analysis, system analysis, software design, software development, software testing, and system integration services to replace existing legislative information systems.
What is the current status of this project?

LSA entered into a contract with Propylon, Inc., on October 3, 2012. Here is a copy. The total dollar contractual amount is $ $4,462,000. It will take several years to implement.

In addition, here is the meat of the contract; the following are the documents referred to in the Scope of Work section of the contract:

(1) Project Plan;

(2) Output Documents (a) scenarios_outputs_lsa (b) scenarios_outputs_chm (c) output_priorities_lsa (d) output_gathering_chamber;

(3) Project Milestone Schedule with the last page (concerning methodology trade secrets) deleted; and

(4) Propylon’s RFP Response with the following deleted: (a) Section 4 (contains methodology trade secrets); (b) Appendix A (contains detailed personnel information including specific salaries); and (c)Appendix E (contains confidential financial information).

Here are some recently updated legislative websites from other states:Of the four, North Dakota appears to have been a Propylon client. Here is a list of their clients.

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Indiana Government

Courts - "SCOTUS to Decide if Human Genes Are Patentable"

David Kravets of WIRED reported Nov. 30th:

The Supreme Court announced Friday it would review a case testing whether human genes may be patented, in a dispute weighing patents associated with human genes known to detect early signs of breast and ovarian cancer.

A 2009 lawsuit filed by the American Civil Liberties Union claimed among other things the First Amendment is at stake because the patents are so broad they bar scientists from examining and comparing the BRCA1 and BRCA2 genes at the center of the dispute. In short, the patents issued more than a decade ago cover any new scientific methods of looking at these human genes that might be developed by others.

The ACLU, representing dozens of patients and researchers, said the case challenges the legality and constitutionality of granting patents covering the most basic element of every person’s individuality. The civil rights group maintains that, “What is patented is the abstract idea that nature has made the two genes different in a manner that increases that person’s risk of cancer.”

The patents at issue gave Myriad Genetics, the defendant in the case, a virtual monopoly on such predictive testing for breast and ovarian cancer, according to the suit. Women who fear they may be at an increased risk are barred from having anyone look at their BRCA1 and BRCA2 genes or interpret them except for the patent holder, which charges about $3,000 per test or more.

Here also is a Nov. 30th story from Adam Liptak of the NY Times.

The ILB has had a number of earlier entries about Myriad Genetics.

Alison Frankel's Thomson Reuter On the Case column yesterday is headed "In gene case, SCOTUS to confront Federal Circuit on patentability."

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Courts in general

Ind. Courts - "A Court that Cares: Judge Granger answers call of duty with special court for veterans"

On Nov. 29th the ILB quoted from a story in the Evansville Courier & Press on the Vanderburgh County's Veterans Treatment Court.

Today Maureen Hayden of the CNHI Statehouse Bureau reports in the New Albany News & Tribune in a long story that begins:

NEW ALBANY — Floyd County Superior Court No. 3 Judge Maria Granger is the proud daughter of a retired Marine, sister to a former sailor, and wife and stepmother of soldiers. She answered her call of duty in a different way: By creating a problem-solving court for veterans who find themselves in legal trouble.

Every Monday in her courtroom, young service members who’ve run afoul of the law in returning to civilian life appear in front of Granger to be sentenced to counseling and treatment instead of a jail or prison cell.

Her sentencing conditions are strict — supervision is intense and monitoring is frequent — but they’re handed down with a team of reinforcements that includes volunteer mentors who themselves have survived the experience of war.

It’s an interventionist approach, modeled on veterans treatment courts across the nation, that Granger says honors the guarantee of “restorative justice” found in the Indiana constitution.

It’s also a labor of love, done in the name of her stepson, Army Sgt. Steven Paul Mennemeyer, a combat medic in the Iraq war killed in the line of duty.

“I was so proud of him,” said Granger. “This is just one of the ways I can honor him.”

The special court that Granger started in February is one of four such courts in Indiana launched in partnership with the Veterans Administration and in collaboration with local prosecutors, defense attorneys, police and corrections officials. Two more are in the making.

Their existence is in response to a trend that Granger and other judges have seen in recent years: An increasing number of young service members returning from Iraq and Afghanistan showing up in court, charged with relatively small crimes linked to bigger mental health issues, including substance abuse and addiction.

ILB: Readers may recalled that Judge Granger was a semi-finalist for the Supreme Court position to which Justice Massa was ultimately appointed.

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Indiana Courts

Ind. Decisions - "Appeals court: Second region sex offender not required to register"

Yesterday's Court of Appeals ruling in State v. Hough (ILB entry here) is the subject of a story today in the NWI Times, reported by Dan Carden:

INDIANAPOLIS | For the second time in less than a month, the Indiana Court of Appeals has declared it unconstitutional to require a Northwest Indiana man to register as a sex offender.

Terry Hough, 48, of Portage, was convicted of rape in 1993 in Pennsylvania. He served nearly four years in prison, completed his parole obligations in 1998 and then moved to Indiana.

Hough's conviction came prior to enactment of sex offender registration laws in either Indiana (1994) or Pennsylvania (1996). Porter Superior Judge Roger Bradford previously ruled forcing Hough to register would be an unconstitutional, retroactive punishment.

Republican Attorney General Greg Zoeller appealed that finding. In a 3-0 ruling, the Indiana Court of Appeals concluded Bradford got it right.

The appeals court acknowledged changes since made to Pennsylvania law would compel Hough's registration if he lived there. But as an Indiana resident, Hough is protected from retroactive punishment by the Indiana Constitution, the court ruled.

"To require that Hough register as a sex offender for a conviction pre-dating the enactment of (Indiana's Sex Offender Registration Act) would violate Indiana's constitutional prohibition against ex post facto laws," Judge Paul Mathias wrote.

On Nov. 8, a separate three-judge Court of Appeals panel ruled Jerome Burton, of Hammond, convicted in 1987 of a sex crime in Illinois, is not required to register because his conviction came prior to creation of the Illinois and Indiana sex offender registries.

Zoeller spokesman Bryan Corbin said the attorney general's office is reviewing the rulings to decide whether to appeal to the state's highest court.

"The Indiana Supreme Court has held that the Indiana Constitution limits some of the circumstances in which the offender registration laws apply. So the courts are continuing to consider, case-by-case, the boundaries of those limits," Corbin said. "As state government's lawyer, the Indiana Attorney General's Office has a responsibility to help courts sort through these complex questions."

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Ind. App.Ct. Decisions