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Thursday, December 06, 2012

Ind. Law - "Indiana Tech Law School receives library collection"

The FWJG has posted this news release; here are some quotes:

Fort Wayne, Ind. – Indiana Tech Law School Dean Peter C. Alexander announced today that the law school has received an anonymous donation of a significant library collection for the Fort Wayne law school start-up effort.

The donor, a businessperson who lives out of state, acquired the library collection of a law school that was not able to earn ABA accreditation. The donor stored the collection with the hope that the books and microfiche it contained would be put to good use someday.

The exact volume count of the collection is unknown, but Alexander has inspected the collection and he is very impressed.

“There are so many books that they are currently being stored in eight tractor-trailers, and the microfiche collection has been stored in a large climate-controlled storage area,” he said. “Everything is in very good condition.”

ILB: Okay, the real story here is, what law school is it that is apparently giving up the ghost after not being able to earn ABA accreditation?

The ILB's first guess is Duncan Law School in Tennessee. This fledgling law school, located in Knoxville, has been mentioned in a number of ILB posts on new schools' efforts to acquire ABA accreditation.

In addition to the stories linked in those posts, the WSJ Law Blog reported on Oct. 25th that:

The saga of Lincoln Memorial University’s Duncan School of Law has taken another turn, after the American Bar Association affirmed its denial of provisional accreditation for the school this summer. Now, Duncan has lost its dean, and may consider dropping a lawsuit against the ABA.

Dean Sydney Beckman, who has been with the school since 2008, stepped down and plans to return to teaching, the school told the Knoxville News Sentinel. Dean Beckman will be taking a research leave until the end of the school year and resume teaching in the fall.

Duncan is located in Tennesse, where graduates of unaccredited law schools can take the state bar without a degree from an ABA-approved school, so it is possible the school will continue even without the ABA approval. The Duncan Law website accreditation page states that:
On February 24, 2009, the Lincoln Memorial University – Duncan School of Law received approval from the Tennessee Board of Law Examiners rendering graduates eligible to take the Tennessee Bar Examination pursuant to Tennessee Supreme Court Rule 7, Section 2.03.
A Dec. 24, 2011 NYT story referenced "a businessman":
Mr. [Pete] DeBusk, Duncan’s principal backer, appears undaunted. Mr. DeBusk, the founder of a medical device company who was raised in a trailer home in Kentucky, said the school was part of his mission to bring education to the people from the Appalachian Mountains.
The ILB thinks Mr. DeBusk was featured on 60 Minutes, but could be wrong.

[More] The ILB has elected not to address the "gift horse" issue - many firms are getting rid of print books by the truckload; law books are expensive to maintain in a useful status because they must be continually updated; etc.

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Indiana Law

Ind. Gov't. - More on "Indiana appointments raise ethical issues that Brian Bosma, Mike Pence may want to avoid"

Updating this ILB entry from Dec. 3rd, this is a selection from an editorial today in the Fort Wayne Journal Gazette [emphases added by ILB]:

Gov.-elect Mike Pence’s appointment of Jeff Espich understandably has unnerved some good-government advocates. But any concerns about revolving-door influence are tempered by the unusual nature of the appointment and the fact that the new administration needs solid state government experience.

In Espich, a 40-year veteran of the Indiana General Assembly and former House Ways and Means Committee chairman, the newly elected governor will have a senior adviser in the truest sense of the title. It says much about the Wells County Republican’s character that he accepted an appointment in the administration instead of waiting out a one-year ban from lobbying the legislature in a high-paid lobbying firm.

Yes, his position as an adviser on legislative affairs is uncomfortably close to the legislative director or legislative liaison position [ILB: but see below] addressed by the General Assembly’s ethics law. Statehouse observers who have watched as legislators switched sides to represent gambling, alcohol and other business interests are justified in any cynicism when it comes to the lucrative afterlife of an Indiana legislator.

But Espich’s role in the Pence administration appears advisory. Given his record, Espich can be counted on to offer brutally honest counsel to the new governor, who has never held a job in state government or come any closer to the General Assembly than managing the Indiana Policy Review.

It’s somewhat refreshing, in fact, to see Pence turn to a well-respected fiscal expert instead of an outsider determined to bring a business perspective to state government. The turmoil at the Indiana Bureau of Motor Vehicles when it was headed by retail executive Joel Silverman was one of the more benign effects of that approach; the failed privatization of welfare eligibility services and the ongoing ethics scandal at the Indiana Utility Regulatory Commission are some of the worst.

*Yesterday Pence's office announced:
Heather Neal has been named Pence’s Legislative Director. She will serve as the chief legislative liaison for the Pence Administration. Neal has served as chief of staff at the Indiana Department of Education where she directed operations of the agency, which includes 55 percent of the state’s annual budget and an additional $1 billion in federal funds. Neal also was Governor Daniels’ first appointee as the state’s public access counselor and served as chief of staff for Secretary of State Todd Rokita.
ILB: It is interesting to look back to some stories from eight years ago when Gov. Daniels emphasis was on appointing state government outsiders. Here is a quote from an Elkhart Truth editorial reproduced in this Dec. 9, 2004 ILB entry:
Besides impressive resumes, the eight share something else in common -- a shortage of experience with not only state government but public administration of any kind. Their willingness to leave lucrative careers or -- in Silverman's case -- retirement is admirable.

Daniels is counting on the fact that these new public servants will come into office unencumbered by biases and resistance to change of government bureaucracy. He's also counting on each of them bringing successful practices from the business world. * * *

While Silverman may bring to the BMV some good customer service ideas from his retail days, his greatest contribution may be in reshaping a culture focused too little on pleasing the customers -- Indiana motorists and vehicle owners. * * *

With Mitch Roob, Daniels has selected an individual who has enjoyed success with government reorganization. He helped rework Indianapolis city departments in the 1990s under then-Mayor Stephen Goldsmith and headed an agency that supervised the Marion County Health Department and Wishard Memorial Hospital. * * *

We're eager to hear about the merits of other new ideas Daniels' team has for the state, but the new administration should also be cautious about cleaning house too thoroughly. Like it or not, Daniels needs on his side the state bureaucracy he criticized in his campaign to make the changes he believes are necessary. Therefore, the governor-elect must also select competent managers with state government and public service experience -- Roob is a good start.

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Indiana Government

Ind. Gov't. - What services will be included in Indiana's benefits package under the new health care law?

This article today in the NY Times, reported by Abby Goodnough, talks about the decisions being made by the various states. Some quotes:

The main goal of the health care law has always been to guarantee medical coverage to nearly all Americans, but as states finalize their benefits packages, it is becoming clear that what is received will depend partly on location.

According to proposals that the states have submitted to the Department of Health and Human Services, insurance plans will have to cover weight-loss surgery in New York and California, for example, but not in Minnesota or Connecticut. Infertility treatment will be a required benefit in New Hampshire, but not in Arizona.

Over all, the law requires that essential health benefits cover 10 broad categories, including emergency services, maternity and newborn care, hospitalization, preventive care and prescription drugs. But there is room for variation in those categories. Whether insurance will pay for hearing aids, foot care, speech therapy and various medications will vary significantly by state.

The Obama administration originally planned to impose a single set of essential benefits nationwide, so groups like Ms. Kang’s lobbied federal officials at first. But last year, amid accusations that the health care law was too rigid, it decided to allow each state to choose its own guaranteed benefits within the 10 broad categories.

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Indiana Government

Courts - "Michigan Supreme Court Campaign Credits Facebook Ads With Margin of Victory"

Here is an interesting article by Cotton Delo in AdAgeMobile. It begins:

What tipped the scales in favor of a candidate for the Michigan Supreme Court in a closely run election? Her campaign team surmises that a heavy helping of Facebook ads during the home stretch of the race played an outsize role.

Democrat Bridget Mary McCormack was ultimately the top vote-getter in a field of seven candidates running for two full-term seats on the bench. Her roughly 1.53 million votes edged out the other winner, Republican incumbent Stephen Markman, by more than 30,000 votes. (The first and second runners-up had roughly 1.4 million votes apiece.)

Ms. McCormack's campaign manager, Jon Hoadley, finds her margin of victory all the more surprising because of the onslaught on negative TV ads paid for by a Washington, D.C.-based group called the Judicial Crisis Network that were aimed at Ms. McCormack, a University of Michigan law professor, during the final week of the campaign. ( The ad featured the mother of a deceased American soldier and homed in on Ms. McCormack's offer to represent Guantanamo detainees.)

While the Judicial Crisis Network was filling the airwaves in Detroit and Grand Rapids with $1 million worth of attack ads, Ms. McCormack's team was spending liberally on Facebook. Mr. Hoadley estimates that 51% of the campaign's $100,000 ad budget was allocated to Facebook, and 80% of that sum was spent in the final five days with the intent of burning the candidate's name into liberal voters' brains. (Ms. McCormack also benefited from TV ads run by the Michigan Democratic State Central Committee to support its slate, made up of her and two other candidates.)

"Repetition over a short period of time really did make a difference," said Mr. Hoadley.

Doubling down on Facebook for the final stretch was more of an accident than a strategy, according to Josh Koster, managing partner of the digital agency Chong & Koster, which handled the buy for Ms. McCormack's campaign. Due to time constraints, it wasn't feasible to execute a diversified strategy that included display and search ads, he said.

Instead, the campaign ultimately had a half-dozen Facebook ads in circulation in the five days leading up to Nov. 6 after a brief testing window to find which performed best for different age and gender groups. All had positive messages (noting that Ms. McCormack had been endorsed by 10 Michigan newspapers, for example) with the aim of boosting recognition of her name by Election Day.

While Mr. Koster notes that efforts on behalf of the Democratic slate helped bring Ms. McCormack to within striking distance, he thinks the Facebook ads must have been the ultimate needle-mover.

"[They're] the only thing that could have moved her to being ahead of everyone else from being tied with every else," he said.

Read this in conjunction with CNHI's Maureen Hayden's story, here in the Dec. 3rd New Albany News & Tribune. A quote:
INDIANAPOLIS — There’s a new phrase starting to emerge in the lexicon of the Indiana Statehouse: “Getting Ritzed.”

It refers to the stunning Nov. 6 victory of political newcomer Glenda Ritz over her giant of an opponent, Tony Bennett, in the race for Superintendent of Public Instruction.

More so, it refers to the kind of campaign that rocketed Ritz past Bennett to win 1.3 million Hoosier votes.

Employing a mastery of social media that tapped into widening skepticism about the K-12 education overhaul that Bennett championed, the Ritz campaign pulled off the seeming impossible: They beat the Republican incumbent in a Republican-loving state and did it with a fraction of the money, TV airtime, and powerful partisan pull that Bennett enjoyed. And, and often noted since, they managed to get more votes for Ritz than Gov.-elect Mike Pence.

Getting Ritzed is the 21st century version of the Biblical tale of David and Goliath. (David Galvin, the engineer of Ritz’s social media campaign, tapped into that analogy in a fascinating article he wrote for the Nov. 15 issue of Howey Politics Indiana.)

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp, a 10-page opinion, Sr. Judge Barteau writes:

The Yateses and Tibbses raise one issue, which we restate as: whether the trial court erred by granting Kemp’s motion for summary judgment as to their claims for nuisance. * * *

The trial court determined that Kemp was not liable for his neighbors’ nuisance claims due to “I.C. § 14-22-31.5-1 et seq.” * * *

The key statute here, Indiana Code section 14-22-31.5-6 (1996) (“section 6”), provides a safe harbor in limited circumstances for owners, operators, and users of shooting ranges against claims of noise pollution. It provides:

A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the normal operation or use of the shooting range if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range.
Id. The parties have not cited to any prior cases applying this statute, and we have not found any.

The Yateses and the Tibbses argue that Kemp is not entitled to the protection granted by section 6 because there were no applicable laws or ordinances in effect at the time he built and began operating his shooting range. Kemp responds that their argument is “nonsensical.” Appellee’s Br. p. 7. The plain language of the statute supports the Yateses’ and the Tibbses’ argument. * * *

[B]ased on the plain language of section 6 and its context within the Act as a whole, we conclude that Kemp is not shielded by section 6 from liability related to his neighbors’ nuisances claim arising from noise pollution. * * *

To recover in a nuisance action the complaining party need show only inconvenience, annoyance, or discomfort. Lesh v. Chandler, 944 N.E.2d 942, 951 (Ind. Ct. App. 2011). Noise may be a nuisance if it is unreasonable in its degree, and reasonableness is a question of fact. Id.

The Yateses and the Tibbses have complained that Kemp is operating his shooting range to the detriment of their use and enjoyment of their property. Therefore, they are alleging a private nuisance. Furthermore, given that the range received conditional approval from the Marshall County Board of Zoning Appeals in 2008, we conclude that the range is an otherwise lawful use that may become a nuisance per accidens depending upon the circumstances surrounding the use. Thus, we must determine if the Yateses and the Tibbses have established a dispute of material fact as to whether Kemp has caused them to experience inconvenience, annoyance, or discomfort. * * *

All of this evidence is sufficient to establish a dispute of material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance, or discomfort. * * * Consequently, the trial court erred by granting summary judgment to Kemp on the Yateses’ and Tibbses’ claims for nuisance.

For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings.

In Thomson, Inc., n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor Limited v. Continental Casualty Co.; Travelers Casualty & Surety Co. & Travelers Property Casualty Co. of Am., et al, a 9-page opinion, Judge Bradford writes:
Several years ago, Thomson, Inc., acquired the assets of Technicolor, Inc., which included, among other things, three contaminated former film-processing sites. Eventually, local environmental authorities directed Thomson to remediate the contamination at the sites, an expensive and ongoing process for which Thomson seeks indemnification from Continental, who insured Technicolor from 1969 to 1974. Thomson argues that the umbrella policy Continental issued to Technicolor covers losses resulting from orders from administrative agencies, as occurred here. Continental argues that its liability is limited to losses resulting from courtroom litigation.

After both parties moved for summary judgment on the question of whether coverage exists, the trial court ruled in Continental’s favor. Appellants/Plaintiffs Thomson Inc. n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor, Ltd. (collectively, “Thomson”) now appeal from the trial court’s grant of summary judgment in favor or Appellee/Defendant Continental Casualty Co. Finding that under California law, damages under the umbrella policy are limited to those as a result of courtroom litigation rather than administrative proceedings, we affirm.

NFP civil opinions today (2):

In Re: The Adoption of K.H.: S.H. (Mother) v. W.B. and B.B. (Guardians) (NFP)

Hugh Z. Nelson v. Renee Burtin (NFP)

NFP criminal opinions today (3):

Toni Cox v. State of Indiana (NFP)

Andra Dossey v. State of Indiana (NFP)

Steven Kamp v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Ind. App.Ct. Decisions