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Thursday, December 20, 2012

Ind. Decisions - Still more on Jeffrey M. Miller et al v. Junior Achievement et al

Updating this ILB entry from Dec. 10th, the Supreme Court has this afternoon filed an order denying Indianapolis Newspapers' emergency motion requesting that the Supreme Court assume jurisdiction. Access it here.

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "How the NRA is larding state constitutions with frivolous, redundant 'right to hunt' amendments"

The heading is from this article by Craig Fehrman posted today in Slate. Some quotes:

To date, the states that have passed right-to-hunt legislation are largely in the South (Arkansas, Alabama) and West (Nebraska, North Dakota). But the idea seems to be migrating east. Seven state legislatures broached it in 2012, including those in New York, New Jersey, and Pennsylvania. “We'll continue to work on passing this legislation in other states moving forward,” says Samford, the NRA spokeswoman.

What she means, of course, is in other state constitutions. That raises a larger point: More and more, we're seeing legislators and interest groups clutter our constitutions with current events. One reason the lines at Florida polling places stretched so long this November was that voters had to parse 11 different amendments to their state's constitution. Michigan voted on six new amendments, including ones on renewable energy and on collective bargaining. Aren't constitutions supposed to be foundational and philosophical documents—documents that are insulated from this kind of petty maneuvering?

ILB: Indiana's General Assembly adopted a "right to hunt" constitutional amendment in 2011. If it passes again this session (2013) or in 2014, the question of its ratification will appear on the 2014 ballot.

Here is the text of this proposal to amend Article 1 of our Constitution, the Indiana Bill of Rights (see SJR 9 here):

ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 38. The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
For background, see this April 11, 2011 ILB entry.

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Indiana Law

Ind. Decisions - "Supreme Court allows hospital to charge uninsured patients more"

Jeff Swiatek of the Indianapolis Star has a story on yesterday's Supreme Court ruling in Abby Allen and Walter Moore v. Clarian Health Partners, Inc. (ILB summary here, see also here). Some quotes:

The state Supreme Court has reversed an appeals court ruling that let two uninsured patients sue IU Health over hospital bills that were much higher than insured patients were charged for the same care.

The 5-0 decision by the Supreme Court is the first time it's wrestled with the question of whether a hospital can charge uninsured patients more than insured ones.

The decision comes down squarely on the side of IU Health, which argued that the rates it charged the two uninsured patients in 2008 and 2009 were reasonable, even though they were much higher than the rates its insured patients paid.

IU Health had appealed the case to the Supreme Court after the appeals court overturned a Marion County court's dismissal of the case.

The two patients, Abby Allen and Walter Moore, contended that the charges by IU Health (formerly Clarian) were unreasonable and amounted to a breach of contract.

The patients were billed according to IU Health's so-called "chargemaster" rates, which are its unpublished, proprietary rates before insurer-negotiated discounts are applied.

"We align ourselves with those courts that have recognized the uniqueness of the market for health care services delivered by hospitals, and hold that patients' agreement to pay 'the account' in the context of Clarian's contract to provide medical services is not indefinite and refers to Clarian's chargemaster. As a result, we cannot impute a 'reasonable' price term into this contract," the Supreme Court said.

The court cited a scholarly article on the issue that said, "courts have generally tolerated low levels of specificity in medical contracts." * * *

The issue of uninsured-versus-insured billings has become largely moot since new federal guidelines now require hospitals to give discounts to uninsured patients similar to those given to insured ones. The guidelines weren't in effect when the two patients were treated by IU Health.

ILB: Can anyone point me to these "new federal guidelines"?

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides three Indiana cases today

But first, a non-Indiana ruling today, Adams v. Raintree Vacation Exchange, a 15-page opinion that begins:

POSNER, Circuit Judge.
This appeal requires us to consider the enforceability of a forum selection clause by entities not named as parties to the contract in which the clause appears.
In Parish v. City of Elkhart (ND Ind., Lozano), a 13-page opinion, Judge Rovner writes:
This appeal concerns a civil action brought under 42 U.S.C. § 1983 by Christopher Parish seeking damages for his wrongful conviction based on a violation of the Due Process Clause. The appeal, brought by Parish who prevailed in his § 1983 action, focuses on the adequacy of the damages award and the district court’s restriction of evidence relating to it. * * *

Because the district court’s rulings improperly limited the introduction of evidence relating to Parish’s innocence, and that evidence was critical to the damages issue, the award of damages cannot stand. The excluded evidence did not impact the jury’s consideration of the liability issue and that issue is not before us on appeal, and therefore a new trial is required only as to the damages issue. See Cobige v. City of Chicago, IL, 651 F.3d 780, 785 (7th Cir. 2011). Accordingly, the jury’s determination of liability is affirmed, the award of damages is vacated, and the case remanded for a new trial as to the issue of damages only. Circuit Rule 36 shall apply on remand. Costs on appeal are to be taxed against appellees.

In US v. Elliot (ND Ind., Simon), a 22-page opinion, Judge Rovner writes:
After he pleaded guilty to a felonin- possession charge, 18 U.S.C. § 922(g)(1), James Elliott was sentenced as an armed career criminal based on the district court’s finding that a series of three robberies he perpetrated in a five-day period when he was eighteen years old were “committed on occasions different from one another,” 18 U.S.C. § 924(e)(1). Elliot challenges that finding, contending that he had a right to have a jury, rather than the judge, assess the nature of his prior crimes, and that our decision in United States v. Hudspeth, 42 F.3d 1015, 1019-22 (7th Cir. 1994) (en banc), abrogated on other grounds by Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), should be overruled. We affirm.
In Beller v. Wishard Hospital (SD Ind.. Pratt), a 10-page opinion, Judge Rovner writes:
The plaintiffs brought suit alleging that the defendant, Health and Hospital Corporation of Marion County, Indiana d/b/a Wishard Memorial Hospital d/b/a Wishard Ambulance Service (“Wishard”) violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, by failing to stabilize Melissa Welch and her minor son, Joshua Beller, during an emergency medical situation. The district court granted summary judgment for Wishard, and the plaintiffs appeal. * * *

The issue in this case is whether the plaintiffs had “come to the emergency room” of Wishard Memorial Hospital when they were transported in the Wishard ambulance. The regulations to the EMTALA, promulgated by the Department of Health and Human Services’ Center for Medicare and Medicaid Services (“DHHS), provide a definition of when a person is deemed to have “come to the emergency room,” but the 2001 definition in effect at the time of the incident was subsequently amended. Both parties agree that under the 2003 definition, the plaintiffs would not have “come to the emergency room” of Wishard, and therefore the claim could not proceed. The core issue, then, is which definition applies. * * *

We agree with the district court’s conclusion that the DHSS considered the 2003 regulation to be a clarification of the definition of “comes to the emergency department.” * * *

The 2003 definition merely provided guidance as to what it means for an ambulance to be “operated by” a hospital. The district court properly held that the 2003 amendment is a clarification, which therefore applies in interpreting the meaning of the 2001 language. Because the Wishard ambulance was operating under the EMS protocol at the time the plaintiffs were in it, the plaintiffs had not come to the Wishard emergency department under the EMTALA, and the plaintiffs’ claim cannot succeed. The decision of the district court granting summary judgment in favor of the defendant is AFFIRMED.

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Ind. (7th Cir.) Decisions

Environment - "Judge rejects Dune Acres residents' plea to stop NPS tree cutting"

Updating these earlier ILB entries from April 13, 2012 and May 11, 2012, Kevin Nevers reports Dec. 13th in the Chesterton Tribune in this story:

The National Park Service (NPS) is free to continue cutting down trees in Cowles Bog at Indiana Dunes National Lakeshore, after a federal judge on Wednesday denied a motion for a temporary restraining order (TRO) filed by a group of Dune Acres residents.

U.S. District Judge Joseph Van Bokkelen issued a two-page order denying the TRO only 24 hours after the Coalition to Protect Cowles Bog Area filed it in the Hammond Division of the U.S. District Court for the Northern District of Indiana.

Van Bokkelen noted in his order that the Coalition’s attorney, Cheryl Evans—who is herself one of the plaintiffs—failed to meet three requirements in her motion for the TRO:

•She did not file a separate motion for relief. Instead, her motion sought both a TRO and a preliminary injunction.

•She did not file a supporting brief for the motion.

•And the motion did not include certification of any efforts which Evans might have made to give notice of the filing to NPS and the named defendants, U.S. Secretary of the Interior Kenneth Salazar, National Lakeshore Superinten-dent Constantine Dillon, and NPS botanist Dan Mason. It also failed to include reasons such certification should not be required.

Although Van Bokkelen did not comment on the merits of the filing, he did state that it “gives no basis for the court to conclude that plaintiffs are likely to prevail in this case.”

At issue is what the Coalition refers to as NPS’ “clear-cutting” of some 3,400 trees in Cowles Bog, with the stated purpose of “restoring” the bog to the condition in which it appeared to the groundbreaking ecologist Henry Cowles when he studied it in the early 20th century. Work began on the project shortly after NPS received a “Finding of No Significant Impact” (FONSI) on Nov. 13, that is, after the project was deemed to pose no significant environmental threat.

Numerous Dunes Acres residents, however, formally objected to the Cowles Bog project, citing fears that it would affect water levels and lead to the flooding of Mineral Springs Road, that the removal of trees would subject the town to increased traffic and railroad noises, and that it would otherwise negatively affect residents’ quality of life.

The Coalition’s filing made four specific allegations, in seeking a TRO and preliminary injunction: that the environmental assessment prepared by NPS presented an insufficiently wide range of options (no action, 97-percent tree removal; or 99-percent removal); that it promoted “inaccurate data”; that it “suppressed” prior research into the history of Cowles Bog in order to make a better case for tree removal; and that it also “suppressed” public responses to the project.

This lengthy story, posted the day before (Dec. 12) by the Chesterton Tribune and also reported by Luke Nevers, details the contentions made in the Coalition's complaint/motion.

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

M.C.-G. v. M.G. (NFP)

In Re The Matter of the Adoption of A.S.P.: R.S.P. v. J.C.S. (NFP)

The Marion County Sheriff's Department v. Gwendolyn Y. Davis, individually and as Administratrix of the Estate of Anthony J. Robinson, Jr. (NFP)

Term. of the Parent-Child Rel. of J.M., M.M., A.M., and S.M.: R.M. & H.M. v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (9):

Jeffrey Higgenbottom v. State of Indiana (NFP)

Otto McGee v. State of Indiana (NFP)

Michael B. Buckner v. State of Indiana (NFP)

Ronald Edward Madison v. State of Indiana (NFP)

John Chupp v. State of Indiana (NFP)

Anthony Anderson v. State of Indiana (NFP)

Kevin W. Black v. State of Indiana (NFP)

Netiko Jones v. State of Indiana (NFP)

Joseph B. O'Brien v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Ind. App.Ct. Decisions