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Thursday, December 27, 2012

Ind. Decisions - Transfer list for week ending December 21, 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 May 20, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, December 21, 2012. It is two pages (and 18 cases) long.

One transfer were granted last week, with opinion:

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Indiana Transfer Lists

Ind. Gov't. - IURC Decision Today Limits Cost Recovery on Duke Energy Edwardsport Plant: Commission approves modified settlement agreement and credits ratepayers an additional $28 million

Via a press release from the IURC:

INDIANAPOLIS – Today the Indiana Utility Regulatory Commission (IURC) modified and approved a settlement agreement reached in the Duke Energy Indiana case involving the revised cost estimate for the electric utility’s new integrated gasification combined cycle facility (IGCC) in Edwardsport, Ind.

The settlement agreement set a hard cost cap for the project at $2.595 billion (as of June 30, 2012), which prohibits Duke Energy from recovering project construction costs above this amount from retail electric customers, excluding costs related to force majeure situations defined in the agreement. It also requires the utility to absorb nearly $900 million in cost overruns given the plant is now projected to cost approximately $3.5 billion.

Although Duke Energy is limited in its recovery of project costs, the settlement agreement does allow the utility to recover financing charges accrued to fund the project’s construction. This arrangement is otherwise known as allowance for funds used during construction (AFUDC) and has been approved thus far in this case in accordance with state law.

Through a modification to the settlement agreement, the IURC also provided $28 million in additional value to ratepayers by directing Duke Energy to credit customers for cost control incentive payments found to be unwarranted, given the delays that arose from the project cost overruns. The IURC also modified the settlement agreement in such a way that if Duke Energy should recover through litigation claims more than the IGCC project costs absorbed by its shareholders, any surplus recovery is required to be returned to ratepayers.

The investment recovery sharing coupled with the other terms of the settlement agreement created value that was found to be in the public interest. The settlement agreement was reached by the utility, Nucor Steel Indiana, the Duke industrial group, and the Indiana Office of Utility Consumer Counselor. Packaged with the settlement agreement is also a guarantee by Duke Energy that it will not file a rate case prior to March 2013, nor implement one before April 2014.

For your reference, the IURC’s decision under Cause No. 43114 IGCC 4 S1 can be found online at www.in.gov/iurc. To read the “Commission Discussion and Findings” section, please turn to page 109. If you need to access other case-related documents, visit our Electronic Document System at https://myweb.in.gov/IURC/eds/. Instructions on how to best use this database can be found at www.in.gov/iurc/2666.htm.

[More] Here is John Russell's just-posted Indianapolis Star story.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Indiana Government

Ind. Decisions - Judge Barker denies injunction in Affordable Care Act challenge

The news yesterday, as stated briefly in the NY Times:

Justice Sonia Sotomayor of the Supreme Court refused to block enforcement next week of a requirement in the health care overhaul that some companies provide insurance coverage for contraceptive drugs and devices. In an order Wednesday, Justice Sotomayor, who hears emergency appeals from the 10th Circuit, said two companies controlled by the Oklahoma City billionaire David Green and his family did not qualify for an injunction while they challenged the rule. The companies, Hobby Lobby Stores, with more than 500 stores, and Mardel, with 35 Christian bookstores, said it violated their religious beliefs to require their health plans to cover contraception.
Indiana has a similar challenge in its earliest stages. In this 24-page Order Denying Plaintiff's Motion for a Preliminary Injunction, dated Dec. 27, 2012, in the case of Grote Industries v. Sebelius, Judge Sarah Evans Barker writes:
[Plaintiffs are] challenging preventive care coverage regulations (“the mandate”) issued under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (“Affordable Care Act” or “ACA”), which Plaintiffs allege require them “to pay for and otherwise facilitate the insurance coverage and use of abortifacient drugs, contraception, sterilization, and related education and counseling.” Compl. ¶ 7. Plaintiffs contend that the mandate violates their statutory rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”) and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”) as well as their constitutional rights under the First and Fifth Amendments to the United States Constitution. Plaintiffs seek both declaratory and injunctive relief.

Presently before the Court is the Plaintiffs’ Motion for Preliminary Injunction seeking an order prohibiting Defendants from enforcing the mandate against them and others similarly situated when it goes into effect on January 1, 2012. After review of the parties’ submissions, we DENY Plaintiffs’ request for injunctive relief. * * *

For the reasons detailed in this entry, we find that Plaintiffs have failed to establish a reasonable likelihood of success on the merits of any of their claims. Because likelihood of success is a threshold requirement for injunctive relief, we need not proceed further in our analysis. Accordingly, Plaintiffs’ Motion for Preliminary Injunction is DENIED.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Reminder: Formal Investiture Ceremony for Justice Rush set for Friday, Dec. 28

As posted here on Dec. 19th, tomorrow at 10:00 AM the formal oath of office for Justice Loretta Rush will take place. You will be able to watch it here. The one-hour ceremony will include remarks from Governor Mitch Daniels, former Supreme Court Justice Myra Selby, Allen County Superior Court Judge Charles Pratt and Dr. Will Miller. Governor Daniels will administer the oath and Justice Rush’s official courtroom photograph will be unveiled.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today

In US v. Earls (ND Ind., Van Bokkelen), a 16-page opinion, Circuit Judge Bauer writes:

On July 10, 2011, a jury found Fairly W. Earls (“Earls”) guilty of making a false statement on a passport application, aggravated identity theft, and knowingly transferring a stolen identification document in violation of 18 U.S.C. § 1542, § 1028A(a)(1), and § 1028(a)(2). On October 5, 2011, the district court sentenced Earls to thirty-six months’ imprisonment on Counts One and Three with a consecutive sentence of twenty-four months’ imprisonment on Count Two. Earls’ base offense level at sentencing was determined to be eight; however, through the application of a cross-reference listed in Sentencing Guidelines Section 2L2.2(c)(1)(A), Earls’ offense level was increased to fifteen. On appeal, Earls challenges the admission of certain evidence at trial, as well as his sentence. For the following reasons, we affirm.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

Medea Woods v. State of Indiana

Slavojka Pistalo v. Progressive Casualty Insurance Company and The Estate of Iris M. Wilks, Deceased

Indiana Rail Road Company v. John Blaine Davidson, Admin. of the Estate of Carolyn Davidson, Deceased, and Tonya Kincaid, as Mother and Next Friend of Cierra Kincaid, a Minor

NFP civil opinions today (4):

Term. of the Parent-Child Rel. of R.D. (Minor Child), and M.D. (Father) v. The Indiana Dept. of Child Services (NFP)

Donald and Jennie Walker v. Glenn Sermersheim (NFP)

Mark A. Guffey v. Deborah L. Guffey (NFP)

David Darst v. Indiana Dept. of Correction and Bruce Lemmon in his official capacity as Commissioner (NFP)

NFP criminal opinions today (9):

John T. Brightwell v. State of Indiana (NFP)

Eric D. Smith v. State of Indiana (NFP)

Todd Fuller v. State of Indiana (NFP)

Michael Craig v. State of Indiana (NFP)

Lee E. Davis, Jr. v. State of Indiana (NFP)

Kent A. Easley v. State of Indiana (NFP)

Robert J. Pearson v. State of Indiana (NFP)

Elbert M. Jones, II v. State of Indiana (NFP)

Mark Allen Pratt v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issued 3 yesterday, Dec. 26th (and 9 NFP)

For publication opinions today (3):

Lisa A. Birkhimer v. Neil S. Birkhimer

Christopher White v. State of Indiana (NFP)

In Leslee Orndorff v. Indiana Bureau of Motor Vehicles, R. Scott Waddell, in his official capacity as Commissioner of the Indiana Bureau of Motor Vehicles , a 22-page opinion, Judge Crone writes:

Leslee Orndorff committed three driving offenses that qualified her as a habitual traffic violator (“HTV”) in 2004. In 2008, the Indiana Bureau of Motor Vehicles (“BMV”) issued Orndorff a driver’s license. In 2012, the BMV notified Orndorff that her driving privileges were to be suspended for ten years based on her HTV status. Orndorff filed a complaint against the BMV alleging that the equitable doctrine of laches prevented the BMV from suspending her driving privileges and requesting a preliminary injunction to stop the suspension. The trial court denied her request for a preliminary injunction, concluding that Orndorff did not have a reasonable likelihood of prevailing on the merits of her laches defense at trial because it was unlikely that laches would apply to the government and the BMV’s delay was understandable.

Orndorff appeals the trial court’s ruling, arguing that laches applies to the government because the suspension of her driving privileges now, eight years after she qualified as an HTV and four years after she obtained a valid driver’s license, will cause her to lose her job, which requires her to drive, and thrust her family into poverty, thereby threatening the public interest. She also contends that the BMV’s delay is inexcusable. We conclude that under the facts of this case, there is a reasonable likelihood that Orndorff will succeed in establishing that suspending her driving privileges will threaten the public interest such that laches applies to the government. We also conclude that she has a reasonable likelihood of showing that the BMV’s delay is inexcusable. Therefore, we conclude that Orndorff has a reasonable likelihood of succeeding on the merits of her laches defense. We also conclude that Orndorff has carried her burden to establish the other requirements for a preliminary injunction, and thus we reverse the trial court’s denial of her request for a preliminary injunction and remand for further proceedings.

NFP civil opinions today (3):

In Re the Paternity of C.C.M.: M.M. v. V.K.H. (NFP)

In Re the Involuntary Term. of the Parent-Child Rel. of K.R.: D.R. v. The Indiana Dept. of Child Services (NFP)

Karl Kapanke, Universal Am-Can, Ltd., and M.C. Schmitt Trucking, Inc. v. James Stovall and Tracy Stovall (NFP)

NFP criminal opinions today (6):

Sharif Fields v. State of Indiana (NFP)

Billy Adams v. State of Indiana (NFP)

Robert D. Ratcliff v. State of Indiana (NFP)

Allen Clark v. State of Indiana (NFP)

Jonathon P. Grigsby v. State of Indiana (NFP)

Jeffrey Adams v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Bev Gard to head new Environmental Rules Board

The 2012 General Assembly abolished the Air, Water, and Waste Boards effective Dec. 31, 2012, replacing them with a single Environmental Rules Board. Here is the official release from the Governor today:

Indiana Environmental Rules Board

The board was created during the 2012 legislative session to combine the functions of the former air pollution control, water pollution control and solid waste management boards. These are the first appointments to the board. Legislation required that initial members be appointed by December 31, 2012.

Membership: 16 members, 11 of whom are gubernatorial appointees from various industries and the general public. The commissioners of the state departments of health and environmental management, the director of the department of natural resources, the lieutenant governor and the secretary of commerce are ex officio members of the board.

New Appointments:

· Local government representative: Joanna Alexandrovich, Evansville, is the ozone officer at the Vanderburgh County Health Department.

· Environmental interests representatives: Tom Anderson, Michigan City, is the owner of Conservation Connections, LLC a conservation consulting group.

· Manufacturing representative: Gail Boydston, Indianapolis, is manager of environmental services at Eli Lilly.

· Public utility representative: Kelly Carmichael, Merrillville, is director of environmental policy and permitting at NiSource, Inc.

· Solid waste management industry representative: Cal Davidson, Clayton, is recycling manager at Ray’s Trash Service.

· Small business representative: Bill Etzler, LaOtto, is vice president and regional manager for Aqua Indiana. He will serve as vice chairman of the board.

· General public representative: Beverly Gard, Greenfield, former Indiana state senator and former chair of the state senate energy and environmental affairs committee. She will chair the board.

· Labor representative: Chris Horn, Lynnville, recently retired from ALCOA Aluminum

· Health professional representative: Ted Niemiec, East Chicago, is medical director and manager of health services at ArcelorMittal Indiana Harbor.

· General public representative: Gary Powdrill, former member of water pollution control board and Indiana State Chamber of Commerce environmental committee.

· Agricultural representative: Ken Rulon, Arcadia, operates his family owned farm, Rulon Enterprises.

Terms expire December 31, 2016.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Environment | Indiana Government

Environment - Reminder: 2012 Edition of Indiana Environmental Statutes is available

This is the new, as of the Fall of 2012, edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, that I edit and publish each year.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

The 2012 General Assembly made many changes to the environmental laws, including the abolition of the three long-time environmental boards (air, water, and waste), replacing them with a single board. Because this new law does not take effect until Jan. 1, 2013, this year's volume includes both the current (effective until 1/1/13) and future (effective upon 1/1/2013) versions of the affected sections, of which there are many.

As a result, this year the soft-bound volume is 610 pp. (up from 570 pp.in 2011), but still costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Environment

Environment - "E.P.A. Chief to Step Down, With Climate Still Low Priority"

This long story on the NYT website, reported by John M. Broder, begins:

Lisa P. Jackson is stepping down as administrator of the Environmental Protection Agency after a four-year tenure that began with high hopes of sweeping action to address climate change and other environmental ills but ended with a series of rear-guard actions to defend the agency against challenges from industry, Republicans in Congress and, at times, the Obama White House.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Environment

Ind. Courts - 7th Circuit website changes

This will be of interest to those of you who use the official 7th Circuit website.

ILB Note: The last time the 7th Circuit rewrote its software, which was years ago but in the early days of the ILB, the change permanently broke all the links to past 7th Circuit decisions...

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - "Maine Bank Agrees to Reimburse Hacking Victim $300K in Precedent-Setting Case"

This story is from Nov. 30th. Kim Zetter's report in WIRED begins:

In a case watched closely by banks and their commercial customers, a financial institution in Maine has agreed to reimburse a construction company $345,000 that was lost to hackers after a court ruled that the bank’s security practices were “commercially unreasonable.”

People’s United Bank has agreed to pay Patco Construction Company all the money it lost to hackers in 2009, plus about $45,000 in interest, after intruders installed malware on Patco’s computers and stole its banking credentials to siphon money from its account.

Patco had argued that the bank’s authentication system was inadequate and that it failed to contact the customer after its automated system flagged the transactions as suspicious. But the bank maintained that it had done due diligence because it verified that the ID and password used for the transactions were authentic.

The case raised important questions about how much security banks and other financial institutions should be reasonably required to provide commercial customers.

Small and medium-sized businesses around the country have lost hundreds of millions of dollars in recent years to similar thefts, known as fraudulent ACH (Automated Clearing House) transfers, after their computers were infected with malware that swiped their bank account credentials. Some have been lucky to recover the money from banks that valued their business, but others, like Patco, were told by their banks that they were responsible for the loss.

Although the assets of customers with personal bank accounts are protected under federal law, commercial bank accounts are not. The only recourse such customers have when their bank refuses to assume responsibility for stolen funds is to try to pursue their money in state courts under the Uniform Commercial Code.

People’s United Bank agreed to the settlement only after an appellate court indicated that the bank’s security system and practices had been inadequate under the UCC.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Courts in general

Ind. Law - "Costs, public sentiment mean fewer Indiana death penalty cases"

From Lesley Weidenbener 's column in the Sunday Louisville Courier-Journal:

INDIANAPOLIS — Gov. Mitch Daniels acknowledged during a recent interview that implementing a death sentence — essentially allowing an execution to take place without intervention — is one of the duties he was least prepared for when he took office.

But it’s an issue that future governors will be facing less often, he said.

It’s a change Daniels attributed to the changing public perception about the death penalty but it’s one no doubt connected to cash-strapped county budgets as well.

Daniels is right that support for the executions of murderers has been dropping fairly steadily since about 1994, according to polling company Gallup. * * *

Thirty-three states still impose the death penalty, although there’s been a trend toward abolishing it. New Jersey repealed its death penalty in 2007, New Mexico in 2009, Illinois in 2011, and Connecticut in 2012, according to the Indiana Public Defenders Council.

Also, Maryland has passed legislation narrowly restricting its use of the death penalty.

In Indiana, there’s been little talk about such a move. But still, death penalty cases — and death sentences — have been dropping steadily.

According to the public defenders council, local prosecutors were seeking the death penalty an average of roughly seven times per year from 1997 through 2001. In the last few years, that average has dropped to fewer than two.

And the number of death sentences actually imposed annually has dropped to nearly none.

Eight Hoosiers are currently on death row — the last convicted in 2007 — and three more people have had their sentences vacated in cases in which the state is appealing, according to the council.

The reason may be partly public perception but it’s just as likely because of the cost a county faces when trying to seek a death sentence.

State law and court rules set strict guidelines about who can serve as defense attorneys in the cases, which means counties are often paying more for indigent defendants — plus the cost of forensic evidence and experts.

Death punishments also come with automatic appeals and extensive options for defendants to try to seek commutation, including that last request to a governor for help.

It all comes with a cost. A 2-year-old analysis by the nonpartisan Legislative Services Agency found that a death penalty case typically costs about $450,000 — and higher profile cases or those that have complicated scientific evidence can cost substantially more. A case involving a life-without-parole sentence costs just 10 percent of the death penalty average, LSA found.

And according to the Tribune Star in Terre Haute, officials in Parke County actually sought an increase in the county income tax rate to pay for the prosecution of a man accused of killing his wife and daughters. Eventually, the defendant received a sentence of life without parole, saving the county significantly.

The state reimburses counties for part of the cost of death penalty cases.

But for many prosecutors and county officials, the price tag is still to high to make it worthwhile in all but the most egregious cases — especially with public support for executions fading.

Here are some earlier ILB entries on the cost of the death penalty:

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Indiana Law