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Tuesday, January 08, 2013

Law - "False rape accusations are exceedingly rare"

"[T]he Enliven Project using data from Department of Justice’s National Crime Victimization Survey and FBI reports[,] drives home extremely well the fact that false rape accusations are exceedingly rare," writes Dylan Matthews in this Jan. 7th Washington Post "WonkBlog" entry.

A reader wrote the ILB: "Wow...I didn't see the sadness of the graph until I got to the bottom. Shocking!!!"

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to General Law Related

Courts - More on: "Do police need a court order to get a blood sample from an individual suspected of drunk driving?"

Updating this ILB entry from Jan. 7th, Jacob Gershman of the WSJ Law Blog has this post this afternoon headed "SCOTUS Case Not For the Faint of Heart." He writes:

One of the more interesting arguments against warrantless tests has to do with the actual dangers — not just the intrusiveness — of extracting blood.

In an amicus brief in support of more controls over collecting blood evidence, a group of criminal law and procedure professors from Duke University, Arizona State University and other schools cite several studies that point to the health risks of getting blood drawn.

Talk of blood draw issues of course brings to mind the Indiana Bisard case and particularly the "certified phlebotomist" question.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Courts in general

Ind. Gov't. - Rules of the new Environmental Rules Board

The new Indiana Environmental Rules Board commenced operations on January 1, 2013. It replaced the three long-time environmental boards, the Air Pollution Control Board (rules of this board are located at Article 326 of the Indiana Administrative Code (IAC)), the Water Pollution Control Board (327 IAC), and the Solid Waste Management Board (329 IAC).

The ILB remarked on the 2012 legislation (HEA 1002) during the last session, and on April 10, 2012 posted this ILB commentary pointing out problems with the coming changes.

Today I write about the rules of the new board.

The main function of the environmental boards, since the creation of IDEM in the mid-1980s, has been to adopt, amend, or repeal Indiana's environmental rules. This power to make rules, which have the force and effect of laws, is delegated to the boards by the General Assembly. The General Assembly has placed a number of statutory constraints on this environmental rulemaking power, constrains much more stringent than those which apply to other state entities with rulemaking authority.

The existence of the boards themselves is the biggest constraint. The General Assembly could have given rulemaking authority directly to the Commissioner of the Department of Environmental Management. It elected not to do so, instead creating a system where boards made up of representatives of those affected by the rules have the responsibility to consider and act on rulemaking proposals offered by IDEM, and occasionally others, after a long deliberative process designed to insure input from all the affected parties.

I go through this detail to emphasize the point that these are not the rules of IDEM, or the rules of IDEM's air, water, or waste divisions. These are the rules of the three environmental boards or, as of January 11, 2013, the Indiana Environmental Rules Board. The new law states this correctly at, for example, IC 13-13-8-2(d)(1):

The rules adopted before January 1, 2013, by the air pollution control board abolished under subsection (a)(1):
(A) shall be treated as though the rules were adopted by the environmental rules board; and
(B) shall be administered and implemented by the air pollution control division of the department described in IC 13-13-8-2(1).
It is important, I believe, to clearly maintain this distinction between the roles of IDEM and its divisions, on the one hand, and the new environmental rulemaking board, on the other.

And what is my point?

The ILB has learned that the rules of the Indiana Air Pollution Control Board, the Water Pollution Control Board, and the Solid Waste Management Board are being redesignated by the staff of the IAC/Ind.Register as the rules of the “Air Pollution Control Division”, “Water Pollution Control Division” and “Solid Waste Management Division.” In my opinion, this is incorrect and will only continue confusion in the roles of the various entities.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Environment | Indiana Government

Stage Collapse - Isn't this the same $6 million we heard about last summer?

There were a number of stories the end of 2012 about $6 million more in aid for the state fair victims. For example, this one Dec. 20, 2012 by Charles Wilson of the AP that began:

INDIANAPOLIS — The Indiana attorney general’s office sent out $6 million in checks Thursday to 59 victims of 2011’s deadly Indiana State Fair stage collapse.

The payments bring to $11 million the amount the state has paid to stage collapse victims. It had already paid $5 million, the limit for tort claims under Indiana law. The supplemental payments were approved by the General Assembly this year.

Attorney General Greg Zoeller announced the payments at a Statehouse news conference, saying the second round of checks would take care of medical expenses for victims whose injuries weren’t permanent.

In answer to the question posed in the heading of today's post, yes, this is the same $6 million that last summer was offered to the victims as part of a deal described in the Aug. 16th AP story quoted in this ILB entry:
Attorney General Greg Zoeller had proposed the joint settlement, which asked victims to agree to settle their claims for shares of $6 million from the state and $7.2 million from Mid-America and the stage’s manufacturer, James Thomas Engineering. In exchange, the victims would agree not to seek additional compensation.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Stage Collapse

Law - "What Gun Regulations Will the Supreme Court Allow?"

Michael C. Dorf, a Justia columnist and the Robert S. Stevens Professor of Law at Cornell University Law School, has a fascinating Jan 2nd article, "Originalism and the Second Amendment," that is Part Two of a two-part series, "What Gun Regulations Will the Supreme Court Allow?" A few quotes:

So-called “old” originalists construe the Constitution in accordance with original intent. Does the Eighth Amendment’s Cruel and Unusual Punishments Clause permit capital punishment? An old originalist asks whether the framers intended it to forbid the death penalty. Does the Commerce Clause permit Congress to require people to purchase health insurance? An old originalist asks whether the framers intended to authorize mandates.

Old originalism retains considerable force among politicians, some judges, and the general public, but these days, most scholars who call themselves originalists reject it, because critics of old originalism have successfully argued that it is flawed in various ways, including these two: (1) because constitutional change is usually the product of contentious political disagreement, it will often be impossible to locate a determinate intent that was shared by all, or even a majority, of the people who were responsible for adopting any given provision; and (2) the framers and ratifiers of the Constitution enacted language, not whatever intentions or expectations they may have had for that language, so even when a generally-shared intent can be identified, basic principles of legality point away from giving effect to that intent, apart from the meaning of the language.

Accordingly, “new” originalists argue that a modern interpreter should give effect to the original meaning of the words that the framers and ratifiers adopted, but disregard their additional intentions and expectations. * * *

Most constitutional scholars (myself included) believe that new originalism avoids some of the worst pitfalls of old originalism, but it is not clear that new originalism differs in any substantial way from living constitutionalism. * * *

[N]ew originalism leaves modern readers of the Constitution with nearly the same amount of room to maneuver as do more conventional versions of living constitutionalism.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to General Law Related

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

In West Bend Mutual Ins. v. Arbor Homes (SD Ind., Baker, MJ), a 12-page opinion, Circuit Judge Rovner writes:

A plumber hired by homebuilder Arbor Homes, LLC, (“Arbor”) made one of the biggest mistakes a plumber can make: he forgot to connect the home’s drainage system to the city’s sewer. The question here is whether Arbor or the plumber’s insurer is liable for the resulting damages to the newly built home. Although Arbor behaved very admirably in addressing the problem for the new homeowners, it failed to protect its own interests, and we must affirm the judgment in favor of the insurer. * * *

Although Arbor’s quick and decisive aid to the Lorches was laudable, the failure of Arbor (or Willmez) to obtain West Bend’s consent to the settlement relieves the insurer of any obligation to pay for the damages caused by the plumber’s negligence. AFFIRMED.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Ind. (7th Cir.) Decisions

Not Law - Looking for a job in DC?

Check out the new POWERJobs.com. From "About Us":

Three of Washington’s leading news organizations, POLITICO, ABC7/WJLA and WTOP Radio, have partnered to create an innovative career website, POWERJobs.com, tailored to employers and employees in the influential industries that make up Washington’s workforce.

POWERJobs will showcase high-level, industry-specific careers in the Washington metro area to provide an ultimate destination for those looking for opportunities in their fields, including the defense, education, energy, finance, government, health care and technology industries as well as the nonprofit arena. With partners in print, television, radio and online — each boasting a coveted audience of Washington professionals — the site is uniquely positioned to reach active and passive candidates everywhere they consume news.

This is an interesting new approach by media companies, a far step from the newspaper want ads of old.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to General News

Ind. Gov't. - More on "Show us the IPS numbers"

Recall this ILB entry from August 28, 2010 quoting from an IndyStar editorial:

Longtime member Kelly Bentley, a past president of the board and a well-regarded leader in the community, objected last year to a lack of transparency in how the budget was put together and reviewed. IPS Superintendent Eugene White dismissed Bentley's concerns.

White was similarly dismissive this year after Annie Roof, who took office July 1, asked for the district's entire budget to be posted online so the public could review it ahead of the board's vote. Instead, a four-page summary was posted.

"A board member can ask for it, but I work for the whole board," White said. "The whole board didn't ask for it."

Today in the IndyStar Tim Swarens has commentary headed "New blood could give Indianapolis Public Schools a needed jolt." Some quotes:
A longtime Indianapolis Public School Board member had the audacity a few years ago to ask Superintendent Eugene White for more details about the district's annual budget. She was rebuffed.

A couple of years later, a few board members raised objections about White's plan to reshuffle school administrators. White threatened to resign if his plan was rejected. The board backed down.

It has been a familiar pattern. White made almost all of the big decisions, and often the not-so-big decisions, and he bristled when his authority was challenged. Most of the board compliantly followed his lead.

But those days came to an end Monday, when three new reform-minded members were added to the board.

The new members -- Gayle Cosby, Caitlin Hannon and Sam Odle -- join three holdovers who have shown independence but lacked a majority of votes in the past.

Now, the reformers have the numbers to drive deep change in a district that has failed for decades to meet the enormous challenge of adequately educating children in our city.

I'm optimistic about where the new board will lead the district, with or without White in tow. Odle, in particular, has the type of business and leadership experience that the board has long needed.

Yet, I also remember the optimism many of us felt when White was hired as superintendent nearly eight years ago.

Later in the story, this paragraph that with a little rewriting also could be applicable to many others in leadership positions:
In time, however, White fell into the same trap that ensnared his predecessors. There's too much denial of the many problems that still exist, and a tendency to oversell, for public relations purposes, the academic gains that have been made. There's been an unwillingness to reconfigure top administrative ranks to the extent needed. White also has long refused to accept offers of outside help to analyze the district's organizational chart and budget. All of that has combined in recent years to erase White's image as the engine of change in IPS. He now owns, and increasingly defends, the status quo.
[More] The news report from the Star, by Scott Elliot, headed "Indianapolis Public Schools power shift on school board signals change."

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Indiana Government

Ind. Law - "Senate bill would let college students carry guns on campus"

That is the heading to Mary Beth Schneider's lengthy, front-page Indianapolis Star story this morning. Some quotes:

Should citizens be allowed to carry firearms on Indiana’s public university campuses?

It’s a question that’s arisen in the Indiana General Assembly through legislation filed by Sen. Jim Banks, who wants public college students to be able to have guns at school for their personal protection. * * *

Banks, a Columbia City Republican, said the measure, Senate Bill 97, * * * said, it’s the result of concerns by college students who want the protection a gun provides from more common menaces as they walk on campus and to parking lots at night.

The measure would simply prevent public universities from banning firearms in most instances — reversing policies that Indiana’s largest colleges have had on the books for years.

“Many female students who want to carry for their own protection, some of them have personal situations that they have told me about that cause them to take a very personal and emotional stance on this issue,” Banks said. “It’s a matter of protecting themselves, and I take that very seriously.”

Banks said he filed the bill in the 2012 session, only to see it die without a hearing. The same could happen this year, as Senate President Pro Tempore David Long, R-Fort Wayne, has sent the bill to the legislative cemetery, the rules committee.

Long said the bill has “an uncertain future.” * * *

Guns on campuses remain rare. In 2011, according to the National Conference of State Legislatures, Wisconsin and Mississippi both passed laws allowing those with concealed-carry permits to bring them on campuses, with some caveats.

In Mississippi, only those who have taken a voluntary course on safe gun handling can bring them and in Wisconsin, campuses can continue to ban guns by posting signs at every building entrance.

Only Utah has a statute specifically prohibiting public colleges and universities from barring guns. In all, 21 states ban carrying a concealed weapon on campus while 23 states — including Indiana — leave the decision up to each university.

Pelosi said the legislative push to arm campuses has for the most part has failed. In 2012, he said, bills were rejected in 14 states — including Michigan, where Gov. Rick Snyder vetoed a bill that would have allowed people with a concealed-carry permit to bring guns into schools, college campuses, day-care centers, hospitals, churches and stadiums.

That bill had been approved by the Michigan legislature one day before the Newtown, Ct., tragedy, and Snyder referred to that disaster in his veto statement, saying: “You can’t have it not impact you.”

Here is the Michigan governor's veto message, via this Dec. 18, 2012 State Bar of Michigan Blog post.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Indiana Law

Courts - More on Michigan, Pennsylvania Supreme Courts

Updating yesterday's ILB entry, Eugene Volokh also has a post on the Michigan resignation, plus this note on Pennsylvania:

For another controversy involving a state supreme court judge, see the forthcoming trial of Pennsylvania Supreme Court Justice Orie Melvin for illegally using her state employees in her campaign for her office.
See also this March 3, 2011 ILB post headed "Ray Charles could see that signature was doctored," along with a link to my all-time favorite photo.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Courts in general