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Thursday, February 14, 2013

Ind. law - More on: Issue of a county’s right to apply health code regulations on sewage disposal systems

Updating this Feb. 10th ILB entry, today's FWJG has an editorial on the same topic. Some quotes:

Discharging raw sewage onto your neighbor’s property or into a community’s rivers and streams is not exercising property rights or religious freedom; it is endangering public health and safety. Lawmakers need to support proposed legislation that will clarify state law regarding septic tanks and help local government regulate building and sanitation systems. * * *

Amish residents have long used an exemption in building codes, called the log-cabin rule, in constructing their homes. The log-cabin rule allows people to build – without permits – their own home on their own land in an unincorporated area. Some people claim the law also grants an exemption to health and sanitation rules.

Senate Bill 159, authored by Sen. Tom Wyss, R-Fort Wayne, has already passed in that chamber. Rep. Kathy Heuer, R-Columbia City, is sponsoring the bill in the House. It would clarify that the log-cabin rule does not extend to regulations from health departments governing sanitation – reflecting court rulings.

Some state lawmakers, including Sen. Dennis Kruse, R-Auburn, and Rep. David Wolkins, R-Winona Lake, oppose the legislation because they believe it infringes on the religious beliefs of the Amish.

“It has nothing to do with property rights or religious freedom,” said Mindy Waldron, health department administrator. “Sewage leaves the property, and so it becomes a problem for your neighbors and the community as a whole.” * * *

Septic systems are expensive. It’s not fair to force some people to spend the money to ensure their sewage is being treated properly while others are allowed to pollute.

The county took several cases to court and won each time, but the local health department turned to state lawmakers because the health department was depleting its limited resources by fighting the same cases in the courts over and over.

The legislation would make it clear that everyone needs to get permits for sewage systems, to allow the septic systems to be inspected and to make repairs when needed.

Waldron said it’s a very clear issue of public health and that the claim of its being a religious-rights issue is a distracting side story. “I have yet to hear a valid reason why it’s OK to pollute the water when it causes disease,” she said.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Decisions - More on: Federal judge denies Joseph Corcoran’s request for relief in his 1999 death sentence

Updating this ILB entry from Jan. 15, 2013, Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a long story headed: "New appeal in Corcoran killings: Case heading to 7th Circuit for fourth time."

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Manufacturers, farm bureau oppose Rockport deal"

Eric Bradner writes for the Evansville Courier & Press:

Two heavyweight organizations in Hoosier politics – the Indiana Manufacturers Association and the Indiana Farm Bureau – say they oppose the state’s current 30-year contract with the Rockport coal-to-gas plant. * * *

Patrick Bennett, the Indiana Manufacturers Association’s vice president of environment, energy and infrastructure, said his organization is afraid its small and medium-sized clients will face higher prices as a result, although large industrial companies are excluded.

“Really, the message is going to be that it’s not the role of the state to subsidize the cash flow of a company or to attempt to hedge the commodity price. This project should stand on its own within the current economic development, like the state does with other companies,” Bennett told the Courier & Press.

He said he supports a bill [SB 510] by Sen. Doug Eckerty, R-Yorktown – the one that’s the topic of Thursday’s hearing – to beef up the ratepayer protections in the deal by requiring the plant’s developers, Leucadia National Corp., to reimburse those ratepayers every three years if the plant’s prices top open market rates.

That would be a departure from the current contract, which requires Leucadia to set aside $150 million that would only go to ratepayers at the end of the contract. Leucadia’s top Indiana official, former Gov. Mitch Daniels aide Mark Lubbers, said Eckerty’s bill would kill the plant.

IndyStar reporter Tim Evans writes on Twitter: "Update on bill to kill Rockport coal-gas plant: Senate utility chairman says there will be vote next week."

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Indiana Government

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

For publication opinions today (3):

In American Acceptance Co., LLC., as Assignee of Washington Mutual Finance v. Melissa Willis, a 5-page opinion, Judge Barnes writes:

American Acceptance Co., LLC, as assignee of Washington Mutual Finance (“American Acceptance”), appeals the trial court’s denial of its motion for a garnishment order against Melissa Willis. We affirm.

American Acceptance raises one issue, which we restate as whether the trial court properly denied its motion for a garnishment order against Willis. * * *

Thus, the trial court “may order” the garnishment of the debtor’s income to be applied to satisfy the judgment. I.C. § 34-55-8-7(a). The trial court here was not required to order garnishment of Willis’s income. Instead, it was within the trial court’s discretion to do so. The trial court chose to order that the Clerk of the Knox Circuit/Superior Court “not to release the bond in Cause Number 42D01-1010-FB-139, State vs. Todd Willis, until a hearing can be held in this cause of action for purposes of settlement.” Given Willis’s circumstances, the trial court did not abuse its discretion. Consequently, the trial court did not err when it denied American Acceptance’s motion for a garnishment order.

In James Roberson v. State of Indiana , a 17-page opinion, Judge Barnes reverses for ineffective assistance of counsel, concluding:
Roberson received ineffective assistance of trial counsel with respect to failing to ensure that the jury was properly instructed regarding the elements of murder, voluntary manslaughter, and the State’s burden of proof regarding sudden heat. We reverse the denial of Roberson’s PCR petition and remand for further proceedings consistent with this opinion.
In Daquan Whitener v. State of Indiana , a 24-page opinion, Judge Brown writes:
Daquan Whitener appeals his conviction for burglary as a class A felony and the trial court’s determination that he register as a sex offender as a condition of probation. Whitener raises two issues which we revise and restate as:
I. Whether the evidence is sufficient to sustain his conviction for burglary as a class A felony; and
II. Whether the court erred in ordering that he register as a sex offender as a condition of probation.
Additionally, the State raises an issue on cross-appeal, namely, whether the court properly declined to enter a judgment of conviction for rape as a class B felony based upon double jeopardy principles. We affirm.
NFP civil opinions today (2):

David Garden and Star Homes, Inc. d/b/a Garden Homes Realty v. Lucas International, LLC and Wade Lucas (NFP)

Charles L. Myers v. Glen L. Williams (NFP)

NFP criminal opinions today (3):

Omar G. Burton v. State of Indiana (NFP)

James N. Arnold v. State of Indiana (NFP)

Kevin Pendleton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Ind. App.Ct. Decisions

Courts - "When judges, jurors and the Internet collide" What is different about the internet?

An article by Nicole L. Black at LLRX.com explores this question. It begins:

In the past, I've described misguided attempts by judges to excessively penalize jurors for using social media or the Internet during the pendency of trials. In fact, over the last year, judges have gone so far as to fine or jail jurors who have used social media during trial, and legislators have proposed laws that would criminalize such conduct. This despite the fact that jurors have been violating judges' orders not to research or discuss pending cases since the dawn of jury trials.

But for some reason, the use of social media and the Internet by jurors really bothers some judges. In fact, it just gets their goat. The question is: why?

Perhaps it's because many judges don't understand social media so they find it to be more threatening than traditional methods of violating their orders, such as reading about a case in the newspaper, researching issues using encyclopedias, or discussing the case with their spouses over dinner. Or perhaps it's because use of the Internet leaves a digital trail, making violation of judicial orders easier to prove.

Or maybe it's because jurors these days aren't as smart as they used to be and can barely restrain themselves from rushing out immediately after a verdict is handed down and blabbing to reporters all about the different ways that they've used the Internet to violate judicial orders.

I'm not exactly sure what the answer is, but I' do think that it was a combination of the three theories above that lead to the latest brouhaha stemming from a juror allegedly using the Internet during a trial to research issues raised during trial.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Courts in general

Courts - "Eli Lilly CEO warns Canadian court rulings put jobs at risk"

From the Toronto Globe & Mail, a long story by Jeff Gray and Tavia Grant that begins:

The head of U.S. drug giant Eli Lilly and Co. warns that recent Canadian court rulings favouring generic drug producers are driving his company, and the research and development jobs it provides, right out of the country.

John Lechleiter, chief executive officer of Indianapolis-based Lilly, said recent court rulings striking down Canadian patents on three of the company’s top drugs have cost it more than $1-billion in revenue and forced it to shed about 280 jobs since 2006, leaving it with about 500 staff in Canada.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Courts in general

Courts - A look at the states filing amicus briefs in the same-sex marriage cases

In this post yesterday at SCOTUSblog, Marty Lederman takes a look at the amicus briefs filed in the same sex marriage cases:

By my count, forty-two “topside” amicus briefs have been filed in the California Proposition 8 case, Hollingsworth v. Perry, and twenty-six topside amicus briefs (not including that of the Court-appointed amica) have been filed in the DOMA case, United States v. Windsor. That’s about fifty-eight briefs total, since at least ten of them are “joint” briefs filed in both of the cases. * * *

The briefs contain many things of interest. Perhaps the single most important feature of the topside amicus briefs, however, is a dog that didn’t bark — or not as loudly as might have been expected, in any event.

Forty-one states prohibit same-sex marriage. But only twenty of those forty-one states have filed briefs in support of the constitutionality of Proposition 8: Indiana is the lead party on a brief for nineteen states, and Michigan filed a brief of its own. Compare this level of state participation with, for example, the amicus brief filed by all forty-nine other states in Maryland v. King (to be argued February 26), in support of Maryland’s argument that a state does not violate the Fourth Amendment by collecting and analyzing the DNA of persons who have been arrested for, but not convicted of, a criminal offense. * * *

It is further significant, I think, that in twelve of those twenty-one non-filing states, constitutional amendments prevent the recognition of same-sex marriage via the ordinary political process. All but one of those amendments was ratified from 2002 through 2008, in anticipation that popular majorities might soon support a change in state law (2002: Arkansas, Nevada; 2004: Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oregon; 2006: Tennessee; 2008: California, Florida; 2012: North Carolina). In some of those states, the decision of state officials not to file in Perry might be explained, at least in part, by a judgment that the constitutional amendments that govern marriage in those states no longer reflect the views of their constituents.

[More] Indiana is also the lead counsel on an amicus brief in Windsor, joined by 16 other states, arguing in favor of the federal Defense of Marriage Act (DOMA). Here is the background on Windsor.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Courts in general

Ind. Law - Ag-gag bill moves to the full Senate

Updating this ILB entry from Feb. 12th, Niki Kelly reports in the Fort Wayne Journal Gazette:

INDIANAPOLIS – Agricultural and industrial businesses tired of embarrassing – and sometimes damaging – photos and videos of their operations want legislative protection.

And a Senate panel voted 7-2 Tuesday to give it to them, making it a crime to take such photos and videos on private property without permission of the owner.

Proponents called Senate Bill 373 a boon for private-property rights while opponents said it erodes whistleblower protections.

Sen. Travis Holdman, R-Markle, said he offered the bill to get at “vigilantes” who are getting into the private facilities with the sole intent of taking these types of photos or videos. He said many of them are animal activists looking for evidence of possible animal abuse.

Examples given during the hearing included people who take tours of the facility or who even work at the businesses for several weeks to obtain photos and videos of questionable activities. The documentation is often posted online and sometimes causes harm to the business.

“These people are trespassers,” said Ed Roberts of the Indiana Manufacturers Association. “They are doing something they are not supposed to be doing.”

The bill does not affect photos or videos taken while on public property.

Opponents, though, pointed to times in history when similar documentation led to improvements in the meat industry, rules about child labor laws and other examples.

Erin Huang, state director for the Humane Society of the United States, said taking away whistleblower protections related to the country’s food supply is dangerous. She also said animal abuse has been uncovered and prosecuted in other states with similar photos and videos.

She also noted a number of criminal charges that could already apply, such as trespassing or fraud, as well as civil remedies through libel or defamation lawsuits. * * *

And there also were concerns that journalists might not be able to conduct undercover investigations without running afoul of the law.

Sen. Mark Stoops, D-Bloomington, said the bill reminded him of a visit to Communist Romania where he wasn’t allowed to take photos.

“This makes the law a little more messy. We already have laws to deal with this issue. We don’t need another one,” he said.

The bill now moves to the full Senate.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Indiana Law