« September 29, 2005 | Main | October 01, 2005 »

Friday, September 30, 2005

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending September 30, 2005

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending September 30, 2005. There are 43 Court of Appeals cases listed this week.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending September 30, 2005

Here is the Indiana Supreme Court's transfer list for the week ending September 30, 2005. Three cases were granted transfer this week; two of these were NFP (unpublished).

For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Indiana Transfer Lists

Ind. Courts - Still more on "Plan to link 400 courts hits a wall, again"

Nick Fankhauser, the VP for Product Development at Doxpop LLC, in Richmond, Indiana, has sent me a note about the Court's judicial technology and automation project (JTAC), about which the ILB has most recently posted on 9/26/05 and 9/29/05.

Fankhauser's company, Doxpop, provides internet access to court records in a number of Indiana counties. Access its website here. A quote from the site:

Doxpop provides access to over 3,909,887 current and historical cases from 92 Indiana courts in the Doxpop Network. During the average working day a new case is added every twenty seconds.

Doxpop receives frequent updates from every court we work with. Most courts send updates every ten minutes so the information you see on the Doxpop web site is always current and complete.

The historical case information available varies from three years to twenty years back depending on the jurisdiction. Most courts have at least ten years of historical case information available though Doxpop.

Here is a list of the counties Doxpop serves.

With that introduction, here is what Fankhauser writes in his note to the ILB, in answer to my question of what would/should JTAC do next - open the project up for new bids? His answer:

I hope the Supreme Court notices that many of the software companies in the private sector not only share their commendable goals but have been quietly working to meet those goals during the last 5 years (JTAC actually got started 5 years ago). The counties who have worked with these companies have succeeded while Computer Associates [JTAC's vendor] only predicted success.

A major reason for this success is that competitive pressure and niche markets can produce many solutions to choose from. Both tiny counties like Union (Pop. 7000) and major counties like Marion (Pop. 855,000) can use the market to their advantage to implement a solution that matches their unique local needs while still complying with statewide standards.

It is foolhardy to believe that a single vendor without competitive pressure will serve the needs of both large and small counties with equal focus and attentiveness.

Perhaps it is time to open the door to those who have succeeded and involve them in producing an open market solution that Indiana can be proud of.

Re the oft-reported "fact" that a number of Indiana counties remain in the "dark-ages" with respect to technology, Fankahuser writes:
Although there are some stragglers, all Indiana courts can easily and for a reasonable cost procure the software needed to meet the goals that were set when the "Statewide CMS" project was started. Even the stragglers are not simply "do-nothing" counties -- the counties who are struggling with outdated systems are cautious people who have been waiting for nearly a decade to upgrade their systems because of uncertainty about State requirements.

Although most people are aware of the JTAC statewide CMS project, those who have worked with the courts for some time will recall that before JTAC existed, there was an effort to create standards via the "AIMS" project. This project was started in or about 1995 and at the time, local courts were advised not to upgrade their software until the standards had been produced. The standards were never to my knowledge disseminated to local courts or CMS vendors.

The obvious irony here is that because the local courts have been told for roughly 10 years not to upgrade their software, it might appear to an outsider that left to their own devices, the local courts working with their vendors are incapable of effectively utilizing technology. In fact they are quite capable, and those who have ignored the direction from above to "do nothing" have moved forward on their own and are doing very well.

For examples of this, compare the situation of the Montgomery County courts to the situation of the Clay County Courts. Montgomery decided to help themselves and two years ago, installed a CMS that meets all of the goals outlined in the CMS policy Statement of May 2002. Clay was to be the first recipient of the JTAC CMS and, along with about 12 other counties, they're still using a substandard system while they follow the suggestion to wait for someone else to solve their problems.

Fankhauser's conclusion:
I think we should all support public oversight by communicating with interested parties and encouraging media attention. I hope others will join us in asking JTAC to seriously re-evaluate not just their vendor choice but the entire project. Another message that the planned approach to achieving their goals is essentially unchanged despite years of major setbacks and a radically altered technology will not speak well for JTAC.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Indiana Courts

Ind. Gov't. - Governor appoints environmental policy assistant

This position was called Executive Assistant for Environmental Policy in prior years; I don't know what it is called now. But Governor Daniels has appointed attorney Kari Evans to the post. I believe she started work on Sept. 12th and have been waiting for an announcement, but have not seen one.

Ms. Evans most immediate former employer was Barnes & Thornburg, where her focus was water quality issues. Prior to that, she was a water quality expert at IDEM. She was highly regarded in both posts.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Environment | Indiana Government

Law - Large Firms Discover New Marketing Tool: Blogs

"Large Firms Discover New Marketing Tool: Blogs" is the headline to a story today in the National Law Journal.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to General Law Related

Ind. Decisions - Several Court of Appeals rulings today

Among the 8 opinions issued today by the Court of Appeals is a 20-page opinion by Judge Sullivan in Courtney Smith v. Natalie Deem & Susan Stafford, which holds "Because we agree with Deem that Smith did not timely file her Notice of Appeal, we dismiss this appeal."

In a 32-page opinion (including Judge Crone's 4-page dissent), George S. Row III v. Holly Holt, et al., Judge Mathias rules: "Concluding that genuine issues of material fact exist as to “false arrest” and “false imprisonment,” and, therefore, the law enforcement officials are not entitled to qualified immunity, we reverse summary judgment and remand for further proceedings consistent with this opinion."

Another property law case today, 7-page opinion by Judge May in Kevin Hysell & Karen Jones v. Joseph B. Kimmel & Mary Sue Kimmel-Yater reversing the trial court and holding: "As no easement across the Hysell property may be implied and Hysell was not estopped from withdrawing permission for Kimmel to use the driveway, we must reverse the order enjoining Hysell from blocking the path across his property."

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Ind. App.Ct. Decisions

Law - What is a "holding"?

Professor Lawrence Solum of the Legal Theory Blog had an excellent piece last weekend, as part of his continuing series of the basics of legal theory for beginning law students, on "what is a holding?" A short quote:

It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents!

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to General Law Related

Law - Local color on confirmation of new Chief Justice of the U.S.

"Roberts sister beams about confirmation" is the headline to this Jim Stinson story in today's Gary Post-Tribune. Some quotes:

Shortly after the U.S. Senate confirmed John G. Roberts Jr. as the nation’s 17th chief justice of the United States, four women applauded on Paw Paw Creek Court in Valparaiso and toasted the man one of them calls her brother.

Kathy Godbey, a nurse at St. Anthony Medical Center in Crown Point and a 26-year resident of the Heritage Valley subdivision on the city’s southwest side, is Roberts’ older sister. * * *

Roberts, the La Lumiere School graduate and former Long Beach resident, was confirmed late Thursday morning by a vote of 78-22, replacing the late William Rehnquist as the next leader of the U.S. Supreme Court. * * *

Unlike other Roberts family members, Godbey stayed in Northwest Indiana long after the family relocated to Maryland.

She married Dustin Godbey, and the couple have two children, Becky, 21, and Katie, 17, a Valparaiso High School senior. Becky attends Butler University.

Kathy and the Roberts family have strong ties to Porter and LaPorte counties.

Although the new chief justice was born in Buffalo, N.Y., in 1955, the family moved to Long Beach, near Michigan City, when John was a child.

John G. Roberts Sr. was a manager at the Bethlehem Steel plant in the 1960s and 1970s.

The parents moved to the East Coast about 1979, and now live in a Baltimore suburb.

The retired couple will be with Roberts for the private swearing-in ceremony, Godbey said.

Godbey couldn’t get to Washington, D.C., in time for the vote, but will fly out today with her family.

There, they will meet up with the parents, the other sisters and Roberts’ own family, and attend a private dinner hosted by friend Dean Colson of Miami. Then the family and others will attend a public swearing-in on Monday.

The Munster (NW Indiana) Times has this story, titled "Locals expect Hoosier Roberts to be fair, impartial: Long Beach native confirmed as Supreme Court chief justice."

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to General Law Related

Ind. Gov't. - BMV publishes draft ID requirements and schedules hearing

The October 1, 2005 Indiana Register contains the proposed new Bureau of Motor Vehicles rules. Access them here. The Digest:

Adds 140 IAC 7-4 to establish standards for operator’s licenses under IC 9-24-9 and identification cards for nondrivers under IC 9-24-16.
This 9/10/05 ILB entry gives background, including:
Next the BMV has to schedule and conduct a public hearing(s) on the draft rule. Public notice of the hearing has to be published in a newspaper of general circulation in Marion County. All this is covered under IC 4-22-2, sections 23, 24, and 26. Section 27 provides that the comments from the hearing(s) must be considered. After complying with the preceding (and other related) requirements, the agency may adopt the rule. See section 29. Thereafter the proposal has to undergo review and approval by the attorney general, the governor, and be filed with the secretary of state. The rule takes effect 30 days thereafter.
The draft requirements look to be the same as those the Court of Appeals declared to be void, not because of their content, but because they were adopted without following the requirements of the rulemaking statutes, including a public hearing.

A single public hearing has been scheduled, for Monday, October 24 at 9:00 a.m., in the IGCS Auditorium. Hopefully, 78-years-old Theresa Clemente, featured in this 9/25/05 Frank Gray column in the Fort Wayne Journal Gazette, will be able to attend to testify on how the current "unofficial" rules (which presumably do not differ from the published "draft rules") operate in the real world. Ms. Clemente, according to the column, was turned away three times from a Fort Wayne BMV office in effort to obtain a photo ID, a requirement for voting in Indiana as a result of 2005 legislation. Some quotes from the story:

On her first visit last July, Clemente brought her Social Security card, voter registration card, property tax bill, utility bill and credit card to the BMV at Southgate. But she was turned away. She needed a birth certificate.

So Clemente went home, got her copy of her birth certificate, and went back.

No, she was told, she needed a certified copy of her birth certificate.

Oh.

So Clemente contacted officials in Boston and after paying $28 got a certified copy of her birth certificate and went back to the BMV, her third trip.

It all went smoothly. She had everything she needed, it seemed. All the papers were filled out and she was sent to the end of the room to get her picture taken.

Then, more bad news. We can’t give you an ID. It says on the paperwork that your name is Grady, but you say it’s Clemente.

Well, I’m married, she said. My name has been Clemente for 53 years now.

For some reason, the staff at the BMV had filled out the paperwork for her ID using the name on her birth certificate, not the name on her Social Security card or credit card or utility bill or property tax bill or voter registration card.

One would think the problem could have been quickly remedied. People might realize that Clemente, like pretty much everyone, wasn’t married when she was born and the BMV would go back and correct the paperwork.

Instead, officials said she needed to produce a marriage certificate.

Clemente was prepared. She had that on hand.

No, she was told. We need a certified copy of your marriage certificate.

Clemente was sent away again.

At this point, Clemente and her husband, who was with her, got a little testy. This is their third trip, and every time they appear at the license branch, she’s told she needs something different. Now this.

Clemente said she asked to speak to a supervisor, and was approached by someone who gave her a yellow piece of paper explaining what she needed to get an ID. It was the first time she had been offered the sheet.

The contents of that "sheet" are presumably what is incorporated in the new draft rule. Unfortunately, according to the article, Ms. Clemente already had submitted everything required on the yellow sheet, but had still been turned away. Perhaps once the BMV has an officially promulgated list of requirements, it will abide by it.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Indiana Government

Ind. Courts - Corydon attorney suspended

The Louisville Courier Journal reports today that:

Corydon lawyer David Layson, a former county attorney for Harrison County, has been suspended from practicing law for 60 days by the Indiana Supreme Court's Disciplinary Commission.

This is the third time since 1998 that state authorities have suspended Layson's law license -- this time for professional misconduct.

As for more general statistics, the story conlcudes:
The Supreme Court can impose a variety of sanctions against lawyers, and any previous actions are considered. Disciplinary actions against the state's 15,508 active lawyers, however, are relatively rare, said Donald Lundberg, the disciplinary commission's executive secretary.

During the last fiscal year, Lundberg said, 12 lawyers were forced to resign and one was disbarred. The licenses of 23 others were suspended for specific periods or indefinitely, with a variety of conditions placed on the chances for reinstatement.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Indiana Courts

Environment - More on Gov. Daniels' plan to expand logging

"State to expand logging of forests" is the headline to a story by Lesley Stedman Weidenbener in today's Louisville Courier Journal that explores the pros and cons of the plan. Be sure to check the useful "What's next" sidebar.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Environment