From an AP story today, dateline Denver:
More than 100 people applied for four independent spots on the U.S. Olympic Committee's new board of directors by Friday's deadline. The directors will join the three American International Olympic Committee members and four others nominated by athletes and sports organizations as part of the board formed last year after months of turmoil clouded the USOC's future.The independent candidates, who applied online over the past three weeks, have a wide range of backgrounds -- including finance, marketing, public relations and athletics.
"There are people from virtually any description you might want to come up with," said Indiana Supreme Court Justice Theodore R. Boehm, who heads the four-person nominating committee. "Many of them have been distinguished in various fields, different backgrounds, different skills. We think we're going to be able to assemble a board that meets all the criteria we have, which obviously are credibility, talent, experience, diversity."
George Carson v. State of Indiana (4/30/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge
Appellant-Defendant George Allen Carson (“Carson”) appeals the trial court’s determination that he was guilty but mentally ill for the attempted murder of his wife, Tricia Carson (“Wife”). We affirm.In the Matter of the Supervised Administration of the Estate of Kellyn R. Andrews (4/30/04 IndCtApp) [Estates & Trusts]Issues. Carson raises two issues, which we restate as: [1] Whether the trial court’s determination that Carson was guilty but mentally ill was contrary to law because the evidence demonstrated that he was insane at the time of the attempted murder; and [2] Whether the Indiana Supreme Court’s holding in Barany v. State, 658 N.E.2d 60 (Ind. 1995), precluded Carson from proving that he was not responsible by reason of insanity at the time of the offense. * * *
On March 23, 2004, our supreme court decided [Thompson v. State, 804 N.E.2d 1146, 1148 (Ind. 2004)], wherein it held that a finder of fact is entitled to decide whether to credit the opinions of experts on insanity, even in the absence of lay witness testimony. Indeed, as previously mentioned, the Thompson court found sufficient evidence to support the trial court’s guilty but mentally ill determination when the evidence revealed that: (1) the defendant removed only items belonging to her from the house that she unlawfully entered; and (2) the police officers who stopped the defendant following the incident believed that she was lucid enough to proceed about her business. Although Thompson did not define the episodic parameters regarding what constitutes probative non-medical evidence, it demonstrates that the Indiana Supreme Court has revisited and reaffirmed its holding in Barany. Accordingly, we decline Carson’s invitation to disregard supreme court precedent. Affirmed.
NAJAM, J., and ROBB, J., concur.
"Given the sensitive nature and the specific facts of this case, we find that the trial court did not abuse its discretion in ordering the equal division of K.A.’s remains between Mother and Father. First, K.A.’s wishes allowed for the division of her ashes by the direction to spread them in different locales. Second, by acceding to such wishes, Mother also allows for a division of the remains. Moreover, neither IC 25-15-9-18 nor IC 23-14-31-26 distinguishes between a custodial and non-custodial parent. Finally, the practice of dividing the remains of a decedent among the survivors is common and acceptable in the funeral service industry. Susan French of French Funeral Home testified that the funeral industry has developed a market around the idea of dividing ashes. Specifically, French testified that memento urns or keepsakes have been marketed to preserve divided ashes for surviving family members."
Reeder Associates II v. Chicago Belle LTD., et al. (4/30/04 IndCtApp) [Attorney Fees]
Bailey, Judge
[H]ere, the propriety of the trial court’s award turns on the interpretation of a statute, i.e., Indiana Code Section 6-1.1-25-13. * * * Because Owner commenced the equivalent of an action to quiet title without first tendering the requisite check to Purchaser, it has not complied with the prerequisites necessary to invoke the attorney fees provision of Indiana Code Section 6-1.1-25-13(b). As such, the statute is inapplicable to the case at bar and the trial court erred by granting attorney fees and costs, in the amount of $49,348.76, to Owner. * * * For the foregoing reasons, we reverse the trial court’s award of attorney fees to Owner. Reversed.Betty Bridges v. Metromedia Steakhouse Company, et al. (4/30/04 IndCtApp) [Tort]
RILEY, J., and DARDEN, J., concur.
Betty Bridges sued Metromedia Steakhouse Company, L.P., d/b/a Ponderosa Steak House (“Metromedia”), after she sustained a burn injury while visiting one of Metromedia’s restaurants. A jury returned a verdict in favor of Bridges, but also assessed her forty percent comparative fault. She appeals and presents the following issues for our review: 1. Whether the trial court abused its discretion when it allowed an insurance adjustor to testify regarding the extent of Bridges’ injury based upon her observation during the parties’ mediation. 2. Whether the trial court abused its discretion when it allowed that testimony despite Metromedia’s failure to identify the insurance adjustor as a witness prior to trial. We affirm.
BAKER, J., and MAY, J., concur.
Here is the Indiana Supreme Court's transfer list for the week ending April 30, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.
A story today in the Munster Times has some interesting history on the prohibition against "judge shopping" in Indiana:
In the old days, "judge shopping" wasn't prohibited. Prosecutors who were prosecuting a high-profile murder case could pick whichever judge they felt was toughest on people accused of that crime.But Bradford said that ended several years ago when boxer Mike Tyson stood trial for rape in Indiana and his attorneys complained that the prosecution got the case assigned to a judge who was a former sexual crimes prosecutor.
The Indiana Supreme Court ordered each county to come up with a way to randomly assign cases. Porter County came up with a marble system, getting marbles made of colors like black, white and green. Marbles are now drawn randomly from a container, and the color which is drawn decides which judge receives the case.
"Attorney gets 5-month sentence, and a lot of support," is the headline to a mortgage scam story published this week in the Muncie Star-Press. "Take #1" is found at the beginning of the story:
INDIANAPOLIS - Moments after Federal Judge Sarah Evans Barker sentenced a former Delaware County court official to a 5-month prison term, she nearly cried and told the people standing in her courtroom how she never wanted to hear the case. But she did, and former master commissioner Bruce McLaren, a man Barker had apparently met before, was sentenced in connection with a mortgage scam in which he and two co-defendants were able to steal money over a 3-year period."Take #2" appears later in the same story:Along with the 5-month prison term, Barker also sentenced McLaren to five months of home detention and two years of supervised probation, and ordered him to pay $314,361 in restitution. But, McLaren will not start serving his sentence until mid July so he can attended his daughter's wedding on May 22.
According to federal authorities, McLaren, real estate agent Cindy Hickey, 45, and appraiser Danny R. King, 37, conducted 25 fraudulent real estate transactions between 1998 and July 2001. Most of the homes involved were on Muncie's south side, investigators said.[Original link thanks to Kemplog.com.]McLaren bought homes at low cost to resell. Then he and Hickey provided mortgage lenders false information about buyers' assets in order to get the buyers to qualify for mortgages. King allegedly provided numerous appraisals that corroborated the grossly inflated sales prices to mortgage lenders.
Based on the bogus information, the buyers obtained loans that were sometimes twice as much as McLaren had paid for the houses, investigators said. McLaren and Hickey shared the profits from the transactions, authorities alleged, and paid King a fee for his appraisals. In most instances, the buyers defaulted on their mortgages, prompting loan companies to foreclose on the properties.
In a press release this morning titled "Judiciary Launches Online Child Support Calculators," the Indiana Supreme Court reports that:
In a highly collaborative effort, the Indiana Supreme Court has created three new electronic tools that will make calculating child support obligations easier and faster, Chief Justice Randall T. Shepard announced today.Check out the three calculators here.“These tools will assist judges, attorneys, and citizens around the state make accurate calculations of child support in domestic relations cases that follow the Indiana Child Support Guidelines,” said Chief Justice Shepard.
These three calculators, which generate the required child support court forms, include:
The calculators are the product of collaboration between the Division of State Court Administration, the Indiana Judicial Center, the Judicial Conference of Indiana Domestic Relations Committee, the Indiana Supreme Court Judicial Technology and Automation Committee (JTAC), and the Marion Superior Court. Technical development of the online calculators was completed by eGov Strategies of Indianapolis. JTAC staff members completed the technical development of the downloadable calculator.
- an online, interactive Step-by-Step Calculator complete with instructions, definitions, and references to the Guidelines;
- an online, interactive Practitioners’ Calculator specifically designed for members of the justice community with experience calculating child support; and
- a Downloadable Calculator for Microsoft Excel™ for use on computers without an Internet connection by members of the justice community with experience calculating child support.
“The greatest benefit of these calculators is their ease of use,” said St. Joseph Superior Court Judge Michael Scopelitis, who chairs of the Domestic Relations Committee. “Not only do the calculators simplify the process of determining support obligations in compliance with the Child Support Guidelines, but using each calculator should be intuitive for their respective audiences.”
Updating yesterday's entry - "500 barrels of hazardous waste found" - is this story today in the Munster Times headed "State vows water testing at dump site near Lowell." Some quotes:
In the wake of news of about hazardous chemicals being dumped at the old Feddeler site, the Indiana Department of Environmental Protection Thursday promised to again test groundwater at the site in coming weeks.At the same time, the state partly backed away from an e-mail written last August by a solid waste official at the agency.
In that memo to the director of the Lake County Solid Waste Management District, Bruce Palin wrote that 500 barrels of hazardous waste had been documented at the now-closed site.
A memo to Palin from state staffer Daniela Klesmith Thursday clarifies the situation. It notes the 500 additional barrels were not dumped, but cites inspection sheets indicating a Michigan firm called Organic Chemical had deposited "numerous barrels of hazardous waste" in two trenches, which were then covered.
"Lawyer tackles state rules restricting ads," is the title of a story last week in the Cleveland Plain Dealer. Some quotes:
Cincinnati - Bret Adams has won some huge paydays over the years for Ohio's biggest sports stars.Thanks to Carolyn Elefant's MyShingle.com for the link.Now, the lawyer wants celebrity clients like former football standout Chris Spielman to appear in advertisements to talk about the money he's made for them. * * *
[But] State rules on legal ethics prohibit lawyers from lining up testimonials from satisfied customers.
In Ohio, any ads with clients touting an attorney's capabilities are banned as "misleading and self-laud- atory" under the disciplinary code. A lawyer can have his license lifted for violating the ban, which has been on the books for nearly a century. * * *
Adams, who also represents University of Cincinnati basketball coach Bob Huggins and ESPN commentator George Karl, filed a federal lawsuit this month that aims to scrap the Ohio Supreme Court rules that govern content in ads sponsored by the state's 30,000 lawyers.
All seven justices have been named as defendants. So far, they have not responded to the suit.
What about Indiana? See Rule 7.1 (Publicity and Advertising), and particularly subsection 7.1(d), of the Indiana Rules of Professional Conduct, for a similar prohibition.
Updating the Indiana Law Blog entry from Wednesday (4/28/04), titled "More on pharmaceutical arbitrage and drug import," is this story from the Business Section of yesterday's NY Times headlined: "Medicare Starts Web Site to Compare Drug Prices." Some quotes:
Medicare plans today to open a Web site designed to help millions of older Americans compare prices of their prescription drugs. The site is the first big-league test for DestinationRx, a little-known company that Medicare hired without competitive bidding to design and run the system.[I tried to check out the drug calculator; I believe this is the direct link. Using it certainly is not effortless as there are several variables involved, including what drug card the user/client/patient has/or will sign up for. As the story notes: "Accurate comparisons are important because the short time frame - 19 months - and because in some cases pays a subscription fee of as much as $30 for a card."]If it works as advertised, Medicare enrollees will be able to visit the site to find prices of their particular medications at nearby stores that will accept Medicare-certified discount cards. They could then use the information to decide which card would help them most when the discount program starts on June 1.
But the program has attracted a number of skeptics. Many industry experts doubt that price transparency can be achieved in a business famous for spreading a fog of consumer confusion. Others wonder if Medicare's Web price-comparison service is even necessary; several free commercial services are already available online. And even among people who think the Medicare comparison site, at www.medicare.gov, is a good idea, some wonder if DestinationRx will prove up to the task. "It is astounding that a tiny firm got that contract on a noncompete basis," said Dr. Arnold Milstein * * *.
The Times story continues:
Companies that already operate drug price-comparison Web sites, including Drugstore.com and PillBot .com, have complained that Medicare administrators did not seek competitive bids before awarding the $3 million, 18-month contract. But executives at DestinationRx, which operates a online discount pharmacy service, insist they qualify because they already have the computer systems that Medicare needs. * * *Medicare Resources Online. Published this week on the excellent LLRX.com is a comprehensive article titled "Medicare Resources Online" that reviews "some of the many online Medicare resources," listing "primarily free resources that emphasize law, policy, and program implementation."Drugstore.com says it will publish its comparisons of the Medicare card prices. It promises to offer some drugs at still lower prices, regardless of whether the buyer has a Medicare-certified discount card. "Our standard discount is 20 to 30 percent off A.W.P.,'' said Greg French, a spokesman for Drugstore.com.
PillBot.com, another online drug information company, also expects to undercut the Medicare card discounts, said Gregg James, a PillBot vice president. The company operates an online pharmacy, RxCorps .com, that offers low-cost generic drugs to Medicare enrollees. "We are going to bring our prices low enough that people will not want to have that drug card,'' he said.
Dean E. Blanck v. Indiana Department of Corrections (3/30/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Najam, Judge
Dean Blanck appeals the trial court’s dismissal of his complaint against the Indiana Department of Correction (“DOC”) and the Miami Correctional Facility. He raises a single issue on appeal, namely, whether the trial court erred when it dismissed his complaint for failure to state a claim upon which relief can be granted. We reverse and remand. * * *Phelps Dodge v. Department of Local Government Finance (4/28/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]Relying on [Zimmerman v. State, 750 N.E.2d 337 (Ind. 2001)], the state asserts categorically that, “the result is no different because Blanck claims the violation of a statutory right.” We cannot agree. Concurring in Zimmerman, Justice Boehm recognized “two open questions” the defendant did not raise in his complaint. Specifically, the defendant “made no claim that Indiana Code [S]ection 11-11-5-4 grants him a statutory right which is protected by Article I, Section 12’s open courts clause.” Id. Justice Boehm went on to state:
We are left, then, with two open questions for another day. First, does Indiana Code section 11-11-5-4, which prohibits the Department of Correction[] from imposing certain disciplinary actions, create a statutory right? If so, does Article I, Section 12 of the Indiana Constitution guarantee inmates a right to judicial review of disciplinary proceedings allegedly in violation of that statute?Here, as we have stated, Blanck’s complaint alleges in part that “he has a state created statutory right by the provisions of Ind. Codes § 11-11-5-4, § 11-11-5-5, § 11-11-5-6, § 11-11-5-7 and § 11-10-1-7 protected by the State Constitution,” and that “Article [I], Section 12 of the Indiana Constitution ‘Open Courts Clause’ is a guaranteed right to judicial review of state laws where prison officials have imposed arbitrary forms of disciplinary punishments in direct violation of these statutes [i.e.] I.C. 11-11-5-4.” Thus, Blanck has raised legal questions not addressed in Zimmerman. Indeed, Blanck’s complaint raises issues of first impression, and he is entitled to his day in court to have those issues decided on the merits. In sum, we reject the State’s argument that Zimmerman is dispositive and conclude that Blanck’s complaint states allegations upon which relief could be granted. Thus, the trial court erred when it dismissed Blanck’s complaint. Reversed and remanded for further proceedings.
BAKER, J., and MAY, J., concur.
"The sole issue for the Court to decide is whether the State Board erred when it refused to award obsolescence depreciation to PD’s improvements." Affirmed.
The Dalton Foundries, Inc. v. Department of Local Government Finance (4/28/04 IndTaxCt NOT FOR PUBLICATION) [RRS Deduction]
"Thus, it is clear to the Court that Dalton’s RRS application was denied because it was untimely filed. Having stated in Dalton I that the Assessor had discretion to deny an untimely filed Form RRS-1, and in light of the filing deadlines prescribed by statute, the Court cannot say that the State Board abused its discretion in affirming the Assessor’s denial of Dalton’s RRS deduction application."
Noteworthy among the opinions issued today by the USCA for the 7th Circuit is an immigration case, GUCHSHENKOV, IVAN v. ASHCROFT, JOHN D., where Judge Posner writes about the immigration judge:
Her analysis fell far below the minimum required to support an administrative decision. It is one more indication of systemic failure by the judicial officers of the immigration service to provide reasoned analysis for the denial of applications for asylum. We are mindful that immigration judges, and the members of the Board of Immigration Appeals, have heavy caseloads. The same is true, however, of federal district judges, and we have never heard it argued that busy judges should be excused from having to deliver reasoned judgments because they are too busy to think. The two cases under review, like the other cases in which we have reversed the board of late, are not so difficult that it is unreasonable for a reviewing court to expect and require reasoned judgments at the administrative level. The errors that have compelled us to reverse in these cases despite the deferential standard of judicial review of agency action are not subtle. Asylum seekers should not bear the entire burden of adjudicative inadequacy at the administrative level.The panel here consisted of Posner, Rovner, and Evans. Judge Evans, in a concurring opinion, begins:The petitions for review are granted, the orders of removal vacated, and the cases returned to the immigration service for further proceedings consistent with this opinion. We urge that these two cases be reassigned to other immigration judges in view of the striking inadequacy of the analysis by the immigration judges whose decisions we are vacating.
Although I join the majority in voting to remand these two consolidated asylum petitions for further proceedings, I write separately to express my concern, and growing unease, with what I see as a recent trend by this court to be unnecessarily critical of the work product produced by immigration judges who have the unenviable duty of adjudicating these difficult cases in the first instance.Judge Evans then goes on to quote some prior language of the Court, in a paragraph that begins: "Recently, in failing to find substantial evidence in the record sufficient to affirm the decisions of the immigration judges, we have made disparaging comments about the quality of their work: * * *."
An AP story posted this morning on the IndyStar.com website, headlined "Court yanks Columbus lawyer's license," reports:
COLUMBUS, Ind. -- The Indiana Supreme Court suspended the law license of an attorney accused of helping to turn her law office into a front for a methamphetamine-dealing operation. The order suspending Karon Perkins, which Chief Justice Randall T. Shepard signed Wednesday, was effective immediately. The suspension was to remain in effect until the allegations against Perkins are resolved.The order itself is not yet available online.
Coal Ash. The Evansville Courier-Press has a lengthy editorial today on coal ash that covers the history of the issue as it pertains to disposal on mine property. It begins:
Since 1988, and probably much longer ago than that, Indiana environmentalists, government officials and the coal/power industry have been debating the disposal of coal combustion waste. And they are still at it today, with no resolution in sight. In fact, it looks as if not much will happen until after the National Academy of Sciences completes a study of whether coal ash is an environmental threat when disposed of on mine property. With the study expected to begin this summer and take 18 months, it could be two years or more before the controversy has any scientific guidance.The editorial refers to a Courier-Press story last weekend. That story, and others, are included in this Indiana Law Blog entry from April 25, 2004.
500 barrels of hazardous waste found. That is the headline to this story today in the Munster Times. The gist:
Five hundred barrels of hazardous waste were dumped at the old Feddeler landfill west of Lowell, according to a memo by an Indiana Department of Environmental Management official. * * * Even so, the state did not bother to test the leachate flowing out of the now-closed landfill and into a stream that eventually feeds the Kankakee River, according to the memo, which The Times obtained this week.Indeed, IDEM records show that IDEM entered into a Commissioner's Order (9610) with "R&M Enterprises d.b.a. Feddeler Landfill" on June 27, 2001. The Order does not make reference to the 500 barrels of hazardous waste. It requires that the respondent proceed with closure of the site as a solid waste facility and that it pay a $54,750 civil penalty to IDEM.Several homes and businesses located within a few hundred feet of the dump rely on well water pumped from an underlying aquifer.
[Bruce Palin, IDEM's deputy assistant commissioner for its Office of Land Quality] said he wrote the memo discussing the hazardous waste after the director of the Lake County Solid Waste Management District inquired about cleaning up the site.
In the Aug. 14 memo, Palin said a staff summary documented there were 500 barrels of hazardous waste from a company called Spartan Chemicals, along with pesticides, paint thinner, resins and a variety of chemicals at the site. * * *
Robert Feddeler, who once also owned land immediately north of Ind. 2, but sold it about three years ago to Allied Waste to turn into another construction and debris landfill. He could not be reached for comment.
Palin recalled that money from the sale was to be used to properly close the Feddeler dump, but that did not happen and, after years of ongoing troubles, IDEM Commissioner Lori Kaplan ordered Feddeler's company, R&M Enterprises, the corporate owner of the dump, to pay a $54,750 fine. The state did not fine Feddeler himself. The company asserted it had no money and never paid.
Also of interest is an April 13, 1999 Agreed Order (387) entered into by R&M ENTERPRISES, INC. d/b/a Feddeler Construction/Demolition Landfill and IDEM, whereby the respondent agreed to pay a civil penalty of $98,862.50. However, most of this penalty was to be forgiven under the terms of a vaguely outlined Supplemental Environment Project (SEP) whereby respondent was "to provide earthmoving equipment and equipment operators for performance of earthmoving activities at a site or sites to be identified by the Complainant." This agreement also makes no mention of barrels of hazardous waste, but rather charges "that the Respondent has overfilled 66,000 cubic yards of construction/demolition material located on the southwest portion of the landfill."
Here is the Washington Post coverage of yesterday's decision in Vieth v. Jubelirer. Some quotes:
A deeply divided Supreme Court yesterday upheld a redistricting plan that sought to give the Republican Party an edge in races for Pennsylvania's 19 congressional seats but refused to close the door on court challenges to such "partisan gerrymandering" in future cases.Referring to the 1986 Supreme Court decision in Davis v. Bandemer (declaring an Indiana legislative redistricting to be unconstitutional partisan gerrymandering), the story continues:A five-justice majority ruled that there is no objective way to determine whether the 2002 Pennsylvania redistricting plan, which a Republican-dominated state legislature devised and which produced GOP victories in 12 of the 19 districts, was so unduly influenced by politics that it denied Democrats their constitutional right of equal treatment under state law. As a result, the majority said, the court must bow out.
No "judicially manageable standards for adjudicating political gerrymandering claims have emerged," Justice Antonin Scalia wrote in an opinion that was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas. Though a decision by the court in 1986 opened the door to court challenges against alleged partisan gerrymandering, Scalia wrote, the past 18 years of experience, in which no court has upheld such a challenge, shows that "political gerrymandering claims are nonjusticiable and that [the 1986 decision] was wrongly decided."Here is the LA Times coverage of the decsion. Some quotes:The fifth member of the majority, Justice Anthony M. Kennedy, agreed with Scalia that the Pennsylvania Democrats, who noted that the state now has a Republican-majority House delegation even though Democrats got most of the statewide vote for Congress, had failed to show how a court could decide that they had been the victims of unconstitutional gerrymandering.
But he said that did not mean a court could never figure out how much political gerrymandering is too much, and he refused to overrule the 1986 decision.
"I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases," he wrote.
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented, offering their views of how courts could formulate intelligible definitions of excessively partisan redistricting.
The 5-4 ruling is a major disappointment for liberal reformers who had hoped that the court would insist on fairness and equality in the political process.Here is the NY Times article:They argued that elections are being "rigged" across the country so that politicians pick their voters, instead of the other way around.
During the 1970s and 1980s, Democrats used their majorities in state legislatures to ensure that their party would maintain a majority in the U.S. House of Representatives. Typically, they would draw district lines in a way that would lump Republicans into a few districts, leaving most with a comfortable majority of Democratic voters.
In recent years, and particularly since the 2000 census, Republicans have done the same. And thanks to more sophisticated computers, reformers say, state party officials can engineer the results long before the voters go to the polls.
Lawyers challenging this process had hoped the Supreme Court would rule that democracy requires elected representatives to reflect the will of most voters, not the line-drawing skill of the state lawmakers who control the process.
"Today's decision means that the courts have given up on trying to curb even the most outrageous partisan gerrymanders," said Tom Gerety, executive director of the Brennan Center for Justice at New York University Law School. He cited Pennsylvania, Georgia, Florida, Michigan and Texas as examples of overly partisan line-drawing.
While the framers of the Constitution envisioned the House of Representatives as reflecting the will of the people, political scientists say that, today, it rarely reflects democracy in action. In 2002, for example, 99% of the House incumbents who sought reelection won.
Holding the swing vote, Associate Justice Anthony M. Kennedy voted with his conservative colleagues in saying that the Pennsylvania case did not violate the Constitution. But in a separate opinion, he declared that he was not willing to say as they did that no case would ever rise to that standard.Useful commentary on the opinion from SCOTUSBlog and from Election Law Blog.The lineup of the justices was the same as in the case that ended the recount in Florida after the 2000 election and essentially awarded the presidency to George W. Bush.
Several other redistricting cases are in the pipeline and may end up before the Supreme Court. If the court accepts a suit challenging State Senate and House districts in Georgia and decides it on the same ground as the Pennsylvania case, then Democrats would be the winners. But issues other than partisan gerrymandering are involved in the Georgia case, and it could be decided on different grounds.
The most conspicuous case is in Texas. A new map of Congressional districts was approved there last year at the urging of Representative Tom DeLay, the House majority leader. Republicans drew the new lines after they won full control of the Legislature, and they are expected to bring the party at least four new House seats in November.
Daniel F. Million v. Janet L. (Million) Swager (4/28/04 IndCtApp) [Family Law]
Another dispute over divorced parents' shares of college costs for child. "Daniel F. Million (“Father”) appeals the trial court’s order regarding payment of college expenses for C.C.M., the oldest child of Father’s former marriage to Janice L. Swager (“Mother”). Father raises one issue on appeal, which is whether the trial court’s order that Father pay toward C.C.M.’s education at Cornell University was clearly erroneous. We affirm."
Steven A. Fields v. State of Indiana (4/28/04 IndCtApp) [Criminal Law & Procedure]
Robb, Judge
On March 30, 2004 the Indiana Law Blog reported here: "Court of Appeals to hear another chewing tobacco/breathalyzer case," to be argued at Indiana State University. Here is the decision: "Because we hold the trial court did not abuse its discretion in admitting the chemical breath test results, and the State presented sufficient evidence to support Fields’s conviction, we affirm the judgment of the trial court." BAKER, J., and RILEY, J., concur.
Mikki M. Bergman v. Thomas M. Zempel (4/28/04 IndCtApp) [Family Law; Civil Procedure]
May, Judge
Mikki M. Bergman (“Mother”) brings this interlocutory appeal from the Allen Superior Court’s denial of her motion to dismiss a petition to establish paternity filed by Thomas M. Zempel (“Father”). Mother raises two issues, which we consolidate and restate as whether the trial court erred when it failed to dismiss Father’s petition. We reverse. * * *William M. Geiersbach, Jr. v. Robert Frieje, Dave Wagner, and Tri State University, and Josh Wagner (4/28/04 IndCtApp) [Tort]We have repeatedly noted jurisdiction under the UCCJA [Uniform Child Custody Jurisdiction Act] is a question of jurisdiction over the case and, if a party fails to contest a trial court’s jurisdiction, the issue can be waived. Similarly, Pennsylvania’s Rules of Civil Procedure require a party to “raise any question of jurisdiction of the person or venue by preliminary objection filed within twenty days of service of the pleading to which objection is made or at the time of hearing, whichever first occurs.” As Father failed to question the Pennsylvania Court’s jurisdiction at an appropriate time, he has waived any such argument. Accordingly, even if the Pennsylvania Court erred when it exercised jurisdiction over Mother’s petition, Indiana courts should recognize and enforce its custody determination.
The Allen Superior Court should have stayed proceedings on Father’s petition and contacted the Pennsylvania Court when it learned custody proceedings were pending in Pennsylvania. Because the Pennsylvania Court had entered an initial custody decree in conformity with the PKPA [Parental Kidnapping Prevention Act], the trial court should have recognized and enforced that initial order. Moreover, because Pennsylvania had continuing jurisdiction over the custody determination in accordance with the PKPA and Pennsylvania’s version of the UCCJA, the trial court should have dismissed Father’s petition. Accordingly, we reverse the trial court’s denial of Mother’s motion to dismiss.
Reversed. BAKER, J., and NAJAM, J., concur.
"Conclusion. A participant in a sporting event or practice cannot recover against another participant absent proof of intentional injury or malicious or reckless behavior. Geiersbach failed to designate any evidence showing such conduct. Therefore, the trial court properly granted the motions for summary judgment. The trial court’s decision is affirmed."
George M. Saunders v. State of Indiana (4/28/04 IndCtApp) [Criminal Law & Procedure]
Christina M. Allgood, individually and on behalf of all others similarly situated v. Meridian Security Insurance Company (4/28/04 IndCtApp) [Insurance]
Robb, Judge
Christina Allgood appeals from the trial court’s dismissal of her class action lawsuit against Meridian Security Insurance Company and denial of her own motion for partial summary judgment. We reverse. * * *Terry L. Slinkard v. State of Indiana (4/28/04 IndCtApp) [Criminal Law & Procedure]Conclusion. The policy at issue provides that Meridian may, at its option, repair or replace a damaged vehicle with “like kind and quality.” We construe that to include not only restoring to the insured a vehicle of similar physical condition, but also restoring to the insured a similar value as prior to the damage. Accordingly, we hold that in an appropriate case, diminution in value may be recovered by the insured. The trial court therefore erred in granting Meridian’s motion to dismiss and in denying Allgood’s motion for partial summary judgment on this issue. We therefore remand to the trial court for further proceedings consistent with this opinion. Reversed.
SULLIVAN, J., concurs.
HOFFMAN, SrJ., dissents with opinion:
I respectfully dissent to the majority’s rewrite of the contract between Allgood and Meridian. As the majority has already stated, and I restate for emphasis, we may not rewrite an insurance contract if the language of the contract is unambiguous. Estate of Ebelhard v. Illinois Founders Insurance Co., 742 N.E.2d 1, 2 (Ind. Ct. App. 2000). In interpreting the contract, we must attribute the plain meaning to the contract’s language. * * *
Robert Rakoci v. Department of Local Government Finance (4/23/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]
"Robert Rakoci (Rakoci) appeals the State Board of Tax Commissioners’ (State Board) final determination valuing his real property for the 1998 tax year. The issue for the Court to decide is whether the State Board erred in assigning each of Rakoci’s two apartment buildings a “C” grade. For the following reasons, the Court AFFIRMS the State Board’s final determination."
Waterfurnace Intl., Inc. v. Department of Local Government Finance (4/23/04 IndTaxCt) [Property Tax]
Waterfurnace International, Inc. (Waterfurnace) appeals the State Board of Tax Commissioners’ (State Board) final determination valuing its real property for the 1998 tax year. The issue for the Court to decide is whether the State Board erred when it assessed Waterfurnace’s improvement using the General Commercial Industrial (GCI) schedule as opposed to the General Commercial Kit (GCK) schedule. * * * Waterfurnace argues that the State Board erred in using the GCI as opposed to the GCK schedule when it assessed its improvement. The State Board claims that Waterfurnace failed to demonstrate that its improvement qualified for GCK pricing. The State Board, however, is incorrect. * * * Because the State Board failed to support its final determination with substantial evidence, it did not rebut Waterfurnace’s evidence indicating that its improvement qualified for assessment under the GCK schedule. Accordingly, the State Board’s final determination must be reversed.Goshen Sash & Door - Smokercraft v. Department of Local Government Finance (4/23/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]
"The sole issue for the Court to decide is whether three of GSD’s improvements are entitled to additional obsolescence depreciation adjustments. * * * Because GSD failed to link the factors causing obsolescence with an actual loss in its property’s value, it failed to make a prima facie case quantifying the amount of obsolescence to which it was entitled. Thus, the Court AFFIRMS the determination of the State Board."
Shelby Street Realty Corporation, n/k/a Merchandise Warehouse, Inc. v. Perry Township Assessor (Opinion) (4/26/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]
Re obsolescence depreciation.
Shelby Street Realty Corporation, n/k/a Merchandise Warehouse, Inc. v. Perry Township Assessor (Order on Respondent's Motion to Dismiss) (4/26/04 IndTaxCt NOT FOR PUBLICATION) [Property Tax]
This opinion piece in today's Wall Street Journal (paid subscription required), titled "Why Not Import Drugs From Fantasyland?" got my attention. Referring to an announcement last week from Congress of "bipartisan legislation to allow 're-importation' of drugs sold to Canada," the column continues:
We're not in business to give Congress even worse ideas than it can come up with on its own, but if the Canadian system is so great, why not just enact our own Canadian-style price controls here? Or why not just mandate that all U.S. drugs be shipped to Canada and then shipped back so they'll be eligible for Canadian prices and all Americans can have cheaper drugs? What's the point of simply sanctifying ad hoc hoops and hurdles that permit a few Canadian Internet pharmacists to get rich by arbitraging between our system and theirs?"Web Site Lets Uninsured Compare Medication Costs," is the headline of this story today in the Washington Post, that reports:
With a new Web site -- one of the first of its kind in the country -- unveiled yesterday by Maryland Attorney General J. Joseph Curran Jr., uninsured patients like Schuldenfrei can enter a Zip code and prescription type and compare the prices at pharmacies in the neighborhood and across the state.Here is the link to the Maryland Drug Calculator.It's the latest attempt to bring down the price of prescription drugs. Maryland Gov. Robert L. Ehrlich Jr. (R) recently announced that Maryland will join a pool of states that could save money by buying drugs in bulk. And Montgomery County, as part of its employee health plan, is considering importing drugs from Canada, where prescription drugs are generally less expensive because of a weak Canadian dollar and price controls set as part of the country's national health care program. * * *
In Maryland, Curran noted at the news conference where reporters and senior citizens crowded around tables and leaned against the walls, almost 700,000 people younger than 65 have no health insurance, and more than 220,000 seniors on Medicare have no prescription drug coverage -- that's "about 1 million Marylanders," he added, " . . . a lot of us."
So about a year ago, inspired by programs in Arizona, New Mexico and Maine that surveyed pharmacies and publicized the disparate costs for prescription drugs, Curran (D) decided to embark upon a similar effort but take it one step further.
Culling information from Medicaid reimbursement requests, Curran's staff was able to determine how much each of the state's 1,200 pharmacies was charging for 25 of the most commonly prescribed drugs. All of that information, updated monthly, is now available on the Web site: www.oag.state.md.us.
In Montgomery, the price of the cholesterol-lowering medication Lipitor can range from $60 to $109, a difference of $49 a month or $588 a year, according to the Web site. In Prince George's County, the price can run from $68 to $98, while in Howard County, Lipitor is sold for $72 to $104.
When Curran first alerted the state's 1,200 pharmacies to what he was doing, many expressed concern. Some 24-hour pharmacies worried that they would be undercut by pharmacies that didn't keep extended hours, said Carolyn Quattrocki, Curran's special assistant, who oversaw creation of the Web site. Independent drugstores, which offer a personal relationship with a pharmacist, fretted that price comparisons with large chains such as Target and Wal-Mart would put them out of business.
Here is an earlier (4/23/04) Indiana Law Blog entry on drug prices.
The Supreme Court issued a decision in Engine Manufacturers Association, et al. v. South Coast Air Quality Management District, et al. this morning, vacating and remanding the lower court decision by a vote of 8-1. The question in the case was: Whether local government regulations prohibiting the purchase of new motor vehicles with specified emission characteristics--which are otherwise approved for sale by state and federal regulators--are preempted by the Clean Air Act. See the FindLaw docket here.
[Update 4/29/04] Here is today's LA Times coverage. The lead:
Southern California air quality officials overstepped their authority when they required private trash haulers, bus lines and other companies to purchase low-pollution vehicles for their fleets, the U.S. Supreme Court ruled Wednesday.In another air story today, the LA Times reports here:The 8-1 decision significantly sets back a broad effort by the South Coast Air Quality Management District, the regional smog agency, to expand its reach and tackle the biggest sources of smog-forming exhaust: cars, trucks and other motor vehicles.
The federal government has primary authority over those pollution sources, and local regulators assert that federal officials are not doing enough to help clean the air in Southern California.
The ruling could also forecast trouble for other efforts by California officials to press the state's authority to push new air pollution regulations, some legal experts said.
WASHINGTON — Career government experts in the arcane field of air quality modeling have joined to oppose a new Bush administration policy that they say threatens air quality over national parks and wilderness areas.In a rare internal protest, they contend that science is being manipulated to suit policy objectives.
The air quality modelers in all but one of the Environmental Protection Agency's 10 regions have told their bosses that they believe the policy, which alters the air quality modeling for North Dakota's national parks and wilderness areas, represents "substantial changes from past air quality modeling guidance … and accepted methods."
They also warned that the policy change "could set a precedent" for other regions, according to an internal EPA memo dated April 21.
Veteran EPA officials said the agency's modelers decided to take a stand against the policy because they were offended by what they termed the administration's efforts to use science to mask a policy change that would hurt air quality. They also were worried that the new policy would make it more difficult to protect the air over federal lands.
Today's Indianapolis Star has this front-page story: "State sets new rules for ethics: Kernan aims to restrict lobbying and ban gifts to executive branch." It begins:
Gov. Joe Kernan laid out new ethics and lobbying rules Tuesday, including a ban on any gifts to executive branch employees and a one-year restriction on lobbying by senior officials who leave his administration.Here is the link to the actual Kernan press release, dated 4/27/04.In addition, Kernan said he will create an "office of chief investigator," who will report to the governor. That person will coordinate the state's internal ethics investigations and develop additional policies to prevent fraud.
"An organization, in order to be effective, must have the trust of its customers, and must have very clear expectations and rules that are laid out, that are not confusing," Kernan said at a news conference in his Statehouse office.
That trust has been strained by a series of scandals in state government in recent months. Four employees at the Bureau of Motor Vehicles were arrested, accused of taking bribes to give out driver's licenses. A convicted identity thief was arrested after the state learned he'd lied to win a key job at the Public Employees Retirement Fund that gave him access to sensitive information.
A manager at the Family and Social Services Administration was fired and indicted earlier this month on charges that he bilked the state out of $455,000.
Kernan will implement the new rules through executive orders, many of which will take effect July 5. The new rules also say lobbyists trying to influence state agencies must register, just as those trying to influence the legislature must do.
My initial questions: First, re the series of scandals listed above - these offenses already are being prosecuted. What will the new rules add?
Second, what will be the definition of an executive branch lobbyist? This will not be easy to draft. Here is the link to the law on legislative lobbyists in Indiana (IC 2-7). Here is the chapter (IC 2-7-1) containing the definitions. Essentially, this law requires that anyone who is paid or expends more than $500 to influence legislative action must register. The focus of "legislative action" is basically the enactment or defeat of legislative measures. The executive/administrative branch of state government is much more diverse. What will the definitions be here?
Some attention is given to this issue in the Star story this morning:
But Dan Seitz, a lobbyist with BoseTreacy Associates LLC and a partner with the law firm of Bose McKinney & Evans LLP, said Kernan's announcement leaves him with more questions than answers.Other papers this morning also cover this story. Here is the Louisville Courier-Journal report. A quote:His biggest concern? The definition of a lobbyist.
In the legislature, it's anybody who spends at least $500 a year to influence the General Assembly.
How a lobbyist is defined in the executive branch will be decided by the Department of Administration, which Kernan has charged with developing theproposed rules by July 5.
Rules affecting lobbyists will be published in the Indiana Register and will go through the normal rule-making process, with feedback from the public, before final versions are drafted in six to nine months.
Seitz questioned Kernan's authority to impose the registration requirement.
"There are freedom-of-speech issues," he said.
Kernan also expanded the state's "revolving door" policies. Currently, executive branch employees and state agency heads must wait one year before lobbying state officials on an issue with which they had been previously involved.Another question: What about staff level employees leaving state government and going to work for those their agency has been regulating -- "changing sides" during the course of an enforcement action or similar dispute where they have inside knowledge, for instance? Is this a problem, and is/would it be covered?For example, if the commissioner of the Indiana Department of Environmental Management resigns, he or she can't immediately go to work as an attorney for a company working with that agency.
Kernan's new policy expands that prohibition by banning former senior-level staff of the governor and lieutenant governor and agency heads from contacting state officials about any official action for one year, regardless of the topic.
The Munster Times has a brief story this morning. A quote: "[T]he changes will affect 35,000 state employees and thousands of state vendor companies and lobbyists. "We are drawing very clear, easy-to-understand lines that will make a real difference," Kernan said.
[More] Here is the link to a Center for Public Integrity report, "Hired Guns," and related information on lobbyists.
"Websites Tattle on Tax Scofflaws," is the headline to this story today in WiredNews.com. A quote:
ATLANTA -- To those for whom civic duty alone is not enough motivation to pay taxes, states are rolling out a new weapon: shame.A growing number of states are hoping to humiliate delinquent taxpayers by putting their names online. Used in at least 13 states and sporting zingy names like CyberShame [Louisiana] and DelinqNet [Minnesota], the websites are giving state tax collectors a surprisingly useful tool for gathering old taxes.
"We're trying to shame people," said Danny Brazell of the South Carolina Department of Revenue, which attributes $5.5 million in newly collected taxes to its website, Debtor's Corner, started in 2001.
City of Carmel v. Leeper Electric (3/18/04 IndCtApp) [Reposted, apparently to correct an error in the original posted decision, covered by the 3/18/04 ILB entry]
Fifth Third Bank v. Gloria Stanek (4/26/04 IndCtApp) [Banking; Contracts; Statutory Construction]
Crone, Judge
Stankek's house was burglarized, her safe deposit box key was stolen, and, per the opinion:
That same day, Smith went to Fifth Third and approached Melissa Meyer, a Fifth Third customer service representative. Meyer determined which safe deposit box Smith wished to enter by examining the key. Meyer then retrieved the safe deposit box access card, which listed Stanek and her daughter, Jean Neely, as the only people authorized to access the safe deposit box, but nonetheless gave Smith the card to sign. Smith signed the name “John Stanek” and was allowed access to the safe deposit box. Contrary to Fifth Third’s normal office protocol, Meyer did not ask Smith for identification, nor did she crosscheck the name Smith signed with the list of authorized names on the access card. Smith took most of the contents of the safe deposit box, including the coin collection, and left the bank. * * *Monica Hubbard v. Columbia Women's Hospital, et al. (4/26/04 IndCtApp) [Medical Malpractice]Fifth Third argues that Indiana’s Safe Deposit Box Statute shields it from all liability resulting from the loss, theft, or misappropriation of any property it received from Stanek pursuant to the statute, regardless of its own fault or culpability in the loss. In support of this contention, Fifth Third directs our attention to Indiana Code Section 28-1-11-11 * * *.
Fifth Third argues that under the plain and unambiguous language of this statute, it could not be liable to Stanek. Fifth Third further asserts that courts are not permitted to “judicially construe” an unambiguous statute; and, even if this Court determined that the statute did in fact contain an ambiguity such that “judicial construction” would be proper, the historical and legal background of the enactment of the statute compels a literal application of the statutory language which clearly protects it from any possible liability to Stanek.
Stanek, on the other hand, asserts that the facts contained in her complaint establish that Fifth Third was negligent when it allowed unauthorized access to her safe deposit box. Stanek further asserts that Fifth Third is not entitled to the protection afforded by the Safe Deposit Statute because it failed to act with reasonable care or diligence in ensuring the safety of her property. In support of her argument, Stanek directs our attention to two cases, Welbourn v. Peoples Loan & Trust Co., 152 Ind. App. 337, 283 N.E.2d 544 (1972) and Parke State Bank v. Akers, 659 N.E.2d 1031, 1032 (Ind. 1996). * * *
Welbourn holds that a bank’s due diligence is a prerequisite for it to use the Safe Deposit Box Statute as a shield from liability. Fifth Third argues that Welbourn, the only reported appellate decision to date to specifically interpret the Safe Deposit Box Statute, was incorrectly decided and urges us to reject its reasoning. We might be inclined to consider doing so if our supreme court had not recognized the viability of a breach of contract claim in a similar situation in Parke State Bank. * * *
As stated earlier, a motion for judgment on the pleadings cannot be granted unless it is clear from the face of the complaint that under no circumstances could relief be granted. In light of Parke State Bank, and unless we receive further guidance from our supreme court, we are constrained to find that when, as here, a bank freely negotiates a contract wherein it contractually obligates itself to use reasonable care in the safekeeping of its customers’ property, the Safe Deposit Box Statute does not automatically shield it from all liability. Accordingly, we conclude that the trial court properly denied Fifth Third’s motion for judgment on the pleadings. Affirmed.
MATHIAS, J., and BARNES, J., concur.
The trial court was without subject matter jurisdiction to rule upon the merits of a medical malpractice complaint filed before a medical review panel rendered an opinion. Although the Act prescribes a procedure for invoking the subject matter jurisdiction of the trial court for limited purposes pending a medical review panel opinion, Hubbard did not comply with the statutory mandate of anonymity. Accordingly, the trial court properly dismissed Hubbard’s complaint, without prejudice. Affirmed.Northrop Corporation v. General Motors Corporation & Allison Engine Company (4/27/04 IndCtApp) [Evidence]
RILEY, J., and DARDEN, J., concur.
Northrop Corporation, Northrop Aircraft Division, n/k/a Northrop Grumman Corporation ("Northrop"), appeals the trial court's judgment in the amount of $67,669,492.05 in favor of General Motors Corporation and Allison Engine Company, Inc. ("Allison"). * * *Matter of SPH and HPH v. Clay County (4/27/04 IndCtApp) [Family Law]Based on the foregoing, we find and conclude the following:
The trial court did not commit reversible error when it denied Northrop's motion for judgment on the evidence.
There was sufficient evidence presented to the jury and by a preponderance of that evidence, we find no reversible error in the jury's verdicts in favor of Allison on its superior knowledge claim, its defective specifications claim, and its claim for damages due to scope of work changes caused by Northrop's conduct.
There was sufficient evidence presented to the jury and by a preponderance of that evidence, we find no reversible error in the jury's verdict in favor of Allison on its claim for damages due to Northrop's failure to pay for the work Allison performed on the Trailing Edge project.
There was sufficient evidence presented to the jury and by a preponderance of that evidence, we find no reversible error in the jury's denial of Northrop's counterclaim for damages.
We find that pursuant to California Civil Code, Section 3287(a), the trial court did not commit reversible error by awarding Allison prejudgment interest.
Affirmed.
SULLIVAN, J., and RILEY, J., concur
"[W]e conclude that Hancock’s due process rights were not violated and the evidence is sufficient to support the trial court’s termination of his parent-child relationship."
Herbert Smith, Jr., and Charles Zacek v. Lake County, et al. (4/27/04 IndCtApp) [Civil Procedure]
Mathias, Judge
In this case, the parties clearly felt the need to select a judge, rather than accept normal assignment. The parties were presented with a panel of three judges under the procedure established in Rule 79(F). Each party struck one judge from the panel, and the remaining judge, Judge Dywan, qualified and assumed jurisdiction of the case. By failing to strike Judge Dywan, both parties indicated their belief that Judge Dywan would be fair and impartial in presiding over the case. Moreover, their reasonable expectation was that Judge Dywan, as the duly appointed special judge, would preside over the case. [Instead, Judge Dywan "appointed and designated Jennifer Kalas “to preside as Temporary Judge of said Court pursuant to I.C. 33-13-16-1, et seq., on the 12th day of June, 2003, and hereby fully authorize and empower her to preside as said Temporary Judge of said Court on said day and date in as full and ample manner as I could do myself.”] Accordingly, we conclude that because Judge Dywan qualified and assumed jurisdiction of the case after he was selected as the special judge under the procedure established in Trial Rule 79(F), Judge Dywan was required to preside over the case. This is consistent with common sense and the only discovered Indiana cases of even marginal relevance.Beth A. Comer-Marquardt & House of Rays, LLC v. A-1 Glassworks, LLC (4/27/04 IndCtApp) [Civil Procedure; Agency]Because the Plaintiffs objected to Temporary Judge Kalas presiding over the case, Judge Kalas lacked jurisdiction to hear and rule on the motions to dismiss. Therefore, Judge Kalas’s July 25, 2003 order is without legal effect and we must dismiss this appeal as premature.
Interesting case. A sample:
However, we hold there is another basis on which to conclude that the trial court did abuse its discretion in refusing to set aside the default judgment against Rays. Specifically, Rays contends that entry of default judgment against it while the action against Marquardt personally remains unresolved has the potential to lead “to an incongruous result . . . .” We agree. This is because under the doctrine of respondeat superior, a master or principal is chargeable with, and liable for, any tortious act committed by his servant or agent while such servant or agent is acting in the course of his employment and in the line of his duty. See Grzan v. Charter Hosp. of Northwest Indiana, 702 N.E.2d 786, 792 (Ind. Ct. App. 1998). Conversely, if the servant or agent is released of liability, no liability can be imputed to the principal. See id. Thus, it is axiomatic “that a judgment in favor of an employee requires judgment in favor of his employer when the employer’s liability is predicated solely upon the acts of said employee.” Health & Hospital Corp. of Marion County v. Gaither, 272 Ind. 251, 260, 397 N.E.2d 589, 595 (1979).Romel D. Armstead v. State of Indiana (4/27/04 IndCtApp) [Criminal Law & Procedure; Statutory Construction]
To obtain a conviction for carjacking, the State had to prove that Armstead knowingly or intentionally took a motor vehicle from another person or from the presence of another person by using or threatening the use of force on any person or by putting someone in fear. IC 35-42-5-2. Armstead argues that Pawlick’s motor scooter is not a “motor vehicle” so that he cannot be guilty of carjacking for taking it. IC 35-41-1-18.5, by way of IC 9-13-2-105(a), defines “motor vehicle” as a vehicle that is self-propelled, except for a farm tractor, an implement of husbandry, or an electric personal assistive mobility device. Here, the evidence at trial showed that Pawlick was operating his motor scooter, driving down a road in Gary, Indiana, when Armstead approached him. Pawlick testified that the motor scooter is motorized, operates on gasoline like a car, and runs at speeds up to forty-five miles per hour. He explained that it does not have pedals and cannot be operated like a standard bicycle. Because Pawlick’s vehicle is self-propelled, we find that it is a motor vehicle within the statutory definition and can be the subject of a carjacking.Linda R. Borth v. Paul W. Borth (4/27/04 IndCtApp) [Family Law]Nonetheless, Armstead cites State v. Drubert, 686 N.E.2d 918, 919 (Ind. Ct. App. 1997) in which a panel of this court determined that a moped was not a motor vehicle for purposes of the habitual traffic violator laws. The court relied on the fact that an operator’s license is not required to operate one. However, the term “motor vehicle” is defined differently for purposes of the traffic and criminal penal statutes. For purposes of the traffic laws, the definition of a “motor vehicle” excludes motorized bicycles, two- or three-wheeled vehicle that are propelled by an internal combustion engine or an electric motor, and which operate at not more than twenty-five miles per hour on a flat surface. By contrast, the definition of “motor vehicle” applicable to the criminal code does not exclude motorized bicycles. * * * Affirmed.
NAJAM, J., and RILEY, J., concur.
Dispute over divorced parents' shares of college costs for child. "Mother, however, refused to pay 37% of the cost of Baylor, and instead insisted that her responsibility was capped at 37% of the cost of attending Indiana University."
Antoine Jones v. State of Indiana (4/27/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Najam, Judge
Issue Two: Double Jeopardy. Next, Jones contends, and the State concedes, that his convictions on Count III and IV, possession with intent to deliver and possession within 1,000 feet of school property respectively, violate the “actual evidence test” applied under Article I, Section 14 of the Indiana Constitution. “To show that two challenged offenses constitute the same offense under the actual evidence test, ‘a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). In this case, both Counts III and IV alleged that on October 17, 2002, Jones possessed more than three grams of cocaine. But only two quantities of cocaine were presented as evidence at trial, the 1.75 grams found in Jones’ bedroom and the over 43 grams found inside the bathtub. Thus, we agree that to find Jones guilty of both Counts III and IV, the jury had to rely on the same 43 grams of cocaine to establish the essential element of cocaine possession under both offenses in violation of the actual evidence test.Jaye Edwards v. State of Indiana (4/27/04 IndCtApp) [Criminal Law & Procedure]
Although the parties agree that a double jeopardy violation occurred, they dispute the appropriate remedy on remand. In particular, the State directs us to a footnote in a case in which our supreme court noted that some of the defendant’s convictions may violate double jeopardy principles. See Roop v. State, 730 N.E.2d 1267, 1270 n.2 (Ind. 2000). * * *First, we do not consider the supreme court’s statements in Roop binding because the court did not squarely address the issue presented here, namely, what is the appropriate remedy for a double jeopardy violation. Our supreme court does not decide important questions of law in footnotes. See Molden v. State, 750 N.E.2d 448, 451 (Ind. Ct. App. 2001). The court was merely commenting on an issue not raised by the defendant, and the State reads far too much into the Roop footnote. A double jeopardy violation occurs when judgments of conviction are entered and cannot be remedied by the “practical effect” of concurrent sentences or by merger after conviction has been entered.
In addition, in Kochersperger v. State, 725 N.E.2d 918, 925-26 (Ind. Ct. App. 2000), we explained that where the trial court had “merged” two offenses, imposed one sentence, but entered judgment of conviction on both offenses, one of the offenses must be vacated to comport with double jeopardy. Here, the trial court entered judgment of conviction on both Count III and Count IV. Therefore, we remand with instructions to the trial court to vacate the judgment of conviction on Count IV. * * *
Affirmed in part, reversed in part, and remanded.
KIRSCH, C.J., and RILEY, J., concur.
Re the story covered here in an entry Sunday (scroll down) titled "Dispute between Indiana and Ohio towns brings in Justice Department," today the Richmond Palladium-Item is reporting, in a story headlined "U.S. Justice Department threat downgraded:"
WEST COLLEGE CORNER, Ind. -- A threat by the U.S. Justice Department last month to sue both sides of this two-state town over violations at Indiana's sewage treatment plant has been downgraded to "not urgent," village attorney Harrison Green said. * * *One participant is quoted as saying: "There's a war in Iraq and troops in Haiti and they're messing with a little town out in the middle of nowhere."Neither town had heard from the U.S. Environmental Protection Agency in two years, since it demanded the Ohio village become a joint permit holder with Indiana for the sewage treatment plant. Last fall, the towns signed a new agreement for sewage service that's allowed engineering to begin on needed plant improvements.
As this story reports this morning in the Indianapolis Star:
Under the gaze of thousands of Internet watchers, the peregrine falcon chicks in Indianapolis' Downtown nest have hatched.View the Star Falcon Cam here. The earlier April 19th ILB falcon entry is here.Visible on Falcon Cam at indystar.com, the tiny chicks are mere balls of white fluff right now but will grow fast. By 6 weeks, they will be nearly adult-sized and soon after will take their first flights around Monument Circle.
Among the 7th Circuit opinions posted today is JUAREZ v. MENARD, INC., an appeal from the ND Ind, Hammond Division, Judge Lozano. In an opinion affirming the district court, Judge Rovner writes:
Menards, a chain of home improvements stores operates under a business model which combines warehouse with retail store. Customers make their selections from merchandise displayed on lower shelves and excess merchandise is stored on shelves high above. Consequently, employees at Menards often use machinery to load and unload merchandise from high shelves at the same time that customers are shopping in the store.Access the Indiana Law Blog's June 2, 2003 coverage of the Cheatham decision here and access a pdf version of the opinion here.On January 19, 2002, two Menard employees were stocking doors in the millwork department of a Menards in Schererville, Indiana, when the doors they were stocking onto a high shelf on one side of an aisle pushed up against a steel door perched on a storage shelf high above the adjacent aisle. The steel door fell from its shelf, hitting Maria Juarez, and, according to Juarez, broke four vertebrae in her back, and caused head injuries, blurred vision, and permanent back and neck injuries.
Juarez filed a complaint in the district court invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332, and seeking compensatory and punitive damages for her injuries. * * *
Juarez does not challenge the jury’s verdict awarding her $385,000 in compensatory damages as unsatisfactory, and theoretically at least, she has been made whole by that award. Punitive damages, however, go beyond compensating a tort victim for a cognizable wrong. They are designed to deter and punish wrongful activity, and as such, are quasi-criminal in nature. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003). Under Indiana law, which we must apply in this diversity action, (see Erie R.R. Co. v. Tompkins, 304 U.S 64, 78 (1938)) civil plaintiffs have no right to receive punitive damages. Cheatham, 789 N.E.2d at 472. And, in fact, the Indiana General Assembly has demonstrated a disinclination toward allowing unchecked punitive damages awards by enacting legislation that limits the amount of money a plaintiff may receive from a punitive damages award (Ind. Code § 34-51-3-6) and by requiring that a plaintiff establish the facts warranting an award of punitive damages by clear and convincing evidence rather than the usual preponderance of the evidence standard. Ind. Code § 34-51-3-2. Thus in Indiana, before a court may award punitive damages, a plaintiff must demonstrate by clear and convincing evidence that the defendant acted with malice, fraud, gross negligence or oppressiveness that was not the result of mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing. [cites deleted] Moreover, a trier of fact is not required to award punitive damages even after finding all of the facts necessary to justify the award. Cheatham, 789 N.E.2d at 472. The requirements for an award of punitive damages, therefore, go far above and beyond those required for a finding of negligence. Menard does not dispute that it was negligent in allowing this accident to happen. It argues, however, that it did not have the requisite intent needed for an award of punitive damages. * * *
Menard admitted liability for the accident and a jury awarded Juarez $385,000 in compensatory damages for her injuries. The only question presented by this appeal then is whether Menard acted with malice, fraud, gross negligence or oppressiveness which was not the result of mistake of fact or law, honest error or judgment, overzealousness, mere negligence or other human failing. Although Menard’s failure to protect customers from falling merchandise pushed by employees loading stock in an adjacent aisle was, as Menard admits, negligent, it did not constitute the type of willful and wanton or quasi-criminal conduct for which punitive damages may be assessed. Consequently we AFFIRM the decision of the district court.
Here is the Indiana Supreme Court's transfer list for the week ending April 23, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.
More than two weeks have passed since our last iron nugget entry. Here is a story from the Friday, 4/23/04 Mesabi Daily News, reporting on the chair of Minnesota House tax committee:
[Rep.] Abrams distributed an article to floor members that showed how Minnesota’s $16 million investment in Mesabi Nugget technology was heading to Indiana.Meanwhile, two ther representatives:Abrams told the representatives, I don’t care where you are from, “when you read this stuff and see how we were had, we are all Iron Rangers. One thing that is not in the bill is something dealing with the escalator.”
He added, “(The article) said we have been dealt from the bottom of the deck. It isn’t right and I felt very compelled to speak out on this issue and bring the plant back to MN where it belongs.’’
With emotions and passions running high, House members seemed to agree that they wanted Minnesota’s technology and natural resources to stay in the state. Abrams said he would not think about a tax rebate until there was stronger commitment from mining companies to open the first plant here. Range legislators said that Abram’s words meant a lot.
Abrams said mining companies have approached him about the high rate of taxes in Minnesota. But, he said, “I don’t want to hear about the taxes ... until they have a firm date (for opening a plant).”
are in the process of introducing legislation in environmental committees to shorten permitting processes in Hoyt Lakes, since the site has already underwent permitting. The companion bills have been scheduled for hearings next week.A widely-published AP story from Saturday reports:Dill said Abrams’ comments on the plant moving to Indiana should help garner support for his environmental legislation in the House, since members would understand why the expedited process is needed.
ST. PAUL - Minnesota has made a last-minute push to bring a next-generation taconite-processing plant to the site of the dormant Hoyt Lakes plant on the Iron Range instead of a site in Indiana.As for the environmental issues, the story continues:Mesabi Nugget, a consortium formed in 2001 partly with state money, had planned to open its first production plant in Indiana by 2005 because of Minnesota's more-stringent environmental review process.
Minnesota provided $16 million in low-interest loans to Mesabi Nugget, about half of the $30 million in financing originally required to operate the successful pilot plant in Silver Bay.
"We're in discussions about the financial requirements for a plant in Minnesota vs. Indiana," Commissioner Sandy Layman of Iron Range Resources said Friday.
The agency uses taconite taxes to seed redevelopment in northeastern Minnesota. "We're being told that Steel Dynamics of Indiana, a Mesabi investor, would be a major investor in an Indiana plant but less so in Minnesota. So our requirement would be filling the gap with some debt." * * *
Mesabi Nugget had decided to build the first commercial-scale plant in Auburn, Ind., closer to the steel-making furnaces of Steel Dynamics.
That decision has enraged several Iron Range lawmakers.
In a speech on the floor of the state House on Friday, a chief taconite industry advocate at the Legislature said he would no longer work for industry production-tax changes.
Rep. Ron Abrams, R-Minnetonka, sent a warning to the taconite industry and, specifically, to the partners in Mesabi Nugget.
During debate on an omnibus tax bill, Abrams, chairman of the House Tax Committee, said he was angered that it appeared the iron-nugget-production facility would be built in Indiana and not Minnesota.
Indiana, like Minnesota, has a six-month plant-licensing process, but not the more extensive 16-month environmental review on top of that.[Update 4/29/04] Another story today in the Duluth News Tribune. Several significant items:Cheryl Corrigan, executive director of the Minnesota Pollution Control Agency, said this week that Minnesota has offered to waive the environmental review period if Mesabi Nugget agrees to permanently retire the antiquated taconite smelter at the dormant Hoyt Lakes plant and refit the facility with next-generation pollution controls.
Mesabi Nugget is expected to make a decision in May. Corrigan said the state would not waive the environmental review at Silver Bay, citing its proximity to Lake Superior. Silver Bay is the preferred site for Mesabi Nugget.
"It gets more expensive if we have to build the plant inland from Silver Bay," Lehtinen said.
Lehtinen said a final decision on Hoyt Lakes is contingent on financing among the Mesabi Nugget partners, expeditious environmental permitting, and further due diligence over whether long-term market conditions are favorable and demand adequate for a plant.
The Minnesota Senate's Environmental Policy Committee gave its approval to a bill that would exempt a full-scale iron nugget production plant from environmental review if its developers build it at the former LTV Mining Co. in Hoyt Lakes. * * *The Bakk-Dill measure, passed on voice vote in the Senate committee Wednesday, allows existing environmental permits for the closed LTV taconite plant to be used instead of requiring developers to obtain new air and water pollution permits specific to the iron nugget process. The legislation also requires that the facility's existing taconite furnaces be permanently closed. Any attempt to bring them back on line would require a complete environmental review process.
The legislation also requires developers to use the "best available technology" for air pollution prevention. Without the bill, the plant could still be permitted but developers might not be held to those standards or required to close the dirty burning taconite furnaces, said Sandy Layman, commissioner of Iron Range Resources. "This is actually an environmentally friendly proposal because it reduces overall air impacts from the project," she said.
A Minnesota Pollution Control Agency official said it was likely the rotary hearth furnace that would be used to fire the iron nuggets would produce far fewer air pollutants, especially mercury, than the older taconite furnaces. The old taconite furnaces annually pumped an average of 82 pounds of mercury into the air, according to Ann Foss, the agency's major facilities section manager. While air pollution data from an iron nugget pilot plant at Silver Bay was still being analyzed, Foss said she was confident the mercury pollution coming from a full-scale iron nugget facility would be less than what was produced by the old LTV plant.
Posted by Marcia Oddi at 07:31 AM
"U.S. Justice Department could act against towns - Sewage treatment plant: College Corner boards to meet," is the headline to this story today in the Richmond Palladium-Item. The towns involved are Town of West College Corner, Indiana and Village of College Corner, Ohio. This map shows where the are located, on the Indiana/Ohio border south of US 40/I70 and Richmond. The story reports that:
The U.S. Department of Justice is considering legal action against both sides of this two-state community because of problems with the Indiana side's sewage treatment plant.The two communities have an interlocal agreement for sewage services, provided by a plant on the Indiana side. In March, according to the story, "attorneys for both towns received letters from Justice ... ordering them to Chicago for an April 8 meeting to discuss the plant's violations. Both attorneys said their towns couldn't afford to pay them to travel to Chicago, town council president Terry Starcher said. [Justice] agreed attorneys could submit the information needed by mail." More:
Two years ago, the federal Environmental Protection Agency notified the towns that it planned to hold both sides responsible for improvements and violations at the community's sewage treatment plant. The EPA ordered College Corner, Ohio, to become a federal permit holder for the sewage treatment plant.Background documents available on the web include this 9/1/903 Palladium-Item story:The plant has been in violation of environmental rules since 1996 and has operated under an agreement with the Indiana Department of Environmental Management that required West College Corner to upgrade the plant. Some work has been done, but finishing the project was delayed by a dispute over sewer bills. The dispute traveled through several courts before an interlocal agreement was signed in fall 2003.
LIBERTY, Ind. - Union County Circuit Judge James Williams gave the town councils of West College Corner, Ind., and College Corner, Ohio, a stern warning Wednesday: Produce a written agreement by Tuesday or a mediator will do it for you.Here is the Indiana Court of Appeals decision of 4/23/02.In June, the councils met with mediator Doug Hill for two days and signed a memorandum of understanding. The mediation was to settle the last segment of a seven-year-old lawsuit between the towns over sewage bills and operation of the treatment plant. A memorandum of understanding is legally binding on the parties that sign it. * * *
Attorney Tom O'Connor, who represents West College Corner, told the judge Wednesday that the draft submitted by attorney Harrison Green was "miles" away from the draft that's acceptable to the Indianapolis bond counsel representing West College Corner.
West College Corner is required by the Indiana Department of Environmental Management to improve its sewage treatment plant. To qualify for funding, the town needs an agreement for service with its largest customer, College Corner, Ohio.
If the councils can't produce a document by the deadline, the mediator will return with a word processor and write one, Williams said. * * *
At issue is a $3.2 million counterclaim filed in 1999 by College Corner, Ohio, against West College Corner for damages relating to the sewer service. West College Corner first sued the Ohio village in 1996 over its unpaid sewer bills. The 1996 suit was settled through facilitators working with the councils in 2000.
The case has been in Union Circuit Court, U.S. District Court, Wayne Circuit Court and the Indiana Court of Appeals, which returned it to Union Circuit Court.
Another excellent Linda Greenhouse analysis piece today in the NY Times. She begins:
The Bush administration's effort before the Supreme Court to shield the names of private citizens who helped devise its energy policy might appear on the surface unrelated to its defense, in cases also before the court, of the detention of those the administration has classified as enemy combatants. But the legal arguments are strikingly similar, projecting a vision of presidential power in both war and peace as far-reaching as any the court has seen and posing important questions of the constitutional separation of powers.The admiistration is arguing that the 1972 Federal Advisory Committee Act:
is "plainly unconstitutional" in authorizing "unwarranted intrusion" and "extreme interference" with the president's exercise of his "core" constitutional responsibilities.Here is a link to the July 8, 2003 decision of the USCA for the DC Circuit in the case of In re Cheney, and here is a link to the FindLaw.com site collecting all of the documents in this case, including a number of district court rulings -- scroll down to Tuesday, April 27th, about 2/3 down the page."Congress does not have the power to inhibit, confine or control the process through which the president formulates the legislative measures he proposes or the administrative actions he orders," Solicitor General Theodore B. Olson's brief asserts. * * *
Federal advisory committees are extremely common in the government; there are now 947, according to the General Services Administration. The Federal Advisory Committee Act imposes a number of obligations on these committees: they must hold their meetings in public, make their records accessible and have a membership that is "fairly balanced." The president must explain the actions he takes in response to a committee's recommendations.
The statute exempts any advice-giving group "composed wholly of full-time, or permanent part-time, officers or employees of the federal government." Since all members of the Cheney task force, formally called the National Energy Policy Development Group, are federal employees, the administration maintains that the law simply does not apply.
But in 1993, ruling in a suit seeking access to information about Hillary Rodham Clinton's health care task force, the federal appeals court here held that private citizens, through close participation, could be deemed "de facto members" of a committee and bring the committee within the law's coverage.
Applying that precedent to the Cheney case, the district court ruled in 2002 that Judicial Watch and the Sierra Club were entitled to pretrial discovery sufficient to determine whether the energy task force included any such members. * * * The administration is arguing that the "de facto member doctrine" was never intended by Congress and should be rejected by the Supreme Court. Its brief says the doctrine turns the statute "into a general warrant to search executive branch groups and committees for contacts with outsiders who might be deemed de facto members," and that this interferes with the president's ability to obtain the advice he needs to perform his constitutional duties.
The 1993 Hilary Clinton health care task force ruling mentioned in the Greenhouse article and cited in the July 8th Court of Appeals opinion is Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 902-03 (D.C. Cir. 1993).
"EPA will review coal ash disposal: Southwest Indiana residents ask agency to rule on putting waste back into mines," is the headline to this front-page story this morning in the Indianapolis Star. The lead:
Trucks rolling through the hills of southwest Indiana are hauling more than just coal from strip mines to power plants. They're also returning with the ash left after the coal is burned, dumping it into the deep pits that pockmark the landscape.The story reports that EPA says that right now "there's no proof that coal ash dumped in mines has polluted groundwater that then migrated offsite in Indiana or elsewhere" and a study is needed. More:It's a practice gaining popularity across the country as a way to dispose of millions of tons of waste generated by power plants. And it's at the heart of a dispute that's been simmering in Indiana for 16 years.
Environmentalists and residents fear heavy metals -- including arsenic, lead and cadmium -- that concentrate in the ash eventually will pollute drinking-water supplies. That is because minefill areas lack the same safeguards as landfills, such as liners and long-term groundwater monitoring. * * *
Mine and utility owners and some state officials say coal ash is safe when put in mines, and helps refill and speed mines' restoration, allowing them to be returned to wildlife areas and cropland. In Indiana, the Department of Environmental Management regulates landfills, but a 1988 Indiana law says the agency cannot adopt environmental rules for mines. Instead, mines are regulated by the Department of Natural Resources.
And the difference in standards adopted by the agencies creates unequal protection for residents, said Brian Wright, coal policy advisor at the Hoosier Environmental Council.
"We want the same standards (for mines as) you'd find at a municipal waste site," Wright said. "There is a different standard for (protecting) southwest Indiana citizens' water."
That's why federal regulations are needed, Wright and others say.
But activists say there is plenty of proof that it has polluted groundwater inside the mines -- which means it eventually could move and contaminate drinking water outside of the mine boundaries. They also say there is proof that groundwater contaminated by coal ash is bubbling up into rivers and streams.This past Thursday the Indiana Law Blog posted an entry on the Town of Pines groundwater contamination. Access it here, or simply scroll down.One case in Indiana in which water was tainted by coal ash did not involve a mine, but a landfill near Lake Michigan. Hundreds of residents in Town of Pines in northwest Indiana were connected to water lines run from Michigan City after their wells were contaminated by compounds linked to an old coal ash landfill.
Today's Star article on SW Indiana concludes:
But even regulators and industry officials say they are ready for the federal agency to make a decision.[Update 4/26/04] The Evansville Courier-Press reported yesterday here that: "State officials are defending Indiana's policies for protecting the environment and public health from the contamination of buried waste from power plants.""I'm not a proponent that they [US EPA] do rules or don't do rules; I'm asking them to make some decision," said Nathan Noland, president of the Indiana Coal Council. "We have neighbors around our mines that have been scared half to death by some in the environmental community, and they deserve an answer from the EPA."
"Forget Socrates" is the title of this story today by Adam Liptak in a special Education Supplement to the NY Times about Concord Law School. Some quotes:
The school has no buildings or library, and its 1,600 students listen to lectures, attend discussion groups, have ''teas'' with the dean, hang out in the student lounge, take exams and submit essays entirely online. After four years of this, they are eligible to take the bar examination in California. * * *The article reports that Concord teaches "black letter law" while "professors at elite schools are less apt to take existing law at face value. They question the policies behind legal doctrines and tease out inconsistencies in judges' decisions. Professor Berman-Barrett was intent, instead, on drilling key concepts into her students, by repetition and encouragement. Her class was reminiscent of the bar review course that she sometimes teaches." More from later in the article:[Concord] does not use the Socratic method of calling on students at random to recite the facts and reasoning of cases under discussion. Many students find the method terrifying. ''Quite frankly,'' said Jack R. Goetz, Concord's dean, ''the Socratic method as typically employed in American law school is probably not the best way to educate people. We have a more nurturing atmosphere.'' * * *
Though both conventional and correspondence law schools now offer virtual classes, Concord says it believes that it remains the only fully online law school in the United States. Founded in 1998, it is among the largest law schools in the country. Thirty-three students entered its first class. The numbers have grown each year, and 916 students started last year.
The profession and other law schools appear threatened by the whole concept, and the American Bar Association has declined to consider an online law school for accreditation, which would be necessary for its students to take the bar in any state except California. But California, which has long allowed correspondence school graduates to take its exam, has reciprocity agreements that would let its lawyers practice in some other states.
John A. Sebert, a bar association official, says it has no plans to accredit a completely virtual law school, though it has recently allowed traditional law schools to offer limited online courses. ''We're training professionals who deal with people as problem solvers who need skills of negotiation, counseling and advocacy,'' he said. ''Most of us find it difficult to believe that that kind of training can be done solely in an online atmosphere.''
THE bar association's motives may not be entirely pure. The legal profession has long acted as a guild, restricting competition in the name of maintaining standards.
''The bar is a carefully protected monopoly,'' said Robert E. Oliphant, a professor at William Mitchell College of Law in St. Paul. ''You bring in something like Concord and accredit it and you threaten a lot of other law schools that are marginal.''
Deborah L. Rhode, a law professor at Stanford who writes on the legal profession, believes that Concord may serve an important role.Here is the Concord Law School web site.''For many routine services where unmet needs are greatest, three years of on-site education is neither necessary nor sufficient to provide competent training,'' Professor Rhode said. ''Most law schools do not provide the detailed expertise and specialized training in form preparation and procedural rules that is necessary in areas like uncontested divorces, immigration, bankruptcy and routine real estate matters.''
''Online distance education,'' she added, ''may be a more cost-effective way to provide certain basic training, and could make legal careers accessible to those of limited means who are now priced out of legal education or forced to incur crippling debt burdens.''
This NY Times Education Section also contains several other interesting articles, including The Digital Doctorate and The B-School Hierarchy.
A comment on C-Span this morning pointed me to this story today in the NY Times based upon information from Donald Rumfeld's release of the transcripts of his interviews with Bob Woodward. This interests me, not necessarily politically, but because it gives insight into a reporter's techniques. From the NY Tmes story:
BOB WOODWARD has yet to write a how-to guide like "The Seven Secrets to Secret Sources" or "Interview Styles of the Great and Powerful," but a few tips are now available thanks to the Pentagon's release of transcripts of his interviews with Defense Secretary Donald H. Rumsfeld. An analysis reveals some techniques of the well-connected journalist.And here are the transcipts themselves, from the Department of Defense webpage on the Secretary's "media activity." Here are direct links to the 10/23/03 transcript, and the 9/20/03 transcript.Nod frequently. To get ahead, Mr. Woodward repeatedly offers Mr. Rumsfeld encouragements like "I agree," "Well said," "That's great," "Thank God," "No question," "I am totally in sync with you on that" and "I totally understand exactly what you're saying." When Mr. Rumsfeld mentions the "enormous numbers of hours" spent by Mr. Bush deciding on the war, Mr. Woodward replies: "It's an exercise in patience, not impatience. Would you agree withthat?" He gets no quarrel.
Praise his boss. "Whether you like what the president did or don't like it, it is one of the gutsiest calls in history," Mr. Woodward says, alluding to the decision to go to war. He marvels at the many briefings of Mr. Bush and says, "He really had his hands in it, didn't he?" Mr. Rumsfeld adds his own dollops, telling how he and his wife "invariably" return from an evening at the White House and say, "Isn't that just a delight to be working with a person who is that way, who is that straightforward, that open, that comfortable with himself, that rooted — that has the confidence, courage, I guess the words you've used."
Drop names. Mr. Woodward keeps reminding Mr. Rumsfeld of all the people he has already interviewed, like Tommy Franks, the commander of the war: "I spent four hours with General Franks, which someone said is 10 times more than he spent with anyone else."
When all else fails, drop the big one. After listening to Mr. Rumsfeld complain about his questions, Mr. Woodward resorts to the classic I'll-tell-the-teacher technique. "I have a good relationship with President Bush," he says, "and he wants me to do this, I think, as you know."
It looks like Scott Purdum of the Times first picked up on this on April 20th, the day after the transcripts were posted. A quote from the Purdum story: "Because the transcripts show not only Mr. Rumsfeld's answers, but also Mr. Woodward's questions, they amount to a vicarious glimpse at a reporting style that blends flattery and silken intimidation with unparalleled access."
In his column "White House Briefing," Dan Froomkin of the Washington Post wrote on Wednesday about the DOD transcripts:
But even more revelatory is the fact that someone over there deleted some of the most important bits! Apparently, part of the experience of being interviewed with Woodward is having some regrets afterward.Access the "missing bits" here.Mike Allen writes in The Washington Post today: "The Pentagon deleted from a public transcript a statement Defense Secretary Donald H. Rumsfeld made to author Bob Woodward suggesting that the administration gave Saudi Arabia a two-month heads-up that President Bush had decided to invade Iraq. . . .
"Woodward supplied his own transcript showing that Rumsfeld told him on Oct. 23, 2003: 'I remember meeting with the vice president and I think Dick Myers and I met with a foreign dignitary at one point and looked him in the eye and said you can count on this. In other words, at some point we had had enough of a signal from the president that we were able to look a foreign dignitary in the eye and say you can take that to the bank this is going to happen.' " * * *
The Post helpfully reprints, from Woodward's transcript of the on-the-record interview, some of the missing bits.
"When Calls for Prayer Trample Personal Privacy: Disclosing Details of Members' Health Could Pose Legal Problem for Churches," is the title of a very interesting story today in the Washington Post. An example from the article:
[A]n April 2000 article posted on the Web site of Fairmount Presbyterian Church in Cleveland heralded the minister of music's return from an illness:The Post story continues:"We have good news for you!" the article read. "Bryan Mitnaul is returning to Fairmount after a long medical leave of absence.
"Since the summer of last year, Bryan has been treated for bi-polar illness, a condition which at time has resulted in serious depression for him. Various therapies and medications have been tried, and finally, after much experimentation, his health has improved considerably. For that we are all very happy."
The church's comments, no matter how well-intentioned, crossed a line that should be a warning to any religious group that shares members' medical information in newsletters and during worship services, several ministers and specialists said.The case referenced is Mitnaul v. Fairmount Presbyterian Church, available here. More from the Post article:Legally, publishing details of Mitnaul's condition without his permission was an invasion of privacy because it "included information in a way that would be highly offensive to the ordinary person," said Richard Hammar, general counsel for the Missouri-based Assemblies of God and publisher of Church Law & Tax Report, a national bimonthly newsletter.
Some conditions carry more of a stigma than others, and mental illness is one of them, Hammar said. Saying a person is recovering from a heart attack or being treated for cancer is "much less offensive," he said.
That's the way an Ohio appeals court ruled in 2002, citing invasion of privacy in sending the case back to a lower court that had issued a summary judgment favoring the church.
Commonly referred to as HIPAA, the law called for broad protection of patient confidentiality rights and primarily applies to doctors, pharmacies and health care organizations. But the new law made it more difficult to visit members in the hospital, especially if the patient had failed to sign a consent form for such visits, and many clergy and laypeople worried that the law would restrict how they announced members' illnesses on prayer lists and in newsletters.Here is a link to the 13-page memorandum on the HIPAA priacy rule and local churches.In February, the General Council on Finance and Administration of the United Methodist Church posted a 13-page memorandum on its Web site in an effort to clarify how HIPAA affects local churches. It cited Mitnaul v. Fairmount Presbyterian Church, not as an example of how the law might apply to religious communities but how the principle behind the law does.
"Obviously, this was an unfortunate case where well-meaning people unintentionally exposed their church to legal liability," the document states. "While this case does not involve the HIPAA privacy rule, it illustrates very clearly many of the issues churches need to consider whenever they disclose health related information about an individual."
The Post also has a sidebar story titled "Law Prompts New Guidelines," available here. The Post also provides a link to guidelines from Health Ministries of the Presbyterian Church, which itself has additional links.
Last October, the NY Times published an article headlined "Students Find $100 Textbooks Cost $50, Purchased Overseas." It is no longer freely available, but here is the Times abstract:
American college students find that their textbooks cost far less overseas than they do in United States; more and more individual students and college bookstores are ordering textbooks from abroad; National Assn of College Bookstores has written to all leading publishers asking them to end practice they see as unfair to American students; publishing industry defends its pricing policies, saying foreign sales would be impossible if book prices were not pegged to local market conditions; textbook publishers have tried to block reimporting of American texts from overseas; Supreme Court ruled in 1998 that federal copyright law does not protect American manufacturers from having products they arrange to sell overseas at discount shipped back for sale in US; photo; chart (M)Here is a link to a tool that "lets you search for a book on Amazon, and then compare prices across Amazon's UK, Germany, Canadien, and Japanese sites, including in shipping costs."
I recalled the above when I read this article in Forbes earlier this month on pharmaceutical arbitrage and this article yesterday in the San Diego Union-Tribune headlined "Are drug imports good medicine?"
In VOELKER, FRANK T. v. NOLEN, CATHERINE, a per curiam opinion of the panel affirms Judge Hamilton's (SD Ind.) dismissal of tax protestor Frank Voelker's suit claiming that three Internal Revenue Service agents violated his due process rights. The district court dismissed the suit for lack of subject matter jurisdiction, determining that the case should have been brought in the United States Tax Court.
The 19-page USA v. SNOOK, RONALD opinion, by Judge Rovner, deals with Clean Water Act violations:
A jury found Ronald Snook guilty of one count of conspiring to defraud the federal government by violating the Clean Water Act, 18 U.S.C. § 371, 33 U.S.C. §§ 1317(d) and 1319(c)(2)(A), and five counts of concealing material information regarding a matter within the jurisdiction of the federal government, 18 U.S.C. § 1001(a)(1). He was sentenced to concurrent terms of 21 months’ imprisonment, concurrent terms of two years of supervised release, a $1,000 fine, and $600 in special assessments. On appeal he challenges two evidentiary rulings, allegedly improper stat