The proposed federal Class Action Fairness Act of 2004 (S. 2062) is the subject of this editorial today in the Fort Wayne Journal Gazette. A quote from the editorial:
The bill would nullify “sunshine” laws in 20 states, including Indiana, that ban secrecy in class-action lawsuits. The laws generally guarantee public access to legal settlements and court records, except those disclosing corporate trade secrets. Citizens would lose their right to learn of dangerous products, environmental hazards and other corporate misbehavior under a provision in the bill that would transfer most class action lawsuits from state to federal courts, where state sunshine laws don’t apply. Future class action lawsuits brought by pension funds, individual retirement account holders and retirees against companies accused of securities fraud – think Enron and WorldCom – would be closed to the public at the request of senior corporate management.For some background on the bill, see this 5/27/04 Reuters story. Some quotes:
The legislation would transfer most large class action lawsuits from state courts to federal courts, where experts say their chances of success are diminished. * * *Republicans seeking curbs on what they call runaway litigation against business want to start debating the class action measure on June 1, when Senate Majority Leader Bill Frist has scheduled a vote on a motion to bring up the bill.
Corporate interests have sought the legislation for years. Supporters think it has never come closer to passage than now, after a compromise in November won over three Democrats and put the overall number of backers at 62 in the 100-seat Senate.
This story today in the Louisville Courier-Journal features Susan Orth, who will take over as judge in Indiana's Floyd Superior Court. Some quotes:
Tomorrow morning will mark the first time that the full-time judge of Floyd Superior Court has been someone other than Richard Striegel, who retires today after holding the position since it was created in 1979.The new judge is former longtime Floyd County Deputy Prosecutor Susan Orth. More than 15 years of prosecuting cases makes her no stranger to the second-floor courtroom in the City County Building in New Albany, Ind.
My New York Times this morning included a pull-out advertising section featuring a reproduction of the front page of the Tuesday, June 6, 1944 issue of the NY Times. The main headline: "Allied Armies Land in France ... Great Invasion is Under Way."
The Times had 8 columns then, rather than the 5 columns of today, so there was space for the beginnings of a lot of stories. Most, of course, were related to the war. However, there was this story, headlined, somewhat confusingly, "Federal Law Held Ruling Insurance," but the subhead is clearer: "Supreme Court, 4-3, Decides Business is Interstate and Subject to Trust Act." Here is the report on the front-page:
Washington, June 5 -- The Supreme Court, by a four-to-three decision today, held that the insurance companies of the county, with assets of $37,000,000,000,and annual premium collections in excess of $6,000,000,000, are in interstate commerce and thus subject to the Sherman Ani-Trust Law.Of course, we don't have page 18. So what is the name of the case? I located it, but it took a few minutes. So as not to spoil the fun, I won't disclose it here, but will instead provide this link to the answer.The decision upset precedents which began with a contrary decision by the court more than seventy-five years ago and have been reaffirmed repeatedly since the adoption of the anti-trust law in 1890.
The majority decision, written [Continued on Page 18]
"Challenges Beset Low-Cost Paralegal Aid" is the headline to this fairly lengthy story today in the Washington Post. Some quotes:
You can't miss the red, white and blue at the We the People office in Glen Burnie -- the flags, the star wallpaper, even a large Liberty Bell rug. "It's nothing you'll find on Madison Avenue," said Deborah Ramsey, owner of the Glen Burnie franchise.Here is a related article from the Texas Lawyer titled "Group Alleges Document Prep Service Provides Legal Advice by Nonlawyers" and dated 9/24/03.That's precisely the point. The decor is part of the paralegal company's strategy to distinguish itself from high-priced law firms. As its Web site states: "You pay for the forms and documents, not the expensive law school and wood-paneled offices." Wills here cost $99; bankruptcies, $199; uncontested divorces, $349.
The company's do-it-yourself approach to the law attracted 123,000 customers last year to its 123 franchised offices. This year, with nearly 200 offices expected to be up and running, 200,000 customers are expected to pay nearly $50 million to get help with their legal documents. * * *
We the People executives like to compare the franchise to the low-cost, international tax services firm H&R Block Inc. "When H&R Block came out 50 years ago, accountants and CPAs said you can't train someone in six weeks to help do taxes," said Searns. Last year, Block's revenues were $3.8 billion, with 21 million customers from 11 countries. "Every year H&R block gets a number of people come in who shouldn't use them or who get into problems," Searns said. But, he added, no one is trying to shut them down.
We the People is pressing for state and/or federal regulation that would allow its industry to operate without constant challenges, along the lines of rules recently passed in Arizona. "Because we have a new industry with all kinds of concerns, we want to know what the ground rules are," Searns said.
Using H&R Block as a role model, We the People has aggressive expansion plans. The Santa Barbara, Calif.-based franchise with two storefronts in Maryland (the second is in Cockeysville) is looking to team up with a large well-known company to place its services in thousands of outlets in the next few years. Storefront owners, who pay $89,500 for a franchise, get five days of initial training, with periodic refresher courses after that.
Here is the We the People Forms & Services Centers USA, Inc. main page. The nationwide map of offices shows that there are no franchises operating in Indiana, but there are in all our surrounding states. Here is a list of the products and services available.
An article today in the NY times reports that:
[A] study released this spring by the Economic Policy Institute, a nonprofit research group based in Washington, says that state and local taxes do not matter all that much to corporations. "The vast majority of the studies find that there is little or no effect of state taxes on where firms invest, and little economic effect in terms of job creation," said the study's author, Robert G. Lynch, an associate professor of economics at Washington College in Chestertown, Md.Here is a link to that March 2004 Economic Policy Institute study, titled "Rethinking Growth Strategies: How State and Local Taxes and Services Affect Economic Development."State and local taxes paid directly by businesses - corporate income taxes, sales taxes on equipment, property taxes - account for 30 percent of all state and local taxes paid. But in 2000, Dr. Lynch concluded, these taxes were just 1.2 percent of total operating costs for companies. Because companies deduct the payments from their federal tax liability, state and local taxes eat up only 0.8 percent of total costs, or 80 cents of every $100 - hardly enough to mean the difference between profit and loss.
However, today's NY Times article continues:
But the study may not be taking a wide-enough view of what constitutes a tax on business. In May 2003, the Tax Foundation, a policy group in Washington that advocates lower taxes, ranked the business tax climate in each state. The rankings took into account the taxes paid directly by business, as well as sales taxes, a state's fiscal balance and individual income taxes. The tax on individuals can sometimes function as a tax on business because so many businesses file income tax returns through their individual owners. "There are more sole proprietorships than there are C-corporations," said Scott Moody, a senior economist at the foundation, referring to the form of corporate organization favored by large enterprises. "And they employ 30 million people."The Tax Foundation website contains a wealth of material. This is the link to the State Finance page. Scroll down the page to see "Changes in State Tax Rates During 2003." Particularly interesting to me was the section about Individual Income Taxes. Montana, for instance, has ten brackets, "including the top bracket, the threshold of which went from $76,200 to $77,800. The rate on that income is still 11 percent." But I'm getting off-track. Here is the link to the State Business Tax Climate Index referred to in the NY Times article, that shows each state's tax system ranked according to how conducive it is to business growth.State income taxes can serve as an indirect tax on corporations. Consider two companies - separated by a state border - that produce roughly the same products and pay roughly the same for raw materials, interest and labor. "When taxes rise in one of the states, companies based there have to swallow the higher costs and become less profitable," said Dr. Arthur B. Laffer, chairman of Laffer Associates, an economic research and consulting firm, and an economic adviser to the Reagan administration.
Finally, and this is off-tract again, but interesting, take a look at this Tax Foundation table titled Various State Tax Rates. The you can see facts such as Indiana's gas tax ($0.18) vs. Illinois' ($0.30), and Indiana's cigarette tax ($0.555) vs. Illinois' ($0.98) vs. Kentucky's ($0.03).
The Fort Wayne Journal Gazette published this feature story today on judicial discipline in Indiana. Some quotes:
Of the more than 1,000 allegations of judicial misconduct investigated by a state panel in the past four fiscal years, public discipline was taken against judges only slightly more than 1 percent of the time. But dozens of private cautions - or confidential letters of warning - were issued by the Indiana Commission on Judicial Qualifications, which also dismissed 85 percent of the complaints.Here is the website of the Indiana Commission on Judicial Qualifications. The right column of the page provides links to a number of useful items, including Activities, which leads to detailed annual reports for each year. The most recent report covers July 1, 2002 through June 30, 2003 and provides a complete review of the complaints received and actions taken during that period.Although lawmakers are subject to public ethics challenges and discipline against police officers is open, state law and a Supreme Court rule keep the vast majority of complaints against judges under wraps. * * *
[N]early all cases are disposed of before the public gets a chance to look at them - either by a flat dismissal or a private scolding. Of 1,013 allegations or complaints filed the past four fiscal years, 801 were immediately dismissed.
[Meg Babcock, attorney for the qualifications commission,] said this number is so high because many of the allegations are actually issues for legal appeal, such as when a defendant is unhappy with a ruling or sentence. The commission focuses only on judicial conduct.
Some cases continue to an inquiry stage - 185 in recent years. During that stage, the judge might be contacted and some basic information gathered. The seven-member commission then decides whether to dismiss the case or move to a formal investigation.
Of those 185 cases, 62 were dismissed and 82 ended in private cautions. Those are essentially letters that warn judges their behavior might be on or over the line of ethical conduct.
"They are usually a minor discretion by a judge," said Ann Borne, a Fort Wayne teacher who served two terms on the commission under former governors Evan Bayh and Frank O'Bannon.
"Whether it stays private partly has a lot to do with the attitude of the judge," she said. "Sometimes the judge is very defensive and that means we have to go further and look for patterns or problems. If there are no priors and they feel remorseful, we may go ahead and do the private caution."
Indiana isn't much different from the rest of the country, where most judicial commissions' proceedings only become public at the point of a charge or when the judge is disciplined.
Also of interest are the links to: Advisory Opinions, which cover questions involving law practices of part-time judges, fundraising activites, nepotism, etc.; and to Disciplinary Function, an overview of the Commission's disciplinary process.
Updating our Indiana Law Blog entries from May 15th (titled "California to Follow Indiana's Lead?") and May 20th on Governor Schwarzenegger's punitive damages proposal, the NY Times tomorrow will run an Adam Liptak article headlined "Schwarzenegger Sees Money for State in Punitive Damages." Some quotes:
Gov. Arnold Schwarzenegger's new budget aims to raise almost half a billion dollars by taking 75 percent of the punitive damages that juries in California award to plaintiffs. In the process, he proposes to limit the fees lawyers can charge their clients and to protect defendants from multiple punitive awards for similar conduct.As discussed in the May 15th Indiana Law Blog entry linked above, Indiana's law limits the plaintiff to 25% of punitive damages, and the attorney's share, as confirmed by our Indiana Supreme Court, comes out of the 25%.Critics say the proposal is a Trojan horse. Though the governor presented it as a budget measure meant to raise revenue, it is, they say, a comprehensive revision of the rules governing punitive awards in injury cases - not a tax but tort reform in disguise.
At hearings in Sacramento this week, lawmakers are to hear from scholars, consumer advocates and business groups, many of whom say they find aspects of the proposal dangerously flawed. * * *
Eight states already have so-called split-recovery laws, which allocate part of punitive awards to state treasuries generally or to specific programs. Several have survived court challenges, though the Colorado Supreme Court struck down a ninth law as an unconstitutional taking of private property. Other states, including Florida, Kansas and New York, have repealed split-recovery laws or allowed them to expire. * * *
Most states with split-recovery laws allow lawyers to take their contingency fee, generally 25 to 40 percent, from the total award. California, by contrast, would allow lawyers to take a contingency fee from only the quarter of the award that would go to the plaintiff. And even that fee would be subject to a judge's determination of what is reasonable. * * *
"Limiting an attorney to a share of only 25 percent amounts to a taking," Mr. Peck said, referring to the constitutional prohibition on the confiscation of property by the government without compensation. "It forces the attorney to work for free."
[Update] This graphic that accompanies the NY Times story shows how Indiana's legislation compares with the currently 7 other states insofar as the state's share.
As this story in today's Boston Globe points out, "A half-century ago, people with Down syndrome were seldom expected to live past age 12." Further:
For years, doctors have known about the genetic link between Alzheimer's and Down syndrome. Specialists say virtually all brain autopsies of adults with Down syndrome show lesions pointing to Alzheimer's. But as the life expectancy of people with Down syndrome has increased dramatically to 55 and older, state officials are realizing that they need to learn more. * * *In the 1970s and early 1980s, people with mental retardation were moved out of institutions and into private homes, Oxx said. As part of this effort to mainstream those with mental retardation, advocates also began pushing state agencies to focus more on a person's abilities and less on their conditions, she said. The agencies complied.
"There wasn't so much of an emphasis on the diagnosis. People didn't want labels as they moved into adulthood," Oxx said. "It didn't matter if you had Down syndrome. That became almost extraneous data."
But that data is now crucial, she said. Counselors working with people with Down syndrome need to spot early warning signs of Alzheimer's to ensure they receive proper treatment. Knowing that a certain segment of the population is extremely likely to develop Alzheimer's can help the state determine what kind of residential facilities or day programs might be needed. * * *
Not only will people with Down syndrome develop Alzheimer's sooner than others, but their symptoms can be different, said Dr. Florence Lai of McLean Hospital, who focuses on patients with Down syndrome and Alzheimer's disease. For example, seizures are much more common in people with Down syndrome and Alzheimer's, she said. Doctors, in general, also need more information, particularly because people with Down syndrome show other premature signs of aging, Lai said.
"Hearing loss, cervical and neck arthritis, menopause, a lot of things come very early," she said. "The more people know about what's going on with people with Down syndrome, the better off those people are going to be in their treatment."
The Fort Wayne News-Sentinel ran an interesting guest column Friday, written by an economics professor at Ball State University, Cecil Bohanon. The column describes the true story behind how the Ball family moved to Muncie:
Currently, a major topic in every Indiana community is what should be done to encourage economic development. There is a great debate over the use of tax abatements and other public-sector incentives often used to lure and retain business to a community. Abatement and economic development proponents have used Muncie and the Ball family as an example to buttress the case for government-sponsored incentives for business. Their story goes like this:I recommend the whole article, particulalry the part about how Bowling Green was in the picture for a while, but lost out because "the council and the mayor were arguing about how to finance an incentive package for the Ball brothers.""Tax incentives and public incentives to attract industry aren't anything new. As a matter of fact, they've been around a long time. The Ball brothers were drawn to Muncie precisely because of the incentives offered. George C. Ball ended up locating his glass plant in Muncie because he got $5,000, seven acres of land and a free gas well."
This version of the Ball story is touted to support the position that communities need these kinds of incentives, that they are necessary to economic development and that they have a long history.
Well, the Ball story is true as far as it goes. However, it is interesting to note that the incentives that the Ball family got to move from Buffalo to Muncie were not, and I repeat were not, provided by the city government of Muncie. Rather, they were provided by private individuals who gave the Balls the $5,000, the seven acres of land and the gas well. Not a dime came from tax dollars; all was from private resources.
This AP story featured by Findlaw.com, reports that:
NEW YORK (AP) - A jury has awarded a law firm $1.4 million in damages because several of its clients were stolen by a rookie lawyer at another firm. Rosenberg Minc, a personal injury firm, had sued another personal injury firm, Mallilo & Grossman, and one of that firm's lawyers for carrying out the client theft scheme. * * *[Philip Vogt, lawyer for the Rosenberg Minc firm,] said trial evidence showed Pimsler, a 1997 graduate of Touro Law School, called Rosenberg Minc's answering service every weekend between March 1998 and May 1999, pretended to be a partner in the firm and collected messages. Pimsler used the messages to contact Rosenberg Minc's potential clients, meet them and get them to sign retainer agreements for Mallilo & Grossman, Vogt said.
Rosenberg Minc learned that its calls were being intercepted when a client who had spoken to Pimsler called to complain that a car service had not arrived to pick him up. Pimsler was arrested in May 1999 in a sting operation. Vogt said Pimsler denied stealing clients. The defendant claimed he never succeeded at reaching any client except the detective in the sting operation.
Court papers show Pimsler pleaded guilty in Queens Criminal Court on July 30, 1999, to second-degree criminal impersonation and was sentenced by Judge Joseph Grosso to three years probation. Pimsler was disbarred in October 2001.
Vogt said senior lawyers at Mallilo & Grossman should have been suspicious that Pimsler, as a first-year associate, was generating so much business.
Available online as a pdf download is the 95-page chapter titled "Environmental Law and Policy" from the forthcoming Handbook of Law and Economics, edited by A. Mitchell Polinsky and Steven Shavell, and to be published by North-Holland/Elsevier Science. Access the abstract here; scroll past the abstract for the download button.
Margaret Young, Guardian of Michael Sweeney v. Estate of Robin Sweeney (5/28/04 IndCtApp) [Civil Procedure]
May, Judge
[W]e find sua sponte we have no jurisdiction to hear this appeal and therefore dismiss it. * * *Bank of New York v. Stephen Nally, et al. (5/28/04 IndCtApp) [Banking; Attorney Fees]Because Young’s interlocutory appeal is not properly here under App. R. 14, we do not have jurisdiction over this appeal. App. R. 5(B). Accordingly, we must dismiss.Dismissed.
NAJAM, J., and BAKER, J., concur.
The circumstances of this case present an issue of first impression in Indiana: Is a mortgagee entitled to recover attorneys fees incurred when litigating the issue of mortgage priority? * * *Thomas Batterman v. Laurel (Batterman) Bender (5/28/04 IndCtApp) [Family Law]While we note that other reported cases have permitted mortgagees to collect attorney fees for defending claims made against them by the mortgagors, the rationale set forth in those cases differs significantly from the circumstances here, because in those matters, the fees were incurred as a result of direct litigation with the mortgagors and not with third parties. Put another way, the mortgagors chose to defend themselves and participate in the litigation process. Conversely, the Nallys did not do so here. * * *
For the above reasons, we conclude that the trial court erred when it awarded the Owenses the amount of fees they incurred in litigating the mortgage priority issue with the Bank. The Nallys never participated in the matter, and the language contained in the mortgage documents did not expressly authorize entitlement to such attorney fees. Thus, the trial court abused its discretion in awarding the amount of fees that the Owenses incurred in litigating the issue of priority against the Bank. As a result, we affirm in part, reverse in part, and remand this case to the trial court for a proper determination of attorney fees, along with costs and interest to which the Owenses are entitled. Affirmed in part, reversed in part and remanded.
FRIEDLANDER, J., and BAILEY, J., concur.
In this interlocutory appeal of right pursuant to Indiana Appellate Rule 14(A)(1), appellant-petitioner Thomas Batterman appeals the trial court’s order concerning a temporary child support order in favor of appellee-respondent Laurel Batterman. Specifically, Thomas raises three issues: whether Indiana had jurisdiction where the foreign child support order had not been properly registered, whether Indiana substantive law should apply, and whether Indiana had the authority to modify the child support order without an evidentiary hearing. Finding that Thomas invited any error and that Indiana law applies in this matter, we affirm. * * *Jennifer Megyese v. Bobbie & Anthony Woods (5/28/04 IndCtApp) [Family Law]Conclusion. Thomas has waived his arguments as to whether the Wisconsin order was properly registered and whether the trial court had sufficient evidence to enter the temporary child support order and apply it retroactively inasmuch as he invited any error that may have occurred. Furthermore, the trial court properly utilized Indiana law throughout these proceedings. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
This is a grandparents' visitation rights case. Mother the trial court’s grant of visitation to paternal Grandparents. The Court here affirms.
The trial court’s conclusions of law were as follows:Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation (5/28/04 IndCtApp) [Constitutional Law][Mother’s] decision to prevent any visitation by [Grandparents] must, of course, be given “special weight” pursuant to Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.E.2d 49, and the Indiana cases that have applied and followed it. Accordingly, a presumption exists that her decision is in [the Children’s] best interests. Nonetheless, “ . . . this presumption is rebuttable and the petitioning grandparent has the burden of rebutting this presumption.” Crafton v. Gibson, [752 N.E.2d 78, 98 (Ind. Ct. App. 2001)].
Accordingly, it is the trial court’s prerogative to listen to the evidence and determine, in light of that evidence, whether a parent’s alleged justification for denying or restricting visitation with grandparents holds water. Spaulding v. Williams, [793 N.E.2d 252, 260 (Ind. Ct. App. 2003)].
The greater weight of the evidence: rebuts [Mother’s] decision to terminate contact with [Grandparents], the reasons for which appear unfounded; and
supports the proposition that visitation with their paternal grandparents is in [the Children’s] best interests.The sole issue is whether the trial court’s order granting Grandparents visitation with the Children is clearly erroneous. Ind. Code § 31-17-5-1 (1998) governs grandparent visitation rights, and provides that: (a) A child’s grandparent may seek visitation rights if: (1) the child’s parent is deceased; (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) subject to subsection (b), the child was born out of wedlock. (b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the child’s father has not established paternity in relation to the child.
Ind. Code § 31-17-5-2 (1998) provides that: (a) The court may grant visitation rights if the court determines that visitation rights are in the best interests of the child. (b) In determining the best interests of the child under this section, the court may consider whether a grandparent has had or has attempted to have meaningful contact with the child. * * *
In summary, the trial court did not fail to accord a presumption in favor of Mother’s decision to deny visitation. Rather, it weighed the evidence and concluded that Mother’s reasons for denying visitation were unfounded. Moreover, the trial court did not fail to make specific findings of fact and conclusions thereon, explaining why Grandparents’ visitation is in the Children’s best interests. Therefore, the trial court’s order granting Grandparents visitation with the Children is not clearly erroneous. For the forgoing reasons, we affirm the judgment of the trial court awarding Grandparents visitation rights with the Children. Affirmed.
DARDEN, J. and ROBB, J. concur
Here the Parents claim that the EVSC’s policy of charging students a certain fee violates Article 8, Section 1 of the Indiana Constitution. The trial court granted summary judgment in favor of the school corporation. The Court of Appeals reverses and remands.
Beginning with the 2002-2003 school year, the EVSC imposed a twenty-dollar student activity fee upon students in kindergarten through twelfth grade. The EVSC School Board imposed this fee at the recommendation of the teacher’s union and the EVSC, which worked together to find a solution to the EVSC’s budget deficit without raising taxes. In 2002, the EVSC had incurred a budget deficit of $2,300,000, and for 2003, the projected budget deficit was $5,500,000. Approximately $1,500,000 of the 2002 deficit was the result of the State’s failure to provide funds which had been anticipated, and the remainder of the deficit was the result of increased costs in the EVSC’s standard operations. The EVSC is required by State law to have a balanced budget. The fee, along with State funds and local property tax revenues are deposited into the EVSC’s general fund, which is used to fund school expenses. The EVSC does not maintain a specific object number or function number to track what the money collected as a result of the fee is used to pay for.[Note] The Indianapolis Star already has posted a brief story on today's ruling, headlined "State court strikes down school fees: ICLU led challenge of mandatory charges some districts impose on parents of students."Nevertheless, the EVSC claims that the fee is used to pay for the following expenses: (1) the coordinator of student services; (2) elementary school counselors; (3) media specialists, formerly known as librarians; (4) school nurses; (5) alternative education; (6) the police liaison program; and (7) extra-curricular activities, which includes athletic programs, the drama program, the music program, academic programs, and speech and debate programs.
The fee was assessed against all students, regardless of whether they were eligible to participate in the reduced or free lunch and textbook programs. If the parents of a student fail to pay the fee, the parents are notified that their bill will be referred to a law firm for collection and that attorneys fees of up to $100 will be charged regardless of whether a collection suit is actually brought against them. After the filing of the current action, and by agreement of the parties, the EVSC has decided not to initiate any collection proceedings until a final judgment has been rendered in the present case. * * *
In their appeal, the Parents challenge the trial court’s grant of summary judgment in favor of the EVSC upon the Parents’ claim that the EVSC’s imposition of the fee violates Article 8, Section 1 of the Indiana Constitution, which reads:
“Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools,wherein tuition shall be without charge, and equally open to all.”According to the Parents, the fee amounts to a charge for tuition, which is violative of the constitutional provision in question. Our task is to determine what is meant by the phrase “wherein tuition shall be without charge.” * * *[T]hat the EVSC claims that the money generated by the fee is used only towards the cost of personnel or services that are in addition to those required by the Legislature or the Board of Education is not dispositive of the issue, because under our interpretation of Article 8, Section 1, the EVSC might very well be prohibited from charging students for costs above and beyond personnel or services that are required by the State. Those personnel and services required by the State would indeed be within the ambit of those necessary expenses for which the EVSC may not constitutionally charge students, but what is necessary under our analysis to educate students might well go beyond what is required by the State.
More importantly, however, Mr. Yeager’s earlier testimony indicated that it was impossible to tell whether the money generated by the fee went to fund a specific activity. The money collected from the fee was not tracked inside the EVSC’s budget. By the practice of commingling and not keeping track of the money generated by the fee, such funds lost their specific identity. * * * Thus, the Parents have established that the money generated by the fee is used in some manner to pay for what amounts to tuition. This amounts to a charge for tuition in violation of Article 8, Section 1. The trial court erred in concluding otherwise, and we therefore reverse the judgment of the trial court and remand with instructions to enter summary judgment in favor of the Parents. * * *
The judgment of the trial court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
ROBB, J., concurs.
BAILEY, J., dissents with opinion:I respectfully dissent from the majority’s determination that the fee policy at issue violates the Indiana Constitution. In particular, I disagree with the majority’s conclusion that the word “tuition,” as used in Article VIII, Section 1 of the Indiana Constitution, includes “the services of a teacher or instruction,” as well as “those functions and services which are by their very nature essential to teaching or ‘tuition.’” The issue before us is whether the imposition of a student activity fee—which is used to fund the following expenses: (1) the coordinator of student services; (2) elementary school counselors; (3) media specialists; (4) school nurses; (5) alternative education; (6) the police liaison program; and (7) extra-curricular activities—violates the Indiana Constitution’s mandate that the General Assembly provide a “uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.” See Ind. Const. art. VIII, § 1. Resolution of this issue requires us to interpret the constitutional meaning of the term “tuition.” * * *
[Update 5/29/04] Here is the expanded, and front-page, Star coverage. Some quotes from this excellent story:
Requiring parents of public school students to pay mandatory fees to cover the expense of counselors, librarians, nurses and after-school programs is unconstitutional, an Indiana court ruled Friday. The Court of Appeals panel also strongly hinted that Indiana's textbook rental fees, which can go as high as $400 per child, rest on shaky legal ground.Here is the story this morning from the Evansville Courier&Press. Some quotes:The 2-1 ruling will be appealed to the Indiana Supreme Court, which has never addressed the issue of whether public schools can charge fees. If upheld, the ruling would deliver a serious budget blow to cash-strapped public schools that rely on activity, health, lab and textbook fees to supplement state and local tax money. Most of Indiana's 294 school districts charge fees of some kind.
"The message here is directed at the General Assembly: Either start funding schools adequately or change the Constitution," said Kevin McDowell, chief counsel for the Indiana Department of Education. * * *
But Patrick A. Shoulders, an attorney representing the Evansville school district, said the ruling left him dumbfounded. He said the district will appeal. "The majority in this case has some litmus test -- only known to them -- as to what's necessary to educate students," Shoulders said. "This is a very active court, and this is a very activist decision. The ramifications are far-reaching."
The ruling echoed the reasoning of Indiana Attorney General Steve Carter, who in 2001 advised that charging a "health service fee" to pay the salaries of school nurses was unconstitutional. The Department of Education agrees with Carter's advisory opinion and discourages districts from using fees to cover educational expenses.
But the Indiana School Boards Association has argued that such fees are not unlike those charged for textbooks. In 1974, the Court of Appeals narrowly defined free tuition in a South Bend lawsuit to permit schools to charge textbook rental fees. Parents of low-income students do not pay book fees.
But this argument may no longer hold. In a footnote to the Evansville case, Sullivan called the court's legal reasoning 30 years ago in the textbook case "dubious at best."
INDIANAPOLIS - The Indiana Court of Appeals ruled Friday that a $20 activity fee imposed by the Evansville-Vanderburgh School Corp. violates the Indiana Constitution. In a 2-1 decision, the court found that the fee is mixed with the school's other money and therefore equals tuition payments used to fund instruction. The EVSC had argued the fee isn't tuition because the money only pays for extras such as librarians, nurses and counselors, rather than teachers.Indiana's constitution calls for "a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all."
Previously, the only court case that ruled on what makes up tuition was a 1974 decision in which the Indiana Supreme Court found that charging students for textbooks does not amount to tuition and is allowed. But the appeals court found the fee crossed the line into tuition.
"Although the fee being charged by the EVSC is currently 'only' $20, nothing in the logic of the EVSC's argument ... would prohibit public schools from charging a student a $200 fee, or for that matter even a $2,000 fee," Judge Patrick D. Sullivan wrote in the majority opinion.
"This logic would permit our system of public schools to be priced out of reach in order to avoid raising local taxes," he added. "It would be a cold comfort indeed to inform a Hoosier family of limited means that they could send their children to public schools without being charged for teachers' salaries, but to say that they would be charged for school buildings, heating, electricity, textbooks, etc."
And the majority opinion then took issue with the 1974 decision. "We have our doubts with respect to the holding of (the 1974 case)," Sullivan wrote. "We are not beholden to blindly follow what we consider to be an erroneous holding."
Judge L. Mark Bailey disagreed with the majority's conclusion, arguing that the framers of the state constitution used the word "tuition," which they are bound to interpret only using its strictest meaning - the cost of teaching.
MADEJ, GREGORY v. BRILEY, KENNETH R., WARDEN (ND Ill.) On petition for rehearing.
MADEJ, GREGORY v. BRILEY, KENNETH R., WARDEN (ND Ill.) Amends 4/21/04 decision.
Here is the Indiana Supreme Court's transfer list for the week ending May 28, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.
That is the headline to this story today from the Johnson County Daily Journal. I love this story. Here are some quotes:
Local property owners received a surprise notice in the mail last weekend: Taxes were 40 percent lower thanks to action taken by state lawmakers.State legislators ordered Indiana counties to send postcard messages to property owners, informing them that their taxes could have been higher. The cards confused residents by telling them their property taxes — which on average increased 18 percent — are lower than they could have been. * * *
State law required that Indiana counties send notices to property owners on behalf of the legislature. County officials often blame the state for increased taxes, and legislators wanted to show how the general assembly kept tax bills low, said Sen. Robert Garton, R-Columbus.
The postcards resulted in dozens of heated phone messages to the county treasurer’s office. Residents did not understand that state law required county officials to send the notices, Treasurer Jan Richhart told the county commissioners Monday.
The county paid $5,400 to send notices to more than 38,000 property owners.
“We had to do this,” county attorney Joe Pitcher said. “It was a state mandate.”
Property owner B.J. Nowacki said the postcards weren’t clear enough for some residents to understand. State officials should have used examples to show that tax bills did not skyrocket because of the court-ordered reassessment.
The assessed value of Nowacki’s house and two-acre lot in Greenwood nearly tripled in 2003, but the tax bill rose by just 23 percent.
According to this story in the Fort Wayne News-Sentinel yesterday:
A new law has an estimated 20,000 restaurants, grocery stores, vendors and even gas stations across the state scrambling to have a certified food handler on staff by Jan. 1, said Scott Gilliam, director of the Food Protection Program for the Indiana State Department of Health. "Easily, we're going to have to have 50,000 people certified by January," Gilliam said.Details are available here on the Indiana State Department of Health website, includng this:Its goal is to protect the public from unsafe food. But Mindy Waldron, Food Division director of the Fort Wayne-Allen County Department of Health, and Gilliam said the law written by the Indiana Restaurant and Hospitality Association has its weak points. The food handlers are not required to be on site, and there are no guidelines for how they are to supervise the rest of the staff. "We are in the process of formulating some policy on this," Gilliam said. "Our belief is that the person must have primary oversight for food safety. That means you can't hire a teenager who works on the serving line and think you have oversight." * * *
To date, 18 states have some version of a food-handler certification requirement, said Leeann Chuboff, manager of science and regulatory relations with the National Restaurant Association Education Foundation. To be certified, a food handler must pass a written exam. Noncompliance can result in up to a $100-a-day fine for the establishment.
While not required, the state has recommended food handlers take an accredited course before taking the exam. * * * Courses are being offered throughout the state, including by Purdue University Extension offices, health departments and private companies. The cost is minimal; daylong courses range from $65 to $150. For management personnel, the responsibility of food handler will likely just be added to their regular duties. Some fast food chains may bump up hourly wages a bit for nonmanagement food-handlers.
The new Indiana State Department of Health (ISDH) Rule 410 IAC 7-22, Certification of Food Handler Requirements. This rule became effective on June 19, 2003; however, the actual certification requirement does not take effect until January 1, 2005. The new rule incorporates much of the language in IC 16-42-5.2 with a few additions for clarity.
Updating our ILB entry from May 19th, which reported that the Lake County reassessment case was "in the hands of" the Indiana Supreme Court are reports in several papers this morning that the Court acted yesterday. From the Gary Post Tribune:
From the Munster Times:
Lake County property tax bills can go out based on the controversial countywide reassessment, the state Supreme Court ruled Thursday.But the court also scheduled oral arguments on the merits of the reassessment by the private firm Cole Layer Trumble, leaving open the possibility it could still find the work unconstitutional.
In a two-page ruling, the court stayed Lake Superior Court Judge Robert Pete’s May 7 order in favor of the Miller Citizens Corp. Pete’s ruling said remaining partial Lake County 2002 property tax bills had to go out using 2001 assessments and tax rates. * * *
The court’s unanimous ruling orders representatives of the MCC and the governor’s office to appear in Indianapolis June 23 for oral arguments. The court plans to consider whether Pete had jurisdiction to hear the MCC lawsuit. But the ruling also orders both sides to be prepared to argue whether it was constitutional for the state legislature to force only Lake County to hire a private firm to conduct its reassessment.
The Indiana Supreme Court on Thursday took the shackles off the Lake County treasurer's office with a ruling it can mail out the remaining 2002 property tax bills based on the new reassessment. * * *From the Indianapolis Star:The order, though, was packed with a one-two punch.
Indiana's high court did not rule on a May 7 decision by Lake Superior Court Judge Robert Pete that challenges the constitutionality of Lake County's reassessment by an outside firm. Pete's decision was in response to an April lawsuit filed by the Miller Citizens Corp., composed of Gary residents upset with the reassessment and how it skyrocketed their tax bills. Pete agreed the procedure was improper, and stopped the county from mailing tax bills calculated from the reassessment.
By not ruling on this issue, it enables the high court to hear arguments on the constitutionality factor, as well as the Indiana attorney general's contention over what court in the state has proper jurisdiction to decide a tax case. Indiana Attorney General Steve Carter believes the state's Tax Court is the proper venue to decide this issue; the Miller group argues Pete had proper jurisdiction.
Chief Justice Randall Shepard's two-page order also puts the case on a fast track with oral arguments on the remaining issues set for June 23.
Lake County can now send out property tax bills that have been delayed by a lawsuit challenging sharp increases for some homeowners, the Indiana Supreme Court ruled Thursday. But both sides in the tax fight must appear before the court in Indianapolis next month to argue the case further, the court ruled.The Supreme Court's order in this case has not yet been posted online. When it is, probably later today, I will provide a link here. Meanwhile, if you wish to review the docket, the case is: STATE OF INDIANA EX REL. THE ATTORNEY GENERAL -V- LAKE SUP. , Case Number: 45 S 00 - 0405 - OR - 00204.The Lake County dispute centers on a more potent version of the reassessment pain suffered last year by some Indianapolis residents, who saw their property taxes more than triple. The difference was that in Lake County, a special reassessment also shifted the responsibility for millions in property taxes from U.S. Steel Corp. to residential payers.
A Lake County judge this month halted the mailing of bills after declaring that the special reassessment was unconstitutional. The state appealed the decision. The state Supreme Court did not rule Thursday on the constitutionality question, instead ordering oral arguments for June 23. * * *
The shift of millions of dollars in property taxes from U.S. Steel to residential payers was made after the company, which employs 7,500 in Gary, argued that declines in its business had made its property worth significantly less.
I remember refusing a number of collect calls "from Westville" a few years back. As I do not practice criminal law, I assumed some inmates must have had a list of Indiana attorneys and were making calls at random.
In San Francisco the phone company charged for these unaccepted calls, according to this very interesting story today in Law.com. (Note - You may have to register.) Some quotes from the story:
Mysterious, one-minute calls popped up on Bicka Barlow's phone bill a few years ago. After she did a little detective work, the San Francisco criminal defense attorney figured out why. The phone company was charging her for jailhouse collect calls that she didn't accept -- and in some cases, the phone company billed her when no one answered her law office's phone.This part is particularly interesting:"It made me very irritated and upset," Barlow said. While Barlow was eventually credited for the charges, she spent a year disputing the calls, which added $15 to $20 to her monthly bill. Criminal defense attorneys are the star plaintiffs in Condes v. Evercom, 2002054255, an Alameda County, Calif., case that seeks class action certification.
At the center of the dispute is how collect calling works at prisons and county jails. However, the technology used to run jailhouse phone systems is a closely guarded secret. As a result, many case documents in Condes have been put under seal. In addition to a protective order, some documents have been marked for "attorneys' eyes only" to prevent defense attorneys, for example, from passing along a rival phone company's trade secrets to a client. In fact, plaintiffs attorneys declined to describe how the collect calls work because doing so might violate protective orders in the case.A 2001 annual report by defendant T-Netix sheds a little light on the inmate phone service industry. T-Netix, which provides "inmate calling services" to 1,400 facilities, estimated that there were 10 major competitors in the field. Jailhouse calls are lucrative because most inmates may only make collect calls. Since the calls are limited in length, inmates make a high number of calls. T-Netix, which is no longer a public company, made $120 million in revenues in 2002, according to the last annual report available. And T-Netix isn't even the largest company in the suit. Evercom serves 2,000 correctional facilities.
Monica Kay Lasater v. William Scott Lasater (5/27/04 IndCtApp) [Family Law; Civil Procedure]
Barnes, Judge
Monica Lasater challenges the trial court’s order granting to her ex-husband, William, custody of their daughter, C.L., and limiting her visitation with the child. We affirm.The facts in this case should be read in full. An example: "At the commencement of trial, Monica filed a letter attempting to discharge her court appointed attorney, and she proceeded with the trial pro se." According to a footnote: "The trial court did not permit Monica to discharge her counsel entirely and ordered counsel to remain in the courtroom during the trial for advisory purposes." At my count, this was her fifth attorney in this action. Here is some of the Court's discussion of Monica's brief. [I am unclear after reading this opinion as to whether Monica or, if I understand this correctly, her now advisory attorney (from the Notre Dame Legal Aid Clinic) wrote the brief]:Issues. Monica raises four issues for our review, which we restate as: I. whether the trial court abused its discretion when it found her in contempt of court; II. whether she was deprived of due process; III. whether the trial court’s findings are clearly erroneous; and IV. whether the trial court erroneously restricted her visitation.
We also address inflammatory and inappropriate comments contained in Monica’s brief.
We would be remiss if we did not comment on the inflammatory nature of Monica’s Appellant’s Brief. There are several instances where Monica makes inappropriate comments in her brief and at some points makes allegations of unethical conduct by judges and attorneys. We note a few of those instances.Wal-Mart Stores, Inc., et al. v. Berdita L. Bailey & Sue Rhodus (5/27/04 IndCtApp) [Employment Law; Civil Procedure]When referring to the trial court’s rulings relating to the William’s witnesses versus those relating to her own witnesses, Monica claims, “This pattern of harassment of Monica and deference to anything William does continued throughout the trial.” She further alleges that the trial judge “interfered with the presentation of [her] case” repeatedly. Indeed, she baldly claims, “The judge articulated his bias quite clearly on several occasions.” With respect to her due process argument, she states:
It is perhaps true that each of these errors, taken individually, could be seen as harmless. However, they cannot be viewed in isolation. Something was seriously wrong with this case. It is the pattern which must be considered. It cannot be easily explained. It is not rational that a judge would be checking out a case file years after being recused or that a Clerk’s office would refuse to serve the attorney of record in a case, but both happened in this case. Ms. Lasater believes it happened because her husband and his attorney have money, power and influence in Allen County and she does not. We will never know. Perhaps all the strange happenings in this case were coincidental, but perhaps not.* * * It is not Monica’s challenge to the trial court’s decision in and of itself with which we are concerned. “Lawyers are completely free to criticize the decisions of judges. However, as licensed professionals, they are not free to make recklessly false claims about a judge’s integrity.” In re Wilkins, 782 N.E.2d 985, 986 (Ind. 2003), cert. denied, 124 S. Ct. 63. By alleging that the trial court’s decision was based on the judge’s personal feelings about Monica or the other personalities involved in the case, she impugns the judge’s integrity.Our supreme court recently addressed similar concerns in In re Wilkins, 777 N.E.2d 714, 717 (Ind. 2002), modified on rehearing. In that case, the supreme court reviewed language contained in a footnote in a petition for rehearing. The offending language consisted of:
Indeed, the [Court of Appeals] Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).In finding that the comments in the footnote were not even “colorably appropriate,” the supreme court reasoned that in the footnote, the respondent suggested that the judges on the court of appeals may have been motivated in their decision making by something other than the proper administration of justice and suggested unethical motivations. Our supreme court further explained:[W]e find that the respondent offered no evidence to support his contentions that, for example, the Court of Appeals was determined to find for appellee, no matter what. Without evidence, such statements should not be made anywhere. With evidence, they should be made to the Judicial Qualifications Commission.Here, such comments do little to advance Monica’s position as to why the trial court committed reversible error and, therefore, do not promote responsible advocacy on her behalf. Significant parts of her brief are permeated with sarcasm and disrespect. * * * For the use of impertinent, intemperate, scandalous, or vituperative language in briefs on appeal impugning or disparaging this court, the trial court, or opposing counsel, we have the plenary power to order a brief stricken from our files and to affirm the trial court without further ado. Wright v. State, 772 N.E.2d 449, 463 (Ind. Ct. App. 2002). In the interest of evaluating the merits of Monica’s issues on appeal, we choose not to strike the Appellant’s Brief filed by Monica’s counsel or any portion thereof. Because we choose not to exercise our discretion to strike the brief, however, counsel should not confuse this with approval or condoning of the unprofessional, disrespectful, and at times outrageous remarks and allegations made in the body of the brief. We appreciate vigorous advocacy, but we will not countenance the sort of lawyering exhibited here. We admonish counsel to advocate more professionally in future matters before this court.Conclusion. The trial court did not abuse its discretion when it found Monica in contempt, and she was not deprived of her due process rights by the trial court. Furthermore, the findings are supported by the evidence. The trial court did not abuse its discretion in ordering restricted visitation between Monica and C.L. given the facts of this case. We affirm the trial court’s order in all respects. Affirmed.
KIRSCH, C.J., and FRIEDLANDER, J., concur.
Wal-Mart Stores, Inc. appeals from the trial court’s order certifying a class of current and former employees in the State of Indiana for claims asserted by Berdita Bailey, a former Wal-Mart employee. The main issues presented by Wal-Mart for our review are; (1) whether the class definition improperly includes class members who have no standing in the litigation, and (2) whether the trial court erred in concluding that common issues predominate and that a class action is superior to other methods of adjudicating the controversy. We conclude that the issue of whether the class definition includes individuals who have no standing in the litigation is dispositive, but because the other issues present concerns which may arise upon remand, we address those in turn. We reverse and remand. * * *Plaintiff sought to have the litigation certified as a class action. Following a hearing, the trial court granted her motion and ordered that the class be defined as “[a]ll current and former hourly employees of Wal-Mart Stores, Inc. (including its operating divisions Sam’s Club and Wal-Mart Supercenters) in the State of Indiana during the period August 1, 1998 to present.” Wal-Mart subsequently sought certification of the order for interlocutory appeal. That motion was granted; consequently, as the court here states: "the issue of class certification is properly before this court. " However, the Court here reverses the order certifying class, and continues:Bailey is a former Wal-Mart employee who now claims that she was subject to a corporate policy at Wal-Mart which caused her to work off the clock and be uncompensated for her time. * * * Bailey claims that because Wal-Mart has instituted the management and payment structure in place, it has forced managers to adopt or condone wrongful cost-saving practices and encourage hourly employees to work off the clock and through rest and meal breaks. She alleges that employees are faced with the dilemma of having more work to do than can be completed in a shift, but Wal-Mart policy is to limit overtime. As a result, she contends that employees must clock out and continue to work without pay. Moreover, she claims that employees are not given rest and meal breaks or are called back to work before their break is over. Evidence demonstrated that some store managers edit employee time records to show that breaks were taken or that individuals clocked out without ever confirming with the employee that the break was taken or whether they left work at a certain time. Finally, Bailey alleged that employees have been locked in stores overnight and the stores were not opened on time the following morning.
Even though we have determined that the class as defined is not properly maintainable, the class may be redefined in order to sustain the lawsuit.After describing the options in some detail, the court here concludes:
Nonetheless, we will not speculate with respect to how the parties will proceed upon remand. The order certifying the class is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.More. Some of you may recall two earlier Indiana Law Blog entries: "Altering of Worker Time Cards Spurs Growing Number of Suits," from 4/4/04; and "Overtime suits being filed in record numbers," from 4/13/04. The latter references an Indiana suit involving Wal-Mart.
ROBB, J., and BARNES, J., concur.
[Even more] The Wall Street Journal yesterday (paid subscription required) had a front page story with this lead: "Some of the nation's biggest and most cost-sensitive retailers, including Wal-Mart Stores Inc., RadioShack Corp. and Dollar General Corp., are battling a raft of lawsuits accusing them of using low-level managers to do the work of regular employees, in order to avoid paying overtime."
LITTLE, GREG v. IL DEPT REVENUE, ILLINOIS GAMING BOARD (ND Ill.) MANION, Circuit Judge.
Greg Little was (and once again is) a Revenue Special Agent for the Illinois Department of Revenue (“the Department”). He filed a complaint alleging that the Department fired him because of his race and because he spoke out against racial discrimination. Little appeals from the entry of summary judgment regarding his claims for racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and First Amendment retaliation. We affirm. * * *NLRB v. CITY WIDE INSULATION (NLRB) MANION, Circuit Judge. Affirmed.Before the district court, Little proceeded solely under the indirect method of proving racial discrimination and retaliation in violation of Title VII. His failure to point to a similarly situated employee who was both outside of either of his protected classes and who engaged in comparably serious conduct prevents him from establishing a prima facie case of either claim. Moreover, because the Department put forth a legitimate reason for Little’s termination, Little had to point to evidence from which a reasonable jury could conclude that this reason was pretextual. Little failed to do so, which means that summary judgment was appropriate as to his claims under Title VII. The same logic dooms his claim for First Amendment retaliation, because Little cannot show that, but for his protected speech, he would not have been fired. AFFIRMED.
USA v. WELCH, ANDRE (ND Ill.) FLAUM, Chief Judge.
The admissibility of expert scientific testimony is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 589-92. Daubert established a two-part test for district courts, which must determine first whether the proposed expert’s testimony reflects valid “scientific knowledge,” and if so, whether this testimony “will assist the trier of fact to understand or determine a fact in issue.” In this case, both parties agree that Dr. Maclin utilized reasoning and methodology that was scientifically valid. The only disputed issue is thus whether this information would have been of assistance to the jury. * * *The expert testimony proposed by Welch, however, was not direct evidence regarding whether he committed the crime. Dr. Maclin would not have offered any opinion on whether Welch was actually portrayed in the bank’s surveillance photographs. Rather, Dr. Maclin’s only purpose was to question the credibility of the witnesses who believed that Welch was depicted in the photographs. As this Court has often stated, determining the credibility of witnesses is one of the jury’s critical functions and is “generally not an appropriate subject matter for expert testimony.” [United States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999)]. We therefore conclude that the district court acted properly by excluding Dr. Maclin’s testimony.
Some quotes from an editorial today in the Helena, Montana Independent Record:
A poll commissioned by the Montana Contractors Association shows that two out three voters favor a law barring open containers of alcoholic beverages from motor vehicles. When the poll asked a further question stressing the state could lose more than $6 million a year in federal highway construction money if it doesn't pass an open-container law, the approval rate jumped to 77 percent. The figures were roughly the same for Republicans, Democrats, and independents.Here is Indiana's law: IC 9-30-15. Open Alcoholic Beverage Containers; Consumption of Alcohol in Motor Vehicles. As reported in this AP story in the Louisville Courier Journal dated 1/14/04:
Somehow, though, that public sentiment hasn't swayed legislators. Last year, once again, lawmakers balked. An open-container law died in committee and an attempt to blast it onto the floor, an effort requiring a supermajority, didn't even get a majority.In this, the state is swimming against the national tide. Montana is one of only three states that let motorists drink and drive. The others are Mississippi and Indiana. In Alaska, Connecticut, Delaware, Missouri, Tennessee, Virginia and Wyoming passengers, but not drivers, are allowed to drink. (The governor of Louisiana recently signed a bill removing that state from this category.) Three states, Arkansas, Colorado and West Virginia, allow open containers in vehicles — but nobody's supposed to drink from them! None of these state pass muster with the federal rules, which consider exceptions to an outright ban to be unacceptable loopholes.
Indiana's current law allows passengers to have open containers of alcohol as long as the driver has a blood-alcohol level of 0.04 percent or lower — half of the amount at which a driver is considered drunk under law.This section of the open container law caught my attention:
IC 9-30-15-4. The operator of a motor vehicle who knowingly consumes an alcoholic beverage while the motor vehicle is being operated upon a public highway commits a Class B infraction.
"NY Lawyers Find New Careers Among the Stacks of Law Libraries" is the headline to this story today from the New York Lawyer.
[More] Here is another career track that sounds like fun for a disaffected lawyer. This story in the Washington Post begins: "In a quiet brick office park just beyond the gourmet grocery stores and high-end salons that mark McLean's business district, David Tittle spends his days scoping out the best-of-the-best intelligence experts and code breakers."
This story was on the front page of the Indianapolis Star this morning. The headline: "Judge rejects fees for poor defendants: Marion County effort that dismisses cases of first-time offenders is unfair, jurist says." Some quotes (the order of several paragraphs has been rearranged):
Diversion programs, which the county has had in some form for about 30 years, give a second chance to first-time offenders. A person accused of a nonviolent crime must admit guilt, pay a fee and attend classes or submit to some other kind of court monitoring. In return, the state dismisses the case, and the person avoids a criminal conviction. * * *A Marion County program allowing some first-time offenders to clear their names if they meet certain conditions creates two unequal systems of justice -- one for people with money and another for the poor, a county judge has ruled.
Commissioner Israel Cruz this week declared unconstitutional the way Prosecutor Carl Brizzi runs the county's diversion program. Cruz ordered the prosecutor to place a 19-year-old woman charged with shoplifting in the county's diversion program even though she cannot pay the $230 fee. * * *
State law allows every prosecutor in the state's 92 counties to set up diversion programs. Most rely on that money to keep their offices running, said Becky McClure, assistant director of the Indiana Prosecuting Attorneys Council. She said Cruz's decision, released Monday, could have a far-reaching impact. "At this stage, this is a decision in one case in Marion County," she said. "We will certainly be watching it with great interest to see where it goes." * * *
Norman Lefstein, a professor and the former dean of the Indiana University School of Law-Indianapolis, said prosecutors must apply the law fairly. "That is a classic denial of equal protection under the law," Lefstein said. "We don't have in this country one set of laws for the rich and another set for the poor."
But Johnson County Prosecutor Lance Hamner said no one should get a free ride. "Anyone who is motivated can pay the fee," he said. "When you have a judge claiming that all a person has to do is claim indigency and he doesn't have to pay, you open the floodgates."
This story today in the Fort Wayne News-Sentinel is interesting, and somewhat troubling. Headlined "Homeowners are hiring appraisers to take a closer look in hopes of lowering their tax bills," it begins:
Hundreds of Allen County residents have dramatically lowered their property taxes by paying for an "inside job" - and there's nothing underhanded about it.In fact, private appraisals have exposed a flaw in Indiana's court-imposed shift to a market-based assessment system.
A home's value is determined by more than its size and external appearance, after all. Condition is a factor, too - and it can't be determined without going inside for a closer look. Government assessors never had time for that kind of scrutiny - which is why many private appraisers are working overtime now.
"We never would have gotten done if we'd have gone in every home," said Wayne Township Assessor Jerry Zuber, whose crews visited all 43,000 homes in the township - nearly one-third of the county's total. But those visits were external only, confirming the home's size, features and other easily visible factors. As a result, they often missed hidden problems that are now being detected by private appraisers such as Tom Heine and Mike Roach.
"Business is up 100 percent," said Heine, a 25-year veteran who has appraised 12 homes in the past month or so. While most of those appraisals have persuaded officials to decrease the owner's assessment by an average of about 60 percent, a few owners have done far better.
Landfills. "Judge upholds rejection of local landfill: Attorney for county board of zoning appeals says ruling supports local control." Some quotes from this story in the Munster Times:
VALPARAISO -- Porter Superior Judge Bill Alexa has upheld a decision by the county board of zoning appeals to reject a proposed 354-acre landfill in Porter Township. The court released the ruling Tuesday, nearly seven weeks after attorneys argued the case in court and two years after the BZA denied a special exception for the proposal at County Roads 550 South and 250 West.A story from the Gary Post Tribune reports:BZA attorney Lily Schaefer said the ruling is most significant because it upholds local control over these types of proposals. Attorneys representing the Lake County Trust Co., which sought the special exception, argued the decision should be up to state and federal officials, she said.
“The decision by the BZA to deny (Lake County Trust Company’s) petition for special exception was not arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law,” [Judge] Alexa wrote in his decision. Instead, Alexa wrote, the appeals board took into account “substantial evidence” at its April 2, 2002 hearing that concerned Indian burial grounds, harmful effects of increased truck traffic, effects on the local watershed and ground-water supply, discouragement of area residential development, and possible increase of scavenger animals and associated diseases.Earlier Indiana Law Blog entries on this dispute may be found here (3/11/04) and here (2/5/04).And Alexa cited a 1973 Indiana Court of Appeals case, Johnson County Plan Commission v. Fayette Building Corp., which held that “as a rule the court will not reverse the decision of the Board of Zoning Appeals where there is evidence to support it nor will the court substitute its own judgment for that of the board.” * * *
The appeals board has already retained an Indianapolis law firm, Sommer Barnard Ackerson, to assist board attorney Lily Schaefer in the event the case advances to Indianapolis.
Glenn Sechen, the Chicago-based attorney for the trust company, said he had not had a chance to review the decision and could not comment on any potential appeal.
Sechen had argued the appeals board applied “ad hoc” standards to the landfill case, violating federal landfill rules, such as the Resource Conservation and Recovery Act (RCRA), as well as the authority of the Indiana Department of Environmental Management and the Indiana Department of Natural Resources.
Another landfill story was published today in the Muncie StarPress. It concerns a proposed landfill expansion: "The landfill is asking the board for a special exception to allow it to expand from 120 acres to 320 acres, which could keep it in operation for another half century." More:
Few people realize "how big an expansion this would be," John Zakelj said after the meeting. He, Wendy Carpenter and other opponents believe the proposed expansion could make the landfill one of the largest in the state.To demonstrate the expansion, Charles Cantrell created a science-fair-like display on a 10-inch-tall, 5-feet-long foam board. It super-imposes a 165-feet-tall landfill running from the four-way stop on the north side of Farmland to the intersection of Ind. 32 and Ind. 1 south of Farmland. The superimposed landfill is nearly 50 feet taller than the 118-foot-tall grain elevator in downtown Farmland. * * *
Randolph County Commissioners and the mayors of Winchester and Union City are among the supporters of the expansion.
According to opponents, only 6 percent of the trash arriving at the landfill in 2003 came from Randolph County. About 1,000 tons a day of municipal solid waste are dumped in the landfill from Delaware, Madison, Jay, Randolph, Wayne and Henry counties in Indiana and from Darke and Miami counties in Ohio.
Clean Air Act. Two stories, both from the Louisville Courier Journal. The first, available here, is headlined "Cinergy challenges Louisville legal filing: Utility calls attempt to join pollution suit unnecessary." Some quotes:
In a federal court filing, Cinergy Corp. argues that the Louisville Metro Air Pollution Control District should not be allowed to join the federal government and several states in a lawsuit over the company's power-plant pollution.An editorial today in the Courier Journal commends the Louisville mayor's "proposed initiative to lower the alarmingly high levels of toxic pollutants in Louisville's air," which was mentioned in this ILB entry yesterday.The company called the district's request to join the lawsuit to curb emissions from its Gallagher power plant in New Albany "untimely" and unnecessary.
In a memorandum recently filed in U.S. District Court in Indianapolis, Cinergy lawyers also claim that the district has failed to show that it can't trust the federal agencies already involved to adequately represent its interests.
Further, lawyers for the Cincinnati-based company said the district "appears to be primarily motivated by the desire to obtain additional emissions reductions to replace those lost when Louisville impermissibly terminated its Vehicle Emissions Testing program."
In USA v. PARKER, TRACY L. (CD Ill.) the panel affirms Parker's conviction, in an opinion written by Chief Judge Flaum.
A story in the Muncie StarPress from Sunday, May 23rd titled "City bans Confederate flags from reservoir campground," has provoked national interest. I was advised of it this morning via a note from an Indiana attorney stationed in Washington:
As a practicing Indiana attorney in Washington, DC, I rely on your blog to keep me up to date with Indiana happenings. I enjoy reading it every day.Here are Eugene Volokh's comments. Volokh teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy at UCLA Law School.This morning I came across an interesting post on volokh.com about the controversy in Muncie regarding the mayor's decision to ban confederate flags and firearms from public campgrounds. Prof. Volokh apparently spoke to the mayor and his post discusses his view of the constitutionality of the mayor's decision. It's an interesting read.
Andrew I. Warden, Trial Attorney
U.S. Department of Justice, Civil Division
Since the initial story last Sunday, the StarPress has run two other stories: "ICLU questions legality of flag restrictions," from May 24th and "Mayor plans major changes at reservoir's campground," published today, May 26th. Some quotes:
MUNCIE - The Confederate battle flag controversy at Prairie Creek Reservoir's campground has convinced Mayor Dan Canan of the need to make major changes in the operation of the campground. "What all of this has brought to my attention is we as a city have created an environment at the campgrounds that is really not a campground," Canan said. "We've gone from campers renting camp sites to a trailer park. Instead of having campers who rent, we have campers who think they're homeowners and they own the property. I blame the city. It falls on my shoulders." * * *[Update 5/27/04] Today's Muncie StarPress story quotes Professor Volokh. The lead:Long-time camper Tom Wallace, known as "the mayor" of the campground, said the mayor's plan would significantly decrease park revenue. Wallace filed a complaint Tuesday with the Indiana Civil Liberties Union accusing the mayor of violating his rights to free speech. The mayor recently ordered campers to remove all but American and POW-MIA flags from the campground. Wallace, a native of Hazard, Ky., had flown a Confederate battle flag at the campground for years.
Wallace is now challenging the mayor, who won't return his phone calls, to a televised debate. "The mayor has opened a can of worms that he doesn't have a lid to put on," Wallace said. "If the ICLU says I don't have a case, I'll go to the governor. If he says I don't have a case, I'll take it to the Supreme Court."
Wallace flew the Confederate battle flag at the campground because he comes from the South, he lives on the south side of Muncie, and his three daughters graduated from Southside High School, which used the Confederate flag as a school symbol in the 1960s."This has nothing to do with prejudice," said Wallace.
MUNCIE - A UCLA Law School professor says the city of Muncie's rules for the campground at Prairie Creek Reservoir violate two Constitutional rights - the right to bear arms and the right to free speech.
As reported today in many papers, Chief Justice William H. Rehnquist has named a high-level panel to investigate the federal courts' handling of judicial misconduct. According to the Washington Post story:
Justice Stephen G. Breyer will chair the six-member panel, according to a statement published this week in the newsletter of the federal courts. The committee will hold its first meeting next month in Washington.Here is the Indianapolis Star coverage, which leads with: "U.S. District Judge Sarah Evans Barker of Indiana has been named to a panel to study federal judicial ethics.""There has been some recent criticism from Congress about the way in which the Judicial Conduct and Disability Act of 1980 is being implemented, and I decided that the best way to see if there are any real problems is to have a committee look into it," Rehnquist said in the statement. * * *
The act of Congress cited by Rehnquist defines judicial misconduct and articulates the standards for judges to use when deciding whether to recuse themselves from a case in which they, a spouse or a child might have, or be seen as having, an interest. That can include a financial interest or membership on a board involved in the case. The act applies to lower federal courts and does not mention the Supreme Court. * * *
In addition to Breyer, the other five members are: Judge J. Harvie Wilkinson III, former chief judge of the U.S. Court of Appeals for the 4th Circuit, based in Richmond; Judge Pasco M. Bowman II, former chief judge of the U.S. Court of Appeals for the 8th Circuit, based in St. Louis; Judge D. Brock Hornby, former chief judge of the U.S. District Court for the District of Maine; Judge Sarah Evans Barker, former chief judge of the U.S. District Court for the Southern District of Indiana; and Sally M. Rider, the chief justice's administrative assistant.
Rehnquist's statement gave little information about the committee's mission, which is "to evaluate how the federal judicial system is dealing with judicial misbehavior and disability."
NPR had a promo this morning for a story to be broadcast this afternoon about China's booming economy and how Minnesota is shipping iron ore to China. Of course, this ties together our recent entry titled "China moves rapidly forward, voraciously consuming raw materials" and our continuing series (type "iron nuggets" in the search box - no quotes) on whether Minnesota iron ore will be shipped to an iron nuggets plant to be built either in Indiana or in Minnesota.
When the NPR story is available online this evening, I will add the link here.
Here it is: Minnesota Iron Mine Benefits from China's Boom. "An idled Minnesota mine has been re-opened under a new partnership with a Chinese steel company and is now exporting iron ore to China. The new business has been a boon for the residents of the small mining town of Eveleth, Minnesota, which has suffered economically for decades."
This Indiana Law Blog entry from May 20 reported on the effort of farmers in LaPorte County to acquire a 56-mile stretch of CSX rail used to transport crops; the line is slated for closure.
However, apparently not all farmer are behind the project. A story today in the LaPorte County Herald Argus is titled "Area farmers criticize plan to save CSX rail line."
Mark Murfitt v. Vickie Murfitt (4/15/04 IndCtApp) [Family Law; Constitutional Law]
Sullivan, Judge
Mark Murfitt appeals pro se from the trial court’s order distributing the marital property following the trial court’s granting of Mark’s wife’s petition for dissolution of marriage. He presents three issues for our review, two of which we consolidate into the sole issue addressed in this decision: whether the trial court erred in denying Mark alternative methods, including the appointment of counsel, to represent his interests at trial. We reverse and remand. * * *Derrick L. Jenkins v. State of Indiana (5/25/04 IndCtApp) [Criminal Law & Procedure]On May 29, 2001, the day that Vickie filed her petition for dissolution of marriage, Mark was incarcerated. * * * Mark subsequently filed a motion requesting alternative hearing methods so that he could take part in the hearing. * * *
Upon appeal, Mark claims that the trial court should have granted the motion for alternative means for conducting a hearing so that he could take part and defend his interests. In his motion, Mark noted that the trial court could not secure Mark’s attendance at or transportation to a civil action unrelated to the case resulting in the incarceration. [cites omitted] In that same motion, Mark also noted some alternative means by which the hearing could be conducted, including: (1) a telephonic conference, (2) securing someone else to represent him, (3) postponing the hearing until he was released, or (4) submitting the case to the court by documentary evidence.
This court has noted on several occasions the constitutional right of a prisoner to bring a civil action as provided by Article 1, Section 12 of the Indiana Constitution. * * * As stated in [Zimmerman v. Hanks], some means must exist by which an individual may prosecute his claim while still incarcerated; otherwise, that individual would be denied the constitutional right to bring a civil action. “A trial court should not be able to deprive a prisoner of his constitutional right to maintain a civil action by denying motions that the court can properly deny while concurrently ignoring the prisoner’s requests for other methods that would allow the prisoner to prosecute from prison.” There is no reason to believe that Mark could not himself take part in this action through one of the alternative methods while he is incarcerated. He has shown remarkable skill and clarity in drafting his motions and in writing his brief. Nonetheless, we reserve the decision as to how the new hearing should be conducted for the trial court. Upon remand, the trial court should determine what manner of hearing is most appropriate and feasible and whether Mark is entitled to counsel. The judgment of the trial court is reversed and the cause remanded for new proceedings not inconsistent with this decision.
ROBB, J., and RATLIFF, Sr.J., concur.
Indiana Association of Beverage Retailers, et al. v. Indiana Alcohol and Tobacco Commission, et al. (5/25/04 IndCtApp) [Administrative Law]
Baker, Judge
Here the Indiana Association of Beverage Retailers, Inc. (IABR) appeals the trial court’s dismissal of its petition for judicial review of the Indiana Alcohol and Tobacco Commission’s (ATC) order granting Thornton Oil Corporation’s (Thornton) application for a beer and wine permit.
Thus, IABR seeks a reversal and remand of the trial court’s order for a determination on the merits whether ATC’s decision to grant Thornton’s application must be set aside. Concluding that IABR did, indeed, have standing in this case, we reverse the order of dismissal and remand with instructions that the trial court consider the propriety of ATC’s decision to grant Thronton’s application.Although the Local Board denied the permit, the ATC reversed and granted Thornton’s application for the alcohol permit IABR filed its verified petition for judicial review with the trial court. In the end, the trial court dismissed the case and ruled that IABR had failed to demonstrate that it had standing on its own to bring suit. Further, it said IABR’s membership, as competitors of Thornton Oil Corporation also lacked standing to object to the granting of an alcohol permit. The Court here states:IABR is a non-profit association whose membership is comprised of retail package liquor stores. Thornton is the owner of a gas station and convenience store in Lawrence that has been in business for more than five years. Thornton also operates thirteen similar stores in other Indiana locations that hold alcoholic beverage permits.
On January 9, 2001, Thornton filed its application for a beer and wine permit so that it could “compete on a level playing field with other convenience grocery stores that sell alcoholic beverages.” Thereafter, the Marion County Local Board (Local Board) investigated the application, and a hearing was held on August 6, 2001. IABR remonstrated against Thornton’s application, arguing lack of desire or need for the permit and maintained that the permit should be denied because Thornton did not operate a pharmacy or grocery store.
Unlike the provisions of the AOPA, it is apparent that there was only one class of persons entitled to standing under the AAA. With the enactment of the AOPA, however, the statute with regard to standing has been clarified and expanded to include the appropriate categories that had previously been omitted.After referencing a number of decisions, the Court states:
In light of the above, it is apparent to us that the cases relied upon by the trial court in dismissing IABR’s petition for judicial review and those cited by the ATC are distinguishable from the circumstances here and do not provide authority for the trial court’s order denying IABR standing to obtain judicial review of the order. Moreover, we note that in accordance with 905 I.A.C. 1-36-2(a), a remonstrator is entitled to notice of the Local Board or ATC’s decision to grant or deny an application for an alcoholic beverage permit. Further, a remonstrator is entitled to participate in appeals to the ATC from a local board decision. 905 I.A.C. 1-36-3(b).Finally, we note that IABR has cited to this court’s opinion in Huffman v. Dept. of Envtl. Mgmt., 788 N.E.2d 505, 509 (Ind. Ct. App. 2003), for the proposition that the judicial doctrine of standing applies to lawsuits filed in a trial court and to matters not covered by the AOPA. * * * IABR acknowledges in its reply brief that our supreme court has recently granted transfer in Huffman. To date, no opinion has been issued. We note, however, that even if the supreme court determines that Huffman’s petition was properly dismissed because of the lack of standing, we do not find that the circumstances in that case should control the outcome here. * * * That said, we do not find the Huffman rationale controlling here, and we thus conclude, in light of our discussion above, that the trial court erred in dismissing IABR’s petition for judicial review.
Reversed and remanded to the trial court for a determination of whether the ATC’s decision to grant Thornton’s application on contravention of the Local Board’s recommendation should be set aside.
FRIEDLANDER, J., and BAILEY, J., concur.
The Supreme Court issued a number of significant death penalty decisions today:
Benjamin Ritchie v. State of Indiana (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Boehm, Justice
Christopher M. Helsey v. State of Indiana (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Dickson, Justice
Phillip A. Stroud v. State of Indiana (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Dickson, Justice
State of Indiana v. Charles E. Barker (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Dickson, Justice
State of Indiana v. Chijoike Bomani Ben-Yisrayl (5/25/04 IndSCt) [Criminal Law & Procedure; Constitutional Law]
Dickson, Justice
[Update 5/26/04] The Indianapolis Star has a brief item this morning on the last two opinions listed above -- Charles E. Barker and Chijoike Bomani Ben-Yisrayl. Some quotes:
Last year, Marion Superior Judge Grant W. Hawkins ruled that prosecutors couldn't seek the death penalty against convicted killers Charles E. Barker and Chijoike Bomani Ben-Yisrayl, then known as Greagree Davis. This was the second time Hawkins ruled the death penalty unconstitutional, and Tuesday marked the second time the Supreme Court has reversed him.WNDU-TV has a brief story on the Philip Stroud decision, including:
The Indiana Supreme Court today vacated Stroud’s death sentence. The court ruled the jury was given conflicting instructions during the penalty phase of Stroud’s trial. The ruling sends the case back to the trial court judge for re-sentencing. Nonetheless, Stroud’s murder and burglary convictions were upheld by the high court.The Indianapolis Star had a very brief story about the Benjamin Ritchie ruling:
Convicted cop-killer Benjamin Ritchie will stay on Death Row after the Indiana Supreme Court rejected his appeal Tuesday. Ritchie was sentenced to death in October 2002 for the shooting death of Beech Grove police officer William Toney. On appeal, Ritchie's attorneys unsuccessfully argued on 10 issues -- including that the death penalty is cruel and unusual punishment.Finally, referencing both the Darnell Williams decision last week (see this entry) and the Ben-Yisrayl decision (above), the Munster Times has an editorial today urging Indiana "to take another look at how it is administered in the state, following the example set by Illinois."
I've read a number of interesting enviromental stories today, some of national import, and some of state or local interest.
Asbestos. This story, titled "Cheaper Way to Raze Dilapidated Motel Prompts Concern," is from the NY Times. Some quotes:
WASHINGTON, May 24 - Sometime this summer, the city of Fort Worth wants to demolish the asbestos-ridden Cowtown Inn, an abandoned motel that closed 15 years ago and now attracts drug dealers, prostitutes and homeless people.Air Toxics. This story, titled "Abramson proposes toxic air program: Raising polluters' fees is part of $702,000 plan," is from the Louisville Courier Journal. Some quotes:Using a novel method of demolition, workers plan to soak the interior of the building with water to keep asbestos fibers from spreading. Local officials, with some support from E.P.A. officials in Texas, say that this technique could save cities around the country millions of dollars in their efforts to clear out urban blight. Under federal regulations, materials with asbestos must be painstakingly removed before a building is razed.
But E.P.A. scientists, as well as independent outsiders hired by the agency to reach their own judgments, have raised major objections, saying that the wetting technique poses health risks that have been neither adequately studied nor conveyed to people who live and work near the motel.
The mayor said metro government will unveil the new program this summer. [Art Williams, director of the air pollution control district] has said it will go beyond the federal minimum requirements for controlling hazardous air pollutants, a special category identified in the Clean Air Act. Yesterday, metro officials sketched out for the first time what they have in mind. The program will target all 18 chemicals identified in last year's risk assessment, and it will include new "emissions standards." Williams declined to identify those standards or explain how they might work.Sewer bans. This story, also from the Courier Journal, that begins:The mayor said the program would focus on three areas: Helping companies change their processes over time to reduce toxic emissions. Working with companies that want to expand on avoiding increased emission levels. Making sure that companies moving to Louisville comply with new emission standards.
New Albany officials hope they will soon be able to loosen the state and federal restrictions on new connections to the city's sewage system — restrictions that have slowed economic development since last year. As a way of increasing the system's capacity, city officials are proposing to use sewage storage tanks that were built at the treatment plant about 1994 but taken out of use after a few months because of strong odors associated with them.Uncontrolled stormwater runoff. This story from the Gary Post Tribune about Chesterton’s Town Council meeting Monday. This part caught my eye:
Jim Kowalski, a former member of the board of zoning appeals, told the council he had concerns about construction on CR1050 North. “It looks terrible out there,” Kowalski said. “The developer has not attempted to put up any silt fences,” he said. “With all this rain, everything is dumping into the storm sewer. And we’re going to start having problems.”Natural Resources. Complete with photo, this story today in the Chesterton Tribune is about "a print of a painting of 'Howlin’ Hill,' a large turret dune destroyed 40-some years ago for the development of the Port of Indiana." Some quotes:Building Commissioner Mike Orlich said that he had been writing tickets for silt-fence violations. Orlich said he may return to the board with a proposal to amend the town’s ordinance on silt fencing.
It was Herb Read’s favorite place in the Indiana Dunes. Towering 150 feet above lake level, the huge mound of sand known as a turret dune was in a blowout the size of 68 football fields. It stood in a tree graveyard, where 5,000 or so years ago a white pine forest stood before it was buried in sand. It was a dramatic place, with no other place in the Indiana Dunes -- then or now -- like this place, which was known as Howlin’ Hill. “It was not the highest dune, but it was certainly the most spectacular,” Read said. * * *Though Howlin’ Hills is long gone -- it was located about in the center of what is now the Port of Indiana -- its image has been preserved in perpetuity, thanks to Read’s camera and the artistry of Beverly Shores painter David Tutwiler. * * * Read said he wants people to think about three things when they see the work: First, to recognize that beautiful and unique dunes like Howlin’ Hill have been destroyed, representing a lesson of what can happen to natural lands; second, to have a greater appreciation for what has been saved in the Indiana Dunes National Lakeshore and Dunes State Park; and third, to resolve, as he has done, to extend protections to the dunes that still exist outside the parks.
"Lawyers hit stadium pay dirt: Private attorneys land windfall of public money," was the headline to this story yesterday in the Cincinnati Enquirer. Some quotes:
Eight law firms have been paid almost $7 million since the county first decided to replace Cinergy Field with separate riverfront stadiums for the Cincinnati Bengals and Cincinnati Reds. * * *Re the possibility of taking bids for the legal work:County officials say the money has been well spent on law firms that have negotiated and monitored a tangle of agreements with the sports teams, riverfront landowners, construction companies and the city of Cincinnati. But Auditor Dusty Rhodes, a frequent critic of county spending, says it's time to call an end to the game. The county administration, he says, has grown too dependent on private attorneys for work that the prosecutor's office could do or that doesn't require lawyers. * * *
The prosecutor's office represents county officeholders. It has about two dozen lawyers who handle civil matters on a $4.5 million annual budget. When the prosecutor's office concludes it doesn't have the expertise or time to handle certain complex cases, it recommends that commissioners hire private legal counsel. That can be an expensive decision: county attorneys make an average of $37.61 an hour, versus rates of $200-plus an hour for private lawyers.
"Legal work generally isn't bid for the same reason you wouldn't take bids if you needed surgery - you'd want the best person for the job," said Carl Stich, chief of the prosecutor's civil division.Re the costs of the legal work:
The $6.8 million spent on riverfront-related legal work from the mid-1990s through 2003 amounts to less than 1 percent of the $750 million bill for the two stadiums. Almost two-thirds of the stadium and riverfront work - $4.3 million - has gone to Vorys Sater Seymour and Pease, a downtown Cincinnati law firm. * * * The Indianapolis-based law firm of Ice Miller has run up the second-steepest legal tab * * *. The county has paid Ice Miller $1.2 million over three years.Link via Ed Feigenbaum's Indiana Daily Insight.
From the Omaha World-Herald last Saturday, May 22nd:
The U.S. Supreme Court could decide as early as Monday whether it will hear arguments defending the constitutionality of the beef and pork checkoffs. The two checkoffs, which use money from livestock sales for ad promotions, have each been ruled unconstitutional in separate appeals courts. * * *"Pork: the other white meat" and "Beef: It's what's for dinner," are examples of the ad campaigns paid for by the checkoff programs. The "Got milk?" dairy promotion was ruled unconstitutional by the 3rd Circuit earlier this year. Here is AP coverage from earlier today:The Eighth U.S. Circuit Court of Appeals had ruled in a South Dakota case that livestock producers should not have to be required to help fund the advertising campaign. * * * Last October, the Sixth U.S. Circuit Court of Appeals upheld an earlier ruling to end the mandatory pork checkoff program. The U.S. Department of Agriculture appealed the decision. In both cases, judges rejected the argument that the checkoffs are tantamount to government speech and therefore not subject to the First Amendment.
For nearly 20 years beef producers have had to pay fees that are used to promote the industry, but lower courts have ruled that the beef programs -- and others like them -- violate the First Amendment guarantee of free speech.For earlier Indiana Law Blog entries, see this one from 3/29/04, this one from 2/24/04, and this one from 11/1/03.Opponents of such fees contend that the mandatory fees infringed on their free speech rights because they are forced to pay for some marketing campaigns with which they don't agree.
Justices will hear arguments this fall in the Bush administration appeal. Solicitor General Theodore Olson said a lower court ruling against the government ended successful public relations campaigns and important research and public education on mad cow disease. * * *
The case forces the court to return to a question it has visited before: Do mandatory government advertising programs violate the free-speech rights of producers who disagree with how the money is spent?
In 2001, the court ruled that a mandatory campaign for the mushroom industry violated the First Amendment. But justices have allowed joint advertisements in heavily regulated industries such as California fruit production.
Darnell Williams v. State of Indiana. This order, issued 5/21/04, is signed by Chief Justice Shepard. Dickson, Sullivan and Rucker, JJ., concur. Boehm, J., concurs in result with separate opinion.
The Court's order was reported in an AP story Friday (5/21/04) published in the Munster Times. A quote:
The Indiana Supreme Court on Friday set a new execution date for Darnell Williams, saying DNA tests in his case were inconclusive and did not undermine "other overwhelming evidence" of his guilt in the shooting deaths of a Lake County couple.A number of other papers - Indianapolis, Fort Wayne, Chicago Tribune, carried the same AP story.
[Update 5/25/04] This editorial today in the Indianapolis Star begins:
The Indiana Supreme Court's decision to dismiss DNA test results in the Darnell Williams death penalty case is disturbing. In setting an execution date of July 9, the court found little value in DNA tests of blood samples found on Williams' shorts after he was arrested for the 1986 murders of Gary residents John and Henrietta Rease.
Robert Miller v. St. Joseph Co. Area Board of Zoning Appeals, et al. (5/24/04 IndCtApp) [Planning & Zoning]
Sullivan, Judge
While the adage “good fences make good neighbors” is routinely heard in disputes between adjoining property owners, the phrase “good trees make good neighbors” better describes the facts in this case. Robert L. Miller, Sr. (“Miller”) appeals from the trial court’s dismissal of his petition to review the decision of the St. Joseph County Area Board of Zoning Appeals (“the Board”) which granted a variance to Michael Garatoni (“Garatoni”) to build an addition to the child care center which he owned. We restate the issues which Miller has presented for our review as whether the trial court erred in dismissing his petition for review because Miller filed it outside of the required time period. We affirm. * * *Dayton Evans v. State of Indiana (5/24/04 IndCtApp) [Criminal Law & Procedure]Indiana Code § 36-7-4-1003 authorizes a party aggrieved by a decision of the board of zoning appeals to file a verified petition with a court in the county where the affected premises are located alleging that the decision is illegal. It further provides that the petition must be filed with the court within thirty days after the date of the decision of the board of zoning appeals.
In seeking review of the decision of the Board, Miller filed his petition on March 7, 2003. The original decision of the Board granting the variance with conditions was made on December 4, 2002. The revised order of the Board granting the variance was made at the February 5, 2003 hearing. Because Miller did not file his challenge of the original order of the Board with the court within thirty days as required, his challenges to the first order cannot be considered. See Biggs v. Bd. of Zoning Appeals of City of Wabash, 448 N.E.2d 693, 694 (Ind. Ct. App. 1983) (failure to comply with the statute is fatal), trans. denied.
It is with this knowledge that Miller has argued that the second order issued by the Board made substantive changes to the first order. As a result, he asserts that the trial court may review his petition because his challenge was brought within the required time frame. While we acknowledge that the addition of some language in the second order appears to make substantive changes to the first order and thus was not correction of clerical errors, the majority of Miller’s claims are not reviewable because any changes made to the second order did not address the issues which Miller now presents. * * * The judgment of the trial court dismissing the petition for review is affirmed.
ROBB, J., and HOFFMAN, Sr.J., concur.
Appellant, Dayton Evans, challenges the post-conviction court’s denial of his petition for post-conviction relief. Upon appeal, Evans presents three issues for our review: (1) whether the post-conviction court abused its discretion by denying Evans a continuance so that he could hire an attorney to represent him during the post-conviction proceedings, (2) whether the post-conviction court abused its discretion in denying Evans’s petition for post-conviction relief, and (3) whether the post-conviction court abused its discretion by failing to assist and advise Evans on how to present his case. We affirm. * * *[With regard to issue 3:] Finally, Evans argues that the post-conviction court erred in failing to advise him of the rules and repercussions during the hearing on his pro se petition. Specifically, Evans asserts that during the hearing the post-conviction court should have advised and assisted him as to the filing of exhibits or any other type of evidence which may have supported his claims. Evans admits that there are no cases to support his claim but asks us to consider this case as a matter of first impression.
Pro se litigants without legal training are held to the same standard as trained counsel and are required to follow procedural rules. Wright v. State, 772 N.E.2d 449, 463 (Ind. Ct. App. 2002). This has consistently been the standard applied to pro se litigants, and the courts of this State have never held t