June 30, 2004

Law - Sports Law: Title IX

"Title IX Trickles Down to Girls of Generation Z" reads the headline to this lengthy and really interesting report in the June 29th NY Times about "a new phase in the evolution of Title IX," lawsuits seeking "facilities and services that would be comparable" to those provided to boys. Some quotes:

These suits are often initiated by fathers like Johnson, who are part of what is known as the angry-dad phenomenon among people involved in Title IX matters.

"The fathers tend to get more riled up," said Sam Schiller, a Tennessee lawyer, who with his partner, Ray Yasser, has been involved in more than 30 Title IX lawsuits. "The fathers have already experienced the benefits of a full high school athletic experience. Then they have a daughter and she goes to high school and they can't believe she isn't being treated like they were."

While the familiar battles over Title IX take place at colleges and universities, the battleground has been extended to high schools and middle schools. It is not only lawsuits that have become more common. At the federal Department of Education, the agency responsible for enforcing Title IX, the number of complaints involving sex discrimination in high school and even middle school athletics has outpaced those involving colleges by five to one since 2001.

"High school is where the Title IX action is," said Bob Gardner, the chief officer of the National Federation of State High School Associations. "The colleges get all the attention, but Title IX isn't about the nation's elite college athletes. It's about providing a grass-roots gateway to sports that benefits millions."

Deeper into the story:
Colleges and universities are required by federal law to disclose all pertinent data on how they are treating and financing their athletic programs for men and women, but public schools' athletic departments have no disclosure requirement. So there is no data to assess the true level of gender equity nationally in high schools, middle schools or elementary schools.

Monitoring compliance is left to local school boards, activists, the courts or the Department of Education's Office for Civil Rights, which generally investigates after it receives a complaint. It does conduct periodic independent compliance reviews. * * *

A large percentage of high schools, perhaps even a majority, are still not in compliance with Title IX, said the leaders of several state high school athletic associations. At the same time, many state sports executives said they thought there has been tremendous progress.

"In one generation, we've gone from powder-puff basketball games to a competitive, beneficial, broad-based sports environment for girls," said Dorothy McIntyre, who recently retired after more than three decades as the executive director of the Minnesota State High School League. "But it was not accomplished without a lot of blood, sweat and tears. There were a lot of boys coaches slamming their fists on the table and a lot of girls coaches slamming their fist back and saying: 'I'm not going to take this.' "

And yet, while Title IX issues tend to be divisive at the collegiate level, many officials insist that many of the problems are resolved amicably in high schools. For example, it is unheard of for a high school to cut a boys team to help achieve gender equity, something that has become commonplace in colleges.

Posted by Marcia Oddi at 08:36 PM

Indiana Decisions - Four New Supreme Court Decisions Posted Today

Steven D. Cook v. State of Indiana (6/30/04 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice

There is conflicting authority as to whether, prior to any trial date being set, delays caused by a defendant extend the one-year deadline for bringing a defendant to trial under Indiana Criminal Rule 4(C). We hold that they do. * * *

We therefore hold that delays caused by action taken by the defendant are chargeable to the defendant regardless of whether a trial date has been set. To the extent inconsistent with this holding, Hurst, 688 N.E.2d 402; and Morrison, 555 N.E.2d 458, are overruled; and Carr, 790 N.E.2d 599; Nance, 630 N.E.2d 218; Solomon, 588 N.E.2d 1271; Harrington, 588 N.E.2d 509; and Miller, 570 N.E.2d 943, are disapproved. * * *

Conclusion. We grant transfer and affirm the trial court.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

Roy Lee Ward v. State of Indiana (6/30/4 IndSCt) [Criminal Law & Procedure]
Rucker, Justice
As the result of a brutal slaying Roy Lee Ward was convicted of murder and sentenced to death. He was also convicted and sentenced to a term of years for rape and criminal deviate conduct. In this direct appeal Ward raises several issues for our review, one of which is that this case should not have been tried in the county where the crimes were committed because of community bias and pervasive pretrial publicity. The record supports this contention. We are therefore constrained to reverse and remand this cause for a new trial. * * *

With his life at stake, we think the Constitution requires that the defendant “be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which [one half] of the members admit, before hearing any testimony, to possessing a belief in his guilt.” Irvin, 366 U.S. at 728. We conclude therefore that the trial court abused its discretion in failing to grant Ward’s motion for change of venue from the county, or in the alternative to draw the jury from another county. Accordingly, we reverse the trial court on this issue and remand this cause for a new trial. Judgment reversed and cause remanded.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur

W. Brent & Marina Gill v. Fred Pollert and Pollert's Inc., et al (6/30/04 IndSCt) [Procedure]
Dickson, Justice
We granted transfer in this case to consider the relation-back of a cross-claim filed timely but where leave of court was not sought and granted until after the expiration of the statute of limitations. * * *
Rosemary Adams Huffman v. Indiana Department of Environmental Management, et al. (6/30/04 IndSCt) [Administrative Law]
Sullivan, Justice
The Indiana Office of Environmental Adjudication dismissed Rosemary Huffman’s petition for administrative review of a decision of the Indiana Department of Environmental Management renewing a pollution permit for Eli Lilly and Company. We hold, as did the Court of Appeals, that whether a person is entitled to seek administrative review depends upon whether the person is “aggrieved or adversely affected” (as provided in statute) by the administrative agency’s decision and that the rules for determining whether the person has “standing” to file a lawsuit do not apply. We also conclude that a portion of the Office of Environmental Adjudication’s determination that Huffman was not entitled to seek administrative review was not supported by substantial evidence. * * *

The dispute in this case – whether Huffman is a proper party to seek administrative review – involves both a question of law and a determination of whether the OEA’s decision was supported by substantial evidence. * * *

Huffman takes the position that the common law doctrine of “public standing” would provide her standing to invoke judicial review in a trial court. * * * We hold that the statute, and only the statute, defines the class of persons who can seek administrative review of agency action.

With this understanding in mind, we now turn to whether the OEA properly found that Huffman is not aggrieved or adversely affected. We conclude that some of the OEA’s findings are not supported by substantial evidence. This conclusion is largely based on the procedural treatment given Lilly’s Motion to Dismiss. * * *

If the administrative law judge intended to apply Indiana’s trial rules, as Lilly requested by invoking Trial Rule 12(B)(1), the motion should have been treated as a 12(B)(6) motion. The question here is whether Huffman is a proper person to challenge Lilly’s permit and not whether IDEM has subject-matter jurisdiction over challenges to the permits it issues. IDEM always has jurisdiction over such challenges, and that does not change depending upon the petitioner. The standard for a 12(B)(6) motion is that articulated by the Court of Appeals:

In reviewing a Rule 12(B)(6) motion, a court is required to take as true all allegations upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint. This Court views the pleadings in a light most favorable to the nonmoving party, and we draw every reasonable inference in favor of that party.
Huffman, 788 N.E.2d at 510 * * * [Here the Court concludes that] the OEA’s dismissal of Huffman’s Petition for Administrative Review was not supported by substantial evidence.

Conclusion. We affirm the OEA’s dismissal of Huffman’s claim as it relates to potential property damage and reverse as it relates to health problems. We remand to the trial court with instructions to remand to the OEA for further proceedings consistent with this opinion.

Shepard, C.J., and Boehm and Rucker, JJ., concur. Dickson, J., concurs in result without opinion.

Posted by Marcia Oddi at 02:04 PM

Indiana Decisions - One Tax Court Decision Posted

Guardian Automotive Trim, Inc. v. Indiana Department of State Revenue (6/30/04 IndTaxCt) [Sales/Use Tax Exemptions]
Fisher, J

Guardian Automotive Trim, Inc. (Guardian) appeals the final determination of the Indiana Department of State Revenue (Department) denying it several exemptions from sales and use tax for mask processing equipment and supplies it acquired during the 1993, 1994, and 1995 tax years (the years at issue). * * *

Guardian acquired equipment and chemicals for direct use in its manufacture of automotive trim parts. As a result, it is entitled to claim an exemption from sales and use taxes under both the equipment exemption and the consumption exemption. See Ind. Code Ann. §§ 6-2.5-5-3 and 6-2.5-5-5.1. The Department’s final determination is, therefore, REVERSED.

Posted by Marcia Oddi at 01:55 PM

Indiana Decisions - Nine More Court of Appeals Opinions Today

Celleco Partnership, et al. v. Indiana Utility Regulatory Commission, et al. (6/30/04 IndCtApp) [Utilities; Trade Secrets]
Baker, Judge

Today we hand this case down along with a related case, Indiana Bell Telephone Co., Inc. d/b/a SBC Indiana, v. Indiana Utility Regulatory Commission , et al. No. 93A02-0306-EX-484 (Ind. Ct. App. June 30, 2004). [See next case] Appellants-petitioners Cellco Partnership, et al., (collectively, the Wireless Carriers) appeal an order issued by the Indiana Utility Regulatory Commission (IURC), which determined that intrastate revenues generated by the Wireless Carriers are disclosable public records and are not subject to trade secret protection. Furthermore, as in the SBC case, the Wireless Carriers maintain that the IURC erred in departing from established precedent regarding confidentiality of certain data without setting forth its reasons for doing so. Concluding that no reversible error occurred, we affirm the IURC’s order. * * *

When construing this portion of the order in conjunction with the remaining findings and conclusions, it is apparent that the IURC has fully examined the issues in this case, and it has made relevant factual findings in support of the judgment. Moreover, as explained in the findings, only a minority of the telephone companies has sought confidential treatment of the survey and the reports. The companies also have not shown consistency in requesting that the same information in different public records be treated as confidential. Additionally, not all of the companies requesting confidential treatment of the material have made the same confidentiality request for the reports in years past. In our view, the IURC got it right when it concluded that such a lack of unanimity or consensus as to the need for confidentiality, along with the lack of consistency in seeking confidential treatment for the same information, are factors that weigh against a finding that the various responses should be excepted from public disclosure. As a result, we reject the Wireless Carriers’ claim that the IURC failed to adequately explain why it chose to take a different approach and depart from its prior treatment of this data. Judgment affirmed.
ROBB, J., concurs.
BARNES, J., concur in result with opinion.

I concur in result with the majority’s opinion. Relying on the IURC’s categorization of the information that the Wireless Carriers sought to keep confidential, the majority concluded that such information constituted confidential information filed with a public agency and was subject to disclosure pursuant to Indiana Code Section 5-14-3-4(a)(5). I disagree with the majority’s assertion that confidential financial information filed with a public agency is subject to disclosure even if that same information constitutes a trade secret. * * *

Based on the minimal contents of the affidavits provided by the Wireless Carriers, they have not established that the intrastate revenues are protectable trade secrets subject to the disclosure exception in Indiana Code Section 5-14-3-4(a)(4). For this reason, I concur in result.

Indiana Bell (SBC) et al. v. Indiana Utility Regulatory Commission, et al. (6/30/04 IndCtApp) [Utilities; Trade Secrets]
Baker, Judge
Today we hand down two cases addressing the issue of whether certain information provided to the Indiana Utility Regulatory Commission (IURC) by telephone companies should be afforded trade secret or confidential information protection. In this case, appellant-petitioner Indiana Bell Telephone Company, Inc., d/b/a SBC Indiana (SBC) appeals from an order issued by the IURC denying its request to maintain the confidentiality of certain business data that had been submitted to the IURC. Specifically, SBC maintains that the order should have been granted because the information provided to the IURC constituted competitively sensitive trade secret material and a preliminary ruling had been made determining that the same information had been entitled to confidential treatment in an IURC order that was not challenged by any SBC competitor. SBC also argues that the order is contrary to law because the IURC failed to set forth its reasons for deviating from the rebuttable presumption that SBC’s information was entitled to trade secret protection.

Based upon our review of the record, we conclude that the findings were sufficient to support the IURC’s determination that the SBC information did not constitute trade secrets that is protected from public disclosure. We also observe that the IURC’s rationale set forth in the order for departing from established precedent that there is a rebuttable presumption that SBC’s data was entitled to trade secret protection does not warrant a reversal. Thus, we affirm the judgment of the IURC. We similarly hold in a companion case, Cellco Partnership et al. v. Indiana Utility Regulatory Commission, No. 93A02-0307-EX-639 (Ind. Ct. App. June 30, 2004). * * *

Judgment affirmed.
ROBB, J., concurs.
BARNES, J., dissents with opinion.

I respectfully dissent. I am not comfortable with affirming the IURC’s decision by relying on its assessment of an outside-the-record document that this court cannot review. * * * I decline to jump on the “competition” train without the sufficient tracks of on-the-record evidence being present. I would reverse the IURC’s order denying trade secret protection to the information SBC seeks to keep confidential.

Metropolitan Development Commission of Marion County v. Pinnacle Media, LLC (6/30/04 IndCtApp) [Zoning]
Friedlander, Judge
The Metropolitan Development Commission of Marion County (the Commission) and the Department of Metropolitan Development of the City of Indianapolis (the DMD) (referred to collectively as “the City”) appeal the grant of summary judgment and the award of attorney fees in favor of Pinnacle Media, LLC (Pinnacle) on Pinnacle’s complaint for declaratory judgment. The City presents the following restated and consolidated issues for review: Did the trial court properly grant summary judgment in favor of Pinnacle? Did the trial court abuse its discretion in awarding attorney fees to Pinnacle pursuant to IC 34-52-1-1? We affirm in part and reverse in part. * * *

Under the specific circumstances presented in the instant case, we conclude that the vested rights doctrine applies to estop the City’s belated effort to acquire jurisdiction over construction of the signs in question. Consistent with the doctrine, a property owner should have the ability to survey the zoning laws as they exist at a particular time and determine with certainty which permitting authorities require an application. Once a property owner applies for the relevant building permits under the prevailing zoning laws, the owner’s rights vest as against other government units who subsequently attempt to intervene by enacting laws to assert jurisdiction (i.e., to require permits) over the subject matter of the pending permit applications. As our supreme court observed in a slightly different context, “A government which exercises such police power over the property of its citizens without any fixed standards which are known to the citizens and the enforcing officials is a government by men, and not by law.” Knutson v. State, 160 N.E.2d at 202.

The City alternatively argues that even if the doctrine of vested rights applies in this instance, the law in existence at the time Pinnacle applied for permits from INDOT forbade the erection of billboards on unzoned land. Over two years after the July 1999 letters and just before Pinnacle initiated litigation, the City notified Pinnacle that it now believed that the position expressed in the July 1999 letters was incorrect, as the City had previously not recognized the applicability of Indianapolis Rev. Code § 730-505(a)(1). The City argues that § 730-505(a)(1) applies to both unzoned land and zoned land. * * *

We initially ponder how a civil zoning violation could occur from the erection of a sign on unzoned property. The City does not satisfactorily answer this question. Moreover, an examination of Chapter 734, which provides the numerous sign regulations for Marion County, reveals that Chapter 734 governs only signs located within zoning districts in Marion County. * * * Reading § 730-505(a)(1) together with Chapter 734, it is clear that § 730-505(a)(1) applies only to signs within zoning districts in Marion County. As it is undisputed that Pinnacle’s proposed signs were not within a Marion County zoning district at the time the permit applications were filed with INDOT, § 730-505(a)(1) has no application in the instant case. The trial court properly granted summary judgment in favor of Pinnacle. * * *

Despite the fact that Pinnacle explicitly presented the City with its position that it had obtained a vested right, the City was not required to bow to Pinnacle’s interpretation of the law. The application of the doctrine of vested rights in this unusual context had not been addressed in Indiana and the cases supplied by Pinnacle were not directly on point. While the City ultimately lost on the merits, its defense that the doctrine does not apply between governmental units was not unreasonable, frivolous, or groundless.

We conclude that the trial court abused its discretion by awarding attorney fees to Pinnacle. We reverse that portion of the judgment, and affirm the award of summary judgment in favor of Pinnacle. Judgment affirmed in part and reversed in part.
KIRSCH, C.J., and BARNES, J., concur.

City of Mishawaka v. Marian Kvale (6/30/04 IndCtApp) [Real Estate]

Mortgage agreement dispute between City and Estate. Issue: "Whether the trial court’s grant of summary judgment in favor of the Estate was erroneous because, even if the mortgage agreements are void, the Estate is obligated to repay the balance due on the agreements under the equitable doctrine of quantum meruit."

"For the foregoing reasons, we affirm the trial court’s grant of summary judgment to the Estate on the issue of whether the real estate mortgage agreements are void but reverse on the issue of unjust enrichment. Affirmed in part and reversed in part."

Household Finance Corporation v. Kurt and Carolyn Ness (6/30/04 IndCtApp) [Real Estate]
Friedlander, Judge

Household Finance Corporation, Inc. (Household) appeals the denial of its Motion to Enjoin Disbursement of Funds and to Set Aside Sale in an action involving a sheriff’s sale at which the Appellees, Kurt and Carolyn Ness, purchased a residence. Household challenges the correctness of that ruling as the sole issue upon appeal. We affirm. * * *

Finally, in reaching our conclusion, we are mindful that this dispute involves the interests of other parties besides Household, most notably the Nesses. Relying upon the legitimacy of the sale, they took possession of the residence and have been living there ever since. This illustrates what is perhaps the most important reason why there is generally a strong public policy in favor of finality of judicial sales. See Smith v. Fed. Land Bank of Louisville, 472 N.E.2d 1298 (Ind. Ct. App. 1985). Those public policy considerations are best served if the burden of acquiring information about the required procedures for participating in a sheriff’s sale is placed upon the party with the greatest incentive to know them, viz., prospective bidders. In this case, that would be Household. Having determined that the equities do not support Household’s petition to set aside the sale, we conclude that the trial court did not err in denying Household’s motion.
Judgment affirmed.
KIRSCH, C.J., and SHARPNACK, J., concur

Andrew & Susan Verrall v. Eric & Tina Machura (6/30/04 IndCtApp) [Real Estate]
Friedlander, Judge
* * * Buyer’s fraudulent misrepresentation allegations regarding flooding in the basement are based upon the Disclosure Form. Indiana law requires a seller to provide a potential buyer with a disclosure form before an offer is accepted for the sale of residential real estate. * * *
Judgment affirmed in part and reversed in part.
KIRSCH, C.J., and BARNES, J., concur
Lanny D. Abney v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
In this interlocutory appeal, Lanny Abney appeals the trial court’s denial of his motion to suppress blood alcohol test results. Abney raises one issue, which we restate as whether the trial court erred by denying Abney’s motion to suppress his blood alcohol test results because Abney’s blood was drawn after the police had invoked the implied consent statute and Abney had refused to consent to the blood draw. We affirm. * * *

In summary, the withdrawal of Abney’s blood was obtained pursuant to the guidelines in the implied consent statutes, more specifically Ind. Code § 9-30-6-6(g). Therefore, the trial court did not err by denying Abney’s motion to suppress his blood alcohol test results that were obtained after Abney had refused to submit to a chemical test under the implied consent statutes.
For the foregoing reasons, we affirm the trial court’s denial of Abney’s motion to suppress. Affirmed.
DARDEN, J. and ROBB, J. concur

Kimberly S. Ham v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Kimberly S. Ham appeals her conviction for Operating a Vehicle While Intoxicated, a class C misdemeanor. Specifically, Ham argues that the conviction may not stand because the trial court erred in giving a final instruction which provided that “a defendant’s refusal to submit to a chemical test may be considered as evidence of intoxication.” Ham asserts that the instruction was an incorrect statement of the law and that it unduly emphasized one evidentiary fact pertaining to her guilt regarding the charged offense.

We conclude that the trial court erred in tendering this instruction to the jury, and we thus admonish our trial courts to refrain from giving this type of instruction in the future. However, in light of the overwhelming evidence presented at trial establishing Ham’s guilt, we hold that the instruction constituted harmless error. Therefore, we affirm the judgment of the trial court.
FRIEDLANDER, J., concurs.
BAILEY, J., concurs in result with opinion.

I concur in the majority’s determination that the jury properly convicted Ham of operating a vehicle while intoxicated, a Class C misdemeanor. See footnote However, I disagree with the majority’s conclusion that the trial court abused its discretion by instructing the jury that “a [d]efendant’s refusal to submit to a chemical test may be considered as evidence of intoxication.” * * *

Percy Dawson v. State of Indiana (6/30/04 IndCtApp) [Criminal Law & Procedure]
Percy Dawson appeals the post-conviction court’s denial of his petition for post-conviction relief. Affirmed.

Posted by Marcia Oddi at 01:53 PM

Indiana Decisions - Two 7th Circuit Opinions Today

COMMODITY FUTURES TRADING COMM. v. ZELENER, MICHAEL (ND Ill.)

Before EASTERBROOK, KANNE, and ROVNER, Circuit
Judges.
EASTERBROOK, Circuit Judge. This appeal presents the question whether speculative transactions in foreign currency are “contracts of sale of a commodity for future delivery” regulated by the Commodity Futures Trading Commission. 7 U.S.C. §2(a)(1)(A). Until recently almost all trading related to foreign currency was outside the CFTC’s remit, even if an equivalent contract in wheat or oil would be covered. * * * These transactions were, in form, spot sales for delivery within 48 hours. Rollover, and the magnification of gain or loss over a longer period, does not turn sales into futures contracts here any more than it did in Nagel and Lachmund. The judgment of the district court therefore is AFFIRMED.
OBLIX, INCORPORATED v. WINIECKI, FELICIA (ND Ill.)
Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * But there is little point in telling them to arbitrate the doomed “unconscionability” argument, which has been rejected in this circuit as often as it has been raised. * * * Agreements to arbitrate employment-related subjects, including claims of employment discrimination, are treated the same for this purpose as agreements to arbitrate labor- relations matters, building leases, disputes about patent royalties, and controversies among participants in reinsurance treaties. * * * The decision of the district court is reversed, and the case is remanded with instructions to refer the parties to arbitration and dismiss Winiecki’s counterclaim.

Posted by Marcia Oddi at 12:43 PM

Indiana Decisions - Reports on Yesterday's Decisions

Two stories in the Indiananpolis Star today on yesterday's rulings:

This brief story begins: "The Indiana Supreme Court ruled Tuesday that employers can't be held liable if they are negligent and give out misleading information when providing job references." The case, Mark R. Passmore v. Multi-Management Services (6/29/04 IndSCt) is among those summarized yesterday (scroll down).

"Child limit on medical-malpractice suits ended" is the headline to this story. Some quotes:

The Indiana Court of Appeals has struck down a section of the state's medical-malpractice law that limited when a lawsuit could be filed on behalf of a child injured in a medical procedure.

In a unanimous ruling Tuesday, a three-judge panel said the part of Indiana's Medical Malpractice Act that applies to the statute of limitations for children is unconstitutional.

Current law requires that a medical-malpractice claim must be filed within two years, except for children younger than age 6, who have until their eighth birthday to file suit. In other legal actions, children have until age 20 -- or two years after they become an adult -- to file a lawsuit. * * *

The appellate judges agreed that the law creates two different standards and is thus unconstitutional. * * *

In 1999, the Indiana high court struck down another part of the malpractice law -- also dealing with the statute of limitations. The court said Hoosiers aren't bound by the two-year statute of limitations if they don't know they've been hurt by malpractice.

The case, Marsha Ledbetter v. Robert Hunter, et al. (6/29/04 IndCtApp) is among those summarized yesterday (scroll down).

Posted by Marcia Oddi at 07:31 AM

June 29, 2004

Indiana Law - Impact of Miranda Ruling on Indiana?

"Tactic of Delayed Miranda Warning Is Barred" is the headline to this Linda Greenhouse report in the NY Times today. She writes:

The Supreme Court on Monday rejected a police interrogation tactic designed to induce suspects to give incriminating statements after purposely delaying Miranda warnings.

The tactic, taught in police training courses, has been growing in popularity, and the Supreme Court decision, a murder case from Missouri, was consequently eagerly awaited by both prosecutors and defense lawyers. * * *

Under the tactic the court invalidated in the Missouri case, the police first question a suspect while withholding the advice required by the Miranda decision of the right to remain silent and to consult a lawyer before answering questions. In not giving the warnings, the police know that any incriminating statements elicited in this phase of the questioning will be inadmissible in court.

The officers then give the suspect a short break before resuming the interrogation, this time with the warnings. Typically, suspects will waive their Miranda rights and then repeat what they had said earlier, prompted by the officers' leading questions and by the sense that it is now too late to turn back.

The issue for the Supreme Court on Monday was whether the answers from that second phase of questioning could be used in court, and the majority's answer was no. Justice Souter said the facts of this case "by any objective measure reveal a police strategy adapted to undermine the Miranda warnings." He said the police had created a situation for the defendant, a woman suspected of murder, "in which it would have been unnatural to refuse to repeat at the second stage what had been said before."

The decision is Missouri v. Seibert, No. 02-1371.

What about Indiana? A story today in the Indianapolis Star reports "Local police say ruling will not change policies." Some quotes:

Representatives of the three major police departments in Indianapolis and Marion County said Monday that the court decision would not change the way they handle interrogations and investigations.

Indianapolis police, Indiana State Police and the Marion County Sheriff's Department all said their investigators and officers are ordered to give Miranda warnings when an investigation starts, so those departments do not need to change their policies. On Monday, the U.S. Supreme Court said it was usually improper to interview a criminal suspect twice, giving him the Miranda warning against self-incrimination only before the second interview.

Posted by Marcia Oddi at 04:57 PM

Law - More on Blakely

FindLaw.com has just posted this article, titled "A Significant Decision that May Not Matter: The Supreme Court Holds That Only Juries, Not Judges, Can Make the Factual Determinations That Increase Sentences," by Sherry F. Colb, a Professor at Rutgers Law School.

Posted by Marcia Oddi at 03:42 PM

Indiana Decisions - 13 Court of Appeals Decisions Today

Kenneth Reed, et al. v. Munster Plan Commissioner & Town Council (6/29/04 IndCtApp) [Civil Procedure]
Baker, Judge

[The Reeds appeal the trial court’s order dismissing the Reeds’ claims against appellees for lack of standing with regards to a zoning challenge.] Specifically, the Reeds assert that they have standing because the zoning ordinance and the amendatory ordinance rezoning the subject property are town-wide in their application. Finding that the trial court correctly held that a one-half mile distance from the Reeds’ home to the disputed property was too far to confer standing, we affirm. * * *

In the case before us today, the trial court found that the Reeds’ home is approximately one-half mile away from the rezoned property, which is a greater distance of separation than that found in [Bagnall v. Town of Beverly Shores (Ind. 2000)]; therefore, the record supports the trial court’s determination that the Reeds failed to show that they were aggrieved by the rezoning due to their proximity. We also agree with the trial court’s determination that the Reeds failed to allege injuries that “are somehow unique to them as a result of the rezoning.” In essence, the Reeds allege increased traffic and various environmental concerns but no special injury other than that which would be sustained by the community as a whole.

That said, the distinction that the Reeds make that the Bagnall court reviewed a variance—which is local in nature—and the action that they today petition the court to review is a rezoning—which is town-wide—is not persuasive. IC 36-7-4-1003(a) cited above, which provides that persons aggrieved have standing to petition for a writ of certiorari, applies to decisions of the legislative body as well as the board of zoning appeals. Similarly, the declaratory judgment statute, IC 34-14-1-2, that requires a person to be affected, applies to statutes or municipal ordinances, which displays our legislature’s intent that it apply to decisions that are town-wide.
Finally, the Reeds cite to Borsuk and Lake County Trust Company v. Town of St. John in an attempt to solidify their argument that a rezoning dispute can be challenged by a petition for writ of certiorari. 800 N.E.2d 217 (Ind. Ct. App. 2003). However, Borsuk involved a landowner challenging a zoning decision affecting his own property, and it is therefore not persuasive in determining whether the Reeds have standing in this case. Moreover, we note that our supreme court has granted transfer on Borsuk, and therefore it lacks precedential value.

Finally, because we hold that the Reeds lack standing to bring judicial review, we need not address whether notice was sufficiently provided for those who do have standing to request a judicial review of the rezoning. As a result, we conclude that the trial court’s dismissal of the Reeds’ action was proper.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur

Billy Julian v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]

City of Gary, et al. v. Michael Conat (6/29/04 IndCtApp) [Alternative Dispute Resolution]

Deborah Wilkinson v. Robert Swafford (6/29/04 IndCtApp) [Torts; Evidence]

Karen L. Vannatta v. Patricia Chandler, et al. (6/29/04 IndCtApp) [Civil Procedure]
Darden, Judge

On July 9, 2003, Scheetz filed a motion to dismiss the Hamilton Superior Court complaint "pursuant to Trial Rule 12(B)(8) of the Indiana Rules of Trial Procedure," arguing that the claims asserted by Vannatta therein concerned the "same residential real estate transaction" and involved "the same facts and parties as the action pending in the Marion Superior Court." Vannatta opposed the motion, arguing that it was "not the same action" because this was "a tort case" whereas the Marion Superior Court case was "a breach of contract case"; there were "different defendants"; and the Knoxes' presence was "not needed for just adjudication" of the tort case against Scheetz. Scheetz's reply asserted that Vannatta sought "the same remedy against the Knoxes in the Marion Superior Court suit as . . . against [Scheetz] in the [Hamilton] Superior Court case" and that the parties were "substantially the same in both suits." * * * Vannatta contends that the trial court erred in granting Scheetz's T.R. 12(B)(8) motion to dismiss "because the cases are not the same." We agree. * * *

Scheetz does not dispute that the Hamilton Superior Court has subject matter jurisdiction to consider the tort claim brought by Vannatta; nor does it dispute the court's personal jurisdiction and jurisdiction of the case. The facts before us lead us to conclude that neither the parties, the subject matter nor the remedies of the two actions brought by Vannatta are "substantially the same" so as to warrant invocation of T.R. 12(B). Therefore, we cannot find that T.R. 12(B)(8) prevents Vannatta from pursuing her causes of action against different defendants in two different courts. Accordingly, we find that the dismissal with prejudice was error and must be reversed. We reverse.
SHARPNACK, J., and BAILEY, J., concur|

Short on Cash.Net of New Castle v. Department of Financial Institutions (6/29/04 IndCtApp) [ ]
Bailey, Judge
Appellant-Respondent Short on Cash.Net of New Castle, Incorporated (“Short on Cash”) appeals the trial court’s grant of a preliminary injunction in favor of Appellees-Petitioners Department of Financial Institutions (“Department”) and Steve Carter, Attorney General of Indiana (collectively referred to as “Appellees”). We affirm.

Issue. [W]hether the trial court abused its discretion by, first, invoking the per se rule applicable to preliminary injunctions because Short on Cash is not in the business of issuing small loans and, therefore, its business operations do not violate Indiana Code Section 24-4.5-7-410 and, second, granting the petition for preliminary injunction absent a showing of irreparable harm. * * *

Lastly, the evidence shows that Short on Cash is located in the same building, uses the same phone number, and has the same principal and president as a small loan business known as Short on Ca$h. Short on Ca$h offered small loans to consumers “with contractual provisions for a single payment due approximately two weeks after the loan was made.” This evidence supports the trial court’s finding that Short on Cash’s sale of Internet service is merely a guise for its operation as a small loan business. Thus, Short on Cash, which operates without a usury license, is in violation of Indiana Code Section 24-4.5-7-410. Accordingly, the trial court did not err when it invoked the per se rule in this case and, therefore, did not abuse its discretion when it granted the preliminary injunction in favor of Appellees in the absence of a showing of irreparable harm. For the foregoing reasons, we affirm the trial court’s grant of a preliminary injunction. Affirmed.
BAKER, J., and FRIEDLANDER, J., concur

Donna K. Stites v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]
Crone, Judge
* * * Following our decisions in Sinn, Thompson, and Badger, we reverse the denial of Stites’s amended petition for post-conviction relief and vacate her conviction and sentence. The State may reprosecute Stites for Dutell’s murder. Reversed.
BAKER, J., and BARNES, J., concur
In the Matter of the Adoption of M.L.L., Mary Ann Lowe v. Jeffrey White (6/29/04 IndCtApp) [Family Law]
Najam, Judge
* * * Indiana Code Section 31-19-9-2 provides in relevant part that a consent to adoption “may be executed at any time after the birth of the child either in the presence of: (1) the court; [or] (2) a notary public . . . .” Because the evidence shows that Lowe executed her consent in the presence of a notary public, her consent is valid. The trial court did not err when it granted the Whites’ adoption petition. Affirmed.
RILEY, J., concurs.
KIRSCH, C.J., concurs with separate opinion.

* * * I write separately only to note the anomaly in Indiana law that provides extensive protections for parents whose parental rights are being involuntarily terminated, but that provides almost no protections for parents who are voluntarily terminating their rights through adoption. On the one hand, we provide counsel, notice and hearing, and the full panoply of rights to individuals who have abused or neglected their children; on the other, we provide no protection for the parent who believes she is acting in the best interests of her child in giving the child up for adoption. A homeowner who buys home improvements through a conditional sales contract has the right to disclosures and the right to rescind the contract within a specified period of time. Shouldn’t we provide as much protection to a parent who is giving up her child for adoption as we do to a person buying vinyl siding?

Avemco Insurance Company, et al. v. Sally McCarty, et al. (6/29/04 IndCtApp) [Insurance]
Riley, Judge
Appellants-Defendants, Avemco Insurance Company, HCC Life Insurance Company, and Pacific Life Insurance Company (collectively, the “medical stop loss insurers”), appeal the trial court’s Order granting Appellee-Plaintiff, State ex rel. Sally McCarty, Commissioner of Insurance for the State of Indiana (the Commissioner), complaint for preliminary injunction and entry of injunctive relief in her favor. We affirm
Marsha Ledbetter v. Robert Hunter, et al. (6/29/04 IndCtApp) [Medical Malpractice; Constitutional Law]
Riley, Judge
[Plaintiff, Marsha Ledbetter] appeals the trial court’s Order in favor of [Defendants, Robert Hunter, M.D., Lawrence Benken, M.D. and Ball Memorial Hospital]dismissing Ledbetter’s medical malpractice claim under the Privileges and Immunities Clause of the Indiana Constitution. We reverse and remand for further proceedings.

ISSUE. Ledbetter raises one issue on appeal, which we restate as follows: whether the trial court erred in dismissing Ledbetter’s medical malpractice claim, holding that the statute of limitations for minors, contained in the Indiana Medical Malpractice Act, did not violate the Privileges and Immunities Clause of the Indiana Constitution. * * *

Based on our analysis of the evidence under Collins’ two-pronged test, we conclude that the classification between minors injured by medical malpractice and minor victims of other torts is no longer reasonably related to the goal of maintaining sufficient medical treatment and controlling malpractice insurance costs. See Collins, 644 N.E.2d at 80. Furthermore, we find that within the class of minors injured by medical malpractice, not all minors are all treated equally. See id. Consequently, we hold that the Indiana Medical Malpractice Act’s statute of limitations as it applies to minors, violates the Privileges and Immunities Clause of the Indiana Constitution, and thus we declare it to be unconstitutional.

CONCLUSION. Based on the foregoing, we conclude that the trial court erred in dismissing Ledbetter’s medical malpractice. Reversed and remanded, for further proceedings consistent with this opinion.
KIRSCH, C.J., and NAJAM, J., concur

Donna Schriber v. Anonymous & Eagle Care Inc., et al. (6/29/04 IndCtApp) [ ]

Randall & Ramona Farr v. Laidig Concrete, Inc. [Master/Servant]

Roy Britt v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

* * * Once the State established possession of marijuana by cultivation, I.C. § 35-48-4-11(2), it also established possession of marijuana, I.C. § 35-48-4-11(1). Thus, the two offenses are not distinct offenses under the same elements test. Indiana Code Section 35-38-1-6 prohibits the entry of judgment for “an included offense.” Here, possession of marijuana is the included offense because it is established by less than all the elements required to establish possession of marijuana by cultivation. Accordingly, we remand to the trial court with instructions to vacate the conviction and sentence for Count II, possession of marijuana. Affirmed in part; remanded with instructions.
BAKER, J., and FRIEDLANDER, J., concur

Posted by Marcia Oddi at 01:57 PM

Indiana Decisions - Four Supreme Court Decisions Today

Sharon Baker v. Marion County Office of Family & Children (6/29/04 IndSCt) [Family Law]
Shepard, Chief Justice

Mother and Father lost parental rights during a termination proceeding. Their appeal centers on the claim that the trial court did not adequately inquire about their decision to go forward with representation by the same lawyer. They contend that without an adequate demonstration that they understood the consequences of joint representation their right to counsel was violated. They say this right should be judged not by the test of Strickland v. Washington, so often transplanted from criminal law to parental termination cases, but rather by a standard that would make it easier for parents who lose at trial to gain a second one. We conclude otherwise, seeing the question as one of assuring due process in a setting that is dramatically different from criminal proceedings. * * *

There is nothing to suggest that representation by a single lawyer led to a fundamentally unfair hearing.

Conclusion. We affirm the decision of the trial court.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., not participating.

Infinity Products, Inc. v. Herbert Quandt (6/29/04 IndSCt) [Trade Secrets]
Shepard, Chief Justice
Four days after T.E. Scott, Inc. fired Herbert Quandt, he began working for Fabri-Tech doing the same sort of work. Infinity Products, T.E. Scott’s successor, eventually sued Quandt and Fabri-Tech alleging that Quandt used stolen trade secrets to lure Infinity customers to Fabri-Tech. The trial court held that Quandt was liable for misappropriating and converting Infinity’s trade secrets and that Fabri-Tech was not.

We first address whether Fabri-Tech was directly liable under Indiana’s Trade Secrets Act ("the Act"). Second, we examine whether Fabri-Tech can be vicariously liable under the Act through the doctrine of respondeat superior. * * *

While Quandt’s disregard of Fabri-Tech’s pricing procedure is suspicious, the state of the evidence was such that the trial court could respectably regard it as inadequate to demonstrate that Fabri-Tech knew or should have known of the misappropriation. As Quandt was not prevented from contacting Infinity’s customers, Fabri-Tech was not prevented from authorizing him to do so. There is no evidence indicating that Fabri-Tech instructed Quandt to use trade secrets to lure Infinity customers away. Based on these facts, neither the trial court’s findings nor judgment is erroneous. The court’s judgment is not contrary to law, and we affirm the trial court on this issue. * * *

As Infinity correctly points out, respondeat superior is a common law doctrine under which liability is imposed by law upon the master for acts done by the servant, regardless of the master’s complicity in the acts. Indeed, it may impose liability even when the master directed the servant to the contrary. Surely, this doctrine must be thought of as conflicting with the uniform act’s requirements [Indiana’s Trade Secrets Act] that a claimant demonstrate that the defendant “knows or has reason to know” that the trade secret at issue was acquired by improper means. [IC 24-2-3-2] It is thus displaced by the provisions of the uniform act. * * *

We conclude that the trial court correctly held that Fabri-Tech could not be held liable absent the proof of scienter required by the uniform act.

Conclusion. We affirm the trial court’s judgment for Infinity against Quandt and its judgment for Fabri-Tech against Infinity.
Sullivan and Boehm, JJ., concur.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs.

* * * The time-honored common law principle of an employer's respondeat superior liability for the acts of an employee done in the scope of employment is not "conflicting law of this state pertaining to the misappropriation of trade secrets." Ind. Code § 24-2-3-1(c). The Uniform Act's requirement that a claimant demonstrate the wrongdoer's scienter does not "conflict" with the imposition of vicarious liability of the wrongdoer's employer. To the contrary, the risk of such liability serves as an incentive for employers to discourage their employees from using misappropriated trade secrets. The doctrine of respondeat superior thus does not conflict with, but rather fosters, the purposes of the act. * * * I would reverse the trial court and find that Fabri-Tech can be held vicariously liable for Quandt's misappropriations done in the scope of employment.
Rucker, J., concurs

Mark R. Passmore v. Multi-Management Services (6/29/04 IndSCt) [Torts; Employment Law]
Shepard, Chief Justice
A nursing home hired a new worker in part on the basis of a favorable recommendation from his former employer. The claim is that this worker assaulted a patient. The patient asserts that the former employer wrongly gave a favorable recommendation and thus should be liable for the injury. The Court of Appeals affirmed summary judgment for the former employer, holding that there is no basis for liability running to patients of other nursing homes. We hold that former employers may be liable for knowing misrepresentation, adopting § 310 of the Restatement (Second) of Torts. * * *

On the other hand, we think it rather obvious that declaring employers liable for negligence in providing employment references will lead universally to employer reluctance to provide any information other than name, rank, and serial number. Only those employers dull-witted enough to issue free-wheeling assessments without calling their lawyers would supply any but the most rudimentary information. A legal policy that discourages providing assessments to subsequent employers will not make for safer nursing homes, or other safe workplaces, for that matter. We therefore decline to adopt § 311 as it applies to employment references. It was appropriate to grant judgment to Lee Alan on Passmore’s claim of negligent misrepresentation.

Conclusion. We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

State of Indiana v. Steve Boles, et al. v. Frontier Insurance Company, et al. (6/29/04 IndSCt) [Statutory Construction]
Sullivan, Justice

Nine defendants failed to appear in court and, pursuant to statute, the clerk of the court imposed late surrender fees on the sureties representing the defendants. The trial court vacated the fees because notice of the appearance date was not provided to the sureties and because the fees were not imposed by court order. We reverse, finding that notice of the appearance date was not required, and that the clerk has the requisite authority, to impose late surrender fees. * * *

We find that notice to a bail agent or surety under Section 8(a) [of IC 27-10-2] is not required in order to impose late surrender fees upon a bail agent or surety under Section 12(c) [of IC 27-10-2] or to find a forfeiture of a bond under Section 12(d). We also find that the clerk of the court has the authority to impose late surrender fees. Having previously granted transfer, Ind. Appellate Rule 58(A), we reverse the judgments of the trial court in these nine cases and remand them to the trial court to review its orders vacating the late surrender fees.
Dickson, Boehm, and Rucker, JJ., concur. Shepard, C.J., is not participating.

Posted by Marcia Oddi at 01:54 PM

Indiana Decisions - Seven 7th Circuit Opinions Today

BERTRAND, DANIEL v. OSWALD, THEODORE W. (ED Wis. )

Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. * * * The circumstances that we have narrated demonstrate a high probability that some, maybe all, of the jurors who tried Oswald were biased. It is not just what Klitzka said or what Schuenke said; those were merely the most dramatic indications that, as the judge obviously realized, the process of jury selection was being poisoned. The question is whether, given the indications of jury bias, the judge’s inquiry was adequate. From the case law we distill the principle that adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. * * *

The order of the district court that Oswald be either retried or released is therefore AFFIRMED.

EVANS, Circuit Judge, dissenting. The majority, in bolstering its decision, draws on an example we mentioned in Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985), observing that if police have an airtight case they nevertheless cannot take an obviously guilty defendant “directly to the penitentiary on the ground that a trial would be a waste of time for someone so patently guilty.” But is this what happened here? No. Is this even remotely close to what happened here? No, again. Fifty prospective jurors were questioned over 4 days; the state trial judge granted 21 out of 27 of Oswald’s challenges for cause of potential jurors; the jury heard from numerous witnesses and examined many exhibits during the 3 weeks it took to complete the trial. Yet today, the court orders new tickets to this old show for reasons that, in my view, cannot support such a drastic step. * * *

CARLSON, PHILLIP D. v. GORECKI, MARY E. (ND Ill.)
Before FLAUM, Chief Judge, and MANION and ROVNER, Circuit Judges.
MANION, Circuit Judge. Phillip Carlson and Thomas Smith worked as special investigators for the Kane County, Illinois, State’s Attorney’s office. In December 2000, defendant Mary Gorecki, the Kane County State’s Attorney, fired Carlson and Smith allegedly because of their speech on matters of public concern, namely, their support of Gorecki’s opponent in the election and their allegations that Gorecki was involved in various jobs-for-favors and kickback schemes. Carlson and Smith filed this action under 42 U.S.C. § 1983, asserting that Gorecki’s decision to fire them violated the First Amendment. After discovery, Gorecki filed a motion for summary judgment asserting that Carlson and Smith occupied policymaking or confidential positions and that she was entitled to qualified immunity. The court denied Gorecki’s motion. She appeals, and for the following reasons, we affirm.
INDORANTO, KIM v. BARNHART, JO ANNE, SOC. SEC. (ND Ind., Magistrate Judge Springmann) Social Security disability denial reversed.

KIRCHER, CARL v. PUTNAM FUNDS TRUST (SD Ill.)Before EASTERBROOK, EVANS, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * Contending that the fund and its investment adviser (Putnam Investment Management) had engaged in misconduct that reduced the value of their shares, plaintiffs filed suit in state court, invoking state law alone. They propose to represent a class of the Fund’s investors. By forswearing reliance on federal law plaintiffs hope to avoid the strictures of federal statutes such as the Private Securities Litigation Reform Act of 1995. Similar maneuvers by other investors in the wake of the 1995 statute led Congress to enact the Securities Litigation Uniform Standards Act of 1998. This statute, usually known by its ungainly acronym SLUSA, blocks many class actions based on state law when the issuers are covered by the federal securities laws. Preemption normally is an affirmative defense, to be evaluated by the court in which the plaintiff elects to sue. * * *

We recognize that two courts of appeals have held that disputes about the application of §77p and §78bb cannot be resolved by federal appellate judges. * * * Both the second and the ninth circuits were mesmerized by the word “jurisdiction” and did not see the difference between a case that never should have been removed and a case properly removed and remanded only when the federal job is done. * * *

The appeal is within our appellate jurisdiction and will proceed to briefing and decision on the merits.TICE, ROBERT H. v. AMERICAN AIRLINES IN (ND Ill.)

Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The plaintiffs in this suit under the Age Discrimination in Employment Act are 14 American Airlines pilots who, having reached age 60 and thus become disqualified (by virtue of a regulation of the Federal Aviation Administration that is not challenged) to pilot the airline’s planes, claim the right to downgrade to the position of flight officer. Some of American’s aircraft have three pilots in the cockpit—the captain, the first officer (copilot), and the flight officer. The flight officer must ordinarily be a pilot, but his duties do not involve flying the airplane; instead they involve monitoring the plane’s fuel, electrical, and other systems. American refuses to permit a captain who has been disqualified as a pilot to downgrade to flight officer. The plaintiffs, all former captains, contend that this refusal violates the age discrimination law.

American replies that the refusal has nothing to do with age, but rather is compelled by its collective bargaining agreement with the plaintiffs’ union, which establishes an “up or out” policy: a flight officer who cannot qualify for a higher position cannot remain in the cockpit. * * *

The System Board of Adjustment found that American had for many years followed the “up or out” practice, that the union had acquiesced, and that the practice had become an implied term of the parties’ collective bargaining agreements. The plaintiffs challenge the correctness of this ruling, but we have no power to review an arbitral ruling for error. As long as what the arbitrators did can fairly be described as interpretation, our hands are tied. Since the interpretation of a collective bargaining agreement “includes the power to discover [implied] terms,” and practices can through acquiescence by the parties “create an implied obligation,” the arbitrators’ conclusion that American’s “up or out” policy was an implied term of the collective bargaining agreement was interpretive and therefore binds us. AFFIRMED.

USA v. HENTON, DAVID L. (ND Ill.) "Henton appeals, arguing that his recidivism should have been charged in the indictment and proven beyond a reasonable doubt and that the district court erred when it determined that his 1993 state drug conviction qualified as a 'serious drug offense' under ACCA. We affirm."

USA v. VALLEJO, JOSE (ND Ill.) Enhancement to defendant's sentence affirmed.

Posted by Marcia Oddi at 12:38 PM

Environment - Stories today

Martinsville Cleanup. "Workers begin toxic cleanup in Martinsville: Environmental company's project to decontaminate soil, water polluted by dry-cleaning solvent could take 3 to 5 years" is the headline to this story today in the Indianapolis Star. Some quotes:

MARTINSVILLE, Ind. -- Years after a dry-cleaning solvent contaminated Martinsville's air, soil and water, an Indianapolis environmental company has started cleaning up the mess. * * *

"That contamination has been common knowledge for many years," said Tom Tackett, director and pastor of Manna Mission, a homeless shelter just north of the work site. "It is sad that it took this long to get anything going."

City, state and federal officials believe Masterwear Corp., a former industrial dry-cleaning company, contaminated soil behind its plant with perchloroethylene, or PCE. Masterwear used the solvent to clean oil from gloves and towels used by industries. The company closed 13 years ago.

State inspectors believe drums of contaminated oils and other chemicals stacked on bare ground behind the building rusted and leaked. Over time, the suspected cancer-causing chemical soaked into the ground and was carried by groundwater more than a mile to the city's wells.

The Star also publishes today a letter from Clarke Kahlo of the Hoosier Environmental Council. Some quotes:
In the Martinsville groundwater pollution case, state regulators at the Indiana Department of Environmental Management apparently took no meaningful preventive or corrective action despite citizen complaints. As a result of IDEM's laxity during the Bayh and O'Bannon administrations, the water supply of the city of 12,000 people has been poisoned and the water customers will be stuck with the high cost of establishing the needed new wells. * * *

Overall responsibility for this agency inaction can be assessed to the two Democratic governors who administered our state programs during the period. In past years, a short-staffed IDEM has struggled to keep up with the workload and was often required to respond to political interference with its enforcement actions.

From the recent statements of the two major gubernatorial candidates regarding the need to encourage business, it appears that, if elected, either might further diminish the ability of our regulatory agencies to provide adequate protection. Thus Hoosiers shouldn't necessarily anticipate much improvement in our 48th ranking for environmental quality for the foreseeable future. However, if citizens speak out about our need for better policies, the candidates, and the next governor, are more likely to be responsive.

Clean Water Act Costs. The Fort Wayne Journal Gazette has a story today that begins:
Meeting federal clean water standards will cost cities in the Maumee River basin more than $1 billion, money local officials say the federal government needs to help provide.

Fort Wayne Mayor Graham Richard said Monday that a report examining the plight of the communities across northeast Indiana, southeast Michigan and northwest Ohio found that for all of them to come into compliance with the Clean Water Act, they would have to spend $1 billion for infrastructure such as sewage treatment plants and new sewer lines.

The cost for Fort Wayne is about $250 million, which officials plan to spend over the next 25 years separating storm sewers from sanitary sewers and increasing the sewage plant’s capacity. But they fear the U.S. Justice Department, which has already threatened the city with a lawsuit over its pollution of the Maumee, will order the timetable sped up or even more upgrades than are already planned.

Landfill. The Columbia City Post&Mail reports today that the county will buy the old landfill. This is a followup to a story we posted here on June 23rd. A quote:
Whitley County officials agreed informally last Friday to purchase property that was once used as a landfill by the county. The 38-acre tract, owned by the late Ben Lott, was to be auctioned Tuesday with four other tracts of land in the Lott estate, but subject to formal approval by the Whitley County Commissioners on Tuesday, the former landfill site will be sold to the county.

Attorney for the Lott estate, Hugo Martz said a purchase agreement for the property was signed early today by Ben Lott's estate representative, his wife Maxine Lott. Martz said Lott agreed to sell the property to protect it against potential harm. "We believe it is a win-win situation. The county now has control of the property and will protect it, assuring the landfill will not be disturbed in the future," Martz said.

The tract of land has been maintained by Whitley County and Lott in accordance with regulations placed on the it by the Indiana Department of Environmental Management since the landfill was closed in the mid- to late-1980s.

Posted by Marcia Oddi at 12:33 PM

Law - Supreme Court Ends Term

The Supreme Court issued its final decisions for the term today. For complete coverage of the Court's actions during the end-of-the-term whirlwind, check SCOTUSBlog here. For extensive coverage of yesterday's Hamdi, Padilla, & Rasul decisions, check this entry at Legal Theory Blog. Finally, this editorial in today's NY Times ends with this quote from Justice O'Connor's opinion in Hamdi:

"It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested," Justice O'Connor observed yesterday, "and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

Posted by Marcia Oddi at 12:17 PM

Law - Theft of Law Firm's Identity

Some quotes from the AP story:

WHITE PLAINS, N.Y. (AP) -- A paralegal embezzled nearly $600,000 by setting up a bank account under a name that was nearly identical to a New York law firm's, prosecutors said Monday. "This woman basically stole the identity of this law firm," Westchester County District Attorney Jeanine Pirro said. The law firm was Fish & Neave of Manhattan; the account was set up in the name "Fish Neave."

Posted by Marcia Oddi at 12:03 PM

Law - Lake County Illinois considers a mental health court

"Court would assist mentally ill: Lake considers move to reduce jail crowding" is the headline today to this story in the Chicago Tribune. Some quotes:

Faced with chronic jail overcrowding, Lake County officials are exploring whether to establish a special courtroom for mentally ill defendants who would receive treatment--even job counseling--instead of jail time. * * *

Dealing with a similar trend, officials in DuPage and Cook Counties have set up mental health courts. In DuPage, non-violent misdemeanor offenders are sent there, while Cook transfers non-violent felony cases.

DuPage State's Atty. Joseph Birkett said many of the defendants are homeless and unemployed, presenting workers with multiple challenges. "You have the opportunity to build up a treatment regimen so people get on their medications, obtain housing and a job, and instead of becoming a burden on the system, they become productive citizens again," he said.

At any given time, Birkett said, the court system deals with at least two dozen misdemeanor defendants who qualify for mental health court, where charges typically are dropped if the defendant fulfills the court-ordered treatment requirements. He said there has been only one case of recidivism involving an arrest for a non-violent offense.

The mental health court, initially set up on a trial basis in 2001, also has saved money for the criminal justice system, he said. "In Du Page County alone, we've saved tens of thousands of dollars in rearrests, housing them in jail, prosecution functions and the defense of these people, many of whom are indigent," Birkett said.

Posted by Marcia Oddi at 12:01 PM

June 28, 2004

Environment - Stories Today

Wetlands. "Owner seeks development at old tannery: Potential seen in New Albany wetland" is the headline to this story today in the Louisville Courier Journal.

Office of Environmental Adjudication Summer Hours. The OEA has issued this notice:

The State Personnel Department has requested agencies to implement an energy/water conservation plan for Summer, 2004 (June 28 - September 3). This conservation plan is similar to last year's plan, and is currently voluntary, unless blackouts are ordered. In order to comply with the June 25th Energy Conservation Guidelines for Summer 2004, the Office of Environmental Adjudication wishes to advise all persons who may appear before it of the following adjustments to office hours in compliance with the Conservation Guidelines.

1. OEA expects to continue to have at least one staff member in the office until 4:30 PM each day. Our office mates, the Indiana Education Employment Relations Board ("IEERB"), should have staff in the office until 5:00 p.m. EST each day. This person can receive pleadings or other documents until the office closes. However, as the majority of OEA staff will be complying with the Guidelines' provision that work hours be adjusted so that most staff leaves by 3:00 PM each work day, it may not be possible for IEERB's staff person to (1) answer questions regarding procedure or the court's calendar or (2) pull files for review or copying. Please plan accordingly.

2. The court will continue to file stamp pleadings with the date of postmark if the pleadings are sent by mail. However, any pleadings delivered by hand will be file stamped with the date that the court receives the pleadings.

3. The court, in its sole discretion, may accept pleadings that are filed one day late or three days late if the original due date was a Friday. This does not apply to Petitions for Review or answers to Requests for Admissions.

4. Contested hearings in progress may proceed after 3:00 PM.

If you have any questions or complaints, please contact Chief Environmental Law Judge Mary Davidsen or Environmental Law Judge Catherine Gibbs.

Office of Environmental Adjudication
100 N. Senate Ave, Room N1049
Indianapolis, IN 46204
(317) 232-8591

Posted by Marcia Oddi at 04:37 PM

Law - Illinois' Inconsistent Curfew Laws

"Inconsistent curfew laws put teens in legal maze" is the headline to this story today in the Chicago Tribune. Some quotes:

[A] ruling earlier this year by the U.S. Court of Appeals for the 7th Circuit struck down an Indiana curfew law on the grounds it failed to honor minors' 1st Amendment rights. The court's decision says police should ask minors why they are out past curfew and if they are practicing their 1st Amendment rights, such as attending a protest or a church event, police should give them a pass. The problem is, some communities have changed their law to be in line with the decision, but others are continuing their policy of ticketing first and asking questions later.

Illinois' curfew law and laws adopted by many of the state's municipalities contain the same defect as the Indiana law. So in the past six months, local governments, including those in Chicago, Aurora and Naperville, have rushed to amend their ordinances in time for summer. They have added exemptions that would prevent juveniles from being detained by police if they are out late for a legal activity, such as a religious event or a political rally.

But some municipalities have not acted yet and have suspended their curfew laws in the meantime, and the state has not yet revised its law. The result is that curfew law--and its enforcement--can vary from city to city, creating a legal labyrinth for youths wishing to travel late at night.

Still, many local law enforcement agencies believe a curfew law is a valuable weapon, although there's no data to prove that curfews deter youth crime or protect them from harm. * * *

Curfew became the rallying cry of many cities during the late 1990s as they began to enforce laws that had been on the books for decades. But a number of court challenges raised the question of their constitutionality. Those included the Indiana case that spurred the recent changes. The Hodgkins vs. Peterson case began in 1999 when police arrested Colin Hodgkins, 16, and other teens after they left a restaurant in the Indianapolis area, five minutes past the 11 p.m. curfew. Hodgkins was out late with his parents' permission.

Colin and his friends were handcuffed, required to take breathalyzer and drug tests and detained for 2 1/2 hours before the families were notified. The Hodgkins family sued, and a federal district court declared the law unconstitutional. The Indiana General Assembly then amended its law to allow police to arrest minors for curfew violations and allow youths to later prove they were out for legitimate reasons.

The Hodgkinses sued again, arguing that the new law still didn't protect the 1st Amendment rights of young people. The family also argued that the law violated the 14th Amendment by taking away the parents' right to make decisions about what their children can do after curfew hours. The federal appeals court agreed with the first argument, but it left the question of parental rights unanswered.

The rewritten Indiana statute said citations could be issued and teens accused of violating the law could defend themselves later in court. But the court said officers had to give youths a chance to explain their reasons for being out past curfew before a citation is issued.

See also these related 6/14/04 and 3/18/04 Indiana Law Blog entries.

Posted by Marcia Oddi at 04:30 PM

Indiana Law - Harder Now to Bail Out in Vanderburgh County

"Until now, if you got arrested on felony charges in Vanderburgh County and had the money, you could quickly bail out of the overcrowded jail," reports this story in the Evansville Courier Press. But no more. Now a judge has to review the case first.

Posted by Marcia Oddi at 04:21 PM

Indiana Decisions - One Supreme Court, Four Court of Appeals, and One Tax Court Decision Today

Julie Marie Bojrab v. George David Bojrab (6/28/04 IndSCt) [Family Law]
Dickson, Justice

In this appeal following a dissolution of the marriage, we hold (1) that a trial court may not order a prospective custody modification upon the happening of a future event but it may declare a present custody determination is conditioned upon the continuation of present circumstances, and (2) that a party does not waive the right to appeal from a provisional order for support or maintenance by failing to take an interlocutory appeal. * * *

Because we hold that the trial court order does not order a prospective custody modification upon the happening of a future event but only conditions a present custody determination upon the continuation of present circumstances, we affirm the trial court order in this regard. We also hold that the husband did not waive the right to appeal from a provisional order for support or maintenance by failing to take an interlocutory appeal, but that the trial court did not abuse its discretion in denying his request for retroactive modification in the final decree. In all other respects we summarily affirm the opinion of the Court of Appeals, under which the trial court is affirmed in part, and reversed and remanded in part.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

Leandrew Jones v. State of Indiana (6/28/04 IndCtApp) [Criminal Law & Procedure]
May, Judge

Leandrew Jones was convicted after two bench trials of battery as a Class C felony, and being an habitual offender. He raises two issues: 1. Whether he knowingly, voluntarily and intelligently waived his right to trial by jury on the habitual offender charge; and 2. Whether the evidence is sufficient to support the conviction of battery as a Class C felony. We reverse in part, affirm in part, and remand. * * *
SULLIVAN, J., and VAIDIK, J., concur.
Dale Johnson v. State of Indiana (6/28/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
The State charged Dale Johnson with Burglary, as a Class A felony, approximately thirteen years after the alleged offense occurred. Johnson moved the trial court to dismiss the charge alleging that the State’s delay in filing it violated his right to due process under the Fifth Amendment to the United States Constitution. Following a hearing, the trial court denied Johnson’s motion to dismiss, and Johnson appeals that interlocutory order. We affirm. * * *

It is well-settled that the prosecutor is invested with broad discretion in the decision of such matters as when to prosecute. We conclude that Johnson has failed to demonstrate that the thirteen-year delay was without justification. The trial court did not err when it denied his motion to dismiss, and we hold that the State’s delay in filing charges against Johnson did not violate his due process rights under the Fifth Amendment. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.

Robert Kanady v. State of Indiana (6/28/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
Robert Kanady appeals his conviction of child molesting, a Class C felony. He asserts the State failed to prove he had the requisite intent to commit that crime. We affirm.
VAIDIK, J., concurs.
SULLIVAN, J., concurs in result.
Jerry Lynn "Lenny" Nordman v. North Manchester Foundry, Inc., et al. [Labor Law]
May, Judge
Jerry Lynn Nordman appeals the trial court’s order granting his employer’s Petition for a Temporary Restraining Order and Injunction Prohibiting Violence or Threats of Violence. North Manchester Foundry (hereinafter “the Foundry”) claimed Nordman made a credible threat of violence against its employee Ezra Gahl. Nordman raises five issues, but we find the dispositive issue is whether his acts arose out of a labor dispute and thus the trial court lacked subject matter jurisdiction under Indiana’s Anti-Injunction Act. * * *

Reversed and remanded with instructions.
BAKER, J., and NAJAM, J., concur.

Jon K. Fink v. Indiana Department of State Revenue, et al. (6/25/04 IndTaxCt - Not for Publication) [Procedural]

Posted by Marcia Oddi at 03:51 PM

Indiana Law - Two 7th Circuit Opinions Today

[Sorry, the website server has been down for several hours.]

CAMPBELL, JAMES v. MILLER, FRANK (SD Ind., Judge Barker)

Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. Police in Indianapolis arrested James Campbell for possessing marijuana. Because the local jail is crowded, Indianapolis does not make a full custodial arrest of each person arrested for a misdemeanor; instead it issues a summons and citation. Before releasing Campbell, however, the police conducted a body-cavity search for drugs. Nothing was found, and no criminal prosecution ensued. Campbell then sued ten officers, the Chief of Police, and the City of Indianapolis, under 42 U.S.C. §1983, contending that the search violated the fourth amendment. He seeks not only damages but also an injunction against this practice. The district court denied Campbell’s request for a preliminary injunction, concluding that he has an adequate remedy at law. He immediately appealed under 28 U.S.C. §1292(a)(1).

Campbell supposes that money never is an adequate remedy for a constitutional wrong. That belief is incorrect. * * * Affirmed.

WILLIAMS, Circuit Judge, dissenting. The majority opinion fails to address key testimony in this case—factual allegations which not only require this court to evaluate Campbell’s claim in more detail than the majority opinion provides, but also suggest a different result. While I regard the question of whether Campbell has standing for a preliminary injunction as close, I ultimately conclude that he has satisfied that constitutional requirement and has also demonstrated the inadequacy of money damages. For these reasons, I dissent. [Dissent is 15 pages and includes much about the IPD, majority opinion is 3 pages]

WALLACE, DONALD R. v. DAVIS, CECIL (SD Ind., Judge Barker)
Before FLAUM, Chief Judge, and POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges. Petitioner-appellant filed a petition for rehearing and rehearing en banc on April 9, 2004. A majority of the judges on the panel voted to deny rehearing. A judge called for a vote on the petition for rehearing en banc, but a majority of the active judges did not favor rehearing en banc. Accordingly, the petition is denied.

RIPPLE, Circuit Judge, with whom ROVNER, DIANE P. WOOD and WILLIAMS, Circuit Judges, join, dissenting from the denial of rehearing en banc. Federal Rule of Appellate Procedure 35 explains that rehearing should be granted when “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions” or “(2) the proceeding involves a question of exceptional importance.” Both of these disjunctively-stated criteria in Rule 35—uniformity and exceptional importance—justify the court’s rehearing this case en banc. * * *

As to the second criterion for rehearing, exceptional importance, we need only recall that the Supreme Court has calibrated carefully its jurisprudence in the capital punishment arena to ensure reliability in the State’s decision to deprive a human being of life. See Johnson, 486 U.S. at 584 (“The fundamental respect for humanity underlying the Eighth Amendment’s prohibition against cruel and unusual punishment gives rise to a special need for reliability in the determination that death is the appropriate punishment in any capital case.” (internal quotation marks and citations omitted)). The majority opinion in this case rides roughshod over a cornerstone in that jurisprudence—that invalid factors infecting the weighing process must be cured by the State. The panel majority’s deviation from the course set by the Supreme Court is precisely the sort of exceptional error Rule 35 was intended to address. * * *

Also, whatever the correct outcome in this case, we remain under a fundamental obligation to ensure that the capital punishment jurisprudence of this court conforms to that of the Supreme Court. This obligation takes on special meaning when a panel majority speaks on an issue of immense importance in other death cases and does so in a manner that is fundamentally at odds with the Supreme Court’s carefully crafted jurisprudence.

Posted by Marcia Oddi at 01:24 PM

Law - Blakely Blog launched

If sentencing is your thing, then the new Blakely Blawg should go on your list, along with the previously identified Sentencing Law and Policy Blog.

Posted by Marcia Oddi at 10:35 AM

June 27, 2004

Indiana Decisions - Chicago Tribune writes on Indiana property tax situation

"Indiana tax shift exacts harsh toll: Property owners see bills balloon" is the headline to this overview today in the Chicago Tribune. Some quotes:

Under the old "true tax value" system, property taxes were based primarily on three factors: the value of the land, often outdated; depreciation, based entirely on the structure's age; and the replacement cost of a structure as determined by a local assessor.

The new system is based almost entirely on market value. But the effect of the switch in gritty industrial towns of the south shore has been acute.

Assessments on older homes, which make up a large part of the area's housing stock, were artificially low and the depreciation artificially high. In addition, heavy industries received a drastic reduction in their property values under the new system, leaving a gaping budget hole for local governments heavily dependent on the industries' property tax revenue. * * *

"Illogical" is a word often used to refer to the state's old property tax system. Typically, in assigning a value to a home, an assessor would use manuals on replacement costs and land values that were several years old, said Kurt Barrow, director of assessments for the local government finance agency. Depreciation, which could reach 80 percent of a home's value, was based on age only, regardless of how well maintained a home was or its restoration. Often an assessor would rely on his or her gut feeling when assigning a tax value.

Given that discretion, assessors often used it to stay in power or give breaks to friends. Occasionally, Lake County's practices led to federal indictments, as in the case of former Lake County Assessor Michael Jankovich, who pleaded guilty in 1987 to extorting payoffs for lowered assessments.

Under the system, about 60,000 of Lake's estimated 250,000 pieces of land were paying less than $200 a year in property taxes as late as 1999, Barrow said. * * *

Other parts of the state have experienced tax shock. But Lake County's pain is deep because of two factors. First, the special assessment significantly lowered assessments for U.S. Steel Corp., Ispat Inland Group Inc., International Steel Group Inc. and BP Products North America Inc., which collectively own nearly 9,000 acres in East Chicago, Gary and Whiting. Second, lawmakers increased the homestead tax exemption to $35,000 from about $6,000 as part of the new tax package, a move that allows thousands of homes with lower market value to continue paying next to nothing in property taxes.

By one estimate, the assessed value of the firms' properties plummeted to $328 million, from $1.15 billion a year earlier. That drop, combined with the homestead exemption, leaves an enormous tax revenue void to be made up in large part by owners of homes on the higher end of northern Lake County's property values.

A class-action lawsuit, filed in Lake Superior Court April 29 by Miller Beach residents, says the special re-assessment violates Indiana's constitutional ban on special legislation. The Indiana Supreme Court heard arguments on the case Wednesday, with a busload of Lake residents in attendance.

"The real and practical effect ... is catastrophic in proportions," the lawsuit states. "Ordinary people are subject to being ruined as to their finances, and as to their lives, to a degree and in a scope of numbers akin to a terrible plague or terrorist attack or horrific weather event or famine."

Posted by Marcia Oddi at 03:42 PM

Indiana Law - New laws take effect July 1

A number of the laws enacted by the 2004 General Assembly take effect July 1. An AP story today has a report. Some quotes:

INDIANAPOLIS (AP) -- Deadbeat state taxpayers, take note: Starting Thursday, thousands of your names may show up on the Internet. Under a new state law effective July 1, the Indiana Department of Revenue will post on its Web site the names of individuals and businesses who have not paid tax bills of $1,000 or more for at least two years and have warrants against them.

The agency is calling the page INDEBT, and the threat alone of being listed already has paid off. Since the agency sent out warning letters about the law to thousands of delinquent taxpayers in mid-May, it has collected more than $900,000 in back taxes. * * *

Other new laws approved by lawmakers in the last General Assembly session take aim at the state's economy, public safety and crime. Ninety-eight bills became law, and most of those will take effect Thursday. * * *

One new law requires additional public disclosure of information about children who die as a result of abuse or neglect. Another law due to take effect, which would mandate criminal history checks on relatives before they take emergency placements of abused and neglected children, has been stymied by the Child Protection Services' failure to win swift access to a national criminal database. * * *

Residents will have another year to comply with a law that drew intense interest during its trek through the General Assembly. Starting July 1, 2005, the state will require children to ride in car seats or booster seats up to age 8.

More on the criminal history checks problem is in this AP story. Some quotes:
INDIANAPOLIS — Days before a state law was to take effect, Indiana has been set back in efforts to run criminal background checks on relatives taking custody of abused or neglected children. The FBI has rejected the state's request for access to a national criminal database. The information was necessary if, under the law due to take effect Thursday, the state was going to be able to place children with relatives in a timely manner.

The FBI's action prompted the Indiana Civil Liberties Union to seek a temporary injunction against the law Friday. Under the law, children removed from their biological parents' homes would not be placed with relatives until everyone in the children's new home received criminal background checks.

The Indiana Family and Social Services Administration acknowledged the ICLU's legal action restrained the ability of the agency and the courts to conduct background checks. * * *

The FBI told the state last week that Child Protection Services could not gain access criminal records in the Department of Justice database because it is not a criminal justice agency. * * *

The ICLU got involved Friday, filing a motion in Marion County's juvenile court seeking to overturn a state decision to place a child in foster care rather than with a relative.

ICLU legal director Ken Falk said the organization was seeking to have the eventual decision in the case decided on behalf of all Indiana children who might be placed in foster care instead of with suitable relatives. "What this law would do, in effect, is make it much easier to place a child with a stranger than with a relative," Falk said. The state performs only local background checks on foster parents, he said.

[Update 6/30/04] A story today in the Star reports:
An FBI official said Tuesday that Indiana officials never sought the federal agency's advice on a new state law that requires caseworkers to perform FBI background checks on relatives who want to provide foster care to a child family member. Had that happened, the state law could have been crafted to be in agreement with federal law, said agent James H. Davis of the FBI's Indianapolis office.

As the law is written, caseworkers won't have access to FBI criminal records when the law goes into effect Thursday, officials said. This means nationwide criminal records checks cannot be performed. * * *

Last month, Marion County juvenile court Judge James W. Payne criticized House Enrolled Act 1194, saying he never was asked for input on the proposal. Payne predicted that the type of national background checks called for by the law could result in children being delayed in licensed foster care for weeks or even months while the investigations took place. This would have jeopardized Indiana's federal foster care funding because of bans on multiple placements of children.

Posted by Marcia Oddi at 02:00 PM

Law - Justice O'Connor dedicates windmill in Kendallville

The Fort Wayne Journal Gazette reports today:

KENDALLVILLE – U.S. Supreme Court Associate Justice Sandra Day O’Connor loves windmills. And that love, which comes from her childhood in the semi-arid border region of New Mexico and Arizona, brought her and her brother to the Mid-America Windmill Museum’s annual Windmill Festival for the dedication of an 18-foot Samson-replica windmill.

Dedicated in honor of O’Connor and her brother, H. Alan Day, the windmill is a replica of windmills that pumped water on the Lazy B Ranch where they grew up. The windmill was obtained from Terrell County, Texas, where it had been operating a well more than 640 feet deep, according to museum officials.

Posted by Marcia Oddi at 01:50 PM

Environment - Sunday Indianapolis Star editoralizes

"State's environmental record should be an issue in governor's race, but it's not," is today's lead editorial in the Sunday Indianapolis Star. This piece is the 4th of five the Star has planned on "issues crucial to this year's race for governor of Indiana." Some quotes:

It's not that environmental concerns don't exist:

• Indiana ranked sixth in the nation on the Environmental Protection Agency's recent Toxics Release Inventory based on the tonnage of pollutants released to the air, water and ground.

• Rivers, streams and lakes -- posted with fish advisories -- are mostly unswimmable.

• Twenty-four counties with two-thirds of the state's population have been designated non-attainment areas for violating health-based ozone standards, jeopardizing economic growth.

• Farmland is disappearing at a rate of about 100,000 acres a year, while urban sprawl exacerbates congestion in areas with inadequate land-use or public transportation policies.

• The state faces a dangerous buildup of mercury from coal-fired power plants and other toxic pollutants.

• Weak regulations protect only some of the remaining 15 percent of the state's original wetlands that filter and replenish Hoosier groundwater.

• Indiana lags behind other Midwestern states in land set aside for parks and wildlife preserves, while less than $2 million a year from environmental license plate sales is available for new land purchases. * * *

But for now, both major candidates appear focused on economic development and little else. Neither seems eager to address the environment, although environmental policies and economic development increasingly are linked. * * *

An Institute for Southern Studies report correlating environmental policies and economic development ranked Indiana 48th out of 50 states overall. It found a strong connection between states doing well economically and those that had quality environmental programs. Indiana, ranked 44th in environmental spending, didn't fare well in either category.

Citing looming problems attracting new businesses to counties designated non-attainment for ozone or soot, as well as soaring water rates in communities such as Martinsville or Pines due to polluted groundwater, [Tim Maloney, executive director of the Hoosier Environmental Council] said, "The old argument that we need to set environmental protections aside to make economic progress is simply false. We have plenty of proof." * * *

There are plenty of issues relating to the environment worth debating: land use policies, energy production, fuel-cell technology, wetland and aquifer protection, septic systems, ozone, small-particle soot, brownfield cleanup, recycling, regulatory policymaking and mercury -- to name a few.

In a manufacturing and agricultural state containing huge but sulfuric coal reserves along with wondrous natural assets -- from fertile land to bountiful hardwood forests, from limestone caverns to the vast Great Lakes -- admittedly there are no easy answers. But the voters at least deserve dialogue and debate about environmental issues that affect their health, livelihoods and quality of life.

Posted by Marcia Oddi at 12:23 PM

Indiana Law - Enforcing Scooter Laws a Problem

"Indiana Having Trouble Laying Down the Law on Scooters" is the headline to this story today in the Washington Post. Some quotes:

Police, motorists and pedestrians in Indiana are dealing with an increasingly common menace on the streets -- an invasion of scooters with powerful motors often ridden by youngsters with little experience in the rules of the road.

It is against state law for kids younger than 15 to ride motorized scooters or minibikes that go faster than 25 mph, but many people do not know this, and police are unsure how far to go in enforcing the law. Most times, they just call parents. * * *

Along with traditional foot scooters with gas or electric motors, people are riding European scooters and small replicas of Japanese power bikes called "pocket bikes."

"The popularity of them has increased tremendously, and most people don't know what the laws are -- that you have to wear a helmet and that you have to be at least 15," state police spokesman Scott Beamon said.

Meanwhile, the front page of the Sunday Styles section of the NY Times today has this story, dateline San Francisco and titled "Unfazed by the Law, Pocket-Bikers Roll On," complete with appealing photo -- indicating that the problem is not limited to Indiana. A quote:
"They are the summer's hottest fad," said Lt. Kit Crenshaw, a traffic enforcement officer in the San Francisco Police Department, which has begun issuing tickets to riders and even impounding their bikes. "There's a veritable infestation," he said.

The bikes, most without lights and horns and all without vehicle identification numbers, are not legal for street use and are considered potentially hazardous to riders and pedestrians, the police say. But the people buying them — mostly adolescent boys too young to have drivers' licenses — seem unconcerned with anything that would restrict their fun. * * *

Far more dangerous than the riders' lack of safety equipment, however, is the size of the bikes. "Your forehead is exactly lined up with cars' bumpers," said Capt. Rick Bruce of the Bayview District Station of the San Francisco Police Department. His jurisdiction is inundated with the bikes. "Someone is going to be killed," he said.

Indiana papers have had a number of stories recently about the scooter and pocket bike probem:

"Scooter riders bypass the law: Motorized vehicles are proliferating, but many kids are riding illegally, police say," is the headline from a comprehensive June 14th story in the Indianapolis Star that also includes a sidebar paraphrasing the law. Some quotes from the story:

The law is clear: No one younger than 15 can ride a motor vehicle on the road. But motorized scooters and minibikes of all sorts are invading the neighborhoods of Central Indiana and other areas, and many riders are much younger than 15. The situation is causing headaches for authorities. Some police agencies, such as in Hamilton County, are combining education efforts with an enforcement crackdown. Other agencies prefer taking up the matter with parents. * * *

A variety of vehicles are showing up on the streets. One of the more popular is the traditional foot scooter with a gas or electric motor. There are also smaller-scale European-style scooters. And popping up more and more are "pocket bikes" -- small replicas of Japanese power bikes. Prices range from less than $150 for a foot scooter with an electric motor to more than $2,000 for a European-style scooter.

The June 17th Fort Wayne Journal Gazette had an editorial on the issue. Some quotes:
The crackdown on motor scooters in Greenwood and other Indiana cities raises the question of whether Indiana law governing them is too permissive. As an Associated Press story Tuesday reported, the police are finding that many teens are violating even the state’s relatively lax laws that allow anyone 15 and older with a valid state ID card to ride the two-wheelers. * * *

Lawmakers should consider a separate licensing process for scooter riders. Testing 15-year-olds on traffic rules would be a healthy precursor for the real driver’s test. Given the state’s fiscal situation, user fees would have to finance the licensing, and state officials would need to determine those costs. If the license fee is unreasonably high, such a license would be impractical. An alternative would require scooter riders to have a valid driver’s license.

Posted by Marcia Oddi at 08:20 AM

June 26, 2004

Indiana Decisions - More on the Celebration Fireworks decision

The Indianapolis Star reports here today "Celebration Fireworks wins appeal of state fees," referencing the Court of Appeals decision yesterday (scroll down a few entries) in Tracy Boatwright, et al. v. Celebration Fireworks. Some quotes:

Indiana's state fire marshal lost another battle with a fireworks company Friday. Celebration Fireworks convinced the Indiana Court of Appeals that more than $300,000 in fees charged by Fire Marshal Tracy Boatwright were illegal. The unanimous ruling by a three-judge panel is the latest in a series of battles pitting state and local officials against the same fireworks companies they regulate.

In Friday's case, the fire marshal's office required wholesalers to pay a $1,000 fee for each location they operated, which cost Celebration Fireworks $306,000 from 1991 to 1994. The company, based at 5860 N. Michigan Road, contended in its 1995 lawsuit that state law required only one $1,000 fee per company. After the challenge was filed, the fire marshal stopped assessing multiple-site fees.

After a Delaware Circuit Court judge ruled last year that the fees were illegal, Indiana Attorney General Steve Carter announced he wouldn't appeal because attorneys in his office felt the ruling left little in doubt. But officials with the fire marshal's office didn't want to give up. They hired a private law firm to pursue the appeal.

For details on the Attorney General/Fire Marshall dispute re pursuing an appeal, see this November 11, 2003 Indiana Law Blog entry.

More from today's Star story: "The fire marshal's office has been involved in lawsuits since at least 1997 over how to enforce state fireworks laws. Boatwright wanted the courts to authorize him to close a loophole in the law and allow him to ban most fireworks. In 2002, the Supreme Court refused to expressly grant him that authority." [See The Indiana Fireworks Distributors Assn. v. M. Tracy Boatwright (3/12/02 IndSCt).]

In a related story, the Star reported earlier this week:

With the July Fourth holiday looming, Indianapolis officials want to lower the boom on Celebration Fireworks. The city said today that it would seek a court order to close the chain's longtime Northwestside location. It violates zoning laws to sell fireworks at the site at 5860 N. Michigan Road, said Teri Kendrick, city prosecutor.

The decision comes nearly a week after the Indiana Supreme Court refused to hear an appeal from Celebration Fireworks owners trying to keep the store open. Claiming the store was a fire hazard, neighbors filed a lawsuit two years ago to force Celebration to close the location. * * * The city previously tried to close the business, but the Board of Zoning Appeals granted it a variance in 2002. * * * Then-Marion Superior Court Judge Steven Frank ruled in favor of Celebration Fireworks, but the Indiana Court of Appeals reversed his decision in December 2003. The Appeals Court ruled that the zoning board failed to show how the store would benefit the community.

Posted by Marcia Oddi at 06:13 PM

Indiana Law - Blakely v. Washington will not impact Indiana, judges say

This week's U.S. Supreme Court decision in Blakely v. Washington held that "only juries, not judges, may increase criminal sentences beyond the maximums suggested by statutory guidelines, a decision that throws into doubt sentencing procedures used by nine states and possibly the federal government," according to an article in the Washington Post cited in this Indiana Law Blog entry yesterday.

The relevant facts, according to a NY Times story also cited in the earlier entry, were: "In the case before the court on Thursday, a man pleaded guilty to kidnapping his estranged wife, a crime that under Washington law ordinarily carries a maximum sentence of 53 months. At sentencing, however, the judge added an extra 37 months, based on his finding that the defendant, Ralph H. Blakely, Jr., had acted with 'deliberate cruelty.'"

What about Indiana? This article today in the Gary Post Tribune reports:

Porter Superior Court Judge Roger Bradford said Friday Indiana has sentencing ranges, taking into account mitigating and aggravating circumstances, but no provision for jury involvement, with the exception of recommending the death penalty.

If someone is charged with a D felony, for example, Bradford said the sentencing range is from six months to three years. Judges weigh mitigating and aggravating factors in determining the sentencing length. There is no provision to sentence beyond the maximum limit, he said.

Superior Court Judge Bill Alexa said there is flexibility in length of sentence under Indiana law, including a murder conviction, with a sentencing range of 45 to 65 years. For an A felony, the range is 20 to 50 years; B felony, 6 to 20 years; and C felony, 2 to 8 years.

Senior Judge Thomas Webber, who retired as a Superior Court Judge and works part-time in the court system, said the state of Washington appears to have narrower guidelines than Indiana for sentencing, similar to the federal courts. The Supreme Court decision should have no impact on Indiana courts, Webber said.

Attorney David Welter, supervisor of the criminal side of the Valparaiso University law clinic, said for the most part the high court ruling won’t affect criminal cases in Indiana. There could be rare exceptions under a plea agreement or guilty plea without an agreement imposing limits, Welter said.

[More] An analysis by Adam Liptak, to appear in the Sunday NY Times, reports:
Thursday's decision requires any factor that increases a criminal sentence, except for prior convictions, to be proved to a jury beyond a reasonable doubt. Many sentencing schemes allow or require judges to impose longer sentences based on all sorts of criteria, including the defendant's background and the nature and severity of his crime.

The decision may also affect sentencing laws in at least seven states in addition to Washington and the federal system, said Kevin R. Reitz, an expert on sentencing at the University of Colorado. In all of those jurisdictions, many people sentenced in recent years may be expected to challenge their sentences. And prosecutors, defendants and judges in pending and new cases will face an altered landscape.

"It throws the whole country's criminal system into turmoil," said Professor [Frank O. Bowman, an author of a treatise on sentencing law], who teaches law at Indiana University. * * *

[U]nclear is whether the decision will give judges more or less power in deciding sentences. The decision seemed to endorse both traditional sentencing schemes that leave sentences entirely up to judges so long as they do not exceed statutory maximums and schemes that designate fixed sentences for given crimes. Only a middle approach, in which judges are required to make their own factual findings to increase sentences, was held unconstitutional.

Sentencing guidelines that allow or require judges to impose more lenient sentences based on mitigating factors are apparently unaffected.

Update 6/27/04] An editorial today (Sunday) in the Washington Post is a must read. It begins:
THE SUPREME COURT dropped a bombshell on the world of criminal sentencing last week. The case, Blakely v. Washington, is the latest and most dramatic in a line of cases in which an ideologically eclectic five-member majority has sought to breathe new life into the right to trial by jury. The cause seems noble. But this line of cases has been a Pandora's box, opened now by the Blakely decision. The decision casts grave and unwarranted constitutional doubt on sentencing regimes around the country, including federal sentencing guidelines, that have been designed to make punishments more predictable and more evenly applied.
And the Christian Science Monitor has this 6/28/04 story, headlined "Supreme Court throws sentencing guidelines into doubt: A Washington State case prompts other states, as well as federal officials, to reexamine their own sentencing systems." A quote:
Indeed, by declaring that Blakely's sentence violates the US Constitution, the high court has set off a flurry of activity in other states and within the federal government to determine if their own systems might also be unconstitutional. "There will be tremendous dislocation in any number of state systems and the federal system," says Kevin Reitz, a professor at the University of Colorado School of Law in Boulder and an expert on state sentencing-guideline systems.

Professor Reitz says roughly half of the 15 states with guideline systems will be affected by the Blakely decision. Oregon and North Carolina may be particularly vulnerable to challenges, he says. But most in jeopardy is the federal system with its large number of judicially enhanced sentences, he says.

"Up to 90 percent of federal sentences will run afoul of Blakely, as opposed to 10 percent of sentences in state systems," he says.

Posted by Marcia Oddi at 05:54 PM

June 25, 2004

Environment - Environmental Stories Today

"Keramida Environmental acquires Heritage unit" is the headline to this story today on the Indianapolis Star website: "Keramida Environmental has acquired the environmental engineering and consulting unit of Heritage Environmental Services. The sale was announced Thursday. The companies said seven employees will transfer from Heritage to Keramida in Indianapolis."

Storm water. The Terre Haute Tribune Star reports here today:

A few simple fixes to Vigo County's storm water control system could save millions of dollars in a few years when federally mandated standards take effect. "We are at a really important juncture in time," said Joe Rozza, with Gresham Smith and Partners, a consultant working with several community institutions to develop a plan to make sure the area doesn't have to face the huge expense of meeting water purification standards that will become standard in five years.

"You don't want to start treating storm water. You don't want to get to that point," said Mike Cline of Hannum, Wagle and Cline. The engineering company is working with the city, too, to make sure the city avoids huge expense in 2010.

Grouped under the name "Rule 13," the Indiana Department of Environmental Management mandates concerned parties throughout the state meet guidelines for watershed management as part of a state and federal push to improve overall water quality. The first part of the push, reducing the number of combined sewer overflows, already has been mapped out in a plan submitted by Terre Haute to IDEM in April 2002. That plan is estimated to cost between $40 million and $50 million.

The second part, treatment of storm water, is still in planning stages. The area's plan, drawn up for use by Terre Haute, Vigo County, the Honey Creek/Vigo Conservancy District, West Terre Haute, Seelyville, Rose-Hulman Institute of Technology, Indiana State University and Ivy Tech State College, seeks to reduce the amount of pollutants carried to the waterways through land use, water use and rain.

If those two programs meet sufficient guidelines, the third plank, treating storm water, won't be necessary. If they don't, Cline said, the costs could dwarf the CSO plan. Rozza said the best way to avoid those costs is to concentrate on six areas that contribute to pollutants in storm water.

Wetlands. The Gary Post Tribune reports today (following up on an earlier story):
CROWN POINT — The U.S. Army Corps of Engineers has ordered crews to stop work in the vicinity of a protected wetland where soil was illegally dumped and roads may have been built without proper permits near a residential subdivision. Army Corps field representatives Wednesday found unauthorized work damaging wetlands between the Pine Hill and Stillwater subdivisions on the southeast side of Crown Point, according to Corps project manager and biologist Mary Anderson. * * *

Todd Kleven, project manager for Hawk Development Co., contacted the Army Corps of Engineers and the Indiana Department of Environmental Management June 15 after he discovered a half-acre wetland parcel had been filled with dirt along the western boundary of Hawk’s Pine Hill subdivision. Crews from Robert Stiglich’s neighboring Stillwater subdivision had dumped the soil on the Pine Hill property, according to Kleven. The dirt had been removed by June 17, leaving a muddy hole where there had previously been cattails and bushes.

Toxic releases. "County no longer No. 1 polluter in state: Lake still ranks sixth nationally for manufacturing pollution." That is the headline to this story today in the Munster Times detailing the recent U.S. Environmental Protection Agency's Toxics Release Inventory with respect to Lake County.

Posted by Marcia Oddi at 04:56 PM

Indiana Decisions - Transfer List for Week Ending June 25, 2004

Here is the Indiana Supreme Court's transfer list for the week ending June 25, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi at 02:11 PM

Indiana Decisions - Two Court of Appeals Decisions Today

Tracy Boatwright, et al. v. Celebration Fireworks (6/25/04 IndCtApp) [Administrative Law; Statutory Construction ]
Kirsch, Chief Judge

Tracy Boatwright, individually and as Indiana State Fire Marshal (the “Fire Marshal”) and the State of Indiana (collectively “State”) appeal the trial court’s decision in favor of Celebration Fireworks, Inc. (“Celebration”), raising the following issues for review: 1. Whether the trial court erred in issuing a judgment in favor of Celebration because Celebration failed to exhaust its administrative remedies prior to filing its action in court. 2. Whether Celebration’s claims for monetary relief are barred by governmental immunity. 3. Whether the Fire Marshal’s interpretation of the statutory certificate of compliance requirement is reasonable. We affirm. * * *

[1] A party need not comply with the exhaustion requirement when the remedy is inadequate or would be futile, or when some equitable consideration precludes application of the rule. Abner v. Dep’t of Health of State of Ind. ex rel. Ind. Soldiers’ & Sailors’ Children’s Home, 777 N.E.2d 778, 783 (Ind. Ct. App. 2002), trans. denied (2003). To prevail upon a claim of futility, the party must show that the administrative agency was powerless to effect a remedy or that it would have been impossible or fruitless and of no value under the circumstances. Id. Further, the requirement of exhaustion of administrative remedies is eased when there is grave doubt as to the availability of the administrative remedy. Id. Moreover, exhaustion of administrative remedies is not required if a statute is void on its face, and it may not be appropriate if an agency’s action is challenged as being ultra vires and void. Indiana Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 844 (Ind. 2003).

In Twin Eagle, 798 N.E.2d at 844, a developer challenged the validity of a process that affected its ability to discharge dredged and fill materials on its property. It claimed that the Indiana Department of Environmental Management (“IDEM”) did not have the authority to regulate its actions. Our supreme court explained that because the validity of the interim process, not merely its ultimate outcome, was one of the major issues in the case, exhaustion of administrative remedies was not required. It noted that the plaintiff’s claim, if valid, would obviate the need to go through the administrative process. The court explained that the central issue was whether IDEM did or did not have the legislative authority to regulate introduction of dredged and fill materials into certain bodies of water, and that this determination required statutory construction, a pure question of law. Accordingly, the court concluded that the claim was properly brought to the trial court and that the plaintiff was not required to first seek an administrative remedy. Id. at 843-45.

Similarly, here, the issue involved is a question of statutory construction, a pure question of law. The central issue is whether the Fire Marshal has the authority to impose a $1,000 fee and certificate of compliance requirement for each location from which restricted fireworks are sold. Thus, exhaustion of remedies is not required here.

Even if this were not the case, exhaustion of remedies is not required here because compliance would be futile, and there is doubt as to the availability of an administrative remedy. The Fire Marshal ignored requests to voluntarily change its policy interpreting the statute. Moreover, there is no evidence in the record before us of any formal mechanism in place for review of the Fire Marshal’s policies of general applicability. The trial court did not err in exercising subject matter jurisdiction over Celebration’s claims. * * *

[2] IC 34-13-3-3(8) and (11) provide that a governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment, or if a loss results from the issuance, denial, suspension, or revocation of, or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization, where the authority is discretionary under the law.

However, IC 34-13-3 applies only to a claim or suit in tort. IC 34-13-3-1. By contrast, Celebration’s claims arise under equity and quasi-contract theories. Moreover, it is not seeking reimbursement for losses from the grant or denial of licenses, but simply the return of moneys paid pursuant to the unlawful collection of fees. Because Celebration’s suit seeks to recoup monies unlawfully exacted, governmental immunity does not apply. See, e.g., Indiana Revenue Bd. v. State ex rel. Bd. of Comm’rs of Hendricks County, 270 Ind. 365, 369, 385 N.E.2d 1131, 1134 (1979) (noting rejection of claim of governmental immunity and trial court’s decision against State to award counties share of inheritance tax collected by State).

[3] Finally, the Fire Marshal maintains that the trial court erred in ordering judgment in favor of Celebration because his interpretation of the certificate of compliance requirement is reasonable. He contends that Celebration’s interpretation, adopted by the trial court, unnecessarily singles out a single word in the statute and ignores the legislative intent to reduce the number of children and adults injured by fireworks and to eliminate the sale of illegal fireworks to the general public. Because it is the agency charged with interpreting the statute, the Fire Marshal contends that its interpretation is entitled to great weight, particularly because its interpretation is a reasonable one that furthers legislative goals.

We agree with the trial court that the language of the statute is clear and unambiguous: it states that “[e]ach manufacturer, wholesaler, importer, or distributor must obtain a certificate of compliance.” IC 22-11-14-5 (emphasis added). This language indicates that the legislature intended each wholesaler to obtain a single certificate of compliance. The statute also imposes the requirement that a copy of this certificate be posted in each location where restricted fireworks are offered for sale to the public. Id. This requirement shows that each location need not have its own certificate of compliance, but must display a copy of the single certificate that applies to the wholesaling entity. This language clearly evidences the intent of the legislature. By comparison, IC 22-11-14-7 provides for the issuance of permits for stands selling retail fireworks. That statute contemplates permits for each location, and establishes a schedule of charges related to the number of stands a retailer operates. The legislature could provide for a scheme requiring a certificate for each wholesale location, as it has for retail locations, if it intended to do so. Clearly, it did not intend to require a wholesaler to obtain a certificate of compliance for each wholesale location. The trial court did not err in entering judgment in favor of Celebration. Affirmed.
NAJAM, J., and RILEY, J., concur.

Bernard & Rettie Hopper v. Roy Carey, et al (6/25/04 IndCtApp) [Insurance]
Ratliff, Senior Judge
The parties present the following restated issue for our review: Whether the trial court correctly granted summary judgment in favor of Continental on the issue of the application of the set-off provision in the insurance contract regarding underinsured motorist benefits, and whether that order also extinguished a bad faith claim against Continental. * * *

Conclusion. The trial court correctly determined that Continental was allowed to set off the sum recovered by the Hoppers from S & S from its potential UIM liability. Further, there was no bad faith claim before the trial court against Continental. Therefore, the alleged claim neither survives nor is extinguished by the trial court’s order on summary judgment. Affirmed.
BAKER, J., and VAIDIK, J., concur.

Posted by Marcia Oddi at 01:50 PM

Indiana Decisions - Two from 7th Circuit Today

PIVOT POINT INT'L v. CHARLENE PRODUCTS (ND Il.) [In this case, Frank H. Esterbrook of the 7th Circuit was sitting by designation as the district judge]

Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Pivot Point International, Inc. (“Pivot Point”), brought this cause of action against Charlene Products, Inc., and its president Peter Yau (collectively “Charlene”), for copyright infringement pursuant to 17 U.S.C. § 501(b). The district court granted summary judgment for the defendants on the ground that the copied subject matter, a mannequin head, was not copyrightable under the Copyright Act of 1976 (“1976 Act”), 17 U.S.C. § 101 et seq. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion. * * *

Conclusion. The Mara mannequin is subject to copyright protection. We therefore must reverse the summary judgment in favor of Charlene Products and Mr. Yau; the case is remanded for a trial on Pivot Point’s infringement claim. Furthermore, because Charlene Products and Mr. Yau have not prevailed on the merits at this point, the judgment of the district court with respect to attorneys’ fees must be vacated. The crossappeal with respect to attorneys’ fees is moot. Pivot Point may recover its costs in this court.
REVERSED AND REMANDED; CROSS-APPEAL DISMISSED

KANNE, Circuit Judge, dissenting. Writing for the majority, Judge Ripple has applied his usual thorough and scholarly approach to this difficult intellectual property problem; however, I cannot join the majority opinion because I am not persuaded that the “Mara” mannequin is copyrightable. All functional items have aesthetic qualities. If copyright provided protection for functional items simply because of their aesthetic qualities, Congress’s policy choice that gives less protection in patent than copyright would be undermined. * * *

USA v. JONES, WILLIAM J. (SD Ind., Judge Tinder)
Before BAUER, POSNER, and KANNE, Circuit Judges.
KANNE, Circuit Judge. A jury convicted William J. Jones under 18 U.S.C. § 656 on nineteen counts of stealing in excess of $1000 from Bank One’s automatic teller machines (“ATMs”). Jones, who had access to the ATMs through his job as an ATM repairman, challenges his conviction by arguing that § 656 does not apply to him, as he was not an “officer, director, agent or employee of, or connected in any capacity with” Bank One. We affirm the judgment of the district court, finding that under a plain reading of the statute, Jones, who worked for a company contracted byBank One to maintain and service its ATMs, was connected with Bank One and subject to § 656’s prohibitions. * * *

In the face of a broadly-worded statute, which by its plain terms applies to those “connected in any capacity” with Bank One, see 18 U.S.C. § 656, Jones unconvincingly urges us to limit § 656’s reach to only those categories of persons explicitly enumerated in the statute, i.e. officers, directors, agents, or employees of the banking institution in question. He argues, without citing supporting case law, that the words, “or connected in any capacity with,” renders the enumerated list preceding that phrase meaningless. To avoid such a result, he reasons, the catch-all phrase should be ignored in favor of the limited class of offenders.

Posted by Marcia Oddi at 01:04 PM

Indiana Law - Final part of South Bend involuntary commitment series

Part 4 of the South Bend Tribune's 4-part story on the Republican nominee for St. Joseph County councilman in District D, Wilson "Will'' Taylor, who reportedly was involuntarily commited to Madison Center and held for 13 days was published Wednesday, June 23rd. I somehow overlooked it. Some quotes:

Judge [William] Whitman told The Tribune later that the 72-hour provision does not require a hearing to be held within that time, but merely a determination to be made by a physician about the patient's state of mind and whether hospitalization should be continued. The 72 hours does not include weekends, holidays or other times when the courts are not in session.

If a person thinks he is in Madison Center without just cause, Keckley [David Keckley, Taylor's attorney] said, he can have access to a lawyer and can file a writ of habeus corpus immediately. The judge can go to the hospital the same day to hold a hearing, Keckley said. The safeguard in the system, Keckley said, is that the judge is available and Keckley is always available as a public defender.

"Nobody ever told me any of that," Taylor said.

Madison Center officials said every patient is given an information guide upon admission. The guide includes a list of patient rights, including the right of an involuntary patient to petition the court for consideration of the treatment program. The guide also outlines grievance procedures for complaints and problems.

Taylor said he doesn't remember getting the booklet, but he might have. Additionally, he said, "I verbally asked to have a hearing as soon as possible and they said it's up to the doctor." Dr. Patta did not return phone messages asking him for comment. Taylor said he did not have an opportunity to talk to Keckley until 10 or 11 days after his admission to Madison Center.

The person who signs the complaint to start the commitment process is given statutory immunity from civil or criminal liability, Keckley said, as long as he acted without malice or bad faith. We have these statutes, he said, because one hears so many times about someone who snaps or has a nervous breakdown, and then people start talking about seeing the warning signs before that.

Posted by Marcia Oddi at 10:05 AM

Law - Much more on yesterday's U.S. Supreme Court sentencing rulings

The biggest sentencing case yesterday was the U.S. Supreme Court's decision in Blakely v. Washington. A front-page story in the NY Times this morning by Linda Greehouse, headlined "Justices, in 5-4 Vote, Raise Doubts on Sentencing Rules," begins:

The Supreme Court invalidated the criminal sentencing system of the State of Washington on Thursday in a decision that also cast doubt on whether the 20-year-old federal sentencing guidelines can survive a constitutional challenge.

Bitterly split in a 5-to-4 decision that cut across the court's usual ideological lines, the justices continued a profound five-year-long debate over the respective roles of judges and juries in criminal sentencing. In this case, they ratcheted that debate up to a new level that left the federal guidelines in constitutional limbo and cast doubt on the validity of thousands of sentences, at both the state and federal level. Sentencing in about a dozen states is likely to be affected by the ruling.

In a separate decision, the court rejected the retroactive application of a 2002 death penalty ruling, placing as many as 100 inmates in five states back on death row.

This is Schriro v. Summerlin, written up in an entry here yesterday afternoon - scroll down to read it. More from Greenhouse's report:
In the Washington guidelines case, Justice Antonin Scalia's majority opinion held that the Washington system, permitting judges to make findings that increase a convicted defendant's sentence beyond the ordinary range for the crime, violated the right to trial by jury protected by the Sixth Amendment. The facts supporting increased sentences must be found by a jury beyond a reasonable doubt, Justice Scalia said.

While the federal system is considerably more complex, it places judges in much the same role, empowering them to make the factual findings that determine the ultimate sentence and requiring nothing more to support those findings than a "preponderance of the evidence." That is the legal system's lowest standard of proof, while "beyond a reasonable doubt" is its highest.

While Justice Scalia said that "the federal guidelines are not before us, and we express no opinion on them," that statement appeared to be simply marking time.

Nina Totenberg had an excellent report on these decisions this morning on NPR. Access it here.

Here is Tony Mauro's coverage of the two decisions at Law.com. The lead:

In a 5-4 ruling that Justice Sandra Day O'Connor said would have a "disastrous" impact on state and federal sentencing, the Supreme Court on Thursday ruled that any aggravating facts that increase a defendant's sentence must be proven to a jury, not decided by a judge.

The ruling in Blakely v. Washington, No. 02-1632, underscores and strengthens the Court's 2000 ruling in Apprendi v. New Jersey, and could expand its scope to affect the federal sentencing guidelines. The ruling is sure to accelerate the growing debate over the wisdom of sentencing reforms enacted over the last two decades.

"Jury Role In Raising Sentences Affirmed: Ruling May Affect States' Procedures" is the headline to Charles Lane's article in the Washington Post this morning that begins:
A bitterly divided Supreme Court ruled yesterday that only juries, not judges, may increase criminal sentences beyond the maximums suggested by statutory guidelines, a decision that throws into doubt sentencing procedures used by nine states and possibly the federal government.
[More] A new blog, Sentencing Law and Policy, authored by Douglas A. Berman, Professor of Law, Moritz College of Law at The Ohio State University.

A host of links to coverage of yeserday's sentencing decisions, from SCOTUSlaw.

Posted by Marcia Oddi at 07:04 AM

June 24, 2004

Law - New York High Court Today Invalidates State Death Penalty Provision

Here is the decision, via FindLaw.com, but don't expect to just flip through and find the operative language. The opinion is 57 pages long, a concurring opinion begins on page 58 and runs through 61. A 27-page dissent follows, making the total 88.

In a story headlined "N.Y. Court Ruling Appears to Invalidate Death Sentences," and posted on its website, the NY Times begins with this lead:

New York State's highest court today declared a central provision of the state's nine-year-old death penalty law unconstitutional, assuring that there will be no executions in the state for some time and continuing what has been a tortured legal road for the capital punishment law.

In a 4-3 decision, the state's Court of Appeals said the legislature improperly required judges to tell jurors in capital cases that if they deadlocked, the judge would impose a sentence that would leave the defendant eligible for parole after serving 20 to 25 years. The decision said that represented improper coercion of jurors to vote for execution.

[Update 6/25/04] Here is an updated and longer version of the same story, which today appears on the front page of my NY Times.

Posted by Marcia Oddi at 05:52 PM

Environment - Stories today

Waste water. The Terre Haute Tribune Star is reporting here:

Starting Jan. 1, 2005, Terre Haute will resume management of the city's wastewater treatment plant. Mayor Kevin Burke said he informed American Water, the company that manages the plant, that its contract would not be extended, and that the city would not solicit bids. "I just don't see how a management contract fits with what we want to do now," Burke said.

With major changes pending with federally mandated combined sewer overflow management, and an additional set of pending rules looming for the collection and treatment of storm water, the city needs to be closer to the issues of day-to-day running of the system, he said. "The city needs to have a very good grasp of the condition, needs and potential problems with the collection system and the wastewater treatment plant," Burke said.

Hazardous waste? This story today from NewsLinkIndiana.com is headlined "Work finally begins on toxic trailer mess." Some quotes:
MUNCIE, Ind. (NLI) - After four months of controversy and caution, two toxic trailers in Muncie are being cleaned up by a convergence of local, state and federal agencies. The Environmental Protection Agency (EPA), Indiana Department of Environmental Management (IDEM) and Delaware County Emergency Management Agency were all at the trailer site on Wednesday overseeing the testing and removal waste.

"We're mainly just making access to the drums that are on there so we can read labels and sample them. Then, once we have I.D.'s for all of them, then it's time to look for a home for them. "We will see if someone has a use for the chemicals, if not, then we will find a place to safely dispose of them," said Rod Wilson, the on-site project manager for Environmental Remediation Services, the contractors hired to clean up the trailers.

Mercury contamination. Two odd mercury stories have been in the papers for the last few days. In Muncie, an angry son allegedly "scattered 8 pounds of toxic mercury throughout his mother's house after she sought to evict him," according to this AP story. In South Bend, a new homeowner discovered small pools of mercury in the soil next to the home foundation. According to this story today in the South Bend Tribune:
The mercury contamination outside a Clay Township home is far more extensive than first thought, and cleanup costs could reach six figures, according to one official.

Shawn McGirr, regional manager for Sunpro Environmental and Electrical Services, of Elkhart, said he called a halt to cleanup operations after his crew dug 4 feet deep near the foundation of the house and still was finding beads of mercury. McGirr initially estimated up to 1 pound of the toxic metal may be underground. Now, he believes it may be up to 5 pounds.

Air Quality. The Evansville Courier-Press reports today:
Southwestern Indiana may be far more extensively affected by upcoming air quality ratings than state officials had hoped. Early next week, the U.S. Environmental Protection Agency is expected to release a list of Indiana counties not in compliance with new regulations for fine particle air pollution. In February, Indiana Gov. Joe Kernan recommended that the EPA declare only six counties, including Vanderburgh and Dubois, in nonattainment. * * * However, IDEM believes the EPA may add 11 counties to the list - Floyd, Dearborn, Morgan, Hendricks, Hamilton, St. Joseph, Porter, Warrick, Gibson, Pike and Spencer. Vanderburgh and Warrick counties are already in nonattainment for ozone pollution.
Toxic release inventory. The Indianapolis Star had a comprehensive story this morning on the newest U.S. Environmental Protection Agency's Toxics Release Inventory report.

Posted by Marcia Oddi at 04:32 PM

Indiana Law - New Indianapolis law firm opens

David Hatchett and Jim Hauck, formerly of Baker & Daniels, this week opened the firm of Hatchett & Hauck LLP. Offices are at Market Tower in downtown Indianapolis. Both partners have extensive experience in Environmental Law, having worked with large utilities and industries as well as small and medium manufacturers. They can be reached at 317-464-2620 or david.hatchett@h2lawyers.com or james.hauck@h2lawyers.com.

Posted by Marcia Oddi at 03:29 PM

Indiana Decisions - Two Supreme Court Decisions, One Court of Appeals Today

Edward J. Niksich v. Zettie Cotton & Steve Van Cleave (6/24/04 IndSCt) [Civil Procedure]
Boehm, Justice

We hold that a small claims notice of claim is sufficient if it states the general nature of the claim. A notice of claim need not allege facts that establish a right to recovery. However, a small claims court may grant a defendant’s motion to dismiss the notice of claim if it is apparent from the face of the notice of claim that the plaintiff is precluded from recovery. If the dismissal is for failure to meet a pleading requirement applicable to the particular claim, the plaintiff is entitled as of right to file an amended notice of claim within the ten-day period allowed by Trial Rule 12(B). Finally, an incarcerated plaintiff does not have an absolute right to be present at a civil trial. * * *

The trial court refused either to issue a transport order or to hold the trial at the prison. That issue was mooted by the trial court’s dismissal of the notice of claim. However, because the issue will recur on remand, we address it now. Niksich contends this violated his constitutional right to bring and maintain a civil action. Niksich has the right to bring a civil action. He does not have an absolute right to be present as a matter of federal due process. * * * Niksich may seek to submit the case through documentary evidence, to conduct the trial by telephonic conference, to secure someone else to represent him at trial, or to postpone the trial until his release from incarceration. * * *

Conclusion. The trial court’s dismissal of Niksich’s amended notice of claim is reversed. The denial of Niksich’s request for a transport order is affirmed. This case is remanded for further proceedings.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.

Charles Black v. State of Indiana (6/24/04 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice
Defendant Charles Black was arrested at an auto repair shop after having parked and exited his car. A police search of the vehicle yielded contraband. He contends the search violated his rights under the Fourth Amendment to be free from unreasonable searches and seizures. The United States Supreme Court held in a 1981 decision that when a police officer has made a lawful custodial arrest of an occupant of an automobile, the Fourth Amendment allows the officer to search the passenger compartment of that vehicle as a contemporaneous incident of arrest. New York v. Belton, 453 U.S. 454, 460 (1981). In a new decision, the high court has held that Belton's rule is not limited to situations where the officer makes contact with the occupant while the occupant is inside the vehicle, but that it applies as well if the officer first makes contact with the arrestee after the latter has stepped out of his vehicle. Thornton v. United States, 124 S.Ct. 2127, 2004 U.S. LEXIS 3681 (May 24, 2004). * * *

In this case, officers had probable cause to arrest the defendant lawfully because he was operating a motor vehicle while his license was suspended. Defendant admitted to having an invalid license and does not challenge the legality of his arrest. The subsequent search of defendant's vehicle was a contemporaneous incident of his arrest and clearly permissible under Thornton.

Conclusion. Having previously granted transfer pursuant to Ind. Appellate Rule 58(A), we now affirm the trial court’s denial of defendant’s motion to suppress.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

Jeffrey D. Pritchard v. State of Indiana (6/24/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Jeffrey Pritchard appeals his conviction for Battery, a class A misdemeanor. Specifically, Pritchard raises three issues, which we consolidate and restate as whether the trial court properly allowed into evidence testimony regarding what two witnesses saw on a video recording that no longer existed on the day of the trial. Finding that the testimony was not inadmissible hearsay and that the silent witness theory does not apply, we affirm. * * *

Having said that, we find it disturbing that such an important piece of evidence was “purged” before it could be presented at trial. Clearly prison officials knew how important the recording would be inasmuch as they viewed it immediately following the incident. We strongly encourage prison officials to make all efforts to preserve such a recording when future incidents occur so that it may be presented at trial. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Posted by Marcia Oddi at 01:48 PM

Indiana Decisions - Four 7th Circuit Opinions Today

CARBAJAL, ROY v. H&R BLOCK (ND Ill.)

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * Is enforcement of this clause unconscionable? How could it be? Arbitration is just a forum; people may choose freely which forum will resolve their dispute. This is so when the agreement concerns venue within a judicial system, and equally so when the agreement specifies a non-judicial forum.

The whole deal, including ¶6, was offered on a take-it-orleave-it basis, which leads Carbajal to call it a “contract of adhesion,” but few consumer contracts are negotiated one clause at a time. Forms reduce transactions costs and benefit consumers because, in competition, reductions in the cost of doing business show up as lower prices (here, a slightly lower rate of interest on the loan). The forum selection clause in Carnival Cruise Lines was printed on the back of a ticket, and the Court nonetheless enforced it—just as the terms of limited warranties and many other provisions not negotiated separately are enforced routinely. We observed in Metro East Center for Conditioning and Health v. Qwest Communications International, Inc., that what holds true for warranties holds true for arbitration.

Section 2 of the Federal Arbitration Act says that an agreement to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Thus arbitration specified in a form contract must be treated just like any other clause of the form. Unless Delaware (whose law applies) would refuse to enforce limited warranties, clauses curtailing the time available to file suit, and the like, then this arbitration clause must be enforced. Carbajal does not offer any reason to think that Delaware generally refuses to enforce details on the back of an auto-rental contract or equivalent form; thus this agreement to arbitrate is valid. The cry of “unconscionable!” just repackages the tired assertion that arbitration should be disparaged as secondclass adjudication. It is precisely to still such cries that the Federal Arbitration Act equates arbitration with other contractual terms. People are free to opt for bargain-basement adjudication—or, for that matter, bargain-basement tax preparation services; air carriers that pack passengers like sardines but charge less; and black and white television. In competition, prices adjust and both sides gain. “Nothing but the best” may be the motto of a particular consumer but is not something the legal system foists on all consumers.

CASTELLANO, ROBERTA v. WAL-MART STORES INC (SD Ill.)
Before FLAUM, Chief Judge, and BAUER and MANION, Circuit Judges.
BAUER, Circuit Judge. Plaintiffs brought this action in the district court, charging breach of contract, invalidity of a lease amendment, breach of implied covenant of good faith and fair dealing, and two counts of fraud. The district court resolved all issues against the Plaintiffs through summary judgment and judgment as a matter of law. We review both summary judgment and judgment as a matter of law de novo. * * * Affirmed.
DABERTIN, JUDY v. HCR MANOR CARE INC (ND Ill.) ERISA. "The district court held that the Committee was arbitrary and capricious in denying Dabertin’s claim for severance benefits. We affirm in all aspects save for one minor housekeeping matter which we remand for further consideration."

USA v. ROACH, ELIZABETH (ND Ill.) Sentencing appeal. Affirmed.

Posted by Marcia Oddi at 12:54 PM

Law - Ring v. Arizona not retroactive

The U.S. Supreme Court today reversed a 9th Circuit ruling that Ring v. Arizona is retroactive. As reported here in the Washington Post:

It was issued on the two-year anniversary of the Supreme Court's ruling that the constitutional right to a trial by jury means that jurors should weigh factors that determine whether a particular killing merits death or life in prison. Justices said in the follow-up decision that the 2002 ruling does not apply retroactively.

The case involved the biggest death penalty issue of the court's term, which is expected to end next week. Next fall, justices will consider a broader subject, whether it is unconstitutional for states to execute people who committed their capital crimes when they were juveniles.

In Thursday's case, justices ruled against Arizona prisoner Warren Wesley Summerlin, sentenced to die more than 20 years ago by a judge who later lost his job because of a drug problem. Summerlin was convicted of raping and bludgeoning to death a bill collector who came to his house in 1981 to collect a payment for a piano.

The 2002 Supreme Court ruling, Ring v. Arizona, forced changes in the death penalty laws of Arizona, Montana, Idaho, Nebraska and Colorado, because those states left it to judges to determine whether a killer should be executed. The ruling also cast doubt on death-sentencing procedures in other states [including Indiana] that used a combination of juries and judges to impose death sentences.

The case is Schriro v. Summerlin. Here is the 9th Circuit opinion; here is the Medill School of Journalism "On the Docket" writeup; here is the Supreme Court decision issued today.

Posted by Marcia Oddi at 10:24 AM

Indiana Decisions - More Reports on Yesterday's Oral Arguments

Lake County property tax reassessment. "Court hears tax bill case" from the Munster Times:

The Miller Citizen Corp.'s lawyer said the 2001 law authorizing the hiring of an outside company rather than elected assessors was unconstitutional because it singled out Lake County. The attorney general's office said the outcome -- and supersized tax bills in Miller and North Township -- wouldn't have changed regardless of who did the assessment.

"It changes the who but not the how," said Joby Jerrells, a deputy attorney general. "Because it does not change the methodology, it's not unconstitutional special legislation."

Much of the argument focused on whether the assessment outcome would have been different without the special legislation cutting local assessors out of the picture. This point is crucial, because a recent ruling on special legislation found another law unconstitutional because the Legislature gave no reason why the special treatment was necessary.

Jerrells argued the special law was necessary because Lake County assessors had a long history of unfair underassessment of certain property.

The outcome argument hinged on the Miller group's belief that assessing the county's Big Four industries separately from all other property led to a shift in the tax burden to homeowners from industry. Kenneth Reed, lead attorney for the Miller citizens, said local township assessors would have kept the dual groups in proportion to their worth rather than allow a significant shift that devalues homes with high tax burdens.

From the Gary Post Tribune:
The justices are caught between two of their own decisions — their 1998 ruling in the St. John case that declared the old assessment system unconstitutional and the South Bend Kimsey case prohibiting special legislation.

Their 1998 ruling eventually led Tax Court Judge Thomas Fisher to set a statewide deadline to have a new assessment system in place for taxes due in 2003.

Hoping to stay out of Tax Court and delay future bills with the new assessment figures, the Miller Citizens Corp. argued the 2002 law that allowed the independent reassessment of Lake County was special legislation, which was deemed illegal by the high court in the 2003 Kimsey decision.

“It sounds like the statute does contradict Kimsey, but the legislature didn’t know it at the time,” said Justice Frank Sullivan, speaking to Toby Jerrells, the deputy attorney general arguing the case for the government.

Though Lake County was the only county in the state required by lawmakers to have an independent reassessment, the attorney general has argued it wasn’t illegal special legislation because the same assessment rules — use of market values to determine taxing values — applied to everyone around the state.

Zoning Issue.The Gary Post Tribune coverage has this headline "St. John zoning change in court." Some quotes:
The Indiana Supreme Court heard arguments Wednesday over whether St. John can stop the rezoning of a busy intersection, even if the rezoning is in line with the town’s master plan.

Chester Borsuk owns a lot a short block west of the U.S. 41/U.S. 231 intersection, facing Ontario Street. Half of the less-than-an-acre parcel is zoned commercial and the other half has a house on it and is zoned residential.

The town denied Borsuk’s request in 2000 to rezone the residential half to commercial, despite a 1990 town master plan that said the area should become commercial.

“They are the ones who said it should become commercial. They are the ones who have to make a compelling argument why it should not be,” said Michael Muenich, Borsuk’s attorney.

Zoning disputes typically don’t land in the Supreme Court, but the lot is in a busy intersection in St. John, and it would be valuable if it were available for business development. Most of the property in the area already has been rezoned commercial.

Posted by Marcia Oddi at 10:05 AM

June 23, 2004

Environment - Stories Today

Clean Air Act. "Hammond firm faces pollution violations" reports the Gary Post Tribune today in this story about Jupiter Aluminum Corp. "The EPA said Jupiter violated some Clean Air Act rules for secondary aluminum production. The rules had to do with such issues as running performance tests, implementing a monitoring plan and issuing reports on pollution-control equipment. The EPA regulations for aluminum plants like Jupiter’s are relatively recent, Schoenfield said; they went into effect in March 2003. 'We believe that when we complete the testing and documentation, we will be shown to be in substantial compliance,' Schoenfield said. Jupiter also is negotiating with IDEM to resolve alleged air and waste violations."

Landfill. According to the Columbia City Post&Mail:

A former Whitley County landfill is being sold to the highest bidder. A 38-acre tract of land located on the east side of C.R. 125W is scheduled to be auctioned on June 29, despite the wishes of Whitley County officials, who say the land is a liability.

Due the land's prior use, the Indiana Department of Environmental Management has placed regulations on the property's future use. County officials would like to ensure the proper use of the land, because they are, in part, responsible for maintaining the land's integrity. "A lot of things need to be done to maintain this property; I am not sure people wanting to buy it realize that," said Jeff Gage, Whitley County attorney.

More landfill. This from the Muncie Star Press:
WINCHESTER - Randolph Farms Landfill will become the highest elevation in Indiana and one of the largest landfills in the state if its proposed expansion is approved, opponents told the Board of Zoning Appeals of Randolph County Monday night. "We have the makings of a future tragedy," warned Lee Lumpkin, an elderly farmer. "This landfill will haunt Randolph County." Randolph Farms is seeking a special exception to expand from 120 acres to 320 acres, which could keep it in operation another 50 years.
Toxic emissions report. The Washington Post reports today on the annual toxic emissions report:
Industry released 5 percent more toxic chemicals into the environment in 2002 than the year before, the Environmental Protection Agency reported yesterday. The latest statistics, compiled in the agency's annual Toxic Release Inventory, represent a setback: In 2001, according to the inventory, toxic emissions had declined by about 16 percent. Environmental groups, moreover, charged yesterday that polluters were releasing four to five times more toxic material than they reported.

Kim Nelson, who directs the EPA's Environmental Information Office, said much of last year's increase was caused by an Arizona-based copper smelting facility that closed and had to dispose of significant waste material. Without that facility, she said, emissions dropped by 3 percent nationwide. * * *

The 2002 figures marked the first time since 1997 that reported emissions increased. Releases of lead increased 3.2 percent and mercury jumped by 10 percent, though Nelson attributed the mercury increase to a single gold mine. However, emissions of dioxin, a carcinogenic byproduct of various industrial processes, fell by 5 percent.

Phil Clapp, president of the National Environmental Trust, disputed the EPA's explanation of the 2002 increase. "The growth in emissions is too big to be explained away by pointing at a smelter here or a factory there," he said. "This is an across-the-board increase in pollution."

In addition, two environmental groups released a study yesterday that suggested the government figures sharply understated emissions. They based their critique on findings by the Texas Commission on Environmental Quality, which determined the concentration of toxic substances in the air around refineries and chemical plants was far higher than the figures reported to state and federal authorities.

More about toxic emissions. The Louisville Courier Journal also cites from the "report by two environmental group" in this story:
Industrial plants across the country might be under-reporting their toxic emissions by as much as 16percent because of weaknesses in the federal reporting system, according to a study released yesterday by two environmental groups. [Here is a summary of the report; the links to the two groups and the complete report are below]

The problem, they say, is that the U.S. Environmental Protection Agency and states do not require enough actual air monitoring to verify the companies' annual pollution reports.

And the companies generally base their reports on computer calculations and modeling that often are "outdated and inaccurate," says the report by the Environmental Integrity Project, based in Washington, D.C., and the Galveston-Houston Association for Smog Prevention, based in Texas.

"Systematic under-reporting happens today because most air pollution is now estimated — not monitored," said Kelly Haragan, Environmental Integrity Project counsel. "To make matters worse, the `guesswork' is being done by the polluters who have the incentives to keep the numbers as low as possible."

Stormwater. "Angola's runoff to get legal test: Residents worry stormwater permitting lacks public input" is the headline to this story published yesterday in the Fort Wayne News Sentinel. Some quotes:
Challenges faced by Angola dealing with stormwater are similar to those of many communities in Indiana and the Midwest. But the situation in the Steuben County city could take on statewide significance if the Sierra Club, an environmental-advocacy organization based in San Francisco, follows through with a plan to intervene in the McCoys' appeal of Angola's state stormwater-discharge permit.

At issue is whether the state provided for enough public input when developing the permit process, known as Rule 13, said Tom Neltner, an Indianapolis attorney who is handling the McCoys' appeal pro bono. Neltner is founder of Improving Kids' Environment based in Indianapolis, another environmental-advocacy organization.

The stormwater-permitting process was required by the U.S. Environmental Protection Agency. In a California case, however, a federal court ruled EPA regulations were too broad and did not allow for sufficient input, Neltner said.

Based on the federal court decision, Neltner and the McCoys are challenging the Indiana Department of Environmental Management's proposal to issue a general stormwater permit to Angola. In an appeal filed with an Indiana administrative law judge in Indianapolis, they argue IDEM's stormwater-permit process fails to give residents enough input setting detailed discharge requirements for their community. The appeal currently is scheduled for final hearing Jan. 19.

The Sierra Club became interested because, if the McCoys win, the decision could be applied to 148 Indiana cities and towns also going through the stormwater-permit process, said Orli Cotel, Sierra Club spokeswoman. If the federal government doesn't pass regulations adequately protecting residents, the state of Indiana should, Cotel said. "You can always have higher than the minimum standard."

IDEM has had EPA attorneys review Indiana's stormwater-permit process, said Cyndi Wagner, chief of the agency's wet weather section. EPA attorneys believe IDEM's rules are structured differently and won't be voided by the federal court ruling. She believes any challenge to IDEM's rules will have to be done on a community-by-community basis, instead of a statewide level.

Posted by Marcia Oddi at 06:50 PM

Indiana Decisions - Reports on Today's Oral Arguments in Lake Co. Reassessment Case

WISHTV has this report this afternoon, complete with photos of the packed courtroom.

The Indianapolis Star has this story

Posted by Marcia Oddi at 04:49 PM

Indiana Decisions - One Supreme Court and Three Court of Appeals Postings Today

Loretta Baca v. New Prime, Inc. (6/23/04 IndSCt) [Confict of Laws]
Shepard, Chief Justice

After an accident in eastern Indiana involving residents of multiple states, the ensuing litigation has necessitated deciding certain choice-of-law questions. Because we issued an important decision on choice of law while this case was pending, we remand for further consideration. * * *

The trial court held that Indiana negligence law governed and granted New Prime summary judgment. Loretta appealed to the Indiana Court of Appeals, which affirmed. See Baca v. New Prime, Inc., 763 N.E.2d 1014 (Ind. Ct. App. 2002). We granted transfer.

While this appeal has been pending, we have decided another choice-of-law case on certified questions from the U.S. Court of Appeals for the Third Circuit. Simon v. United States, 805 N.E.2d 798 (Ind. 2004). In the course of doing so, we re-affirmed our leading case on lex loci delecti, Hubbard Manufacturing Co. v. Greeson, 515 N.E.2d 1071 (Ind. 1987), and indicated that we had elected not to adopt the Restatement (Second) of Conflict of Laws (1971).

Also significant for purposes of this case, we considered for the first time whether Indiana choice-of-law doctrine embraces dépeçage, the process of applying separately the law of different states within the same case. We declined to adopt dépeçage, saying we would not “separately analyze and apply the law of different jurisdictions to issues within each claim” of a suit. Id. at 802.

This holding in Simon will not necessarily lead to a different resolution than the one reached by the trial court and the Court of Appeals in this case. The plaintiff argued and briefed this case in substantial reliance on the Restatement (Second), however, and neither party took into account the applicability or inapplicability of the doctrine of dépeçage. We think it appropriate to give the parties and those courts a chance to brief and consider the issues with benefit of our recent decision. Accordingly, we remand to the trial court for consideration in light of Simon v. United States.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

The Indiana Supreme Court's 3/31/04 decision in Simon v. United States is covered in this Indiana Law Blog entry.

John D. May v. State of Indiana (6/23/04 IndCtApp) [Criminal Law & Procedure]VAIDIK, Judge

John D. May appeals his conviction for burglary. Because the jury could have concluded that May broke and entered a building with intent to commit theft but did not commit theft, we conclude that May’s conviction for burglary and acquittal on theft are not inconsistent. Also, we conclude that the evidence is sufficient to support May’s conviction for burglary. However, because the trial court failed to follow statutory requirements when imposing a $750 public defender services fee, we remand this case with instructions to vacate the fee. * * *

Because the trial court failed to follow the steps that must be taken before imposing a public defender services fee, we remand this case with instructions for the trial court to reverse its assessment of the $750 public defender services fee. On remand, if the trial court wishes to impose a public defender services fee, the court must follow the statutory requirements. Affirmed in part, reversed in part, and remanded.
SULLIVAN, J., and MAY, J., concur.

Delrick L. Dandridge v. State of Indiana (6/23/04 IndCtApp) [Criminal Law & Procedure]MATHIAS, Judge
Delrick Dandridge (“Dandridge”) was convicted of Class A felony dealing in cocaine and Class A misdemeanor resisting law enforcement in Tippecanoe Superior Court. He appeals and raises the following issues: I. Whether evidence obtained as a result of his arrest should be suppressed because the State failed to establish that there was an existing arrest warrant; and, II. Whether the evidence was sufficient to support his conviction for dealing in cocaine. We affirm. * * *

The evidence obtained from Dandridge’s lawful arrest and the search incident to his arrest was properly admitted at trial. Also, Dandridge’s Class A felony conviction for dealing in cocaine is supported by sufficient evidence. Affirmed.
SHARPNACK, J., and VAIDIK, J., concur.

Danny F. Haggard v. State of Indiana (6/23/04 IndCtApp) [Criminal Law & Procedure]
SULLIVAN, Judge
Danny Haggard appeals from the denial of his petition for post-conviction relief. He presents one main issue for our review, whether he received ineffective assistance of appellate counsel. We affirm in part, reverse in part, and remand. * * *

The acts constituted one episode of criminal conduct, and there is no reason to conclude anything other than that restriction on consecutive sentences applies to convictions for the unlawful use of body armor. Thus, Haggard’s appellate counsel was ineffective for failing to present the issue, and the cause is remanded to the trial court to enter a sentence which conforms to the statutory restrictions. As a second issue pertaining to his claim of ineffective assistance of counsel, Haggard claims that his convictions for resisting law enforcement and battery resulting in injury violate the prohibitions against double jeopardy. Specifically, he claims that the convictions are both based upon the single act of biting Officer Sollars. * * * However, while the same type evidence was relied upon to prove both claims, the same evidence was not used because Officer Sollars testified that Haggard bit him twice and that the bites inflicted pain. Thus, there was no double jeopardy violation and Haggard’s appellate counsel could not be ineffective for failing to present the issue upon appeal.
The decision of the post-conviction court is affirmed in part and reversed in part, and the cause is remanded for further proceedings not inconsistent with this decision.
MAY, J., and VAIDIK, J., concur.

Posted by Marcia Oddi at 02:11 PM

Law - Unsolicited Testimonial for SCOTUS blog

SCOTUSblog, the law blog of the appellate firm Goldstein & Howe, P.C., always a daily must-read, has now become even more so with the addition of frequent analysis pieces by Lyle Denniston, and more postings by firm members.

The Denniston analysis piece posted this morning on the legal strategies being employed among gay rights advocates is just the most recent example; scroll down a bit to see firm partner Amy Howe's most recent entry. In addition are extensive links to the current reportage on the Supreme Court's decisions from other contributors.

Posted by Marcia Oddi at 01:59 PM

Indiana Decisions - Two 7th Circuit Opinions Today

USA v. GILLAUM, DURRIEL E. (WD Wis.)

Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. A jury found Durriel Gillaum guilty of possession of a firearm by a felon and sentenced him to a prison term of 188 months. On appeal, Gillaum challenges the execution of the search warrant that uncovered the prohibited firearm, his interrogation, the failure of the government promptly to disclose a police report to defense counsel, the calculation of his prison sentence, and the constitutionality of the federal felon-in-possession of a firearm statute. We affirm.
XECHEM INCORPORATED v. BRISTOL-MYERS SQUIBB (ND Ill.)
Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. The Hatch-Waxman amendments to the Food and Drug Act entitle pharmaceutical companies that first bring a drug to market to a five-year period of exclusivity, even if the drug is unpatented. 21 U.S.C. §355. Bristol-Myers Squibb was first to market with paclitaxel, a compound derived from the bark of the yew tree and useful in combating some cancers. Bristol-Myers calls its formulation Taxol®, which has been a commercial success. The exclusivity period was due to expire in July 1997, and many other drug producers geared up to sell generic paclitaxel once the market opened. * * *

Xechem is a maker of generic drugs. It makes and sells paclitaxel throughout the world—but not in the United States, where it has never filed the ANDA necessary to obtain approval. It began this antitrust suit in 2003, contending that the maneuvers we have described, and a few others besides, excluded rivals and exposed consumers to elevated prices. The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6), see 274 F. Supp. 2d 939 (N.D. Ill. 2003), concluding that the suit is untimely—that the four years allowed by 15 U.S.C. §15b began in 1997, when Xechem did not file an ANDA, and thus expired before this litigation started. * * *

That Xechem still has not filed an ANDA for paclitaxel, even though Bristol-Myers has not listed a patent for Taxol in the Orange Book since 2002, is a hurdle that it must vault to establish injury. But a prediction that the plaintiff will be unable to meet its challenges is not a good reason to dismiss a complaint under Rule 12(b)(6). If Bristol-Myers should make and support a motion for summary judgment under Fed. R. Civ. P. 56, then the district court could conduct the necessary analysis on an evidentiary record.
REVERSED AND REMANDED

Posted by Marcia Oddi at 01:31 PM

Law - Interesting background on a judge's ruling that federal sentencing laws are unconstitutional

An Adam Liptak article in the NY Times presents some interesting background to Judge Young's ruling Monday [emphasis added]:

A federal judge in Boston ruled on Monday that federal sentencing laws were unconstitutional because they gave prosecutors too much power.

In an impassioned 177-page decision, the judge, William G. Young, described a system in which prosecutors used various strategies to reward those who pleaded guilty and to impose exceptionally harsh sentences on those who chose to stand trial and then lost. * * *

Judge Young's opinion is representative of many federal judges' dissatisfaction with their limited role in criminal sentencing, said Frank O. Bowman, a law professor at Indiana University and an author of a treatise on the subject. The decision is, he said, "a long cry of anguish about the state of federal sentencing, which, while perhaps a little overheated, is an excellent summary of the current state of things."

Judge Young relied on two recent Supreme Court cases to hold the sentencing guidelines unconstitutional. Though the later of the cases was decided in 2002, he wrote that he had not fully appreciated their significance until he read an article by William J. Trach, then a student at Harvard Law School, in the February Harvard Law Review.

The two cases, Judge Young reasoned, require that all facts that increase the punishment to which a defendant is exposed be proved to a jury. But sentencing hearings take place before only judges, and the rules of evidence do not apply.

"Courts today," he wrote, "must base their conclusions on a mishmash of data including blatantly self-serving hearsay" presented by prosecutors. The data, he wrote, often include information about crimes with which the defendants have never been charged and even crimes of which they have been acquitted.

Because the sentencing guidelines allow judges to increase sentences based on such material, he continued, the procedure can be unconstitutional in given cases.

The 174-page sentencing memoranda itself, dated June 18, is available here.

Posted by Marcia Oddi at 09:04 AM

Indiana Law - Feds order corrections to East chicago election process

"Justice agents order change for E.C. voting" is the headline to this story today in the Gary Post-Tribune. Some quotes:


CROWN POINT — U.S. Justice Department investigators painted a chaotic picture of East Chicago during the primary election as it orders the county to produce a plan to fix its election process.

Inspectors for the Justice Department Civil Rights Division visited 27 of the 32 polls in East Chicago during the May 4 primary and found that voters were turned away at the polls for not showing ID, sloppy training and bilingual translators not fluent in Spanish and who, in one case, did not speak Spanish. They found poll workers untrained in the Help America Vote Act and requirements to allow people to cast provisional ballots were put in place across the country after the 2000 elections. * * *

Federal inspectors have been reluctant to comment on their monitoring of the East Chicago primary. They responded to a complaint by the Mexican American Legal Defense and Educational Fund, after stories of disenfranchised minority voters began pouring out of court cases.

Elections in East Chicago are plagued with problems, including federal indictments for electioneering dating back to the 1999 mayoral primary. Former City Councilman George Pabey is still waiting for the state Supreme Court to rule on whether it will overturn the results of his 2003 primary loss to incumbent Mayor Robert Pastrick. * * *

MALDEF is considering filing a complaint with the state Election Commission. Its attorneys are talking to at least 10 voters who said they were turned away from the polls for not providing identification.

The law only allows first-time voters who registered at outlets like the Department of Motor Vehicles to be required to show ID. Even those who are not allowed to vote, are given provisional ballots to fill out which can be checked at voter registration election night.

Posted by Marcia Oddi at 08:43 AM

Indiana Decisions - Lake County assessment oral arguments today

As reported in this entry Monday, the Indiana Supreme Court this morning will hear three oral arguments, including the Lake County reassement case, Attorney General v. Lake Superior Court. The Gary Post-Tribune reports here today:

Attorneys representing members of Gary’s Miller Citizens Corp. this morning were to make their case before the state Supreme Court: The bills, or at least the countywide appraisal of home values they’re based on, violate the state constitution’s requirement that laws not treat one part of the state differently from the rest. The MCC hopes the high court will rule before tax bills come due July 12, but the state attorney general contends the suit should have to work its way through tax courts.

Legislators unanimously passed a law requiring Lake County to hire a private firm to conduct the reassessment of all real estate except the property of the county’s four largest tax payers: U.S. Steel, Ispat/Inland, BP Amoco and International Steel Group. The laws, homeowners argue, are unconstitutional “special legislation.” Furthermore, the state Department of Local Government Finance assessed the “Big Four” property, coming up with values that were significantly lower than in previous years. The shift in values was the largest factor in the skyrocketing tax bills that struck homeowners in parts of the county, especially areas of older towns where large industrial taxpayers once were the majority of the tax base.

A question is whether this is unconstitutional "special legislation" under the Indiana Constitution:
The legislation does not specify Lake County by name, it applies only to a county with a population with “more than 400,000 but less than 700,000”— a criteria that fits none of the other 91 counties in the state. A section of the laws dealing with assessments on “industrial facilities” applies only to sites that have values greater than $25 million, a category that includes only the Big Four. * * *

Constitutional law experts have noted the Indiana Code contains hundreds of laws singling out regions, but note legislators must have a compelling reason for treating a part of the state differently from others. In the case of the Lake County assessment, a reason seems to have been that local politics would prevent an objective appraisal. While investigations by the Post-Tribune have highlighted a long-term pattern of inconsistent appraisals in some parts of the county, Levinson isn’t sure the court will agree a special law was required. * * * A 2003 Supreme Court ruling, City of South Bend vs. Kimsey, would seem to reinforce the constitutional claim against “special legislation.”

However, special legislation is not totally prohibited by Kimsey. For links to Kimsey and analysis, go to the end of this Indiana Law Blog entry.

Posted by Marcia Oddi at 08:32 AM

June 22, 2004

Indiana Decisions - Five Supreme Court Decisions Today

Darrell Forbes v. State of Indiana (6/22/04 IndSCt) [Criminal Law & Procedure]
Boehm, Justice

Darrell Forbes was transported to a hospital in Kentucky after a car he was driving crashed in a single car accident in Indiana which resulted in Michael Smith’s death. The State issued a subpoena to the hospital for his blood alcohol content test results, but the subpoena was not issued in full compliance with the Uniform Act to Secure the Attendance of Witnesses from Without the State. Ind. Code § 35-37-5-1 (1998). Forbes was charged in Indiana with operating while intoxicated and operating with a BAC of .10% or more. We hold that the hospital’s compliance with the subpoena despite its noncompliance with the Uniform Act renders the test admissible in evidence in the Indiana court. * * *

Conclusion. The trial court’s ruling denying Forbes’s motion to suppress is affirmed. This case is remanded to the trial court for further proceedings.
Shepard, C.J., and Dickson, Sullivan and Rucker, JJ., concur.

Fulton County Advisory Commission v. Gregory L. & Annette K. Groninger (6/22/04 IndSCt) [Planning & Zoning]
Sullivan, Justice
The Fulton County Plan Commission required the applicants for approval of a new subdivision to modify the location of the roadway entrance to reduce impaired visibility. The trial court and Court of Appeals reversed the Plan Commission on grounds that the Commission’s “Vision Clearance Standards” were not sufficiently precise to meet the notice requirements of applicable law. We find that the Standards provided the applicants with the notice they were due because the Standards were sufficiently precise when they advised applicants that approval of proposed subdivision entrances would be contingent upon the county zoning administrator finding that the entrance would not create a visual impairment. * * *

Conclusion. The Vision Clearance Standards contained in Article 5.13 of the Fulton County Zoning Ordinance are sufficiently “concrete” and “precise” to provide notice to plat applicants of the standards that are used to determine whether a roadway entrance creates a visual impairment. Furthermore, Fulton County is not estopped from denying the Groningers’ plat application.

Having previously granted transfer, we now reverse the judgment of the trial court and remand to the Fulton County Advisory Plan Commission for final review of the Groningers’ proposed primary plat application consistent with this opinion.
Shepard, C.J., Dickson, Boehm, and Rucker, JJ., concur.

Indiana Department of Revenue v. 1 Stop Auto Sales, Inc. (6/22/04 IndSCt) [Taxation]
Sullivan, Justice
The Tax Court held that 1 Stop Auto Sales, Inc., an auto dealership that financed its customers’ purchases, was not required to reduce the amount of its bad debt deduction by the value of repossessed collateral when calculating its sales tax liability. We reverse the Tax Court’s decision, finding that the Legislature intended that only the net debt that is unable to be collected may be deducted for these purposes. * * *

Conclusion. We hold that the bad debt deduction for which 1 Stop was entitled was limited to that portion of the amount of its receivables equal to the amount written off for federal income tax purposes. The judgment of the Tax Court is reversed.
Shepard, C.J., Dickson, and Boehm, JJ., concur.
Rucker, J., concurs in result.

Keith Patton v. State of Indiana (6/22/04 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice
Keith Patton pled guilty to attempted murder without knowing that specific intent to kill was an element of that offense. A defendant who pleads guilty need not be aware of each of the elements of the offense so long as the defendant receives real notice of the true nature of the charge or that the absence of such notice is harmless beyond a reasonable doubt. However, there is no evidence that Patton received such notice with respect to the attempted murder charge or that he acted with specific intent to kill. We hold that under these circumstances, his guilty plea was invalid. Patton’s sentence of 192 years for his other convictions remains in effect. * * *
Shepard, C.J., Dickson, Boehm, and Rucker, JJ., concur.
Thomas Breitweiser, et al. v. Indiana Office of Environmental Adjudication, et al. (6/22/04 IndSCt) [Administrative Law]
Shepard, Chief Justice
The Breitweisers filed a petition with the Indiana Department of Environmental management (IDEM) to halt an animal feeding operation. The petition was initially handled by an administrative law judge, whom the Breitweisers moved to disqualify. She recused, and the chief ALJ assumed responsibility for the case. He refused the Breitweiser’s request that he also disqualify and entered a default judgment against them.

The question before us is: does a petitioner’s motion to disqualify an ALJ at IDEM relieve that party of the statutory necessity under the Administrative Orders and Procedures Act to respond to a possible default? We say no. * * *

It was well within the Breitweiser’s right to decide not to reply to the proposed notice of default, as they suggest. Judge Penrod, on the other hand, was compelled by statute to issue a default ruling against the Breitweisers when they did not submit a response to the proposed notice of default within seven days.

The legislature has also said that a person has “waived (his) right to judicial review” when he fails to follow the default guidelines provided under [IC] 4-21.5-5-4(b). * * *

So what could the Breitweisers have done? The Breitweisers had the option to respond to the notice of default while they continued to pursue disqualification of Judge Penrod. Had they succeeded on judicial review, we expect the earlier administrative rulings would have been set aside. Because they elected not to respond as AOPA permits, AOPA specifies the consequences. Conclusion. We affirm the trial court’s decision.

Sullivan, and Boehm, JJ., concur.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs:

The majority relies upon the Breitweisers' failure to timely respond to the proposed notice of default. The Breitweisers point out, however, that they did respond within the time allowed. They filed a verified complaint for writ of mandate, for temporary restraining order, and for preliminary and permanent injunction against the OEA and Judge Penrod, which clearly asserted their claim that Judge Penrod should be disqualified and "could not properly make any decisions in the case let alone an entry of default."

Particularly significant is the fact that it was only after the Breitweisers filed motions to disqualify Judge Penrod and to vacate his orders, and for an expedited ruling on such motions, that the judge immediately entered his notice of proposed default against them. * * * The judge's issuance of the order suggests the possibility that it was motivated by vindictive retaliation.

Recognizing the importance of a neutral, unbiased adjudicatory decisionmaker as a core requirement of fair adjudicatory decision-making, the Court of Appeals concluded that the Breitweisers were entitled to judicial review on the merits of their claim that Judge Penrod improperly denied the disqualification motion. Breitweiser v. Indiana Office of Environmental Adjudication, 775 N.E.2d 1175, 1182 (Ind. Ct. App. 2002). I agree.
Rucker, J., concurs.

Posted by Marcia Oddi at 01:49 PM

Indiana Decisions - Three from the 7th Circuit today

JOHNSON, PAMELA E. v. LARABIDA CHILDREN'S HOSPITAL (ND Ill.)

Before COFFEY, KANNE, and EVANS, Circuit Judges.
COFFEY, Circuit Judge. Plaintiff-appellant Pamela Johnson brought suit against her former employer, LaRabida Children’s hospital in Chicago, Illinois, alleging that her civil rights had been violated, pursuant to 42 U.S.C. § 1983, when she was struck in the head by security guard Tommy Stephens while attempting to gain access to the facility. The district court granted LaRabida’s motion for summary judgment under Fed. R. Civ. P. 56(c), finding Johnson had failed to provide sufficient proof to demonstrate that Stephens was a state actor within the meaning of § 1983. We affirm.
MAYNARD, HARRY v. NYGREN, KEITH (ND Ill.) CUDAHY, Circuit Judge. Discusses the appropriate discovery sanction. Concludes: "Given the unlikelihood that Maynard would prevail at this point if allowed to go to trial, it would seem to be a waste of resources for all involved if we were to reverse the district court’s decision to dismiss Maynard’s suit as a sanction for his discovery violations."

USA v. NORTHERN TRUST CO (ND Ill.)

Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * Section 6532(b) of the Internal Revenue Code, 26 U.S.C. §6532(b), gives the United States only two years to commence proceedings to recover erroneously paid refunds, “except that such suit may be brought at any time within 5 years from the making of the refund if it appears that any part of the refund was induced by fraud or misrepresentation of a material fact.” The complaint alleged that the five-year period applies because Northern Trust misrepresented that the two pension trusts were Quest’s “shareholders” and thus eligible for refunds. * * * Many dictionaries define “misrepresentation” to include both intentional and inadvertent misstatements. Whether that is the best way to treat this word in this statutory context is a question that need not yet be answered, for the United States tells us that it is prepared to demonstrate that Northern Trust committed gross negligence, or worse. Only if it comes up short will it be necessary to pin down the word’s meaning. REVERSED AND REMANDED

Posted by Marcia Oddi at 12:46 PM

Indiana Law - More on Involuntarily Commited Candidate

The South Bend Tribune today has Part 3 of its 4-part story on the Republican nominee for St. Joseph County councilman in District D who reportedly was involuntarily commited to Madison Center and held for 13 days. Part 3 is headlined "Witnesses at hearing describe behavior of council candidate." A quote:

Melissa Gard, director of admissions for Madison Center, said during an interview that a petitioner for commitment must have current, firsthand information about the potential patient's behavior. Sometimes a person with a brief or casual relationship to the potential patient can do that, added John J. Twardos, Madison's chief operating officer. He used the example of a police officer who might pick up a person from the streets or elsewhere and conclude that he needs help.

The next person to testify at Taylor's hearing was Vicki Black, who had heard Taylor ranting at the Dew Drop Inn. "He got up in front of the whole group and started speaking and just went on and on about running for election,'' Black said. She said he wasn't staying focused in his comments. Black said Taylor waved away another person but didn't hit anyone, "and he never made any threats.'' She thought he might be having a nervous breakdown. She seemed disturbed about what happened to Taylor later. She said she thought a person could be held for only 72 hours at a facility such as Madison Center.

Posted by Marcia Oddi at 08:30 AM

Environment - Stories Today

Groundwater contamination. "Dangerous neglect of water pollutants," is the headline to this editorial today in the Indianapolis Star. Some quotes:

Our position is: Health and environmental officials need to take groundwater contamination more seriously.

Contamination of an aquifer in Martinsville with a cancer-causing solvent used by dry cleaners shows how vulnerable Indiana's groundwater is to pollution -- and how extensive the consequences.

Perchloroethylene -- commonly known as PCE -- is a solvent widely used by dry cleaners for more than a half century. According to an article Sunday by Star reporters Bruce C. Smith and Tammy Webber, high levels of the solvent seeped into soil near a former industrial dry-cleaning operation in the heart of Martinsville. More than a decade later, enough traces of the chemical are showing up in city water supplies a mile away to expose residents to potential health risks and force closure of one of the city's wells. Two nearby wells eventually could be forced to shut down. * * *

What is especially worrisome about this situation is that state and federal authorities long have known that soil at the former Masterwear Corp. dry-cleaning operation was contaminated. Only recently, however, did they determine the extent of that contamination.

Access the ILB entry on the Star's Sunday Martinsville story here.

Power plant emissions. On a more positive note is this brief story from the Princeton IN Daily Clarion headlined "Cinergy continues its assault on sulfur compound." Some quotes:

PRINCETON--A new blend of lower sulfur coal appears to be working to lower the amount of an unexpected pollution coming from Cinergy's Gibson Generating Station. Amy Hartsock, public information officer for the Indiana Department of Environmental Management, reported Friday that a new blend of fuels introduced to the boiler Thursday night has reduced the emission of sulfur trioxide.
Brownfields grants. More information about the recent federal brownfields grants to Indiana is available here in an IDEM press release.

Iron nuggets plant. According to a story in the Mesabi Daily News yesterday:

Two proponents of the enhanced-iron Mesabi Nugget project see the plan progressing in Minnesota, especially in the permitting area, but differ on how close backers and state officials are on financial packaging and how much the state should kick in. * * * Permitting for the Mesabi Nugget project is expected to submitted in an application to the Minnesota Pollution Control Agency for the Hoyt Lakes site. A permit could be expected by around Feb. 1, with commencement of work by March 1, and start-up on expected add-ons to the existing pellet plant could begin next spring, Lehtinen said. * * *

A dust-up occurred in February, when project officials, particularly from Steel Dynamics, sought to start the first iron nugget plant in Indiana, which has a much faster permitting process, as permits for the new commercial plant in Silver Bay were expected to take several years. * * * The Indiana plant permit application remains, “as strictly a backup plant,’’ [Larry Lehtinen of Two Harbors, president of Mesabi Nugget LLC] said. “We’re expecting the Hoyt Lake permits to go through.’’

More on brownfields grants. The Louisville Courier-Journal has a story today on how New Albany will use its recent grant:
New Albany has won $400,000 in federal grants to clean up the site for Scribner Place, the downtown project that is to include a YMCA, an indoor swimming complex and a hotel. The two $200,000 grants are the maximum available from the U.S. Environmental Protection Agency for such cleanups, said John Rosenbarger, director of the New Albany Plan Commission.

They will help pay to clean or seal soil that was contaminated with heavy metals, petroleum and other hydrocarbons, the EPA said. The contaminated property, near Main Street, previously was used for a forge, a tire-reprocessing business and other industrial purposes.

Biting off too much? "Cities weigh returning land: Charlestown and Jeff had recently added Army site" is the headline to this story today in the Courier-Journal. Some quotes:
After years of legal battles, the cities of Charlestown and Jeffersonville in Indiana are considering reversing their annexations of property at the former Indiana Army Ammunition Plant. The mayors of both communities said yesterday that they have made no final decisions. But they added that such a move might have its advantages. If it happens — and the process involved would be complex — it would put the land back under the jurisdiction of Clark County. * * *

Most of the property is in a 6,000-acre industrial park called the River Ridge Commerce Center. It is widely viewed as one of the best potential sites for economic development in the greater Louisville area. But an environmental cleanup could take years, and the entire park is set up as a tax-increment financing district.

Contaminated soil cleanup. A story today in the Fort Wayne Journal Gazette reports on a DeKalb County soil cleanup controversy. Some quotes:
The battle began in May 2003, when Carnes paid to have about 1,500 cubic yards of soil and construction debris – more than 90 truckloads – moved from an old gas station he owned in Fort Wayne to his DeKalb County property.

He received approval from IDEM to build a remediation cell on the property to clean the dirt, and he built the 270-foot-by-100-foot cell on the southwest corner of his property, spreading the soil across the cell at an average depth of 18 inches.

But neighbors became angry, and the county requested that Carnes file a petition for a special zoning exception because he was changing the use of his farmland. The board denied the zoning change in August and ordered the soil removed, but the contaminated contents remained.

IDEM withdrew approval for the cell in August, but the dirt remained. And when IDEM and SES experts collected six soil samples from the cell in September, five samples tested above target cleanup levels for total petroleum hydrocarbon, and one sample tested above levels for lead, according to the settlement agreement.

Posted by Marcia Oddi at 08:21 AM

June 21, 2004

Indiana Decisions - Two Court of Appeals Opinions Today

James B. Dunn v. Meridian Mutual Insurance Company, an Indiana Corporation n/k/a State Automobile Mutual Insurance Company, an Ohio Corporation (6/21/04 IndCtApp) [Contracts; Insurance]
May, Judge

James B. Dunn appeals the dismissal with prejudice of his breach of contract complaint against Meridian Mutual Insurance Co. Dunn raises four issues on appeal, which we consolidate and restate as whether the uninsured motorist provision of Dunn’s policy obliged Meridian Mutual to pay for the “diminished value” of Dunn’s car after an accident, as well as the cost to repair it. We reverse and remand. * * *

This court recently addressed whether policy language identical to that in Dunn’s policy might obligate an insurer to not only restore to the insured a vehicle of similar physical condition, but also to restore to the insured “a similar value as prior to the damage.” Allgood v. Meridian Security Ins. Co., __ N.E.2d __, 2004 WL 901889 at *6 (Ind. Ct. App. 2004). We determined it might, and accordingly reversed the dismissal of Allgood’s class action lawsuit.

Allgood, like Dunn, alleged Meridian breached a duty under an automobile insurance policy to pay for a loss to her automobile by paying only for repairs and not also for diminution in value. We noted this was a question of first impression in Indiana and that other jurisdictions are divided on this issue. After reviewing the decisions cited by the parties, we agreed with those jurisdictions that have held the insurer responsible under similar policies for restoring value as well as condition to the insured:

The limit of liability provision allowing the insurer to “repair or replace with like kind and quality” could reasonably mean, as Meridian posits, to restore to the insured a vehicle in a similar condition in appearance and function. However, it could also reasonably mean, as Allgood urges, to restore to the insured a vehicle similar in appearance, function and value. * * *

We accordingly concluded that policy language providing an insurer may, at its option, repair or replace a damaged vehicle with “like kind and quality” could be construed to include not only restoring to the insured a vehicle of similar physical condition, but also restoring to the insured a vehicle of similar value as prior to the damage.

The trial court therefore erred in granting Meridian’s motion to dismiss Dunn’s complaint. We remand to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
FRIEDLANDER, J., and NAJAM, J., concur.

The Allgood decision cited above, dated 4/28/04, is available here. The Indiana Law Blog writeup is here (near the end of the entry).

Samuel Hoggatt v. State of Indiana (6/21/04 IndCtApp) [Criminal Law & Procedure]
OPINION ON REHEARING
Vaidik, Judge

The State seeks rehearing in Hoggatt v. State, 805 N.E.2d 1281 (Ind. Ct. App. 2004). Although we affirm our original opinion in all respects, we write on rehearing to address the State’s argument that it could have filed an Indiana Trial Rule 60(A) motion to correct the clerical mistakes in Hoggatt’s sentencing judgments. * * * [W]e affirm our original opinion in all respects.
SHARPNACK, J. and MATHIAS, J., concur.

Posted by Marcia Oddi at 01:52 PM

Indiana Decisions - Indianapolis Star says Court wrong to seal evidence

An Indianapolis Star editorial today, headlined "Court's wrong to seal evidence," opines:

Our position is: Once a document has been admitted into evidence in a trial, it should be an open record.

The Indiana Court of Appeals has locked the door long after the horse escaped from the stable in a case involving open court records.

A three-judge panel said courts could seal certain documents involving trade secrets and other exceptions to Indiana's open records law even after they've been admitted as evidence in open court. In this instance, the not-so-secret trade secrets were even splashed all over the pages of The New York Times for all to see.

See the entire editorial here. See the most recent Indiana Law Blog entry on this decision here, titled "More on release of divorce records."

Posted by Marcia Oddi at 01:25 PM

Environment - 2004 Indiana Environmental Statutes

EIS is going ahead with the publication of the 2004 Indiana Environmental Statutes, having received enough pre-orders to meet the printers' requirement. As a result, we are able to accept additional orders through July 4th. Please use this form to reserve your copies.

Posted by Marcia Oddi at 12:40 PM

Indiana Decisions - Oral Arguments this Week

The Indiana Supreme Court will be hearing oral arguments this Wednesday, June 23rd, in three cases:

At 9:00 am: Attorney General v. Lake Superior Court. No Summary is available on the Court site. This is the Lake County assessment case. Here are some recent Indiana Law Blog entries: 5/14/04; 5/19/04; 5/28/04

At 10:05 am: Patricia Gribben v. Wal-Mart Stores, Inc. According to the Summary on the Court's site:

The United States District Court for the Southern District of Indiana certified to the Indiana Supreme Court certain questions of Indiana state law pursuant to Appellate Rule 64. The questions concern whether Indiana law recognizes a claim for “spoliation of evidence” as an independent tort. The Supreme Court has accepted the certified questions and assumed jurisdiction over the case.
See this March 29, 2004 Indiana Law Blog entry for more information.

At 10:50 am: Chester Borsuk, et al. v. Town of St. John. According to the Summary on the Court's site:

The Lake Superior Court entered summary judgment to the Town of St. John on property owners’ complaint about the Town’s refusal to rezone a portion of their land. The Court of Appeals reversed and remanded with an instruction to grant the owners’ request to rezone. Borsuk v. Town of St. John, 800 N.E.2d 217 (Ind. Ct. App. 2004), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal.
The 2004 opinion was a denial of rehearing. The intial Court of Appeals decision is dated 12/18/04 and is available here. The Gary Post-Tribune writes today, 6/21/04, on the appeal, in a story headlined "Zoning tiff to top court." Some quotes:

ST. JOHN — A dispute over half a lot in St. John is heading for an Indiana Supreme Court hearing soon. The case could help decide how much discretion municipal governments can exercise in making zoning decisions. * * *

The case involves one lot at a busy highway intersection — the northwest corner of U.S. 41 and 109th Avenue. The east half of the lot is zoned for business and is vacant. The west half of the lot is zoned residential. It has a house facing Ontario Street, a small street parallel to — and a short block west of — U.S. 41.

Chicago area businessman Chester Borsuk owns the lot and wants to sell it to a business developer, but the split zoning prevents that, according to attorney Michael Muenich. Muenich, a former St. John town attorney, said the two-zoned lot is the only one of its kind in St. John. And it’s the only piece of residential zoning in the block of land between U.S. 41 and Ontario Street, from 109th Avenue north.

Borsuk asked the town in September 2000 to rezone the entire lot for business. Nearby residents objected. In November 2000, the Town Council rejected the zoning change. Muenich asked for a court order overturning the decision. He said the town’s decision is “arbitrary and capricious” because the St. John comprehensive plan calls for business zoning along that stretch of U.S. 41.

The Indiana Court of Appeals agreed with that argument last December and said failing to comply with the comprehensive plan would render a comprehensive plan meaningless. Austgen, who became the town attorney in January, asked the appeals court to reconsider its decision. The two justices who issued the December ruling, re-affirmed their decision in February.

Now the town is asking the Supreme Court to overturn the appeals court ruling — which, if it stands, would tell the town to rezone the land. Austgen contends Indiana law gives the Town Council some leeway in making zoning decisions. The Court of Appeals decision could reduce that discretion if it stands.

View the oral arguments online, either in real time or later, here.

Posted by Marcia Oddi at 09:17 AM

Indiana Law - Story of Candidate Involuntarily Committed to Mental Hospital

The South Bend Tribune published yesterday the first of a four-part series headlined: "Candidate ends up in mental hospital after passionate speeches." Some quotes:

You may not think you live in a country where you could be locked in a mental institution against your will on the word of a casual acquaintance. Wilson "Will" Taylor says you do. He says that's what happened to him earlier this year. Taylor, 47, is the Republican nominee for St. Joseph County councilman in District D. * * *

He spent 13 days in Madison Center in March after a casual business acquaintance signed an application for emergency detention against him.

Taylor was released after Judge William Whitman concluded he was neither dangerous nor mentally disabled. The judge overruled Dr. Mallikarajun Patta, a Madison Center psychiatrist who had written a report describing Taylor as delusional, psychotic and perhaps bipolar. Patta's report suggested Taylor should be committed to a state hospital.

Now Taylor says he has contacted the Indiana Civil Liberties Union and an out-of-state attorney to see whether they are interested in taking up his case.

Part 2 of the four-part series is here today. Some quotes:
The police handcuffed him and took his cell phone. They took him to Madison Center for what they told him would be a 72-hour commitment.

Cindy Lemp, director of clinical services for Madison Center, said a person can be held involuntarily for up to 72 hours, after which a decision is made to discharge him; allow him to sign voluntarily for a longer stay; or declare him unable to make decisions on his own. Under the third option, the hospital must go to a judge and ask for a longer commitment.

Taylor said he found out later that Snyder, the man who was supposed to vouch for him to Friend, instead had signed the complaint against him that resulted in his hospitalization. "I can't say I'm glad (I signed it),'' Snyder said several weeks later, "but I think it was something that needed to be done, and I think he benefited from it.''

How well did Snyder know Taylor? "Not that well,'' Snyder admitted. He said they had simply been involved in some real estate transactions with each other.

Friend said the system has safeguards. A complaint like the one signed by Snyder is reviewed by a Madison Center evaluator, he said, then is reviewed by a psychiatrist. If they see evidence of a possible mental problem, they refer the complaint to a judge for the final decision on commitment.

Commitment is ordered if the person has shown a pattern of behavior that could indicate danger to himself or to others, Friend said, or if he is gravely disabled and may not be in touch with reality.

While in Madison Center, Taylor worked the phones. He called anyone who would listen to complain that he was being held against his will. The 72 hours passed without a hearing.

According to Melissa Gard, director of admissions at Madison Center, a hearing is not required within 72 hours. Court papers have to be filed after 72 hours if a longer commitment is deemed necessary, she said. The 72 hours are defined as days when court is in session, she said, so weekends and holidays would not be included. * * *

Taylor finally had a hearing on March 16, with Judge William Whitman presiding.

Posted by Marcia Oddi at 08:11 AM

June 20, 2004

Economic Development - "The Region" to be renamed the "South Shore"?

The Gary Post-Tribune has an editorial today reporting that "There is a move afoot to change Northwest Indiana’s image by changing the region’s name" because "'South Shore' is an identifiable image that plays on Lake Michigan and the closeness to Chicago." More:

“South Shore” does have a certain aesthetic attraction and would serve the area well as a marketing tool, while “Northwest Indiana” is nothing more than a geographical designation.

While we embrace South Shore, the change shouldn’t cloud the reason why many think the area needs a new image.

Although the South Shore moniker should help business, industry and residential growth, we can speed the process by eliminating public corruption, cutting government spending, conducting honest elections and lowering the dependence on property taxes.

We also have to do more than fix what ails us, although that is perhaps the most vital part of image change.

Posted by Marcia Oddi at 08:15 PM

Environment - Rose Acre Farms proposes egg farm in North Carolina

The Washington Daily News has an interesting story today about Indiana-based Rose Acre Farms' plans to built a four-million-bird egg-laying operation in North Carolina.

The headline to the story is: "Rose Acre watching, waiting." Some quotes:

A proposal to construct a controversial egg farm in Hyde County may be opened for public input in early August.

The state Division of Water Quality, which has been the prime permitting agency, is in the process of writing a draft permit for Indiana-based Rose Acre Farms. A public hearing will be called, possibly as early as August, to allow input before any permits are issued, said Susan Massengale, DWQ spokeswoman.

Rose Acre has proposed building a four-million-bird egg-laying operation near the Hyde community of Ponzer. Many residents of job-poor Hyde County have been pushing for state approval of the operation, but a few neighbors-to-be as well as a cadre of environmental groups have expressed concerns and urged the state to thoroughly study the operation before approving permits. * * *

Tony Wesner, Rose Acre Farms vice president, doesn't dispute the existence of ammonia emissions, but he does question the levels used in the calculations. Wesner, confident his operations are below projected ammonia emission levels, invited the Environmental Protection Agency to study emissions at several Rose Acre farms.

"We don't know the numbers yet," said Wesner on Thursday.

The Environmental Protection Agency hired Purdue University to do both studies, said Wesner. The first three-year study was done at a facility in White County in Indiana. The second study, begun 18 months ago, is still under way at a facility in Pulaski County, he said. "I thought we'd be done by now," said Wesner, who had anticipated a June wrap-up.

There is much more in the story, which also contains this link to a Science News article titled "Chicken Farming, Ammonia, and Coastal Threats."

[It took me a while to discover WHERE the Washington Daily News is based. I didn't have a clue. Although the site is identified as "Pulitzer Prize Winning" and "The Voice of the Pamlico", the paper's publishers must believe everyone already knows that it is a North Carolina paper. Maybe "Pamlico" should have been a clue. A look in the dictionary gave this definition: "a member of the Algonquian people formerly of the Pamlico river valley in North Carolina."]

Posted by Marcia Oddi at 07:54 PM

Environment - Infrastructure problems perhaps doomed 13th century Angkor

"Ecology, Infrastructure Could Have Led to Angkor's Demise: Researchers think reservoirs and canals silted up as the city's population grew, with failures causing flooding and water shortages." That is the headline to this AP story in today's LA Times. It makes a good companion piece to the story a few entries down on the pollution of Martinsville, Indiana's water supply. Some quotes:

SIEM REAP, Cambodia — After resisting Siamese invaders for years, Cambodia's greatest city and civilization — temple-studded Angkor — was dealt a death blow with its final sacking in 1431. At least, that's what the history books say.

But an international research team now thinks that its demise was set much earlier, by something that is the bane of many modern urban societies — ecological failure and infrastructure breakdown.

"They created ecological problems for themselves and they either didn't see it until it was too late or they couldn't solve it even when they could see it," said Roland Fletcher, an archeologist working on the Greater Angkor Project. * * *

Project members are working on the theory that Angkorians created an elaborate system of reservoirs and canals — for irrigation, trade and travel — that began to silt up as the population grew, and perhaps saw failures that caused flooding and water shortages.

Experts say Angkor's demise is important to study because it can provide lessons for dealing with modern urban problems.

Damian Evans, an archeologist working on the project, said Angkor's canals were the equivalent of today's freeways and our telephone lines were a form of communication that can be equated with elephant paths. "It's the same kinds of problems manifesting themselves in different ways," he said. * * *

As Angkor's population grew, so did the strains on its intricate water system, the scientists say. "The more modifications they made, the more problems they ran into, and the harder and harder it became to implement solutions to the problems," said Evans, who uses aerial photographs, NASA images and on-the-ground investigations to generate a computer map of the water system.

The growing population also forced people to venture into the nearby Kulen hills to cut down trees for fuel and clear land for growing rice. That would have resulted in rain runoff carrying sediment into the canal network, Evans said. "Anything that happened to that water-management system would have had a great deal of consequence for all of the people," he said.

There are signs of apparent breaches and fixes to the water system, although it's hard to tell if they happened during the Angkor era. "If you think of the freeway and the railway system failing in a modern city, it's like that," Fletcher said. "It's an infrastructure problem. Everything else might be working fine, but if the infrastructure goes, this thing can't function."

Posted by Marcia Oddi at 10:55 AM

Law - Major Reversal in Gay Rights Looms in Virginia

"Major Reversal in Gay Rights Looms in Virginia: A bill that becomes law in July could dissolve contracts, such as wills, leases and child-custody arrangements, between same-sex couples." That is the headline to this story today in the Sunday LA Times. The report begins:

RICHMOND, Va. — When it comes to adapting state laws to reflect social change — such as women's suffrage, school desegregation and gay rights — Virginia has always been a laggard.

Still, many here were stunned by the recent passage of a bill that would end all contractual rights between same-sex partners.

Critics say the law — which takes effect July 1 and reaffirms the state's ban on gay and lesbian marriage — could negate powers of attorney, wills, leases, child-custody arrangements, joint bank accounts and health insurance granted by companies that recognize domestic partnerships.

Henry F. Fradella, a law professor at the College of New Jersey who tracks gay-rights issues, said: "Nothing so homophobic has ever been enacted into law in this nation's history." The Washington Post called the bill "jaw-dropping," saying it violated "norms of basic fairness and decency." Gay rights groups termed it discriminatory.

According to this June 13th column in the Washington Post:
The act -- really an amendment to an earlier law -- was passed in April, over Gov. Mark R. Warner's objections, and it takes effect July 1. It says, "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges and obligations of marriage is prohibited." It goes on to add that any such union, contract or arrangement entered into in any other state, "and any contractual rights created thereby," are "void and unenforceable in Virginia."

When gay marriage came up, Virginia was among the first states to preemptively ban it, in 1997. Moreover, Virginia is the only state to forbid even private companies, unless self-insured, from extending health insurance benefits to unmarried couples. That provision affects cohabiting straights but works a far greater hardship on gay couples, who cannot marry.

Those steps, however, impinge on the power of third parties (corporations and the government) to recognize gay couples. In the Marriage Affirmation Act, Virginia appears to abridge gay individuals' right to enter into private contracts with each other. On its face, the law could interfere with wills, medical directives, powers of attorney, child custody and property arrangements, even perhaps joint bank accounts. If a gay Californian was hit by a bus in Arlington, her medical power of attorney might be worthless there. "Sorry," the hospital might have to say to her frantic partner, "your contract means nothing here. Now leave before we call security."

Some of the law's sponsors have denied intending such a draconian result, and courts may interpret the text's vague and peculiar language more narrowly. Nonetheless, the law as written is a threat to all Virginians and indeed to all Americans, gay and straight alike.

Posted by Marcia Oddi at 10:44 AM

Law - Two Interesting Real Estate Development Stories

Two interesting stories on real estate development were published in the NY Times last week.

"City Plans to Rezone Overdeveloped Neighborhoods in Queens" is the headline to this story, which appeared June 16th. Some quotes:

More than a dozen neighborhoods in Queens will be rezoned to curb overdevelopment in the most ambitious rezoning of the borough in more than 40 years, Mayor Michael R. Bloomberg announced yesterday at Queens Borough Hall. By tinkering with these neighborhoods - a process that began for some of the areas in 2002 - developers will be prohibited from building multiple-family dwellings on lots that have traditionally served single-family homes.

"Overdevelopment changes the character, overdevelopment changes the traditional appearance of neighborhoods," said Mr. Bloomberg, who was joined by Borough President Helen Marshall and severalCity Council members from Queens.

Since the 1960's, neighborhoods that are far from mass transportation have tended to remain what is known as "low-density" residential neighborhoods, which were dotted with mostly one- and two-family homes. But over the last decade, multifamily homes and large tenement buildings began to crop up around Queens and Staten Island. * * *

"Developers are buying up fairly large lots that may have had one home on them and then building maybe three two-family homes," said Gary Giordano, the district manager of Queens Community Board 5, which covers two neighborhoods - Middle Village and Maspeth - where zoning laws will change.

"When you start compounding that on numerous different lots, your neighborhood is getting a lot more crowded," Mr. Giordano said.

The rezoning would force developers to have their projects fit in with the scale of surrounding structures. The revisions would be reviewed by the local community board, the borough president, the City Planning Commission and the City Council.

Overdevelopment has been a hot political issue in Queens and Staten Island for years, but Mr. Bloomberg learned of the problem only when he was running for mayor in 2001, he has often said. He became fascinated with the idea that some neighborhoods in New York wanted less, rather than more, development.Since then, he has tried to work on rezoning areas of Queens and Staten Island, areas where he hopes to redevelop his political base as well.

A lengthy feature published in the Times on June 17th focuses on urban sprawl and a Yale professor "of architecture, urbanism and American studies, whose new book, 'A Field Guide to Sprawl,' will be published next month." Some quotes:
The idea for a field guide grew out of [Dolores] Hayden's own frustration as a scholar and a citizen. She moved to Guilford, 12 miles east of New Haven, in 1991 after 11 years teaching at the University of California, Los Angeles. With its pristine New England village green and one of the largest collections of 18th-century houses in the country, Guilford, on the rural fringe about 100 miles from Manhattan, "is a very typical battleground for preserving the sense of place," she said.

Several years ago, Ms. Hayden ... wound up serving on a citizens advisory committee examining encroaching development. "The town's zoning code was so convoluted nobody could read it," she recalled. "After a while I got to see that a lot of it was designed to frustrate discussion rather than enable it." At the same time, she noticed that her graduate students at Yale, who came from different disciplines, including American studies, architecture, planning and anthropology, had difficulty describing the everyday American landscape without resorting to impersonal jargon. "I began to see that one of the most useful things to do might be to develop a common language," she said.

To probe the dark, semantic recesses of sprawl, Ms. Hayden combed planning glossaries, newspaper columns and Web sites for trade groups like the National Asphalt Pavement Association, and she went through slang dictionaries and real estate manuals. Along the way, she unearthed the origins of now ubiquitous terms like "gridlock," coined by two Manhattan engineers in 1980, as well as unwieldy euphemisms like "nonattainment area," plannerspeak for impermeable smog that fails to meet federal clean air guidelines.

Her personal favorite is boomburb, a word that "gives the feeling of a place that's growing double-digits when you say it," she said. (As a published poet, she is particularly attuned to nuances of language.)

Posted by Marcia Oddi at 10:15 AM

Environment - Martinsville's water supply contaminated by drycleaning solvents

The lead story on the front page of the Sunday Indianapolis Star has this headline: "Toxin to cost Martinsville millions: Solvent taints aquifer in once-renowned spa town." It begins:

MARTINSVILLE, Ind. -- The vintage neon sign atop a historic downtown building is a reminder of this city's legacy: "Martinsville, City of Mineral Water."

For more than a century, people flocked to local spas and sanitariums to soak up the water's reputed healing powers.

Now, the aquifer that supplies the city's drinking water is poisoned by a toxic chemical -- the legacy of an industrial dry cleaner that closed 13 years ago. The suspected cancer-causing solvent has soaked 40 feet into the ground and moved more than a mile to the city's wells.

State and federal officials have known for years that the former Masterwear Corp. probably contaminated soil behind its plant with perchloroethylene, or PCE, a powerful solvent blamed for contaminating dry-cleaning sites throughout the United States.

But nobody tried to determine the extent of contamination -- until December 2002, when the toxin reached two of the city's three drinking-water wells. One well was so polluted that it was immediately shut down. City officials say the water is safe for now, but the long-term solution is drilling new wells.

Now, this city of 12,000 about 35 miles southwest of Indianapolis faces a mess so large it will take years -- and millions of dollars -- to clean up. City water customers may see monthly bills triple to help fund a new water system.

Posted by Marcia Oddi at 09:40 AM

June 19, 2004

Indiana Decisions - 7th Circuit First Amendment Ruling

James Patterson, an editorial writer for the Indianapolis Star, had an excellent column this morning, titled "Court decks DOC, strikes blow for free speech." The Court is the 7th Circuit, the opinion is Nancy Spiegla v. Hull (or, as specified in the opinion: MAJOR EDDIE HULL, Individually as an Employee of Westville Correctional Facility; HERB NEWKIRK, Individually as Superintendent of Westville Correctional Facility; and BERNARD JOHNSON, Individually as an Employee of Westville Correctional Facility). [The opinion was reported in the ILB on June 14th.] Here are some quotes from the Star column:

So what did Nancy Spiegla get for just trying to do her job? The Porter County woman suffered retaliation when she was reassigned to a less desirable position for attempting to do the right thing, according to the U.S. Court of Appeals for the 7th Circuit, which on Monday ruled in her favor in what's being called a landmark whistle-blower case.

In overturning U.S. District Judge Allen Sharp, the 7th Circuit said the Indiana Department of Correction infringed upon Spiegla's free speech rights when it punished her for attempting to investigate suspected contraband trafficking by fellow officers at the Westville Correctional Facility. * * *

In January 2000, Spiegla said she was guarding the prison's front gate when she saw two Westville supervisors, a major and a captain, remove what appeared to be large bags from their private vehicles and put them in a state-owned car in the parking lot just outside the facility. When they drove the department car to the front gate, she demanded to inspect it, a duty she'd routinely performed for seven years, but she was ordered not to. Surprisingly, her supervisor told her a new Westville policy exempted law enforcement vehicles from searches. * * *

Concerned that the policy change would lessen security at a prison notorious for contraband trafficking and gang warfare, Spiegla reported the incident to Assistant Superintendent John Schrader.

Her objection to the new rule was discussed in a hurriedly called executive staff meeting attended by Westville Superintendent Herb Newkirk, his assistants, Schrader and Bernard Johnson, and Major Eddie Hull.

Four days later, Spiegla was transferred and in effect demoted. A former Westville Officer of the Year, she was shocked at her whirlwind turn of fortunes. The 15-year DOC-veteran was reassigned to the lower-echelon duties of patrolling the immense complex's perimeter, escorting inmates and hauling meals to other staff.

Posted by Marcia Oddi at 08:13 AM

June 18, 2004

Environment - A Second Wetlands Replacement Story Today

This story today in the Washington Post reports that "A wetland restored to its Civil War-era condition was on public display yesterday at the Manassas Battlefield as National Park Service officials formally thanked the agency responsible for creating an authentic landscape on more than 100 acres." More:

In an unusual partnership, the Smithsonian Institution restored the area to make up for land it disturbed when building its National Air and Space Museum annex near Dulles International Airport. Otherwise, battlefield managers said, the Park Service might never have found the money to restore land at the park near Manassas that Congress had seized from a mall developer in the 1980s. * * *

With some financial help from Virginia, the Smithsonian has restored 115 acres to the way they were during the Second Battle of Manassas in August 1862. Workers rearranged 90,000 cubic yards of dirt and planted more than 50,000 native plants and grasses at a cost of more than $1.4 million.

They were charged not only with re-creating every hill and berm, but also with restoring nature's original plumbing on the site, making sure that places that were wet in 1862 will be wet in the future. The mud and the snake and other water-borne critters visible yesterday attested to their success.

The land, west of the original battlefield park between Interstate 66 and Route 29, was bulldozed during the 1980s by developer John T. "Til" Hazel, who was planning the William Center, a giant mall and subdivision.

Although the Hazel land was private and not part of the park, historians said it was integral to understanding the Second Battle of Manassas and included grounds where Confederate Gen. Robert E. Lee's headquarters had stood. Hazel's development plan led to a national outcry by preservationists, and images of backhoes and bulldozers ripping up a Civil War battlefield galvanized the public. In 1988, Congress bought Hazel's land and added it to the battlefield.

When the Smithsonian was planning the Steven F. Udvar-Hazy Center at Dulles, it needed to find a way to replace seven acres of an emerging boggy area that it would disturb for the new Air and Space Museum annex.

Lin Ezell, a top museum official, was driving one day and saw the brown sign for the Manassas Battlefield. She realized that restoring wetlands on another federal property in the same area -- instead of buying expensive private property for the project -- would be the cheapest and easiest solution. She got back to the office and called the park.

Posted by Marcia Oddi at 04:56 PM

Indiana Law - Lake Station Ethics Ordinance Issues

"City's ethics law to get reworked - LAKE STATION: Lake Station lawyers will study legality of ordinance deemed unconstitutional," reads the headline to this story today in the Munster Times. Some quotes:

LAKE STATION -- Citing legal problems with the city's ethics ordinance, City Attorney Ray Szarmach urged the City Council to revisit the document and make sure potential violators are given due process. Szarmach said in its current form, the ordinance is unconstitutional. * * *

While Councilman Rick Long, D-5th, said he understood some of Szarmach's interpretations, he said the Ethics Committee shouldn't be confused as a judicial body, but rather a body that makes recommendations to the City Council.

"We're not a court of law and we're not trying to be," Long, also a committee member, said. "We're just trying to hold people to a higher standard of living. If things are wrong or unethical, they need to be corrected."

Councilman and committee member Keith Soderquist said the ordinance was enacted to set ethical standards and raise issues. "I agree nothing is perfect, but we have to at least test the ordinance," Soderquist said. "We have to start somewhere. It's a good start and a positive step."

Ed Charbonneau, executive director of the Northwest Indiana Local Government Academy, also attended Thursday's council meeting and commended city officials for adopting an ethics ordinance and creating a discussion. "You're the first of the cities and towns in Northwest Indiana to have raised an issue," Charbonneau said. "It's an uncomfortable learning curve, but it's a cultural change we have to go through."

The City of Dallas has a 43-page Code of Ethics; the City & County of Denver has an Ethics Handbook; the City of Las Vegas has a 34-page Code of Ethics; the City of Los Angeles has a 38-page Code of Ethics; and Miami-Dade County has a comprehensive website on ethics, including the ordinances in your choice of, to quote, "legalese" or "plain language." [Thanks to MuniNETGuide.com for the links.] The State of Illinois has a site providing a "Model Ethics Ordinance and the Guide to the Implementation of the Model Ethics Ordinance in order to assist local governmental bodies comply with the requirements" of the State Officials and Employees Ethics Act.

Closer to home, a 12/18/03 story in the Munster Times reports: "HOBART -- The City Council made history Wednesday night by unanimously adopting an ethics ordinance for all city employees and officials."

Finally, as this is by no means intended to be a comprehnsive survey, the City of Indianapolis has a Code of Ethics. This is also a 5-member Indianapolis-Marion County Board of Ethics.

Posted by Marcia Oddi at 01:55 PM

Environment - Probable Wetlands Violation in NW Indiana Reported

The Gary Post-Tribune reports today:

CROWN POINT — Months after developer Robert Stiglich was fined for damaging wetlands near his Stillwater subdivision, state and federal officials are investigating whether a similar infraction has occurred at the same development.

The state Department of Environmental Management and the Army Corps of Engineers are looking into reports that soil from the Stillwater development was dumped in a half-acre area of mature wetland in the neighboring Pine Hill subdivision, owned by Hawk Development Co.

Hawk’s project manager, Todd Kleven, said he arrived at the site Tuesday morning to discover the parcel, in a low-lying part of Pine Hill between the subdivisions, had been filled in.

Kleven said he told crews working in the Stillwater project that they had no right to dump the dirt in the protected area. * * *

[Michael Back, an attorney for Stiglich] said it was not unusual for construction crews to accidentally fill in wetlands in areas like Crown Point, where the rolling land creates small pockets of environmentally-protected terrain. But looking at the spot that had been filled in, Kleven wondered how workers could have mistaken it for anything but wetland.

In April, IDEM ordered Stiglich to purchase wetlands from the Lake Erie Land Bank in Lake Station, because he had damaged small parcels of wetlands near Stillwater without a permit, according to Andrew Pelloso, chief of IDEM’s Wetlands Section.

The land bank maintains a large wetlands area, and IDEM allows developers to buy portions of it to make up for damage caused to wetlands elsewhere, Pelloso said.

Note: The April order referred to in the story above does not appear to be available via the IDEM database of enforcement actions and orders.

Posted by Marcia Oddi at 01:15 PM

Indiana Decisions - Transfer list for week ending June 18, 2004

Here is the Indiana Supreme Court's transfer list for the week ending June 18, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi at 12:04 PM

Law - More on release of divorce records

This is our third story this month on various aspects of whether divorce records are public documents.

A June 9th Indiana Law Blog entry reported on the 2nd Circuit's ruling that docket sheets are public documents and included this quote from The Reporters Committee for Freedom of the Press:

Last fall, Connecticut Law Tribune reporter Thomas B. Scheffey discovered the secret docketing system while reporting on the divorce of former General Electric Chairman Jack Welch, who filed for divorce in Bridgeport, Conn., ending his 13-year marriage to Jane Welch.
On Wednesday (6/16/04) we reported on the Court of Appeals decision in Ernst & Young v. Indianapolis Star, where, according to a quote from the Star, "Indiana's public records laws, the court ruled today, permit a trial court to seal public records that fall within certain mandatory exceptions, such as a business's confidential information, even after they have been disclosed as evidence."

And today the Chicago Tribune reports here that "Court sets release of Ryan's divorce file." Some quotes:

LOS ANGELES -- Dealing a blow to the U.S. Senate candidacy of Republican Jack Ryan, a California judge ruled that several sealed divorce records likely to embarrass the candidate and his ex-wife should be opened to the public.

Ruling on a request brought by attorneys for the Tribune and WLS-TV, Superior Court Judge Robert Schnider acknowledged that the resulting publicity from the disclosure would be harmful to the couple's son, a key argument Ryan had raised in seeking to keep the documents from public view.

But Schnider said he had weighed the public interest of disclosure against the private interests of the Ryans and their child. "In the end," Schnider found, "the balance tips slightly to the public.

"They were aware they were in a public court system and protection from embarrassment cannot be a basis for keeping from the public what's put in public courts," said Schnider, referring to Ryan and his ex-wife, actress Jeri Lynn Ryan. Additionally, Schnider said, "the openness of court files must be maintained, so that the public ... can be assured that there is no favoritism shown to the rich and the powerful."

Posted by Marcia Oddi at 08:38 AM

Indiana Decisions - Question of killer's competency to waive appeals

Yesterday. 6/17/04, our Supreme Court heard oral arguments in Joseph E. Corcoran v. State of Indiana. As described on the Court website: "After appellant’s murder convictions and death sentence were affirmed on direct appeal, post-conviction proceedings were instituted. The Allen Superior Court ruled that appellant was competent to waive further review of the conviction and sentence. This appeal arises from that ruling." You may access the oral argument here.

The argument is covered today in this story in the Louisville Courier-Journal, headlined "Killer unfit to decide his fate, lawyer says."

Posted by Marcia Oddi at 08:25 AM

Law - Kentucky Supreme Court rules on homicide against fetus issue

"Homicide count OK for fetus: Kentucky court backs charges if unborn child is called viable," is the headline today to this story in the Louisville Courier-Journal. Some quotes:

The Kentucky Supreme Court has overturned a 21-year-old decision that barred homicide charges against someone accused of killing a fetus.

In a majority opinion, the court held yesterday that murder and manslaughter charges can be brought if the fetus would have been viable outside the mother's womb — in approximately the sixth or seventh month of pregnancy.

The ruling doesn't apply to legal abortions, which are federally protected.

The state Supreme Court's decision defines a fetus as a person at the point of viability. It reverses a 17th-century legal doctrine that allowed homicide charges only if the fetus was first "born alive" and then died. * * *

The decision reverses the court's holding in a 1983 case in which the state Supreme Court found that a fetus could not be murdered, even if a man ripped it from his wife's uterus.

The ruling doesn't decide the constitutionality of the new "fetal homicide" law passed this year by the Kentucky legislature. That law allows homicide charges to be brought when a fetus is killed — regardless of whether it is viable.

Frank Manion, senior counsel for the American Center for Law and Justice, which intervened in the Supreme Court case, said he thinks the ruling indicates that the justices likely would uphold the fetal homicide law.

"It bodes well because a clear majority of the Kentucky Supreme Court recognizes the principles that would also uphold the fetal homicide statute," he said.

Cooper acknowledged that the justices' decision might be rendered moot by the new law. "Some might regard this entire exercise as a vain endeavor, since all future fetal homicides presumably will be prosecuted under new (law). However, should (House Bill) 108 not survive constitutional challenge, the decision in this case will attain future significance," Cooper wrote in a footnote.

The opinion, Commonwealth of Kentucky v. Morris, is available here.

Posted by Marcia Oddi at 07:51 AM

June 17, 2004

Indiana Decisions - Bob Knight firing case in news again

While sports writers speculate about whether Bob Knight will next coach at Ohio State, at least one lawsuit relating to Knight's firing from IU remains unresolved. As reported by the AP this afternoon, here from rtv6, TheIndyChannel.com:

BLOOMINGTON, Ind. -- A judge has scheduled a one-day trial to determine whether Indiana University must release records related to the firing of former men's basketball coach Bob Knight.

Morgan County Judge Jane Spencer Craney said she will decide after hearing arguments from attorneys for IU and The Indianapolis Star on Sept. 8 whether the records should be made public.

The Star sued the university after it refused to turn over documents related to Knight's firing in September 2000. Knight was fired for violating a "zero tolerance" behavior policy by grabbing the arm of a student who he said greeted him by his last name. * * *

The appeals court ruled the university did not have to make public an IU Police Department investigation of Knight's confrontation with IU student Kent Harvey, the incident that led to the coach's dismissal.

But it said the university might have to turn over a report by trustees Fred Eichhorn and John Walda on their investigation of whether Knight choked player Neil Reed at a practice, The Herald-Times reported Thursday.

The appeals court said the report by Eichhorn and Walda should be made public if they were acting as trustees. But if they were lawyers representing the university, the court said, the report would be confidential under attorney-client privilege.

Posted by Marcia Oddi at 03:58 PM

Law - New Mississippi law sets lawsuit limits

As reported today in the Hattiesburg American, via the AP, "Barbour signs lawsuit limits bill: Governor says change boosts state's image." Some quotes:

JACKSON - Signing a new lawsuit limitations bill, Gov. Haley Barbour said Mississippi is erasing its image as a "judicial hellhole" by helping businesses predict their liability if sued.

"Part of this is about reputation. Mississippi has been named for three years in a row the worst state in the country for lawsuit abuse. And the Legislature changed this perception overnight," the Republican governor said during a ceremony in the Capitol. * * *

Among other things, the new law caps pain-and-suffering damage awards at $1 million in most lawsuits. It keeps the $500,000 pain-and-suffering cap adopted in 2002 for medical malpractice cases - but it erases a cost-of-living provision that would have increased the $500,000 cap over the years.

The Biloxi Sun Herald reports:
JACKSON, Miss. - Independent presidential hopeful Ralph Nader used a brief campaign stop in Mississippi Thursday to criticize a new law that sets limits on lawsuits.

Posted by Marcia Oddi at 03:39 PM

Environment - Several Indiana stories today

Brownfields. Another story today about the grants Indiana communities will receive from US EPA for brownfields cleanup, this one in the South Bend Tribune. Some quotes:

SOUTH BEND -- The city has received $650,000 in grants from the Environmental Protection Agency that will pay for the cleanup of several brownfield sites around the city.

Mayor Stephen J. Luecke said the grants come as good news to a city that is trying to eliminate brownfield sites for future economic development. * * * Andy Laurent, an economic development specialist for the city, said the city applied for four grants last fall and was awarded three.

South Bend is one of only three cities in the state to receive the grants. Franklin and New Albany are the others.

Stormwater. Another story about an Indiana community trying to cope with stormwater requirements; today it is Porter in NW Indiana. Some quotes:
An unfunded federal mandate requires Porter and other municipalities across the state to create a system to regulate stormwater runoff and pollutants that might be in it, in order to meet requirements of the federal Clean Water Act of the early 1970s. The sewer system, which would not be combined with the sanitary sewer system, is referred to as an MS4, or municipal separate storm sewer system program.

Indianapolis representatives of the engineering services company Amec told the stormwater board that public involvement and education would need to be part of a successful plan. Kevin Kirk told the board it was important that any ordinance regulating stormwater be tailored to the needs of Porter and that the community have some say in the ordinance.

Douglas Noel advised exploring funding sources other than relying on general fund revenues, which he called an unstable source. Setting up a stormwater utility was considered the most equitable way of paying for a system, he said. Stormwater utility fees for a town of Porter's size, he estimated, could range between $2 and $12 per capita.

Service charges were not the only source of revenue for a system, he said, and he recommended planning in partnership with other communities that also must establish MS4 programs. Noel cautioned the board to keep in mind long-term maintenance and the costs associated with it while crafting a plan.

The town will have until November 2008 to establish a program and come into compliance with the federal regulations. It will be the stormwater board's responsibility to establish fees for the system and to ensure compliance.

More on sewers. The Terre Haute Tribune Star reports today on sewer rate increases:
If the council approves the measure as it stands, bills would increase by 25 percent retroactive to July 1 of this year, and by slightly more than 100 percent on Jan. 1. The increase would bring in about $5 million in new revenue for the sanitary district.

Terre Haute Mayor Kevin Burke said the move is justified based on the needs of the city's aging sanitary sewer system.

"We're in a very urgent need of repair and upgrade," he said. "We have a wastewater treatment plant that needs to be replaced right now because we have not maintained it. If people have a problem with me saying that, go take a tour."

Burke said that after looking at the existing treatment plant, its capacity and age, he estimates a cost of $60 million to renovate it. A new plant, projected to cost $100 million, would have the advantages of being in a different location, having a greater treatment capacity and can lower the cost of changes to the system mandated by the state and federal government to eliminate combined sewer overflows. * * *

Terre Haute has many combined sewers -- ones that channel both sanitary sewage and storm drainage. During normal use, none of the sanitary sewage drains into the river, but during periods of heavier rainfall, both drain straight into the Wabash River.

State and federal rules mandate reduction in the amount of sanitary sewage that drains directly into the river from Terre Haute. The city's plan, sent to Indiana Department of Environmental Management in April 2002, has not received complete approval from the state, said City Engineer Pat Goodwin.

Landfills. Another story about the proposed Valpo landfills:
VALPARAISO -- Last month's unfavorable court ruling did not bring an end to plans for a 354-acre landfill in Porter Township. Those behind the proposal plan to return to court Friday to seek permission to appeal the ruling, said Glenn Sechen, the group's Chicago-based attorney.
New ordinance sets minimum standards for owners to care for their property. Some quotes from this story in the Munster Times about Highland adopting a home maintenance law:
HIGHLAND -- Promising to work with residents, the Town Council has passed a law that will target neighborhood eyesores.

"This was really much needed," said Councilman Bernie Zemen, D-1st, of the Property Maintenance Code, which establishes minimum requirements for people to maintain their property. * * *

Residents have complained about eyesores such as unfinished remodeling projects, deteriorating roofs, gutters, peeling paint, broken windows and bad siding, Councilman Joseph Wszolek, R-4th, said Wednesday. "This code applies to all properties throughout Highland in all zoning districts," he said. * * * [T]he intention is "to be proactive in resolving deteriorating conditions throughout the town."

Building Commissioner Ken Mika has expressed great frustration over his inability to enforce minimum upkeep of properties. After researching the issue, the council patterned the ordinance after a similar one in downstate Bloomington, Wszolek said. Mika also reviewed the ordinance to ensure that it conforms to state and federal building and fire codes, Wszolek said.


Posted by Marcia Oddi at 03:25 PM

Indiana Decisions - One Tax Court Opinion Posted Today

Vitco, Inc. v. Department of Local Government Finance (6/15/04 IndTaxCt - Not for Publication) [Real Property Assessment]

Posted by Marcia Oddi at 01:53 PM

Indiana Decisions - Four Supreme Court Decisions Posted Today

Darryl Eugene Fisher v. State of Indiana (6/17/04 IndSCt) [Criminal Law & Procedure]
Rucker, Justice

The question we address is whether the failure to raise on appeal the trial court’s refusal to give a reckless homicide instruction as a lesser-included offense to murder amounts to ineffective assistance of appellate counsel. On the facts of this case, we conclude that it does. * * * We reverse the judgment of the post-conviction court. This cause is remanded for further proceedings not inconsistent with this opinion.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
Gary D. Gee v. State of Indiana (6/17/04 IndSCt) [Criminal Law & Procedure]
Rucker, Justice
Gary D. Gee was convicted of several drug related offenses as a result of contraband found in a house he shared with a relative. Because the evidence was not sufficient to demonstrate that Gee knew of the nature of the contraband and its presence in the house, we reverse his conviction. * * * The judgment of the trial court is reversed.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
Wedgewood Community Association, Inc. v. Robert & Barbara Nash (6/17/04 IndSCt) [Dissent to Denial of Transfer]
Rucker, Justice, dissenting from denial of transfer
The Wedgewood Community Association is a non-profit corporation that operates as a homeowners’ association. The Association is comprised of the homeowners in the Wedgewood subdivision, and its Board of Directors are all elected volunteers. Homeowners are bound by a restrictive covenant providing that no shack, barn, or other unattached outbuilding may be constructed on any lot without the prior approval of the Association’s Board of Directors or its Architectural Control Committee. * * *

The trial court recognized that the Association was seeking by injunction to enforce a covenant against one homeowner, while at the same time declining to enforce against two other homeowners a near-identical violation of the same covenant. One of the violators just happened to be a member of the Association’s Board of Directors. It may indeed be the case that the “[a]lleged selective enforcement of restrictive covenants is clearly not a violation of the restrictive cov enant forbidding outbuildings and may be remedied by the ballot box of the association officer election.” Wedgewood, 781 N.E.2d at 1179. The question however is whether the selective enforcement in this case was inequitable and improper, thus barring the Association’s claim for equitable relief. Declining to grant the Association’s complaint for injunction, the trial court answered yes. The denial of an injunction lies within the sound discretion of the trial court and will not be overturned unless it was arbitrary or amounted to an abuse of discretion. Stewart v. Jackson, 635 N.E.2d 186, 189 (Ind. Ct. App. 1994). Here the trial court’s judgment was not clearly erroneous and its decision was neither arbitrary nor an abuse of discretion. We should grant transfer and say so.
Dickson, J., concurs.

Michael P. Penrod v. State of Indiana (6/17/04 IndSCt) [Criminal Law & Procedure]
Shepard, Chief Justice
Appellant Michael Penrod was convicted of rape, kidnapping, and two counts of confinement all arising out of an attack on E.H. We conclude that the episode constituted one continuous confinement and vacate the two confinements. * * *

We vacate the two confinement convictions and affirm the fifty years for rape followed by the fifty years for kidnapping.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

Posted by Marcia Oddi at 01:48 PM

Indiana Decisions - One 7th Circuit Opinion Today

McDONALD v. VILLAGE OF WINNETKA (ND Ill.)

CUDAHY, Circuit Judge. This case raises the question: what could be worse than having most of your home burn down in a fire? The answer, of course, is having the rest of it burn down a couple of days later in a second fire. What would make the situation dramatically worse, however, is if the fire department determined that the second fire was intentionally set (possibly by you) and called in federal authorities to investigate, thus requiring you to invest substantial energy, time and money defending against such allegations. Such a scenario would be particularly outrageous if the fire department did not actually believe that the second fire was intentionally set but was merely trying to draw attention away from the possibility that it had been negligent in putting out the first fire. According to Charles M. McDonald of Winnetka, Illinois, this is exactly what happened to him. McDonald responded by bringing a constitutional equal protection “class of one” claim in the Northern District of Illinois against the Winnetka Fire Department, following our precedent in Olech v. Vill. of Willowbrook, 160 F.3d 386 (7th Cir. 1998), aff’d, 528 U.S. 562 (2000). After extensive discovery, and an unsuccessful motion to dismiss, the district court eventually granted defendants’ motion for summary judgment. For the reasons discussed infra, we affirm the decision of the district court because McDonald, in invoking the constitution, has failed to identify someone similarly situated but treated differently.

Posted by Marcia Oddi at 01:45 PM

Indiana Decisions - Attorney General appeals Judge Barker's ruling re death row inmate

"Ruling for new trial in slayings contested" is the headline to this story today in the Evanville Courier&Press. Some quotes:

The Indiana attorney general contends a federal judge overstepped her boundaries when she overturned the conviction of death row inmate James Patrick Harrison because of "judicial bias" by a Posey County judge.

In a brief filed Tuesday with the U.S. Court of Appeals for the 7th Circuit, Attorney General Steve Carter contends U.S. District Judge Sarah Evans Barker should have deferred to state court judges, who have upheld Harrison's 1991 conviction in the death of two children. "The (federal) district court failed to apply the proper degree of deference to the Indiana Supreme Court's disposition of this claim," wrote deputy attorney general James Martin in the appeal. Martin also argues that Barker was incorrect when she ruled that Harrison's attorneys showed "actual judicial bias" was demonstrated during Harrison's trial by Posey Circuit Judge James Redwine. * * *

In her order, Barker said Redwine demonstrated "actual bias" before and during the trial, after Harrison's attorneys made public information that Forsee, before her death, had told police she had information that Redwine and other influential politicians had been involved in illegal drug activity. Police investigators later testified they didn't believe Forsee's statements. But Barker found that Redwine should have removed himself from the case after the allegation was brought to him by Harrison's attorneys.

Instead, according to Barker's order, Redwine called his own witness to testify during a hearing on the matter, abruptly moved the trial date up by two months and refused to allow Harrison's attorneys to raise the allegation in court without his permission, or to offer any testimony or evidence of an alibi Harrison claimed to have.

A copy of Judge Barker's decision in Harrison v. Anderson (SD Ind., 1/22/04) is available here.

A second Courier&Press story, from 6/15/04, is available here.

Posted by Marcia Oddi at 09:54 AM

Environment; Economic Development - Coal Market Up

A lengthly story in the June 16th NY Times is headlined "Coal Market Zooms In on Mines in Colorado," reports on the coal mining boom in Colorado and the nationwide picture. Some quotes:

Colorado, once a backwater of coal production in the shadow of giants like West Virginia and Wyoming, has stumbled into unexpected wealth. China is exporting less coal and keeping more for its own use, thus pinching supply. Appalachian coal, especially the cleaner burning lower-sulfur variety that Colorado's coal competes with, has gotten scarcer and more expensive, and soaring natural gas prices have compelled electricity-generating companies to scramble for alternatives. * * *

Coal's long-term outlook is also improving, some energy experts say. More than 60 new coal-fired power plants in 26 states are now in the planning stages, including one just south of Denver that could be the first new coal-to-electricity station in the state in 20 years if approved by regulators. * * *

Many environmentalists are dismayed at coal's new luster and have begun a campaign against new power plants, including a coal-fired plant proposed by Xcel Energy for Pueblo, two hours south of Denver. "Coal should be a part of the past, not the future," said Mark Detsky, an energy lawyer at Environment Colorado, a conservation group in Denver.

A spokesman for Xcel, which is based in Minneapolis, said the renewed appeal of coal was that unlike fuels like oil or natural gas, whose prices can zig or zag in dizzying fashion, coal was generally downright boring.

"Prices for natural gas have been volatile, and trending higher for the foreseeable future," said Steve Roalstad, a spokesman for Xcel. At the same time, Mr. Roalstad said, population growth in the Rocky Mountain region has increased the so-called base-load demand - energy that must be available all the time, not just at peak moments. Most of the new electricity generation in the United States in the last 20 years has relied on natural gas.

"Coal, in the long run, is more cost effective in meeting that base-load demand," Mr. Roalstad said.

The Times story is accompanied by a graphic (unfortunately not available online) showing the ten top coal-producing states and the amount of coal produced so far this year. Wyoming is way ahead of everyone, with 164,257 thousands of short tons. Next is West Virginia with 59,319, followed by Kentucy, Pennsylvania and Texas. Colorado is number six with 16,869; Indiana is eight, with 15,744.

Posted by Marcia Oddi at 09:19 AM

Law - Point/Counterpoint on Ladies' Night in New Jersey

Hofstra law professor Joanna Grossman has an excellent FindLaw.com column this week titled "The End of Ladies' Night in New Jersey: A Controversial Ruling Deems the Practice Sex Discrimination Against Men." The lead to her article:

Recently, New Jersey's Director of Civil Rights (DCR) issued a ruling on a restaurant's "Ladies' Night"--a night each week when it admitted women free of charge and charged them discounted drink prices. The DCR decided that the practice violated the New Jersey Law Against Discrimination (LAD) because it discriminated against male customers on the basis of sex.

The public reaction to the decision in Gillespie v. Coastline Restaurant was curiously strong. The state's governor, James McGreevey, issued a written statement denouncing it as "bureaucratic nonsense," and an "overreaction that reflects a complete lack of common sense and good judgment." One television commentator began coverage of the story by asking - perhaps partially tongue-in-cheek -- "Is nothing sacred?"

The decision raises an interesting question: Do sex discrimination laws have built-in "de minimis" exceptions -- for practices that, while they differentiate based on gender, seem to do so in a relatively innocuous way? (The expression "de minimis" comes from the saying "De minimis non curat lex" - Latin for "The law does not bother with trifles.")

In addition, the strength of the public reaction alone makes the issue worthy of further inquiry.

Here is a quote from the New Jersey Division of Civil Rights opinion, Gillespie v. Coastline Restaurant:
Complainant filed a verified complaint with the Division on Civil Rights on June 22, 1998, alleging he was discriminated against based on his sex when Respondent, pursuant to its “Ladies’ Night” policy, admitted women to its restaurant free of charge and gave them discounts on drinks, but charged men, including Complainant, an admission charge of $5.00 and normal drink prices.
A completely different take on this issue (hence the "point/counter-point") was presented by NPR's Weekend Edition on Saturday, June 5th via a Scott Simon essay titled "A Fight over Ladies' Night." Listen to it via this link. The feature was followed by a clip of "Hey Big Spender" ("The minute you walked in the joint, I could tell you were a man of distinction, a real big spender ..."), which I admit made me laugh out loud, and which you can access via this link (scroll a little more than half-way down the page).

Posted by Marcia Oddi at 08:44 AM

June 16, 2004

Indiana Decisions - Seven Court of Appeals Opinions Posted Today

Francis W. Splittorff v. Eloise W. Fehn (6/16/04 IndCtApp) [Real Estate; Contracts]
Friedlander, Judge

Rural Acceptance Corp. established a procedure for parties such as Fehn to follow upon discovery of a judgment lien entered against property they are purchasing under an installment contract. Such party should: (1) cease making payments to the seller/judgment debtor; (2) initiate a separate action to resolve questions related to the right to the unpaid balance of the purchase amount; and (3) arrange to pay the balance due under the contract to the court and so notify the court. Having followed the procedure approved in Rural Acceptance Corp., Fehn did not abandon the contract, but instead did all that was necessary to preserve her rights under the contract. Therefore, the trial court did not err in granting summary judgment in Fehn’s favor.
Judgment affirmed.
KIRSCH, C.J., and BARNES, J., concur.
Howard County Board of Commissioners v. Kellie Lukowiak (6/16/04 IndCtApp) [Tort Claim]
Sullivan, Judge
We have found no provision within the [Tort Claims Act, IC 34-13-3] which authorizes a claimant to file an amended notice. Were the amended notice filed within the required time period after the event causing the damages occurred, we perceive of no problem with allowing the amendments to be applicable to the claim. Nevertheless, in this case the amendments were not made within the required time period for filing a notice. Furthermore, the changes made to the notice went to the heart of the claim; specifically, the amendments enunciated new damages not contemplated in the original notice. Given that the policy behind the Act is to provide the political subdivision with sufficient information so that it may ascertain the full nature of the claims against it, we conclude that the amendment in this case was not proper and could not be relied upon to support the claim. Thus, the claim for lost wages and loss of consortium may not survive. Partial summary judgment should have been granted in favor of the Board on those specific claims.

The denial of summary judgment is affirmed in part and reversed in part, with summary judgment granted in favor of the Board in regard to the claims for lost wages and loss of consortium. The cause is remanded to the trial court for further proceedings not inconsistent with this decision.
ROBB, J., and HOFFMAN, Sr.J., concur.

Benjamin Rose v. State of Indiana (6/16/04 IndCtApp) [Criminal Law & Procedure]
"Rose appeals, alleging the trial court improperly evaluated the aggravating and mitigating circumstances and his sentence is inappropriate.See footnote We affirm."

Concerned Citizens of West Boggs Lake v. West Boggs Sewer District, et al. (6/16/04 IndCtApp) [Utilities]
Baker, Judge

Appellants-intervenors, the Concerned Citizens of West Boggs Lake (Concerned Citizens) appeal the Indiana Utility Regulatory Commission’s (IURC) grant of a Certificate of Territorial Authority (CTA) to the appellee-petitioner, West Boggs Sewer District, Inc. (West Boggs) regarding its application to operate a sewage disposal facility. Concerned Citizens argues that granting the CTA was contrary to law because the proposed sewage disposal service was going to be operated in the town of Loogootee. In essence, Concerned Citizens maintains that West Boggs is prohibited from operating that type of business in the town because it would not be “owning” a treatment plant and, therefore, it could not qualify as a sewage disposal company. Moreover, Concerned Citizens urges that West Boggs is a mere collection system and does not qualify as a “sewage disposal company” in accordance with Indiana law. Concluding that West Boggs’s plan to operate a sewage disposal facility was in conformance with relevant statutory authority, we affirm the judgment of the IURC. * * *

In urging that the grant of the CTA to West Boggs was contrary to law, Concerned Citizens points to Indiana Code section 8-1-2-89(a)(2), which provides that a sewage disposal company must “operate, lease or own any sewage disposal service within the rural areas of this state.” Moreover, Concerned Citizens relies on this court’s holding in Town of Merrillville v. Lincoln Utilities, Inc., 355 N.E.2d 851 (Ind. Ct. App. 1976), where we observed that “the Public Service Commission may only grant certificates of authority to those ‘sewage disposal companies’ who propose to render a ‘sewage disposal service’ in a ‘rural area’ of this State.” Id. at 856. Concerned Citizens goes on to maintain that West Boggs does not qualify as a “sewage disposal company” and, therefore, it was not eligible for the issuance of a CTA to render “sewage disposal services.” Because West Boggs does not own, lease or operate a sewage disposal company, nor does it intend to do so—says Concerned Citizens—the issuance of the CTA was contrary to law. * * *

In this instance and others, the IURC has granted CTA’s and indeterminate permits to other sewage disposal companies. In the context of such findings and orders issued by the IURC, as well as the objectives set forth by our legislature, the definition of a “sewage disposal service” should not be so narrowly construed as to require that each and every component of services or facilities listed in the definition must be solely owned and operated by an entity before it can qualify as a “sewage disposal company” within the meaning of Indiana Code section 8-1-2-89. Put another way, to interpret the definition of “sewage disposal service” to exclude from the definition a company that provides essential aspects of sewer utility service, such as a collection system and lift stations, while contracting for the final treatment of the waste by a municipality or other utility that already has a treatment plant, would simply result in a hardship and absurdity that should be avoided. For these reasons, we affirm the IURC’s grant of the CTA and indeterminate permit to West Boggs.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Freda D. Counceller v. John D. Counceller (6/16/04 IndCtApp) [Family Law]
Bailey, Judge
Appellant/Cross-Appellee-Respondent Freda Counceller (“Mother”) appeals the denial of her motion to correct error, which challenged findings of fact, conclusions of law and judgment entered upon Mother’s motion to modify child support and petition for contempt against Appellee/Cross-Appellant-Petitioner John Counceller (“Father”). We affirm.

Issue. * * * We address a single, consolidated issue not barred by the doctrine of res judicata: whether the findings of fact, conclusions of law and judgment entered by the trial court on January 29, 2003 were clearly erroneous. * * *

Affirmed.
FRIEDLANDER, J., concurs.
BAKER, J., concurs in result with separate opinion: I fully concur in the result reached by the majority. However, I would remand for an assessment of attorney fees against Mother. Initially, I wish to point out that, although Indiana has continuing jurisdiction here, I am certain that our courts would be only too happy to send this case to California considering the judicial resources that the seemingly endless litigation between these ex-spouses consumes. However, we will spare our west coast colleagues this fate. * * *

Ernst & Young, et al. v. Indianapolis Star (6/16/04 IndCtApp) [Public Records]
Vaidik, Judge
This appeal stems from the high-profile dissolution proceedings involving Janet L. and Richard S. Bobrow. The issues presented on appeal do not involve the terms of the dissolution decree. In fact, the parties’ marriage was ultimately dissolved via a private and confidential settlement agreement, which the trial court approved. Instead, this appeal involves parties who intervened in the dissolution proceedings to address the key issue of whether the Indiana Access to Public Records Act, Indiana Code §§ 4-14-3-1 to -10 (“the Public Records Act” or “the Act”) [Note - this should be 5-14-3 etc.] , permits a trial court to seal public records—which fall within a mandatory exception to the public access provisions of the Act—after those records are admitted into evidence at trial. Based on the plain and clear meaning of the Public Records Act, we conclude that the Act permits the trial court to seal public records that fall within a mandatory exception to the Act either before or after they are admitted into evidence. We also conclude that this is a right that a party can waive. * * *

The trial court conducted the final hearing in the dissolution proceedings in October 2001. Prior to the hearing, which was open to the public, Janet and Richard stipulated to the admissibility of the documents that were produced by E&Y and designated as confidential pursuant to the Protective Orders. During the hearing, Janet—who had not notified E&Y and Cap Gemini either before or after the hearing—admitted the documents into evidence. Richard neither objected to the admission of the exhibits based on their confidentiality nor moved to seal the exhibits. Additionally, Janet and Richard did not enter into an agreement or seek a pre-trial order governing the use of the protected information at trial. Nearly a year later, in September 2002, the trial court entered its Decree of Dissolution. Because of the sensitive financial information revealed in the decree concerning E&Y and Cap Gemini, the Decree of Dissolution generated nationwide publicity. See David Cay Johnston, Ernst Finances are Disclosed in Documents in a Divorce, N.Y. Times, Oct. 15, 2002, at C1.

In response to numerous requests for the actual trial exhibits, including one by The New York Times (“The Times”), the trial court conducted a conference with the attorneys for Janet and Richard. Neither attorney opposed the release of the exhibits. Three days after the article was published in The Times, E&Y filed a Motion to Seal Certain Trial Exhibits and Trial Testimony, which it later supplemented, on grounds that eighteen of the exhibits See footnote contained trade secrets and confidential financial information, which are specifically excepted from the public access provisions of the Public Records Act. Because some of the eighteen exhibits also contained trade secrets and confidential financial information of Cap Gemini, it later joined this motion. Thereafter, The Times filed a Motion to be Heard Prior to Any Determination to Seal Exhibits and Transcripts. * * *

Conclusion. The Public Records Act permits the trial court to seal public records that fall within a mandatory exception to the Act either before or after they are admitted into evidence. Accordingly, the trial court erred by denying E&Y and Cap Gemini’s Motion to Seal the eighteen exhibits. Although interested third persons may request that records be sealed after they are admitted into evidence, this is a right that can be waived. Richard has waived his right to seal the various records because he stood silently by as the records were admitted into evidence and as the trial transcript was being made.
Affirmed in part, reversed in part, and remanded.
SHARPNACK, J., concurs.
MATHIAS, J., concurs with separate opinion.

Note: The Indiana Law Blog wrote about the Hamilton County Court decision on April 15, 2003. Access the entry here. And check back here for press coverage, sure to follow.

[Update] Here is Indianapolis Star coverage timelined 5:58 PM. Some quotes:

Trade secrets should stay trade secrets in Indiana -- even after they no longer are secret, an Indiana Court of Appeals has ruled. Indiana's public records laws, the court ruled today, permit a trial court to seal public records that fall within certain mandatory exceptions, such as a business's confidential information, even after they have been disclosed as evidence.

The three-member court ruled in favor of accounting powerhouse Ernst & Young LLP , which sought to seal its business records after they were introduced as evidence in the divorce of former Ernst & Young chief executive Richard S. Bobrow. The records had not only been used as evidence in the Hamilton County divorce proceeding, but also publicized in the New York Times -- which had obtained them before the companies asked that they be sealed.

While Hamilton Superior Court Judge Steve Nation had ruled in April 2003 that the records, once admitted into evidence, should be public, he had kept them shielded pending the outcome of the appeal. Steve Key, general counsel to the Hoosier State Press Association, said the court's decision is like "trying to put a genie back in a bottle."

Leon Leffingwell v. State of Indiana (6/16/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi at 02:05 PM

Indiana Decisions - One Supreme Court Decision Posted Today

State of Indiana v. T. Eric Evans (6/15/04 IndCtApp)
Shepard, Chief Justice

After an audit by the State Board of Accounts, the Attorney General sued former prosecutor T. Eric Evans to recover public money spent on alcohol, hotel rooms, ammunition for personal use, personal phone calls, and the like. Evans contends he is entitled to counsel at public expense. We hold he is not. * * *

The trial court relied on Indiana Code Annotated § 33-2.1-9-1(c)(2) (West Supp. 2003), in determining that Indiana’s Attorney General must provide private counsel for Evans. * * * While Evans, as a prosecuting attorney, enjoys the protections that this statute provides, we cannot ignore the incongruous result that a literal reading would render under the present facts: the Attorney General’s office would be either litigating or financing both sides of this suit. Our method of analyzing statutes on such occasions is this:

When interpreting a statute, appellate courts independently review a statute's meaning and apply it to the facts of the case under review. If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning. If a statute is susceptible to multiple interpretations, however, we must try to ascertain the legislature's intent and interpret the statute so as to effectuate that intent. We presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results.
Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind. 2002) (citations omitted). We conclude that the interpretation urged by Evans would produce an absurd result. The statute’s objective is to protect officeholders from litigation by those dissatisfied with the decisions they make (typically, in the case of judges and prosecutors, lawsuits by prisoners). We think the General Assembly’s intent for situations like the present case is reflected by its explicit rule for statewide officials. See Ind. Code Ann. § 4-6-2-1 (2002) (Attorney General “shall defend all suits brought against the state officers in their official relations, except suits brought against them by the state”).

Requiring the Attorney General to finance both sides of this suit is akin to the dog chasing its own tail and an absurdity that the General Assembly could not have intended. See, e.g., Livingston v. Fast Cash USA, Inc., 753 N.E.2d 572 (Ind. 2001) (applying the “absurd result rule” to the Indiana Uniform Consumer Credit Code). Whether the statute would afford reimbursement to a defendant who prevails we leave for another day.

Evans also contends that Indiana Code Annotated § 33-14-11-4 (West 1996) entitles him to a defense provided by the State. The statute provides in relevant part: “The state shall pay the expenses incurred by a prosecuting attorney from a threatened, pending, or completed action or proceeding[.]” We conclude that this section is unavailing to Evans for reasons substantially similar to those mentioned above.

Conclusion. We reverse the trial court’s grant of Evans’s motion to appoint counsel and remand for proceedings on the merits.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without opinion

Posted by Marcia Oddi at 02:03 PM

Indiana Decisions - Two 7th Circuits Decisions Posted Today

PETERSEN, DEBORAH v. GIBSON, BYRON (ND Ill.)

ROVNER, Circuit Judge. It is rare that a trip to the hair salon leads to a date in federal appellate court, but that was the unfortunate sequel to Deborah Petersen’s hair appointment at the Mario Tricoci Salon in Bloomingdale’s Stratford Square Mall on June 13, 1995. Ms. Petersen, a regular customer of the salon, had an appointment to get her hair colored. All did not go as planned, however, and after three hours and two attempts to correct a botched coloring job, Petersen was left under a hair dryer while her stylist went to lunch. When the treatment began to burn her scalp and her stylist was nowhere to be found, Petersen—foils still in her hair—left the salon without paying.

The salon employees then contacted the Bloomingdale police, who dispatched Officer Gibson to the scene. He contacted Petersen and she returned to the store. Hours of discussions ensued, in which Petersen offered to pay part of the bill and the salon refused to accept less than full payment, and culminated in Gibson arresting Petersen and detaining her at the police station for two hours. The salon pursued her prosecution for seven months, at which time the state nolle prosequied her case. Petersen then sued Gibson, the salon, its employees and others. Her claims included false arrest and wrongful detention claims against Gibson under 42 U.S.C. § 1983, a conspiracy claim against all defendants; and malicious prosecution, battery and negligence claims against defendant Mario Tricoci Salon-Bloomingdale and some of its employees. * * *

[The case on appeal deals with the award of attorney fees and costs To Peterson.] The decision of the district court awarding $288,087.25 in attorney’s fees is REVERSED, the award of $20,840.03 in costs is VACATED, and the case REMANDED for further proceedings consistent with this opinion.

USA v. CASSANO, ANGELO (ND Ill.) Involved "an alleged conspiracy to defraud
Continental Casualty Company, a subsidiary of CNA Financial Corp. (“CNA”)." Affirmed.

Posted by Marcia Oddi at 01:52 PM

Law - Nebraska Court Awards Damages to Hog Farm Neighbors

This AP story, headlined "Nebraska appeals court says residents near hog farms deserve to be paid damages," reports:

LINCOLN, Neb. – The owner of farms housing thousands of hogs must pay damages to 11 neighbors who said the stench forced them indoors, the state Court of Appeals said Tuesday. A trial court will determine the amount owed to the residents, who live within two miles of farms owned by Progressive Swine Technologies. * * *

The decision reversed a 2002 ruling that Progressive Swine did not owe damages, even though its four farms were a nuisance. As part of that ruling, the farms were told to reduce the smell. Pat Knapp, the landowners' attorney, said that has not been done. * * *

David Domina, attorney for Progressive Swine owner Jim Pillen, said he did not think the damage awards would be substantial. "All 11 collectively had zero expense for medical care and zero medical visits," Domina said.

The Nebraska Court of Appeals opinion, Stevens v. Pillen (6/15/04), may be accessed here.

Posted by Marcia Oddi at 12:12 PM

Indiana Decisions - Court of Appeals "Sends Message" on Search Warrants

"Court sent message: Get search warrant" is the headline today, ironically, to this story in the Indianapolis Star. First, some quotes from the story:

The Indiana Court of Appeals made one thing clear in throwing out the case against a man who had been serving a 110-year prison sentence: Police must get a search warrant.

Steven Eldridge, who laughed seven years ago when a judge sentenced him to 110 years in prison, was freed from Marion County Jail last week -- five months after winning an appeal that prosecutors say gutted the evidence linking him to the 1997 murder of James Bennett, 22. * * *

In January, a three-judge panel tossed out Eldridge's convictions for murder, conspiracy to commit murder and criminal confinement because police had illegally seized a .45-caliber handgun from underneath a mattress in his bedroom.

"Eldridge was detained and arrested in the hallway leading to the living room, not in the bedroom," Judge Michael P. Barnes wrote. "The gun, which was hidden in between the mattress and box spring of the bed, was neither in the immediate vicinity of Eldridge's arrest nor in his immediate control." * * *

In Marion Superior Court on Thursday, Eldridge, 30, pleaded guilty to conspiracy to commit criminal confinement. Judge Jane Magnus-Stinson sentenced him to time served, which came to about 61/2 years.

So where is the link to this 1/22/04 Court of Appeals opinion reversing the trial court and ultimately releasing the defendant, Steven S. Eldridge? It turns out it is not available. Here is information gleaned from the docket (49 A 02 - 0301 - CR - 00090):
1/22/04 2004 TERM
REVERSED----BARNES, J.
DARDEN, J., AND MAY, J., CONCUR.
MEMORANDUM DECISION/NOT FOR PUBLICATION
14 PAGES SH
Court of Appeals opinions designated "not for publication" are also not available online. Paper copies may be obtained at the Clerk of the Court's office, if you know to ask for the opinion. Further, pursuant to Appellate Rule 65(D):
Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
In short, given both the limited availability of the opinion, and its non-precedential status, the Star's headline might bettter read: "Sends a Limited Message."

Posted by Marcia Oddi at 11:54 AM

Indiana Decisions - More on South Bend underage drinking suit

The Evansville Courier-Press reports here today on the Court of Appeals ruling in Millenium Club, Inc. v. Pamela Avila, et al. (6/11/04 IndCtApp) - see earlier Indiana Law Blog entry here. Some quotes from the story:

SOUTH BEND, Ind. - Owners of a South Bend bar that could have lost its liquor license for serving minors can sue the underage drinkers, the Indiana Court of Appeals has ruled.

The appeals court has decided that while public policy places the burden of enforcing the underage drinking laws on bar owners, "we also recognize the competing public policy that the minors should be held accountable for their actions." * * *

The Millennium Club Inc., which owns The Boat Club bar, last year sued more than 200 people, primarily students from the University of Notre Dame and St. Mary's College, seeking $3,000 in damages from each person after they were caught in the bar during a raid by Indiana Excise Police in January 2003.

Posted by Marcia Oddi at 08:34 AM

Environment; Economic Development - Several Indiana stories today

"Chamber, Farm Bureau oppose bill capping greenhouses gases" is the headline to a story in the Munster Times, that reports:

INDIANAPOLIS -- Indiana business and farm lobbyists joined forces Tuesday to oppose a federal bill designed to curb global warming by capping greenhouse gas emissions at 2000 levels.

The Indiana Chamber of Commerce and Indiana Farm Bureau, backed by an economic analysis of the bill's impact, said it would increase energy prices and hurt Hoosier consumers and job seekers. The study, by Charles River Associates of Washington, D.C, found the bill could cost Indiana families as much as $1,500 and cause as many as 9,000 lost jobs in 2010.

"Storm water fee up for local businesses: Religious institutions could pay up to $600 per year" is the headline to this Munster Times story that illustrates the difficulties in setting the fee structure.

In a story headlined "Cost of building permits could go up: St. John ordinance would create new utility service fee," the Munster Times reports:

ST. JOHN -- A favorable vote from the Town Council on Thursday could increase the cost of building permits by $2,000.

The council will consider an ordinance that would create a new utility service developmental fee on each new housing unit. The system development charge would be tacked onto building permits, which can either be paid by the builder or the homeowner.

The funds would be divided evenly between sewer and water service improvements, Town Manager Steve Kil said. The town's Sanitary and Waterworks district boards have recommended the council approve the system development charge.

One of the primary uses of the sewer funds will be to build a second sewage transmission line to the Schererville wastewater treatment facility, Kil said. The new 24-inch will parallel the existing 24-inch line, essentially doubling current capacity. * * *

The town has been averaging 160 building permits a year for the past several years, Kil said. Based on that figure, the system development fee could generate $320,000 a year. Building permits already run an average of $5,000 in St. John.

The Evansville Courier&Press has an editorial today on "Ozone and the Economy." It begins:
The economic consequences of being in nonattainment of federal ozone standards are beginning to crystallize for Vanderburgh and Warrick counties.

The counties' designation of nonattainment took effect Tuesday, and with it, the process for new business and industry that might want to locate here became more difficult.

More on greenhouse gases. The Washington Post has this story; this from Reuters.

The most recent wave of brownfields grants announcements is reported here in the NY Times. Indiana is not one of the states listed as receiving significant monies. However, this comprehensive story today in the Johnson County Daily Journal reports that "Indiana is one of 42 states receiving federal brownfield money, with $900,000 split between Franklin, Frankfort and Tippecanoe County." More re Franklin's $300,000 share:

Franklin had listed 17 possible brownfield sites on its application submitted in the fall, Linke said. Some of those sites include the former Kawneer plant, the ArvinMeritor building, the former Electro-Spec location on Industrial Road and tow yards and former gas stations throughout the city.
Finally for now, high-speed rail development is a hot topic in Lake County, according to this story in the Munster Times. And this Times story, headlined "Indy law firm gets on track for high-speed rail: Pro bono work promised as association looks to gain funding from Congress," reports:
INDIANAPOLIS -- One of Indiana's largest law firms, Barnes & Thornburg LLP, has partnered with the Indiana High Speed Rail Association to provide pro bono lobbying services to gain support and funding from Congress for the high-speed rail initiative.

The services will be rendered by the firm's transportation attorneys. That law team is headed by Richard Streeter, an attorney practicing in Barnes & Thornburg's Washington, D.C., office who has handled transportation law for 30 years.

Dennis Hodges, executive director of the Indiana High Speed Rail Association, said the commitment from Barnes & Thornburg fortifies the association's efforts to build a strong coalition of support for high-speed passenger rail transportation in the state.

The law firm plans to focus on federal funding initiatives as well, Hodges said, primarily working to procure federal transit dollars.

Posted by Marcia Oddi at 08:14 AM

June 15, 2004

Biotech - Full-disclosure of clinical trials?

The NY Times had an interesting front page story today headlined "Medical Journals Weigh Plan for Full Drug-Trial Disclosure." Some quotes:

An organization of top medical journals is considering a proposal that would require drug makers to register clinical trials at their start in a public database in order for results, whether successful or not, to be later considered for publication, according to three people working with the group.

Pharmaceutical companies are not generally required now to disclose results of a trial or even whether one was conducted. Some academic researchers have long argued that fuller registries of drug trials are needed because companies, as well as medical journals and scientists, tend to spotlight only trials that show positive results.

The plan, if adopted by the organization, the International Committee of Medical Journal Editors, is likely to put pressure on pharmaceutical makers to disclose more about the trials they run. The group includes 12 major medical journals like The Journal of the American Medical Association, The New England Journal of Medicine, The Lancet and The Annals of Internal Medicine.

[Update 6/16/04] Today's Indianapolis Star has a related story that begins:
The American Medical Association, the largest U.S. medical trade organization, approved a measure Tuesday urging the United States to require pharmaceutical companies to disclose all drug-study results, including negative findings. The AMA wants the government to create a database through which doctors and patients can view data on all human drug trials.

Posted by Marcia Oddi at 09:22 PM

Indiana Decisions - One Court of Appeals Opinion Today

Stacey Stroup v. State of Indiana (6/15/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Mathias, Judge

Concluding that Stroup’s confession was properly obtained but that the State failed to meet its burden of establishing venue and that Stroup’s possession of a controlled substance convictions violate the Double Jeopardy Clause of the Indiana Constitution, we affirm in part, reverse in part, and remand to the trial court. * * *

Stroup contends the only evidence establishing venue for her forgery conviction was her testimony indicating she made her prescription in Hamilton County and, accordingly, her Marion County conviction should be reversed.

The Indiana Constitution states, “In all criminal prosecutions, the accused shall have the right to a public trial . . . in the county in which the offense shall have been committed.” Ind. Const. Art. I, § 13(a) * * * If the defendant challenges venue at the conclusion of the State’s case, the question becomes one of the sufficiency of the evidence supporting the conclusion that the defendant was tried in the proper county. * * * The State also contends that “[i]f Stroup had not presented the prescription slip to be filled in Marion County, she would not have completed the crime, regardless of where the prescription slip was made.” Br. of Appellee at 5 (emphasis added). However, “to present” is “to utter.” See Ind. Code § 35-41-1-27. Our supreme court has specifically determined that “to make” and “to utter” are “two distinct and independent” forgery offenses. * * *

Requiring the State to prove a defendant “presented” the forged instrument when seeking a conviction pursuant to the “make” variant of forgery ignores the make/utter distinction required by our supreme court.

Because every element supporting Stroup’s forgery conviction was completed in Hamilton rather than Marion County, the State did not establish venue, and we vacate her forgery conviction. * * *

Stroup contends that the trial court’s failure to vacate her possession of a controlled substance convictions, in light of her obtaining a controlled substance by fraud or deceit conviction, violates the Double Jeopardy Clause of the Indiana Constitution. The State concedes this argument. ... Accordingly, we remand to the trial court to vacate Stroup’s possession of a controlled substance convictions. * * *

The trial court properly admitted Stroup’s confession. However, Marion County was not the proper venue to charge Stroup with the “making” variant of forgery, and Stroup’s possession of a controlled substance convictions violate the Double Jeopardy Clause of the Indiana Constitution. Affirmed in part, reversed in part, and remanded to the trial court for proceedings consistent with this opinion.
BARNES, J., and CRONE, J., concur.

Posted by Marcia Oddi at 02:02 PM

Indiana Decisions - Eight 7th Circuit Rulings Posted Today

HALL, KEVIN T. v. USA (SD Ill.) Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges. BAUER, writing for the panel, rules that "Hall is entitled to an evidentiary hearing to determine whether there was an actual conflict of interest that produced an adverse effect. We REVERSE and REMAND to the district court for that purpose. Judge EASTERBROOK dissents.

INGRAM, SONIA v. MERRILL LYNCH PIERCE (ND Ill.) Per Curiam. "Given the lack of any factual or legal support for the appellants’ arguments on appeal, we find that the district court did not abuse its discretion when it denied the appellants’ petition as untimely, and AFFIRM the district court’s dismissal of appellants’ petition [to reopen a stipulation of settlement which was approved without objections and became effective in 1998]."

KLASSY, JIM v. PHYSICIANS PLUS INSURANCE (WD Wis.)

Manion, Circuit Judge. * * * ERISA provides a remedy for plan participants wrongfully denied benefits. However, such claims must be brought under ERISA and creatively pleading a denial of benefits claim as a state law claim does not defeat the broad preemptive force of ERISA. Thus, although the Klassys might have succeeded under ERISA and obtained payment for the bloodless surgery, because they instead opted to pursue a state law claim that is preempted, the district court properly dismissed their complaint. For these and the foregoing reasons, we AFFIRM.
NAVARRO, MAUREEN A. v. FDIC (ND Ill.)
EVANS, Circuit Judge. Maureen Navarro worked 39 years for the Universal Federal Savings Bank, starting as a parttime clerical assistant in 1963 and eventually becoming the president and chief executive officer of the firm in 1997. In her case here she has all the equities on her side, for the Federal Deposit Insurance Corporation (FDIC) (more on its involvement later) concedes that if she would have quit—just walked off the job—on June 26, 2002, she would be entitled to receive “deferred compensation” payments she earned under two agreements she had with Universal. But because she showed up for work the next day, June 27, 2002, she’s out of luck . . . and out of the money. So says the FDIC and the district court which dismissed Navarro’s case on summary judgment. * * *

We understand the FDIC’s desire to conserve savings and loan assets for creditors while keeping golden parachute money from unscrupulous executives who have run an institution into the ground to their own benefit. That is not, however, what happened here. These were modest agreements drawn up two decades before the institution defaulted, and Navarro’s rights in them, we hold, were vested. To say she could have unquestionably received the benefits if she quit—or was fired for cause—on June 26 but that she cannot recover because she came to work on June 27 defies logic and common sense. For the foregoing reasons, the judgment is REVERSED and REMANDED for further proceedings in accordance with this opinion.

RAMOS RAMOS, MIGUEL v. ASHCROFT, JOHN (Bd.Immig.App.)
EASTERBROOK, Circuit Judge. What is the location of a proceeding conducted in two places at once? Immigration officials, who propose to remove Miguel Angel Ramos from the United States, offered him a hearing in Council Bluffs, Iowa. There Ramos, his lawyer, his witnesses, and the lawyer for the government testified and argued in front of a television set, connected by teleconference equipment to the chambers of an immigration judge in Chicago, Illinois. At the end of a hearing the immigration judge read a decision into the record; a formal order bore the caption: ... Chicago, Illinois. [The issue is which circuit, the 8th or 7th, should hear the appeal of the Board's dismissal of Ramos' appeal. DOJ wants to transfer to the 8th] Teleconferencing is increasingly common, so we were surprised to discover that no court has addressed the question where a proceeding is “completed” for purposes of §1252(b)(2). * * * [T]he statute itself ensures that the alien may petition for review in the circuit where the immigration court is located. So the motion to transfer is denied.

One further comment is in order. The Department of Justice filed its motion on April 22, 2004, the day its brief was due. Counsel asked us to grant more time to file a brief if we should deny the motion for transfer. Filing motions in lieu of briefs, a form of self-help extension, has become increasingly common but is not authorized by any rule, either national or local. It is fine to file a motion to affirm, to dismiss for want of jurisdiction, to transfer to another circuit, and so on; the problem lies in the belief that any motion automatically defers the deadline for filing the brief. A brief must be tendered when due. * * * The motion to transfer in this case should have come well before Ramos filed his own brief. * * *

The brief for the Attorney General is overdue. No extension of time has been granted. Nor should the respondent need much time to file; the brief should be written already. Unless the respondent files a brief on the merits by June 22, 2004, the matter will be submitted for decision on the petitioner’s brief alone. Fed. R. App. P. 31(c).

SCA TISSUE NORTH v. NLRB (NLRB)

USA v. MACEDO, GREGORIO (ND Ill.) "An incorrect designation of the drug schedule in the indictment does not mean there is an Apprendi violation when the indictment also lists the specific drug as well as the quantity." More.

WHITE, EARNEST L. v. USA

POSNER, Circuit Judge. Earnest White has applied to us pursuant to 28 U.S.C. § 2244(b)(3) for leave to file a successive motion to vacate, under 28 U.S.C. § 2255, his federal criminal judgment. * * * No reported appellate case addresses the question whether a direct appeal is a “prior application” within the meaning of section 2244(b)(1). [Judge Posner denies the application; Judge Wood dissents.]

Posted by Marcia Oddi at 01:53 PM

Indiana Law - Ballot Design at Issue Again

Speaking a deju vu -- the headline today to this Indianapolis Star story brings it back, all over again: "Dems, GOP argue case over design of ballots." More:

Before voters head to the polls Nov. 2, there's still an important question to decide.

What will the ballots look like?

In a lawsuit that has statewide implications, Marion County Democrats squared off against Republicans on Monday before a three-judge panel of the Indiana Court of Appeals.

Ninety-one Indiana counties using new voting equipment organize their ballots by office -- with the candidates listed below each office and their political parties listed next to their names.

Republicans, including Marion County Clerk Doris Anne Sadler, want to keep it that way.

County Democrats want to change the ballots so they are organized by party -- with the political parties listed across the top of the ballot and the candidates for specific offices listed below.

The legal wrangling over the appearance of the ballots began in September, threatening the 2003 municipal elections in Indianapolis. Though both sides brokered a compromise that allowed that election to proceed, the fate of future ballots is now in the hands of the Court of Appeals. * * *

The legislature considered a bill earlier this year that would have let election boards group the candidates as they have been -- by office. But the bill died after running into problems with Democrats and with a Republican walkout over gay marriage.

Election boards in all but one of Indiana's 92 counties have chosen to organize their ballots by office, attorneys said. Greene County still uses the old, traditional lever machines that are organized differently.

And for this reason, changing the ballot layout five months before the elections would be significant and troublesome, said Joseph Chapelle, an attorney representing the Association of Clerks of Circuit Courts.

"The (election) board has to have discretion to consider the other practicalities of conducting an election," he said.

Posted by Marcia Oddi at 09:35 AM

Economic Development; Environment - State Official Promises "One-Stop Permitting" and More

"State measure addresses ozone rules" is the headline of this story today in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS - Lt. Gov. Kathy Davis announced three new initiatives Monday meant to ease hassles for businesses when dealing with state government, including a state-run Web site to help companies cope with new rules for counties not in attainment of ozone standards.

The site (www.emissionscred it.in.gov) will go live today and will be a forum for businesses to advertise pollution credits they can sell to other companies. [Note: The site mentioned was not available at 9:00 a.m. However, this site about Indiana's Emission Credit Registry is available via IDEM.]

As part of the nonattainment designation, which takes effect today, any new business entering Vanderburgh and Warrick counties must show that it will offset new air pollution it will create in order to get permits. This provision kicks in automatically, according to Janet McCabe, Indiana Department of Environmental Management assistant commissioner for the office of air quality.

Often established businesses reduce air pollution but don't notify the state, McCabe said. Now they can and perhaps reap some rewards by selling their credit for achieving reductions to new businesses hoping to locate in the counties. "It's sort of like a dating service," McCabe said.

In addition, Davis reports efforts will be made to reduce the NPDES permit renewal backlog. (Those familiar with this issue may experience deja vu on hearing this. And there is no mention in the story of expediting applications for new permits, essential to relocation.) Quotes from the story:
Davis also committed the administration to eliminating the backlog of IDEM wastewater permits. About 200 large businesses in Indiana have permits to release wastewater. The companies have to reapply for these permits every five years, and if the state does not decide on the permit within 180 days, it leaves the business in limbo as far as certainty for the future.

Indiana Department of Environmental Management Commissioner Lori Kaplan said staff would be shifted from other duties, asked to work overtime and vacant positions would be filled to meet the goals.

The Indianapolis Star also has a report in its business section, headlined: "State streamlines permit process to boost growth: Sole point of contact centerpiece of program designed to help firms through agency maze."
A single point of contact for state government will be launched to help companies navigate various agencies, said Lt. Gov. Kathy Davis.

The issuance of permits will be streamlined, backlogs of unprocessed permit applications will be whittled down, and permit applications will be put on the Internet. And an online site will allow companies to buy or swap unused "ozone" credits in order to help companies expand in problem areas.

"This is an issue we have heard about from the business community regularly, that they need a single point of contact, that they need to know every single thing that is going to be expected of them, ahead of time, and that all the agencies are working together," she said. * * *

By September, businesses will be able to learn about needed permits through an Internet site. Backlogs of certain types of permit applications at the Indiana Department of Environmental Management hope to be eliminated by December 2005 by shifting internal staff, filling some staff vacancies and asking staff members to work overtime.

The Star story also quotes a dissenting voice:
But Tom Frampton, who manufactures ceiling fans in Zionsville, said he wasn't impressed. The owner of Fanimation said he is skeptical the changes can make much difference in the thicket of regulations he encountered when he moved the company from Lebanon recently. Even within Boone County, regulations varied, sometimes widely, between the two communities. "My guess is it won't work," Frampton said. "You're still going to have to talk to everybody."

Posted by Marcia Oddi at 08:58 AM

Environment - Plan to Reclaim Lake Michigan Shore Moves Forward

"Lakeshore plan starts to flow: Chicago firm to head Marquette Greenway Plan study team," is the report today in the Munster Times. More:

The Marquette Greenway Plan, unveiled by U.S. Rep. Pete Visclosky as a way to recapture 75 percent of the Lake Michigan shoreline in Northwest Indiana for public use, is moving forward.

A series of think-tank sessions begins today at the Gary/Chicago International Airport to compile data for a master plan to develop the lakefront.

Visclosky, D-Ind., envisions transformation of a shoreline with telltale Industrial Revolution-aged landmarks into a seamless recreational vista. Steel industry consolidation makes this a key time to reclaim vast tracts of land along the Lake Michigan shoreline, Visclosky said. But first, "We've got a lot of heavy lifting here," he said. * * *

"The objective is to create a document with some specific goals in mind," recognizing there are huge issues with which to contend, such as environmental cleanup, Visclosky said. "In some initial conversations, though, it appears these challenges may not be as daunting as one would think." Visclosky set Jan. 31, 2005, as the deadline for the plan.

It will be used to leverage state and federal funds from several agencies, including Coastal Management, which provides $1.2 million annually in grants, along with public and private investment. The plan is expected to list lakefront assets, including steel mills, Northern Indiana Public Service Co., the BP refinery and five casinos. Unproductive, underused land will be noted, as will costs to acquire and clean up the land for public use.

Visclosky uses Chicago's Lake Shore Drive as an example of what might happen with the Marquette Greenway Plan. Chicago's Navy Pier, museum campus, marinas, beaches and walking trails, picnic areas and parks all replicate the synergy that takes advantage of being on one of the largest bodies of fresh water in the United States, he said.

"This is not a generational thing we're embarking upon, but a fundamental, permanent change in Northwest Indiana," he said.

A Gary Post-Tribune story adds:
An Indiana Department of Natural Resources grant will pay most of the cost of the $200,000 study.

Five cities along the shoreline — Hammond, Whiting, East Chicago, Gary and Portage — also contributed $8,000 each.

The Chicago office of JJR, a landscape architecture and urban design firm, is leading the study. Three other firms and a not-for-profit organization also are participating.

Posted by Marcia Oddi at 07:20 AM

Indiana Courts - Judge Kouros to stay on bench

" State says judge is still untidy, but won't recommend discharging her," is the headline to this story this morning in the Munster Times (the same paper that Sunday was speculating on her successor - scroll down for that story). Some quotes:

CROWN POINT -- A panel of state judges declined Monday to recommend the removal of Lake Criminal Court Judge Joan Kouros, despite new evidence of administrative disarray in her court.

"We look at this as encouraging," said Kouros' lawyer, Stanley Jablonski of Merrillville, after the 48-page opinion was released.

Nevertheless, the Indiana Supreme Court could suspend her for a second time and ultimately remove her from the bench later this year for repeatedly failing to get her work done in a timely manner. The report also indicated the possibility that Kouros has been offered the opportunity to retire as judge.

Here is today's coverage in the Gary Post-Tribune. A quote:

For the time being, Lake Superior Judge Joan Kouros will remain on the bench, after a judicial panel failed to recommend a course of action to the Indiana Supreme Court.

The 48-page report, dated June 10 but filed with the court Monday, makes no recommendation on whether Kouros should be removed or forcibly retired for violating a January 2003 Supreme Court order, designed to end the chronic backlog in her court.

Kouros is still hearing cases, but she could be suspended with pay, even with the Supreme Court ruling pending, if the Indiana Judicial Qualifications Commission takes the position that she should be removed. The commission, which acts as prosecutor in cases of misconduct by judges and attorneys, has 30 days to file its position with the high court, said Meg Babcock, the attorney handling the Kouros case for the commission. “The report itself doesn’t affect her status,” she said.

After the commission files, Kouros will have another 30 days to file her response with the court, before the Supreme Court finishes deliberating on its ruling.

Note: If the 48-page opinion is made available, we will post it here.

Posted by Marcia Oddi at 07:06 AM

Indiana Decisions - More on Health Care 2000 Decision

"State off the hook in Health Care 2000 case. HEALTH INSURANCE: High court refuses to let Health Care 2000 victims press suit against negligent state regulators." That is the headline to this story in the Munster Times, reporting on the Court of Appeals ruling last Friday in Linden v. Health Care 2000 (see ILB write-up here). Some quotes:

Northwest Indiana residents victimized by a fraudulent health insurance scheme will get no help from the state.

The Indiana Court of Appeals has taken state regulators off the hook for millions of dollars in unpaid medical bills left in the wake of Health Care 2000, a defunct Schererville-based HMO whose founder may to go to prison. * * *

Appeals court judges ruled late last week that the Indiana Department of Insurance's refusal to close the Health Care 2000 business earlier in the 1990s was "indefensible."

However, it ruled the state cannot afford to compensate everyone hurt by its negligence so the courts and law grant immunity to state government agencies -- like the insurance department -- protecting them from the consequences of its mistakes and derelictions of duty.

Posted by Marcia Oddi at 05:59 AM

June 14, 2004

Indiana Decisions - Court of Appeals Posts Six Decisions Today

Aaron G. Fowler v. State of Indiana (6/14/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Barnes, Judge

The issue before us is whether the trial court erroneously allowed a police officer to recount statements made by the victim at the time of Fowler’s arrest. * * *

Although we have concluded that A.R.’s statements to Officer Decker fall under the excited utterance exception to the hearsay rule, that does not end our analysis today, given a recent and substantial change in Sixth Amendment jurisprudence announced by the United States Supreme Court while this case was pending, and which we have analyzed in another case decided today. [Hammon, see next case] We incorporate that analysis here * * *

A domestic violence victim should not be placed in the situation of being intimidated not only by the aggressor, but also by the State and its representatives. Although we understand the frustration experienced by the State when a victim refuses to testify, we note the large number of cases from this court and our supreme court delineating the excited utterance exception to the hearsay rule, the sufficiency of such evidence to support a domestic violence conviction, our presumption that a police officer will interview a victim shortly after a domestic violence incident, and our belief announced today that Crawford v. Washington should not substantially curtail the admission of excited utterances in these types of cases.

Conclusion. The trial court did not abuse its discretion in admitting Officer Decker’s testimony relating A.R.’s statements made following the battery, notwithstanding the Supreme Court’s recent decision in Crawford v. Washington [March 8, 2004]. We affirm Fowler’s conviction.
Affirmed.
MATHIAS, J., concurs.
CRONE, J., concurs in result with separate opinion:

I agree with the majority’s conclusion that A.R.’s statements to Officer Decker fall under the excited utterance exception to the hearsay rule and that the trial court did not abuse its discretion in admitting those statements. Nevertheless, I respectfully disagree with the majority’s determination that the United States Supreme Court’s recent decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), applies to the facts of this case. * * * The fallout from Justice Scalia’s “clarification” of the Confrontation Clause in Crawford will reverberate through the evidentiary landscape for some time to come and will create countless dilemmas for trial and appellate courts, but I do not believe that we are necessarily faced with that dilemma here. For that reason, I respectfully concur in result.

Hershel Hammon v. State of Indiana (6/14/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Barnes, Judge
Hershel Hammon appeals his conviction for domestic battery, a Class A misdemeanor. We affirm in part and reverse in part.

The issues before us are: whether the trial court erred by admitting into evidence statements made by the victim to the arresting officer; and whether the trial court erred in allowing Hammon’s $300.00 cash bond to be applied to administrative fees and to the costs of his representation by a public defender.* * *

Although we have concluded that A.H.’s statements to Officer Mooney fell under the excited utterance exception to the hearsay rule, that does not end our analysis today, given a recent and substantial change in Sixth Amendment jurisprudence announced by the United States Supreme Court while this appeal was pending. Specifically, the Court held in March of this year that when the prosecution seeks to introduce a “testimonial” out-of-court statement into evidence against a criminal defendant, the Confrontation Clause of the Sixth Amendment requires two showings: (1) that the witness who made the statement is unavailable; and (2) that the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, -- U.S. --, 124 S. Ct. 1354, 1374 (2004). In reaching this holding, the Court squarely criticized and overruled Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980). Roberts had established the rule that hearsay statements made by an unavailable witness were admissible against a criminal defendant if the statement fell “within a firmly rooted hearsay exception” or otherwise bore “particularized guarantees of trustworthiness.”

Conclusion. We find that the trial court did not abuse its discretion in admitting Officer Mooney’s testimony relating a statement made by the victim following the battery. The Supreme Court’s recent decision in Crawford v. Washington does not change this result [because it is not a "testimonial statement - see opinion]. Therefore, we affirm Hammon’s conviction. However, we reverse the trial court’s order that Hammon’s cash bond be retained. We affirm in part and reverse in part.
Affirmed in part and reversed in part.
KIRSCH, C.J., and FRIEDLANDER, J., concur.

Harold Donnegan v. State of Indiana (6/14/04 IndCtApp) [Criminal Law & Procedure]
Vaidik. Judge
Harold Donnegan appeals his convictions for dealing in cocaine, possession of cocaine, and possession of marijuana. Although we find one instance of misconduct by the prosecutor, none of the instances alleged by Donnegan placed him in a position of grave peril. However, because Donnegan simultaneously possessed the cocaine that supported the possession and dealing in cocaine convictions, we find that Indiana double jeopardy principles are violated; consequently, we reverse the possession of cocaine convictions. Additionally, we find that the evidence is sufficient to show that Donnegan constructively possessed the cocaine and marijuana because he lived in the residence where the drugs were found and the drugs were his. Because Donnegan had a sophisticated operation that was responsible for bringing large amounts of cocaine from Chicago to Tippecanoe County to sell and had prior convictions, we find that his forty-year sentence for dealing in cocaine is not inappropriate. * * *
Affirmed in part and reversed in part.
SHARPNACK, J., and MATHIAS, J., concur.
John P. Smith v. State of Indiana (6/14/04 IndCtApp) [Criminal Law & Procedure]

"For the foregoing reasons, we affirm Smith’s convictions for conspiracy to commit dealing in methamphetamine as a class B felony, obstruction of justice as a class D felony, and resisting law enforcement with a vehicle as a class D felony."

Susan J. Mahl a/k/a Susan Scott v. Jim Aaron, et al. (6/14/04 IndCtApp) [Constitutional Law; Civil Procedure]
Vaidik, Judge

Susan Mahl (a/k/a Susan Scott), a South Carolina resident, appeals the trial court’s order allowing Jim Aaron to execute a judgment against individual retirement accounts (“IRAs”) that she opened in Indiana. We find that the trial court properly applied Indiana law to resolve the dispute and that as a non-domiciliary Mahl is not entitled to exempt her IRAs from execution under Indiana Code § 34-55-10-2(b)(6). Moreover, we find that Mahl waived her Equal Privileges and Immunities challenge to Indiana Code § 34-55-10-2(b)(6) and that her Full Faith and Credit challenge to that section fails. Finally, we find that Mahl does not have standing to challenge Indiana Code § 34-55-10-2(b)(6) based on South Carolina’s legitimate interests. Consequently, we affirm.

Mahl and Aaron were involved in a romantic relationship from 1998 until 2001. During this relationship, Mahl was the managing partner at the California law firm of Mahl Rehon Walworth & Roberts. While serving as the managing partner, Mahl embezzled nearly $750,000 from the firm. Mahl resigned from the firm in 1999, and she later moved to South Carolina, where she continues to reside. The firm subsequently changed its name to Rehon & Roberts. In January 2000, Rehon & Roberts filed a complaint for damages against Mahl in the Santa Clara County Superior Court in California, which alleged fraud and deceit, breach of fiduciary duty, conversion, and other related causes of action. On September 17, 2001, the Santa Clara County Court entered judgment against Scott in the amount of $1,039,834.91 plus attorneys’ fees and costs. Rehon & Roberts assigned this judgment to Aaron for purposes of collection.

Meanwhile, Mahl opened IRAs with John Nicklas at his office in LaPorte, Indiana, in March and August 2000, under the names Jeanne E. Ginther See footnote and Susan J. Mahl for the benefit of Susan J. Scott. Nicklas placed the investments with HD Vest Financial Services. Sometime after August 2001, Mahl changed her name to Susan Scott. * * *

United Consulting, et al. v. Board of Hancock County, et al. (6/14/04 IndCtApp) [Insurance]

Baker, Judge

Appellant-defendant United Consulting Engineers (UCE) appeals the trial court’s grant of partial summary judgment in favor of appellee-plaintiff Board of Commissioners of Hancock County (County). Specifically, UCE raises five issues, which we consolidate and restate as whether the trial court erred in finding that UCE was obligated to defend the County in this lawsuit and to provide the County with liability insurance. Finding that UCE was not required to defend the County for the County’s negligence and that the Agreement similarly did not require UCE to procure insurance for the County, we reverse and remand for further proceedings consistent with this opinion. * * *
FRIEDLANDER, J., and BAILEY, J., concur.

Posted by Marcia Oddi at 02:39 PM

Indiana Decisions - 7th Circuit Posts Six Decisions Today

FADAYIRO, PRINCE A. v. AMERIQUEST MORTGAGE (ND Ill.) Pro se bankruptcy appeal. Judge Posner rules:

All the information required by Rule 8001(a) was in fact supplied by the appellant though not in the format prescribed by the form to which the rule refers. Presumably “conform substantially” has reference to information rather than to format and thus describes this case, where all the information was supplied, albeit not in the most compact and accessible form. The very phrase indicates that literal compliance with formal requirements is not indispensable to the administration of the bankruptcy system; the number of such requirements reinforces this inference by increasing the likelihood of inadvertent mistakes. It was error to dismiss the appeal. REVERSED.
HALE, GREGORY v. SCOTT, AUGUSTUS (CD Ill.) Prison grievance. Affirmed.

HELLER FINAN INC v. PRUDENTIAL INSUR CO (ND Ill.)

POSNER, Circuit Judge. This interpleader action, in which
the substantive issues are governed by Illinois law, turns on
the interpretation of a loan agreement. The facts are not in
dispute. [Fact based, reversed and remanded]
KORNIEJEW, WALENTYNA v. ASHCROFT, JOHN (Bd.Immig.App.) Affirmed.

METHODE ELECTRONICS v. ADAM TECHNOLOGIES INC (ND Ill.)
EVANS, Circuit Judge. The parties before us, who are in the electronic connector business, have been involved in a number of disputes in Delaware state courts and one in the United States District Court for the District of New Jersey. The latter resulted in a settlement and an exclusive licensing agreement. When Methode Electronics, Incorporated sought a finding that the licensing agreement was breached, it chose not to return to court in New Jersey, but rather it came to the Northern District of Illinois seeking a temporary restraining order. In its verified complaint, signed by attorney Terrence P. Canade and verified by James F. McQuillen, executive vice-president of Methode, Methode alleged that venue was proper in the Northern District of Illinois. In the eyes of the district judge, the Honorable John F. Grady, that turned out not to be true. Sanctions were imposed against both attorney Canade and Methode. Methode appeals, contending that the sanctions were improperly imposed. * * *

Judge Grady acted well within his authority in ordering a sanction of attorney fees and costs, as well as the fine payable to the court. The order imposing sanctions is AFFIRMED.

SPIEGLA, NANCY v. HULL, EDDIE (ND Ind, Judge Sharp)
FLAUM, Chief Judge. Correctional officer Nancy Spiegla’s shift schedule and post assignment were changed four days after she had a conversation with the Assistant Superintendent of Westville Correctional Facility (“Westville” or “the facility”) in which she questioned a new vehicle search policy and reported the suspicious behavior of two Westville employees. In response to her schedule change and transfer, Spiegla filed a 42 U.S.C. § 1983 suit against Major Eddie Hull, Herb Newkirk, and Bernard Johnson (“the Defendants”), officials and employees of Westville, alleging that they unlawfully retaliated against her for exercising her First Amendment rights. * * * The district court granted the Defendants’ motion for summary judgment on the bases that Spiegla’s speech was not constitutionally protected and that she was not reassigned because of her speech. Spiegla now appeals the district court’s ruling. For the reasons stated herein, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

Posted by Marcia Oddi at 12:20 PM

Law - Stories on Superlawyers and legal superstars

"Wanted: Legal Superstars- Law Firms Aggressively Recruit Experts in Hot Specialties With Big Money, Prestige" is the headline to this story today in the Washington Post. Some quotes:

An SEC lawyer said he and his colleagues, whose government experience suddenly makes them highly desirable, are getting calls from law firms almost daily. While SEC lawyers in the past two years have gotten substantial pay boosts -- more than 10 percent in some cases -- private law firms easily can pay hundreds of thousands of dollars more a year. * * *

Demand for legal specialties can be cyclical. But lawyers and recruiters say class-action lawsuits and prosecutions of executives aren't going away soon. Cracking down on corporate abuses "has become something of a priority for many, many U.S. attorneys and agencies, and that has in turn created many more business opportunities," said Abbe D. Lowell, another Chadbourne partner who joined last year from a large Los Angeles-based firm. "Clients, companies and lawyers have not even fully plumbed all the ramifications of the new laws." * * *

Another legal specialty much in demand involves serious, big-money disputes over intellectual property, such as patents on billion-dollar drugs and popular toys. "Probably the most sought-after and hardest to find are patent litigators," said veteran D.C. legal recruiter Charles W. Garrison of Garrison & Sisson Inc. "That's the piece everybody wants."

Such candidates are difficult to find in part because they generally have to combine two very different kinds of skills, lawyers said. "You're essentially a translator of two languages," science and law, said Michael R. Dzwonczyk. He is a former research chemist and lawyer who moved from the D.C. office of Pennsylvania's Morgan Lewis & Bockius LLP to the intellectual-property boutique firm Sughrue Mion PLLC last year.

And the Sunday business section of the NY Times had a story titled "Need a Superlawyer? Take a Number." Some quotes:
Mr. Webb's [Dan K. Webb's] booming career at Winston & Strawn, an old-line law firm based in Chicago, epitomizes the rise of a new breed of superlawyers - versatile litigators like David Boies of Boies, Schiller & Flexner and Robert B. Fiske Jr. of Davis, Polk & Wardwell, who are capable of securing a divorce settlement for a client, compiling an investigative corporate report or making a hard-hitting courtroom defense for a corporation, a chief executive or a politician.

They are practicing trial lawyers, as distinct from such powerful counselors as Martin Lipton, who conceived of the poison-pill defense at Wachtell, Lipton, Rosen & Katz, and Vernon E. Jordan Jr., a former Washington lawyer who was a favorite of President Bill Clinton. Both Mr. Lipton and Mr. Jordan are known more for boardroom advice than for courtroom skills.

But agility in the courtroom is increasingly in demand as corporations and chief executives more often become targets for aggressive government prosecutors - not to mention estranged wives and muckraking authors. "There are only a handful of lawyers that operate at that level, and Dan Webb is one of them," said Bruce E. Yannett, a partner at Debevoise & Plimpton in New York. "He can talk to boards as well as corporations, and he is not seen as someone who will just settle."

Posted by Marcia Oddi at 11:41 AM

Indiana Law - Interesting negligence theory discussed

A story headed "Experts doubt mom’s lawsuit" in today's Gary Post-Tribune (read it today - Trib stories are not archived) begins with this:


MERRILLVILLE — Indiana law professors are skeptical that the family of Nick James, who was allegedly murdered by convicted serial killer David Maust, can win a negligence lawsuit against the employer who introduced the two.

It’s possible, they admit, but would likely be tough in conservative Indiana.

“Such cases of employer liability are rare, but not without precedent,” reflected Indiana University-Bloomington School of Law professor Kenneth Dau-Schmidt.

“They are generally brought under the rubric of negligent hiring,” Dau-Schmidt said.

Dau-Schmidt said a somewhat similar 1986 Illinois case did reap success, but that “Indiana courts are not prone to novel theories, or to rule against employers.” * * *

Tammy McDonald, James’ mother, alleges owner William Hinton knew about Maust’s past, including killing a boy in Germany and in Illinois, but declined to warn vulnerable co-workers, even as her son began riding with Maust to work.

It was public record that Maust had served time in prison and a psychiatric hospital after the killings.

In May, McDonald filed a lawsuit to reap justice in the name of her slain son.

James A. Barnes, also an Indiana University law professor, thinks McDonald might have a “strong argument.”

Barnes said based on general negligence theories, an employer in Hinton’s situation “owed a duty” to employees to disclose background information on Maust, if he knew it.

He said members of society, including employers, “must act in a reasonable way (with knowledge) ... to avoid causing foreseeable harm to other people.”

Barnes said even if Maust’s history was not common knowledge, Hinton had an obligation as an employer to do a check of his history.

But when employers hire convicted criminals, Barnes said, they should be granted a measure of privacy.

“We do need people who are going to give criminals a second chance. Some might argue that if they’ve paid their debt to society,” why resurrect their history when they are trying to improve their lives and make new friends.


Posted by Marcia Oddi at 11:20 AM

Indiana Law - Curfew law in NW Indiana

This story today in the Gary Post-Tribune (available only today) surveys the use of the curfew in northwest Indiana. Some quotes:

Curfew enforcement in Indiana has ranged from non-existent to spotty this year.

In January, a federal appeals court said Indiana’s curfew law was unconstitutional and could not be enforced legally. The Indiana General Assembly passed a new curfew law in March.

St. John used that as a pattern for its revised ordinance, which has more restrictive hours than the state law. * * *

The Dyer Town Council * * * will vote Wednesday night on a similar ordinance. * * * However, the Schererville Town Council hasn’t considered, or passed, a new curfew ordinance yet.

Crown Point, Hobart and Merrillville haven’t passed new curfew ordinances yet either, but they’re taking slightly different tacks. Hobart and Merrillville police will use the state law instead of their old ordinances, while Crown Point police will enforce the city’s existing ordinance. * * *

Police will talk to youths before arresting them and see if they have a legal reason to be out of the house late at night * * *.

The new state law spells out what those reasons are in more detail than the former law. They include returning from a job, a church or school event or a political rally.

But the Indiana Civil Liberties Union believes the curfew law still is unconstitutional because it doesn’t say parents can give their children permission to stay out late.

Access an earlier Indiana Law Blog entry here.

[Update 6/18/04] The LaPorte County Herald-Argus reports today: "Michigan City curfew crackdown." Some quotes:

The Michigan City Council didn’t waste time in getting a curfew ordinance back on the books. The council suspended procedural rules and unanimously passed an amended curfew ordinance on three readings Tuesday night, rather than the customary practice of adopting an ordinance over two meetings’ time.

After the Indiana General Assembly again revised the state law on curfew earlier this year, City Attorney Larry Allen drafted an ordinance that copies the state law. Councilwoman Virginia Martin made a motion for it to pass Tuesday rather than wait until next month for adoption. “The police can enforce it and no one’s rights will be violated,” she said.

In January, the 7th Circuit Court of Appeals ruled Indiana's curfew law unconstitutional because it prevented minors from exercising freedoms of speech and religion. It was the second time in less than four years that a court had thrown out the state curfew law. That sent state lawmakers scrambling to draft a new curfew law that requires police officers to talk to minors out past curfew to see if they had a legitimate reason.

A newly passed curfew ordinance is welcome news to Michigan City Assistant Police Chief Steve Jesse. * * * Michigan City Police have issued 95 curfew tickets in 2002, 80 in 2003 and nine so far this year. The numbers at LaPorte City Police are 16 in 2002, 46 in 2003 and three this year. “If the situation dictates and they are out past curfew, it’s likely they’ll be arrested for that charge. To have a 14- or 15-year-old out at 1 a.m. is silly,” Jesse said. And being out late at night can sometimes lead to criminal behavior, he said.

Posted by Marcia Oddi at 11:11 AM

June 13, 2004

Indiana Courts - New Federal Courthouse in Hammond underused? Terre Haute has other issues.

"Courthouse empty, but dockets full" is the title to this opinion piece today in the Munster Times.

[More] Another federal courthouse story yesterday, this one here in the Indianapolis Star. "Judges don't want to move into new courthouse" is the headline of the AP story that begins:

TERRE HAUTE, IND. -- Judges cannot afford to move into a new federal courthouse planned for downtown Terre Haute, one of the judges said.

Budget constraints have forced the U.S. District Court to lay off two employees, said Chief Judge Larry J. McKinney.

"The current budget crunch limits our ability to pay rent. We have to think of different ways of accommodating our needs," McKinney told The Indianapolis Star for a story Sunday.

The proposed courthouse is expected to cost as much as $18 million. That could make rent as high as $1 million a year _ twice what the court pays for space in the old federal building that opened in 1935, said David Wilkinson, a spokesman for the General Services Administration.

The judges' reluctance to move caught officials by surprise. Terre Haute has been working since 2000 with Indiana's U.S. senators to renovate the old building and turn it over to Indiana State University.

Posted by Marcia Oddi at 06:19 PM

Indiana Courts - recommendation re Judge Kouros anticipated this week

The Munster Times reports today in this story that:

Lake Criminal Court Judge Joan Kouros will find out today if she's in line to become the Big Domino.

The panel of masters that heard testimony in April on whether Kouros is competent to run her court is expected to issue its recommendation today for consideration by the Indiana Supreme Court.

The story then goes on to speculate on who would fill what vacancy, if Judge Kouros is removed. Check here for background on the charges filed against Judge Kouros.

Posted by Marcia Oddi at 06:13 PM

Environment - Ford waste disposal site still contaminated after coming off the Superfund list in 1994

The NY Region section of the NY Times today has this story of a site near Mahwah, New Jersey "where Ford dumped thousands of cubic yards of chemical wastes" years ago:

The prolonged Ringwood cleanup is the classic example of how getting it right the first time is not always possible in environmental matters, especially when regulators are overextended and corporate polluters are in a hurry to close the books on an embarrassing episode.

There is no question that the site remains heavily polluted. Both Ford and the federal Environmental Protection Agency acknowledge that substantial amounts of toxic paint sludge and other hazardous materials remain, even though officials had given the site a clean bill of health in 1994 when they took it off the Superfund list.

Ford has promised to return, yet again, to take care of whatever wastes remain. "Ford is aware of and is working closely with E.P.A. to address residents' concerns," the company said in a statement.

Yet, two years ago, Ford filed a formal request to be relieved of responsibility for monitoring of the site, appearing to indicate that the cleanup was complete. The federal agency denied the request.

Joseph A. Gowers, Ringwood project manager for the environmental agency, could not explain how a site that had been cleaned up and removed from the Superfund list could still be so contaminated. "None of the waste should be there," he said. But he noted that the cleanup was complicated because Ford kept no records of what it dumped in Ringwood, and the site itself, more than 500 acres, is larger than most. * * *

Government officials say Ford has cooperated fully in the cleanup efforts from the beginning. The company acknowledges that it dumped paint sludge and car parts on an area of several hundred acres and in two old mine shafts in Ringwood that it bought in 1965. Ford had planned to build a housing and light industrial development there, but when that project fell through the company started dumping wastes there instead.

"I remember dump trucks and roll-offs come up here all the time to dump copper, batteries and paint sludge," Mr. Mann said. "They'd open the big back doors and the sludge would just slide out. It looked like clay, but it had a sheen, like a rainbow." Ford officials say they did not keep records of what was dumped or where.

In 1987, contractors hired by the company removed 7,000 cubic yards of paint sludge that was highly contaminated with lead and other hazards. In 1990, 17 steel drums filled with chemicals and a number of crushed barrels were also removed.

In 1994, the E.P.A. took the Ringwood site off the Superfund list, but ordered Ford to monitor the site for at least five more years.

After the initial monitoring period ended, only small amounts of contaminants were detected, but the government ordered Ford to continue monitoring for another five years. Traces of lead and arsenic were found in some wells. Though it was thought to have occurred naturally, the government ordered the company to continue testing. When Ford asked for permission to end the monitoring in 2002, the government again denied the company's request. In recent months, as Mr. Mann and other residents found more paint sludge, they brought in a Philadelphia law firm to represent the community.

"The fact that the E.P.A. claimed that this site was cleaned up is mind-boggling," said Stephen A. Sheller, of the law firm, Sheller, Ludwig & Badey.

Posted by Marcia Oddi at 05:58 PM

Indiana Law - Conner Prairie issue

Richmond attorney E. Thomas Kemp, an Earlham College graduate, posted an interesting entry yesterday on his KempLog.com site. The entry, titled "Indianapolis vs Wayne County," is about "the fight between the Indiana Attorney General, and Richmond's Earlham College over the control of Conner Prairie, the living history museum in Fishers, Indiana."

Posted by Marcia Oddi at 08:12 AM

June 12, 2004

Law - A Utah court declares its punitive damages sharing statute unconstitutional

"Utah's split-recovery law declared unconstitutional" is the headline to this story today in the Deseret Morning News. The Indiana Law Blog has had a number of entries on the punitive damages split-recovery concept, as Indiana is one of the eight states with such a law, and a similar law has been proposed recently in California. Check here and here for earlier ILB entires. And here is a NY Times chart comparing the laws in the eight states.

This is a decision of the Utah 3rd District Court. According to the Utah Court site, the District Court is the state trial court of general jurisdiction. There are 70 full-time district judges serving in the state's eight judicial districts. Decicisons do not appear to be available online.

As reported by the Deseret Morning News:

A 3rd District judge Friday declared a Utah law unconstitutional in a decision that could have sweeping ramifications for Utahns who win financial awards in civil lawsuits. Judge Frank Noel's potentially precedent-setting decision ruled that Utah's government cannot take half of the punitive damage judgment awarded in a civil lawsuit. * * *

[Attorney Robert S. Campbell] argued the law was unconstitutional because it violates the Fifth Amendment to the U.S. Constitution as well as a similar portion of the Utah Constitution, which says the government cannot take private property without paying compensation. "The court (via Judge Noel's Friday ruling) recognized that the statute was a taking of my clients' property rights in the judgment," Campbell said. * * *

[Assistant Attorney General Kevin Olsen] said the law was enacted in 1989 as part of general tort reform. During the 1980s, concerns arose on both national and state levels about juries awarding huge punitive damage sums in civil cases. More and more such cases were being filed. Some states simply abolished punitive damages, while others put caps on how much juries could award. Olsen said Utah was one of about a dozen states that chose a third way — a split-recovery statute.

"It still allows you to keep the punitive damages there. Originally they were allowed in the law to punish bad behavior. But then it takes away incentive from plaintiffs to expect a windfall by having them split that with the state," Olsen said.

There have been unsuccessful legal challenges to such laws in some states, according to the conservative Internet news forum, FreeRepublic.com, and a few states have let their split-recovery laws expire or be repealed. Currently, Georgia, Illinois, Indiana, Iowa, Oregon, Alaska, Missouri and Utah have such statutes on their books, according to the Web site.

Utah prosecutor Olsen said it appeared a key sticking point for Judge Noel was language in the Utah law that specifically addresses when a judgment is awarded and paid. "The state's argument is that when a judgment is entered right after a jury decision, the punitive damages award is divided with the state. The Smiths never owned 100 percent of the judgment, and, therefore, there is no taking of their property," Olsen said.

The Smiths disagreed, arguing that the money was already their property at the time the jury rendered its decision, and Noel agreed with the couple's position.

The Salt Lake Tribune reports in a story today:
Although it has been on the books since 1989, the law was all but ignored until 2002 after two blockbuster jury awards grabbed the attention of lawmakers.

So far, officials say the state has collected just under $100,000, although demand letters representing hundreds of thousands have been sent out.

In a brief ruling from the bench, 3rd District Judge Frank Noel declared the statute an unconstitutional taking of property in the case of Utah mall magnate John Price, the U.S. ambassador to the African nation of Mauritius. * * *

But don't count the statute out yet. Noel's decision is not binding on other courts, and applies to the law as it read before lawmakers amended it earlier this year. The amendment eliminated dire tax consequences for plaintiffs, but also made the law less vulnerable to attack by patterning it after a Georgia statute that has withstood legal challenges.

Assistant Attorney General Kevin Olsen said the state does not yet know if it will appeal Noel's ruling. Both he and state Treasurer Ed Alder said they are unsure whether Noel's ruling could affect punitive damage monies already paid to the state or those in the pipeline.

Utah is one of eight states that take some portion of punitive awards. Such laws are based in part on the idea that the public should benefit because punitive awards aim to punish the wrongdoer and discourage similar conduct rather than compensate the plaintiff.

Utah, Alaska and Missouri take half of punitive awards. Oregon takes 60 percent of punitive awards, and Georgia, Indiana and Iowa take 75 percent. Illinois leaves the amount up to judges. But unlike some of these states, Utah deposits the money it collects into its general fund rather than earmarking it for a special account such as Indiana's fund for victims of violent crime.

California Gov. Arnold Schwarzenegger has recently proposed his state enact a law to take 75 percent of all punitive awards.

[Credit to Howard Bashman's How Appealing for the Utah links.]

Posted by Marcia Oddi at 05:59 PM

June 11, 2004

Indiana Decisions - Five Posted by Court of Appeals Today

Angel Pagan v. State of Indiana (6/11/04 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

The State presented sufficient evidence Pagan robbed a “person” as required to support his conviction for robbery. Although it was improper for jurors to make cell phone calls during their deliberations, especially without prior court knowledge or approval, we see no indication that this conduct prejudiced Pagan. Additionally, Pagan received effective assistance of trial counsel. Therefore, we affirm Pagan’s conviction. However, we remand with instructions to modify Pagan’s sentence to a total term of fifteen years, with four suspended. Affirmed and remanded with instructions.
CRONE, J., and BAKER, J., concur.
Nancy Naggatz v. David Beckwith (6/11/04 IndCtApp) [Family Law]
Baker, Judge
Appellant-respondent Nancy Naggatz appeals the trial court’s order modifying the child support payments of appellee-petitioner David Beckwith to provide support for their nineteen-year-old daughter, M.B. Specifically, Naggatz contends that the trial court improperly “modified the parties’ stipulation that [Beckwith] pay” all of M.B.’s college expenses. Moreover, Naggatz claims that the trial court erred when it adopted the figure of $74,000 per year as Beckwith’s income. Additionally, Naggatz claims that the trial court miscalculated the amount of child support in arrearage owed to her by Beckwith. Finally, Naggatz contends that the trial court erred in providing that Beckwith pay all of M.B.’s uninsured medical expenses. Concluding that no error occurred, we affirm. * * *
FRIEDLANDER, J., concurs.
BAILEY, J., dissents with opinion:

I respectfully dissent from the affirmation of a “judgment” based on a “stipulation” that does not exist in the record. * * * When it became apparent to the trial court that the parties had not, in fact, reached a stipulation as to the terms of a modified child support order, the trial court could have heard the testimony of witnesses under oath, pursuant to Indiana Evid. Rule 603. Alternatively, the trial court could have considered child support worksheets signed under penalty of perjury. It did not do so. Consequently, there is a total absence of sworn testimony or verified exhibits to support a judgment and the hearing was in essence a settlement conference. Thus, in my opinion, the trial court abused its discretion by ordering modification of support. Therefore, I dissent from the majority opinion and I would reverse the judgment of the trial court.

Karl Linden, et al. v. Health Care 2000, Inc., et al. (6/11/04 IndCtApp) [Insurance]

Editor's Note - I can't claim to completely understand this case upon brief review. I was struck, however, by Judge Sullivan's concurring opinion, which I quote in full:

During the some four years that Health Care 2000 operated without authority and collected premiums from unsuspecting and innocent policy purchasers, DOI [Indiana Department of Insurance] had full access to the nature of the operation and the lack of financial stability of the HMO. It certainly had the investigative tools and authority to acquire the very information which in 1997 led the Marion Circuit Court to liquidate Health Care 2000. The conduct, or lack thereof, by DOI is indefensible. It is nevertheless insulated against civil liability by I.C. § 34-13-3-3(8), and for this reason, I concur in the reversal of the trial court’s denial of Appellees’ motion for summary judgment.
Millenium Club, Inc. v. Pamela Avila, et al. (6/11/04 IndCtApp) [Tort]
Sharpnack, Judge
Millennium Club, Inc. (“Club”) appeals the small claims court’s grant of a motion to dismiss filed by Pamela Avila and numerous other defendants (collectively, the “Minors”). The Club raises one issue, which we restate as whether the small claims court erred by dismissing the Club’s fraud claim against the Minors where the Minors gained entry to the Club by presenting fraudulent identifications and signing false affidavits as to their ages. We reverse and remand. * * *

The sole issue is whether the small claims court erred by dismissing the Club’s claim against the Minors for fraud where the Minors gained entry to the Club by presenting fraudulent identifications and signing false affidavits as to their ages. This is an issue of first impression in Indiana. The Alcoholic Beverages Act (the “Act”), Ind. Code § 7.1-5-1-1 to § 7.1-5-11-16, is at issue here. The Act makes it a class C infraction for a minor to “make a false statement of the minor’s age or to present or offer false or fraudulent evidence of majority or identity to a permittee for the purpose of ordering, purchasing, attempting to purchase, or otherwise procuring or attempting to procure an alcoholic beverage.” Ind. Code § 7.1-5-7-1(a) (1998). The Act also makes it a class C infraction for a minor to misrepresent his age on a written statement provided to a permittee. Ind. Code § 7.1-5-7-4 (1998). The statute sets out a sample form for the written statement, which provides that the minor understands that the misrepresentation of age to induce the sale, service, or delivery of alcoholic beverages is cause for arrest and prosecution. I.C. § 7.1-5-7-5.1(b).

As for the Club, Ind. Code § 7.1-5-7-8(a) (1998) provides that “[i]t is a Class C misdemeanor for a person to recklessly sell, barter, exchange, provide, or furnish an alcoholic beverage to a minor.” However, Ind. Code § 7.1-5-7-5.1(a) (1998) provides a defense to permittees, such as the Club * * *

Our supreme court has held that a violation of the Act may give rise to a civil action. * * *

We recognize the public policy of placing the burden of enforcing the underage drinking laws upon the taverns because the tavern is in the best position to prevent the violation and the public policy of barring the Club from shifting the liability for its own illegal actions to the Minors. However, we also recognize the competing public policy that the Minors should be held accountable for their actions. The Minors here used fraudulent identifications and written statements regarding their age to induce and encourage the Club to allow them access to the tavern. With the enactment of the defense for permittees, our legislature has recognized that, despite best efforts to prevent minors from entering a tavern, advances in technology have allowed the production of realistic false identifications. If the evidence presented to the small claims court demonstrates that the Club allowed the Minors access in reasonable reliance upon the fraudulent identifications and written statements and the Club did not participate in an illegal transaction, then public policy should not prevent the ultimate cost from being borne by the Minors who set this situation into motion. Thus, we conclude that the small claims court erred by dismissing the Club’s action on public policy grounds.

We conclude that the Club’s complaint states a claim for fraud against the Minors and is sufficient to survive an Ind. Trial Rule 12(B)(6) challenge. This matter may become appropriate for summary judgment. However, at this stage of the proceedings, looking at the complaint in the light most favorable to the Club with every inference drawn in its favor, we must conclude that the allegations in the Club’s complaint state a claim upon which relief may be granted and we cannot say that the Club’s action is barred by public policy. Consequently, the small claims court erred by granting the Minors’ motion to dismiss. * * *

For the foregoing reasons, we reverse the small claims court’s grant of the Minors’ motion to dismiss and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and ROBB, J. concur

[Note] This is the South Bend Boat Club case written up here in a May 2, 2004 Indiana Law Blog entry.

Matter of T.H. v. State of Indiana (6/11/04 IndCtApp) [Juvenile Law & Procedure]
Hoffman, Senior Judge

The trial court’s adjudication of her T.H. as a delinquent child is affirmed.

Posted by Marcia Oddi at 02:08 PM

Indiana Decisions - Transfer list for week ending June 11, 2004

Here is the Indiana Supreme Court's transfer list for the week ending June 11, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi at 12:14 PM

Law - Real estate development ruling from DC District Court

"Environmentalists Win Ruling in a Suit Against Developers," is the headline of this AP story today in the NY Times. The lead:

WASHINGTON, June 10 - A federal judge on Thursday temporarily halted the government's practice of assuring private landowners that they will not face unanticipated requirements for protecting endangered species after a development project is approved.

The ruling, by Judge Emmet G. Sullivan of Federal District Court for the District of Columbia, was hailed by environmentalists as a breakthrough and criticized by home builders as a threat to private development.

At least for the next six months, the ruling bars federal agencies from providing blanket assurances under the Clinton-era "no surprises" rule. The rule, adopted in 1998, has given home builders, timber and mining companies and other developers some immunity against unforeseen twists in providing protection for species.

Judge Sullivan said that as a result of the rule the "public has consistently been denied the opportunity'' to weigh in on decisions "likely to have significant effects on public resources."

His ruling came in a case brought by six organizations led by the Spirit of the Sage Council, a California group that represents American Indians and environmentalists. They challenged regulations of the Fish and Wildlife Service and the National Marine Fisheries Service, which protect endangered species.

Judge Sullivan gave the agencies until Dec. 10 to revise their regulations with more participation from the public.

The opinion does not appear currently to be available on the website of the District Court for the District of Columbia.

Another AP story, on the MSNBC site, has this:

WASHINGTON - Private builders were irate and environmentalists ecstatic after a federal judge suspended a Clinton-era rule on endangered species and ordered federal agencies to allow more public input.

The judge ruled Thursday that the Fish and Wildlife Service and National Marine Fisheries Service must revise what are known as the "no surprises" rule, which assured industry it wouldn’t face more requirements for protecting species once a federal permit is approved.

“Now, a permit isn’t worth the paper it’s written on,” said Duane Desiderio, a vice president of the National Association of Home Builders. He described the ruling as a serious setback for his industry, especially because most species whose survival is imperiled are found on private property and near developed areas.

“The underlying thrust of the ’no surprises’ rule is, a deal is a deal. This provision was intended to strike a balance: You can’t stop all development, but you need to protect species,” Desiderio said.

Posted by Marcia Oddi at 11:47 AM

Law - Federal regulation reportedly imperils Hoosier tomato growers

The Gary Post-Tribune has this story today on the impact of a provision of the 2002 Farm Act on Indiana tomato growers. As the Trib's stories are only available online on the day of publication, I will try to quote the gist of this complex story:


PLEASANT TWP. -- It really doesn’t matter if the tomato is perceived as being a vegetable — even if it’s a fruit. To Glen Abbett of LaCrosse, the trick is to only use tomato acres once every eight years to eliminate plant disease.

That quality-control measure is hard enough. Now it may get harder if a federal regulation makes it all but impossible for Abbett to use his own land or rented acres to grow tomatoes in Porter and LaPorte counties. * * *

Abbett and other Hoosier farmers’ anger rises from a twist in the law that discourages landlords from allowing fruits and vegetables on land also used for corn and soybeans.

According to the Canned, Frozen Food & Grower Coalition, fruits and vegetables, ineligible for federal program payments would cause landlords to lose future eligibility for payments for other crops — even if tomatoes only get planted in the land once every eight years. * * *

The problem stems back to 1996, said John Exner, legal counsel for the Midwest Food Processors Association of Madison, Wis. That year’s farm bill established corn as a program crop, to be subsidized for those farmers who took part in the farm bill.

The regulations discouraging mixing corn acres with tomato acres didn’t really concern farmers back then. But in 2002, the government added another subsidized program crop, soybeans, to the list. Exner said that had a huge impact on Midwest fruit and vegetable growers who also use their acres for corn and soybeans, the latter being a heavy Midwest crop. “We’ve got folks with 100 percent corn and soybeans,” Exner said. “It only affects the Midwest.”

Abbett farms more than 3,000 acres this year, half in Porter County and half in LaPorte County. He rents about half the acres from landlords, and only uses a total of 338 acres for tomatoes he sells to ketchup-maker Red Gold of Elwood. Those acres produce 12,000 tons of tomatoes for the Hoosier ketchup company, a supply that could be threatened if Abbett and other Indiana tomato growers find fellow farmers reluctant to rent land.

“I am struggling to get rented ground for growing my processed tomatoes,” Abbett told Congressional members. “In the Midwest, most family farms rely on rented acres to grow their crops. I have found that landlords who I have approached ... say that future base recalculations will result in loss of base acres on their farm if they rent it to me for processed tomato production. This means that my ability to rotate crops and to fulfill my traditional contract obligation to Red Gold is severely restricted.” * * *

“Producers wishing to grow fruits and vegetables on farms that do not have a historical record of such production must either remove their farm from government program payments or face penalties for planting fruits and vegetables on subsidized acres,” Gray wrote with Kyle Althoff in a June staff paper. “Combined with penalties for producing on any land without historical production in fruits and vegetables, the addition of soybeans as a base eligible crop has unintentionally removed thousands of Midwestern acres previously available for fruit and vegetable production.”

Exner compares the bill to being stuck in a room with the walls closing in. Eventually, the bill could end processed tomato growing in the Midwest, he said. Already, producers like Seneca Foods of Wisconsin have had trouble meeting their goals, Exner said. “Over the long run, it doesn’t leave us many avenues,” said Steve Austin, spokesman for Red Gold.

Austin said the bill is so strict, it interferes with inheritance. Red Gold lost more than a valued supplier when a farmer was killed in a tractor-related accident last year, because the bill didn’t allow his personal history as a tomato farmer to be passed on to his heirs, Austin said. The man’s acres were phased out of tomato farming, Austin said.

Posted by Marcia Oddi at 08:16 AM

Indiana Law - City school corporation saves money with in-house attorney

"FWCS trims legal bills with in-house lawyer: District saves $320,000 in a year’s time," is the headline to this story today in the Fort Wayne Journal-Gazette. Some quotes:

Fort Wayne Community Schools’ plan to save money in legal expenses by paying more for an in-house attorney has paid off.

The district saved nearly $320,000 in legal expenses in 2003 after it dropped attorney Georgia Hartman, who was paid about $90,000 a year, and hired Bill Sweet at about $250,000 a year. As in-house attorneys, both have handled litigation, employee relations and other legal matters for the district.

A year ago, then-Superintendent Thomas Fowler-Finn predicted FWCS would save $100,000 or more in legal fees by hiring Sweet as a member of the staff because he was already doing work for the district. Although Hartman was the district’s full-time attorney, many other lawyers, including Sweet, were hired to help with the district’s various legal issues.

In 2002, FWCS spent $779,640 on legal work, 80 percent of which went to outside attorneys. Last year, the district paid $460,269 in legal expenses, with more than half paying the salaries, benefits, secretaries and materials for in-house attorneys.

“In 2003, we went down substantially in the grand total,” Chief Financial Officer Kathy Friend said. “We’re trying to do the same thing for 2004.”

So far this year, the district has spent $190,708 on legal work with about 70 percent being in-house costs. The district still hires outside attorneys to handle some of its cases and specialty areas, such as real estate law.

Posted by Marcia Oddi at 08:06 AM

June 10, 2004

Environment - Ronald Reagan's Environmental Legacy

NPR is advertising this feature on this afternoon's All Things Considered:

Ronald Reagan once said, "a tree is a tree, how many more do you have to look at?" -- enraging environmentalists. But the former president also said, "We must and will be responsible to future generations." We speak with defenders and critics of Reagan's environmental legacy.
When it is available online, later this evening, I will provide a link here.

[Update] Here is the link to listen to the Reagan environmental feature.

This afternoon's show also featured two other stories written about on The Indiana Law Blog. You will probably remember reading entries on this story:

From Mud to Parks: The Ultimate in Recycling. The Illinois Department of Natural Resources is undertaking a project that could be called the ultimate in land recycling. Crews are dredging up mud that has clogged the bottom of the Illinois River near Peoria and shipping it up to Chicago, where it will become topsoil for a new park being built on the site of an old steel mill. NPR's David Schaper reports. Listen here. NPR also provided this link to the Illinois Mud to Parks site.
And entries on this story were posted here just today:
Study: Power-Plant Air Controls Could Save Lives. A new study concludes that thousands of pollution-related deaths could be prevented every year if emissions standards were tightened for power plants. The study by a coalition of environmental groups also argues against proposals put forth in President Bush's Clear Skies plan. Listen here.

Posted by Marcia Oddi at 03:59 PM

Indiana Decisions - One Supreme Court, Four Court of Appeals Decisions Posted Today

Angela Lockridge v. State of Indiana (6/9/04 IndSCt - PUBLISHED ORDER DENYING TRANSFER OF JURISDICTION) [Appellate Practice]

The Court of Appeals affirmed appellant’s convictions in Lockridge v. State, No. 49A02-0303-CR-191 (Ind. Ct. App. Mar. 24, 2004) (unpublished memorandum decision).

The matter is now before this Court on appellant’s petition to transfer jurisdiction. * * *

Indiana Appellate Rule 57(G) provides in relevant part: "The Petition to Transfer shall concisely set forth: . . . (4) Argument. An argument section explaining the reasons why transfer should be granted." In this case, appellant’s argument consisted of the following: "Ms. Lockridge relies on the issues as presented in his [sic] original brief in support of her Appeal." In a Petition to Transfer, mere reference to argument and/or authorities presented in brief to C/A, without an explanation of the reasons why transfer should be granted, does not satisfy Rule 57(G).

At the same time, Appellate Rule 57(G)(4) should not be read to require a party to repeat all of the arguments made in the brief to the Court of Appeals. A Petition to Transfer constitutes a request to our court to review a decision of the Court of Appeals in its entirety; the request is that the entire appeal be transferred to our court and be before us as though it had not been reviewed by the Court of Appeals. ... Given this system, the "argument" contained in a brief in support of a petition to transfer should primarily be an argument as to why the Supreme Court should grant transfer and, in a brief in opposition, as to why the Court should not. ... It is appropriate in a transfer brief to cross-reference the analysis of the merits of the underlying legal argument contained in the brief to the Court of Appeals. The Court observes, however, that the most helpful transfer briefs combine argument as to why the court should (or should not) grant transfer and argument on the merits.

Being duly advised, the Court now denies appellant’s petition to transfer jurisdiction.

The Clerk is directed to send a copy of this order to the Public Defender of Indiana; to the Indiana Public Defender Council; to the Appellate Practice Section of the Indiana State Bar Association; to the Attorney General of Indiana; to the Marion County Public Defender Agency; to counsel of record; and to West Publishing for publication in the bound volumes of this Court’s decisions.

Done at Indianapolis, Indiana this 9th day of June, 2004.
Randall T. Shepar, Chief Justice of Indiana
All Justices concur.

Bank One Trust No. 386 v. Zem, Inc., et al. (6/9/04 IndCtApp) [Real Property; Taxation]
Vaidik, Judge
Bank One Trust No. 386 (“Trust 386”) appeals the trial court’s Order granting summary judgment in favor of the City of Gary Park and Recreation Board (“the City”) and against Trust 386. First, we find that Lake Superior Court has subject matter jurisdiction to hear quiet title actions and that Trust 386 waived any objection to jurisdiction over the particular case by filing its action in that court. Next, we find that the City had a substantial interest of public record in the property sufficient to establish its standing in the case. Further, we find that the property at issue, which is currently the site of the Hudson Campbell Fitness Center, was exempt from taxes, and therefore, no delinquent taxes were due at the time of the tax sale. Thus, we affirm the trial court’s Order determining that the tax sale to Trust 386’s predecessor in interest was void ab initio. * * *

Because the Property is tax exempt, there can be no delinquent taxes. Absent delinquent taxes, the tax sale was void ab initio. Because we find that the tax sale was void ab initio, we conclude that the trial court properly granted summary judgment in favor of the City and against Trust 386. Affirmed.
SHARPNACK, J., and MATHIAS, J., concur.

Kera Rector v. Joe Oliver, et al. (6/10/04 IndCtApp) [Torts]
Sullivan, Judge
Appellant-Plaintiff, Kera L. Rector, challenges the trial court’s grant of summary judgment in favor of Appellee-Defendant Judy Kadinger d/b/a Joe’s Video (“Kadinger”). We reverse and remand.

The basic facts necessary for our decision are undisputed. On February 12, 2000, Rector entered Joe’s Video, owned by Kadinger, and was struck on the head and shoulder by a light fixture which fell from the ceiling of the store. Thereafter, on January 30, 2002, Rector filed a complaint against Kadinger. Count I of the complaint alleged that the defendants were negligent for failing to maintain the video store in a reasonably safe condition and for failing to discover a dangerous condition. Count II, titled “Doctrine of Res Ipsa Loquitur,” alleged that the light fixture was in the exclusive control of the defendants and subject to their use and inspection, that Rector did nothing to cause the light fixture to fall, and that “[i]n [the] ordinary experience of mankind, the light fixture would not have fallen from the ceiling except for the negligence of Defendants or that of others for whose negligence they are legally responsible.” * * *

Upon appeal, the sole issue for our review is the propriety of the trial court’s grant of summary judgment in favor of Kadinger. * * * The resolution of the issue before us depends upon whether the doctrine of res ipsa loquitur is applicable to the facts in the present case. * * *

It may well be that there was a concealed defect in the manner in which the light fixture which fell was installed. However, a jury may still reasonably infer that the most probable cause was Kadinger’s negligence in permitting the light to become defective. * * * In the case at bar, the falling light fixture is more akin to a falling piece of plaster than an undiscoverable tack inside a blueberry. Again, we are not prepared to say as a matter of law that the defective condition of the light fixture was undiscoverable by reasonable inspection and maintenance. The judgment of the trial court is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.
ROBB, J., and HOFFMAN, Sr.J., concur.

City of Lawrenceburg v. Milestone Contractors, L.P. (6/10/04 IndCtApp) [Contracts]
Riley, Judge
Lawrenceburg raises one issues on appeal, which we restate as follows: Whether the trial court correctly interpreted the construction contract between the parties as a basis for its entry of summary judgment in favor of Milestone upon Milestone’s claim for additional compensation, and the trial court’s denial of Lawrenceburg’s cross-motion for summary judgment advocating a different interpretation of the construction contract. * * *

Therefore, in light of the clear and unambiguous language of the contract documents, we find that there is no genuine issue of material fact. * * * Based on the foregoing, we conclude that the trial court properly granted summary judgment in favor of Milestone.
Affirmed.
BAILEY, J., concurs.
DARDEN, J., dissents with opinion:

* * * I turn to the law of contracts. It is a court's duty to interpret a contract so as to ascertain the intent of the parties. First Fed. Sav. Bank of Ind. v. Key Markets, 559 N.E.2d 600, 603 (Ind. 1990). We must accept an interpretation of the contract which harmonizes its provisions as opposed to one which causes the provisions to be conflicting. In interpreting a written contract, the court will attempt to determine the intent of the parties at the time the contract was made as disclosed by the language used to express their rights and duties. When a contract is clear in its terms and the intentions of the parties apparent, the court will require the parties to perform consistently with the bargain they made.

I would find that consistent with the intent of the parties, Addendum 2 provided that in the event the successful bidder had to install more than 4,096 LF of pilings in order to meet the required load bearing capacity, then the additional quantity would be paid for at the rate of $60 per lineal foot. Therefore, I would reverse the trial court and order that summary judgment be granted to the City.

Connie Burke v. Timothy Burke (6/10/04 IndCtApp) [Family Law]
Riley, Judge
Mother raises two issues on appeal, which we consolidate and restate as follows: whether the trial court abused its discretion by modifying Father’s child support obligation due to a change in circumstances. * * *

Here, the record shows that Father obtained a new position as an assistant football coach, earning $10,000.00 less than his prior job. However, there is no evidence or finding that Father left his higher-paying job to avoid paying child support or to punish Mother or the children. To the contrary, Father lost his position as an assistant football coach at the University of Tennessee at Chattanooga because the head coach lost his job, not because he performed poorly. Due to the nature of the college coaching positions, when the head coach is fired at a college program, the assistant coaches are usually fired as well. The record shows where despite his efforts, Father was forced to accept a lower paying job in the industry within which he had skills and expertise. “It is not our function to approve or disapprove of the lifestyle of these parties or their career choices and the means by which they choose to discharge their obligations in general.” In re Buehler, 576 N.E.2d 1354, 1356 (Ind. Ct. App. 1991).

Further, the record reveals that at the hearing, Father presented evidence that he was on a “tight” budget and after all monthly bills were paid, he had very little discretionary income left. As a result, he was financially unable to visit his children as he wished, who relocated to New York.

Accordingly, based upon the undisputed facts and circumstances, we find that the trial court correctly determined that Father’s decrease in pay was a substantial change in circumstances. Consequently, we conclude that the trial court did not abuse its discretion by granting Father’s Petition to Modify Child Support Obligation. * * * Affirmed.
KIRSCH, C.J., and NAJAM, J., concur.

Posted by Marcia Oddi at 02:18 PM

Environment - Sage grouse endangered in west

The LA Times headline is "Bird's Fate Tied to Future of Drilling: Sage grouse are dying off in the prairies. But the fight to keep the bird off an EPA watch list centers on methane deposits in that region." The lengthy article, available here, begins:

SPOTTED HORSE, Wyo. — Once again an imperiled bird has become a symbol of clashing values in the Western wilds. Reminiscent of the bitter struggle over the spotted owl, a battle over the greater sage grouse is pitting an industry against protectors of an ancient and colorful species that inhabits the same region believed to harbor much of the West's most promising natural gas deposits.

Biologists warn that the birds, inhabitants of Western prairies for thousands of years could be extinct in 50 years, although lobbyists for the oil and gas industry contend that protection of the sage grouse under the Endangered Species Act would deal a sharp setback to the Bush administration's energy policy.

This week, Wyoming's Gov. Dave Freudenthal entered the fray on behalf of the bird, expressing concern about further destruction of sage grouse habitat and calling for a halt, at least for a year, to new drilling around Pinedale, one of two areas in Wyoming where exploration and production has been most intense.

Freudenthal said issuing new leases would be "contrary to the goal of deliberate and responsible development."

He is the second Western governor after Bill Richardson of New Mexico to take issue with the expansion of oil and gas drilling. The governors, both Democrats, are echoing regional concerns that the administration's energy policy is jeopardizing other natural resources, including water and wildlife.

To see the amount of space this story received in the paper (something that is hard to judge online), use this link to the pdf version (slow loading) of the front page of The Nation section of today's LA Times - the story fills much of the page.

[Sidenote: If you do look at the pdf, use the magnifier to view the dog in the photo. I believe this is Badger, the dog from the MasterCard ads who got separated from his family in the California redwoods and had to make his own way back home to the midwest. "Water for lost dog in the Mohave: $2.00. Rhinestone collar in Vegas: $40.00. Meatloaf special in Arizona: $8.00. Feeling at home when you're only half-way there: Priceless."]

Posted by Marcia Oddi at 12:43 PM

Indiana Decisions - One 7th Circuit Opinion Today

In ENVIRO TECH INT'L v. EPA (ND Ill.) Enviro Tech International, Inc. (“Enviro Tech”), filed this action seeking judicial review of the United States Environmental Protection Agency’s (“EPA’s”) refusal to produce certain documents in response to Enviro Tech’s request under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). The Court here affirms, ruling:

We find no clear error in the district court’s conclusion that the 37 documents in issue are protected by the deliberative process privilege. There is no dispute that these documents are both predecisional and deliberative. To the extent that the privilege might not apply to internal agency discussions of a proposal that is wholly beyond the agency’s authority or unrelated to a legitimate governmental purpose, a question we do not resolve, we are satisfied that a recommended exposure limit on use of an ODS substitute does not amount to such a plainly ultra vires course of action. The EPA was therefore entitled to invoke the deliberative process privilege as to the consideration of such a recommended limit.

Posted by Marcia Oddi at 12:31 PM

Indiana Law - More on real estate development

The Gary Post-Tribune reports today:

"Aberdeen housing proposal voided," is headline of this story. Some quotes:

CENTER TWP. — The owners of luxury homes near the fourth hole at the Course at Aberdeen can rest easier. Forty-four lots containing cheaper homes won’t be coming anytime soon.

Porter Superior Court Judge Bill Alexa ruled in favor of petitioner Michael E. Cole, who took his battle to court after the Porter County Plan Commission approved the primary plat on July 9, 2003.

Cole argued that both the Porter County Commissioners and Plan Commission overlooked the county’s own ordinances on planned unit developments. * * *

Alexa ... found merit in Cole’s petition, and said the project violated Porter County’s planned unit development ordinance — even though the county commissioners may grant variances.

“(H)owever, the word 'variance’ must be interpreted to mean modifications ... (that) may not fall below the minimum (multi-family residential) standards,” Alexa wrote. “Further, this court finds that the Porter County Plan Commission acted beyond the scope of its authority when it approved a primary plat which contained modifications that fell below the minimum standards.”

Without commenting on the case, County Commissioner Robert Harper, a Plan Commission member, said problems with the county’s planned unit development ordinance need to be fixed. “Hopefully, we will get a new ordinance on them,” said Harper. “The reason is we have a terrible ordinance.”

Harper said the planned unit developments allow a greater density in return for what Harper considers “payback” — extra green space for the community. The current ordinance is not restrictive enough compared to other counties, Harper said.

In another story, re the Porter County greenspace plan about which we have posted several recent entries, the Trib reports:
VALPARAISO — Porter County residents face a land-use ordinance that proponents say will bring more open space and opponents claim will only produce untended land brimming with weeds and mosquitoes.

That was the stark difference portrayed as Porter County Plan Commission members heard from the public on an open-space ordinance that would require most developments to set aside 20 percent of land for scenic, natural or recreational use.

Members of the Porter County Homebuilders Association showed up, filling the commissioners’ chambers in opposition. But proponents of the bill also arrived, to be heard at the ordinance’s first of two public hearings. More than 75 people attended Wednesday night’s meeting. * * *

[A]ttorney Todd Leeth, representing the homebuilders, said the requirement represented taking developers’ property. Such taking may require compensation from the county government — as possibly required by the U.S. Constitution. “Twenty percent crosses the line,” Leeth said to the Plan Commission.

Leeth also listed the numerous problems the ordinance might cause, citing urban sprawl, increased housing costs, lack of credit for other open spaces like wetlands, and stifling of innovative land planning.

Posted by Marcia Oddi at 08:51 AM

Environment - A number of stories today

The Louisville Courier-Journal has a major story based on a review of "risk-management plans filed by the companies with the U.S. Environmental Protection Agency." More:

An unchecked release of toxic chemicals from any one of dozens of plants in the Louisville metropolitan area — from chemical plants to a commercial bakery — could sicken thousands of residents. * * *

The plans outline what might happen if there's a spill or some other kind of chemical release if everything goes wrong — a scenario that companies and emergency responders agree is not likely and has never happened in the metro area. * * *

For this article, the newspaper reviewed all the risk-management plans for plants that have the ability to jeopardize people in six Louisville-area counties on both sides of the Ohio River. Plants were first required to file the plans in 1999, but some have updated them since. Plant managers are preparing to file updated submissions for a deadline this month.

A number of other stories accompany the main article, including "Some want worst-case data off-limits," which includes these quotes:
But even though the plans have been credited with enabling residents to learn about the potential risks of their industrial neighbors — and with encouraging some facilities to switch to less dangerous alternatives — some industry representatives and other groups are calling on Congress to eliminate public access to all or portions of the plans.

The Courier-Journal was able to view risk-management plans filed by companies in Jefferson County at the Louisville Metro Emergency Management Agency, through a Kentucky open-records request.

Floyd County in Indiana denied a similar request.

"Essentially, any disclosure of a record or part of a record which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack may not be disclosed," William F. Ryall, Floyd County's emergency management director, wrote in a Feb. 23 response to the newspaper's open-records request.

The plans are also available at federal reading rooms, though it can take several weeks to get an appointment, and the government allows no photocopying and limits the number of plans that can be viewed at one time.

Another of the accompanying stories, headlined "Water company studies alternatives to disinfectant: Less risky choices being used elsewhere," reports
Utilities around the country that supply water to the public, including the one that serves Louisville, have used chlorine as a disinfectant for decades.

But nearly three years after the Sept. 11, 2001, terrorist attacks, the Louisville Water Co. has begun to study less risky alternatives to chlorine, which the city-owned company has used at its Crescent Hill treatment plant since 1913.

By the company's estimate, a worst-case accident at the plant could send out chemical vapors that could harm residents for almost 10 miles in any direction, depending on the wind.

Another story in the Courier-Journal today reports:
A federal judge fined the Louisville Metro Air Pollution Control District $100,000 yesterday for illegally ending motor-vehicle emissions testing without approval from the U.S. Environmental Protection Agency.

District Judge John G. Heyburn II said the money would be paid to the Kentucky Resources Council, which sued the pollution-control district.

The judge also ordered the district to pay $30,000 in attorney fees to Tom FitzGerald, an environmental lawyer and director of the resources council.

FitzGerald said the money would be used only for advocating for improved air quality in Jefferson County. But he said he was frustrated that the ruling does nothing to offset the additional four tons per day of pollution that the VET program had been credited with preventing.

Our Courier-Journal coverage today ends with this this story, with the lead:
Kentucky ranks second and Indiana fifth in per capita deaths attributed to pollution from coal-fired power plants, according to a study done for a coalition of national environmental groups. The Abt Associates analysis, released yesterday, attributed 745 deaths annually in Kentucky to power-plant emissions, for a rate of 28.2 per 100,000 adults, second only to what the consulting group found for West Virginia: 33.1 per 100,000.

It attributed 887 deaths per year in Indiana to consequences of breathing power-plant pollution for a rate of 23.3 per 100,000. The study was released by Clear the Air, a campaign of the Clean Air Task Force, National Environmental Trust and the U.S. Public Interest Research Group, said Clear the Air spokesman Jonathan Banks. The groups used U.S. Environmental Protection Agency methods and consultants in preparing the report, he said.

Finally, the Washington Post today also covers the Clear the Air study, in a story available here. The NY Times coverage is here. The lead:
A research firm that the Bush administration commissioned to analyze its plan to lower emissions from coal-fired power plants compared the plan with two competing legislative proposals and concluded in a report released Wednesday that the administration's plan was the weakest.

At the invitation of the environmental coalition Clear the Air, the international research firm Abt Associates, which often conducts studies for the Environmental Protection Agency, used the same methodology in assessing all three. It found that the administration's plan, called the Clear Skies Act, would save as many as 14,000 lives but that the other bills would save more - 16,000 in one case and 22,000 in the other.

The findings, included in a report, "Dirty Air, Dirty Power," [available here in pdf] were immediately attacked by industry groups as a "repackaged" argument that focused on only one source of emissions. The administration's chief environmental policy adviser echoed the criticism, saying that the administration plan provided benefits as part of an overall strategy to meet air quality standards that were more stringent than ever.

Posted by Marcia Oddi at 08:31 AM

June 09, 2004

Indiana Decisions - One Disciplinary Action and one Tax Court opinion posted today

In the Matter of Patrick J. Roberts (6/9/04 IndSCt) [Disciplinary Action]
Per Curiam

Since 1996, the respondent, attorney Patrick J. Roberts, has twice been convicted of alcohol-related driving offenses. Today we accept an agreed resolution of attorney disciplinary charges emanating from those convictions. The agreement calls for the respondent’s public admonishment in light of the fact that the respondent voluntarily sought out and completed treatment for his alcohol abuse and because he continues to abstain from alcohol use. * * *

The present case may be distinguished. The respondent has not been diagnosed as alcohol dependant, but instead as one who abuses alcohol. Unlike the lawyers in the prior matters, the respondent has demonstrated completion of a voluntary course of treatment for alcohol abuse, voluntarily continues with his course of treatment, and has abstained from the use of alcohol for some 21 months. In addition, the respondent’s two misdemeanor convictions were the result of incidents that were separated by a period of approximately nine years. Accordingly, we agree with the parties that a public reprimand is appropriate for the misconduct in this case.

It is, therefore, ordered that the respondent, Patrick J. Roberts, is hereby reprimanded and admonished for his misconduct in this case. The Clerk of this Court is directed to provide notice of this order in accordance with Admis.Disc.R. 23(3)(d), to the hearing officer, and to the clerk of the United States Court of Appeals for the Seventh Circuit, the clerk of each of the United States District Courts in this state, and the clerks of the United States Bankruptcy Courts in this state. Costs of this proceeding are assessed against the respondents.

Mitchel & Scott Machine Co., Inc. v. Department of Local Government Finance (6/8/04 IndTaxCt - Not for Publication) [Real Property Valuation]
Fisher, Judge
Mitchel & Scott Machine Company, Inc. (Mitchel & Scott) appeals the State Board of Tax Commissioners’ (State Board) final determination valuing its real property for the 1996 tax year. The issue before this Court is whether Mitchel & Scott’s improvement is entitled to additional obsolescence depreciation. * * *

Mitchel & Scott has failed to explain how it was entitled to additional obsolescence depreciation. Thus, it did not meet its burden in this case. Conclsion. For the foregoing reasons, the Court AFFIRMS the final determination of the State Board.

Posted by Marcia Oddi at 01:59 PM

Indiana Decisions - Three 7th Circuit Rulings Today

ENERGY PLUS CONSULTING v. ILLINOIS FUEL COMPANY (SD Ill.)

WILLIAMS, Circuit Judge. Energy Plus Consulting, LLC (“EPC”) sued defendants Illinois Fuel Company, LLC and Appalachian Fuels, LLC, alleging breach of contract and seeking $720,000 in damages. The contract provided that if the defendants failed to release an option in a separate contract with a third party by a specified date, they would pay EPC $720,000. The district court, in granting defendants’ motion for summary judgment, found that the $720,000 provision was an unenforceable penalty clause. We agree with the district court, and therefore affirm.
USA v. FIELDS, DARNELL (ND Ill.)
WILLIAMS, Circuit Judge. Darnell Fields entered a conditional guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), reserving the right to appeal the denial of his motions to suppress. He now appeals the denial of his motions to suppress a handgun the police found in his apartment and a statement he made after the handgun was found. Because the district court did not resolve whether the officers’ initial entry into Mr. Fields’s apartment was lawful, we remand this case for further consideration.
USA v. JONES, DIRK D. (ND Ind., Judge Lozano)
WILLIAMS, Circuit Judge. Dirk Jones was charged in two counts of a three-count indictment arising from the purchase and attempted resale of a firearm. Count One charged him with a conspiracy having two objects: to make a false statement to a federally licensed firearms dealer, and to transfer a firearm to a resident of another state. 18 U.S.C. §§ 371, 922(a)(6), 922(a)(5). Count Three charged him with possession of a firearm by a felon. Id. § 922(g)(1). A jury found him guilty of both counts, and the district court sentenced him consecutively to 60 months’ imprisonment on Count One and three months’ imprisonment on Count Three. At the close of the government’s caseand again at the close of all evidence, Jones had moved for acquittal on both counts under Fed. R. Crim. P. 29. Jones now appeals the denial of that motion only as to Count One, arguing that the government did not present sufficient evidence to support the conspiracy conviction. Because the government failed to meet its burden, we reverse Jones’s conviction on Count One.

Posted by Marcia Oddi at 12:35 PM

Indiana Law - Accounting company report on Lake County taxes criticized

"County criticizes state tax report: Accounting firm admits some errors were made in reassessment study," is the headline to this story today in the Munster Times. A quote:

INDIANAPOLIS -- Noting a number of mistakes that misrepresent reassessment figures, Lake County officials Tuesday criticized an accounting company's report about county taxes released last week.

Mistakes included using median instead of average, having incorrect calculation of percentage change, listing the wrong library as having an increase of more than 10 percent and having incorrect county comparisons.

"There's a lot of data here, and we really wanted to help people understand it," said Doug Schrock, an executive at Crowe Chizek and Co. who worked on the project. "I don't want the story to be lost -- most of it's in here."

According to the Times, the report itself is available here. Oddly, the document linked to which appears to be the "report" has no title page, no identification re preparation, etc.

Posted by Marcia Oddi at 12:23 PM

Indiana Law - Protective orders faulted

This story today in the Fort Wayne News-Sentinel talks about the difficulties of enforcing protective orders. Some quotes:

Christine Stutz's fear has turned to rage, and for good reason. She filed a restraining order against her ex-boyfriend, but it didn't do much good. In the past 18 months, Stutz has filed 25 police reports against Joshua Kennell for violating the order. Instead of protection, Kennell allegedly has threatened Stutz, slashed tires on her vehicle, stolen numerous child safety seats meant to protect his own son and repeatedly broken into Stutz's home. * * *

More Allen County residents have been filing the orders over the past decade. The number of protective order cases filed in civil court has risen from 1,032 in 1993 to 2,114 in 2003. Through Monday, there have been 1,009 cases filed this year. The orders can be filed in cases involving family violence, sexual assault or stalking.

Those numbers do not include the number of protective orders - which are good for two years - that have been added to felony or misdemeanor cases in Allen County Superior Court in addition to criminal charges. * * *

But violating the order can be hard to prove. A protective order is a court document, which doesn't do much good when it is violated at all times of day and police are not waiting for the suspect.

"It's only a piece of paper," Davis said. "I tell the women that it's a tool, but I don't want them to think it's a shield. Women are likely to be the victims of a homicide after they have left a relationship. I tell them to be hyper-vigilant."

Posted by Marcia Oddi at 12:16 PM

Indiana More - More on Real Estate Green Space

Following up on our entry yesterday (scroll down three entries) reporting on two stories out of Porter County, requiring developers to set aside greenspace on their projects, is this editorial today in the Munster Times, headlined "Leave some land open before it's too late." More:

Some area builders are unhappy with a proposed Porter County zoning change to be discussed tonight. That change would require them to leave 20 percent of a new subdivision undeveloped.

Without that green space, though, the way of life that draws people to the county, with its open spaces, is threatened.

County Commissioner Robert Harper, who sits on the county Plan Commission, proposed the change. He and some other Plan Commission members are tired of developers cramming homes into a subdivision without leaving some breathing room. * * *

Builders say this threatens the future of affordable housing. With less land to develop, the price of the remaining lots will increase, they say.

But how valuable will that land be once the county's natural attractions are gone?

Posted by Marcia Oddi at 09:25 AM

Law - 2nd Circuit rules docket sheets in Connecticut courts are public documents

This story in today's Hartfort Courant (intrusive registration required) is headlined "Docket Sheets Are Public: Appellate Ruling Gives First Amendment Right." It begins:

The U.S. 2nd Circuit Court of Appeals ruled Tuesday that the press and public have a First Amendment right to access the docket sheets that serve as an index to court files, and revived a media challenge involving thousands of sealed Connecticut court cases dating back decades.

U.S. District Court Judge Gerard L. Goettel last November dismissed a lawsuit filed by The Hartford Courant and the Connecticut Law Tribune that sought limited information about the sealed files, saying top judicial branch officials had no power to undo orders made by judges to keep those files secret.

But lawyers for the media argued before both Goettel and the three-judge appellate panel in New York that their request was to access not the files, but merely the docket sheets. Docket sheets identify the parties involved in a case, the judge to whom it was assigned, the nature of the litigation and a table of contents of the various motions and pleadings that were filed.

"We're thrilled the 2nd Circuit reversed the order dismissing the case and recognized a constitutional right of access to the docket sheets that are currently being kept under lock and key by the state of Connecticut," said attorney Stephanie Arbrutyn, who represents The Courant. "We are looking forward to proceeding expeditiously, because we believe there was, and is, an ongoing violation of our constitutional right of access."

The decision is available here: THE HARTFORD COURANT COMPANY v. JOSEPH H. PELLEGRINO, Chief Court Administrator and WILLIAM J. SULLIVAN, Chief Justice.

What is the background here? I found some, via a site published by The Reporters Committee for Freedom of the Press, which has a page named "Secret Dockets." Here is a quote:

Special treatment for prominent divorcees

In Connecticut, a secret docketing system was so hidden that not even the chief justice knew of its existence. Any party could choose to file a case under three different levels of secrecy. In Level 1 or "super-secret" cases, all information, including the case number, the parties' names, the nature of the case, and all court documents remained off the public docket. Level 2 docketing permitted disclosure of the case number and parties' names, but sealed all other information. And Level 3 cases were open to the public except for certain sealed documents contained in the court file. This secret docketing system is not found in Connecticut court rules or statutes, but was established as an internal administrative procedure to assist court clerks in processing sealed files.

Last fall, Connecticut Law Tribune reporter Thomas B. Scheffey discovered the secret docketing system while reporting on the divorce of former General Electric Chairman Jack Welch, who filed for divorce in Bridgeport, Conn., ending his 13-year marriage to Jane Welch.

A lawyer connected with the divorce said he was surprised that the court offered a range of levels of secrecy, including complete invisibility, Scheffey said. While Welch's divorce is on the public docket, others are kept secret.

Law.com also reports on the 2nd Circuit ruling today. Some quotes:
A February 2003 article in the Courant reported that some cases were sealed just because prominent individuals had requested it. The article stated that judges "have selectively sealed divorce, paternity and other cases involving fellow judges, celebrities and wealthy CEOs that, for the most part, would play out in full view of the public."

The newspaper accounts led the Connecticut judiciary to promulgate new rules that set standards for the closing of courtrooms and the sealing of materials. Among the rules was a requirement that a judge articulate the reasons for the closure or sealing and why they overrode the First Amendment right of access.

The suit brought by the Hartford Courant concerned matters that were sealed before the promulgation of the new rules.

Posted by Marcia Oddi at 09:12 AM

June 08, 2004

Law - What is left on the Supreme Court's plate?

Joan Biskupic of USAToday has an artiicle today discussing the "22 cases to be resolved before recess." Some quotes:

In the next three weeks or so, the justices will issue rulings in several cases that involve some of the most significant -- and politically tinged -- disputes to hit the court in recent years.

They include three cases that test the Bush administration's legal strategies in the war on terrorism; a case that arises from the phrase ''under God'' in the Pledge of Allegiance; and a dispute over whether Vice President Cheney must disclose internal documents related to an energy task force he led in 2001.

Twenty-two cases await resolution; the justices have handed down 51 rulings since their annual term began in October.

Northwestern University's On the Docket site has a really useful table detailing the 22 cases remaining on the docket.

Another great tool is the FindLaw.com Case Index for the 2003-2004 term. Cases are listed by subject. Click on a case name and you get everything about the case, including links to lower court opinions (and the Supreme Court opinion if the case already has been decided), links to the briefs, the oral argument transcript when available, etc.

Posted by Marcia Oddi at 04:54 PM

Indiana Law - More interesting reports dealing with real estate

Again today (for yesterday's, scroll down about 10 entries) there are two interesting real estate stories, this time both set in NW Indiana's Porter County.

First is this story in the Munster Times headlined "City wants developer to specify green space: Portage planners table vote on Sterling Creek Park." Somequotes:

PORTAGE -- Sterling Creek Park hit another stumbling block Monday night when the Plan Commission told developers they needed specific plans for open space instead of vague guarantees to include recreational space in the 120-acre planned unit development

"If you guys don't even specify where the green space is, what's going to stop you from giving us a strip of green space along the side of a road?" Plan Commission President Bill Walton asked. "As it's written in this first 25 acres, you could put in house after house and never put a park in." * * *

During Monday's discussion, Director of Community Development A.J. Monroe said the city's ordinance regarding planned unit developments requires legal definitions of how much continuous green space will be set aside and where it will be located. The Sterling Creek included neither. * * *

Attorney Todd Etzler, who represents the developer, said Sterling Creek's individual development phases could be affected by specifying the green space ahead of time. But Walton pointed to Coffee Creek and Aberdeen, two other Porter County planned developments that set aside recreational land and built up around it.

Second is this story, also in the Times, headlined "Proposed zoning change draws builders' ire: Porter County plan would require 20 percent of development to be left as open space." The story begins:
VALPARAISO -- Area builders claim a proposed Porter County zoning change requiring them to leave 20 percent of a subdivision undeveloped would illegally strip them of their property without compensation.

The proposal before the county plan commission would affect developments of 15 acres or more that are connected to municipal utilities, and those 30 acres or more operating on well and septic systems.

The plan commission is scheduled to take up the issue during a public hearing Wednesday, presumably amid a strong show of opposition from developers.

Posted by Marcia Oddi at 03:21 PM

Environment - NW indiana residents, Lake Station, and Gary Sanitary District appeal Hobart sewage plant permit issuance

As reported today in the Munster Times:

The Indiana Department of Environmental Management approved the issuance of a discharge permit April 1. The mandatory permit allows the plant, which is expected to cost up to $29 million, to discharge as much as 4.8 million gallons of treated wastewater daily into Deep River.

Appeals were filed a couple of weeks later by several Lake Station residents who live near Deep River, including James Boyd, Pat Strickland and James and Dorothy Busch. Other appeals were filed by the City of Lake Station and the Gary Sanitary District. By building the plant, which would be located north of U.S. 6 and the North Ridge Shopping Plaza, Hobart will sever ties with the Gary Sanitary District, which now treats the city's sewage on a contractual basis.

As reported earlier in the story:
Even though a mandatory permit has been issued, it will be months before Hobart officials know for sure whether they can build a sewage treatment plant.

A judge with the state's environmental agency isn't expected to make a ruling in the case until early winter. In the meantime, attorneys from Lake Station and the Gary Sanitary District will spend time preparing their appeals.

In a telephone conference Monday afternoon, attorneys from the Gary Sanitary District, Lake Station and Hobart discussed the appeals with Judge Mary Davidsen of the Indiana Office of Environmental Adjudication. * * *

Attorney James Meyer, who represents the sanitary district, believes a trial won't be necessary and matters would most likely be resolved within the next 165 days. "We still have confidence that in the long run we will be vindicated and the permit will be denied," Meyer said.

Posted by Marcia Oddi at 03:07 PM

Indiana Decisions - One Supreme Court, One Court of Appeals Opinions Posted Today

M-Plan, Inc., et al. v. Indiana Comprehensive Health Insurance Association, et al. (6/8/04 IndSCt) [Insurance; Administrative Law]
Boehm, Justice

The Plan of Operation of the Indiana Comprehensive Health Insurance Association requires any challenge to the Association’s assessment of its members to be presented to the Association’s Board, subject to a right of appeal to the Commissioner of Insurance. We hold that these remedies are required to be pursued before a member may challenge an assessment in court. * * *

The HMOs argue that they are relieved from the exhaustion requirement by the agency’s failure to act on their petition. The HMOs cite MHC Surgical Center Associates, Inc. v. State Office of Medicaid Policy and Planning, 699 N.E.2d 306, 309 (Ind. Ct. App. 1998), for this proposition. In that case, the court held that the plaintiffs were not required to exhaust administrative remedies because the agency had not taken action on the petitioner’s claims in over four years. Id. No such delay is asserted here. Nor have the HMOs have shown that ICHIA has otherwise deliberately refused to follow the law.

Conclusion. The judgment of the trial court is affirmed.
Shepard, C.J., Dickson, Sullivan, and Rucker, J.J., concur

Michael Hendricks v. State of Indiana (6/8/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Claims of ineffective assistance for inadequate presentation of issues that were not deemed waived in the direct appeal are the most difficult for defendants to advance and are almost always unsuccessful. Harrison v. State, 707 N.E.2d 767, 787 (Ind. 1999), cert. denied 529 U.S. 1088 (2000). We are not persuaded that this is one of those rare cases in which such a claim is successful. * * *
The denial of post-conviction relief is affirmed.
ROBB, J., and ROBERTSON, Sr.J., concur.

Posted by Marcia Oddi at 01:57 PM

Indiana Decisions - Two 7th Circuit Opinions Issued Today

In USA v. MAYES, STEPHEN L. (ED Wis.), "[t]he defendants raise a number of trial and sentencing issues."

USA v. ROCK, TIMOTHY (SD Ind., Judge Barker)
Bauer, Circuit Judge

This direct appeal arises from Timothy Rock’s 2001 conviction for conspiracy to possess with intent to distribute more than fifty grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Rock raises the sole issue of whether sufficient evidence was presented at trial to support his conspiracy conviction. For the reasons stated below, we affirm. * * *

Because we give deference to the jury’s findings, and because we review now only for plain error, we have no trouble in holding the jury had sufficient evidence on which to base its verdict. Accordingly, Rock’s conviction is AFFIRMED.

Posted by Marcia Oddi at 01:55 PM

Law - New Jersey considers former law clerk conflicts

A story today on Law.com reports that:

The New Jersey Supreme Court has declined to write a bright-line definition to govern potential conflicts by lawyers appearing before judges they served as clerks.

And absent such a definition, the court suggested, the best way to avoid trouble is for firms to screen the clerks-turned-practitioners from all work on cases they handled as clerks.

That means that firms need long-term tracking systems that match lawyers with cases they may have touched as clerks, says the winning lawyer in Comparato v. Schait, A-43, decided last week.

Rule of Professional Conduct 1.12(a) precludes lawyers from working on cases in which they participated "personally and substantially" as a judicial law clerk but if those lawyers are screened from participation, others in the firm can handle the case before that judge.

The rule, however, does not define substantial and personal involvement, and the 4-2 majority wouldn't define it in the decision at hand. * * *

Here is the New Jersey Supreme Court opinion in the case, Comparato v. Schait.

Indiana appears to have the same rule, and in fact it even has the same number, Rule 1.12 of the Indiana Rules of Professional Conduct.

Posted by Marcia Oddi at 07:57 AM

June 07, 2004

Indiana Decisions - One 7th Circuit Opinion Today

In USA v. ANTONELLI, MICHAEL (ND Ill.), a 5-page Per Curiam decision, the Court ruled:

Antonelli was unhappy that he could not keep in his cell a copy of his presentence report prepared after convictions in the Northern District of Illinois on 1978 firebombing charges. But rather than bringing an independent civil action in the district where he is confined, Antonelli filed his motion in the Northern District of Illinois using the cause number from his 1978 criminal case. The district court denied the motion in a minute order, concluding that Antonelli had adequate access to his presentence report under the BOP policies. We conclude, however, that Antonelli was not entitled to a merits ruling without prior compliance with the procedural requirements of the Prison Litigation Reform Act (PLRA), and thus we vacate the district court’s judgment and remand for further proceedings.

Because Antonelli filed his “motion” under the district court cause number of his 25-year-old criminal case and even captioned the United States as the plaintiff, the district court understandably appears to have viewed the filing as an additional motion in that long-finished proceeding. When determining the character of a pro se filing, however, courts should look to the substance of the filing rather than its label. * * * Because Antonelli’s filing is appropriately seen as an attempt to commence a new civil suit, the PLRA subjected him to significant procedural constraints and potential consequences that he in effect evaded by using his old criminal case number. * * * The PLRA seeks to balance an inmate’s right of access to the courts against both the need to curtail frivolous litigation that overwhelms the judicial system and the benefit of giving prison officials the first opportunity to address problems in the system. * * * The 62 appeals that Antonelli has filed in this circuit alone over the last 16 years exemplify the need to strictly enforce these provisions.

Accordingly, although we in no way suggest disagreement with the district court’s evaluation of the merits of Antonelli’s claim, we conclude that the district court should not have reached the merits without first enforcing the PLRA. We thus VACATE the district court’s judgment and REMAND for further proceedings. On remand the district court should first assess and begin collecting the appellate fees for this appeal using the procedures set out in 28 U.S.C. § 1915(b); the court should then proceed to apply all applicable PLRA provisions to Antonelli’s civil action. Any subsequent appeal by Antonelli from an adverse judgment following remand will in turn prompt additional appellate fees.

Posted by Marcia Oddi at 05:23 PM

Law - Supreme Court denies cert in Colorado restricting decision

As reported here by SCOTUSblog, the US Supreme Court today "denied certiorari in the Colorado redistricting case, No. 03-1082, Colorado General Assembly v. Salazar. The Chief Justice dissented from the denial, in an opinion that Justices Scalia and Thomas joined."

Here is a link to the 12/1/03 Colorado Supreme Court opinion, and here and here are Indiana Law Blog entries on the Colorado decision.

Washington Post coverage of the state court opinion is still available here.

[More] Here is AP coverage of the Court's action, headlined "Colorado GOP Loses Supreme Court Redistricting Appeal" by the Washington Post. Some quotes:

Colorado Republicans lost a Supreme Court appeal Monday over whether a congressional map favorable to Democrats is permanent until after the next census in 2010.

A fractured court refused to consider replacing that map with a GOP-drafted redistricting plan, a defeat for Republicans who have sought to reopen the boundary-drawing process in several states to protect their control of the House.

The Colorado Supreme Court had ruled last December that Republicans violated the state Constitution by pushing a new map through the Legislature just a year after a judge had redrawn the boundaries. District drawing may be done only once a decade, the court decided.

Justices refused Monday to consider an appeal of that decision. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas wrote separately to say the court was wrong not to hear the case. * * *

Redistricting has been a difficult subject for the Supreme Court. In April, justices split sharply over what courts can do about partisan gerrymandering. Four justices said the courts should be closed to such cases. [Vieth v. Jubelirer, from Pennsylvania - see ILB coverage here and here.]

A challenge over Colorado's redistricting has been on hold in federal court pending the outcome of the Supreme Court case.

Besides Colorado, Texas is also a state where Republican lawmakers spearheaded new redistricting. Appeals over that are pending at the Supreme Court.

[Update 6/8/04] Linda Greenhouse today has an interesting story in the NY Times on the Court's refusal "to hear the Colorado Republicans' appeal of a state high court ruling that invalidated an unusual second redistricting plan the Republicans had pushed through the legislature in the closing days of its 2003 session." Some quotes:
In invalidating Colorado's new redistricting plan last December, the Colorado Supreme Court said it was relying completely on the state Constitution to conclude that Congressional redistricting could be conducted only once a decade. That decision meant that the district lines reverted to those drawn by a state court in early 2002, after the legislature failed to agree on how to draw new lines following the 2000 census, which gave Colorado a new Seventh District. Under that plan, Colorado Democrats say they have a good chance to pick up two seats.

In November 2002, Republicans gained control of the Colorado legislature. Over Democratic objections, they pushed through a new plan in the final days of the 2003 legislative session.

In drafting an appeal to the United States Supreme Court, the Republicans' challenge - as it had been in Florida after the 2000 presidential election - was to find an issue of federal law to provide jurisdiction. * * *

The appeal evidently provoked a behind-the-scenes struggle among the justices, who considered it at five consecutive weekly conferences before turning it down on what was apparently a vote of 6 to 3, one short of the four necessary to hear a case. The majority offered no comment, and only the dissenters - Chief Justice William H. Rehnquist along with Justices Antonin Scalia and Clarence Thomas - identified themselves.

Chief Justice Rehnquist's opinion, which the other two signed, was reminiscent of his opinion in Bush v. Gore, the Florida case that decided the 2000 election. He said the state court decision, "while purporting" to be based on state law, actually made a "debatable interpretation" of federal law in validating the initial court-ordered redistricting. The decision should be reviewed, he said.

Posted by Marcia Oddi at 03:01 PM

Indiana Decisions - One Court of Appeals Decision Posted Today

Jaudon Goodall v. State of Indiana (6/7/04 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge

Jaudon Goodall appeals the sentence imposed by the trial court. Specifically, he contends that his four-year habitual offender enhancement is inappropriate. Given the nature of the offense and the character of the offender, we conclude that Goodall’s enhancement is not inappropriate. * * *
Affirmed.
SULLIVAN, J., and MAY, J., concur.

Posted by Marcia Oddi at 02:00 PM

Indiana Law - Two interesting reports dealing with real estate

First, this story in the Louisville Courier Journal headlined "New rules cool developers' plans: Floyd subdivision measure untested," that begins:

In a startling departure from recent years, not a single proposal for a new subdivision has been filed with the Floyd County Plan Commission so far in 2004.

In the first five months of last year, developers asked the plan commission to approve nine new subdivisions. Three were filed in the same period of 2002 and five in 2001.

The explanation for the difference depends on whom you ask.

Developers say the main reason is the stricter requirements of the new ordinance controlling subdivision design and construction that was enacted Jan. 1. But others say it's because developers, anticipating the ordinance, got a jump on subdivision plans last year.

The ordinance requires expensive studies and design work before a subdivision proposal can even be submitted to the plan commission for review, said D.J. Hines, one of Southern Indiana's biggest developers. And, he added, many developers are simply unwilling to take the risk of rejection.

Second, this interesting story in the South Bend Tribune, headlined "Ruling favors condo owners: Mishawaka mayor disappointed, plans to appeal bridge case," begins:
SOUTH BEND -- Condominium owners near Kamm Island are entitled to be compensated for their loss of a scenic view and the loss to freely use their property and the adjacent water because of a bridge built as part of a pedestrian walkway, a magistrate has ruled.

St. Joseph Circuit Court Magistrate David C. Chapleau ruled in favor of the condominium owners in their suit against the City of Mishawaka.

Owners of five Schellinger Square condominiums on the south side of the St. Joseph River near Kamm Island maintain the city's building of a foot bridge infringed on their rights and was an unlawful taking of their property.

A trial of their 2002 lawsuit seeking monetary damages was held in February.

Chapleau found the condominium owners prevailed on the issue of inverse condemnation but did not have sufficient evidence to prove two other theories. He appointed three appraisers to evaluate the property as part of the process of determining a dollar amount of damages.

Posted by Marcia Oddi at 10:47 AM

Environment - Arizona's Navajo and Hopi Tribes Battle for Water

The LA Times Sunday magazine yesterday featured a long and very compelling story with this headline: "Gathering Clouds - Arizona's Navajo and Hopi Tribes Have Won a Water-Rights Battle Against the Coal Company That Has Sustained Their Fragile Economies. But on the Threshold of Victory, a Sobering Question: Now What?" Just a taste from the start of the piece by Sean Patrick Reily:

"Somewhere far away from us, people have no understanding that their demand for cheap electricity, air conditioning and lights 24 hours a day have contributed to the imbalance of this very delicate place." — Nicole Horseherder, Navajo, Black Mesa

For years upon years beneath star-heavy skies, the Navajo awakened before the sun rose over northeastern Arizona's Black Mesa to guide their sheep to the natural waters of desert washes and springs to beat the overwhelming heat of day. For those who kept cattle in more modern times, they dug wells powered by windmills to pump groundwater into drinking troughs. The Hopi, farmers whose reservation borders Black Mesa's fringe, channeled these same waters onto hillside terraces where they planted their sacred and sustaining crops of corn.

But that was when there was water on Black Mesa.

Today, few Navajo lead their sheep to water, the cattle troughs are no longer full, and the Hopi have abandoned many of the terraces as their springs, washes and groundwater have gone dry. Instead, they drive as far as 25 miles, often over untended roads, to water stations where they fill 55-gallon barrels roped into pickup trucks. The disappearance of their water is threatening a traditional lifestyle for the Navajo and Hopi, who so value tradition that they voted not to have gaming and the millions of dollars it has brought to other Native American tribes. They do not blame the drought that has plagued the West for so many years now. They blame Peabody Western Coal Co.'s Black Mesa mine, which they say has been siphoning their water for three decades, and their own tribal governments that have allowed that water use.

Posted by Marcia Oddi at 06:51 AM

Law - Outsourcing law office functions contemplated

"Law Firms Offered Outsourced Support Staffs," is the headline to this story today offered up by Law. com. Hildebrandt International, a "well-known law firm consulting group announced today a joint venture to offer American law firms a means of outsourcing their support staffs to India." More:

The joint venture between Hildebrandt and New York-based outsourcing group OfficeTiger will not mark the legal profession's first foray into offshore outsourcing, but the prominence of the Somerset, N.J.-based Hildebrandt, which has advised many of the nation's top law firms, will no doubt lend the issue further momentum among lawyers.

OfficeTiger, which has about 1,600 full-time staff, mostly in Chennai, India, has already signed up some major firms, including London's Allen & Overy and New York's Milbank, Tweed, Hadley & McCloy. * * *

Hildebrandt's end of the joint venture will be overseen by James Jones, a former managing partner of Arnold & Porter, and Michael D. Short, a director at Hildebrandt in Washington, D.C. Short said the joint venture will focus on administrative functions including word processing, recordkeeping and finance and accounting. He said it also will be able to provide staff for legal and non-legal research functions.

"We're approaching the marketplace with a suite of services that we know have applicability to a number of firms," said Short, noting that several firms have already expressed interest in the possibility of outsourcing to India. He said the joint venture will not offer outsourced lawyers for now but will see how the market develops.

Posted by Marcia Oddi at 06:30 AM

June 06, 2004

Not law but interesting - Prosthetic eyes move with real ones

This story today in the Fort Wayne Journal Gazette tell how:

A little-known medical procedure has quietly changed the way people view those who wear prosthetic eyes.

Prosthetic eyes now look and move like real eyes. Recipients say it makes them feel better about themselves, and only they know which eye is real.

Posted by Marcia Oddi at 06:26 PM

June 05, 2004

Law - More on California Governor Schwarzenegger's Punitive Damages Proposal

Catherine Sharkey, an Associate Professor at Columbia Law School, has written a commentary for FindLaw.com on Governor Schwarzenegger's proposal that "that 75% of all punitive damages awards entered in California be paid to a Public Benefit Trust Fund, with each deposit to 'be used for public good purposes that are consistent with the nature of the award.'" Sharkey argues that:

Governor Schwarzenegger should, at a minimum, be commended for creating the opportunity to consider an intriguing tort reform measure that has, to date, too often been ignored. Split-recovery schemes aren't perfect, but neither is our current punitive damages system.
The Indiana Law Blog has posted a number of entries on the punitive damages issue, of special interest to Indiana attorneys because 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%. For our most recent (May 29th) entry, with links to earlier entries and the statute and case law, check here.

Posted by Marcia Oddi at 07:43 AM

June 04, 2004

Indiana Decisions - Three Court of Appeals Decisions Today

Terry Clouse, et al. v. Noble County Drainage Board, et al. (6/4/04 IndCtApp) [ ]
Najam, Judge

In September 2002, the Noble County Drainage Board (“the Board”) issued its final order regarding maintenance of the Hosler Watershed System (“the Watershed”), in which the Board assessed periodic maintenance rates to be paid by persons who own land within the Watershed. Thereafter, Terry Clouse, Helen Clouse, Michael Clouse, Jacquelyn Clouse, Charles Eugene Akers, and Edna Akers (collectively, “the Petitioners”), owners of land within the Watershed, filed a Petition for Judicial Review of the Board’s final order under Indiana Code Section 36-9-27-106. Following an evidentiary hearing, the trial court issued findings and conclusions affirming the Board’s order. The Petitioners now appeal and present several arguments, which we consolidate into a single issue: whether the evidence supports the trial court’s determination that the Board complied with Indiana law when it assessed the periodic maintenance rates. We affirm.
Tim Godby v. State of Indiana (6/4/04 IndCtApp) [Criminal Law & Procedure]

Terry L. Williams v. Cingular Wireless (6/4/04 IndCtApp) [Torts]
Barnes, Judge

On March 27, 2002, Williams was involved in an automobile accident with Kellie Meagher. At the time of the collision, Meagher was allegedly using a cellular phone furnished by Cingular. * * * With respect to Cingular, the complaint alleged:
That at the time of this collision the defendant Meagher was utilizing a telephone furnished by Cingular Wireless. That Cingular Wireless was negligent in furnishing a cellular phone to Meagher when it knew, or should have known, that it would be used while the user operated a motor vehicle.
* * * Williams’ cause of action against Cingular sounds in negligence. In order to prevail on a claim of negligence the plaintiff must show: (1) duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant’s breach of duty.

Before reaching the questions of breach and injury, we must consider the threshold matter of whether Cingular owed a duty to Williams. Absent a duty, there can be no breach and, therefore, no recovery in negligence.

After examining "relationship", "foreseeability", and "public policy", the court concludes in a "balancing of duty factors":
The relationship between Cingular and Williams is remote. Although it is foreseeable that cellular phone use while driving may contribute to a car accident, it is not foreseeable that the sale of a phone to a customer will necessarily result in a car accident. Public policy weighs in favor of not imposing a duty on cellular phone companies for car accidents, even if cellular phones have the potential to distract drivers if misused.

Upon balancing the three factors mentioned in Webb, we conclude that Williams’ attenuated relationship with Cingular and the foregoing public policy considerations substantially outweigh any foreseeability of the harm at issue. Therefore, we must conclude that Cingular did not owe a duty of care to Williams.

Fees. Cingular requests an award of fees and costs in defending this appeal. * * * Conclusion. The trial court did not err by granting Cingular’s motion to dismiss for failing to state a claim for which relief can be granted pursuant to Trial Rule 12(b)(6). However, Cingular has not convinced us that Williams’ appeal was frivolous, so we deny its motion for appellate costs and fees. We affirm.
CRONE, J., and MATHIAS, J., concur.

[More] The AP already is reporting this ruling, via a brief story headlined "Car wrecks not cell phone makers' fault."

[Update 6/5/04] The story is repeated with a few minor changes in the Indianapolis Star this morning. It includes this quote from the Court's opinion:

"Many items may be used by a person while driving," Barnes wrote. "There will be drivers who eat, apply makeup, or look at a map while driving. However, it would be unreasonable to find it sound public policy to impose a duty on the restaurant or cosmetic manufacturer or map designer to prevent such accidents."

Posted by Marcia Oddi at 01:48 PM

Indiana Decisions - Transfer list for week ending June 4, 2004

Here is the Indiana Supreme Court's transfer list for the week ending June 4, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi at 11:07 AM

Law - Federal Appeals Court Nominee Let His Bar Dues Lapse

That is the headline to this story today in the Washington Post that begins:

President Bush's most recent nominee to the federal appeals court in Washington practiced law for three years in the District without a valid license because he did not pay his annual dues to the local bar association.

Posted by Marcia Oddi at 10:00 AM

Indiana Law - 2004 Indiana Environmental Statutes Available for Pre-Order

For details, check here. The deadline to reserve your copies is Wednesday, June 16th.

Posted by Marcia Oddi at 09:50 AM

Indiana Decisions - Judge rules against USI professor

That is the headline to this story today in the Evansville Courier&Press. The lead:

For much of the past two years, the University of Southern Indiana has fought a legal battle with associate ethics professor Steven Sullivan, who claimed university officials retaliated against him for his outspoken views on gay rights and other matters.

That fight came to end Wednesday when U.S. District Court Judge Richard Young threw out the claim and ruled Sullivan was reprimanded not for exercising free speech, but for sexually harassing a prospective student with whom he had an affair.

According to the ruling, Sullivan sent what Young described as "threatening" e-mails and voice-mail messages to the woman after she ended the relationship, and implied that he might attempt to block her enrollment into USI's M.B.A. program. USI administrators learned of the threats after the woman's husband complained to USI president H. Ray Hoops.

The ruling was welcomed by Hoops, who until Thursday hasn't commented on the lawsuit.

"USI has always been an institution that has encouraged open discussions of ideas. We don't take offense with people who disagree with us and Dr. Sullivan knows that," Hoops said. "His allegations went beyond frivolous.

I checked to see if Judge Young's ruling was available on the SD Indiana website, but the Court's site seems to be down this morning.

[Update 11:11 am] Well, the SD Indiana website is back online, but the most recent ruling available from Judge Young is dated 10/22/01. . .

Posted by Marcia Oddi at 08:21 AM

Indiana Courts - Clay County Testing Computerized Court System

The Terre Haute Tribune-Star reports today that:

Clay County is the first site in the state to begin testing a new, computerized system that will make courthouse information more accessible to the public and eventually lead to a "paperless" court system. The system being tested in Clay County will eventually be extended to courthouses statewide, said Frank Sullivan Jr. Supreme Court associate justice. The new system will save taxpayer dollars, make the courts more efficient and assist law enforcement.

"Citizens and lawyers would be able to check the status of their cases over the Internet without calling the clerk's office," Sullivan said.

Much work remains to be done, officials said, and Sullivan predicted it will be at least three years before the system extends statewide. Problems will be worked out in the testing phase.

Clay Circuit Judge Ernest Yelton suggested the new, statewide case management system "will revolutionize the way courts and their partners in the justice system conduct their business."

Read the entire story here.

Posted by Marcia Oddi at 08:08 AM

Environment - 6th Circuit upholds EPA redesignation of Cleveland

The 6th Circuit yesterday, in the case of Greenbaum v. US EPA, upheld the EPA’s redesignation of Cuyahoga County, Ohio from nonattainment to attainment for particulate matter, against a challenge that the EPA illegally waived statutory requirements when it redesignated the Cleveland area to attainment.

Posted by Marcia Oddi at 06:38 AM

June 03, 2004

Indiana Court - Long-time Supreme Court Administrator to Depart

This news announcement was released by the Supreme Court today:

Veteran Supreme Court Administrator Douglas E. Cressler has informed the Supreme Court that he is resigning to take a new position as Chief Deputy Clerk for the United States Court of Appeals for the Tenth Circuit in Denver, Colorado, Chief Justice Shepard announced today.

Mr. Cressler has been the Indiana Supreme Court Administrator for nine years and previously had served as Deputy Court Administrator. He assumes his new position June 21, 2004.

“Doug has been a tremendous asset to the Court throughout his career here. His keen intellect, legal insight and attention to detail have been a great benefit to both the Court and the people of Indiana. I have enjoyed working with Doug and I will miss him. But I know he will be as successful in his new venture as he has been here. We wish both him and his wife Karen the best,” said Chief Justice Shepard.

During his legal career, Mr. Cressler had practiced for three years at the law firm of Bingham McHale and had also spent ten years as a computer system analyst in the area of financial management at Methodist Hospital.

In addition, he has served as an adjunct professor at the Indiana University School of Law-Indianapolis, teaching courses in both Appellate Procedure and Professional Responsibility. He is an accomplished author who has written a number of law review articles and law-related articles. He also lectures on a wide range of appellate matters.

A brief public ceremony marking Mr. Cressler’s tenure will be held at 1:30 p.m. on Tuesday, June 15, 2004.

Mr. Cressler’s departure creates a vacancy in the office of Supreme Court Administrator. Working at the direction of the Chief Justice, the position provides legal and administrative services to the Supreme Court. The Supreme Court Administrator serves as the chief appellate counsel to the Supreme Court and oversees day-to-day management of Court operations and is responsible for managing the Supreme Court’s budget. Anyone interested in the position should send a resume and letter of interest to: Chief Justice Randall T. Shepard,
ATTN: Administrator position, 200 West Washington Street, 304 Indiana State House, Indianapolis, IN 46204

Applicants must be licensed to practice law in Indiana and possess excellent writing skills. The ideal candidate will have experience in litigation and management and a commitment to public service. The annual salary is in the mid to high 90s.

Questions about the position may be directed to Greta Scodro (317-232-2540) or gscodro@courts.state.in.us . Application materials should be tendered by June 18, 2004. The Indiana Supreme Court encourages diversity in its workforce.

Posted by Marcia Oddi at 07:25 PM

Environment - Emission standards for livestock producers

"E.P.A. Nears Pact on Waste by Processors of Livestock" is the headline to this story today in the NY Times. Some quotes:

The Environmental Protection Agency is close to reaching an agreement with some of the nation's largest animal processors that would lay the groundwork for the first federal emission standards for companies that process millions of pigs, cows and chickens every day.

The agency says the agreement, which would allow the companies to monitor the air quality of their own operations for two years, would produce information that is essential to develop standards for the industry, which generates huge amounts of animal waste. Toxic pollutants in the waste have been linked to a wide range of respiratory problems, especially in children. * * *

But environmental groups and former agency officials say the agreement is a bad deal for the public because while the companies are collecting data, they will be shielded from prosecution for violations of the Clean Air Act and other federal laws.

"The government has the authority to get this data without an amnesty agreement," said Barclay Rogers, a lawyer for the Sierra Club. "That's one of the things that makes this so objectionable - there is no reason for the government to cut a sweetheart deal."

Eric Schaeffer, who was an agency enforcement lawyer in the Clinton administration, said it could take as long as 10 years for the new standards to be put into effect, giving operators that much more time to elude enforcement action.

A related story appeared last month (5/17/04) in the Chicago Tribune, where it was headlined "Livestock Industry Finds Friends in EPA." Some quotes:
Internal documents show that the proposed program to monitor air pollution at livestock farms — an increasingly contentious topic in rural America — was largely conceived and heavily influenced by lobbyists for the livestock industry. The program is to be officially unveiled in coming months.

The papers also show a relationship between some EPA officials and industry lobbyists that was so close that one EPA official working on farm issues quit in frustration, and state and local government representatives walked out of negotiations.

"To save you some time, I've taken the liberty of drafting a few PowerPoint slides that you might use in that presentation," livestock industry lobbyist John Thorne wrote in a Feb. 15, 2003, e-mail to then-EPA attorney Timothy Jones. In an e-mail on Feb. 18, 2003, Thorne sent a second set of slides to be used by EPA Associate Administrator Karen Flournoy that concludes, "The public will benefit from all of this."

Other documents show that Jones incorporated some of Thorne's slides into his presentation, while Flournoy used essentially the whole thing. The e-mail messages are contained in hundreds of pages of documents obtained by the Sierra Club under the Freedom of Information Act and provided to the Chicago Tribune. * * *

Critics of the Bush administration contend that this is just the latest example of the Bush EPA becoming overly close with industry.

EPA officials do not dispute their close working relationship with the meat industry. But they maintain they have jointly created the first-ever program to monitor air pollution from farms, paid for by the livestock industry. "It's true that we've been talking to the industry," said Bob Kaplan, the EPA's director of special litigation and projects. "But we've also been talking to environmental groups and anyone else who wants to say anything to us."

Still, critics call the air emissions program a sweetheart deal that indefinitely delays cleanup of noxious emissions from large-scale farms and disregards neighbors who live downwind. Under the proposed deal, farms that sign up for a two-year monitoring program will be exempt from federal air pollution enforcement during that time. Past violations of federal air pollution laws also would be forgiven.

Industry officials hope the program also will shield participating farms from lawsuits brought by states and citizen groups. In exchange, the farms would contribute up to $3,500 to cover the cost of the program. Only about 30 farms would be selected for monitoring, documents show. * * *

To date, the EPA's focus when it comes to factory farms has mostly been water pollution. During the Clinton administration, the EPA pursued its first air pollution cases, against Premium Standard Farms in Missouri and Buckeye Egg in Ohio. In December 2001, a month after Premium Standard Farms was ordered to install a wastewater treatment facility, the meat industry came to the EPA to pitch the idea for a two-tiered "safe harbor" agreement.

Under that proposal, the EPA would have imposed a moratorium on enforcing the Clean Air Act and other air pollution laws as long as the large livestock farms signed up for a program to monitor emissions. Smaller farms would be exempt from regulation altogether.

EPA officials initially rejected the idea. "We felt that what they were trying to do was keep us from enforcing the law," said Sylvia Lowrance, who at the time was the deputy administrator for enforcement.

But Lowrance said the tone in EPA enforcement changed in the course the Bush administration took toward not supporting enforcement of environmental laws. Lowrance said she was told that her office could not pursue any more air pollution cases against farms unless senior political appointees in the EPA approved it. "That's unprecedented in EPA," said Lowrance, who left the agency in 2002.

Posted by Marcia Oddi at 03:36 PM

Indiana Decisions - Two Supreme Court opinions posted today

Sterling Riggs v. State of Indiana (6/3/04 IndSCt) [Trial Procedure]
Boehm, Justice

The removal of a juror after deliberations have begun requires a record establishing that the deliberations of the other jurors were not prejudiced by the removal and that cause existed for removal without depriving the defendant of his right to a jury trial. In this case a juror was removed without establishing the need to do so, and without taking precautions to prevent the rest of the jury from being improperly influenced. We remand this case for a new trial. * * *

The Court of Appeals, in an unpublished memorandum decision, affirmed the convictions for murder and criminal deviate conduct but reduced the latter to a Class B felony. Riggs seeks transfer.

Riggs contends that: 1) the trial court erred when it replaced a sitting juror, 2) the evidence is insufficient to support the murder conviction, 3) the evidence is insufficient to support the criminal deviate conduct conviction, 4) the convictions violate Indiana’s Double Jeopardy Clause, and 5) a sentence of sixty-five years for a murder committed in 1985 is erroneous. We now grant transfer and summarily affirm the Court of Appeals as to issues 2, 3, 4, and 5. Ind. Appellate Rule 58(A)(2). * * *

Once deliberations begin, discharge of a juror is warranted only in the most extreme situations where it can be shown that the removal of the juror is necessary for the integrity of the process, does not prejudice the deliberations of the rest of the panel, and does not impair the parties right to a trial by jury. Indeed, some jurisdictions hold that a mistrial is required if discharge occurs after deliberations begin. * * *

Here the actions leading to the dismissal arose from the deliberations, and the record does not establish that Wallace’s conduct was improperly influencing the rest of the panel. A failure to agree, however unreasonable, is a ground for mistrial, not removal of the obstacle to unanimity. * * *

Removal should be accompanied by an instruction that removal in no way reflected approval or disapproval of the views expressed by the juror.

Conclusion. In sum, the record does not establish grounds for replacement of Wallace. There was no interview of Wallace regarding the alleged threats, and no interview of other jurors to establish fear of violence. In addition, no steps were taken to minimize the effect of removal on remaining jurors. For both of these reasons the judgment of the trial court is vacated and this case is remanded for a new trial.

Shepard, C.J., and Dickson, Sullivan and Rucker, JJ., concur.

Ben Endres v. Indiana State Police (6/2/04 IndSCt)
Per Curiam
Indiana State Trooper Ben Endres (“Endres”) refused to accept an assignment as a gaming agent at a riverboat casino, asserting that the assignment would conflict with his religious convictions. The Indiana State Police ("State Police") then terminated his employment, and the Indiana State Police Board (“Police Board”) upheld the termination.
Re the Court of Appeals conclusion that Endris' employment termination did not violate his State constitutional right to religious freedom, the Court notes that "there is nothing in the materials submitted by either party to indicate that Endres offered any legal argument in support of his State constitutional claim until he filed his motion to correct error in the trial court." The Court concludes:
We find that the mere listing of a contention in a party’s complaint, with no further attempt to press the contention in the trial court, is insufficient effort to preserve the matter for appellate review. At a minimum, a party must show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal. The policy reasons behind this requirement—preservation of judicial resources, opportunity for full development of the record, utilization of trial court fact-finding expertise, and assurance of a claim being tested by the adversary process—apply with particular force where, as here, the claim is a constitutional one. ... We therefore decline to address this issue because the record and arguments have not been sufficiently developed for us to decide this important issue of Indiana constitutional law. See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000). We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN, BOEHM, AND RUCKER, JJ., concur.
[More] Here is the Indianapolis Star coverage of the ruling. A quote:
Ben Endres, a state trooper fired in 2000 for refusing to patrol a riverboat casino for religious reasons, lost his legal fight to regain his job with the Indiana State Police, the Indiana Supreme Court ruled in an opinion issued today. The high court unanimously ruled that Endres, a Baptist, had raised a valid constitutional question but had failed to argue it forcefully enough at the trial level, leaving the Supreme Court little to review and rule on.

Posted by Marcia Oddi at 01:52 PM

Indiana Decisions - Four Court of Appeals decisions posted today

Fraternal Order of Police Lodge 73, et al. v. City of Evansville, Indiana & the Public Employees Retirement Fund (6/3/04 IndCtApp) [Statutory Interpretation]
ROBB. Judge

The Fraternal Order of Police (“FOP”) appeals the trial court’s grant of the City of Evansville’s (“the City”) motion for summary judgment. We reverse. * * *

In 1999, the Retirees and the FOP sued the City and the Indiana Public Employees Retirement Fund to recover additional retirement benefits. More specifically, the Retirees and the FOP argue that the City incorrectly calculated their police pension benefits because the City did not base the pension benefits upon the salary of a first-class patrolman with at least twenty years of service who receives corporal pay. The City subsequently moved for summary judgment. After oral arguments on the motion, the trial court granted the City’s motion for summary judgment after concluding that corporal pay is an incentive pay or bonus and should not be considered as “salary.” * * *

Furthermore, corporal pay is not an incentive pay or bonus. The reason first class patrolmen in the Criminal Investigation division receive corporal pay is because they perform the same duties and share the same responsibilities as corporals in that division. The “equal pay for equal work” provision in the CBA required that these first class patrolmen be compensated for their duties and responsibilities. Therefore, corporal pay is not an incentive given to “encourage” conduct, but rather is an adjustment mandated by the “equal pay for equal work” provision in the CBA.

Conclusion. Because the City should have calculated the police pension benefits based upon the salary of a first class patrolman receiving corporal pay, we reverse the trial court’s grant of the City’s motion for summary judgment and remand this cause for further proceedings consistent with this opinion. Reversed and remanded.
SHARPNACK, J., and DARDEN, J., concur.

State of Indiana v. Theodore L. Allen (6/2/04 IndCtApp) [Juvenile Law]
HOFFMAN, Senior Judge
Plaintiff-Appellant State of Indiana (“the State”) appeals from the trial court’s order granting Defendant-Appellee Theodore L. Allen’s (“Defendant”) motion to dismiss the notice of probation violation. * * *

In the present case, Defendant never received a written copy of the conditions of his probation prior to his alleged violation of probation. Although the oral advisement of the conditions of probation is fairly specific, there is no evidence in the record showing Defendant’s acknowledgement and understanding of the conditions of his probation. The trial judge pro tempore announced that the oral advisement was the order of the court and then turned to the issue of when Defendant could report for work release. The judge did not ask Defendant if he acknowledged and understood the conditions. For the error to be harmless, as the State suggests, the record would need to indicate such. * * * The trial court did not err by ordering the dismissal of the notice of probation violation. Affirmed.
NAJAM, J., and DARDEN, J., concur.

J.H. v. State of Indiana (6/3/04 IndCtApp) [Juvenile Law]
Baker, Judge
The dispositive issue here is whether, as the State argues, the appeal must be dismissed because J.H. was obligated to file a motion for relief from judgment in accordance with Indiana Trial Rule 60(B). As our supreme court observed in Tumulty v. State, “[o]ne consequence of pleading guilty is restriction of the ability to challenge the conviction on direct appeal.” So too, in juvenile cases, our supreme court has determined that a defendant may not appeal a delinquency adjudication following his admission to the facts of the offense. ... While post-conviction remedies are not available to juveniles, ..., the appropriate remedy for relief that a juvenile defendant must seek is through the filing of a Trial Rule 60 motion. ... Inasmuch as J.H. is attacking the validity of his admission to the offense and he has failed to file a motion pursuant to Trial Rule 60, we are compelled to dimiss this appeal. Thus, we remand this cause to the trial court for the purpose of permitting J.H. to file therein a motion for relief from judgment. Appeal dismissed.
FRIEDLANDER, J., concurs.
BAILEY, J., concurs with opinion:

I concur with the majority’s holding that, because seventeen-year-old J.H. admitted to committing the offense of driving a vehicle without a license, he may only challenge his adjudication of delinquency in a subsequent motion for relief from judgment pursuant to Indiana Trial Rule 60. ... However, I write separately to express my concern that the Marion Superior court’s jurisdiction and subsequent adjudication of J.H. as a juvenile delinquent, rather than an adult offender, may be in contravention of Article I, Section 23 of the Indiana Constitution. * * *

Because the issue of whether Indiana Code Section 31-30-1-8 violates Article I, Section 23 of the Indiana Constitution is not squarely before us today, and because this Court does not issue advisory opinions on constitutional issues, I decline to express an opinion on the constitutionality of the statutes at issue.

However, Indiana Code Sections 31-30-1-8 and 33-5-29.5-4 may not survive constitutional scrutiny because they give Marion and Lake counties the authority to adjudicate certain misdemeanor traffic offenders as juveniles, rather than to try them as adult offenders. As such, these statutes are juxtaposed to Indiana Code Section 31-30-1-2, which exposes children—sixteen years of age or older—in the other ninety Indiana counties to criminal liability for commission of the same misdemeanor traffic offenses. Thus, this constitutional issue is still viable for debate inasmuch as the county wherein a juvenile commits the misdemeanor traffic offense may not be rationally related to the ultimate disposition for that offense.
For these reasons, I concur and write separately.

William Hays v. Paul Harmon (6/3/04 IndCtApp) [Estates & Trusts]
VAIDIK, Judge
Because the trust provision in Rains’ will evinced a charitable purpose and was sufficiently definite to ascertain with reasonable certainty the six elements of a valid trust pursuant to Indiana Code § 30-4-2-1(b), the trust provision created a valid charitable trust. We affirm the circuit court’s grant of partial summary judgments for the Estate, finding that Rains had testamentary capacity at the time he executed the will that gave life to a valid charitable trust. Affirmed.
SHARPNACK, J., and MATHIAS, J., concur.

Posted by Marcia Oddi at 01:51 PM

Indiana Decisions - Three 7th Circuit Opinions Posted

ATC VANCOM CA v. NLRB (NLRB)

LARIMER, THOMAS v. INT'L BUSINESS MACHINES (ND Ill.) In this decision written by Judge Posner the panel affirms the lower court's grant of summary judgment for the defendant. Plaintiff was the parent of premature twins born less than a year after he was hired by IBM. A quote from the opinion:

They were hospitalized for almost two months at a total expense of almost $200,000, all of which IBM’s employee health plan paid for. By the close of discovery in January 2003 the two children seemed to be healthy and normal, but there is some probability (how great a one is unknown) that they will develop serious physical or mental handicaps as they grow older. Larimer was fired in August of 2001, shortly after the children came home from the hospital. His principal claim is that IBM violated the Americans with Disabilities Act, by firing him because his daughters are disabled. Are they? They seem fine at present, and so the question, left open in Goldman v. Standard Ins. Co., 341 F.3d 1023, 1026 and n. 2 (9th Cir. 2003), and not elsewhere answered definitively, is whether a possible, or even probable, future disability can ever be a disability that triggers the protections of the Act.
MATAYA, RANDALL K. v. KINGSTON, PHILLIP A. (ED Wis.) Another Posner opinion, here petitioner-appellant claimed that he had been convicted in violation of
the rule of Brady v. Maryland, 373 U.S. 83 (1963), which requires the prosecution to turn over to the defense evidence in its possession that would be helpful to the defendant, including evidence useful only for impeaching a prosecution witness. United States v. Bagley, 473 U.S. 667, 676-77 (1985)." An interesting point made by Judge Posner:
But what is unusual about this case, and decisive against the Brady claim, is that Hertel’s evidence was self-validating, which makes his motivation to fabricate irrelevant. The concept of self-authenticating evidence is familiar in the law of documentary evidence, Fed. R. Evid. 901, 902; Wis. Stat. §§ 909.01, .02; cf. Fed. R. Evid. 803(6), (8); United States v. Sutton, 337 F.3d 792, 797-98 (7th Cir. 2003), though we cannot find any previous case that involved oral evidence.

Posted by Marcia Oddi at 01:49 PM

Indiana Law - More on Making License Branches the Responsibilty of the Governor

Updating our entry from Tuesday (June 1) (access it here or simply scroll down) is this editorial today in the Indianapolis Star. Some quotes:

Created in the 1980s after the old practice of letting the political parties run the license branches was abolished, the commission oversees the 170 branches but is technically separate from the Bureau of Motor Vehicles itself. The latter is a state agency answerable to the governor, whereas the commission is its own boss, though its five members are appointed by the governor.

The commission meets infrequently and can hardly expect to stay on top of 1,600 employees making 10 million transactions a year. DePrez insists it can handle any of the changes that cry out to be made, but the part-time nature of the body makes that a tall order to say the least.

The argument that keeping the commission apart from the BMV insulates the branches from political influence may have had a valid ring back when party fiefdom was a fresh memory, but two decades later it makes no more sense than to say the Department of Transportation or Environmental Management shouldn't fall under the governor's control.

Posted by Marcia Oddi at 09:02 AM

June 02, 2004

Indiana Decisions - Four Court of Appeals Opinions Posted Today

Forty-One Associates, LLC v. Bluefield Associates (6/1/04 IndCtApp) [Real Estate; Banking]
Baker, Judge

We find that the trial court did not err in finding that Forty-One, as the fee simple owner of the property, bears the risk of loss as to payment of the mortgage. Additionally, we find that the Assignment did not release Bluefield from liability but that the Agreement and the K-Mart lease did. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
Alicia Crabtree, et al. v. Jackie Crabtree (6/2/04 IndCtApp) [Insurance]
Bailey, Judge
Appellants raise two issues, which we reorder and restate as: Whether the trial court abused its discretion by dismissing Appellants’ claim for punitive damages; and Whether the trial court abused its discretion by denying their motion to correct error because Allstate’s subrogation rights should have been reduced by a pro rata share of the costs incurred in pursuing and obtaining a judgment against the tortfeasor, pursuant to Indiana Code Section 34-53-1-2. * * *

For the foregoing reasons, we reverse the trial court’s dismissal of Appellants’ claim for punitive damages and the trial court’s order denying Appellants’ motion to correct error. We remand to the trial court for proceedings consistent with this opinion. Reversed and remanded with instructions.
RILEY, J., and DARDEN, J., concur.

Douglas Downing, et al. v. G. Douglass Owens (6/2/04 IndCtApp) [Real Estate; Property]
Bailey, Judge
Appellants-Defendants Douglas and Mary Downing and Connie and Jeff McKay, individually and d/b/a Grandma’s Treasures (collectively, “Appellants”) appeal the trial court’s grant of a prescriptive easement to Appellees-Plaintiffs G. Douglass Owens, Mahoney, Heineman and Company, P.C. (individually, “Company”), Dale Judy d/b/a Donnie’s Old Oak Tavern Corporation, Morris and Edith McCurty, and John Doe, business invitee of businesses located on east side of 100 Block of Pendleton Avenue and north side of East 100 Block of North Pendleton Avenue (collectively, “Appellees”). We reverse.

Issue. Appellants raise one issue, which we restate as whether the trial court erred by granting a prescriptive easement to Appellees because Appellees failed to establish that their use of the property at issue was actual, hostile, open, notorious, continuous, uninterrupted, and adverse for a period of twenty years under a claim of right or with Appellants’ knowledge and acquiescence. * * *

For the foregoing reasons [Ed. - which involve a number of differing fact situations, and include over a dozen factual footnotes] we reverse the trial court’s grant of a prescriptive easement to Appellees. Reversed.
RILEY, J., and DARDEN, J., concur.

Mark Maser, et al. v. Hance Hicks (6/2/04 IndCtApp) [Family Law]
Sharpnack, Judge
Mark Maser (“Father”) and his daughter, K.M., appeal from the trial court’s order granting grandparent visitation to K.M.’s maternal step-grandfather, Hance Hicks (“Step-Grandfather”). Father raises three issues, one of which we find dispositive and restate as, whether the trial court’s order granting Step-Grandfather visitation with K.M. is clearly erroneous because Step-Grandfather lacked standing as a “grandparent” under the Grandparent Visitation Act to petition for grandparent visitation rights. We reverse and remand. * * *

For purposes of the Grandparent Visitation Act, Ind. Code § 31-9-2-77 (1998) defines “maternal or paternal grandparent” as including: “(1) the adoptive parent of the child’s parent; (2) the parent of the child’s adoptive parent; and (3) the parent of the child’s parent.” Here, Step-Grandfather is the step-father of K.M.’s mother; thus, he does not fit into any of the categories in the statutory definition of a grandparent entitled to petition for grandparent visitation rights. The Grandparent Visitation Act applies only to requests for visitation made by grandparents. We decline to expand the plain meaning of the statute by including step-grandparents as “grandparents” for purposes of the application of the Grandparent Visitation Act. Because he is not a “grandparent” as defined by I.C. § 31-9-2-77, Step-Grandfather did not have standing under the Grandparent Visitation Act to petition for grandparent visitation rights with K.M. Therefore, the trial court’s order granting Step-Grandfather grandparent visitation rights with K.M. is clearly erroneous. See, e.g., Hammons [v. Jenkins-Griffith, 764 N.E.2d 303 (Ind. Ct. App. 2002)] at 305-306 (holding that great-grandparents were not entitled to petition for grandparent visitation rights because Grandparent Visitation Act applied only to “grandparents”).

For the forgoing reasons, we reverse the judgment of the trial court awarding grandparent visitation rights to Step-Grandfather. Reversed and remanded.
DARDEN, J. and ROBB, J. concur

[More] The 6/3/04 Fort Wayne Journal Gazette has this story, which begins: "The Indiana Court of Appeals ruled Wednesday in a Noble County case that step-grandparents cannot sue for visitation rights to their grandchildren."

[Update 6/4/04] This story today in the Indianapolis Star is titled "Stepgrandparents not entitled to visitation: Judges can't issue visitation orders for stepgrandkids, state appeals panel rules."

Posted by Marcia Oddi at 04:18 PM

Indiana Decisions - One 7th Circuit Decision Today

USA v. DANIELS, ADOM L. (ND Ind., Chief Judge Miller) - Here, in a Per Curiam decision, the panel of COFFEY, MANION, and KANN affirmed the district court's ruling denying Daniels' contention that "the § 924(c) conviction cannot be sustained on an aiding-and-abetting theory."

Posted by Marcia Oddi at 03:32 PM

Law - Significant Kentucky Court of Appeals Black Lung Evidence Ruling

According to this story today in the Louisville Courier-Journal, the Kentucky Court of Appeals has ruled that "Kentucky's black lung law unfairly limits the amount of X-ray evidence a coal miner can use in trying to prove a case for workers' compensation." More:

The ruling, issued Friday, was made by the entire 14-member court. The case pitted Gordon Bartrum against the Workers' Compensation Board, an administrative law judge and Bartrum's employer, Hunter Excavating.

At issue was a section of the law that allows a black-lung claimant and the claimant's employer to each submit a single lung X-ray and physician's report. If findings differ, the X-rays are submitted to three randomly selected experts known as "B" readers for a consensus ruling that is legally presumed correct.

Bartrum, who lost his claim, had submitted three X-rays, but a law judge permitted the use of just one. On appeal, Bartrum said the restriction violated his constitutional right to legal due process. The appeals court agreed.

Writing for the majority, Judge William Knopf of Louisville said limits imposed by the General Assembly and the board on the number of X-rays and readings admissible to rebut the "B" readers "violates the parties' constitutional right to a fair hearing."

In a separate opinion, Judge Wilfrid Schroder said the problem was not the law but administrative rules governing these cases. The rule on filing X-ray evidence "exceeds its statutory authority," Schroder said.

The appeals court reversed the ruling of the Workers' Compensation Board and sent Bartrum's case back for further proceedings.

Unfortunately, the 2004 opinions of the Kentucky Court of Appeals do not appear to be available online.

Posted by Marcia Oddi at 08:24 AM

Indiana Law - More on Tax Postcards

Following up on the Indiana Law Blog entry from May 28 titled "Tax postcard confuses homeowners" that quoted from a story in the Johnson County Daily Journal that began: "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." is this story today in the Fort Wayne Journal Gazette headlined "Savings on tax bill may be skewed." Some quotes from the story:

When Allen County residents get their tax bills in the fall, it will likely contain a paragraph giving the Indiana General Assembly credit for reducing the average homeowners' tax bill by 49 percent.
But Rep. Jeff Espich, R-Uniondale, argued Tuesday that the number is greatly inflated because of poor methodology and plain bad math by the Indiana Department of Local Government Finance. * * *

"We need to be careful to make sure when we give information of this nature - particularly because the pot is still boiling - that we are honest with (taxpayers)," Espich said. "I don't want my Wells County constituents thinking I brought home to them a 52 percent reduction because frankly they're not fools, and they're not going to believe it."

[Update 6/3/04] See also this story today in the Indianapolis Star. Some quotes:
"Many of us thought that was a silly requirement to begin with," Espich said of the Local Government Finance study. "We didn't need to be patting ourselves on the back." Nothing more would have come of it, he said, if the department's savings estimates hadn't been so far off target.

The Department of Local Government Finance's estimates have been sent to nearly 40 counties and at least 17 have mailed the notices along with this year's tax bills.

But Espich sought to have the savings estimates recomputed. "This methodology is a joke," Espich said. "It could have been done by a junior high student."

But Dan Mathis, the department's director of legislative relations, said the estimates wouldn't be changed. "We stand by our calculations and feel we did the best we could with what we had."

[Update 3/4/04] "Lawmakers still disagree over impact of tax restructuring" is the headline to this story today in the Muncie StarPress.

Posted by Marcia Oddi at 08:03 AM

Indiana Decisions - Recent Indiana Supreme Court ruling "has child welfare officials scrambling"

According to a story today in the Indianapolis Star:

An Indiana Supreme Court ruling requiring judges to determine whether a child is competent before continuing with Juvenile Court proceedings has child welfare officials scrambling. If children are determined to be incapable of understanding and assisting in their defense, they will have to be treated at county expense until they can understand.

The treatment, called "restoration," involves teaching children, at their level, to understand the court proceedings and how to help their attorneys. Some children may never reach that level, and officials also have to determine what should happen to them. Officials believe hundreds of children statewide could fall in this category, depending on how broadly the court decision is interpreted. * * *

The Supreme Court decision, rendered two weeks ago, states a juvenile must have the same right as an adult to be deemed competent enough to understand charges before the case goes any further in court. Many officials in the juvenile justice system are just now learning of the potential ramifications.

The decision arose from appeals in four cases that originated in Marion County Juvenile Court. In each case, children from the ages of 10 to 13 were charged with crimes that would be felonies if committed by adults. The charges included sexual battery, child molesting, arson and burglary. In each case, the child accused in the crime was mentally ill and mentally retarded. One child was diagnosed with autism. Payne ordered psychiatric evaluations, and the children were found incompetent to undergo proceedings. They were turned over to the state Department of Mental Health.

However, according to state mental health officials who challenged Judge Payne's ruling, there are no adequate state-owned facilities for resotring competency in children, and "Competency may never be restored in some children." More:
When the Juvenile Court attempted to send the children to state facilities, the Family and Social Services Administration's Division of Mental Health filed a motion to intervene, asking the judge to reverse the orders.

The Juvenile Court's decision was upheld by the Court of Appeals. But the state Supreme Court ruled that the Juvenile Court has the responsibility of seeing that the child is restored to competency if possible.

State institutional treatment could cost up to $600 a day, officials said, which is motivating them to find at-home or lower cost placement.

The decision is In the Matter of K.G., D.G. D.C.B. and J.J.S. (5/20/04 IndSCt) [Statutory Construction; Juvenile Law], reported here in the Indiana Law Blog. Justice Rucker: "We hold that although juveniles alleged to be delinquent have the constitutional right to have their competency determined before they are subjected to delinquency proceedings, the adult competency statute is not applicable in reaching that determination."

Posted by Marcia Oddi at 07:49 AM

Law - Brief update on interstate wine shipment bans

Two good interstate wine shipment links today from this item in SCOTUSblog.

First, this site, self-described as "the home page for documents relating to the litigation concerning the constitutionality of state laws prohibiting the direct shipment of wine to consumers. It is maintained by James A. Tanford, one of the attorneys involved in the litigation." As noted in earlier Indiana Law Blog entries (check here for the most recent, with links to the earlier references), Professor Tanford teaches at IU Law-Bloomington. (BTW, the Professor's site was first mentioned by the Indiana Law Blog in this Aug. 29, 2003 entry.)

Second, this article from the Colorado GJ Daily Sentinel.

Posted by Marcia Oddi at 07:10 AM

June 01, 2004

Law - Stanford Law School Supreme Court Litigation Clinic

A great article today by Tony Mauro at Law.com may make you wish you were back in law school. Some quotes:

A brand-new player on the U.S. Supreme Court litigation scene filed its first certiorari petition Feb. 11 of this year, less than a month after it opened its doors. Six weeks later, the Supreme Court granted review in the case, while the new kid on the block was busy churning out briefs in a half-dozen other cases for Supreme Court review.

Even more remarkable is that not a single hour of the time involved got billed to clients.

The name of the new organization is the Stanford Law School Supreme Court Litigation Clinic, and it is the brainchild of Tommy Goldstein of D.C.'s Goldstein & Howe. Five years ago Goldstein kicked over the ossified applecart of Supreme Court practice by creating a one-man practice devoted exclusively to high court litigation. He aggressively trolled for clients by scrutinizing circuit court conflicts, and undercut the big firms on fees. Eleven oral arguments and dozens of briefs later, Goldstein, 33, has earned the grudging respect of his elders and is billing more than $1 million a year -- still undercutting his top competitors, though not by as much.

Read the whole article; you won't be sorry. And here is the link to the Stanford Law School Supreme Court Litigation Clinic itself.

Posted by Marcia Oddi at 05:05 PM

Indiana Law - Make License Branches the Responsibilty of the Governor?

I carefully read this story today in the Indianapolis Star, headlined "Oversight panel for BMV faces fight for its life: Allegations renew talks of putting office of governor in charge of license branches."

I then re-read the Indiana Law Blog entry of Feb. 20, 2004, which examines the BMV Commission and its responsibilities - under the law, it is a body corporate and politic, separate from the state. I recomend the entire 2/20/04 entry to interested readers.

As reported in today's Star story:

The five-member Bureau of Motor Vehicles Commission oversees license branch operations and its $70.9 million budget. But nobody controls the commission -- not the governor, the General Assembly or voters. * * *

The BMV Commission runs a sprawling agency of 170 license branches that handle more than 10 million transactions a year. The commission, whose members serve four-year terms, is charged with overseeing the license branches and their 1,600 employees.

The commission and the license branches are technically a separate entity from the Bureau of Motor Vehicles, a state government agency under the control of the governor's office that employs an administrative staff of about 400.

The governor appoints bipartisan members to the commission, but they are not accountable to the governor or the General Assembly, said Dan Henkel, spokesman for the BMV. It is not clear whether the governor can legally remove a member from the commission. The law does not address that issue.

Henkel maintains the commission was created to have some independence from the governor's office after years of political patronage in the agency. Some officials contend the state should eliminate the commission and make the governor's office directly responsible for the license branches.

Commission members are not accountable for their decisions, said state Rep. Ron Liggett, D-Redkey, who sat on a committee to reform the BMV in 2000. "There is no oversight," he said.

As I noted in a May 17, 2004 Indiana Law Blog entry about the new Indiana Economic Development Commission, both the BMVC and now the IEDC were established to remove their functions from the direct control of the Governor, and instead place them under the control of an "authority" insulated from the voters by layers of bureaucracy. To my mind, and as I wrote last month, that is not a good thing:
As the law now stands, economic develpment is to be moved under the control of the IEDC, a quasi-governmental agency which is chaired by the lieutenant governor, and whose hold-over membership until at least July 1, 2005 consists of the appointees of the general assembly and the university presidents. The governor does not even have a seat on the board.

Although the newly elected lieutenant governor is also to head the department of commerce, a state agency, as of July 1, 2005 much of the agency will by law be transfered, lock, stock and barrel, outside of state government and to the new IEDC. Employees of the IEDC will NOT be state employees (not unlike the bureau of motor vehicles license branch system setup).

Posted by Marcia Oddi at 04:08 PM

Indiana Decisions - Court of Appeals Posts Two; Tax Court Posts Five

Paul Mast v. State of Indiana (6/1/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
Baker, Judge

Appellant-defendant Paul M. Mast brings this interlocutory appeal challenging the trial court’s denial of his motion to suppress. Specifically, Mast argues that the police conducted an improper warrantless search of a dumpster containing garbage that had been located on his property, that the State improperly solicited and utilized the assistance of a private agent to effect the search, and that the probable cause affidavit for a search warrant that was ultimately issued was “deficient in its requirement for particularization of elements as to specific individuals or specific properties.” Concluding that the trial court properly denied Mast’s motion to suppress, we affirm.
The court here equated this search with a "garbage on the curb" situation, even though the dumpster was on Mast's property:
Thus, the garbage service employee’s entry onto the property was made in accordance with the contracted-for service.
Similarly, we find Officer McFarland’s presence in the cab of the dump truck as it backed onto the property to the dumpster of no consequence. As indicated in the FACTS, Officer McFarland never left the truck, and he never set foot onto Mast’s property. Rather, the record shows that Officer McFarland accompanied the dump truck driver on several scheduled stops, including the pick up from the dumpster that was on the Masts’ property. Again, as the Moran, court observed, the police officer in that case did nothing that the collection agency was not authorized to do. We have the same circumstances here, and, as a result, Mast’s argument that Officer McFarland’s presence in the truck constituted a trespass onto the property in violation of Article I, Section 11 of the Indiana Constitution must fail. Thus, the trial court did not err in denying Mast’s motion to suppress on this basis.
The court also found that there was probable cause for the search warrant. "The judgment of the trial court is affirmed. FRIEDLANDER, J., and BAILEY, J., concur."

[Note: If the facts sound familiar, see Litchfield v. State, discussed in this entry from mid-May.]

Forty-One Associates, LLC v. Bluefield Associates [The case was not correctly linked and hence is unavailable to the reader]

Consolidated Systems, Inc. v. Department of Local Government Finance (5/28/04 IndTaxCt - Not for Publication) [Enterprise Zone Inventory Credit]

Mitchel & Scott Machine Co., Inc. v. Department of Local Government Finance (5/28/04 IndTaxCt - Not for Publication) [Real Property Assessment]

"The issue before this Court is whether Mitchel & Scott’s improvement is entitled to additional obsolescence depreciation."

Quality Stores v. Department of Local Government Finance (5/28/04 IndTaxCt - Not for Publication) [Real Property Assessment]

Indianapolis Racquet Club, Inc. v. Washington Township (Marion County) Assessor (5/28/04 IndTaxCt - Not for Publication) [Real Property Assessment]

Indianapolis Racquet Club, Inc. v. Washington Township (Marion County) Assessor (5/28/04 IndTaxCt - Not for Publication) [Real Property Assessment]

Posted by Marcia Oddi at 02:02 PM

Indiana Decisions - One 7th Circuit Decision Posted

CRUE, CYDNEY A. v. AIKEN, MICHAEL (CD Ill.) In a 2-1 decision, the panel, in an opinion written by Judge Evans and joined by Judge Evans, affirms the district court. The document is 36-pages long; Judge Manion's dissent begins on page 21. Judge Evans opinion begins:

This case, raising First Amendment issues involving the University of Illinois, concerns “Chief Illiniwek,” who, depending on one’s point of view, is either a mascot or a symbol of the university. More on this distinction later but first, before getting to the issue at hand, we detour for a brief look at college nicknames and their embodiment as mascots.

In the Seventh Circuit, some large schools—Wisconsin (Badgers), Purdue (Boilermakers), Indiana (Hoosiers), Notre Dame (The Fighting Irish), DePaul (the Blue Demons), the University of Evansville (Purple Aces), and Southern Illinois (Salukis)—have nicknames that would make any list of ones that are pretty cool. And small schools in this circuit are no slouches in the cool nickname department.

One would have a hard time beating the Hustlin’ Quakers of Earlham College (Richmond, Indiana), the Little Giants of Wabash College (Crawfordsville, Indiana), the Mastodons of Indiana University-Purdue University-Fort Wayne (Fort Wayne, Indiana), and the Scarlet Hawks of the Illinois Institute of Technology.

But most schools have mundane nicknames. How can one feel unique when your school’s nickname is Tigers (43 different colleges or universities),1 Bulldogs (40 schools), Wildcats (33), Lions (32), Pioneers (31), Panthers or Cougars (30 each), Crusaders (28), or Knights (25)? Or how about Eagles (56 schools)? The mascots for these schools, who we assume do their best to fire up the home crowd, are pretty generic—and pretty boring.

Some schools adorn their nicknames with adjectives— like “Golden,” for instance. Thus, we see Golden Bears, Golden Bobcats, Golden Buffaloes, Golden Bulls, Golden Eagles (15 of them alone!), Golden Flashes, Golden Flyers, Golden Gophers, Golden Griffins, Golden Grizzlies, Golden Gusties, Golden Hurricanes, Golden Knights, Golden Lions, Golden Panthers, Golden Rams, Golden Seals, Golden Suns, Golden Tigers, and Golden Tornados cheering on their teams.

All this makes it quite obvious that, when considering college nicknames, one must kiss a lot of frogs to get a prince. But there are a few princes. For major universities, one would be hard pressed to beat gems like The Crimson Tide (Alabama), Razorbacks (Arkansas), Billikens (St. Louis), Horned Frogs (TCU), and Tarheels (North Carolina).

But as we see it, some small schools take the cake when it comes to nickname ingenuity. Can anyone top the Anteaters of the University of California-Irvine; the Hardrockers of the South Dakota School of Mines and Technology in Rapid City; the Humpback Whales of the University of Alaska-Southeast; the Judges (we are particularly partial to this one) of Brandeis University; the Poets of Whittier College; the Stormy Petrels of Oglethorpe University in Atlanta; the Zips of the University of Akron; or the Vixens (will this nickname be changed if the school goes coed?) of Sweet Briar College in Virginia? As wonderful as all these are, however, we give the best college nickname nod to the University of California-Santa Cruz. Imagine the fear in the hearts of opponents who travel there to face the imaginatively named “Banana Slugs”?

From this brief overview of school nicknames, we can see that they cover a lot of territory, from the very clever to the rather unimaginative. But one thing is fairly clear— although most are not at all controversial, some are. Even the Banana Slug was born out of controversy. For many years, a banana slug (ariolomax dolichophalus to the work of science) was only the unofficial mascot at UC-Santa Cruz. In 1981, the chancellor named the “Sea Lion” as the school’s official mascot. But some students would have none of that. Arguing that the slug represented some of the strongest elements of the campus, like flexibility and nonagressiveness, the students pushed for and funded a referendum which resulted in a landslide win for the Banana Slug over the Sea Lion. And so it became the official mascot.

Not all mascot controversies are “fought” out as simply as was the dispute over the Banana Slug. Which brings us to the University of Illinois where its nickname is the “Fighting Illini,” a reference to a loose confederation of Algonquin Indian Tribes that inhabited the upper Mississippi Valley area when French explorers first journeyed there from Canada in the early seventeenth century. The university’s mascot, to mirror its nickname—or to some its symbol—is “Chief Illiniwek.” Chief Illiniwek is controversial. And the controversy remains unresolved today.

Posted by Marcia Oddi at 01:00 PM

Environment - Is there a better way for locating landfills in Indiana?

That is the question asked in an editorial today in the Munster Times. The lead:

In Indiana, landfills go through a lengthy review process. Typically, the sites are not determined by the county Board of Zoning Appeals or the Indiana Department of Environmental Management, both of which review proposals, but by the courts. Local courts have become the first step in a long, legal process.
Mini-wetlands? In another story today, the Times writes about the use of "raingardens" to filter stormwater run-off. A quote:
[JF New project engineer Brian Neilson] said a rain garden can be very effective in newly developed communities. Use of infiltration plants makes it possible to set aside a small area for handling stormwater. In a 100-acre development, for example, only 1/10 of an acre would be sufficient to filter stormwater with a rain garden.
Watershed Conferences. See also this story about two upcoming national watershed conferences to be held in Valparaiso in June.

Posted by Marcia Oddi at 10:24 AM