The Indiana Law Blog

Indiana Decisions - Overview of Blakely in the 7th Circuit and in Indiana State Courts, Part II

Part II. Blakely in Indiana State Courts

With all the focus on the impact of Blakely on the federal sentencing guidelines, and on the federal district court and appeals court activites, it is easy to forget that Blakely v. Washington was an appeal from a state court and involved state law.

The State of Washington has sentencing guidelines, similar the federal guidelines. Washington's SENTENCING REFORM ACT OF 1981 (Chapter 9.94A RCW) is available here.

To see the guideines in operation, I found it useful to read the following paragraphs from near the beginning of the U.S. Supreme Court's decision in conjunction with the provisions of the Washington Sentencing Reform Act cited. Although, as the Court notes in footnote 1, "parts of Washington's criminal code have been recodified and amended", it is not difficult to identify the referenced provisions:

The case then proceeded to sentencing. In Washington, second-degree kidnaping is a class B felony. § 9A.40.030(3). State law provides that "no person convicted of a [class B] felony shall be punished by confinement . . . exceeding . . . a term of ten years." § 9A.20.021(1)(b).

Other provisions of state law, however, further limit the range of sentences a judge may impose. Washington's Sentencing Reform Act specifies, for petitioner's offense of second-degree kidnaping with a firearm, a "standard range" of 49 to 53 months. See § 9.94A.320 (seriousness level V for second-degree kidnaping); App. 27 (offender score 2 based on § 9.94A.360); § 9.94A.310(1), box 2-V (standard range of 13-17 months); § 9.94A.310(3)(b) (36-month firearm enhancement).

A judge may impose a sentence above the standard range if he finds "substantial and compelling reasons justifying an exceptional sentence." § 9.94A.120(2). The Act lists aggravating factors that justify such a departure, which it recites to be illustrative rather than exhaustive. § 9.94A.390. Nevertheless, "[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense." * * *

Pursuant to the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months. After hearing Yolanda's description of the kidnaping, however, the judge rejected the State's recommendation and imposed an exceptional sentence of 90 months -- 37 months beyond the standard maximum. He justified the sentence on the ground that petitioner had acted with "deliberate cruelty," a statutorily enumerated ground for departure in domestic-violence cases. § 9.94A.390(2)(h)(iii) .

In short, Blakely pled guilty to the kidnapping of his estranged wife. The general penalty for second-degree kidnapping, a Class B felony, was up to 10 years. However, the presumptive sentence for the facts admitted in his plea was 49 to 53 months. The law in Washington State allows the trial judge to enhance this sentence. After making a judicial determination that Blakely had acted with deliberate cruelty, the judge added an additional 37 months to the statutory maximum of 53. Blakely appealed, "arguing that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence."

Presumptive sentencing is a compromise between legislatively mandated determinate and indeterminate sentences. It allows a judge to retain some sentencing discretion (subject to judicial review). The Washington case is an example of how the statute sets the sentencing range (up to 10 years for kidnapping) and the typical sentence for the facts admitted or found by the jury (here 49 to 53 months). At the sentencing stage, the Washington statute allowed the judge to modify the presumptive sentence by finding mitigating or aggravating circumstances.

However, the Supreme Court ruled that the facts supporting the judge's finding of "deliberate cruelty" were "neither admitted by petitioner nor found by a jury." In Apprendi v. New Jersey (2000) the Court had "concluded that the defendant's constitutional rights had been violated because the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding." Here the State argued "that there was no Apprendi violation because the relevant 'statutory maximum' is not 53 months, but the 10-year maximum for class B felonies." But the Court said no: "[T]he relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."

Indiana is not a sentencing guidelines state. A dozen or more states have formal sentencing guidelines akin to those of the State of Washington and the Federal Guidelines. Indiana does not fall into this category.

However, to choose a situation close to that in Washington State, Indiana's IC 35-42-3 applies to kidnapping and criminal confinment. IC 35-42-3-3(a) classifies the offense as a Class D felony. Subsection (b) provides that the offense is a Class B felony if it is: (A) committed while armed with a deadly weapon.

IC 35-50-2 concerns sentences for felonies, including murder. IC 35-50-2-1 defines "minimum sentence" as: (3) for a Class B felony, six years; and (5) for a Class D felony, one-half year.

IC 35-50-2-5, Class B Felony:

A person who commits a Class B felony shall be imprisoned for a fixed term of ten (10) years, with not more than ten (10) years added for aggravating circumstances or not more than four (4) years subtracted for mitigating circumstances; in addition, he may be fined not more than ten thousand dollars ($10,000).

IC 35-50-2-7(a), Class D Felony:

(a) A person who commits a Class D felony shall be imprisoned for a fixed term of one and one-half (1 1/2) years, with not more than one and one-half (1 1/2) years added for aggravating circumstances or not more than one (1) year subtracted for mitigating circumstances. In addition, he may be fined not more than ten thousand dollars ($10,000).

Finally, IC 35-38 is titled "Proceedings following dismissal, verdict, or finding." IC 35-38-1 deals with "Entry of judgment and sentencing." IC 35-38-1-7.1 deals with sentencing factors. Subsection (b) is the list of "aggravating factors."

Putting this all together, if Mr. Blakely pled guilty in Indiana to armed criminal confinement (IC 35-42-3-3-(b)), he would be pleading to a Class B felony. Under IC 35-50-2-5, a person who pleads guilty to, or is convicted of, a Class B felony shall be imprisoned for 10 years (the presumptive sentence), "with not more than 10 years added for aggravating circumstances or not more than 4 years subtracted for mitigating circumstances."

Arguably, although the format of the Indiana law differs from that of the Washington State law, the end result is the same -- at the sentencing stage each law allows a judge to modify the presumptive sentence by finding specified mitigating or aggravating circumstances. The U.S. Supreme Court in Blakely said that the Washington State law violated the defendant's "constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence."

What have the Indiana courts said? A brief look at what the Indiana courts have said since the U.S. Supreme Court's 2000 decision in Apprendi may indicate what to expect in the future.

In Aaron Rodriguez v. State (4/7/03 IndCtApp, trans. denied), Judge Riley, beginning on page 7, gives a review of the modern changes in sentencing in Indiana, noting that "In 1976, our General Assembly abolished jury sentencing by declaring that 'the court shall fix the penalty of and sentence a person convicted of an offense.'” The opinion then goes through the development of what is now IC 35-38-1-7.1, a "standard set of factors [that] was designed to bring uniformity to sentencing." The trial court's responsibility is summed up beginning on page 16:

When considering the appropriateness of the sentence for the crime committed, courts should initially focus upon the presumptive sentence. Hildebrandt v. State, 770 N.E.2d 355, 361 (Ind. Ct. App. 2002), trans. denied. Trial courts may then consider deviation from the presumptive sentence based upon a balancing of the factors which must be considered pursuant to I.C. § 35-38-1-7.1(a) together with any discretionary aggravating and mitigating factors found to exist. Hildebrandt, 770 N.E.2d at 361.

The presumptive sentence is meant to be the starting point for the trial court’s consideration of the sentence that is appropriate for the crime committed. See Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind. 2002). In the present case, Rodriguez pled guilty to the charge of operating a vehicle while intoxicated causing death, a Class C felony. The nature of the offense specifically takes into account that a death occurred as a result of driving while intoxicated. See I.C. § 9-30-5-5(a)(3). The presumptive sentence for a Class C felony is four years, with not more than four years added for aggravating circumstances, and not more than two years subtracted for mitigating circumstances. See I.C. § 35-50-2-6.

Note that there is no mention of Apprendi in this opinion.

In Leone v. State (10/22/03 IndSCt) Apprendi is mentioned on pages 10-11. In this case (as in more than 90% of criminal cases, including the defendants in both Blakely and Apprendi) there was no trial; Leone pled guilty. In the appeal, Chief Justice Shepard writes:

Leone contends that he was sentenced to life without parole under a facially and structurally unconstitutional statutory sentencing scheme, citing Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

In Apprendi, the U.S. Supreme Court held unconstitutional a statute that allowed trial courts to extend the traditional sentencing scheme when they involved hate crimes. See Apprendi, 530 U.S. at 468-97. The Court stated, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. In Ring, the Court applied Apprendi to capital cases, holding that the aggravating circumstances had to be determined by a jury. Ring, 536 U.S. at 609. Neither case, however, addresses its application when the defendant issues a guilty plea and waives his right to a jury trial, as the State properly argues. With a plea of guilty, Leone forfeits claimed entitlement to certain rights including the right to a jury trial. See Id. at 334-35; Mapp v. State, 770 N.E.2d 332, 334 n. 3 (Ind. 2002).

Neither Apprendi nor Ring suggests that a defendant is not entitled to waive his right to a jury trial. The trial court found that Leone’s guilty plea was made freely and voluntarily, and that a factual basis for the plea existed. The trial court, in fact, questioned Leone several times to ensure that he understood his rights and was fully aware that he waived those rights. We conclude that Leone’s sentence does not conflict with Apprendi or Ring.

[emphasis added]

Access Part I of this article, Overview of Blakely in the 7th Circuit Courts, here.

Environment - Wetlands: Rapanos litigation continues

In U.S. v. Rapanos (7/26/04), a panel of the 6th Circuit last week affirmed the district court's findings and conclusions that:

Rapanos had filled 22 of 28 acres of protected wetlands at the Salzburg site, 17 of 64 acres of protected wetlands at the Hines Road site, and 15 of 49 acres of protected wetlands at the Pine River site. The district court concluded that the government had established that 54 of the filled acres fit the three parameters for wetlands, i.e., vegetation, soils, and hydrology. In addition, the court found that the United States did not meet its burden regarding the existence of wetlands at the Freeland and Mapleton sites. The district court entered these findings and conclusions on March 22, 2000.

If "Rapanos" sounds familiar, it is because the U.S. Supreme Court in April denied three wetlands appeals, including Rapanos v. United States. See the Indiana Law Blog write-ups here and here. The latter entry quotes Linda Greenhouse of the NY Times stating: "John A. Rapanos, a Michigan landowner who acted without a permit to fill wetlands that were 20 miles from a navigable river, was criminally convicted and now faces a 10-month prison sentence."

That was the criminal proceeding. As explained in the 6th Circuit opinion, "Criminal charges were brought simultaneously with the instant civil action." I discovered in reading this week's opinion that counsel for appellants was: "David E. Dearing, Indianapolis, Indiana." We practiced at the same firm in the 90s. I gave David a call and learned that he is litigating several other significant wetlands cases.

Law - Michigan Supreme Court Strikes Down 1981 Poletown Decision

In a lengthly Indiana Law Blog entry from May 11, 2003, on the use of eminent domain for private development, there is discussion of the 1981 Poletown Neighborhood Council v. City of Detroit decision where: "The Michigan Supreme Court ruled that a community could be condemned to allow General Motors to build a factory, accepting the argument that it would revitalize the community." The entry also noted that "The Poletown decision is used in a number of Law & Economics courses. Here is one link to the decision." An illustrated history of Poletown can be found here, via the Detroit News.

Yesterday the Michigan Supreme Court overturned Poletown. As reported here in the Detroit Free Press:

Reversing more than two decades of land-use law, the Michigan Supreme Court late Friday overturned its own landmark 1981 Poletown decision and sharply restricted governments such as Detroit and Wayne County from seizing private land to give to other private users.

The unanimous decision is a decisive victory for property owners who object to the government seizing their land, only to give it to another private owner to build stadiums, theaters, factories, housing subdivisions and other economic development projects the government deems worthwhile.

Detroit and other municipalities have used the Poletown standard for years to justify land seizures as a way to revitalize. * * *

Justice Robert Young, who wrote the lead opinion, called the 1981 case allowing Detroit's Poletown neighborhood to be cleared for a GM plant a "radical departure from fundamental constitutional principles."

"We overrule Poletown," Young wrote, "in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

Alan Ackerman, one of the attorneys who represented landowners in the case, said he was "elated at the recognition that it is a government of limited powers. The constitution did not contemplate that the government would do everything for everybody." * * *

The court said its ruling covers any condemnation cases now being heard before lower courts in which Poletown issues have been raised. The former owners of Poletown properties that were seized to clear land for the GM plant are not affected by the decision.

The decision won't stop all uses of eminent domain. All sides agreed governments can still take private land for traditional uses such as slum clearance or for a private use deemed essential to the public good, such as to build a regulated public utility. And the government's ability to seize land for governmental purposes such as building schools and roads was never in question.

What the decision does mean is that the cost of land just went up for municipalities trying to accomplish economic development. Now that governments can no longer use the threat of seizure, private owners and speculators could demand higher prices to get out of the way of projects that government leaders deem essential.

Here is the AP coverage in the Detroit Free Press.

The decision does not appear to be available yet -- when it is I will post it here. [Update 8/2/04] Here is the case link to the opinion, County of Wayne v. Hathcock.

[More] The Illinois Supreme Court, on 4/4/02, in Southwestern Illinois Development Authority v. National City Environmental, also ruled that "taking one owner’s private property and giving it to another for private use is an unconstitutional use of the power of eminent domain." Access it here.

A story dated 7/27/04, originally published in the San Diego Daily Transcript, reports:

The U.S. Supreme Court has been asked to consider the constitutionality of a widespread municipal practice: using eminent domain for economic development. The Court has been asked to rule on whether local governments may use eminent domain for economic development when the property being taken is not blighted.

In a July 19 petition, the Washington, D.C.-based Institute for Justice asked the court to review a recent Connecticut state Supreme Court ruling that approved the taking of non-blighted homes for economic development. Officials in New London, Conn., want to take 15 homes and businesses owned by seven families and give the land to a private developer to create facilities to complement the nearby Pfizer research center.

If the Supreme Court agrees to hear the case it could resolve an issue that has divided the states as more localities, including San Diego, use eminent domain powers in the pursuit of increased tax revenues and jobs. At question is when does a city's appetite for revenue and jobs crash head on with the constitutional rights of a private property owner? * * *

California is among the most active states that have condemned property for the benefit of other private parties, with San Jose listed among the "worst" cities engaged in the practice, according to the report.

Bullock said the trend began in 1981 with the landmark decision in Poletown Neighborhood Council v. Detroit by the Michigan state Supreme Court. The ruling allowed Detroit to condemn a Polish neighborhood so that General Motors could develop a plant there. The city argued at the time that the plant would help turn around its deteriorating economic condition. The state court is reconsidering that decision and is expected to issue a ruling July 31. [As noted above, the Michigian Court overruled Poletown.]

The Institute for Justice hopes the Supreme Court will be compelled to hear the case because of numerous conflicting appellate court decisions on the issue. Bullock said the court is likely to make its decision in October.

Seven state supreme courts have upheld the right of cities to take non-blighted property for economic development, while eight states forbid private-to-private transfers where there is no blight. Another three are preparing to rule such condemnations unconstitutional, according to the institute's petition to the court. California is not included in any category.

Indiana Decisions - More on the 7th Circuit's En Banc Ruling Yesterday

Yesterday, as reported here by the Indiana Law Blog, the 7th Circuit, sitting en banc, ruled 8-3 to uphold the decision of Judge Sharp of the ND Indiana, banning John Doe for life from all park property in the City of Lafayette (and reversing an earlier panel which had ruled 2-1 against Sharp - access that ruling and discussion here). Bloomberg News covered the decision yesterday with this headline: "Pedophile Can Be Punished for Thoughts, Court Says." The Indianapolis Star has an AP story here.

The Lafayette Courier & Journal has lengthy coverage here in a story titled: "City parks ban upheld: Federal appeals court backs Lafayette's 'John Doe' argument." Some quotes:

In the case, John Doe v. the city of Lafayette, a Lafayette resident -- who was granted anonymity by the courts -- was banned after authorities received a tip that he had been watching children at Murdock Park and having sexual thoughts about them.

The 7th Circuit Court of Appeals, by an 8-3 vote, ruled Friday in favor of the city, reversing a decision made 13 months ago by a three-judge panel of the same Chicago-based federal court.

"We believe that Mr. Doe was banned from the parks because of his thoughts," said Ken Falk, an Indiana Civil Liberties Union attorney representing John Doe, "and that we all have the right to think, and that we should not be punished for those thoughts."

Falk said no decision has been made on whether to appeal the ruling to the U.S. Supreme Court, John Doe's last remaining legal recourse. * * *

John Doe filed the federal lawsuit in November 2000, challenging the parks ban on First Amendment and 14th Amendment grounds.

"Our First Amendment argument was that the reason he was banned was because of what he was thinking," Falk said. "And he did not act on those thoughts, and therefore that violated our basic First Amendment right to think.

"And our 14th Amendment argument was based on the fact that we as citizens have the right to wander and enter public spaces absent some compelling reason, and the compelling reason can't be based on thought." * * *

Lafayette attorney Jerry Withered represented the city in the case.

"The court based its decision primarily on the fact that Mr. Doe's conduct in January 2000 was inappropriate," he said. "His actions of cruising for children, having sexual urges for children, going into Murdock Park, watching these kids for a while and almost molesting them before he left were inappropriate and deserving of a ban from the parks by the city.

"The court held that his conduct was just that -- conduct -- and not speech or thoughts. The distinction is important because the First Amendment protects speech or expressive conduct. The First Amendment does not provide fundamental-right protection for conduct only."

Interestingly, the Lafayette Journal & Courier reporter, Marc B. Geller, also picks up on an Indiana Court of Appeals ruling this week, Travis v. State (7/28/04) (see ILB entries here and here) relating to banning an individual from a Kokomo park:

In a separate case, the Indiana Court of Appeals ruled Wednesday that state law does not authorize police officers to place people on a trespass list or ban them from a public park.

The state appeals court said a Kokomo police officer overstepped his authority when he saw Stephen L. Travis sitting on a city park bench in September 2002 and arrested him for trespass. Another officer, Greg Baldini, had encountered Travis and some other people gambling in the park two days earlier and told him not to come back or he would be arrested for trespass.

"We don't think the Kokomo case has any bearing on the John Doe case," Withered said. "First, the Kokomo situation was a criminal trespassing case, whereas this is a civil ban of Mr. Doe from city parks.

"Secondly, the Kokomo case involved a police officer issuing a ban to the individual, and the court of appeals held that the police officer had no legal authority to do so. Here, it was the city parks department, which actually controls all of the park property, which issued the ban to Mr. Doe."

Joe Bumbleburg, attorney for the Lafayette parks department, expects his counterparts across the country will look to the 7th Circuit Court of Appeals decision for guidance.

Finally, accompanying the article is a timeline of the John Doe case.

Law - Douglas Berman Speaks!

Weekend Edition Saturday had a good piece this morning on Blakely, including some quotes from Douglas Berman, of the Sentencing Law & Policy blog. The link should be available around noon and I will post it here. [Update] Here is the link to listen to the NPR report.

[Update] Berman himself describes it here as "a thoughtful piece by Wendy Kaufman entitled Ruling on Sentencing Guidelines Creating 'Legal Anarchy."

Indiana Decisions - Indianapolis Star Reports on June 30th Rose Acre Farms Decision

Somewhat surprisingly, the Indianapolis Star this morning carries a story on the decision of the U.S. Court of Appeals for the Federal Circuit to reverse "an award of $6.1 million to Rose Acre Farms in a 14-year legal battle over how much power the government has to regulate a business." Surprising because the ruling was issued a month ago, on June 30th, and reported the next day by the AP. For more, see this July 1 Indiana Law Blog entry, which includes a link to the AP story and to the 37-page ruling itself.

Indiana Courts - U.S. Steel sues citizen group

There are stories today in both the Munster Times and the Gary Post-Tribune reporting that U.S. Steel is suing a Miller citizens group [MCC] for language the group used in its brief. The Times reports:

The dispute revolves around what is being hailed as possibly the largest property tax settlement in Indiana's history. The steel giant has agreed to pay $44 million in back taxes to local government agencies, donate 200 acres of lakefront land to the city of Gary and invest $150 million in its Gary Works plant in the next four years.

The state also agreed to pay Lake County the $8.9 million in property tax replacement credits it would have received had U.S. Steel not withheld its taxes in previous years.

Judge Thomas Fisher of Indiana's Tax Court denied the Miller Citizens' petition to intervene in the U.S. Steel tax settlement. He also scheduled a hearing Oct. 8 for a request by U.S. Steel to assess damages against the group for inappropriate language used in its petition to intervene.

The judge sealed the exact wording of the petition.

"What I said was that since U.S. Steel doesn't pay its business tangible taxes, that leaves a huge void in the budgets of the city of Gary, Calumet Township and Lake County," Reed said.

"They (want to settle now), because they need all the revenue they can get. So they are willing to let go of a huge amount of revenue. I said it is kind of like a drug dealer; you get an addict hooked and he will do anything to get his bag of cocaine. "We are not calling U.S. Steel drug dealers. I'm just saying that is the kind of pressure used."

The Tribune has a lengthy story. Some quotes from the story, headlined "U.S. Steel fires back at tax foes":

U.S. Steel is seeking damages from the citizen group that challenged the company’s property tax assessments, claiming it used “unbecoming” legal language.

Siding with the company, Tax Court Judge Thomas Fisher has denied a motion by the Miller Citizens Corp. to enter the assessment challenge case. Instead, Fisher set Oct. 10 to hear testimony in Crown Point on U.S. Steel’s argument that it was damaged by the Miller Citizens Corp.’s five-page brief, filed July 14, in support of Calumet Township Assessor Booker Blumenberg’s battle against the county’s past-due tax settlement with the steel maker.

U.S. Steel had challenged the MCC request to file a brief and now has asked for damages under Indiana Appellate Rule 41, citing a “tone unbecoming and inappropriate to members of the legal profession” in the documents filed by the Gary citizens group. * * *

[Tom Atherton, attorney for U.S. Steel] said U.S. Steel was upset by the tone and content of the brief by the citizens group, which compared U.S. Steel to a drug dealer.

“U.S. Steel is sort of in a position of a drug dealer who manages to get the addict hooked and then is able to make the addict do anything it wants the addict to do by dangling a couple of bags of crack cocaine,” the brief states.

[Ken Reed, attorney for MCC] said it’s an apt metaphor for cash-strapped Lake County, which continues to reel from the effects of reassessment. MCC attorneys plan to file a petition today, asking Fisher to re-hear the case.

More from the story:

Members of MCC also have talked openly about challenging the legality of Public Law 1858. Beginning with the 2004 tax bills, the 2003 law will allow U.S. Steel, Ispat Inland, International Steel Group and BP to claim steeper depreciation on their equipment than other industries in Indiana.

Asked if the request for damages was designed to quiet the citizens group, Reed said, “I have to be careful what I say but you could draw that conclusion.”

The Tribune story goes on to speculate about whether the U.S. Steel effort could be considered a SLAPP suit:

In 1997 the state passed a law limiting lawsuits against citizen groups acting on behalf of the public, called Strategic Lawsuits Against Public Participation, with the lawsuits becoming known as SLAPP suits.

The law was passed after NiSource and the town of Chesterton sought damages from the Hoosier Environmental Council, when the council challenged a zoning change for NiSource’s Coffee Creek Center.

SLAPP suits are illegal in some states. Indiana law allows citizen groups to file a motion early in the case, asking a judge to rule whether the request for damages is a SLAPP suit, said Tim Maloney, executive director of the Hoosier Environmental Council.

SLAPP suits chill free speech by draining time and money from citizen groups, Maloney said. “Even if they win, when you force someone into spending a lot of time and expense to defend themselves, it really accomplishes what a SLAPP suit intended,” he said.

Thoughts. First, without U.S. Steel's actions, I sure would never have known what was in the Miller group's petition. A check shows that the AP has now picked up the story, you can read a version here, for instance, in the Kansas City Star.

Second, the case closest to this in my recollection is In re Wilkins, where Attorney Wilkins was initially suspended from the practice of law for one month by the Indiana Supreme Court because of a footnote in a brief. See the earlier Indiana Law Blog entry here. I don't recall that there was ever a question of sealing the brief in Wilkins.

Third, I may be wrong, but I seem to recall from law school that legislators are protected against defamation suits for things said on the floor of the legislature, and that things said in legal filings may be similarly protected.*

Fourth, I can't locate the Indiana Strategic Lawsuits Against Public Participation (SLAPP) statute, but when/if I do, I will post the citation here. [Update] The Indiana statute is IC 34-7-7. The statute was discussed by the Court of Appeals in a 2003 decision - access the Indiana Law Blog entry here.

Fifth, re the quote from the Times story, "U.S. Steel had challenged the MCC request to file a brief and now has asked for damages under Indiana Appellate Rule 41," Rule 41 is "Motion to Appear as Amicus Curiae." Perhaps the reference is to Rule 42, "Motion to Strike," which provides:

Upon motion made by a party within the time to respond to a document, or if there is no response permitted, within thirty (30) days after the service of the document upon it, or at any time upon the court’s own motion, the court may order stricken from any document any redundant, immaterial, impertinent, scandalous or other inappropriate matter.

but makes no mention of damages or sealing of the petition.
______
*In Oregon, at least: "The doctrine of absolute privilege arose from the theory that there are certain circumstances in which the ability to speak freely — usually in the context of governmental functions — is so important that it outweighs the interest that an individual has in his or her reputation. Absolute privileges attach to statements made in the course of or incident to judicial proceedings, including statements made by witnesses and parties. An absolute privilege also attaches to statements made during quasi-judicial proceedings, such as proceedings before administrative boards, commissions, and disbarment actions. Statements made as part of a legislator's duties are also absolutely privileged, although it should be noted that statements made by a legislator to the press outside the actual legislative meeting place and not during the legislative process are not absolutely privileged."

Environment - Stories today

Mercury. This story in the Indianapolis Star today is headlined: "Group demands action on pollution: State board, petitioned nearly 2 months ago, has delayed a hearing on mercury regulations." Some quotes:

The Hoosier Environmental Council has asked the state Air Pollution Control Board to require Indiana coal-burning plants to reduce mercury emissions 90 percent by 2008 and has petitioned for a public hearing on the issue.

But almost two months after receiving the petition with enough signatures to legally require a hearing, the pollution board has not acted on the request. Instead, board Chairman John Walker said he'll eventually hold a meeting but wants to wait for a recommendation from a work group of regulators, industry officials and environmentalists -- which has yet to be established.

"It's very frustrating, because in June (the board) agreed that hearings would be a good idea, and now it's basically being placed in limbo," said Brian Wright, coal policy adviser at the Hoosier Environmental Council. "One of our concerns is that they will delay this until industry can run to the legislature and say, 'Don't let them do this.' "

Officials from the Indiana Department of Environmental Management and industry say it's wise to study the issue before moving ahead with public meetings or rules -- and they hope the federal government acts to curb emissions so the state won't have to do it on its own.

The statute allowing citizen proposals is located at IC 13-14-8-5.

Group piers. "Grouping of piers is sought by state" is the headline to this story in the Fort Wayne Gazette. Some quotes:

By proposing a new rule to address group piers, state officials aim to regulate lake funneling, an issue that irritates existing lake residents and plagues plan commissions.

In Steuben County, dubbed Northern Indiana Lakes Country because of the 101 lakes peppering the land, the issue is particularly provocative. And officials there are particularly interested in the rule, which will create a designation for group piers, essentially providing a middle ground between a personal pier and money-making marina.

The rule proposed by the Indiana Department of Natural Resources defines a “group pier” as any dock that provides space for any of the following: at least five property owners, at least five rental units, an association, a condominium, a subdivision, a conservancy district, a campground, a mobile home park or a yacht club.

The category disqualifies a group pier from inclusion in a general pier license, and a developer seeking to build a group pier would need to apply for a special permit and complete a public hearing process.

Water quality. Two stories today in the Muncie StarPress. "State targets sewage in our streams" is the headline of the first. Some quotes:

The Indiana Department of Environmental Management plans to establish limits on sewage and manure loading in four impaired tributaries of the White River in Delaware, Madison, Hamilton and Tipton counties. The public is invited to a kickoff meeting at 6 p.m. on Aug. 25 at Anderson Public Library.

"You can help us by attending this meeting and becoming involved in the TMDL [Total Maximum Daily Load] process," IDEM's Andrew Pelloso said. At the meeting, the agency will explain TMDLs and how the tributaries are impaired, and ask the public to help the agency learn more about the creeks.

The four contaminated tributaries are Killbuck, Pipe, Stony and Duck creeks. Like the White River, the four tributaries are impaired by E. coli bacteria, which indicates they are contaminated with fecal waste from humans, livestock and wildlife such as geese.

The U.S. Environmental Protection Agency several months ago approved IDEM's proposed TMDL for E. coli bacteria in White River between Muncie and the Marion-Hamilton county line. * * *

Reduction of loads from other sources will require a voluntary approach, [IDEM's Staci Goodwin] said.

Among the best management practices that will be considered are:

- An outreach program to teach homeowners how to recognize and repair or replace failing septic systems.

- Excluding livestock from rivers and streams by fencing.

- Add more vegetation along streams to reduce bank erosion, provide shade and habitat for wildlife, and filter sediment and nutrients such as manure and fertilizer from storm water runoff.

- Build detention basins, infiltration trenches, dry and wet ponds, porous parking lots and wetlands in urban areas. The purpose is to route storm water to holding basins so pollutants can settle out of the water.

The second StarPress story is headlined: "Few impaired rivers have pollution caps." Some quotes:

Indiana ranks 48th in the country in establishing pollution limits for impaired rivers and streams.

The state has identified more than 1,100 impaired rivers and streams, but it has developed Total Maximum Daily Loads (TMDLs) for only 15 of those rivers, according to the U.S. Environmental Protection Agency. * * *

The top three impairments in Indiana rivers and streams are fish contaminated with PCBs and mercury; disease-causing agents such as bacteria and viruses, and the lack of diversity of fish, insects, crayfish, worms, and other animals.

The state has developed a TMDL - a pollution budget or load limit - for White River between Muncie and Noblesville, which is impaired by E. coli bacteria - an indicator of fecal waste from humans, livestock and wildlife. It also has developed or is close to developing TMDLs for 14 other waterways, including the St. Joe River, Kokomo Creek, Trail Creek, Fall Creek, Salt Creek and Lake Michigan.

But Ohio has created 302 TMDLs, Kentucky and Michigan have established 41 TMDLs each, and Illinois has developed 18 TMDLs. Four states - West Virginia, Kansas, Pennsylvania and Georgia - have established more than 1,000 TMDLs each, and 18 other states have created more than 100 TMDLs each, according to EPA's TMDL Web site.

Only two states - Hawaii and Nevada - have fewer TMDLs than Indiana. Hawaii has not identified many impaired waters, and Nevada is a state that has light rainfall and mostly small rivers.

Indiana Decisions - Transfer List for Week Ending July 30, 2004

Here is the Indiana Supreme Court's transfer list for the week ending July 30, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Indiana Decisons - Six Court of Appeals Decisions Today

Airgas Mid-America, Inc. v. Shannon Long, et al. (7/30/04 IndCtApp) [Procedure]
Sharpnack, Judge

In this interlocutory appeal, Airgas Mid-America, Inc. (“Airgas”) appeals the trial court’s grant of a motion to quash filed by Evansville Welding Supply, LLC (“EWS”). Airgas raises several issues, which we consolidate and restate as whether the trial court abused its discretion by granting EWS’s motion to quash the subpoena duces tecum based upon the accountant-client privilege. We reverse and remand. * * *

Although EWS had the burden of demonstrating why each individual piece of information was privileged, EWS did not assert the privilege on a question-by-question or document-by-document basis. We conclude that EWS’s blanket privilege claim was insufficient to meet its burden of demonstrating that the information was privileged under the accountant-client privilege. While some of the information may be protected under the accountant-client privilege, the trial court must make this determination on an individual basis. Consequently, the trial court abused its discretion by granting EWS’s motion to quash the subpoena duces tecum. See, e.g., Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508, 516 (Ind. Ct. App. 1999) (holding that “[w]hile the subject of Penn Central’s request is seemingly broad-based, Buchanan’s blanket invocation of privilege is insufficient to support his assertion that all the requested documents were protected. While some of the requested documents and testimony may have been protected if properly challenged, such a determination must be made on an item specific basis.”), reh’g denied, trans. denied.

For the foregoing reasons, we reverse the trial court’s grant of EWS’s motion to quash and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and ROBB, J. concur

Theodore Fugett v. State of Indiana (7/30/04 IndCtApp) [Criminal Law & Procedure]

Midtown Chiropractic v. Illinois Farmers Insurance Company (7/30/04 IndCtApp) [Insurance]

Lagarda Security v. Alva Lawalin (7/30/04 IndCtApp) [Worker's Compensation]

Donald E. Geels v. Matt Dunbar, et al. (7/30/04 IndCtApp) [Landlord-Tenant]

James D. Perkins v. State of Indiana (7/30/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge

Following a jury trial, Appellant, James Perkins, was convicted of Operating a Vehicle While Intoxicated Causing Serious Bodily Injury, a Class D felony. * * *

Perkins argues that there was insufficient evidence to prove that he was intoxicated. Specifically, Perkins discounts the mistakes he made during the field sobriety tests and thus asserts that the State presented only minimal evidence as to whether he was impaired. Perkins further asserts that the fact that Detective Williams smelled burnt marijuana established nothing more than a mere suggestion that Perkins may have used marijuana. Perkins then directs our attention to evidence which he asserts proves that he had not been using marijuana on the day of the accident. In all, Perkins’ arguments amount to nothing more than a request for us to reweigh the evidence and judge the credibility of witnesses, a task we will not undertake upon appeal. The State presented sufficient evidence from which the jury could have concluded beyond a reasonable doubt that Perkins was intoxicated at the time of the accident. The judgment of the trial court is affirmed.
MAY, J., and VAIDIK, J., concur.

Indiana Decisions - 7th Circuit Issues En Banc Decision

John Doe v. City of Lafayette (ND Ind., Judge Sharp)

[A 53-page decision, with the voting split 8-3 (Williams, Rovner and Wood dissenting). The dissent begins on p. 32.]

Before FLAUM, Chief Judge, and POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, EVANS and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. In February of 2000, the City of Lafayette, Indiana, issued John Doe, a convicted sex offender, a letter, informing him that he was banned from all public parks under the City’s jurisdiction. In November of 2000, Mr. Doe initiated this action, alleging that the ban violated his rights under the First and Fourteenth Amendments of the Constitution of the United States. The United States District Court for the Northern District of Indiana granted summary judgment to the City. For the reasons set forth in the following opinion, we now affirm the judgment of the district court. * * *

Conclusion. For the foregoing reasons, we must reject Mr. Doe’s challenges based on the First and Fourteenth Amendments and affirm the judgment of the district court. AFFIRMED.

WILLIAMS, Circuit Judge, with whom ROVNER and DIANE P. WOOD, Circuit Judges, join in dissenting. John Doe was banned for life from all park property in the City of Lafayette, Indiana—including a golf course, sports stadium, and city pools. As this ban violates Doe’s First Amendment right to freedom of thought by impermissibly punishing him for those thoughts, I respectfully dissent. * * *

Despite our repudiation of the content of his thoughts, the City of Lafayette may not punish Doe for his thinking alone, for without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment are virtually meaningless.

Indiana Decisions - Federal court (SD Ind) issues reasonable accomodation ruling

Gregory S. Fox v. Lear Corp. (7/28/04 SD Ind.)
United States Magistrate Judge Tim A. Baker

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for their employees when an employee’s bone fide religious practice conflicts with a job requirement. Plaintiff Gregory S. Fox advised his employer, Defendant Lear Corporation, that his religious beliefs prevented him from working on his Sabbath -- from sundown Saturday to sundown Sunday. Several discussions and an EEOC charge later, Fox and Lear agreed on an accommodation that would allow Fox to work on weekends when required by Lear but avoid Fox’s Sabbath. The accommodation worked for awhile, but due to his desire to work overtime, Fox later insisted that Lear not only accommodate him for those weekends when work was mandatory, but also those weekends in which work was voluntary. This lawsuit followed. As set forth below, the bounds of Title VII do not stretch as far as Fox contends. * * *

Conclusion. Defendant’s motion for summary judgment is granted with respect to all claims. Final judgment shall be entered accordingly. Costs are awarded to the Defendant.

Indiana Decisions - Overview of Blakely in the 7th Circuit and in Indiana State Courts, Part I

Part I. Overview of Blakely in the 7th Circuit Courts

Court of Appeals for the 7th Circuit. In U.S. v. Booker (7/9/04), as reported here in the Indiana Law Blog on July 9th, Judge Posner wrote that the federal sentencing guidelines, "though only in cases such as the present one in which they limit defendants’ right to a jury and to the reasonable-doubt standard, and thus the right of defendant Booker to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely. "

Judge Poser concluded:

To summarize: (1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancements—that is, no factual findings by the judge increasing the sentence—there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence. REVERSED AND REMANDED.

Booker was to first post-Blakely Court of Appeals decision to hold the guidelines unconstitutional. On July 21, 2004, the Solicitor General filed a Petition for Writ of Certiorari to the United States Supreme Court in this case. However, as Professor Douglas Berman wrote this morning in Sentencing Law & Policy:

With a Supreme Court grant of cert a near certainty, it is tempting to suggest (perhaps even hope) that the sentencing world can take a breather until the High Court decides what Blakely means for the federal guidelines. However, it could be two more months until the Supreme Court even hears argument on a Blakely federal sentencing case, and perhaps at least a few more months before the Supreme Court renders a decision. I doubt that the thousands of federal criminal cases now pending in district and circuit courts can be put completely on hold during this period.

Of course, those circuits which have already weighed in on Blakely have given their district courts interim guidance, although that guidance is sketchy at best everywhere except in the Fifth Circuit where court have been told to continue with business as usual.

Recall that Judge Poser wrote in Booker:

We have expedited our decision in an effort to provide some guidance to the district judges (and our own court’s staff), who are faced with an avalanche of motions for resentencing in the light of Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004), which has cast a long shadow over the federal sentencing guidelines. We cannot of course provide definitive guidance; only the Court and Congress can do that; our hope is that an early opinion will help speed the issue to a definitive resolution.

The 7th Circuit has issued several sentencing-related opinions since its ruling in Booker. In Simpson v. USA (7/16/04) the panel dismissed "Simpson’s application without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review." In USA v. Keller (7/21/04), a downward departure case, neither Blakely nor Booker was mentioned. In USA v. Ward (7/24/04) (4th entry in post), the panel ruled:

Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendant’s sentence. As Booker holds, the Guidelines’s contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment. Thus, in light of the analysis set forth in Booker, we remand these cases to the district court for resentencing.

The District Courts in the 7th Circuit. So what has been going on in the federal district courts of Wisconsin, Illinois and Indiana, post-Blakely, and post-Booker? There have been few reported cases. Judge Sarah Evans Barker reportedly has issued two bench rulings citing Blakely (see this ILB entry). There may be other unreported bench rulings in the three states.

In U.S. v. Stafford (WD Wis. 7/19/04) Judge Crabb ruled:

Defendant alleges that he was sentenced under the Sentencing Guidelines and that the court enhanced his base offense level on various grounds that were not determined by a jury. Defendant is correct. He was the subject of "a longer sentence than that supported solely on the facts he admitted during his plea colloquy." Simpson v. United States, (7th Cir. July 16, 2004) [see above]. That means that if and when the Supreme Court determines both that Blakely applies to the federal sentencing guidelines and that it has retroactive application to cases on collateral review, he may apply to the Court of Appeals for the Seventh Circuit for leave to file a successive collateral attack. Id. Of course, such an attack would be limited solely to the constitutionality of applying the enhancements to his base offense level. * * * He has no viable claim unless the Supreme Court holds that Blakely has retroactive application.

In U.S. v. Traeger (ND Ill. 7/8/04), Judge Shadur wrote: "Blakely itself did not announce that it was applicable retroactively--and indeed the same-day decision in Schriro v. Summerlin, 2004 U.S. LEXIS 4574, 72 U.S.L.W. 4561 (U.S. June 24, 2004) teaches the strong unlikelihood that Blakely will hereafter be given retroactive effect."

An Illinois paper, the Belleville News-Democrat, reported yesterday:

EAST ST. LOUIS - U.S. District Chief Judge G. Patrick Murphy said Wednesday he won't use federal sentencing guidelines because they are unconstitutional. Murphy barred the guidelines during the trial of Greg "Baby Greg" Murray of Granite City. He is scheduled to go to trial next week on a federal charge of using a handgun during a drug trafficking crime in connection with a homicide.

Murphy's ruling followed decisions by the U.S. Supreme Court and the 7th Circuit Court of Appeals in Chicago that challenged the constitutionality of the sentencing guidelines.

In an indictment filed last week, federal prosecutors alleged Murray's conduct in the crimes could lead to "enhancements" -- punishable by extended prison sentence under the sentencing guidelines for Murray. But Murphy decided the enhancements must be decided by a jury to be in line with the 7th Circuit and Supreme Court rulings.

[Thanks to USSGuide.com for the two district court links. Check its Seventh Circuit page here.]

Law - New Uniform Trust Code Causing Waves

The Wall Street Journal today (paid subscription required), on page D1, has a story headlined "As Trust Laws Get a Makeover, Concerns Arise: As Many States Move to Adopt Uniform Code, Critics Raise Concerns About Privacy Issues." According to the story, the new UTC has been enacted in 10 states since 2002. I checked, Indiana has not enacted the new UTC. The gist of the story (but buy the paper for the complete take): "The code has drawn flak, however, from critics who say it could make trusts less private, causing family squabbles, and possibly create estate-tax liabilities. As a result of such concerns, the law was repealed in Arizona last April, one year after it was enacted."

Sure enough, this July 13th story in the Arizona Republic reports:

Three months ago, for example, Arizona lawmakers repealed a set of laws passed just last year known as the Uniform Trust Code. The code's intent was to fill in gaps on various rules that apply to trusts and make them more similar to those of other states, but it also generated controversy.

One unpopular provision would have required that people who set up or oversee trusts notify beneficiaries that a trust exists and provide a list of assets on request. Critics complained the rule would have made trusts less private.

Indiana Decisons - Three Today from 7th Circuit

Matheney, Alan L. v. Anderson, Rondle (ND Ind., Judge Sharp)

Before BAUER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. * * * Because we agree with the state courts’ finding that Matheney was competent to stand trial, it follows that the state courts did not err in concluding that Matheney’s trial attorneys provided effective assistance. The post-conviction trial court and the Indiana Supreme Court did not unreasonably apply Strickland, or unreasonably determine the facts surrounding Matheney’s representation before his original trial. Thus, even if we were to assume that the trial attorneys’ performance was deficient in not demanding a contemporaneous competency examination and hearing, Matheney’s ineffective assistance claim would fail on the prejudice prong.

III. Conclusion. For the foregoing reasons, the district court’s denial of Matheney’s petition for habeas corpus relief under § 2254 is AFFIRMED.

ROVNER, Circuit Judge, dissenting. When Matheney was initially brought to trial for this crime, his lawyers sought a determination of his sanity and his competency. The court, however, ordered only a determination of his sanity, and none of the trial attorneys in the case appeared to even notice. In fact, examination of the record in this case reveals repeated instances in which attorneys and judges involved in that trial and his subsequent appeals blur the two, as if the determination that he was not legally insane at the time of the offense somehow also established that he was competent to stand trial. * * * Matheney has met the Strickland standard, demonstrating a “reasonable probability” that the result would have been different if his attorneys had pursued the competency issue, and accordingly I disagree with the majority’s conclusion that the prejudice prong of Strickland was not met. Therefore, I respectfully dissent.

Asher, Brian v. Baxter Int'l Inc. (ND Ill.)

Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. Baxter International, a manufacturer of medical products, released its secondquarter financial results for 2002 on July 18 of that year. Sales and profits did not match analysts’ expectations. Shares swiftly fell from $43 to $32. This litigation followed; plaintiffs contend that the $43 price was the result of materially misleading projections on November 5, 2001, projections that Baxter reiterated until the bad news came out on July 18, 2002. Plaintiffs want to represent a class of all investors * * *. class action, but see Fed. R. Civ. P. 23(c)(1)(A), the district court dismissed the complaint for failure to state a claim on which relief may be granted. 2003 U.S. Dist. LEXIS 12905 (N.D. Ill. July 17, 2003). The court did not doubt that the allegations ordinarily would defeat a motion under Fed. R. Civ. P. 12(b)(6). Still, it held, Baxter’s forecasts come within the safe harbor created by the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 77z-2(c), 78u-5(c). The PSLRA creates rules that judges must enforce at the outset of the litigation; plaintiffs do not question the statute’s application before discovery but do dispute the district court’s substantive decision. * * *
REVERSED AND REMANDED

Laborers' Pension v. RES Envir Services (ND Ill.)

Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
FLAUM, Chief Judge. This appeal calls upon us to apply the familiar principle that conclusory and immaterial statements contained in an affidavit are insufficient to bar summary judgment. Defendant RES Environmental Services, Inc. (“RES”), relying exclusively on an affidavit submitted by its company owner, seeks reversal of the district court’s decision granting summary judgment to Plaintiffs, Laborers’ Pension Fund and Laborers’ Welfare Fund of the Health and Welfare Department of the Construction and General Laborers’ District Council of Chicago and Vicinity (the “Funds”). The Funds brought this action against RES pursuant to [ERISA and LMRA] seeking to collect delinquent employee benefit contributions required under a collective bargaining agreement negotiated between RES and its employees’ union. For the reasons stated in this opinion, we AFFIRM the judgment of the district court.

Indiana Decisions - Two stories today

"Court rejects banning people from parks" is the headline to this AP story that begins:

State law does not authorize police to put people on a trespass list or ban them from a public park, the Indiana Court of Appeals ruled yesterday. The court said a Kokomo officer overstepped his authority when he saw Stephen L. Travis sitting on a city park bench in September 2002 and arrested him for allegedly trespassing.

Another officer, Greg Baldini, had encountered Travis and others gambling in the park two days earlier and had told him not to come back or he would be arrested for trespassing. During the trial, Baldini could not say precisely what authority he had to place a citizen on a trespass list for a public park. "I just know we can do it," he said.

The decision, Stephen L. Travis v. State of Indiana (7/28/04 IndCtApp), was summarized in this entry yesterday.

"Appeals court upholds sentence of man who killed a state legislator" is the headline to another AP story about a decision issued Wednesday. Some quotes:

The Indiana Court of Appeals has upheld a 23-year prison sentence imposed on a drunken driver who caused a crash that killed a state legislator.

The ruling, issued yesterday, said that Alan Wickliff, of Shelbyville, had an extensive criminal history and that the judge who sentenced him properly weighed aggravating and mitigating circumstances. * * *

Wickliff pleaded guilty in Johnson County Superior Court without any sentencing agreement with prosecutors.

Judge Cynthia Emkes sentenced him to 20 years for causing a death while driving drunk — a crime aggravated by Wickliff's 1999 misdemeanor drunken-driving conviction. He also was sentenced to three years on each of two marijuana-possession charges. * * * Wickliff appealed, saying the sentence was inappropriate, but the appeals court disagreed.

I have obtained a copy of this unpublished opinion, Wickliff v. State (7/28/04 IndiCtApp) and will post it here shortly.

[Update] Here is the Court of Appeals opinion in Wickliff.

Environment - IDEM Copying Charges

Remember the entry Monday quoting from a story about IDEM charging $1.00 per page for copies? I checked with IDEM this morning to see if that report was correct. Amy Hartsock, Public Information Officer, responded promptly:

No, it's $.10 per page (10 cents) - when files are big, as it appears this facility's files are, we advise citizens to come in and look thru them, and mark the sections they want to copy, which helps make sure they pay only for what they really need. We don't charge for 10 copies or less.
Thanks for checking.

Law - This Blog's First, and Last, Post in Kobe Bryant Case

This is just too incredible to pass by. The AP is reporting this evening, in a story headlined "Sealed Bryant Filing Mistakenly Posted," that:

The order, which included the accuser's name, appeared on a Web site where public filings are posted as a convenience to court staff and the media. The Web site was shut down for about three hours to remove the document.

The accidental posting was the latest in a string of mistakes that the accuser's attorney, John Clune, has said prompted her to consider ending her participation in the case. * * *

In September, the accuser's name was included in another filing posted on the Web site.

Last fall, the Glenwood Springs hospital where she and Bryant were examined accidentally turned over her medical records to lawyers in the case.

In late June, a court reporter accidentally e-mailed to The Associated Press and six other media groups transcripts of a closed-door hearing that dealt with aspects of the accuser's sex life and money she received from a state victims' compensation fund.

Environment - Two stories today

Wetlands. An interesting story today about Ritchey Woods, the newly obtained nature preserve given to the town of Fishers by The Children's Museum of Indianapolis. The story reports that a developer's proposal "to disturb the natural area" is already in play. More:

"I don't believe it's resolved yet," [Fishers Parks Director Gary Pruitt] said Tuesday, referring to wetlands mitigation projects proposed by Precedent Residential Development and approved by museum officials before the transfer of property. "It's a complex issue. We want to do the right thing for the property. I think it's a win-win, but we don't want to move too fast."

The proposals by Precedent, which has permit applications pending with the Indiana Department of Environmental Management, are to create or enhance wetlands on Ritchey Woods property that spreads southwest from 106th Street and Hague Road.

Precedent had suggested the projects as a way to compensate for the developer's authorized elimination of small wetlands in two of its subdivisions -- Slater Farms in Noblesville and Fox Hollow near McCordsville. Such mitigation is required by state law, which also dictates that the replacement projects be 2.5 times as large as the lost wetlands.

Pruitt is not opposed to the idea of wetlands restoration, which has been a focus of research and reclamation efforts in Ritchey Woods by the Center for Earth and Environmental Science at Indiana University-Purdue University Indianapolis. He does have concerns about Precedent's chosen sites inside the 130-acre parcel.

"During this transition of property, I have learned that some of these sites may not be good," explained Pruitt, who has talked with Precedent's consultant, the director of IUPUI's Center for Earth and Environmental Science and other experts. "Therein lies the challenge."

Specifically, Precedent proposes a "scrub-shrub/forested wetland" on 3 acres along Hague Road that had been farmed. Existing field drainage tile would be disabled to facilitate forming a wetland.

"The constructed wetland will provide additional forested wetland area to observe wildlife and educate youth," say the application papers filed in May with IDEM by Precedent Vice President Doug Wagner. "The wetland mitigation area is located in a region in which the public will be able to . . . learn about wetland functions and benefits."

State environmental officials accompanied Precedent's consultant on a tour of the proposed mitigation sites this month.

"IDEM has significant concerns about both proposed mitigation sites due to hydrology limitations for additional wetland creation and existing easements which stipulate land use practices," said IDEM spokeswoman Bonnie Nash.

The conservation easement signed by Town Council President Scott Faultless to obtain the property essentially guarantees that the natural state of the land will not be disturbed in a way that diminishes its use as a protected nature preserve.

Superfund. Getting your town's property listed as a Superfund site may not be a good thing, particularly if you are expecting federal funds to come rolling in, according to this story today in the Washington Post. A quote:

A slew of new Superfund waste sites, coupled with such needs as funding emergency responders to terrorist attacks, has drained federal resources in the past few years. As a result, officials in a number of states, including Illinois and Texas, are putting cleanup plans on hold, to the dismay of some local residents. * * *

Part of the problem stems from the fact that two taxes that contributed to the Superfund trust fund -- one on crude oil and certain chemicals, another one on larger corporations -- expired in 1995 and have not been renewed. As a result, all the money for cleanups this fiscal year has come from funds appropriated by Congress, instead of from the trust fund. The EPA has asked for $150 million in cleanup funds for the past two years but received just $23 million last year. Superfund's current budget is lower than at any time since 1988.

Indiana Decisions - One Court of Appeals Opinion Today

Stephen L. Travis v. State of Indiana (7/28/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

Stephen L. Travis appeals his conviction for Criminal Trespass, a Class A misdemeanor, following a bench trial, and challenges the sufficiency of the evidence to sustain his conviction. We reverse. * * *

In sum, Officer Baldini acted within his authority on September 2 when he told Travis to leave the park because he was gambling. See I.C. § 36-8-3-6(c)(3) (authorizes police officers to enforce municipal ordinances); see also Municipal Code of the City of Kokomo, Section 96.19(K). Had Travis refused to leave the park at that time, the officer could have arrested him for criminal trespass. See Ind. Code § 35-43-2-2(a)(2) (stating person who, not having contractual interest in property, knowingly or intentionally refuses to leave the real property of another after having been asked to leave by other person’s agent commits trespass). But because Kokomo police officers lack authority to place citizens on a trespass list or to ban citizens from the park indefinitely, Travis legally entered the park on September 4. And the undisputed facts show that when Officer Fourkiller encountered Travis that day, Travis was sitting on a park bench and was not engaged in any illegal activity. Absent some illegal act on Travis’ part, Officer Fourkiller had no legal grounds to arrest him. We conclude that the State failed to prove beyond a reasonable doubt that Travis entered the park after having been denied entry by the park or its agent, which is an essential element of criminal trespass. We can affirm a conviction only when each material element is supported by evidence from which the trier of fact could have found guilt beyond reasonable doubt. See Culbertson, 792 N.E.2d at 576. There was no factual or legal basis for Travis’ arrest. Therefore, we must reverse the conviction. Reversed.
KIRSCH, C.J., and RILEY, J., concur.

Indiana Decisions - Three Today from 7th Circuit

Housing Authority Ri v. Chicago Housing (ND Ill.)

Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Defending oneself from a largescale class action lawsuit is a costly task. And so it comes as no surprise that these two parties are before us to determine who should foot the bill for the defense of a 1999 lawsuit filed by approximately 10,000 current or former Chicago Housing Authority (CHA) residents who claimed they have been exposed to and harmed by environmental contaminants while living on CHA’s public housing property. * * *

Because the district court issued a thorough and wellreasoned memorandum opinion and order, we adopt the reasoning of the district court’s September 30, 2003 Memorandum Opinion and Order addressing those claims challenged on appeal and AFFIRM the judgment of the district court. A copy of the district court’s order is attached.

Ward, Jerry v. Hinsley, Charles (ND Ill.)

Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
FLAUM, Chief Judge. Petitioner-appellant Jerry Ward appeals from a judgment of the United States District Court for the Northern District of Illinois denying his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. His appeal presents the question of whether a federal habeas court may review procedurally defaulted claims of alleged structural errors when the petitioner has not argued that the procedural default is excused by cause and prejudice or that a fundamental miscarriage of justice will result if the claims are not addressed. We hold that a federal habeas court may not review such claims, and therefore we affirm the district court’s denial of Ward’s petition for a writ of habeas corpus.

USA v. Jackson, Keenan L. (CD Ill.)

Before EASTERBROOK, RIPPLE, and DIANE P. WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. Police in Springfield, Illinois, stopped Keenan Jackson for a traffic offense. He was not carrying a driver’s license. After a check of identifying details via the computer terminal in the squad car implied that the driver might not be who he claimed, Officer Sapetti decided to detain Jackson until his identity could be established. Sapetti handcuffed Jackson and, before seating him in the police car, patted him down for weapons; he found a hard item in Jackson’s crotch. The object turned out to be more than 50 grams of crack cocaine, and Jackson was indicted for a violation of 21 U.S.C. §841. After the district court denied his motion to suppress this evidence, Jackson entered a conditional guilty plea that preserved his right to appeal the question whether Officer Sapetti violated the fourth amendment. * * * Affirmed.

RIPPLE, Circuit Judge, dissenting. The key question in this case is the type of detention to which Mr. Jackson was subject while waiting for Officer Sapetti to investigate his identity. As noted by the majority, the subjective intent of both parties—Officer Sapetti and Mr. Jackson—are irrelevant to the inquiry: The justification for the stop, as well as the nature of the resulting detention, both are governed by an objective standard. * * *

The question, therefore, is whether it was “immediately apparent” to Officer Sapetti that the object located on Mr. Jackson was contraband. Stated another way, was Officer Sapetti “acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in [Mr. Jackson’s pants] was contraband.” Dickerson, 508 U.S. at 377.

The district court did not reach this question. * * * Because this issue is one that is best addressed by the district court in the first instance, I would remand the case to the district court to determine whether Officer Sapetti’s actions were consistent with Terry and its progeny. For these reasons, I respectfully dissent.

Indiana Courts - Judge Kouros' replacement

The Munster Times reports today:

The Indiana Supreme Court appointed Senior Judge Thomas Webber Sr. on Tuesday to fill the Lake Criminal Court seat vacated by Judge Joan Kouros.

Webber will take the bench Monday and will remain indefinitely, according to the appointment order signed by acting Chief Justice Brent Dickson.

The Supreme Court suspended Kouros on Thursday after the Indiana Commission on Judicial Qualifications filed a recommendation for her removal for not keeping up with paperwork in her court despite her promise to do so.

Indiana Decisions - More on Judge Barker Rulings in First Amendment / Adult Video Store Case

We reported earlier today (third item) on this story in the Courier Journal:

A federal judge has cleared the way for legal action to continue in both federal and state courts in a dispute between the city of New Albany and the operator of an adult video and novelty store.

Federal Judge Sarah Evans Barker's (SD Ind.) 7/22/04 rulings are now available, here ("For the above reasons, this court lacks subject matter jurisdiction over the City’s state court action seeking declaratory and injunctive relief of its own regulations and ordinances, despite possible objections to their constitutionality. Under 28 U.S.C. § 1447(c), we GRANT the City’s Motion to Remand and remand this action to state court. We also DENY the City’s Motion for Attorney Fees.") and and here ("For the above reasons, we DENY Defendant’s Motion to Dismiss on the basis of the Younger abstention doctrine.").

Indiana Decisions - Nine New Court of Appeals Posting Today

Citizens Action Coalition of Indiana, et al. v. NIPSCO and Indiana Office of Utility Consumer Counselor (7/27/04 IndCtApp) [ ]
Baker, Judge

Appellants-intervenors Citizens Action Coalition of Indiana, Inc. (CAC) appeals an order from the Indiana Utility Regulatory Commission (IURC) awarding $1,105,857.80 in attorney fees, costs, and expenses to the Northern Indiana Public Service Company Industrial Group (Industrials)—a consortium of industrial electricity customers of the Northern Indiana Public Service Company (NIPSCO)—earned by the Industrials for participating in an investigation by the IURC. Specifically, CAC claims that the IURC’s order does not meet the criteria established by Indiana courts with respect to payment of attorney fees from a “common fund.” Additionally, CAC argues that even if a “common fund” exists from which to award attorney fees, the IURC unlawfully limited eligibility of attorney fees to signatories of a settlement reached in the IURC investigation. Finally, CAC contends that the IURC erroneously denied its request to conduct discovery with respect to the negotiations that resulted in the fee provisions of the settlement. Concluding that the funds in the escrow account comprise a common fund, that CAC’s argument with respect to attorney fees from the fund for non-signatories to the agreement is not ripe for review, and that the IURC did not err when it denied CAC’s discovery requests, we affirm the IURC’s order. * * *

In light of the issues addressed, we conclude that the funds in the escrow account constitute a common fund, that CAC’s argument with respect to attorney fees from the fund is not ripe for review, and that the IURC did not err when it denied CAC’s discovery requests. The IURC’s order is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Robert Dost v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]

"Based upon the foregoing authorities and analysis, we conclude that the search warrant issued for the purpose of searching Dost’s residence is valid and fulfills the requirements of the Fourth Amendment."

Amy Smith v. Julie & Scott Archer (7/27/04 IndCtApp) [Insurance]
Barnes, Judge

Amy Smith appeals the trial court’s imposition of sanctions for purportedly violating the Alternative Dispute Resolution (“ADR”) rules in connection with a court-ordered mediation session. We reverse.

The sole issue is whether the trial court abused its discretion in imposing sanctions. * * *

In sum, although a court “may” impose sanctions for violating an ADR rule, in this case the decision to do so was clearly against the logic and effect of the facts and circumstances before the court because there is no indication of intentional misconduct by Smith or her attorney or prejudice to the Archers or the mediation process. Therefore, the order imposing sanctions against Smith was an abuse of discretion. * * * Reversed.
CRONE, J., and BAKER, J., concur.

Jeffrey Gregg, et al. v. Jeffrey & Brenda Cooper (7/27/04 IndCtApp) [Insurance]
Sharpnack, Judge

Here, it is undisputed that Gregg was moving bales of hay from Bruin’s property to Gregg’s nearby property to feed his own cattle. Although Gregg was using Simpson’s tractor to move the bales and Simpson could have stopped Gregg from using the tractor, the movement of the bales was not related to Simpson’s farming operations. Despite Gregg and Simpson’s arrangement to trade Gregg’s labor for the use of Simpson’s equipment, no evidence was designated to demonstrate that Gregg was acting within the scope of his employment with Simpson or acting to further Simpson’s business at the time of the accident. Rather, Gregg was acting on his own initiative and for the benefit of himself. There were no genuine issues of material fact, and Simpson was entitled to judgment as a matter of law. Thus, the trial court erred by denying Simpson’s motion for summary judgment. See, e.g., Shelby, 533 N.E.2d at 1298 (affirming the trial court’s grant of summary judgment where the employee’s “action, if intentional, was done on his own initiative and not in service of” the employer and, thus, the employer could not be held liable on a respondeat superior theory).

For the foregoing reasons, we reverse the trial court’s declaratory judgment in favor of the Coopers on Simpson’s policy with United Farm, the trial court’s denial of the motion to correct error, and the trial court’s denial of Simpson’s motion for summary judgment, and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and ROBB, J. concur

Carl Richard v. Carmen Richard (7/27/04 IndCtApp) [Family Law]
Riley, Judge

Appellant-Petitioner, Carl A. Richard (Carl), appeals the trial court’s determination that he is the biological father of a daughter, C.R.R. We affirm. * * *

Despite Carl’s contentions, we find nothing in Charles’ testimony that constitutes the direct, clear, and convincing proof necessary to overcome the statutory presumption that Carl is the biological father of C.R.R. Thus, in the same vein that our supreme court has held that a putative father cannot overcome the presumption by merely denying he had relations with his wife, we hold that Carl cannot overcome the statutory presumption of paternity by merely presenting testimony of his identical twin brother that the child is probably his and he is willing to pay child support. As a result, we hold that the trial court committed no error in determining that Carl is the biological father of C.R.R.

Based on the foregoing, we conclude that the trial court did not err in determining that Carl failed to rebut the statutory presumption that he is the biological father of C.R.R. Affirmed.
KIRSCH, C.J., and NAJAM, J., concur.

Michael Sabo v. Anne Marie Sabo (7/27/04 IndCtApp) [Family Law; Constitutional Law]
Bailey, Judge

[Husband] appeals the trial court’s judgment dissolving his marriage to [Wife]. We affirm in part and reverse and remand in part.

Issue. *** [W]hether the trial court erred by conducting the final hearing without allowing Husband the due process opportunity to defend himself either in person, by counsel, or telephonically, in violation of Article I, Section 12 of the Indiana Constitution. * * *

[T]he trial court knew that Overton—i.e., the one responsible for setting up the telephonic conference—had withdrawn and that the Westville Correctional Facility did not set up the conference. As such, Husband—through no fault of his own—was denied his right to defend himself in the final dissolution hearing in person, by counsel, or telephonically. Accordingly, the trial court erred by conducting the civil hearing with Husband in absentia, without providing Husband a means by which to defend himself in the civil action. See, e.g., Murfitt, 809 N.E.2d at 334 (holding that the incarcerated defendant was not afforded the opportunity to protect his own interests in the divorce proceedings because he was unable to present his claim of defense in person, telephonically, by counsel, or through documentary evidence).

For the foregoing reasons, we affirm the trial court’s denial of Husband’s motion for appointment of counsel without making the requisite determinations, but reverse the trial court’s order because the trial court conducted the final hearing without allowing Husband a means to defend himself. We remand to the trial court for proceedings consistent with this opinion. Affirmed in part and reversed and remanded in part.
BAKER, J., and FRIEDLANDER, J., concur.

Ernest L. Jones v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

Ernest Jones appeals his conviction for nonsupport of a dependent child as a Class C felony and the sentence imposed thereon. We affirm but remand. * * *

Jones’ conviction does not violate double jeopardy principles. We affirm Jones’ conviction for nonpayment of child support but remand for the trial court to recalculate the amount of arrearage taking into account the order of abatement. We affirm the sentence because the amount of the arrearage is many times more than the statutory minimum even with the reduction due to the abatement. We affirm but remand for a recalculation. Affirmed but remanded.
CRONE, J., and BAKER, J., concur.

Johnathon Exum v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]
Baker, Judge

Appellant-defendant Johnathan Exum appeals his conviction for Murder, a felony, challenging the trial court’s application of the felony murder rule, set forth in Indiana Code section 35-42-1-1. Specifically, Exum argues that the death of Lawrence Duff, a co-perpetrator who participated in an attempted robbery, was not reasonably foreseeable to him, and that certain jury instructions were misleading, confusing, and incorrect statements of the law. Finding that Exum reasonably should have foreseen that the commission of Attempted Robbery, a class B Felony, would create a situation which would expose another to the danger of death, and, thus, he was a mediate or immediate cause of the death within the meaning of the felony murder statute, and that the jury instructions were not misleading, confusing, or incorrect statements of the law, we affirm. * * *

In light of our discussion of the issues set forth above, we conclude that (1) the death of Duff was reasonably foreseeable to Exum; (2) Exum contributed to that death; and (3) jury instructions number 38 and 39 were neither misleading, confusing, or misstatements of the law, nor did they prejudice Exum’s substantial rights. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Liberty Insurance Corporation and Liberty Mutual Insurance Group v. Ferguson Steel Company, Inc. (6/27/04 IndCtApp) [Insurance]
Barnes, Judge

Liberty Insurance (“Liberty”) appeals the trial court’s entry of summary judgment in favor of Ferguson Steel Company (“Ferguson”). We reverse and remand.

Issue. The issue before us is whether the trial court properly granted summary judgment in favor of Ferguson on the basis that Ferguson was an additional insured under Liberty’s policy on January 6, 2000. * * *

The question for the trial court was not whether there was an enforceable contract between Ferguson and Steel Frame on January 6, 2000, but whether there was an enforceable contract between Ferguson and Liberty with respect to coverage on that date. We conclude, based upon the undisputed material facts and the application of unambiguous policy language, that there was not. Therefore, the trial court erroneously entered summary judgment in favor of Ferguson. With respect to Liberty, based upon identical undisputed evidence, lack of a genuine issue of material fact in the case, and the clear and unambiguous language of the policy, the trial court erroneously denied Liberty’s motion for summary judgment. * * *

Reversed and remanded.
CRONE, J., and BAKER, J., concur.

Indiana Decisions - Three Tax Court Opinions Posted Today

U.S. Steel Corporation f/k/a U.S. Steel, LLC v. Lake County Property Tax Assessment Board of Appeals, et al. (7/26/04 IndTaxCT - Not for Publication) [Property tax]
Fisher, Judge

The Petitioner, United States Steel Corporation f/k/a United States Steel, LLC (US Steel), has appealed the final determination of the Indiana Board of Tax Review (Indiana Board) valuing its personal property for the 2000 tax year. The matter is currently before the Court on several motions regarding a settlement agreement. * * *

For the foregoing reasons, this Court now orders, pursuant to Indiana Trial Rule 21, that the Assessor be dropped as a party to this case. The Assessor’s motion is therefore rendered moot. Nevertheless, to the extent that this Court refrains from approving or rejecting the specific terms of the Agreement, the PTABOA’s motion is DENIED. Rather, should the remaining parties to the action choose to pursue their settlement, they must file a joint stipulation of dismissal of the action with the Court. Otherwise, the matter will proceed on its merits.

The Munster Times reports on this decision today in a story headlined "Ruling revives U.S. steel deal: Court rules Cal Township's Blumenberg not 'indispensable' to historic tax settlement."

[Update 7/28/04] The Times reports today: "Calumet Township Assessor Booker Blumenberg will appeal a ruling by Tax Court Judge Thomas Fisher that would allow the $52 million U.S. Steel settlement to move forward." Access the story here.

Logan Center Holding Corporation v. Department of Local Government Finance (7/26/04 IndTaxCT - Not for Publication) [Property tax]

"The issue to be decided by this Court is whether Logan’s improvements are entitled to additional obsolescence depreciation."

Keag Family Limited Partnership v. Indiana Board of Tax Review, et al. (7/26/04 IndTaxCT - Not for Publication) [Property tax]

"The matter is currently before the Court on Keag’s motion to extend the deadline for filing the Certified Administrative Record (Record) as well as the Respondents’ motion to dismiss."

Law - Michigan high school sports schedules favor boys

How Appealing has a link to a 6th Circuit ruling today that "holds that high school sports seasons have been scheduled in a manner that discriminates against female athletes on the basis of gender," and also points a narrower 2nd Circuit ruling (soccer only, and limited to two school districts). Some quotes from the ruling:

Communities for Equity—an organization of parents and high school athletes that advocates on behalf of Title IX compliance and gender equity in athletics— and the individual plaintiffs (collectively, CFE) brought a class action lawsuit against the Michigan High School Athletic Association (MHSAA), arguing that MHSAA’s scheduling of high school sports seasons in Michigan discriminated against female athletes on the basis of gender. The district court concluded that MHSAA’s actions violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title IX of the Educational Amendments of 1972, and Michigan’s Elliott-Larsen Civil Rights Act. For the reasons set forth below, we AFFIRM the judgment of the district court with regard to the plaintiffs’ Equal Protection claim, thus finding no need to reach the Title IX and state-law issues.

At issue in this case is whether MHSAA’s scheduling of athletic seasons and tournaments for six girls’ sports—basketball, volleyball, soccer, Lower Peninsula golf, Lower Peninsula swimming and diving, and tennis— violates the law. With the exception of golf, all of these sports are scheduled during the nontraditional season (meaning a season of the year that differs from when the sport is typically played). Cmtys. for Equity v. Michigan High Sch. Athletic Ass’n., 178 F. Supp. 2d 805, 807 (W.D. Mich. 2001). Although Lower Peninsula girls’ golf is played in the spring—the traditional season for golf—the fall season, when the boys play, is more advantageous. Id. No boys’ sports are scheduled in nonadvantageous seasons. Id. at 838.

Girls have historically played in the less advantageous seasons because of the way that high school athletics developed in Michigan. MHSAA’s executive director, John Roberts, explained in a 1990 article titled Sports and Their Seasons, published in MHSAA’s Bulletin, that “[b]oys’ sports were in [MHSAA member] schools first and girls’ sports, which came later, were fitted around the pre-existing boys program.” Id. at 815.

In its findings of fact, the district court painstakingly discussed each sport at issue and analyzed why play in the nontraditional season (or, in the case of golf, in the traditional season) harmed female athletes. Id. at 817-36. Among the harms found by the district court are the following: * * *

Indiana Decisions - Transfer List for Week Ending July 23, 2004

Hot off the press, here is the Indiana Supreme Court's transfer list for the week ending July 23, 2004. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

[Update] Correction.

Indiana Courts - Stories Today

There are a number of interesting stories from local, state and federal Indiana courts (and an Illinois court) today:

Zoning. "Judge voids town’s zoning code" is the headline to this story in the Gary Post Tribune. Some quotes:

NEW CHICAGO — The town’s entire zoning code, which in theory kept tattoo parlors from opening next to schools and strip clubs from popping up next to homes, has been thrown out by a Lake County judge.

Lake Superior Judge William Davis declared New Chicago’s zoning ordinances null and void after finding that the town neither had, nor can prove it had “a viable zoning system which complied with the requirements of Indiana state law.” * * *

In his lawsuit, [Crown Point attorney Thomas Parry] claimed the town’s definition of a building was vague, its setback rules arbitrary and that the town had no description of its street lines, other than that they are “where the pavement is.”

Further, without a zoning map, Parry said, the town had no way of knowing whether his clients lived in an area zoned for residential or commercial use, or what zoning should be applied. Judge Davis agreed.

[Town Attorney Kenneth Elwood] is recommending that the Town Council appeal the judge’s ruling. The town is not required to have zoning, he said. If the council authorizes an appeal, Elwood said he will ask for a stay order that allows the town to continue operating with its existing zoning codes.

Parry suggested that town officials look on the bright side of their defeat in court. “At least we knocked out the zoning before something really bad came in,” he said.

DNA Requirement The Trib also reports today on the Indiana Court of Appeals opinion -- Randal Balding v. State of Indiana (7/22/04 IndCtApp), reported here by the ILB last week. Some quotes:

The Indiana Court of Appeals upheld a Lake Superior Court decision requiring a man who was convicted of sexual battery to submit a DNA sample to be included in the state DNA database. * * *

The state appellate court disagreed, noting that state law requires individuals convicted of certain felonies — including sexual battery — to provide a DNA sample for testing and inclusion in the database so long as it does not pose an unreasonable health risk.

Though Balding was not ordered to submit the DNA sample until after his probation revocation, state law enacted in 1996 did require Balding to submit the sample.

“The state’s delay in requesting a sample until after the probation revocation did not make the requirement to submit a sample a new term of Balding’s sentence,” the court found.

The appeals court also found that Balding’s “reasonable expectation of privacy was greatly reduced” because he was a convicted offender ordered to serve the suspended portion of his sentence because he violated probation. In addition, the DNA sample is collected in a minimally invasive, pain-free way.

Adult video and novelty store/First amendment. This story in the Louisville Courier Journal reports:

A federal judge has cleared the way for legal action to continue in both federal and state courts in a dispute between the city of New Albany and the operator of an adult video and novelty store.

Judge Sarah Evans Barker said the city's actions against New Albany DVD, which was shut down in February, could be viewed as "bad faith prosecution" and a possible violation of store operator Danny Embry's First Amendment rights.

Statute of limitations on childhood sexual abuse allegations. The Chicago Tribune reports today, in a story headlined "Church to fight new law's time limit: Retroactive clause unfair, officials say," that:

The Catholic Archdiocese of Chicago plans to argue in court Tuesday that the state's recently extended statute of limitations on childhood sexual abuse allegations should not apply to suits filed before the law was changed.

The tactic has infuriated abuse survivors who feel the archdiocese has betrayed victims of sexual abuse by withdrawing its outspoken support of the law and invoking statutes of limitations to avoid liability.

Indiana Courts - Public defender standoff in Marion County

The Indianapolis Star reports today on the public defender standoff in Marion County. Some quotes:

Marion County judges appointed private attorneys to represent 42 children in juvenile court on Monday, exacerbating the county's financial troubles that led the public defender's office to stop accepting new cases last week.

Each private attorney will bill the county $90 an hour. That's a lot more than newly hired public defenders in juvenile court earn. They make $33,094 a year, or about $16 an hour, plus benefits.

"This is another example of the creation of a crisis and the failure to provide leadership," Juvenile Court Judge James Payne said. "We in the court are left to figure out how to create a system in a matter of days."

Citing oppressive caseloads in the juvenile court, the public defender's office stopped accepting new clients Friday, forcing judges then to appoint private attorneys to 17 youths accused of crimes.

Local judges are preparing paperwork that would effectively require the county to pay for new public defenders if local leaders can't come up with the answers.

Meanwhile, the Boston Globe reported here on June 29th, in a story headlined "Suit seeks pay raise for public defenders: Ability of indigent to get aid seen at risk":

A sweeping lawsuit filed yesterday with the state's highest court says that Massachusetts, a pioneer in guaranteeing legal counsel to poor criminal defendants, is reneging on that promise as private lawyers refuse to take court-appointed cases because of paltry pay rates.

The lawsuit against the state, which was brought by a law firm that has filed similar complaints elsewhere in the nation, says the number of private lawyers who take such cases has fallen by more than 200 in the past five years, largely because Massachusetts pays the attorneys only $30 an hour in most cases, the lowest statutory rate in the country.

As a result, the suit said, children and poor people are struggling to obtain lawyers in criminal and civil cases, and the system "teeters on the brink of collapse." The suit, which seeks certification as a class action on behalf of children and poor litigants, asks the Supreme Judicial Court to appoint a special master to study the system statewide. * * *

"Our view is that there's a systemic failure, and we're asking the court for systemic relief," said Joshua C. Krumholz, a lawyer with Holland & Knight. "It's at the point of crisis." His firm has been involved in similar suits in other states that led to higher pay for some court-appointed lawyers, including in Florida, Mississippi, Alabama.

The Mississippi lawsuit was the subject of two Indiana Law Blog entries in 2003. Although the links to the newspaper stories may no longer work, the quotes provide the gist. See this entry from Arpil 16, 2003 and this one from May 7, 2003 (the final item).

Arnold & Porter was the firm involved in the Mississippi suit. Here is a well-worth-reading article on their site, reprinted form The American Lawyer. Here are a few quotes from the story:

No outraged protesters gather at the Supreme Court on Gideon's anniversary; fanatics don't post Internet hit lists of "providers" of legal services; and federal judges aren't overseeing sweeping implementation plans for indigent defense programs in recalcitrant states. In fact, to this day the Court has offered remarkably little guidance on how the states should organize representation of the poor.

Predictably, that has led to a patchwork system among the states. There are three basic ways that states provide indigent defense services: appointing private lawyers; bidding out for contract lawyers; and maintaining full-time public defenders. A study released in 2000 by the U.S. Department of Justice's Bureau of Justice Statistics showed that 27 states fund all or most of their indigent defense programs. Twenty-two others are funded primarily at the county level or through a mix of state and county funds (Alabama uses court fees to fund a county-based system. See "Defense Systems.")

The burden of defending indigent cases is huge. The 2000 bureau study, for example, conservatively estimated that, in 1999, public defense lawyers in the nation's 100 most populous counties handled about 4.2 million cases. Nationwide, the bureau estimates that about 80 percent of all criminal defendants in state court are indigent. That means that of the roughly 1.2 million people tried on felony charges last year in state court, more than 900,000 were represented by public defenders of one kind or another.

Lack of sufficient funding to handle that burden is the perennial lament of public defense advocates, and the numbers support their concerns. A comprehensive 1986 survey conducted by the bureau showed that indigent defense received slightly more than $1 billion in state, local and federal funding, as opposed to $3.2 billion for prosecutors, $13 billion for corrections, and $22 billion for law enforcement. The 100-county study released in 2000 showed that, though spending on indigent defense had increased greatly during the previous decade, it still constituted less than 3 percent of the counties' criminal justice budgets.

See also this chart of defense systems in the various states.

[More] Here is an update to the Mass. lawsuit referenced above, from the July 3, 2004 Boston Globe:

The state's highest court ruled yesterday that dozens of poor criminal defendants in Hampden County are being denied their constitutional right to counsel because they cannot find private lawyers to represent them at low pay rates.

The Supreme Judicial Court said that the defendants have suffered ''severe restrictions on [their] liberty and other constitutional interests." The ruling came only two days after the state public defender agency had urged the justices to let Hampden judges raise the hourly pay rates for lawyers who take court-appointed cases,

But the court stopped short of ordering that hourly rates in the county be raised, which would provoke a showdown with the Legislature, which sets the rates.

Instead, the court ordered representatives of Attorney General Thomas F. Reilly and the public defender agency to appear Thursday before Justice Francis X. Spina.

Spina will weigh the possibility of releasing defendants who have been held without bail in jail for more than seven days without counsel. He is also considering dismissing charges against some defendants, but could reinstate them if lawyers are provided.

William J. Leahy, the chief counsel for the Committee for Public Counsel Services, was delighted with the ruling.

''The SJC has ruled . . . that the right to counsel for indigent defendants in Massachusetts is going to be enforced, no ifs, ands, or buts," he said. ''And if the price of the state not funding the right to counsel is the release of defendants from bail or the dismissal of criminal cases, then that is a price the court is willing to order."

And an update from the Mass. paper, The Republican, dated July 14th, reports:

SPRINGFIELD - The state agency that oversees legal representation for the poor yesterday submitted to the state Supreme Judicial Court the names of 79 defendants in Hampden County it counts as not having lawyers.

William J. Leahy, the chief counsel for the Committee for Public Services, said the Springfield office of the agency is not taking new cases because the 10 staff lawyers already are handling 350 cases - 20 cases over the maximum caseload limit for the office. * * *

The full Supreme Judicial Court July 2 ruled that about 50 poor criminal defendants in Hampden County are being denied their constitutional right to a lawyer because private lawyers are turning down cases, saying the state's reimbursement rates are too low. Private lawyers, called bar advocates, handled cases for the poor in addition to the Committee for Public Services lawyers, called public defenders.

The court assigned Francis X. Spina, an associate justice of the state Supreme Judicial Court, to find a way to resolve the issue.

At the full court's direction, Spina is considering the possibility of releasing suspects who have been held in jail without bail for more than seven days, because they do not have lawyers. He also is weighing whether to drop charges against other defendants, though those charges could be reinstated if lawyers are found.

Environment - Environmental Stories Today

Lake Michigan Shoreline. The Gary Post Tribune reports today, in a story headlined: "Purchase of steel mill lakefront land first step in shoreline rehab":

PORTAGE — The Indiana Dunes National Lakeshore announced an ambitious timetable Monday for cleaning up and opening to the public 60.63 acres of beachfront property it is purchasing from the U.S. Steel Midwest Plant. Superintendent Dale Engquist said the existing sewer plant on the property, which currently services U.S. Steel, should be demolished by May 2005. Engquist is hoping the beach will be open for hiking, swimming and fishing in about two years. The land, which lies within the authorized boundaries of the national lakeshore, will cost about $3 million when its purchase is complete soon.

Electronic reporting of environmental data. An AP story today reports:

TRAVERSE CITY, Mich. - It sounds positively medieval in the computer age: submitting handwritten reports to the government.

Yet that was how hundreds of businesses and agencies in Michigan prepared monthly wastewater discharge reports - until the state began using a new online system designed to rescue environmental data collection from the technological Dark Ages.

"It was very cumbersome," said Bruce Merchant, wastewater superintendent for the city of Kalamazoo. "We had to write the numbers onto old computer forms that made four or five copies, so you had to press real hard."

Michigan has joined the National Environmental Information Exchange Network, a newly formed system that makes it easier for government workers to compile, submit and swap data collected under federal air and water pollution laws.

Thirteen states are members, and the total is expected to reach 35 this year, the Environmental Protection Agency says. Federal and local agencies and Indian tribes also can take part. Eventually, the network will be a vast reservoir of information accessible not only to government officials, but also to scientists, environmentalists and other interests.

"It does for environmental data reporting what the Internet does for the general public," said Kimberly Nelson, assistant EPA administrator.

The network will provide regulators with more accurate and timely information and will be especially helpful during emergencies such as floods, oil spills, even a terrorist attack, when officials need rapid, up-to-the-minute facts and the crisis cuts across different government jurisdictions, Nelson said. * * *

In Michigan, Beaulac estimates the change will save the DEQ $250,000 to $500,000 a year, mostly in reduced staff time. It is already paying off in Kalamazoo, where Merchant said the monthly reporting chore now takes about half a day of staff time instead of two or three days.

The average citizen cannot log onto the network. But membership will be granted to some private interests such as academics and environmental organizations. And much of the information will end up on Web sites that anyone can view. "Letting people have the raw data so they can crunch the numbers themselves and take off any spin that an agency might put on it is an important check and balance in the system," said James Clift, policy director for the Michigan Environmental Council.

Is Indiana a member of the Network? I can't tell for sure. But here is the Network's website. And this list includes Indiana:

Nine states, consisting of Michigan, Florida, Indiana, Minnesota, New York, Pennsylvania, Rhode Island, Texas, and Wisconsin, recieved a Network Challenge Grant award to develop security and data exchange technologies to help states advance their capacity to participate in the Exchange Network.

More environmental stories may be posted here later today.

Law - Most Disfunctional Governor / General Assembly Winner May be Illinois

The St. Louis Post Dispatch reported here Sunday that "Memos protect Illinois budget deal." Some quotes from the story:

SPRINGFIELD, Ill. - By Saturday, a term previously known only to the most hopelessly wonkish of bureaucrats - "memorandum of