[Update Sat. 1/23/05]
Are we there yet? Almost.
Temporarily use this link to access the Indiana Law Blog at its new site, where you will find the latest entries. But I wouldn't suggest bookmarking it.
In a day or two the new Indiana Law Blog will magically appear when you use the indianalawblog.com address -- so I'd appreciate it if you would start out from this old site (which will use the indianalawblog.com address until the transfer over) until then.
The humble temporary site I have been using for the past week will disappear today, so I hope you haven't linked to it ....
J.R. v. State of Indiana (1/11/05 IndCtApp) [Juvenile Law]
Hoffman, Senior Judge
Respondent-Appellant J.R. appeals from the juvenile court’s true finding that he committed the delinquent act of receiving stolen property, a Class D felony if committed by an adult. Ind. Code §35-43-4-2(b). * * *Aberdeen Apartments, et al v. Cary Campbell Realty Alliance, Inc. (1/11/05 IndCtApp) [Trespass; Prior Restraint]The evidence that J.R. received stolen property is sufficient. * * * The juvenile court did not err in its determination that J.R. was a delinquent child for committing the act that would be receiving stolen property if committed by an adult because the evidence was sufficient. Affirmed.
CRONE, J., concurs.
BARNES, J., dissenting with separate opinion
Although I recognize that my view in this matter is not shared by a number of my colleagues, I believe that the statute, Indiana Code Section 31-37-10-2, requires a juvenile court to make an affirmative finding that the filing of the petition is in the best interests of the child. I understand the utility of the arguments advanced by others in M.B. and this case. I simply do not agree that we can or should “waive” a statutory condition precedent to jurisdiction. It is, I might add, not solely a “form over substance” argument that drives my concern.I adhere to the reasoning espoused in K.S. v. State, 807 N.E.2d 769 (Ind. Ct. App. 2004), aff’d on rehearing, 816 N.E.2d 1164 (Ind. Ct. App. 2004), trans. pending. To the extent my colleagues in M.B. and this case have relied on opinions issued in civil matters outside of the juvenile delinquency context to conclude that the failure to approve the filing of a delinquency petition merely impacts jurisdiction over the case and is a waivable error, I believe it is inappropriate to do so. The cases that have specifically addressed juvenile delinquency petitions overwhelmingly indicate that express court approval for the filing of a delinquency petition is absolutely necessary and non-waivable. As an intermediate appellate court, I do not believe we are free to change the law in this area.
I also observe that a juvenile court is a different animal than a superior or circuit court with criminal jurisdiction. It fashions remedies and resolutions that are not, and should not be, available to those other entities. The presiding judge may very well exercise his or her discretion upon the filing of a juvenile petition and divert the child into a more informal adjustment situation, believe that a CHINS petition is a more appropriate path to follow, or do any number of things that are outside the scope of a formal juvenile charge.
I do not think it is either onerous or legally outrageous to require a presiding judge to review a juvenile petition and, in addition to the other statutory mandates, find that the filing of that petition is in the best interests of the child and to expressly note such finding on the record. I respectfully dissent and would reverse J.R.’s delinquency adjudication.
Aberdeen Apartments and ninety-five other apartment communities See footnote in Hamilton, Hancock, Hendricks, Johnson, Marion, and Shelby counties (collectively “the Apartments”), appeal the trial court’s denial of their motion for a preliminary injunction against Cary Campbell Realty Alliance, Inc. (“Campbell Realty”). We reverse and remand. * * *Save the Valley, Inc., Hoosier Environ. Council, Inc., and Citizens Action Coalition of Indiana v. Indiana-Kentucky Electric Corp. and Indiana Dept. of Environ. Mgmt. (1/11/05 IndCtApp) [Admiistrative law]Campbell Realty is an Indiana corporation with its principal office in Hamilton County. It is a for-profit business that seeks to sell new homes to first-time home buyers. In order to find new buyers, Campbell Realty publishes the Renter’s Gazette. The Renter’s Gazette is a free publication that Campbell Realty has distributed to numerous apartment communities throughout central Indiana for the last two to three years. In City of Indianapolis v. Campbell, 792 N.E.2d 620, 626 (Ind. Ct. App. 2003), we held that the Renter’s Gazette qualified as a newspaper under a City of Indianapolis and Marion County ordinance. The Renter’s Gazette has the appearance of a newspaper. It is printed on newsprint and is folded down the middle. It is usually between eight and ten pages in length. The content of the Renter’s Gazette varies. It often contains articles that are appealing to renters, such as how to keep one’s apartment secure. It also usually contains the schedule of one of the local sports teams. Some of the articles in the Renter’s Gazette are designed to cast apartment communities, their management, and landlords in a negative light. * * *
Conclusion. The trial court abused its discretion in denying the Apartments’ motion for a preliminary injunction because landlords do have a sufficient possessory interest in the common areas of their properties to maintain an action for trespass to those areas and because the Apartments have presented sufficient evidence that they will suffer irreparable harm if a preliminary injunction is not granted. We also hold that the preliminary injunction sought by the Apartments will not constitute an impermissible prior restraint under either the First Amendment or Article I, Section 9 of the Indiana Constitution. The trial court’s denial of the Apartments’ motion for a preliminary injunction is therefore reversed, and we remand the case to the trial court. Reversed and remanded.
KIRSCH, C.J., concurs.
BAKER, J., dissents with opinion.
I understand that the Apartments find themselves in an aggravating situation—having to dedicate extra employee time to cleaning up the Renter’s Gazette from its properties, losing tenants who buy a home as a result of information contained in the Renter’s Gazette, and fearing a loss of prospective tenants who see the littered properties and choose not to rent an apartment. But I believe that granting the requested preliminary injunction gives landlords an unprecedented right to bar whomever they choose from their properties, and I also believe that the injunction violates Campbell Realty’s and the tenants’ rights under the First Amendment to the United States Constitution and Article I, Section 9 of the Indiana Constitution. Therefore, I respectfully dissent from the majority opinion. * * *
Save the Valley, Inc., Hoosier Environmental Counsel, Inc., and Citizens Action Coalition of Indiana, Inc., (collectively “Appellants”) appeal the denial of their motion to dismiss and the granting of a motion for partial summary judgment filed by Indiana-Kentucky Electric Corporation (“IKEC”). We reverse.Issue. The Appellants raise three issues, which we consolidate and restate as whether the trial court properly granted IKEC’s partial motion for summary judgment. * * *
As recognized by the Connecticut Supreme Court, associational standing advances two important objectives. First, allowing an association to represent its members’ interests promotes judicial economy and efficiency. The Hunt requirements allow a single plaintiff, in a single lawsuit, to adequately represent the interests of many members, avoiding repetitive and costly independent actions. Associational standing also allows members, who would have standing in their own right, to pool their financial resources and legal expertise to help ensure complete and vigorous litigation of the issues. A third reason for allowing associational standing was recognized by the Georgia Supreme Court when it observed that associations are generally less susceptible than individuals to retaliations by officials responsible for executing the challenged polices. * * *
The Appellants were not proceeding in their own right nor were they asserting that the public as a whole was harmed by the granting of the permit. See footnote Instead, the Appellants were proceeding on behalf of specific members who were individually aggrieved or adversely affected by IDEM’s decision. Because the Appellants were simply acting in a representational capacity on behalf of the members who were aggrieved or adversely affected by the granting of the permit, Indiana Code Section 4-21.5-3-7 is satisfied. In this context, the associations’ standing is based on its members possessing standing to seek administrative review in their own right. We see no reason why the Appellants should not be permitted to seek administrative review under the doctrine of associational standing.
In determining whether the Appellants satisfy the three requirements set out in Hunt, the parties do not appear to dispute that the named members are aggrieved or adversely affected by the granting of the petition. More specifically, however, the members named in the Appellants’ amended petition appear to have standing in their own right because they allege to be aggrieved or adversely affected by IDEM’s granting of the petition. “Aggrieved” has been defined as another person’s actions or a court’s decree or judgment adversely affecting someone’s personal, pecuniary, or property rights. “Aggrieved” has also been defined as a substantial grievance, including the denial of a personal or property right or the imposition of a burden or obligation on a party.
The petition alleged that members of the groups reside, work, and recreate in the area affected by the landfill and that the individual members would be adversely affected by the impact on the groundwater and by fugitive dust from the landfill. Second, because the Appellants aim to protect the environment and advance members’ interests on energy and utility issues, the interests they seek to protect are germane to the organizations’ purposes. Third, the Appellants only sought review of the granting of a permit and not an award of monetary damages, which would have required individualized proof. Thus, the three requirements of the Hunt test are satisfied.
Finally, based on our conclusion that the Appellants had standing to seek administrative review, we must also conclude that the trial court improperly denied their motion to dismiss IKEC’s petition for judicial review and complaint for declaratory judgment. Because the Appellants had standing, the OEA had jurisdiction over the case, requiring the Appellees to comply with the AOPA procedures for seeking judicial review.
Conclusion. The trial court improperly granted IKEC’s motion for partial summary judgment and also improperly denied the Appellants’ motions to dismiss. We reverse.
NAJAM, J., and SULLIVAN, J., concur.
Joseph E. Corcoran v. State of Indiana (1/11/05 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice
Joseph E. Corcoran, convicted of four murders and sentenced to death, indicated that he believed he should be put to death for his crimes and waived any further legal review of his convictions and sentence. The State Public Defender took the position that he was not competent to make that decision. The trial court with responsibility for this case found Corcoran to be competent and the State Public Defender appealed that determination. Recently, Corcoran recanted his waiver of further review and now seeks dismissal of this appeal. For the reasons set forth in this opinion, we deny Corcoran’s recent request for dismissal and affirm the trial court’s determination of competency. * * *
Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., dissents with separate opinion.
Rucker, Justice, dissenting.I respectfully dissent because I believe Corcoran is not competent to waive his right of post-conviction review. * * *
Foss, Kenneth v. Bear Stearns & Co (ND Ill.)
Canaan, Keith B. v. Davis, Cecil (SD Ind., David F. Hamilton, Judge)
* * *USA v. Harris, Loumard (SD Ind., Larry J. McKinney, Chief Judge)
Because Canaan’s counsel was ineffective in failing to consult
with him regarding his right to testify at the penalty
phase of the trial, we AFFIRM the judgment of the district
court issuing a writ of habeas corpus on this basis and
vacating his death sentence. We REVERSE that part of the
district court’s judgment granting Canaan habeas corpus
relief based on his claims relating to the attempted criminal
deviate conduct conviction. The State of Indiana is free to
conduct a new death penalty hearing, providing that the
State files appropriate documents seeking such relief within
120 days of the mandate of this court.
Before EASTERBROOK, KANNE and ROVNER, Circuit Judges.Ali, Mirwais v. Ashcroft, John (Immigration)
ROVNER, Circuit Judge. Loumard Harris was charged
with violating 18 U.S.C. § 922(g)(1), which prohibits felons
from possessing guns. His first trial ended in a hung jury,
but a jury convicted him at a second trial. Between the first
and second trials, Harris had a falling-out with his courtappointed
attorney and he asked for new counsel. The
district court declined his request. The details of the conflict
are not for the most part in the record of this direct appeal.
Nevertheless Harris appeals his conviction on the grounds
that (1) the district court erred in denying his request for
new counsel; (2) the denial resulted in ineffective assistance
of counsel; and (3) section 922(g)(1) is an unconstitutional
exercise of federal power over purely intrastate activities in
contravention of the Commerce Clause. Reversals of
convictions on direct appeal on the grounds of ineffective
assistance of counsel are exceedingly rare in any court, and
Judge Easterbrook noted at oral argument that none can be
found in this Circuit. Having thoroughly warned the
defendant and his lawyer of the steep uphill climb—a
vertical climb, really—that they would have to make, they
chose to go forward with this direct appeal even though its
failure would mean the claims could not be brought later
with a fully developed record in a petition for habeas
corpus. That consequence now comes to pass as we affirm
the judgment of the district court.
Several stories today report on executive orders Governor Daniels already has signed, or will sign today. The Evansville Courier&Press has a list today of the 13 Executive Orders that the new Governor signed yesterday:
Making good on campaign pledges, Gov. Mitch Daniels initiated new in-state purchasing and ethics policies Monday within hours of being sworn into office.The Governor is to take additional actions today (In fact, accorting to a story just posted in the Star, he has just "issued executive orders that invalidated existing labor contracts. Those contracts, ratified in executive orders signed by Kernan, ran through June 2007.")
Those were two of 13 executive orders he signed.
In others, he reorganized the state's economic development efforts, launched an inventory of state property and equipment that could be sold and ordered Internet posting of state contracts.
One of the most significant changes he made was to have leaders of the State Budget Agency, Department of Revenue, Office of Public Finance and Department of Local Government Finance report to Charles Schalliol, director of the newly formed Office of Management and Budget.
Schalliol's OMB also will oversee the Public Employees' Retirement Fund, the Teachers' Retirement Fund and the State Board of Accounts "to the fullest extent permitted by law."
Daniels said he will sign an executive order this week to create a free-standing human services agency to handle child protection and child support.
Other orders signed:
• Creating the OMB, the Office of Secretary of Commerce, the Office of Inspector General and the Office of Federal Grants and Procurement.
• Requiring the Department of Administration to recognize the Indiana Regional Minority Supplier Development Council's certification of minority-owned companies, making it easier for such companies to do business with the state.
• Establishing rules of ethical conduct for state workers.
• Requiring state contracts to be published on Indiana's Web site.
• Establishing a purchasing preference for Indiana-made goods and services.
• Requiring state officials to inventory property and equipment and divest of unused or underused assets.
Where are the new Executive Orders? None of these Executive Orders appear to be available online. Perhaps it is a one-time glitch, because of the change-over in administrations. As these documents have the effect of law, it is important that they they be just of accessible (and equally accessible) to all Hoosiers as the actions of the General Assembly and rules adopted by state agencies.
Where are the old Executive Orders? However, it appears also that Governor Kernan's executive orders are no longer available online. These executive orders, along with other important documents such as the veto messages of past governor Kernan and O'Bannon, are important recent history that should remain readily accessible, in my opinion. I know that during the last session, I referred to earlier veto messages of both prior governors often, and a number of times quoted from them in the ILB.
Advance notice of rules and orders. Yesterday the Indianapolis Star had an editorial titled "Keep government open, accountable." Some quotes:
IEDC's administrative rule-making process, in which it actually takes over the role that the General Assembly would otherwise play in approving economic development regulations, would be exempted from Indiana Code guidelines requiring public comment. The agency could essentially pass rules without any public input. Negotiations with businesses also would be kept quiet until the agency decided the deal was done; the public would have little say about tax abatements or land-use arrangements until late in the process.However, if I correctly understand the 2nd reading amendment approved yesterday, rules of the IEDC are to be considered "emergency rules" under the law, meaning that they go into operation at the time the agency directs, and may not appear in the Indiana Register until weeks thereafter.The IEDC isn't exactly an agency that should be less accountable to the public. After all, the vast array of roles IEDC is taking over from the Department of Commerce include the power to slash regulations, control such programs as the 21st Century Research and Technology Fund, and certify and fund powerful local redevelopment agencies. Oversight is especially important considering that the agency's board members likely will have little experience with the constraints that come with working in the public sector.
Yes, the state does need to speed up decision-making and cut out bureaucracy. And Daniels' legislative director, Jennifer Thuma, also is correct in noting that many of the state's quasi-governmental affiliates are exempted from rules concerning public comment. But that very lack of accountability is one reason why Indiana state government has been sharply criticized in recent years, including from Daniels himself.
The Star's concern is that there is no opportunity for public comment. An equal concern, in my opinion, is that there be opportunity for advance notice or warning that a rule of the IEDC (or an Executive Order of the Governor) is about to go into operation, and that there be an equal opportunity for notice of the existence and content of an impending change in "law" or procedures that may impact, for instance, your business or future dealings with the State, before it goes into operation, even if this means nothing more than that everyone is on equal footing in so far as knowledge of the law or the operation of state government is concerned
"Daniels' request surprises education panel members" is the headline to this story today in the Indianapolis Star that begins:
Hoosiers serving on boards setting policy for public schools and universities were troubled and surprised by news Monday that Gov. Mitch Daniels intended to seek their resignations. Quite a few said they wouldn't comply.Members of both education panels agreed widespread changes would wipe out the depth of experience and historical knowledge on the boards -- and that could harm Indiana's efforts to improve its schools and universities.
"I don't think that is good policy at all," said Bryon E. Klute, a higher education commission member who intends to finish his term. "For someone who is brilliant and put in all kinds of hours, why would you ask that?"
The 14-member Indiana Commission for Higher Education and the 10-member State Board of Education are among 11 appointed panels Daniels wants to overhaul..
Posted by Marcia Oddi at 10:06 AM
The Chicago Tribune has a story last Friday that began:
Gov. Rod Blagojevich ordered a Joliet landfill closed Thursday, two weeks after he found out one of his wife's cousins is alleged to have told construction waste haulers he had clout and they could dump anything at the site without scrutiny from environmental regulators.A second story today reports:A top Blagojevich aide said the governor got involved in a matter normally handled by rank-and-file state employees to send a message that nobody in his family should expect special treatment, in particular his father-in-law, Chicago Ald. Richard Mell (33rd).
Wielding the same rarely used power that led to the quick closing last week of a Joliet landfill run by a relative of First Lady Patti Blagojevich, Gov. Rod Blagojevich has asked state inspectors to visit a controversial south suburban dump with the intent to shut it down, administration sources said Sunday. * * *For those with long memories, the LA Times reports today, in a story headlined: "Ex-EPA Official Gets 15 Months for Wire Fraud":The dump near Ford Heights has been operated by John Einoder of Orland Park. Einoder has been facing civil environmental charges lodged by Atty. Gen. Lisa Madigan's office involving the landfill, which last fall encompassed 11 acres. The charges include operating a waste-disposal facility without proper permits and open dumping. * * *
The Ford Heights landfill began operating in 2002 under an agreement with the village aimed at turning the facility into a ski slope once dumping is completed. In August, inspectors from the Illinois EPA reported that the dump appeared to have doubled in size since May 2003, when it was 67 feet high.
Lawmakers during last year's spring legislative session tried to protect the Ford Heights facility from shutdown efforts by Madigan and the state EPA through the passage of a bill that would have exempted the dump from environmental regulations because it was being constructed as a "recreational facility."
But Blagojevich vetoed the legislation in August, and state EPA officials said there was no guarantee the site would ever be turned into a ski slope. Only days before the governor's veto, Madigan, at the request of the EPA, filed a lawsuit against its operator and the case has been slowly making its way through the courts, most recently in arguments over the dump's legal representation.
A former high-ranking official in the EPA during the Reagan administration was sentenced Monday to 15 months in federal prison for wire fraud and making false statements to the FBI.A lengthy story in the Louisville Courier Journal Monday, headlined "MSD fertilizer plans troubled: Agency takes steps to fix smelly, fire-prone pellets", reported:Rita Marie Lavelle orchestrated a scheme to fraudulently obtain money from a client who had hired her San Diego County company to assist in the cleanup of a Superfund site, federal authorities said.
The Metropolitan Sewer District's plan to turn treated human and industrial waste into fertilizer pellets has been beset by problems with odor, dust and fire.The fertilizer, called Louisville Green, was so smelly at one Indiana fertilizer and topsoil business that workers threatened to quit, and it caught fire and burned two storage buildings in Arkansas.
"Sometimes (the odor) was awful bad," said Wayne Mannis, an Arkansas fertilizer dealer who lost some of the pellets in the two fires. "Consider the source, then you can understand it."
To fix the problems, MSD has added an iron compound to reduce odors, an oil to dampen dust and a flame retardant to reduce its combustion potential. But these steps bring increased costs that could reduce revenue.
MSD is also studying a potential multimillion-dollar upgrade of its Morris Forman Wastewater Treatment Plant to fully break down sludge — a move that could end Louisville Green odors, but one that would be on top of $70million already spent on a treatment system that produces the pellets.
Despite the problems, which are spelled out in reports and memos obtained by The Courier-Journal under Kentucky's Open Records law, MSD officials and businesses that have tried the product remain optimistic about its potential, saying most new business ventures have hurdles to overcome.
Looking through the Indiana Law Blog archives, I found this entry from January 13, 2004, which begins:
Yesterday was the oral argument before the Indiana Court of Appeals in the case of Ruth Morrison, et al., v. Doris Ann Sadler, et al., challenging Indiana's prohibition against same sex marriage, found at IC 31-11-1-1. You may listen to the argument online here via the Indiana Judiciary site. Earlier Indiana Law Blog coverage may be found here and here.An opinion has not yet been issued. The following are on the three-judge Court of Appeals panel that heard the argument: Judges Friedlander, Kirsch and Barnes.
"Open the door on votes in committees" is the heading to a letter to the editor today in the Indianapolis Star. The letter:
Opening up Indiana government to the people is a very worthy idea, but I'm not sure that video streaming of House floor activities is the best way for the public to get the most information it needs to decide if legislators are doing the jobs they were elected to do.The writer will be happy to know that the committee votes actually already are available online. This may well be new this year; I don't recall seeing them in the past.The most useful tool would be to post all committee votes on the Internet. I know from experience how hard it is to find out if your lawmaker even showed up to vote in a certain committee, let alone how he or she voted. The way it stands now, a candidate could run for office based on a promise to work hard to get certain legislation passed, have that bill show up in a committee hearing, vote against it and encourage other lawmakers to vote against it, and then blame everyone else for it "dying in committee."
No one would ever know they were scammed because no one keeps records on who votes on what. We need House Speaker Brian Bosma and Gov. Mitch Daniels to establish a system in which all committee votes can be recorded and disseminated to the public in a fashion that is easy to understand.
As an example, look at House Bill 1003, the economic development bill. The bill was passed out of the House committee on 1/5/05; here is a copy of the roll call vote.
Today, according to the Action List, the bill was on Second Reading in the House; it was amended on second reading and ordered engrossed. What were these amendments? Looking at the main HB 1003 page, near the bottom, you will see a list of all House amendments filed, and a much shorter list of those passed. In this case, only one 2nd reading amendment passed - identified as 1003-15. The roll call vote on the second reading amendment that passed, as well as those that failed, also should be available.
Problem. I confess however, that I can't locate the roll call right now. There also seems to be a problem with the General Assembly's software, as the entries on the page are repeated scores of time. Hopefully, this glitch will be corrected quickly.
[Update 1/11/05] A reader has sent a little more information.
This is indeed the first session that committeee vote sheets have been available online (although they have been available in past years from the Legislative Information Center, aka the "bill room").
As for how to tie a house amendment to its proper roll call, it is possible, but not simple right now, according to the writer:
It appears that the roll calls listed at the "Roll Call(s)" bullet are numbered according to the number of roll call that the House has taken this session. You may recall, they start at #1 and keep going to sine die. (I think each chamber does about 600 or 700 a Session.)
Under the "House Amendments passed" bullet, the motions are numbered according to the LSA document number assigned to that motion. In the case of 1003-15 for example, that motion is the 15th motion we processed for HB 1003. That motion may be the first one filed or it may never be filed. If you look at the bottom left corner of the document, you will see MO100315. That is where 1003-15 comes from.
If you look at the top left corner of the document, you see that the motion is HB 1003-1. It was the first motion filed for this bill. Rep. Borror filed it today at 9:45am. This was the motion disposed of on Roll Call #9 (The roll call sheet shows "2nd Reading Amend. #1".)
Per a release this afternoon from the Office of the Chief Justice:
Senior Judge Richard P. Good has been appointed as a temporary judge for the Marion Superior Court until Governor Mitchell E. Daniels Jr. names a permanent replacement, Chief Justice Randall T. Shepard announced today.A vacancy on the Marion Superior Court was created when veteran Juvenile Court Judge James W. Payne resigned today to take a position with the administration of Gov. Daniels. Senior Judge Good will begin work immediately.
Judge Good was previously a judge on the Marion Superior Court until his retirement in 2002 and has been a senior judge since then. In 2004 he served as a senior judge in Marion County more than 60 times. He has also been a chief deputy prosecutor and was the longtime executive director of the Indiana Prosecuting Attorneys Council. In addition, he was a member of the commission that drafted the existing Juvenile Code.
“The members of our Court are grateful Judge Good is willing to serve a senior judge until a permanent replacement for Judge Payne is named. We are confident the Juvenile Court will run smoothly during this transition period. Judge Payne has brought national honor to Indiana for his work with children. While we are sad that he has left the bench, we wish him all success in his new assignment,” said Chief Justice Shepard.
Senior judges typically fill in on as needed basis in courts with high caseloads or where a judge is absent due to circumstances like illness or military service.
Gov. Daniels will select a permanent replacement for Judge Payne for a term that was scheduled to last until December 31, 2008.
Kort, Elizabeth v. Diversified Collection (ND Ill.)
Before POSNER, MANION, and EVANS, Circuit Judges.
MANION, Circuit Judge. Elizabeth Kort, representing a
class of individuals, sued Diversified Collection Services
(“DCS”), claiming that DCS violated the Fair Debt Collec-
tion Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq., by
mailing her and others misleading garnishment notices. The
debts at issue were student loans governed by the Higher
Education Act (“HEA”), 20 U.S.C. §§ 1070, et seq. The text of
the garnishment notice was taken entirely from a form
issued by the Department of Education (“DOE”), which is
the federal agency charged with regulating under the HEA.
Given DCS’s reliance on the DOE form, the district court
ruled that DCS was entitled to an affirmative defense under
the FDCPA known as the “bona fide error” defense and
thus granted DCS summary judgment on this issue. Kort is
no longer prosecuting the case, but Hattie Harris-Alleyne
and Lindsay Miller have intervened to appeal the grant of
summary judgment to DCS on behalf of themselves and the
corresponding class. We affirm. * * *DCS’s adherence to the DOE form in its garnishment
notice entitles it to the bona fide error defense, and DCS is
thus insulated from FDCPA liability with respect to its
handling of the HEA unemployment exemption.
"Members of gaming panel face uncertain future" is the headline to Lesley Stedman Weidenbener's Sunday column in the Louisville Courier Journal. She writes:
Gov.-elect Mitch Daniels, who takes office tomorrow, said last week he expects that Hoosiers serving on state boards and commissions will resign — without his having to ask. That's thousands of people, serving on high-profile boards like the Indiana Utility Regulatory Commission and obscure ones like the Indiana Corn Marketing Council.A Dec. 4, 2004 Indiana Law Blog entry made a similar point. I wrote, near the end of the entry:If members don't tender their resignations, Daniels says he'll ask for them. Not all of them will be accepted, Daniels said. And in some cases, he's seeking to eliminate the boards anyway.
But there's one agency where the request is already causing some fireworks. Daniels wants members of the Indiana Gaming Commission — which oversees the state's 10 casinos and is contracting the operation of an 11th in French Lick — to resign so he can have his own appointees.
But unlike many of the state's boards, gaming commission members don't by law serve at the pleasure of the governor. That means the governor can't just remove members because he doesn't like them, or because he's found other people he'd rather have fill the spots.
State law specifically establishes four-year terms for members of the gaming commission and says they can be removed for the following reasons: neglect of duty, misfeasance, malfeasance or nonfeasance. Essentially, that means failing to follow state laws.
Contrast that with the law establishing the Indiana Utility Regulatory Commission. It says members "may be removed at any time by the governor for cause." It doesn't define cause, leaving the door wide open for a governor to use just about any reason to remove a member.
Looking at another "commission" for contrast with the gaming commission, the Indiana Utility Regulatory Commission (URC) (IC 8-1-1) has 5 full-time commissioners, no more than three of whom may be of the same party. The members of "shall be appointed by the governor from among persons nominated by the nominating committee in accordance with the provisions of IC 8-1-1.5." The members are appointed by the governor for four-year staggered terms, and "members may be removed at any time by the governor for cause." * * *To expand on that, the basic model in Indiana, as established by the Indiana Constitution, is that the Governor alone heads the executive branch, he/she appoints the people who heads the various agencies of government, and they serve "at the pleasure of the Governor."Essential, in my opinion, to any effective reorganziation of state government is assuring that the constitutional responsibilities of the governor: (1) in administering the executive branch of state government and (2) in taking care that the laws are faithfully executed, are adequately reflected in the statutory framework.
Over the years, there have been efforts to circumscribe the power of the Governor. This would seem to be an inevitable result of the dynamic tension between the executive and legislative branches of government.
The most notable occurred in 1941, when the General Assembly took away the power of the Governor to appoint the heads of most state agencies, distributing the authority instead among other state elected officials such as the Auditor, Treasurer, Secretary of State and Lieutenant Governor (who was separately elected under the constitutional provisions then in force). In a 1941 decision called Tucker v. State, the Supreme Court threw out the challenged statutes. Tucker and subsequent decisions define the role of the governor and prohibit the Indiana general assembly from encroaching upon the executive branch of state government by (1) appointing its own members to perform executive functions or (2) by enacting laws that dilute the powers of the governor.
In the 60-plus years since Tucker, however, the General Assembly has tried out a number of variations on the basic model, aimed at sharing the Governor's executive power, or limiting it.
The most recent example of an effort at both is found in the Indiana Economic Development Commission (IEDC) law, as originally drafted in 2003. The IEDC was to be headed by the Lieutenant Governor and run by a 23 member board, with twelve board members to be appointed by the General Assembly, and a number of others to be appointed by state university heads. The Governor was given three appointments.
Many of the problems with the IEDC were corected in the 2004 session of the General Assembly, and additional changes are being made this year. (See the ILB entry, "Economic Development and the Indiana Governor," from May 17, 2004.)
Rather than directly removing the Governor's appointment powers, many laws try to circumscribe it. Here are some of the ways this has been done, in no particular order. Some of these examples, either clearly or arguably, limit a governor's authority in making appointments, or otherwise dilute his/her right to select his own people, or dilute the powers of a governor.
Readers may be able to provide other examples. There is currently much variation in the law. The question is - how far, if at all, may the Governor's appointive power be circumscribed without running afoul of the Indiana Constitution?Requiring that the Governor make his selection from people nominated by a panel, or from recommendations made by the General Assembly, or from nominees submitted by a university or a trade group. By provisions that set a fixed term for an appointment, rather than service "at the pleasure of the Governor." By provisions that provide that the appointee may only be removed by the Governor "for cause" or for certain described reasons (thereby defining "for cause" -- the gaming commission is an example).
[More] This morning's Indianapolis Star has a front-page story by Kevin Corcoran headlined "Kernan rejects request to seek resignations: Daniels' aides sought predecessor's help replacing members on boards, commissions." Some quotes:
"I anticipate asking members of boards of all kinds to tender resignations," said Daniels, who will be sworn into office today. "We think that would be appropriate in the case of very important policymaking bodies. We'd like to be able to change these bodies, just like the rest of state government.Perhaps. The story goes on to report:"We hope that current appointees will do the right thing and at least tender those resignations," he said. "Not all will be accepted. I think that if I were a board member under these circumstances, I would offer up my resignation."
Even if Daniels asks, however, nothing in state law requires members of these boards and commissions to comply. Most state boards and commissions involve fixed terms. The new governor can't fire members if their terms aren't up.
Kernan filled vacancies on full- and part-time state boards and commissions at an unprecedented pace last year, meaning his influence over state government could continue for some time. In all, Kernan appointed and reappointed 1,242 people to more than 300 boards and commissions, Kernan spokeswoman Lisa Sirkin said.The total number of people serving on state boards and commissions is 2,428. Under state law, these board and commission members generally serve terms that overlap those of the state's governors to ensure some continuity. Kernan did not want to disrupt this pattern.
"State Panel Plan Assailed: Unions and lawyers for injured workers say a proposal to merge three boards is a power grab that would endanger their independence." That is the headline to a January 7, 2005 story in the LA Times.
Why another Arnold story? Because of the similarities between two new state administrations - California and Indiana - that have vowed to change the ways their states are doing business. Some quotes from today's story:
SACRAMENTO — Labor unions and attorneys for injured workers are slamming Gov. Arnold Schwarzenegger's proposal to fold into one agency three state boards that decide workplace issues.More from the story:The plan is part a sweeping government reorganization that the governor proposed in his State of the State speech Wednesday, a plan that would eliminate more than 100 government boards and commissions.
Schwarzenegger wants to combine the Workers' Compensation Appeals Board, the Unemployment Insurance Appeals Board and the Occupational Safety and Health Appeals Board into one, nine-member commission. All of the members of what one administration lobbyist dubbed "the übercommission" would be appointed by the governor and could be dismissed at any time.
The proposal, which could go into effect in 90 days if not rejected by the Legislature, is being touted by Schwarzenegger as a reform measure that would end the long-standing practice by outgoing governors of packing little-known state panels with their political cronies.The governor wants more control over the appointees, who typically earn six-figure salaries, serve extended terms and sometimes fail to show up for work, said Victoria Bradshaw, secretary of Schwarzenegger's Labor and Work Development Agency.
The Evansville Courier&Press writes today:
Because Daniels will be the first Republican in 16 years to head state government, his administrative makeover is extensive. There will be a whole new team of administrators, department heads and policymakers running the executive branch of Indiana government.Most of these new executives do not have statewide name recognition or extensive state government experience. Of course, in Evansville, we are familiar with insurance agent Harold Calloway, who will become the new commissioner of the Indiana Department of Insurance under Daniels. But others are unknown here and elsewhere in Indiana. That's because many of them have been recruited by Daniels from business and industry, most from outside mainstream government service.
For example, the new head of the Indiana Department of Transportation is Thomas Sharp, a retired Alcoa executive. The new head of the Indiana Department of Environmental Management is Thomas Easterly, president of an environmental consulting firm and a former steel company official.
The new head of the Bureau of Motor Vehicles is the former president and CEO of a sporting-goods company. A businessman was recruited to head the Indiana Economic Development Corp. A retired company president was named to head the Department of Administration, and a popcorn-company executive will head agriculture.
That composite business/industry connection may well serve Daniels' plan to make state government a far more efficient, businesslike operation. It's a worthy goal for a state government that hasn't had a good shakeup in years.
However, because most of their experience is outside of government, it would be understandable if this new corps of executives is found to be less than familiar with Indiana's public-access laws. If so, it will be important that they get up to speed on the state's open-meetings and open-records law. Those laws provide that citizens are entitled to complete information on the activities and business of their government. * * *
One early test occurred this past week, when the Indiana House Economic Development and Small Business Committee voted 9-to-2 to pass a bill pushed by Daniels that shifts responsibility for economic development to the Indiana Economic Development Corp., a quasi-government board.
As staff writer Jennifer Whitson reported, backers of the switch say the board, made up of private-sector representatives appointed by the governor and not hampered by the red tape of normal state regulations, would be able to move quickly to woo new businesses to Indiana.
That description had red flags waving from Indianapolis to Evansville, with some lawmakers expressing concerns about whether the board would acknowledge the open-records laws.
But in approving the bill, the committee included wording that the commission falls under Indiana's public-access laws. That's a good start.
As a candidate, Daniels assured Hoosiers that he is committed to open government. He told a group of newspaper editors in October that, among other steps, he favors more disclosure about the details of state contracts.
As a candidate, Daniels said the right things about open government. It is an attitude we hope he has communicated to his new administration.
Susan Guyett reports in her column in the Indianapolis Star today:
The law firm of DeLaney & DeLaney just added a new partner. Ed DeLaney, who was a partner at Barnes & Thornburg, has joined the civil litigation firm that his wife and daughter started in 2002.His daughter, Kathleen DeLaney, is the firm's managing partner; his wife, Ann DeLaney, practices law while serving as executive director of the Julian Center.
Use of the search box reveals that many Indiana Law Blog entries have reported on redistricting. Two particularly appropriate as background to this entry today on California Governor Schwarzenegger's proposal to overhaul his state's redistricting process are this one from Feb. 21, 2004, titled "Elections With No Meaning," and this one from May 23, 2004 titled "Indianapolis Star editorializes against gerrymandering."
Also, this from the end of a Sept. 19th, 2004 ILB entry (unfortunately the Star links now lead only to its pay-for-view archive).
"Drawing the political lines: How gerrymandering affects election results" is the focus of a dual-author opinion piece today in the Star's opinion section. Too complex to summarize, but certainly worth a read, "Craig Ladwig of the Indiana Policy Review Foundation and Rob Richie and Steven Hill of the Center for Voting and Democracy examine this lack of competition [that is the result of gerrymandering] and what can be done about it." Their answer appears to be "not much." This has also been the answer from earlier ILB entries, including this one from May 23, 2004.Governor Schwarzenegger does not agree that not much can be done, as shown by his annual State of the State address last week. Here are some quotes from a story published Jan. 6, 2005 in the NY Times:
In his annual State of the State address on Wednesday night, the governor called on the Democratic-controlled Legislature to enact a fundamental overhaul that would include that most sacred of political cows, the way Congressional and legislative districts are drawn.An analysis piece in the LA Times, dated Jan. 5, 2005 (before the speech), contain much interesting background. And here are two editorials from today's California papers.Mr. Schwarzenegger proposed turning over the drawing of the state's political map to a panel of retired judges, taking it out of the hands of lawmakers who for decades have used the redistricting process in a cozy bipartisan deal to choose their voters and cement their incumbency. He threatened to take the issue directly to the voters if the Legislature does not act on the plan in a special session he called for.
Mr. Schwarzenegger, a Republican, noted that of the 153 seats in the California Congressional delegation and Legislature that were on the ballot in November, not one changed party hands.
"What kind of a democracy is that?" he asked in his address. "The current system is rigged to benefit the interests of those in office and not those who put them there," he said. "We must reform it." * * *
Mr. Schwarzenegger will find few allies in the Legislature or in the Congressional delegation for his plan to redraw the state's political map. After the 2000 census, Democrats and Republicans joined hands to draw districts in a way that would protect incumbents. Republicans went along out of fear that if they resisted, the Democratic majority would produce an even worse plan. It was much the same picture on the national level. Parties in power in each state employed sophisticated computer models to ensure continued control of their legislative delegations and statehouse contingents. The result was virtual assurance of re-election for incumbents, or at least control of the seat by the same party.
According to The Cook Political Report, 151 Congressional seats were considered competitive after the redistricting that followed the 1990 census. After the 2000 redistricting, only 45 seats were considered competitive. In 2004, only 13 changed party hands and only 7 incumbents lost.
The Santa Cruz Sentinel writes:
In theory, we’re in favor of the way it’s done now, with elected officials deciding how to draw the boundaries. But in practice, the system doesn’t work, and we no longer think office-holders should have the power to establish district lines. They have fouled up the process beyond belief, and they should be stripped of all authority.The Sacramento Bee warns:The problem with what they’ve done is that they’ve turned virtually all state Senate and Assembly districts into "safe" districts. Today’s map features districts that are either heavily Republican or heavily Democratic.
What that has done is driven away something that California needs badly: moderate voices. With safe districts throughout the state, the main contest for candidates is in the primary — and that encourages Republicans to move to the right and Democrats to move to the left.
It discourages what Santa Cruz had until recently — representation by a middle-of-the-road Republican, former state Sen. Bruce McPherson. Without these moderating voices, elected officials from the far right and the far left argue over everything — and so far have not come up with a plan to get California back to fiscal health.
Beyond the issue of moderation, the blatantly political redistricting has caused communities to be split. Right here in Santa Cruz County, we no longer are represented by one state senator. The county is divided — with senators who are largely responsible to voters outside of the county. The lack of our own district is truly an outrage.
There’s a lot to do to reform the state. But we agree with Schwarzenegger that the first thing that needs to change is a map of legislative districts that will reflect the true California and not the selfish needs of hack politicians who manipulated the entire state for their own good.
A lobbying firm representing traditionally Democratic causes and a political consultant with ties to a Democratic congressman are seeking to qualify a handful of ballot initiatives that exempt members of Congress if Gov. Arnold Schwarzenegger proceeds with a special election to force the redrawing of political districts years ahead of schedule.Finally, of course, California's ballot-initiative type-system is not available in Indiana. Any change in Indiana would have to come from the General Assembly. To repeat again from what I said at the end of my May 23, 2004 ILB entry:Jim Gonzalez and Associates, the Sacramento lobbying firm that submitted the four proposed initiatives to the state attorney general's office for consideration, and John Thiella, a consultant to the firm on the initiative proposals, say they are not working on behalf of specific clients but rather floating proposals that might attract support in the event of a special election to consider midcensus redistricting. * * *
The governor has argued that the current set of districts goes so far to protect the incumbents who agreed to it that it creates a polarized, entrenched system in which elections are decided in primaries, and partisan interest groups who provide campaign money hold too much sway.
The Schwarzenegger administration has denied partisan motives, but many California Democrats don't like the idea of a midcensus redistricting because they fear the goal is to shift congressional seats to Republicans, as was the case in Texas' midcensus redistricting, orchestrated by House Majority Leader Tom DeLay.
Thiella echoed those thoughts. "We want to make sure any plan adopted is not a White House plan to bring a right-wing Texas-style reapportionment to California," he said. "The only way to make sure that's not the case is to have other initiatives available to voters so they can make a choice."
Of California's congressional delegation, 33 seats are Democrat-held, with one now vacant with the death of Rep. Robert Matsui, and 20 are Republican-held.
Meanwhile, some members of the state's Republican congressional delegation also oppose the idea.
They too could become vulnerable if ex-judges drew new districts that pitted them against a same-party incumbent in a primary, or against a stronger Democratic incumbent in a general election. Rep. John Doolittle, R-Roseville, has said his party might lose as many as four seats in such a situation.
Something the Star does not point out in its editorial today is the difficulty of any change. As Vieth v. Jubelirer indicates, the courts are highly unlikely to act against political gerrymandering. This leaves the legistature as the only other alternative. But why would members or candidates with safe seats, such as the 88 out of 100 referenced by the Star, push for a diifferent system?The Star says: "[V]oters can demand that they be given true choices on Election Day by insisting that legislators put an end to gerrymandering. Fair districts not only prompt more competition and higher turnout but also better government. Incumbents who actually have to work to win votes before Election Day are far more likely to listen and respond to constituents." But the Star does not explain how to get from here to there. The voters' ballots are their weapons, but carefully drawn districts have already made blunted any real possibility of putting the voters back in control of elections.
"Lawmakers to address environment" is the headline to an informative AP story by Rick Callahan, that appears in the Louisville Courier Journal. Some quotes:
INDIANAPOLIS — With a new governor and a new direction for Indiana's environmental agency on the horizon, lawmakers are preparing to revisit three long-running environmental issues: permits, sewer overflows [CSOs] and underground storage tanks [USTs].None of the bills mentioned appear to been introduced and assigned to committee as of today.[Permits] Gov.-elect Mitch Daniels, who will take office tomorrow, wants Indiana to follow the lead of states such as Kentucky that allow the advance issuing of permits for industrial sites to make them "shovel-ready" for developers.
Daniels said Indiana's current permit system is complicated and slow and discourages development by costing businesses time and money.
"For a lot of businesses, the question is `Can I go into business in Kentucky in six months or in Indiana in 12 months?' All else being equal, they're going to pick Kentucky," he said.
[USTs] Rep. David Wolkins, who will sponsor the pre-permitting legislation, is also drafting a bill that would retool financing for a state fund that helps pay for the cleanup of leaking underground gasoline tanks.
The Excess Liability Trust Fund, created by lawmakers in 1988, once topped $70million. It has been depleted by payouts for the cleanups of more than 400 old tanks.
As of Dec. 22, the fund had a $12.7million balance, but that is projected to fall to $5million within a few months. At that point, money will be released only for the highest-priority cleanups, said Bruce Palin, the Indiana Department of Environmental Management's deputy assistant commissioner for the Office of Land Quality.
Wolkins' bill could call for fee increases in one or both of the fund's two sources of money — a 40-cent tax on each 50 gallons of gasoline or kerosene entering the state and a $90 annual registration fee for each underground tank. * * *
[CSOs] Sen. Beverly Gard, chairwoman of the Senate Environmental Affairs Committee, is drafting a bill that would give cities and towns with overflow-prone sewers more time to upgrade their outdated systems.
A law passed in 2000 gives communities with IDEM-approved cleanup plans temporary exemptions from water-quality standards to discharge sewage during and after storms. But Gard, R-Greenfield, said the law did not provide them enough flexibility to make costly improvements in sewers that discharge raw sewage into waterways during rainy periods.
"We knew when we passed this initial legislation about four years ago that there was eventually going to have to be some fine-tuning," she said. * * *
Bonnie Nash, spokeswoman for state environmental regulators, said 82 of Indiana's 102 cities with combined sewer systems — those in which storm drains and sanitary sewers empty into the same lines — have submitted state-required plans that call for fixes that will take anywhere from a few years to two decades.
[Lead] Gard also is drafting legislation to improve the state's ability to track childhood lead-poisoning cases. Children who ingest lead-based paint can suffer intelligence-lowering brain damage, behavioral problems, slowed growth and hearing loss.
"Couple's refusal to disclose Social Security numbers proves costly" was the headline to an AP story the Indianapolis Star published on Jan. 3, 2005. Some quotes:
VALPARAISO, IND. -- A northwestern Indiana couple says they have faced hardships for two decades because they refuse to disclose their Social Security numbers. Dave and Pat Wallin live in an old recreational vehicle that has been parked for two years on private property in rural Porter County.Reading this recalled a Feb. 26, 2004 ILB entry on a 2/24/04 Government Accounting Office (GAO) report on private use of the Social Security number. The GAO explanation of why it did the study (from the one-page executive summary):The couple, both in their 50s, lost their home in a tax dispute with the Internal Revenue Service in the 1980s, The Times of Munster reported Sunday. Since 1986, the Wallins have refused to divulge their Social Security numbers to anyone, including government agencies, creditors, employers and police.
That has proven difficult when public agencies and private businesses of all sorts - including public schools, license branches and hospitals - routinely require the numbers for identification. * * *
Officials said she cannot receive a license without providing the number.
"It's the law," said Indiana Bureau of Motor Vehicles spokesman Dan Henkel. The requirement was started in 2001 as a means of tracking deadbeat parents, he said, and the state plans soon to begin using software that will sort through its database matching numbers from various agencies.
The Wallins believe using Social Security numbers as a "tracking number" could threaten individual freedom.
In 1936, the Social Security Administration (SSA) established the Social Security number (SSN) to track workers’ earnings for Social Security benefit purposes. However, the SSN is also used for a myriad of non-Social Security purposes. Today, public and private sector entities view the SSN as a key piece of information that enables them to conduct their business and deliver services. However, given the apparent rise in identity crimes as well as the rapidly increasing availability of information over the Internet, Congress has raised concern over how certain private sector entities obtain, use, and safeguard SSN data. * * *The 2/26/04 Indiana Law Blog entry asked "What About Indiana?" and reported:
[emphasis added]
In 1978 the State of Indiana enacted a law providing that "No individual may be compelled by any state agency, board, commission, department, bureau, or other entity of state government to provide the individual's Social Security number to the state agency against the individual's will, absent federal requirements to the contrary." This law was the result of 12/1/76 recommendations of Governor Otis Bowen's Commission on Individual Privacy. This group was charged with investigating and making recommendations on, among other things, "the use of social security numbers, license plate numbers, universal identifiers and other symbols to identify individuals in data bases and to gain access to, integrate or centralize information systems and files."According to page 24 of the full (35-page) GAO report:Take a look at that same law as it exists today, IC 4-1-8-1. Today, twenty-six years later, the law has been amended over and over and now contains a list of dozens of exemptions, which appear to exclude most state government functions from the prohibition against requiring an individual to provide her social security number.
At least six states have enacted their own legislation to restrict private sector uses of SSNs. Based on our review of select legislative documents within 18 states, California, Missouri, Arizona, Georgia, Utah, and Texas had enacted laws to restrict either the display or the use of SSNs.I am not aware of any Indiana law restricting private sector use of SSNs.
Yesterday (see the entry immediately below) I tried to put together a summary of the election dispute in Kentucky over "District 37" that is pitting the legislative branch against the judicial branch. I said: "It is relevant not only because it involves a neighboring state, but because such election disputes can and have happened here in Indiana, and may occur again."
The Louisville Courier Journal today has put together a good overview of the story so far.
Details of Indiana's most recent Indiana election dispute, shorthanded at "District 46," that threatened to evolve into a legislature vs. courts standoff, may be found in these two final entries on the matter, from Nov. 5, 2004 and Nov. 10, 2004.
Just because we haven't reported on it since our Dec. 14th entry (which includes links to a number of earlier entries) doesn't mean the election dispute in Kentucky has been resolved. The impending standoff is between the Kentucky legislature and courts, involving a newly elected Kentucky state senator who may or may not have been a resident of Indiana and may or may not therefore be ineligible to take office. It is relevant not only because it involves a neighboring state, but because such election disputes can and have happened here in Indiana, and may occur again.
Per a Jan. 7th, 2005 story in the Louisville Courier-Journal:
On a 5-4 party-line vote, a state Senate committee recommended last night that Democrat Virginia Woodward be seated to represent Jefferson County's 37th District and said her opponent did not meet constitutional residency requirements.A story yesterday from the Lexington Heald-Leader points out:The recommendation by the Democratic-controlled committee came after a day of meetings and testimony during which some Republicans argued that Woodward's GOP opponent, Dana Seum Stephenson, should be allowed to serve because she received more votes in the Nov. 2 election.
After the vote, Republicans on the committee filed two independent reports — one calling for the Senate to seat Stephenson, the other recommending that neither Stephenson nor Woodward be seated and calling for a special election.
The full Senate — with its 22-15 Republican majority — is expected to act on those recommendations today.
Senate Majority Leader Dan Kelly, R-Springfield, said last night that the Senate can accept the committee report, accept either of the two reports filed by Republicans, or fashion its own remedy. * * *
The race was thrown into disarray the day before the election when Woodward filed suit contending that Stephenson, the daughter of state Sen. Dan Seum, R-Louisville, did not meet Kentucky's residency requirements for the Senate.
Stephenson received about 1,000 votes more than Woodward in the election, but a Jefferson Circuit Court judge ruled that she did not meet residency requirements and ordered the state Board of Elections not to count or certify her votes.
Stephenson lived in Indiana between 1997 and 2001. The Kentucky Constitution requires senators to live in the state for at least six years before their election. * * *
After the judge disqualified her, Stephenson threw the battle to the Republican Senate, which, under the constitution, has the authority to decide the qualifications of its members. The Senate created a nine-member committee to hear the case, and selected its members by lot. Five Democrats and four Republicans were chosen. [See also this 1/5/05 LCJ story.]
"I expect the full Senate to follow suit," said Jennifer Moore, Woodward's attorney.Today the LCJ reports, in a lengthy story:But it might not. The Senate might decide to seat Republican Dana Seum Stephenson instead, which could send the issue to the state Supreme Court. The Senate could also force a special election.
Senate Majority Leader Dan Kelly, R-Springfield, said the full Senate will consider the report today, but he and other Republicans declined to predict what the chamber will do. Late last night, GOP panel members were filing dissents.
The outcome is being closely watched because seating Stephenson could give the GOP the key 23rd vote it needs to pass budget or tax bills this session.
Republicans used their majority in the Kentucky Senate yesterday to put Dana Seum Stephenson in Jefferson County's 37th District seat.In a second story today the LCJ reports:In doing so, the Senate refused to accept its own committee's recommendation that Stephenson's opponent, Democrat Virginia Woodward, be seated and the ruling of a circuit court judge that ordered her certified as the winner.
Kentucky legal experts said yesterday that they expect the state Supreme Court will decide whether Stephenson, a Republican, is qualified.
"It's the job of the courts to interpret the constitution," said Phillip Shepherd, a Democrat who is a lawyer in Frankfort.
Richard H.C. Clay, a Louisville Republican and former president of the Kentucky Bar Association, agreed, calling the situation a "constitutional crisis." * * *
The battle for the seat and the rancor it has prompted, meanwhile, might cost Senate Republicans one of their own. The only Republican to vote against seating Stephenson, Sen. Bob Leeper of Paducah, threatened to resign.
"I am tired, I am tired of the unhealthy partisanship that too often fills our days," Leeper read from a statement last night.
Leeper, a former Democrat who switched to the Republican Party in 1999, had proposed a special election to decide who should represent the 37th District. But Senate President David Williams, R-Burkesville, refused to allow that action to be considered, saying the Senate had already made its decision.
When he walked off the Senate floor yesterday, Republican state Sen. Bob Leeper said he would resign because leaders of his party had rejected his proposal to solve the 37th District election dispute. * * *Finally, an AP story today in the Evansville Courier&Press reports:Leeper's threat to quit stunned party leaders who worried they might not have enough GOP lawmakers to pass their versions of budget, tax and constitutional amendment bills when the session resumes Feb. 1.
Senate Republicans asserted their power in a disputed election Friday and seated Dana Seum Stephenson as a senator, acting quickly to swear her in and attach a large bronze nameplate to her desk.The fallout from the decision, including a threatened resignation by one of their own Republican members, hard feelings among Democrats and a looming court fight by the Democrat who lost, will likely take far longer.
"I refuse to participate in what I believe to be the greatest single act of pure, raw, ugly politics as I have ever seen take place in our Capitol," said Senate Democratic Floor Leader Ed Worley of Richmond.
The decision prompted one Republican, Sen. Bob Leeper of Paducah, to say he would resign in protest. After meeting privately with Senate President David Williams and Gov. Ernie Fletcher, Leeper said late in the day he would take time to consider and did not rule out a future resignation.
Democrat Virginia Woodward went to court right after the vote and will ask a Franklin County Circuit Court judge Monday morning to prohibit Stephenson from taking any action as a senator until the challenge to Stephenson's residency is resolved.
Given the improvements instituted by our Indiana House of Representatives this year, including putting the House sessions online, this story from Friday's NY Times seems positively archaic. Some quotes:
ALBANY, Jan. 6 - A revolutionary change is coming to the State Assembly, as odd as it might sound to those uninitiated in Albany's ways: the Assembly is adopting new rules requiring lawmakers to actually be present in the Capitol when they want to vote on bills.Long-time readers may recall an ILB entry from April 8, 2004 about "ghost voting" in the Pennsylvania legislature. The entry notes that tvoting issues also had come up in Indiana, asking: "Remember the controversy in the Indiana General Assembly this year when House Speaker Pat Bauer attempted to permit an absent member to vote via computer?"The change alters one of the more curious, and criticized, aspects of the byzantine system of lawmaking in the capital, where legislators use a kind of cruise-control approach to voting: once lawmakers sign in for the day, they are counted as voting yes on all bills unless they signal otherwise.
The Republican-led State Senate, meanwhile, is planning its own changes. The Republicans want to require senators to be present in their seats only when they vote no, which has the added benefit of requiring their opponents, the Democrats, to hang around all day to try to block the bills that the Republicans bring to the floor.
Both houses, which have been under public pressure to change their rules to make the New York State Legislature more open, deliberative and democratic, plan to adopt new rules on Monday that even longtime critics call a significant first step.
The arcana of parliamentary rules are not usually the stuff of high drama, but here in Albany they have become lightning rods for a public outcry in the past year.
The Brennan Center for Justice, a public-interest law center at the New York University School of Law, rated the New York State Legislature the worst in the nation. Newspaper editorials around the state have waxed indignant about it. Private citizens have started Web sites denouncing state government. On the stump before the November elections, lawmakers tried to out-reform one another.
"Future unclear for unbonded official: Treasurer could be ousted without required backing" is the headline to this story today in the Richmond Palladium-Item. Some quotes:
LIBERTY, Ind. -- State officials agree county treasurers in Indiana must be bonded, but they won't say what should happen if they aren't.Union County Treasurer Dee Thibaut still isn't covered by an official bond, even though her term began Jan. 1. Thibaut has been unable to get a bond because of a personal bankruptcy. An official bond, which is made payable to the state of Indiana, protects public funds.
The lack of a bond for an elected official who has already taken office is unusual, officials said. Attorneys at the Indiana Attorney General's office researched the bonding laws and found a case from 1911 in which a county official had an insufficient bond. That case didn't deal with the lack of a bond, said deputy press secretary Sarah Rittman.
There is a statute, Indiana code 5-4-4-1, that allows the county clerk or a voter to file an affidavit with the court in the event the security for an official bond has become insufficient. The judge of the circuit court would then be required to hold a hearing on the issue, Rittman said.
The judge could declare the office vacant if a bond isn't presented, according to the law. The Attorney General's office, though, wouldn't say that section of the law is the controlling statute in this case.
"We don't feel comfortable commenting on this case because it might come to us," Rittman said.
The Attorney General's office doesn't take enforcement action on its own, Rittman said. If the State Board of Accounts conducted an audit and found the treasurer had no bond, then it would cite the official in an audit report, she said. The audit could be forwarded to the Attorney General for action, Rittman said.
Eric D. Holmes n/k/a Koor An Nur of Mary Katie Brown v. State of Indiana
[ORDER CONCERNING SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF IN CAPITAL CASE]
This matter is before us on a request by petitioner, Eric D. Holmes, to file a successive petition for post-conviction relief from his death sentence pursuant to Indiana Post Conviction Rule 1, Section 12, and the “State’s Verified Response to Holmes’ Successive Petition for Post-Conviction Relief.” As explained below, permission to file a successive petition is denied. * * *[Update 1/8/05] This AP story today in the Evansville Courier&Press today provides a little more information on yesterday's 3-2 decision.Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with opinion in which Rucker, J., concurs.
Sullivan, Justice, dissenting.I respectfully dissent from the Court’s order denying Petitioner Koor An Nur of Mary Katie Brown (formerly known as Eric D. Holmes) permission to file a successive petition for post-conviction relief. * * *
I would grant Petitioner’s request to file a successive petition for post-conviction relief.
Rucker, J., concurs.
Indianapolis Welding Supply, Inc. v. Indiana Dept. of State Revenue (1/6/05 IndTaxCt - NFP) [Sales Tax]
Fisher, Judge
Indianapolis Welding Supply, Inc. (IWS) appeals the final determination of the Indiana Department of State Revenue (Department) which assessed it with unpaid sales and use tax for the 1993, 1994, and 1995 tax years (years at issue). The issue for the Court to decide is whether IWS is entitled to a public transportation exemption. * * *Accordingly, the Court finds that IWS was required to deliver the gas to its customer’s destination; therefore, IWS owned the gas at the time it was being transported, and it is not entitled to the public transportation exemption. See Sam & Mac, Inc. v. Treat, 783 N.E.2d 760, 765 (Ind. Ct. App. 2003) (court found that when seller did not deliver property to an agreed upon destination point, title did not pass to the buyer).
CONCLUSION. For the aforementioned reasons, the Court AFFIRMS the Department’s final determination.
Foelker, Richard v. Outagamie County (ED Wis.)
Winniczek, Hilary M. v. Nagelberg, Sheldon (ND Ill.)
USA v. Swanson, David H. (SD Ind., Sarah Evans Barker, Judge)
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.Prela, Gjergj v. Ashcroft, John D. (Petition for Review of an Order of the Board of Immigration Appeals)
ROVNER, Circuit Judge. A jury convicted the defendant, David H. Swanson, of wire fraud, money laundering, interstate transport of converted funds, and tax evasion stemming from a complex scheme of financial manipulations through which Swanson was able to siphon funds for his own personal use as he assisted large agricultural corporations in their various acquisitions and investments. On appeal he challenged the district court’s choice of sentencing guidelines as well as its calculations for amount of loss, restitution, and forfeiture. After the parties submitted their initial briefs to this court, two events altered the landscape of this appeal. First, the government conceded that the district court used the improper sentencing guidelines and second, the Supreme Court accepted certiorari in two cases which question the constitutionality of the current federal sentencing practices allowing judges to enhance sentences based on factual determinations made using the preponderance of the evidence standard. United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 04-105). The parties submitted supplemental briefs as to the applicability of Booker and Fanfan. Because we agree with both parties that the district court used the improper guidelines, we remand the case for resentencing under the proper guidelines and/or in accordance with the forthcoming United States Supreme Court decisions in Booker and Fanfan. We also remand for new findings as to the proper amount of restitution and forfeiture. * * *In sum, we remand this case to the district court for resentencing in light of the forthcoming United States Supreme Court opinions in Booker and Fanan. This may or may not involve application of the 1998 Sentencing Guidelines Manual, but will certainly require some recalculation and additional findings on restitution and forfeiture.
REVERSED and REMANDEDRIPPLE, Circuit Judge, concurring in part and dissenting in part. I agree entirely with my colleagues with respect to all substantive matters addressed in the opinion of the court. I also agree that the ultimate disposition of sentencing matters in this case must await the Supreme Court’s decisions in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 4-105). I would therefore hold our decision in this case until the Supreme Court decides those matters or, in the alternative, I would issue the opinion, but stay our mandate, until those cases are decided and we can give the district court a more definitive ruling on how it ought to proceed in a resentencing proceeding. I can see no judicial economy in placing this case back on the docket of a busy district court until we can say how that court ought to proceed. To this limited extent, I respectfully dissent from the otherwise thoughtful opinion of the court.
Hoskins, Robert v. Lenear, Connie (ND Ill.)
Here is the Indiana Supreme Court's transfer list for the week ending January 7, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.
Three cases were granted transfer by the Supreme Court: the Court's opinion in Mirtha McHenry v. State of Indiana (granted with opinion) was posted yesterday (see ILB summary here); Tracy Boatwright, et al. v. Celebration Fireworks, and Christina M. Allgood v. Meridian Security Ins. Co., also were granted transfer.
Yesterday, in his opinion in Mirtha McHenry v. State of Indiana (1/6/05 IndSCt), Justice Dickson included this very interesting footnote #2:
As an experiment, this opinion departs from the author's usual style of citation and footnote use. Cf. Indiana Appellate Rule 22. Generally adhering to the footnote recommendations of Bryan Garner, The Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text are placed in footnotes, and substantive matter that otherwise might appear in footnotes is included in the text. This revised format does not meet with universal approval. See Richard A. Posner, Against Footnotes, 38 Court. Rev. 24 (Summer 2001). The public, the bench, and the bar are invited to comment to the Supreme Court Administrator, 315 State House, Indianapolis, IN 46204.To better understand the change Justice Dickson is testing, here is the PDF version of his opinion in McHenry.
Here is Bryan A. Garner's 18-page Summer 2001 article titled "Clearing the Cobwebs from Judicial Opinions."
And here is Richard A. Posner's 2-page Summer 2001 article titled "Against Footnotes."
Both of these articles were in the same issue Court Review. Here is the Editor's note to that issue.
Finally, a real treasure, here is a 32-page presentation on Opinion Writing by Virigina Judge Clifford R. Weckstein. Starting on p. 23, he sets out the July 8, 2001 NY Times article on legal footnotes referenced in the Court Review "Editor's note."
Earlier this week a number of papers reported on the legislative interest in the state Gaming Commission's selection of Trump Hotels & Casino Resorts Inc. for a casino in Orange County. Here is a quote from Jennifer Whitson's story Wednesday in the Evansville Courier&Press:
The Indiana Legislature isn't finished with "The Donald" just yet.That was the prelude. Here is a quote from today's report, from the same reporter/paper:The Republican in charge of the Indiana House committee that reviews gambling bills said Tuesday he wants the state Gaming Commission not to sign any agreement with Trump Hotels & Casino Resorts Inc. for a casino in Orange County. Rep. Bob Alderman, R-Fort Wayne, also said he wants to review the entire selection process. * * *
Alderman said he was concerned about Trump's financial situation but also troubled by details of the selection process. Asked if he was alleging wrongdoing, Alderman said he wanted to save some surprises for a committee meeting Thursday, but he promised to ask some "very probing questions." * * *
Alderman said he wants to hold a hearing next week on a bill he is offering to dismiss the current members of the Indiana Gaming Commission on Feb. 1 and allow Gov.-elect Mitch Daniels to immediately fill the key commission with his appointees.
Currently, the seven gaming commissioners are appointed by the governor to staggered three-year terms. Alderman also wants to eliminate the requirement that certain commissioners come from communities that have riverboats. "To me that seems like a conflict in itself," Alderman said.
Daniels also has questioned the selection process that led to Trump winning the right to contract for the Orange County casino, saying it should be more transparent. Alderman said he has invited the two groups who were not chosen, Lost River Development LLC and Orange County Development LLC, to testify at Thursday's hearing.
When Trump announced its bankruptcy in November, Rep. Jerry Denbo, D-French Lick, said all parties knew the bankruptcy was coming and it would not pose a problem.
But Tuesday, Denbo said the bankruptcy filing had bogged down the process, which is in negotiations between Trump and the Historic Hotel Preservation Commission, the group appointed to represent Orange County interests.
Thursday's hearing to review details of the choice of Trump Hotels & Resorts Inc. to run the Orange County casino boiled down to a warning shot to both a local-based commission and Trump. And by the end of the day, Indiana Gov.-elect Mitch Daniels had called for the resignation of all members of the Indiana Gaming Commission and every other commission and board appointed by the governor.From Michelle McNeil's story today in the Indianapolis Star:
On the same day lawmakers quizzed state officials for two hours on the French Lick casino deal, Gov.-elect Mitch Daniels said he, too, wants to review the decision to let Donald Trump's gambling company run the casino.And Lesley Stedman Weidenbener reports today in the Louisville Courier Journal:In addition, Daniels wants the seven members of the Indiana Gaming Commission, which oversees the regulation of casinos, to submit their resignations. He said he may not accept them all, but he wants to make his own picks for that board.
"Right now I simply want to know, and I think especially citizens in Orange County and the rest of Indiana want to know, is this company solvent or not?" Daniels said. "One thing no one wants is an operator who then fails and leaves us back at square one."
Gov.-elect Mitch Daniels called yesterday for the resignations of the Indiana Gaming Commission's seven members, even though none of their four-year terms are about to expire. At least one member said she probably would resign if asked.What does the law say? That is the question I asked in an entry dated Dec. 4, 2004, in an earlier discussion of the Trump casino contract (the question is addressed near the end of the entry).Daniels, a Republican who takes office on Monday, said he wants his own appointees to review the commission's choice of Trump Hotel & Casino Resorts to develop a casino in Orange County. The company has filed for bankruptcy to reorganize its substantial debt. "There are many unanswered questions," Daniels said. * * *
But Daniels doesn't have the authority to simply appoint a new commission — unless the members resign. In fact, he said he hopes that members of all state boards and commissions will offer their resignations. "I think that's the right thing to do," Daniels said. "Not all would be accepted, but we would like to be able to move and bring change to those bodies."
Such resignations would be unusual at the gaming commission. State law specifically allows its members to keep their seats, even when there's a change in the governor's office. The law requires bipartisan membership and permits a governor to remove members only if they neglect their duties or commit fraud or a crime.
That's different from the situation that applies to many boards and commissions, whose members serve at the will of the governor and typically are replaced by a new administration.
Alderman has filed legislation that would change the casino law and allow Daniels to appoint his own commission members. He said he plans to hear the bill in his committee this month.
Gaming Commission Chairman Don Vowels — a member since the group's inception in 1993 — said last month that the current law has helped keep politics out of the agency's deliberations. He said then that he did not plan to resign his position, but did not return calls to his office yesterday.
Two Southern Indiana residents — Norman Melhiser of New Albany and Robert Barlow of Madison — were recently appointed to the commission by Gov. Joe Kernan. They were not available for comment yesterday.
Marya Rose, who has served on the commission since 2002, said she understands why Daniels would want to appoint his own members. Rose — and the other six members of the commission — were appointed by Democratic governors. She said she would likely resign if asked.
House Bill 1003, the 195-page bill proposing revisions to the current Indiana Economc Development law, is now available as reprinted 1/7/05 to incorporate the amendments made by the House Committee earlier this week. Go to the last page (p. 195) to see precisely what revisions to the introduced bill were made in House Committee.
The bill is now available for 2nd Reading, where it may be subject to amendments from the floor. Given the expedited schedule for this bill, look for it to be scheduled for 2nd Reading in the upcoming week.
An AP story just posted on the Indianapolis Star website reports that Gov.-elect Mitch Daniels has filled the Commissioner of Labor post and the Workforce Development post with men from Cummins and Lilly, respectively. Some quotes:
Gov.-elect Mitch Daniels has chosen a corporate lawyer for Cummins Inc. as the new commissioner of the Indiana Department of Labor. At a news conference today, Daniels announced Miguel Rivera's appointment first in Spanish before repeating it in English. "Miguel combines a great business and legal background with a heart for working people," Daniels said.Later in the piece:Rivera was deputy attorney general for Indiana from 1994 to 1996, when he was appointed to the Indiana Parole Board. He began working for Cummins in 1999 and is currently senior corporate counsel for global litigation for the Columbus-based maker of diesel engines and power generators.
Rivera said he is not a member of a labor union, but said he was once in high school when he was a bag boy at a grocery store.
"I look forward to joining Gov.-elect Daniels' team and am eager to jump in to public service to bring about the change that will help the people of Indiana," Rivera said in a news release. Rivera, of Greenwood, has lived in Indiana for 14 years..
Also today, Daniels said that an Eli Lilly and Co. manager will head the Department of Workforce Development. Ron Stiver is the company's brand strategy and sales manager for Lilly and has been responsible for developing long-term strategies for the company's osteoporosis business unit.The ILB's Newly Updated Organization Chart. Access the newly updated ILB organization chart of the Daniels administration here.
[Update 1/7/05] Here is the expanded Indianapolis Star coverage today, headlined "Daniels taps pair to fill jobs posts: Lilly manager Stiver picked for Workforce Development; Rivera to take over at Labor."
Indiana Department of Natural Resources v. Lick Fork Marina (1/6/05 IndCtApp) [Inverse Condemnation]
Baker, Judge
Appellant-defendant Indiana Department of Natural Resources (DNR) appeals the trial court’s judgment in favor of appellee-plaintiff Lick Fork Marina, Inc. (Lick Fork). Specifically, DNR raises two issues, one of which we find dispositive: whether the trial court erred in determining that DNR inversely condemned Lick Fork’s property. Finding that no taking occurred, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion. * * *Joseph E. Napier v. State of Indiana (1/6/05 IndCtApp) [Criminal Law & Procedure]The Lease provided that Lick Fork would pay $3,000 per year in rent, which equates to $250 per month, plus small percentages of the gross income derived from boat sales, boat rental, gas sales, and other business operations conducted on the leased premises. Lick Fork retained 90 to 99 percent of the income generated at the facility, depending on the item from which the income was derived. The Lease further stated:
Title to Property. Title to any and all buildings, structures and other improvements erected or placed on the Leased Real Estate by the Lessee, which are so permanently fixed to the real estate as to become legally a part of the real estate is vested in the United States of America and is leased to the Lessor under the lease attached hereto and marked Exhibit A. All other property placed or erected on the Leased Real Estate by the Lessee shall belong to the Lessee. * * *On February 23, 2001, counsel for DNR sent a letter to Lick Fork stating its opinion that “the marina building, landscaping, concrete ramps or cement work, pads and stairs, utilities and accessories leading to various docks, in-ground fuel storage with all attachments, utility lines and rip-rap are not personal property. . . .” DNR concluded that these items were considered to be the State’s property and could not be removed. DNR further instructed Lick Fork to remove items of personal property on or before March 31, 2001.On April 19, 2001, Lick Fork filed a complaint against DNR entitled, “Complaint in Inverse Condemnation,” and the trial court treated the case as one arising under Indiana’s eminent domain statutes. DNR maintained that Lick Fork did not own the property in question and that the dispute regarding the Lease must be handled through application of contract law. On August 30, 2001, the trial court conducted a hearing to determine whether there had been a taking. The trial court adopted Lick Fork’s proposed findings of fact and conclusions of law, thereby ruling that DNR acquired property belonging to Lick Fork without compensation. * * *
DNR argues that the trial court erred in finding that DNR effectuated a taking. Specifically, DNR contends that this case should have been decided under principles of contract law and not eminent domain law, and that under the contract, the property in question did not belong to Lick Fork. * * *
This contract was mutually beneficial to the parties. And Martin Fallon was familiar with the business of operating marina facilities and the laws regulating their operation. Moreover, Martin had former experience in similar enterprises and had been involved in the construction and operation of similar facilities for several years. Thus, it can be said that when he signed the lease on behalf of Lick Fork, he understood the financial implications of the Lease. The contract unambiguously states that fixtures are property of the government and not of Lick Fork. And we must give effect to the intent of the parties in agreeing to this provision. Therefore, we find that any fixtures on the real estate were not the property of Lick Fork, and Lick Fork is not entitled to compensation.
The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.
SHARPNACK, J., and FRIEDLANDER, J., concur.
This is a case of first impression, where we are called upon to decide the applicability of the rule set forth in Crawford v. Washington, 124 S.Ct. 1354 (2004), as it relates to the State’s method of establishing a proper evidentiary foundation regarding the admissibility of various documents that are used to prove the results of a criminal defendant’s breath test. Appellant-defendant Joseph E. Napier appeals his conviction for Operating a Vehicle With a BAC of .08 Percent Or More, a class C misdemeanor, claiming that his conviction may not stand because admitting breath test results by certification documents and a BAC DataMaster Evidence Ticket (BAC ticket) violates the Confrontation Clause[*] of the United States Constitution. Napier further claims that the admission of the breath test ticket violates the Indiana Rules of Evidence, inasmuch as that evidence is inadmissible hearsay.[Note] Hammon and Fowler were both issued on June 14th, 2004. See the ILB entry here. See also the transfer information in this ILB entry from 12/10/04.
We conclude that the admission of the breath test instrument certification documents at issue here did not violate the rule set forth in Crawford. And our legislature has provided that certificates regarding the inspection and compliance with relevant regulations of breath test instruments are admissible in prosecutions for operating a vehicle with a BAC of .08% or greater.However, we also find that admitting into evidence the BAC ticket purporting to prove the breath test results—absent any “live” testimony that would establish a foundation for its admission—was improperly admitted. Thus, we reverse Napier’s conviction on this basis. * * *
[W]e conclude that the procedures permitted by our supreme court and our legislature for establishing a foundation for the admission of the certifications regarding the breath test machine and the regulations of the Toxicology Department do not run afoul of the rule announced in Crawford and the Confrontation Clause. Thus, Napier does not prevail on this issue. * * *
[W]e were presented with uncontradicted evidence that the breath test operator was, in fact, not properly trained pursuant to the Department Of Toxicology’s regulations. In these circumstances, we are of the view that the State’s manner of proving Napier’s breath test results failed because the State failed to lay an adequate evidentiary foundation for their admission into evidence. We must conclude, therefore, that the State’s failure to present any “live testimony” at trial from the officer who conducted the tests runs afoul of the Confrontation Clause of the Sixth Amendment to the United States Constitution in light of Crawford. That is, the State failed to establish an adequate evidentiary foundation for the admission of the test results into evidence. Hence, we find that the trial court abused its discretion in admitting Napier’s breath test results into evidence, and his conviction is reversed on this basis.
SHARPNACK, J., and FRIEDLANDER, J., concur.
_____
[*] The meaning of “testimonial” evidence has been addressed by this court in two very recent decisions: Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004), and Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004), both of which were handed down on the same day. These cases involved domestic battery convictions where the respective victims did not appear to testify, and the State proceeded with its prosecution on the basis of statements that the victims had supplied to the police that were admitted into evidence under the excited utterance exception to the hearsay rule. We recognized the Crawford court’s determination that “testimonial” statements need not be under oath. It is apparent that our supreme court is also wrestling with the definition of “testimonial evidence,” inasmuch as transfer was granted in both Hammon and Fowler on December 9, 2004.
Stories about the young attorney, now nearly legendary, who won two big cases before the U.S. Supreme Court this year, not only Crawford v. Washington but also the even better known Blakely v. Washington, may be found in ILB entries here and here.
Monica, James & Diane Witte v. Mikayla Mundy, et al. (1/6/05 IndSCt) [Torts]
Boehm, Justice
A child and her mother sued when the child was struck by the defendants’ car. On the eve of trial the mother moved to dismiss her claim. The trial court granted the motion to dismiss but denied the defendants’ motion to add the mother as a nonparty for purposes of comparative fault. The jury then returned a verdict for the defense. We hold that it was error to refuse to add the mother as a nonparty, but because the plaintiffs invited the error, neither plaintiff can obtain a new trial on that basis. * * *Mirtha McHenry v. State of Indiana (1/6/05 IndSCt) [Criminal Law & Procedure]The trial court’s granting a new trial is reversed. This case is remanded with instructions to enter judgment based on the jury verdict.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
Following a jury trial, the defendant, Mirtha McHenry, a bank teller, was convicted of forgery, a class C felony, and theft, a class D felony, as a result of her actions relating to an unauthorized withdrawal of $6,500 from the account of a bank customer. Concluding that the evidence was insufficient to establish her guilt of either crime, the Court of Appeals reversed the convictions and remanded with instructions that she be discharged. We grant transfer and affirm the trial court.[*]Comment re Justice Dickson's footnote: I, for one, am glad to see this effort at change and hope it meets with acclaim. However, it is easier to see its impact if you read the case in its intended format -- the Word or WordPerfect version, or a pdf approximation thereof, rather than a butchered html version. Here is a link to the Word version of the case that I have converted to PDF for easy access. Notice that the citations are in footnotes; matters of substance are in the text. I will discuss this further in a separate entry after I review my copy of Bryan Garner's book, Legal Writing in Plain English.In her appeal from the convictions, the defendant alleges three grounds for reversal: (1) insufficient evidence; (2) refusal to strike two jurors for cause; and (3) erroneous admission of surveillance videotape.
1. Sufficiency of Evidence * * * In reversing the jury's verdict, the Court of Appeals failed to restrict its consideration to only the evidence and reasonable inferences favorable to the trial court's verdict, but instead r eweighed the evidence, improperly substituting its own judgment for that of the jury. While the jury could have drawn the same inferences as the Court of Appeals, they did not. They returned a unanimous verdict of guilt on each count. * * * Finding that the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt, we conclude that the evidence was sufficient to support the judgment.
2. Failure to Exclude Jurors for Cause * * * In the present case, the jurors were challenged not for their relationship with the State but for their status as depositors in the bank where the alleged crimes occurred. The trial court co nsidered the challenge, questioned the jurors, and then denied the challenge. We decline to find any abuse of discretion in this ruling.
3. Surveillance Videotape * * * Rulings on the admission of evidence are subject to appellate review for abuse of discretion. See footnote We are not persuaded that the trial court abused its discretion in admitting the videotape.
Conclusion. We grant transfer and affirm the judgment of the trial court.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
____
[*]As an experiment, this opinion departs from the author's usual style of citation and footnote use. Cf. Indiana Appellate Rule 22. Generally adhering to the footnote recommendations of Bryan Garner, The Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text are placed in footnotes, and substantive matter that otherwise might appear in footnotes is included in the text. This revised format does not meet with universal approval. See Richard A. Posner, Against Footnotes, 38 Court. Rev. 24 (Summer 2001). The public, the bench, and the bar are invited to comment to the Supreme Court Administrator, 315 State House, Indianapolis, IN 46204.
Garcia, Jose L. v. Ashcroft, John (Petition for Review of an Order of the Board of Immigration Appeals)
Owens, George v. Frank, Matthew J. (ED Wis.)
Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. George Owens was convicted in a
Wisconsin state court of first degree recklessly endangering
safety while armed, a violation of Wisconsin Statutes
§§ 941.30(1) and the former 939.63(1)(A)(3). After pursuing
postconviction remedies in the Wisconsin state courts,
Mr. Owens filed a petition for a writ of habeas corpus in the
United States District Court for the Eastern District of
Wisconsin. Mr. Owens’ petition was denied, and he ap-
pealed. For the reasons set forth in the following opinion, we
affirm the judgment of the district court.
"Mayor: Information will flow again - McDermott said he was concerned for city's image" is the headline to this story today in the Munster Times, updating our entry yesterday titled "Hammond mayor denies local paper access to police records." A quote:
The mayor imposed an embargo, beginning in late December, on media access to crime reports. Times reporters were told reports wouldn't be available for anywhere from one to three weeks after the crime. They were previously available on a same-day or next-day basis. Public officials within the mayor's administration declined to speak to Times reporters.McDermott said, "My job as mayor is multifaceted. Part is getting crime statistics out to the public, and that is important. (But,) I felt maybe I was hurting the city by being so accessible.
"There were people who felt strongly I was doing the wrong thing by not providing those crime statistics. I understand how they felt. I took a lot of complaints," he said.
Yesterday the House Committee on Commerce and Economic Development and Small Business finished its consideration of HB 1003, the proposed revisions to the IEDC law, and voted the bill out Do Pass Amended. A number of papers had reports today on yesterday's action:
Backers of the switch say a board made up of private sector representatives appointed by the governor and not hampered by the "red tape" of normal state agency regulations will be able to move quickly to woo businesses considering locating in Indiana.In 2003, the legislature passed a measure to create the board, called the Indiana Economic Development Corporation. But now leaders and Daniels want to go back and fine tune the proposal.
Instead of the 23-member board first envisioned to run the corporation, the bill trims membership to 12. Daniels will be chairman of the board, which will oversee state grants and loans meant to spur the economy.
And the corporation will be able to accept private donations that it can use to lure new companies and reward those that stay in Indiana.
The corporation's independent status has raised concerns for some lawmakers. Democrats wanted to add amendments saying that corporation board members could not make campaign donations and that internal rules for running the corporation would have to be open to public hearings. Those amendments were either defeated or not allowed a vote.
On Wednesday, the committee included a Democratic amendment that clarified that the corporation's actions were subject to Indiana's open records laws.
Democrats still expressed concerns about openness and accountability and two eventually voted against the measure.
"(The bill) takes everything out about what's being said about open government," said Rep. Dave Crooks, D-Washington. "It's going to look like a back-room deal."
Republicans defended the measure saying it would be more transparent than the department it would replace.
"If you want ultimate accountability, the governor is the chairman of the board," said Rep. Steve Heim, R-Culver. He said that in the current set-up "you can blame bureaucrats" when things go wrong, but with the change, the buck will stop at Daniels' desk.
“This is a huge concentration of power in a small group of people who can determine their own rules,” said Rep. Carolene Mays, D-Indianapolis.The 192-page bill accomplishes a number of critical items advocated by Gov.-elect Mitch Daniels. Foremost, it creates the position of secretary of commerce, which will be filled by Fort Wayne businesswoman Pat Miller.
Miller – who co-founded the successful handbag company Vera Bradley Designs – would serve as CEO of the Indiana Economic Development Corp. – an entity charged with taking over all business and economic development functions of the soon-to-be-defunct Department of Commerce.
The bulk of the corporation’s duties would be to raise private money and use that – along with state tax dollars – to entice businesses to locate and create new jobs in Indiana.
The corporation would have a 12-member board – of which Daniels would be the chairman. He would appoint the rest, as well as a president who would report to Miller.
Committee members agreed to add language Wednesday making it clear that the corporation must follow Indiana public access and open-door laws. There is an exception for financial negotiations with companies until incentive packages are finalized.
The corporation will be free from many other state regulations, including those governing hiring, purchasing and bidding – as well as the public process in which administrative rules are made.
Proponents believe this is necessary to ensure Indiana can move with speed in attracting employers and jobs.
The proposed legislation would replace the Department of Commerce, which has an $82 million budget, with the economic development commission. It would be controlled by Daniels and 11 other board members.Nearly half of the Department of Commerce's budget comes from the federal government in money controlled by the community development and economic policy divisions. Those divisions would be separate from a new development commission.
The development commission would encompass many economic development programs now separate from Commerce, such as the Small Business Development Corp. and the Steel Industry Advisory Commission.
The proposal is the first major piece of Daniels' legislative agenda brought to the General Assembly. Daniels has indicated he would like the bill enacted before the end of January. Given that his Republican colleagues control both the House and Senate, the bill is likely to pass.
Gina Holland reports today in this AP story:
No one took any notice of the tall, slim man who appeared Tuesday for jury duty. Had he worn his black robe, Supreme Court Justice Stephen Breyer no doubt would have drawn more attention.Even Marlborough, Mass., District Court Judge Thomas Sullivan Jr. didn't recognize Breyer until he read the justice's name on a document listing potential jurors for cases he was hearing.
"When I looked at the slip I said, 'Oh, my God,'" Sullivan said in a telephone interview with The Associated Press. * * *
According to Sullivan, the defense attorney said, "The last thing I need is two judges on the case."
The Gary Post Tribune has a story today on the Indiana Supreme Court's decision Tuesday in Chester Borsuk v. Town of St. John (1/4/05 IndSCt) [access ILB summary here - 2nd case]. Some quotes from today's story:
The decision by the town of St. John in a zoning case more than four years ago was legal, the Indiana Supreme Court decided this week. The state’s top court upheld the town’s denial of a rezoning at a U.S. 41 intersection.It said, in a case watched by municipal attorneys around the state, that a town’s comprehensive plan is “an important ground, but not the only ground” for zoning decisions.
David Austgen, St. John’s town attorney, said the decision “protects the process as we know it. All the factors are to be considered (in a zoning case),” he said. “When they are all considered, the discretion of the Town Council is preserved as a decision-maker.” * * *
[Chester Borsuk, the developer who asked for the rezoning] wanted to rezone half a lot at U.S. 41 and 109th Avenue from residential to commercial; the lot’s other half already was zoned for business. A house sits on the lot’s residential-zoned half, but the other half, which fronts U.S. 41, is vacant. A couple of businesses are just north of the lot.
The Town Council rejected a rezoning request in September 2000 after residents of nearby homes said a business there would aggravate traffic congestion at the already-busy corner. They said 109th Avenue was too narrow to handle the traffic.
Borsuk and his attorney, Michael Muenich, contended that the town should have granted the rezoning because the town’s comprehensive plan calls for commercial zoning along U.S. 41.
A Lake County court agreed with the town’s decision, but the Indiana Court of Appeals reversed it last December. The town appealed to the Supreme Court.
The Supreme Court’s unanimous opinion, released Tuesday, was written by Chief Justice Randall Shepard. A comprehensive plan is a blueprint for a community’s development, it said, “but implementing the plan as regards (to) a given piece of real estate may not be the best course of action for the community on a given day.”
"New Albany adult video store can open, judge says" is the headline to this story by Ben Zion Hershberg in the Louisville Courier Journal today. Some quotes:
After 11 months of litigation, a federal judge has ordered New Albany to allow an adult video store to operate near downtown. Steve Mason, a lawyer for New Albany DVD, said he expects his clients to open the store at 601 W. Main St. early next week.The ILB last reported on this dispute in this Nov. 12, 2004 entry.The decision, issued Tuesday by U.S. District Judge Sarah Evans Barker, came in a lawsuit filed by the store's owners in which they claimed their constitutional rights were violated when the city shut it down.
Barker issued a preliminary injunction against the city on grounds that its adult-entertainment zoning ordinance — enacted after New Albany DVD had tried to open — was too broadly written. * * * Barker's decision was on the store's request for an order allowing it to operate while the case is considered on its merits.
The legal dispute began last Feb. 19, when the video store opened for a few hours after a city inspector canceled a final inspection of the remodeled building that had been scheduled for that morning.
That evening the City Council adopted a six-month moratorium on the opening of any sexually oriented businesses in town, and city officials ordered the store closed on grounds that the owners hadn't obtained their final inspection and permits.
A few days later, lawyers for New Albany DVD filed suit in U.S. District Court, alleging that their clients' constitutional rights of free expression had been violated. * * *
In her decision, Barker said New Albany has the authority to regulate adult businesses. She also said the city can rely on evidence of the harm that such businesses do to other communities and doesn't have to gather evidence specific to New Albany — a point argued, at length, by lawyers and expert witnesses in the case.
But the city erred in attempting to regulate New Albany DVD through a zoning ordinance that is too broad, Barker said. To protect free-speech rights under the First Amendment, Barker said, restrictions on where adult businesses can operate must be "narrowly tailored."
The language in New Albany's ordinance prohibiting sexually oriented businesses from locating within 1,000 feet of a church is too broad, she said. She said it might be more appropriate for New Albany DVD's owners to agree not to operate on Sundays or at other times when functions are under way at the Main Street United Methodist Church, which is across the street from the store. * * *
Because there are no other adult video stores in the city, Barker said, the city is placing limits that are too restrictive on "constitutionally protected speech" by preventing New Albany DVD from operating. She said there are no "alternative channels" for the sale and rental of such materials in town.
Judge Barker's decision has not yet been posted on the SD Ind. website.
"Kentuckian to lead state prisons" is the headline to a story just posted on the Indianapolis Star website. A quote:
Gov.-elect Mitch Daniels has named a Kentucky prisons official to be Indiana's new commissioner of the Department of Correction.[Updated 1/6/05] Mary Beth Schneider of the Indianapolis Star reports today on the Donahue appointment in a story headlined: "Kentucky official is hired to lead Indiana's prisons." A quote:J. David Donahue, 45, will replace the outgoing commissioner, Evelyn Ridley-Turner, who was paid $100,132.
Donahue currently is deputy commissioner for the Kentucky Department of Corrections in Frankfort, Ky., and is responsible there for supervision of support services in administrative services, corrections training, budget management, correctional industries, offender information and information technology.
He previously worked as senior vice president and chief operating officer for the U.S. Corrections Corp. in Louisville from 1994 to 1998 and was a case management coordinator for the U.S. Department of Justice federal correctional institution in Fort Worth, Texas, from 1988 to 1990.
Daniels said Donahue is the first non-Hoosier appointed to his administration.
"Indiana needs fresh ideas to tackle the problems in this very troubled agency," Daniels said. "The Department of Correction generated the second highest number of critical reports during our 'due diligence' review of state government. Indiana pays Kentucky to guard its prisoners while two new facilities sit virtually empty, and DOC has more managers than guards."
Asked if Daniels would pursue privatization of prisons, Jane Jankowski, Daniels' press secretary, said the governor-elect's orders to Donahue are the same as to all department heads -- "to look at options that would use taxpayer dollars more wisely. What isn't acceptable to him is the status quo, which is paying Kentuckians to operate a private facility when some of our buildings are empty."In a similarly headlined story, Lesley Stedman Weidenbener of the Louisville Courier Journal has a story today that begins:She added that given that arrangement, "essentially, we already have privatization."
Donahue -- who has experience working in both public and privately operated corrections systems -- said he "absolutely will evaluate all resources available" for Indiana to provide the best prison system.
Gov.-elect Mitch Daniels has named an official from the Kentucky Department of Corrections to head the agency that oversees prisons in Indiana.The ILB's Newly Updated Organization Chart. Access the latest update of the EIS organization chart of the new Daniels administration here.Dave Donahue will leave his post as deputy commissioner of Kentucky's department to be the commissioner of the Indiana Department of Correction.
A native of Bardstown, Ky., Donahue is the first person from outside Indiana appointed by Daniels.
"This is a great opportunity to be involved in the vibrant change that Governor Daniels is bringing to the table," Donahue said yesterday in a telephone interview from his office in Frankfort. "I'm excited about his vision, his message, the fact that he has given me the opportunity."
Fadia Al-Challah v. Barger Packaging Corporation (12/5/05 IndCtApp) [Statute of Limitations]
Sharpnack, Judge
Fadia Al-Challah appeals the trial court’s order granting Barger Packaging Corporation’s (“Barger”) motion to dismiss Al-Challah’s complaint as time barred. Al-Challah raises two issues, which we consolidate and restate as whether the trial court erred by finding that the Journey’s Account Statute was not applicable to Al-Challah’s complaint and by granting Barger’s motion to dismiss Al-Challah’s complaint as time barred. We affirm. * * *The statute of limitations on employment related actions is governed by Ind. Code § 34-11-2-1 (1998), which provides that such actions “must be brought within two (2) years of the date of the act or omission complained of.” Al-Challah was dismissed from her employment with Barger on October 2, 2001, and she filed a complaint against Barger in federal court and asserted federal law claims under the ADA and state law claims of wrongful discharge in December 2002. Thus, Al-Challah’s wrongful discharge claims were filed within the two-year statute of limitations. See I.C. § 34-11-2-1. On June 6, 2003, Al-Challah filed a motion requesting to voluntarily dismiss her federal claims with prejudice and to dismiss her state claim without prejudice, and that same day, the federal court signed Al-Challah’s proposed order dismissing her federal claims with prejudice and dismissing her state law claims without prejudice. At that time, Al-Challah still had approximately four months remaining before the expiration of the statute of limitations. Al-Challah then filed her state law wrongful discharge claim in the trial court on November 7, 2003, which was one month past the expiration of the two-year statute of limitation for her claim. See I.C. § 34-11-2-1. Barger filed a motion to dismiss Al-Challah’s complaint as time barred, which the trial court granted.
Al-Challah argues the trial court erred by dismissing her complaint as time barred because the Journey’s Account Statute saved her complaint from the expiration of the two-year statute of limitation. We disagree.
As our supreme court explained in Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind. 1988), reh’g denied:
At common law suits often were dismissed on technical grounds. In such cases, the plaintiff could file another writ known as a Journey’s Account. The renewal suit was deemed to be a continuation of the first. The time to bring another suit was computed theoretically with reference to the time required for the plaintiff to journey to where court was held. * * * Although the common law remedy is no longer recognized, Indiana has created a statutory remedy in its place. The Journey’s Account Statute, Ind. Code § 34-11-8-1 (1998) * * ** * * A complaint that is voluntarily dismissed is treated as if it never existed and, thus, cannot toll the statute of limitations. Kohlman, 509 N.E.2d at 232. Because Al-Challah voluntarily dismissed her federal lawsuit, her action did not “fail” within the meaning of the Journey’s Account Statute. Therefore, the trial court did not err by finding that the Journey’s Account Statute was not applicable by granting Barger’s motion to dismiss Al-Challah’s complaint as time barred. * * *For the foregoing reasons, we affirm the trial court’s order granting Barger’s motion to dismiss Al-Challah’s complaint. Affirmed.
BAILEY, J. and MAY, J. concur
Board, Herbert L. v. Farnham, Karl (CD Ill.)
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Brothers Herbert and Jerome
Board (collectively the “Boards”), along with three other
plaintiffs, filed a sixteen-count complaint against fourteen
defendants in their individual and official capacities alleging
various constitutional injuries pursuant to 42 U.S.C.
§ 1983, as well as state law violations dealing with the Board
brothers’ arrest, incarceration, and subsequent acquittal on
murder charges in Edgar County, Illinois. As a result of a
voluntary dismissal and the district court’s unchallenged
grant of summary judgment in favor of the defendants on a
number of their claims, only three of the Boards’ constitutional
claims survive. On interlocutory appeal, defendantsappellants
claim the district court erred by not granting
them summary judgment on the remaining claims because
they are entitled to qualified immunity. Affirmed.
"Hammond mayor denies local paper access to police records" was the title of an entry dated Dec. 29, 2004. Today the Munster Times reports:
HAMMOND | The public can read about crimes in the city only after the reports detailing the allegations lie in a drawer somewhere for seven days.The Times also has an editorial today on the Hammond mayor's "news blackout."Mayor Thomas McDermott Jr. enacted the policy Tuesday, making all crime reports public information after a seven-day waiting period.
He did so the same day an attorney with Indiana's Public Access Counselor ruled Hammond police have been in violation of state law by withholding routine information about criminal activity in the city. * * *
The Times has been denied access to crime reports since Dec. 21, following the publication of a front-page article and an editorial opposing a pay raise requested by McDermott for 2005. Officials said the newspaper would have to wait three weeks to access crime reports previously released each day.
In a written opinion, the attorney for the Public Access Counselor said city officials were in violation of the law by not releasing daily reports of crimes committed and people jailed in the city.
"The police log and lockup information (Times reporters) are seeking must be disclosed, and it is a violation of the Access of Public Records Act to deny ... disclosure," wrote Lea Ellingwood, staff attorney.
Ellingwood noted records compiled in the course of an investigation may be withheld as deemed necessary. But the Police Department must release a daily log of all people arrested and all crimes, accidents and complaints filed with city police, as required under state law. * * *
If the waiting period for public records comes as retaliation to the Times' stories or editorial, as has been alleged in several opinion pieces in the newspaper, Ellingwood said that would also violate state law.
"To the extent that there is a retaliatory motive for the alleged change in production time without any other rationale for the more dilatory production of these specific records, the production time is a violation of the Access to Public Records Act," Ellingwood wrote.
McDermott disagreed, saying his new records policy applies across the board, to all city departments and all media outlets.
Here are the advisory opinions of the Indiana Public Access Counselor; unfortunately they do not yet include 2005.
Also of interest here may be the Dec. 31, 2004 ILB entry titled "Helping to explain why the term is 'public servant.'"
Well, the House anyway. A video setup now sends live feeds while the House of Representatives is in session. You can watch from your web browser, providing you tune in when the General Assembly is in session. Nothing is archived.
The Senate is not yet participating. However, you may listen to both the House and Senate while they are in session, again via your web browser. Again, nothing is archived.
And, currently, committee meetings (apparently even those in the House Chambers) are not covered by either audio or video. And there are no transcripts of either the House or Senate while in session, or of committee meetings or hearings.
But this is a definitely a start in the right direction, as attested by the coverage today in a number of papers:
Here is the video link and here is the audio link.
Yesterday's entry quoted a story from the South Bend Tribune. Today an AP story in the Indianapolis Star reports "No Toll Road sale proposal, but Daniels interested in its worth." And the Fort Wayne Journal Gazette editorializes: "Don’t sell the Toll Road." A quote:
The city of Chicago reaped great profits with its 99-year lease of the skyway to a Spanish and Australian consortium, Cintra-Macquarie. But the skyway is less than an 8-mile stretch on that city’s south side, compared with 157 miles on the Indiana Toll Road. The skyway simply does not hold for the metropolitan area the transportation and economic significance that the Toll Road holds for northern Indiana. (And it appears, not surprisingly, that tolls on the skyway are going up next month.)Finally, the Munster Times opines: "Our opinion: Go very slowly on this one. A toll increase could clobber economic development, and there are legitimate concerns about handing a public roadway over to a private entity."We’re prepared to “buckle up” and entertain new ideas from Gov. Daniels, including the “very large garage sale” that he said the state will probably have after it completes an inventory of its assets. Selling off one of the state’s transportation and economic lifelines, however, suggests a harrowing ride that Hoosiers don’t need to take. The new administration should look for another route for solving the state’s economic problems.
"Curtain rises on Commerce overhaul" is the headline to the Indianapolis Star story today (in the business section) on the House committee meeting yesterday to consider Gov.-elect Daniels' proposed changes to the Indiana Economic Development Commission (IEDC) law. The committee was the Committee on Commerce and Economic Development and Small Business, the bill is HB 1003. For background, see my entry Monday titled "Economic development and the Indiana Governor."
Some quotes from the beginning of the Star story:
A new organization designed to spearhead economic development would have little public oversight under a proposal supported by Gov.-elect Mitch Daniels and considered Tuesday by an Indiana House committee.Lesley Stedman Weidenbener's story today in the Louisville Courier-Journal includes:The Indiana Economic Development Corp. would not have to adopt the typical guidelines that require most state agencies to provide opportunities for public comment. Members of the Republican-controlled House Commerce Committee defeated a Democratic amendment that would have allowed those guidelines to apply. The party-line vote was 7-5.
Also, a legislative amendment that would explicitly require the development corporation to abide by state open-door and open- records laws was tabled until today.
Republican lawmakers also jump-started Gov.-elect Mitch Daniels' agenda by giving one of his top priorities — turning the state's economic development duties over to a quasi-public board of directors — an immediate committee hearing.In today's Fort Wayne Journal Gazette, Niki Kelly reports:But Democrats said accelerating the passage of legislation is not necessarily smart. And they complained that yesterday's committee meetings had not been posted on the legislature's Web site with enough time to let the public participate.
They also said the nearly 200-page bill outlining the proposed Indiana Economic Development Corp. wasn't available until late Monday night, giving them little time to prepare amendments. "That is not giving the public the ability to scrutinize these pieces of legislation or participate in the process," said Democrat Whip Dennie Oxley of English.
Minority Leader Pat Bauer, D-South Bend, also complained that the economic development legislation actually cuts off public view of actions by the corporation's board, made up of the governor and 11 other members he would appoint. * * *
Two years ago, the General Assembly passed a law that would transfer this June the duties of the Indiana Department of Commerce to the Indiana Economic Development Corp., a sort of public-private partnership that would provide incentives to companies seeking to move to the state.
But the 2003 law did not address a number of the complexities involved in the move. So Daniels has proposed several changes. He wants to reduce the size of the board from 23 to 11, give the governor rather than the legislature the power to appoint the members, and speed up implementation to this month.
The legislation also would create a new commerce secretary, a position Daniels already has said will be filled by Pat Miller, founder of Fort Wayne-based Vera Bradley, a maker of designer bags.
Daniels has asked the House and Senate to expedite the bill's passage so Miller and other new appointees can start work immediately. Lawmakers seem likely to oblige. * * *
The group met for two hours and addressed some of the Democrats' concerns. The amended bill now would require the governor to appoint members from both parties and specifies that the agency must adhere to the state's Public Records Act.
But Republican members refused to require the new agency to follow the same procedures as other state agencies when writing its internal rules. The state process requires public review and provides opportunity for comment.
Rep. Steve Heim, R-Culver, said the cumbersome rule-making process wouldn't allow the new board to be flexible and react quickly when negotiating with companies that are considering moving to Indiana.
The committee plans to resume the discussion today.
While several key Republicans expressed the need for speed and flexibility in economic development, they resisted efforts to increase accountability and oversight of the new entity – including ensuring the corporation is subject to the state’s open records law. A committee vote will be taken on the legislation today.[More] Martin DeAgostino writes in the South Bend Tribune:The Indiana Economic Development Corp. is a public-private entity that is scheduled to take over the economic development functions of the Indiana Department of Commerce starting July 1.
But Daniels wants to move the effective date to as early as possible while limiting the corporation board to 12 members – himself and 11 members he appoints. He would also name Secretary of Commerce-designee Pat Miller as CEO and Mickey Maurer as president.
The corporation would be charged with running all the state’s economic development and business programs, and would be allowed to raise private dollars. One of its chief responsibilities would be negotiating incentive packages to lure companies and new jobs to Indiana.
Proponents believe it is necessary to speed up the decision-making process, which has been hampered in the past by state regulations and layers of bureaucracy, Lt.-Gov.-elect Becky Skillman said. “There is extreme competition among states and we must move quickly,” she said.
The author of the bill – Fort Wayne Republican Rep. Randy Borror – said it is time to retool Indiana’s economic development efforts in a more streamlined fashion. * * *
The GOP also defeated a proposed change that would have required the IEDC to adopt its own rules using the same guidelines other state agencies currently use, which ensure public input.
[Rep. David] Orentlicher expressed concern about the concentration of power in the corporation and its board and a lack of accountability and public involvement on simple rules. But Borror asked the committee not to tie the hands of the corporation board and give faith to the new administration. The amendment was defeated along party lines.
The House bill amplifies and accelerates existing law that would abolish the Department of Commerce and roll all its functions into a new agency called the Indiana Economic Development Corp.The new agency would function as a public-private partnership, appointed solely by the governor, that would direct all economic development activities. The 12-member board, including the governor, also would distribute millions of dollars in state economic incentives and raise private funds to promote new business investment.
Proponents say the new structure would be nimbler than the Commerce Department, and thus promote swift and innovative initiatives to attract and retain businesses.
But Democrats said the 193-page bill requires more scrutiny than Republicans had planned and needs amendments to guarantee public input and oversight.
Among other things, their amendments would require bipartisan board appointments, specify that Open Door and Public Records laws apply to the agency and prohibit board members from making political contributions.
House Minority Leader B. Patrick Bauer, D-South Bend, said the amendments are needed because the agency concentrates so many functions and discretionary spending into so few hands."Suddenly," he said, "11 people plus the governor make all these decisions."
Thanks to the reader who pointed out to me that the Indiana Law Blog is mentioned in the new-on-the-newsstands January 2005 issue of Indianapolis Monthly.
I found the mention, thankfully favorable, on page 30. Some quotes: "Actually useful information", "Nonpartisan", and, under the category labeled "most likely reader," the Indy Monthly writes: "Attorneys, extreme public-policy wonks."
All are accurate characterizations.
Although this report is dated November 2004, I don't recall having seen anything about it. The 142-page Report of the Indiana Sentencing Policy Study Committee may be accessed here. This legislative study was chaired by Senator David Long. Of particular interest is the impact upon this study of the recent United States Supreme Court decision in Blakely v. Washington. Quoting from p. 15 of the Indiana report:
During the work group process the United State Supreme Court decision in Blakely v Washington was published. This landmark decision became the primary focus of the Criminal Code Revision Work Group. The decision held that:The ultimate recommendation of the Committee relative to Blakely is found on what is page 92 of the pdf document:A judge may not increase a defendant’s penalty beyond that which would be available “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Any fact (other than the fact of a prior conviction) necessary to enhance a penalty beyond that which is authorized solely by the jury verdict or guilty plea must be provided beyond a reasonable doubt, if not formally admitted by the defendant. When a sentencing system imposes an upper sentencing threshold, creating an effective maximum sentence, any facts necessary to go above that threshold are subject to jury determination, as are the standard elements of the offense. Thus, the use of judicially determined facts to increase a sentence beyond an effective maximum sentence violates defendants’ right to a trial by jury. (Blakely v Washington, 542 U.S.___; 124 S.Ct. 2531; No. 02-1632 (June 24, 2004)
Statutory changes to the criminal code that require the State prove the existence of aggravating circumstances beyond a reasonable doubt before a person convicted of a felony may receive a sentence greater than the presumptive, unless the person has one or more prior unrelated convictions; 2) requires the defendant be provided with notice of the State’s intention to seek a sentence greater than the presumptive; 3) requires a jury to reconvene to hear evidence on aggravating circumstances if a person is convicted of a felony in a jury trial; and 4) permits a defendant to waive their right to have a jury determine the existence of any aggravating circumstances. The Committee approved PD 3597 (Appendix 2), which is a bill draft incorporating these proposed changes in a 12-0 roll call vote. Judge Good voted as Chief Justice Shepard’s designee and abstained from the vote in the event the issue would ever come before the Indiana Supreme Court.The proposed legislation begins on page 109 (Appendix 2) of the pdf document.
This bill has been introduced by Senators Long and Howard; it is Senate Bill 96.
"Looking Beyond Enforcement at the EPA: An Independent and a Career Auditor, Inspector General Breaks the Mold -- and, She Says, an Occasional Rule," is the headline to this story today in the Washington Post. Some quotes to this story which may have some relevance to themes the new Daniels administration has sounded:
A certified public accountant with almost 30 years in federal government auditing -- at the General Accounting Office (now the Government Accountability Office) and the Interior Department before the EPA -- [Nikki] Tinsley hardly seems flustered by the uproar. She pointed out that she has audited both Democratic and Republican administrations, and that neither has liked criticism."The joke among auditors is that the two biggest lies are 'We're here to help you' and the response 'We're glad to have you,' " she said with a laugh.
Tinsley's office has done more than 60 audits and evaluations this year, mostly without notice. She is the agency's in-house auditor of financial statements and recommends periodic improvements in information, procurement and management systems.
Among her other recent findings: serious weaknesses in the EPA's system for protecting the nation's drinking water from bioterrorism; delays in toxic waste cleanups -- and resulting public health hazards -- caused by Superfund budget shortfalls; and poor EPA oversight of grants, including a multimillion-dollar award to an arm of an ineligible lobbying organization.
Tinsley has been identifying accountability problems for a decade in the EPA's grants program and is recognized among fellow inspectors general as a grants expert. She now heads a government-wide team of 17 IGs as well as state auditors and the GAO that aims to improve accountability for more than $360 billion in grants annually. * * *
Congress created the [Inspector General] position to root out waste, fraud and abuse, in hopes of raising public confidence in government. IGs more recently have been evaluating how effectively agencies pursue their goals, and Tinsley is a leader on this frontier, according to Gaston L. Gianni Jr., her counterpart at the Federal Deposit Insurance Corp. and leader of the presidentially appointed IGs council. He calls Tinsley "a tremendous leader in the IG community."
Here are the most recent ILB entries on the new Supreme Court rule (""Rule 9") governing access to court records, from 12/17/04 and 12/20/04. The Supreme Court first announced these changes on 11/15/03 (last item). However, as reported today in the Munster Times, in a story headlined "Greater privacy is goal of new court rule:"
Porter County Clerk Dale Brewer responded to the change Monday by shutting down the public-access computer terminals in Valparaiso and Portage until new software can be installed to eliminate access to the confidential information.She also has asked her staff to take on the additional job of removing any confidential information from files before providing them to the public. Attorneys and others filing legal paper work are supposed to make this job easier, she said, by breaking out these details on separate sheets of paper that can be sealed within each file. "What it does is create more paper work," Brewer said.
"For sale? Daniels' idea to sell Toll Road fires debate" is the headline to this story today in the South Bend Tribune. Some quotes:
INDIANAPOLIS -- With the state facing a $600 million budget deficit, Gov.-elect Mitch Daniels is mulling plans to sell the Indiana Toll Road to private interests -- a proposal that could generate billions of dollars.But it's unclear whether lawmakers in northern Indiana will support the controversial idea, because some extra toll revenue is used to finance important projects in their districts.
Daniels' plan to sell the Toll Road -- also known as Interstate 80/90 -- comes only months after the city of Chicago signed a 99-year lease giving control of the Chicago Skyway to an Australian and Spanish consortium. * * *
Daniels said Monday he hasn't ordered a feasibility study of a possible Indiana Toll Road sale. But he said all department heads will assemble an inventory of state assets under their purview and report candidates for possible sale or divestiture.
Daniels said those assets range from vehicles to "major infrastructure" that could be sold to generate income for other important purposes, such as highway construction, the Gary/Chicago International Airport expansion and possible expansion of Indiana ports.
"We've got a major shortfall between the amount of money available and the infrastructure needs of this state," he said. "So we're going to look at every option, from tolling, to asset sales ... everything that might give us some new money to invest in these kinds of projects." * * *
When asked whether any state assets should be sacred, Daniels said "yes."
"There are all sorts of assets that ought to be held forever in public hands," he said "Parks, for instance. But creative governments all over America, and frankly, all over the world, have come to realize there are sometimes better ways to do the people's business than to tie up large amounts of money in bricks and mortar and other assets, when that money could be doing new things."
Bank of New York, Trustee v. Stephen H. Nally, et al. (1/4/05 IndSCt) [Property; Real Estate]
Boehm, Justice.
We hold that a mortgage recorded before a deed to the mortgagor is recorded but after the deed is dated and delivered is within the mortgagor’s chain of title as of the time of recording. We also hold that equitable subrogation is an appropriate remedy and available to a subsequent mortgagee who pays off the senior mortgage in total. * * *Chester Borsuk v. Town of St. John (1/4/05 IndSCt) [Zoning]Conclusion. The judgment of the trial court is reversed. This case is remanded for further proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.
Chester Borsuk asked the Town of St. John to rezone the half of his lot presently designated residential so that the whole parcel would be commercial. He observes that the Town’s comprehensive plan contemplates commercial zoning for the whole lot and argues that the denial of his request was arbitrary and capricious. The comprehensive plan is an important ground, but not the sole ground, on which the Indiana Code says such decisions should be made. We conclude that the Town could lawfully refuse Borsuk’s request. * * *The Court of Appeals reversed [the trial court], with instructions that the trial court order the Town to rezone the parcel. It stated, "[T]he Town’s Comprehensive Plan called for the area to be zoned commercial at some point in the future. Borsuk’s parcel was the only plot of land on the entire block that was not zoned in such a manner. In such a circumstance, the municipality must -- absent a compelling reason -- comply with its comprehensive plan’s vision and rezone the area for commercial use. Failure to do so would be equivalent to ignoring the provisions of Indiana Code section 36-7-4-603 and, moreover, would render a comprehensive plan meaningless."
We granted transfer and now affirm the trial court.
I. Role of the Comprehensive Plan. * * * The Court of Appeals’ interpretation of the statute -- that a municipality must comply with its comprehension plan’s vision absent a compelling reason -- attempts to create a rebuttable presumption that the statute does not erect. A municipality must consider all factors and make a balanced determination. Ind. Code Ann. § 36-7-4-603.
II. Not Arbitrary and Capricious. * * * [A]fter weighing all of the statutory factors, the Town’s balancing suggested a permissible deviation from the comprehensive plan. These concerns provide a rational basis for the Town’s decision, and therefore, it is not arbitrary and capricious.
III. An Affidavit Supplementing the Public Record. * * * Indiana cases that have strictly adhered to the principle of boards speaking only through their minutes and records seem to have involved situations where the minutes or records were silent on the issue that the additional evidence sought to prove. In these cases, the courts refused to permit the use of external evidence as a substitute for the minutes. In this case, the minutes do address the reasons for denying Borsuk’s request for rezoning. Therefore, the trial court properly admitted Sawyer’s affidavit as a supplement to the minutes of the Plan Commission and Town Council.
IV. Unconstitutional Taking. * * * There has been some debate earlier in this cause over whether or not local ordinances would permit Borsuk to build a commercial structure on the commercially zoned portion of his lot. As a matter of takings law, this debate focuses on a moot point, because Borsuk derives rental income from the residence on his lot. A rented residence is certainly an economically viable use of land. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992). There was no taking here. * * *
We affirm the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Goulding, Randall v. 37Point9 (ND Ill.)
Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge. This suit has dragged on
despite being settled. A magistrate judge (presiding by consent
under 28 U.S.C. §636) brokered the settlement in July
2003. Defendant (which we call 37Point9, its name at the
time) was to pay $45,000 in two installments, after which
the suit was to be dismissed; it was free to tender stock in
lieu of cash, and plaintiff (which we call “the Trust”) was
free to reject the shares and stand on its entitlement to
money. If 37Point9 did not perform on schedule, the Trust
was entitled to resume the litigation. * * * Affirmed.Posted by Marcia Oddi at 01:01 PM
Yesterday (scroll down 4 entries) the ILB reported on a new rule from the Department of Local Government Finance that was recently approved by Governor Kernan.
Here is a copy of the rule, LSA #02-297.
Yesterday's report quoted from the South Bend Tribune. Today, several additional papers had stories on this development:
There are a number of stories on the convening today of the "long" session of the Indiana General Assembly, plus Gov.-elect Daniels' press conference yesterday unveiling more specifics on his legislative agenda.
Starting with the Louisville Courier Journal, Lesley Stedman Weidenbener has a story headlined: "Daniels reveals legislative plan; small companies would reap benefits." A quote:
Today, as the legislature opens its 2005 session, Skillman will testify at a committee hearing on one of Daniels' top priorities: putting a quasi-public corporation in charge of the state's economic development efforts.The story also includes a nice side-bar detailing Daniels' agenda, and adds that "Daniels has published a summary of his proposals in a booklet that's available by calling the transition office toll-free at (877) 648-2448." (It would be nice if it were readily available online.)Two years ago, the General Assembly created the Indiana Economic Development Corporation to replace the Department of Commerce next June 30.
But Daniels wants to reduce the board's membership from 23 members to 12 and to appoint all of the members himself. Current law allows legislative leaders to appoint members. [Note - the GA made some changes last year on appointments, etc., but they don't take effect until 7/1/2005.]
Daniels' proposal also would take the lieutenant governor off the board and make the governor the chairman. He wants to move up its implementation date to this month and has asked lawmakers to pass the bill as quickly as possible.
"We're very, very grateful the leadership on both sides of the assembly has decided to make that a first order of business," Daniels said. "We hope for its passage on the most rapid schedule possible."
Jennifer Whitson of the Evansville Courier&Press reports: "Daniels sees light of day: New governor favors daylight-saving time; zone change on hold." Some quotes:
Gov.-elect Mitch Daniels on Monday reversed his campaign stance and for the first time clearly stated he would seek to have the entire state observe daylight-saving time but not pursue changing time zones. That means if passed, Daniels' proposal would make most of Indiana an hour ahead of the Evansville region all year.The Fort Wayne Journal Gazette, in a story by Niki Kelly headlined "Daniels sets ‘ambitious’ session plan: Drops Central Time idea, favors entity to create jobs," reports:"In some ideal world maybe we'd all be on the same time all the time, but the critical matter for putting more Hoosiers to work ... is to end the confusion elsewhere about what the heck time is it in Indiana now, this month," Daniels said. * * *
On other notes, Daniels said his first legislative priority would be to change the effective date of the Indiana Economic Development Corp. The private-public partnership would take over most of the tasks of the current Indiana Department of Commerce but also would raise private donations to do its work. It also would be "free of the red tape" most agencies must follow, Daniels said.
This legislation, House Bill 1003, will get a hearing today after the House convenes for its first day of session..
Other than adding some smaller concepts, the booklet contained most of his proposals from the campaign trail. Daniels has tweaked some of his economic development plans by making them effective in future years to avoid pressing an already-strained budget.Regarding the IEDC changes:And he significantly modified part of his daylight-saving time stance.
In the past Daniels had advocated observing daylight-saving time and moving Indiana to the Central time zone. Now he is no longer pushing the Central time zone, saying the state should observe daylight-saving time but not address the time zone issue.
That would put most of Indiana on Eastern Daylight Time, except for northwest and southwest Indiana, which would observe Central Daylight Time. Daniels said the change is needed to keep Indiana in step with the global economy.
Daniels’ most important bill, according to prominence in the book, is creating the Indiana Economic Development Corp. – a public-private entity that will lead the state’s economic development efforts in place of the soon-to-be-extinct Indiana Department of Commerce.From the Gary Post Tribune: "Local time change not on Daniels’ agenda." The story includes this quote:Current law makes the new entity effective July 1 but Daniels wants to change the makeup of the corporation board and accelerate its effective date. He also wants the corporation – which is not considered a state agency – to be free of red tape and able to raise private money.
He said leadership in both chambers have agreed to speed up the process on House Bill 1003 and possibly have the new corporation and board in place by the end of the month.
There will be a hearing today on the legislation, which is being written by Fort Wayne Republican Rep. Randy Borror. Daniels is seeking a board with 12 members instead of 23. The governor would serve as chairman and appoint the 11 others – a major difference from current law, which gave the House and Senate some appointments.
Mickey Maurer and Secretary of Commerce-designee Pat Miller would serve as president and CEO of the corporation, respectively. Maurer would report to Miller.
The incoming governor may try to tinker with Indiana’s clocks, and if he has his way, most of Northwest Indiana will always be one hour behind most of the state.Finally for now, the Munster Times has a story titled "Daniels announces agenda for first day of Legislature." In addition to the items covered above, this story reports:That was just one of the surprises in Daniels’ legislative agenda, wrapped in a shiny booklet on Monday, outlining many of his goals for the 2005 General Assembly session.
The Monday unveiling may indicate the quick pace Daniels wants to set for the Legislature, as State Rep. Ralph Ayres, R-Chesterton, had not even read it by late afternoon. Ayres arrived one day early in Indianapolis, and was catching up on the Daniels release. * * *
In his newest comments, Daniels said he would like to see the Eastern Standard Time zone portion of the state observe daylight-saving time. Ayres said that proposal would have no effect on the Central-time counties in Northwest Indiana. That’s good news for those worried about the Chicago markets.
Last week, state Sen. Frank Mrvan, D-Hammond, said he would not support any proposal that would shift Northwest Indiana out of sync with Chicago. But the proposal would keep Northwest Indiana one hour behind most of the state. Under the current system, Indiana falls into sync with the Central zone in the spring.
Daniels considers his proposal to make all of Indiana observe daylight-saving time an economic development initiative. He said it will eliminate confusion for businesses and put Indiana in sync with almost every other state.
However, similar efforts to mandate the clock change in 77 counties that do not observe daylight-saving time have failed at least 24 times in the past three decades.
Other immediate changes would come from executive orders, Daniels said. These will include ethics reforms such as regulating executive branch lobbying and publishing state contracts on the Internet, the appointment of a secretary of commerce and the breakup of the huge Family and Social Services Agency into smaller parts.[More] I somehow neglected to include the front-page Indianapolis Star story this morning by Mary Beth Schneider, headlined "Daniels: It's high time for a change in time." The story is accompanied by a side-bar highlighting the Daniels legislative agency. Some quotes from the end of the story:More controversial and costly goals would come afterward, including moving ISTEP testing to the spring and starting earlier enrollment for kindergarten eligibility. Daniels also discussed a tax amnesty program and the sale of state assets to private corporations as ways to pay for his proposals.
Speaker of the House Brian Bosma, R-Indianapolis, said the legislature will get off to a fast start on that [economic development law change] and other issues.In past sessions, he said, "the first two or three weeks of the General Assembly have been the least effective weeks of my lifetime. We vowed to change that, to hit the ground running. Folks are going to hear tires squealing (today.)"
Some of the items on Daniels' agenda don't require legislative action. The governor-elect said he would take executive action to do such things as order an inventory of state assets with an eye toward selling some of the state's property and equipment. He earlier said one possibility is selling the Indiana Toll Road to raise cash for other state needs.
One executive order Daniels is weighing is whether to continue the collective bargaining agreements with state employees, threatening the union representation of those employees.
Daniels said he would not comment on that Monday, calling it the most complicated choice he is facing now.
This afternoon's local radio news reported that Gov.-elect Mitch Daniel's bill to revise the new economic development commission law would be heard in House Committee tomorrow. As I haven't see the Daniels' proposal, I checked the General Assembly website's House Committee Schedule page, only to be told that Pat Bauer is still Speaker. I believe that is incorrect. Perhaps the page will be updated by the time you read this.
I then reviewed my May 17, 2004 ILB entry titled "Economic Development and the Indiana Governor." I recommend it to you as background. It begins:
Introduction. This entry, an opinion piece, has two parts. Part I looks at the problems with the 2003 Indiana Economic Development Corporation law (IEDC) that I pointed out last fall, and asks -- have they been corrected? Part II explores the authority, or lack of authority, the governor elected this fall will have over Indiana economic development, as the law now stands.[More 1/4/05] Here is the new IEDC bill - HB 1003, authored by Representative Borror and referred to Committee on Commerce and Economic Development and Small Business, which, according to the news, will meet to consider it today. The digest of the bill, as introduced:
Economic development. Consolidates various provisions related to the economic development corporation (IEDC) into one article of the Indiana Code. Provides that the governor is the chairperson of the IEDC board. Reduces the membership of the IEDC board from 23 to 12 members. Abolishes the department of commerce, the steel industry advisory commission, the enterprise zone board, the twenty-first century research and technology fund board, the small business development corporation, the film commission, the business modernization and technology corporation, and the economic development council. Transfers the duties and powers of these entities to the IEDC. Specifies that certain programs related to tourism, community development, and energy that are currently administered by the department of commerce shall be administered by the lieutenant governor. Repeals provisions related to functions of the department of commerce that are transferred to the IEDC. Abolishes the office of tourism and community development and the office of energy policy, which were to take over certain duties of the department of commerce on July 1, 2005. Makes conforming changes.
The South Bend Tribune today has a feature story on St. Joseph Superior Court Judge William C. Whitman, who is retiring this week. Some quotes:
Attorney Morris Rosen says 24 years as a judge hasn't changed his law school roommate.Interestingly, that case was City of South Bend v. Kimsey, et.al. , discussed here yesterday in an ILB entry about the Fort Wayne airport oral arguments."He was just like he is now. He hasn't changed. He's just the nicest guy," Rosen said of St. Joseph Superior Court Judge William C. Whitman, who is retiring this week. * * *
Whitman said his name is on another case local residents may remember because it was an annexation statute ultimately found to apply only to St. Joseph County.
On appeal, Whitman was reversed when the Indiana Supreme Court found the law to be special legislation, which was illegal.
A story in the South Bend Tribune today by James Wensits, headlined "New rule lets valuations be revised yearly: Property value updates to minimize change between reassessments," includes these quotes:
Indiana Gov. Joe Kernan, though expressing concerns about long-term effects on homeowners, has signed into law a new rule that permits annual adjustment of property values for taxation purposes.Here is the Kernan press release. The new rule is LSA #02-297. Here is a copy of the rule.The annual adjustments, which will begin this year, won't replace periodic property reassessments.
The idea is to use market-based methodology to continually update values on all properties and avoid the huge changes typical in the past when there were several years between reassessments.
In a letter sent to Gov.-elect Mitch Daniels and top state lawmakers, Kernan said "the concept of annual adjustment is good policy" but warned that "because residential property values will increase relative to agricultural, industrial and commercial values, the rule will shift the tax burden to residential taxpayers."
Based on a study of 27 counties completed by the Legislative Services Agency, that shift could be substantial.
The study, which did not include St. Joseph County, estimated a potential 9.3 percent increase in the median property tax burden for residential properties. * * *
Because of that shift to residential taxpayers, the governor said, it will be necessary for the state to expend an estimated additional $40 million a year in property tax replacement funds.
The change could also lead to delays in the completion of property tax assessments in 2005 due to changes that will be required in computer valuation systems operated by each county.
Kernan actually signed the new rule on Thursday, the last day for action on the document, but the letter to Daniels and state lawmakers spelling out his concerns was embargoed until today. * * *
Despite apparent misgivings about the shifting of the property tax burden, Kernan told the lawmakers that he believes his decision to sign the rule will give them the "greatest flexibility" as they begin the new legislative session. "Putting the rule in place gives state policy-makers the greatest number of options for future action," he said.
Kernan said in the letter that had he not signed the rule on Thursday, it would have expired, the rule-making process would had to have started again and no annual adjustment would have been possible this year.
Although the next general property reassessment isn't due until 2009 for taxes payable in 2010, the new rules will permit annual adjustments in assessments so as to reflect market conditions. Adjustments made in 2005 will be reflected in tax bills sent out in 2006.
I thought of the transition to the Daniels administration this morning when I read this story from the Washington Post titled "Transition Is Easier Second Time Around: For Bush, Fewer Jobs to Fill and Less Fuss." The story begins:
In at least one respect, President Bush's second term already promises to be far different from his first: The presidential transition will be a lot easier.Four years ago, Bush began the transition process amid the uncertainty of the Florida recount. That forced him to lay the groundwork to name 15 Cabinet members and hire as many as 600 people for the White House staff and an additional 6,000 political appointees for other key government posts before he even knew for sure that he would be president.
This time, there are fewer jobs to fill, far less fuss surrounding the process and no real doubt about who was elected president. In a second term, federal agencies do not have to be restocked wholesale with political appointees, and departments need not adopt radically new policy approaches as when a new party assumes power. Also, many top White House staffers -- the key drivers of policy in modern presidential administrations -- are already in place.
In 2000, the Bush transition operation took more than 90,000 square feet of federal office space on G Street downtown and received $5.3 million in government funds to help launch the new administration in a 37-day sprint to Inauguration Day. This time, most of the transition is being handled within the White House. Although there has been substantial turnover in Bush's second-term Cabinet -- 9 of 15 secretaries are being replaced -- the White House staff is largely intact. Most notably, Chief of Staff Andrew H. Card Jr. and political strategist Karl Rove are staying on in those roles. That provides important continuity as Bush pursues an ambitious and controversial policy agenda, which includes revamping Social Security, curbing lawsuits, reshaping immigration laws and overhauling the tax code.
Mercier, Sue v. Fraternal Order 1254 (WD Wis.)
Before BAUER, MANION, and KANNE, Circuit Judges.Espinoza-Franco, Wal v. Ashcroft, John D. (On Petition for Review of an Order of the Board of Immigration Appeals)
MANION, Circuit Judge. For almost forty years, a monument
inscribed with the Ten Commandments (the “Monument”)
has occupied a spot in Cameron Park, a public park in the
City of La Crosse, Wisconsin (“La Crosse” or the “City”).
Recently, certain residents of La Crosse, joined by an advocacy
group, sued the City claiming the Monument violated
the Establishment Clause of the First Amendment. In response,
La Crosse sold a portion of the park and the Monument
to the Order of Eagles, the service organization that
had originally donated the Monument to the City. The
district court held that this sale violated the Establishment
Clause. We reverse. * * *In the face of litigation threatening the presence of a monument
of the Ten Commandments in a public park, the City
of La Crosse decided to sell that Monument and a small
parcel of land surrounding the Monument to the group that
had donated the Monument to the City forty years ago. This
sale has clearly not pleased everyone, and it likely did not
entirely please anyone. It was, however, constitutionally
appropriate. The decision of the district court is reversed
and the case is remanded so that the district court may enter
an order of summary judgment in favor of the City and the
Eagles. REVERSEDBAUER, Circuit Judge. I respectfully dissent.
If one accepts the premise that, by its present action, the
authorities of the City of La Crosse has effectively disassociated
themselves and the City from an endorsement of
religion by sponsoring a monument of The Ten
Commandments, the majority opinion is hard to quarrel
with. But I believe that the District Court had it right; the
actions of the City actually show a stubborn refusal to
separate itself from the display of a purely religious monument.
Having created a problem by the original act of
permitting a monument of The Ten Commandments to be
displayed on public property with what any observer would
have to conclude was an endorsement of the message of the
commandments, the City elected a solution that I think
borders on a fraud. * * *And, as I recall the story, when asked whether the law of
God or the law of man was law to follow, the answer by the
founder of Christianity was, “Render unto Caesar the things
that are Caesar’s and to God the things that are God’s.”
Neither God nor religion requires an endorsement from
Government—nor does the law permit it.
I would affirm the finding and order of the district court.
Before RIPPLE, EVANS, and SYKES, Circuit Judges.USA v. Murry, Darnell (ND Ill.)
PER CURIAM. Walter Leopoldo Espinoza-Franco was convicted
under an Illinois statute of felony sexual abuse of his
daughter. The Immigration and Naturalization Service
against him, arguing that he is removable because he committed
“sexual abuse of a minor”—an aggravated felony
under the Immigration and Nationality Act. After a hearing,
an Immigration Judge ordered his removal, and the
Board of Immigration Appeals affirmed. Espinoza-Franco
admits having committed the crime but argues that it is not
an aggravated felony. Because the crime does constitute an
aggravated felony, we dismiss his petition for review of the
administrative proceedings for lack of jurisdiction.
Before RIPPLE, KANNE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found Darnell Murry
guilty of one count of transporting fraudulently obtained
merchandise across state lines in violation of 18 U.S.C.
§§ 2314 and 2, and one count of obtaining goods valued at
over $1000 through the unauthorized use of an access device
in violation of 18 U.S.C. § 1029(a). On appeal, Murry
challenges both his conviction and his sentence, claiming
the district court erred in several evidentiary rulings and in
instructing the jury on the use of summary charts admitted
into evidence. He complains the court also erred in setting
the amount of restitution he is required to pay as part of his
sentence. We affirm the conviction but vacate and remand
the sentence so that the district court may adjust the
restitution order.
On this first work day of 2005, Happy New Year!
There does not appear to be much news today, so far. I did receive several responses over the holidays to my request for suggestions for the Indiana Law Blog's 2005 Wish List and I will be working on the list today.
The Supreme Court oral argument in SMDfund, Inc., et al v. Fort Wayne-Allen County Airport Auth., et al took place December 20, 2004. The ILB entry from that date included this information:
A Dec. 1, 2004 IBL entry, titled "Case on Fort Wayne Airport Board Could Affect Hundreds of Laws," is available here. Earlier ILB reports on the Supreme Court's grant of emergency transfer in this important case, plus analysis and a link to the initial, 6/28/04 decision of the Allen Circuit Court, are available here: 9/22/04 and 9/21/04 [See particularly my thoughts at the end of the 9/21/04 entry].Why am I talking abut this now? Because I just this morning ran across a good report on the Dec. 20th oral arguments, by Jennifer Whitson of the Evanville Courier&Press (whose website continues to confound me). Dated 12/21/04, the headline is "High court case may clarify what special legislation is all about." Some quotes:
The Indiana Constitution requires that all laws be general and applied equally. But throughout the years, lawmakers often have passed laws to aid a specific area. Whether this so-called special legislation, set up for specific areas, is constitutional has been a point of contention. To avoid the debate, lawmakers for years wrote laws that used population brackets and descriptions, instead of city names, to define which cities would be affected.Recall that the author of the majority opinion in City of South Bend v. Kimsey, et.al. (Ind.S.Ct. 1/15/03) was Justice Boehm.But in a split decision the Indiana Supreme Court handed down in January 2003 [City of South Bend v. Kimsey, et.al.], the majority said the legislative maneuver wasn't enough to keep some laws from being special legislation. The court further found that special legislation would be allowed in some circumstances but only when a city or county could show that its unique need necessitated a law.
Since then it's been somewhat unclear how to proceed and Monday's oral arguments may be the first step toward clarifying the ground rules for lawmakers.
In his questioning, Justice Theodore R. Boehm's questions seemed to offer two other alternatives - deciding outright whether the Fort Wayne case was permissible special legislation or sending the case back to the trial court to decide that issue.
Over the holidays I took the opportunity to watch the 12/20/04 oral argument in SMDfund, Inc., et al v. Fort Wayne-Allen County Airport Auth., et al, via the Indiana Supreme Court's Oral Arguments Online. I highly recommend it.
There are a number of stories today in Indiana papers relating to the issues facing the General Assembly, which is convening this Tueday, Jan. 4th, and the new administration -- Gov.-elect Daniels takes office Monday, Janu. 10th.
Lesley Stedman Weidenbener of the Louisville Courier Journal has an interview today with Gov.-elect Mitch Daniels, in which he talks "about his plans for the state and his agenda for the General Assembly session that begins this week." Another Weidenbener story today is headlined "State budget is the top priority as GOP prepares to take reins." A third LCJ article is titled "Five Key Players" and looks at five people in the executive and legislative branches. Finally, "GOP must get along to get ahead" is the headline to this Weideneber article.
"Children's advocates await action: Legislature expected to work on reform" is the headline to this story today by Tim Evans of the Indianapolis Star.
The Evanville Courier&Press writer, Jennifer Whitson, has this story today titled "Legislature short on money, not issues." Here is a quote:
As lawmakers face a fairly full plate sorting out the budget and several other initiatives, Gov.-elect Mitch Daniels has said he wants to debate moving the state to daylight-saving time this session.The Fort Wayne Journal Gazette has an editorial (accompanied by an entertaining cartoon) titled "Balancing act: Lawmakers, Daniels explore political landscape." A quote:Some say Daniels doesn't know how large of a fight he is taking on.
Server said it is a debate lawmakers would "like to avoid like the plague."
"We've dealt with it," he said. "The governor's not dealt with it. It's one that he can't win with. Either way you go, you upset people. There's no consensus."
Sen. Lindel Hume, D-Princeton, agreed. "Some of my constituents are for it and some are against it," Hume said. "And I'm fully behind my constituents."
Add to the confusion the fact that people don't really understand Daniels' plan. During the campaign, he said he backed petitioning to move the state to the Central time zone observing daylight-saving time. But recently Daniels has said he wants to debate the two issues - resetting clocks twice a year and time zones - separately.
But for many in Southwestern Indiana, the issues can't be separated. To move to daylight- saving time without a time zone change would mean the Evansville region would be an hour behind Indianapolis and most of the state year-round.
"It's certainly not in the best interest of Evansville to put us in a different time zone all year," Avery said.
And though Republicans now enjoy control of the House, Senate and governor's office, Server said that didn't mean it was going to be easy.
"This is going to be a very contentious session," Server said. "Partially because all of the responsibility is going to be on Republicans. We have no money and my general concern is that we don't get diverted by side issues, like time and other internal fights."
GOP control of the Statehouse would suggest the session will be a romp for Republicans. That’s not the case. The state’s delayed recovery from national recession means that lawmakers will finally have to address the budget shortfall they ignored two years ago. It also means Republicans will have to forge unlikely alliances to pass legislation that some of their own won’t support. Finally, it means they will have no one else to point to when they fail to pass bills they championed for grandstanding reasons.[Note from 1/3/05: The Fort Wayne paper has another editorial today looking at these same two issues - access it here.]The upshot is that lawmakers will do some things they shouldn’t and fail to do some others they should. Here are some possibilities: * * *
Daylight-saving time. Few legislators will admit it, but a Democratic-controlled House served them well when it came to the third rail of Indiana politics. Legislators straddled the issue by telling constituents who favor a time switch that it was being held hostage by big, bad power brokers in the House. For those who opposed it, lawmakers could simply reassure them that it wasn’t going to happen. Nobody wins, nobody loses.
The governor-elect supports daylight-saving time and believes Indiana’s “fractured time zone situation” is an impediment to economic development. It was one of the most clearly articulated positions of his campaign, and those who missed it weren’t paying attention.
If Daniels believes strongly enough that the state should adopt daylight-saving time and makes it part of his legislative platform, he will set the stage for the first showdown with members of his own party. His strongest support is likely to come from lawmakers from the heavily Democratic districts in northwest and southwest Indiana, where voters would like to join neighboring Illinois on Central time. Hoosiers in rural areas of the state, represented largely by Republicans, hate the idea of adopting daylight-saving time. * * *
Gay marriage. Legislation to amend the Indiana Constitution to define marriage as between a man and a woman proved the most divisive in the last session, prompting a walkout by Republican House members. The caucus used it to its advantage in defeating Democratic incumbents and winning control of the House, so approval of the legislation is practically a slam-dunk.
If lawmakers were truly as supportive of economic development as they claim, they would resist their worst impulses to support this backward legislation. Successful corporate leaders understand that it is bad business to exclude potential employees and customers. They don’t discriminate on the basis of sexual orientation not only because it’s illegal, but because they know they might be excluding a first-rate employee if they do. They extend benefits to same-sex couples for the same reason.
Politicians, however, look at polls and insist they are following the wishes of their constituents. Later, they wring their hands in despair over the “brain drain” as Indiana college graduates flee the state to live and work in progressive urban areas where tolerance and diversity are valued. * * *
"'This is our best shot' - With plans in place, Daniels and GOP leaders are poised to act: Lawmakers begin work on Tuesday." So reads the headline to this Indianapolis Star story today, by Michele McNeil. A quote:
Republicans have seized control of both legislative chambers and the governor's office at a particularly daunting time.Finally, for now, here is a useful Star story titled "2005 Legislative Preview: A look at the issues."A national recession forced thousands of Hoosiers into unemployment. A state budget deficit that was once near $1 billion still hovers close to $600 million, and lawmakers have used up most of the one-time accounting tricks that could be used to balance it, at least on paper.
Meanwhile, state government has been riddled with a seemingly endless string of scandals.
"I really consider this to be a year that, a couple of decades from now, we will look back on and say, 'This is the turning point,' " said Bosma, of Indianapolis.
Republicans have to figure out how to get Indiana out of this mess. And, unlike in previous years, they won't be able to blame Democrats for failure.
"I think Republicans are very conscious of that. We sought this opportunity. We earned it. Now we show we know how to use our victory," Daniels said.
"The pressure -- I like it."
[More] The South Bend Tribune today has two reports from Martin DeAgostino: one is headlined "Daniels' leadership faces test: New governor's reforms may get stalled as lawmakers deal with budget woes;" the second is "Pressure and opportunity await GOP: Democrats face reduced role in House."
"Vexing Issues Await States, New Leaders in 2005" is the title to this story today from the Kansas City infoZine. Some quotes:
A cast of first-time governors will bring a fresh approach to their inaugurations in 2005, including a no-frills swearing in at the State Fairgrounds for incoming Indiana Gov. Mitch Daniels (R).But while the political style may sometimes be different, the script will remain much the same in 2005 for governors and state lawmakers who again face soaring health care costs that will squeeze state budgets.
All 50 state legislatures meet in 2005 and will tackle many of the same issues that bedeviled legislatures in 2004, including how to pay for schools, curb soaring health care expenses and rein in high medical malpractice fees. * * *
A story December 27, 2004 in the Washington Post was headlined "Sometimes Lobbyists' Advice Really Is Priceless." A quote:
Lobbyists are usually reviled as shills for greedy interests. But dozens of them also work without pay to advance projects that embrace the giving spirit. What better time to acknowledge such selflessness than now, the holiday season?The story includes examples, such as:
Right here in Washington, the Capital Area Food Bank is richer thanks to Piper Rudnick LLP. Lobbying by Karen A. Regan and William H. Minor, and advice from Carl L. Vacketta and William A. Smith II, produced a $300,000 gift for the food bank in the D.C. appropriations bill. Piper Rudnick lawyers also regularly hold food drives and fund-raising events to help reduce hunger in the city.The District's struggling school system got a boost because of other Patton Boggs lobbying. The Center for Inspired Teaching, which puts public school teachers through rigorous training, received $150,000 in taxpayer money because several of the firm's lawyers pleaded its case in Congress.
Kidsave International creates model programs around the world that move orphans into adoption or long-term mentoring situations. Pro-bono lobbying by Van Scoyoc Associates brought Kidsave International an appropriation of $400,000 for its on-going work in Russia. * * *
Even the American League of Lobbyists got into the charitable act. The 25-year-old group decided to put its members' fancy clothes to a higher use. It held what it called a Capitol PurSuit drive and collected more than 7,000 business suits and related items. They were all donated to low-income people who are trying to enter the job market. The league's foundation also raised nearly $150,000 at its annual Members of Congress vs. Lobbyists basketball game in September. The proceeds paid for eye glasses, braces and tutoring for D.C. kids on Capitol Hill.