Thursday, August 02, 2007
Law - More on: "Annual Survey Shows the New Reality of Associate Life"
Following up on yesterday's entry , see this entry and comments today in the blog Above the Law.
Above the Law also has this posting today that begins:
Clerkship Bonus Watch: Dewey Ballantine. Please welcome a new member to the $50K Club:The ILB has posted before about the $250,000 bonus for SCOTUS law clerks -- see these 3/11/07 and 6/19/07 ILB entries.“Dewey Ballantine just raised its clerkship bonus. $50K for a federal clerkship or the highest court of any state.”
Posted by Marcia Oddi on August 2, 2007 12:43 PM
Posted to General Law Related
Law - A neat story today about a family law firm
Peter Lattman of the WSJ Law Blog did a great interview today under the heading "Here’s a Story . . . of a Firm Called Munley" about an "8-lawyer Scranton personal injury firm comprised of seven Munleys and a Cartwright." Read it here.
Posted by Marcia Oddi on August 2, 2007 12:36 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In Farm Bureau General Insurance Company of Michigan v. Robert M. Sloman, a 19-page opinion, Judge Vaidik writes:
Farm Bureau General Insurance Company of Michigan (“Farm Bureau”) sought this interlocutory appeal after the trial court denied its motion for summary judgment regarding whether Farm Bureau’s forum selection clause negated Elkhart County, Indiana, as a proper venue for Robert M. Sloman’s suit against Farm Bureau and whether Sloman failed to provide Farm Bureau with specific written notice of his uninsured motorist claim within the one-year contractual limitations period. Finding that Farm Bureau’s forum selection clause, under the circumstances, is unjust and unreasonable and that a genuine issue of material fact exists as to whether Farm Bureau was provided with written notice of Sloman’s uninsured motorist claim within one-year of the accident, as required by his policy, we affirm the judgment of the trial court.In Elmer Bennett v. State of Indiana , a 17-page opinion, Judge Sharpnack concludes:
The facts most favorable to the conviction reveal that Hardison last saw the hunting knife and three toolboxes in his vehicle on the morning of October 22, 2005. Later that day, Bennett asked Hardison if he could use his car and Hardison refused. The following morning, both Bennett and the car were gone and Hardison reported the car as stolen. When the vehicle was recovered, Hardison’s hunting knife and toolboxes were not in the vehicle. Evidence of probative value exists from which the trial court could have found Brown guilty of theft as a class D felony. See, e.g., Kindred v. State, 254 Ind. 73, 76, 257 N.E.2d 667, 668 (1970) (holding that the evidence was sufficient to support the defendant’s conviction for theft where the defendant was the only person in the filling station at the time the money was taken). For the foregoing reasons, we affirm Bennett’s convictions for auto theft as a class D felony and theft as a class D felony. Affirmed.In The State of Indiana, Morgan County Office of the Department of Child Services v. Roland W. Hammans and Sue E. Hammans, Co-Trustees of the Nicholas Hammans Disability Trust , a 17-page opinion, Judge Crone writes:BAILEY, J. concurs, MAY, J. concurs in result with separate opinion [which begins] I believe M.Q.M. was correctly decided and a defendant may not be convicted of theft or auto theft without proof of intent to permanently deprive the owner of the item’s value or use. Nevertheless the evidence most favorable to the judgment is sufficient to meet this standard. I would therefore affirm Bennett’s convictions and I concur in the result.
The State of Indiana, Morgan County Office of the Department of Child Services, appeals the order authorizing payment to Roland W. Hammans and Sue E. Hammans (“the Hammanses”), co-trustees of the Nicholas W. Hammans Disability Trust (“the Disability Trust”), for their administrative services as co-trustees and for personal services rendered to their son, Nicholas. We affirm.NFP civil opinions today (2):Issue. The State raises one issue, which we restate as whether the trial court’s order granting the Hammanses’ petition for co-trustee fees and personal services rendered to Nicholas is clearly erroneous.
Terry Custis v. Dondra Custis (NFP) - "Terry Custis appeals the trial court’s dissolution of his marriage to Dondra Custis. Terry raises one issue, which we revise and restate as whether the trial court abused its discretion in the valuation and division of marital property. We affirm."
In Melina F. Stewart n/k/a Melina A. Fox v. Thomas C. Stewart (NFP) , a 24-page opinion, Judge Vaidik writes:
Melina A. Fox, formerly Melina F. Stewart (“Wife”), appeals the trial court’s grant of summary judgment in favor of her former husband, Thomas C. Stewart (“Husband”), in Wife’s action for contempt, which alleged that Husband had failed to comply with the requirements of a settlement agreement incorporated in the dissolution decree. Wife also appeals the trial court’s order on her motion to compel discovery, which, she argues, improperly limited the documents that Husband had to provide during the discovery process. Concluding that there are genuine issues of material fact regarding the settlement agreement and that the trial court improperly restricted discovery, we reverse the trial court’s grant of summary judgment in favor of Husband and remand to the trial court for additional discovery and further proceedings. * * *NFP criminal opinions today (6):Because we concluded that the trial court erred by granting summary judgment to Husband due to the existence of genuine issues of material fact regarding the Settlement Agreement and the nature of the Monsanto transaction, we also conclude that the trial court’s limitation of discovery—to the extent that it limited discovery to the first transaction only—was against the logic and natural inferences to be drawn from the facts of the case. Wife’s action for contempt is based upon the allegation that Husband failed to comply with the requirements of the Settlement Agreement incorporated in the dissolution decree when he failed to compensate her for the sale of stock that occurred as a result of the Monsanto transaction. The documents regarding the nature and value of the entire Monsanto transaction would seemingly contain information that is relevant to Wife’s case and/or could be reasonably calculated to lead to the discovery of admissible evidence. Therefore, we reverse the trial court’s ruling on this issue and remand for additional discovery, with instructions that the trial court determine if a protective order is necessary for any document that may contain confidential information. See, e.g., Turner, 856 N.E.2d at 113 (reversing the trial court’s discovery ruling because the requested documents were relevant to the plaintiff’s case and/or could be reasonably calculated to lead to the discovery of admissible evidence). In summary, we reverse the trial court’s grant of summary judgment to Husband and remand for additional discovery and further proceedings. Reversed and remanded. SULLIVAN, SR. J., and ROBB, J., concur
Christopher G. Washington v. State of Indiana (NFP)
Kawauan Bluitt v. State of Indiana (NFP)
Kristopher McKinley v. State of Indiana (NFP)
Stephanie R. Clay v. State of Indiana (NFP)
Jesse L. Whitfield v. State of Indiana (NFP)
Phillip L. White v. State of Indiana (NFP)
Posted by Marcia Oddi on August 2, 2007 12:05 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - More on: Impact of Fort Wayne Disability Center ruling in other areas of state?
Updating yesterday's ILB entry on the possible impact of the July 16th Indiana COA decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al, (involving the now-closed Fort Wayne Disability Center) on other areas of the State, and quoting from a story about questions involving a recent Bloomington contract, today the Bloomington Herald Times has an opinion piece ($$$ only) which includes the following:
Whether or not the contract with REI was legally procured — we leave that determination to the lawyers and jurists — the city ought to consider using a bid process for any major contracts of this scope and magnitude, whether for goods or for services. Parking management is not such a unique service that it would be impossible to obtain bids from more than one company. And despite what may seem like an urgent situation for local residents who regularly find themselves hunting for parking spaces, the downtown parking situation is hardly the type of public emergency that justifies a quick-to-be-executed, no-bid contract.The major reason for using a bid process with high-dollar contracts is to ensure integrity and transparency in the negotiation of arrangements with private companies for the provision of services that government has traditionally supplied. Contracts like this one, which guarantees monthly income of $11,100 to the management company regardless of actual parking receipts, are just the sort that the public might question, in the absence of competing bids.
Indiana law allows a municipality the ability to adopt the requirements of the state’s more restrictive law governing public-private agreements. Before entering into further major agreements for privatization of public services, the city should consider adopting a new policy on no-bid contracts. While the city probably shouldn’t be burdened with obtaining bids for every minor service provided by outside contractors, an ordinance that would require bidding for service contracts in excess of a certain threshold dollar amount would be a welcome reform — one that could only serve to reinforce the public trust in our city’s contracting process.
Posted by Marcia Oddi on August 2, 2007 11:03 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Indianapolis firefighter's bias suit can proceed"
A brief story today in the Indianapolis Star reports:
A federal judge is allowing a sexual discrimination lawsuit filed by an Indianapolis firefighter to go to trial.Re the retaliation issue, see the discussion on pages 33-34 of the opinion, concluding with:
U.S. District Judge Sarah Evans Barker says the city did not make its case to have the lawsuit filed by fire Capt. Ruth M. Morrison thrown out.A jury trial is set for Sept. 5 in Barker's courtroom.
Morrison, who has been in the department since 1986, maintains she was the victim of sexual discrimination, failing to get promotions because of her gender. She also says she faced retaliation for complaining about discrimination.
Without a doubt, Morrison has established that triable issues of fact exist which suggest a causal connection between her protected activity and the IFD’s treatment of her. The clearest example is the meeting Morrison audiotaped between herself and Chiefs Van Sant and Walker in which Van Sant and Walker allegedly threatened and intimidated her while Van Sant held a copy of Morrison’s grievance in her lap, and made statements such as “I’ve been to the EEOC before, you want to do that[,] you want to go that way[,] you go ahead and go. The best thing you could do is grit your teeth and push on and do your job and keep this house out of trouble.” Def.’s Ex. M. This evidence by itself is sufficient to survive summary judgment on the retaliation issue.The ILB has posted the 39-page, 7/31/07 opinion here.
Posted by Marcia Oddi on August 2, 2007 09:23 AM
Posted to Ind Fed D.Ct. Decisions
Ind. Decisions - More on: Court of Appeals rules in Whitestown annexation battle
Robert Annis of the Indianapolis Star, who also wrote the story quoted in this July 26th ILB entry, has this report today that begins:
The Boone County Commissioners will decide at their next meeting whether they will appeal an Indiana Court of Appeals ruling in a land dispute with Whitestown.
The appeals court ruled July 20 that Whitestown had jurisdiction over 1,425 acres on the west side of I-65 in Boone County, an area considered to be a prime corridor. The court also said Boone County could develop its economic development area on 2,500 acres in the same area.Whitestown still wants to annex those 2,500 acres.
The commissioners held a special executive session on July 26 to discuss the case, but didn't come to a decision, said commissioner Huck Lewis.
"We've got a lot of things to consider," Lewis said. "We've talked to the attorneys and now we've got to weigh what's best for the county."
It's still to be determined how much control Boone County will have over the economic development area. The area currently is zoned residential, and Lewis believes Whitestown has zoning authority, not Boone County's Area Planning Commission.
Posted by Marcia Oddi on August 2, 2007 09:01 AM
Posted to Ind. App.Ct. Decisions
Law - "High-tech billboards targeted: Kentucky officials want them gone"
Tony Lang reports today in a lengthy story in the Cincinnati Enquirer:
Kentucky's Transportation Cabinet has told outdoor advertising companies operating in Northern Kentucky that the digital boards should be torn down, turned off or converted back to static displays. No state law specifically permits electronic billboards, and their changing messages may violate other state and federal highway rules, the cabinet says.What about Indiana? It turns out we passed a law allowing such billboards this year. Here is a story by Patrick Guiane of the NWI Times dated Feb. 13, 2007. It reports:Meanwhile, today, the Kenton County Planning Commission is to consider a ban on any more high-tech signs at least through Dec. 31, when a consultant can recommend new sign regulations.
Twelve electronic billboards have been planted in Greater Cincinnati and Northern Kentucky along Interstates 75, 71, 275 and 471. At night, they're often the brightest objects in the landscape.
Some motorists love the sharp color and rotating ads. Critics say they're a neighborhood nuisance and perhaps unsafe. * * *
Ohio permits the digital signs, provided each commercial message remains fixed for at least 8 seconds, and that the sign itself is at least 1,000 feet from another multiple-message board.
Some 156 electronic displays already line the state's interstates and highways, according to the Ohio Department of Transportation. Another 13 are in the pipeline.
That ranks Ohio among the leading electronic-billboard states. Nationwide, they total 500 plus. Several hundred more are expected to be added each year.
Three outdoor advertising giants - Clear Channel, CBS Outdoor and Lamar - control about 75 percent of the U.S. market.
A House panel granted initial approval Tuesday to moving interstate billboards into the digital age.HEA 1373 took effect 4/25/07. Note the potentially interesting language the new IC 8-23-20-25.5(d), added on p. 4 of the bill.Sponsored by state Rep. Dan Stevenson, D-Highland, House Bill 1373 would have Indiana join the majority of states that permit electronic billboards. It passed the Indiana House Government and Regulatory Reform Committee 12-0.
Electronic billboards can be used for weather and disaster bulletins, which Stevenson said "really would have been helpful (Tuesday during the heavy snows)." The displays, which morph to a different advertisement every several seconds, also are used to display missing persons information in other states.
"I think there's a few spots around Lake County that would definitely be appropriate for a digital sign and would be attractive to advertisers," said Jon Terpstra, vice president and general manager for Lamar Advertising, which owns billboards along the Borman Expressway, the Indiana Toll Road and Interstate 65.
Of the 46 states that allow any billboards, 42 already permit digital displays, Terpstra said. Another industry representative said the displays change every six to eight seconds and advertisers aren't allowed to use videos or flashing images that might distract drivers. HB 1373 now goes to the full House.
Posted by Marcia Oddi on August 2, 2007 08:39 AM
Posted to General Law Related
Law - "High-tech billboards targeted: Kentucky officials want them gone"
Tony Lang reports today in a lengthy story in the Cincinnati Enquirer:
Kentucky's Transportation Cabinet has told outdoor advertising companies operating in Northern Kentucky that the digital boards should be torn down, turned off or converted back to static displays. No state law specifically permits electronic billboards, and their changing messages may violate other state and federal highway rules, the cabinet says.What about Indiana? It turns out we passed a law allowing such billboards this year. Here is a story by Patrick Guiane of the NWI Times dated Feb. 13, 2007. It reports:Meanwhile, today, the Kenton County Planning Commission is to consider a ban on any more high-tech signs at least through Dec. 31, when a consultant can recommend new sign regulations.
Twelve electronic billboards have been planted in Greater Cincinnati and Northern Kentucky along Interstates 75, 71, 275 and 471. At night, they're often the brightest objects in the landscape.
Some motorists love the sharp color and rotating ads. Critics say they're a neighborhood nuisance and perhaps unsafe. * * *
Ohio permits the digital signs, provided each commercial message remains fixed for at least 8 seconds, and that the sign itself is at least 1,000 feet from another multiple-message board.
Some 156 electronic displays already line the state's interstates and highways, according to the Ohio Department of Transportation. Another 13 are in the pipeline.
That ranks Ohio among the leading electronic-billboard states. Nationwide, they total 500 plus. Several hundred more are expected to be added each year.
Three outdoor advertising giants - Clear Channel, CBS Outdoor and Lamar - control about 75 percent of the U.S. market.
A House panel granted initial approval Tuesday to moving interstate billboards into the digital age.HEA 1373 took effect 4/25/07. (Note the potentially interesting language the new IC 8-23-20-25.5(d), added on p. 4 of the bill.)Sponsored by state Rep. Dan Stevenson, D-Highland, House Bill 1373 would have Indiana join the majority of states that permit electronic billboards. It passed the Indiana House Government and Regulatory Reform Committee 12-0.
Electronic billboards can be used for weather and disaster bulletins, which Stevenson said "really would have been helpful (Tuesday during the heavy snows)." The displays, which morph to a different advertisement every several seconds, also are used to display missing persons information in other states.
"I think there's a few spots around Lake County that would definitely be appropriate for a digital sign and would be attractive to advertisers," said Jon Terpstra, vice president and general manager for Lamar Advertising, which owns billboards along the Borman Expressway, the Indiana Toll Road and Interstate 65.
Of the 46 states that allow any billboards, 42 already permit digital displays, Terpstra said. Another industry representative said the displays change every six to eight seconds and advertisers aren't allowed to use videos or flashing images that might distract drivers. HB 1373 now goes to the full House.
Posted by Marcia Oddi on August 2, 2007 08:39 AM
Posted to General Law Related
Courts - "Videos from W.Va. malpractice cases surface on YouTube"
Larry Messina of the AP reported this story yesterday, dateline Charleston, W.Va:
To avoid a media circus, a judge ordered evidence kept under wraps in scores of malpractice lawsuits against a former West Virginia doctor. But that hasn't stopped someone from posting videotaped testimony from the cases on YouTube.Thanks to Michael Stevens of the Kentucky Law Blog for pointing to this story.The three-minute video features outtakes from the pretrial testimony, or depositions, of six people suing Dr. John A. King. Five of the snippets are followed by surveillance-style video or photos that purport to contradict those persons' claims.
The plaintiffs allege King harmed them or their loved ones during the six months he practiced at the former Putnam General Hospital, in late 2002 and early 2003.
One man testifies he cannot grip items after King operated on him, and is then allegedly caught carrying beer to his car from a store. Another segment shows a woman testify that King left her unable to dance, followed by photos of her apparently doing just that at a wedding.
The video was posted on the popular video-sharing site June 26. More than two weeks earlier, Putnam County Circuit Judge O.C. Spaulding had ordered the sealing of all filings in the pending lawsuits.
Spaulding's ruling was partly prompted by the release of another video, also via YouTube. It claimed to show a plaintiff under surveillance - the same woman in the wedding photos in the current video. But that earlier footage turned out to be of someone else.
The defendants had apparently shared the footage with a public relations firm. The plaintiffs had also posted information about the case online. Spaulding barred both sides from releasing anything further to the media.
"I decided that both sides were trying potentially to influence the public before we went to trial," Spaulding said Wednesday. * * *
The first malpractice case is set for trial in late November.
Several lawyers with jury trial experience, who aren't involved in the King cases, told The Associated Press on Wednesday that they were unaware of any prior attempt to sway potential jurors through online video.
Putnam General hired King as an orthopedic surgeon in November 2002. It suspended his privileges the following May after a review of his work. He later surrendered his West Virginia license and left the state.
A civil jury on Tuesday found Putnam General negligent in granting King credentials, exposing its then-owners to damages in the 122 pending malpractice cases.
Posted by Marcia Oddi on August 2, 2007 08:27 AM
Posted to Courts in general
Ind. Law - "Candidate's husband charged with taking opponent's campaign signs"
From a story by Amy Bartner in today's Indianapolis Star:
The fight for the position of Bargersville clerk-treasurer turned dirty in the past week when a candidate's husband was arrested on a charge of stealing campaign signs belonging to his wife's opponent.The Star reports the charge here was theft. A column by Frank Gray of the Fort Wayne Journal Gazette last year (see Nov. 9, 2006 ILB entry here) said:
Elmer A. Roy, 46, was arrested on a preliminary misdemeanor charge of theft after admitting to police that he snatched 15 signs belonging to Clerk-Treasurer Amy Carson. Roy's wife, Carla, is running against Carson for the GOP nomination for the job this weekend.Elmer Roy is out of jail on $3,000 bond.
He was caught on security tape taking signs from a gas station just after 4:30 a.m. Friday.
"I was shocked, but I think their actions speak for themselves," Carson said.
Carson said her husband noticed the signs missing from around town Friday afternoon, and she contacted Bargersville police. They obtained surveillance video from the gas station and said they saw Roy circling the station in his tan truck before stopping, getting out and taking the signs.
Police went to his home, where he admitted to the crime, according to the police report. * * *
According to the police report, Elmer Roy said he knew it wasn't right to take the signs but didn't realize it was a crime.
The state has no laws at all addressing campaign signs. Decisions like that are left up to counties, cities and towns, we were told by the state’s Election Division.Allen County has no laws concerning political signs, either. You can put as many as you want pretty much anywhere you want and leave them there as long as you want. In the county, campaign signs are like meteors. Once they hit the ground, they can stay there forever.
That bothers some people. Last spring, near New Haven, a guy who said the signs were an eyesore and who believed they were illegal, picked up a bunch of them and tossed them into the back of his pickup truck. He was arrested and charged with theft. It’s not clear what came of the case, but he called the newspaper to talk about it, saying he did it to call attention to himself and a custody dispute he’s involved in.
Posted by Marcia Oddi on August 2, 2007 08:07 AM
Posted to Indiana Law
Ind. Courts - "Vigo courts receive two state grants"
Deb McKee reports today in the Terre Haute Trib-Star:
The Indiana Supreme Court has awarded two grants to Vigo County courts to help with the costs of court interpreters and to support the county’s Drug Court.Chief Justice Randall T. Shepard earmarked end-of-the-year funding available in the Supreme Court’s trial operations account to be awarded to state-certified drug courts.
The Vigo County Drug Court, recently re-certified through the Indiana Judicial Center for a three-year term, received $3,982.
The money will be used to supplement the Drug Court’s budget, which suffered a shortfall this year because of decreased federal grant funding, according to Vigo County Superior Court Division 5 Judge Barbara L. Brugnaux.
Brugnaux, who has been instrumental in developing the county’s 11-year-old drug court system, said, “We appreciate Chief Justice Shepard’s continued support of the drug court movement in Indiana.”
In addition to the grant received by the drug court, Vigo County was one of 36 court systems in Indiana to receive a $1,000 Court Interpreter Grant, which will be used to help local trial courts break down language barriers faced by non-English-speaking litigants. This is the third consecutive year Vigo County courts have received the interpreter grant.
Posted by Marcia Oddi on August 2, 2007 08:01 AM
Posted to Indiana Courts
Wednesday, August 01, 2007
Ind. Law - Volunteers needed for ‘Ask Me What's Great About America’ Sept. 17
From the ISBA:
The Indiana State Bar Association is seeking volunteers to participate in "Ask Me What's Great About America," a program to help educators comply with the federal regulation requiring the development of student programming to celebrate Constitution Day on Monday, Sept. 17.More information is available here on the ISBA site.This is a wonderful opportunity for volunteer attorneys to speak in 8th grade classrooms statewide about the Bill of Rights and the Constitution. Attorneys who volunteer will be provided presentation materials for a one-hour program.
Posted by Marcia Oddi on August 1, 2007 04:37 PM
Posted to Indiana Law
Ind. Decisions - 7th Circuit rules in case challenging sentencing distinction between cocaine base and cocaine
In USA v. Williams (ND Ind., Judge Springmann), a 19-page opinion, Judge Kanne writes:
Sylvanus Williams was arrested after police found a stolen gun in his car and marijuana in a bag that he had left behind in a store. A search of his car led to additional drug-related charges being brought by the United States, and after two years of pre-trial wrangling a jury convicted him on three counts. He raises four issues on appeal: he challenges the admission of certain evidence which he argues was seized in violation of his Fourth Amendment rights, he argues that his right to due process of law was denied, he challenges the district court’s sentence, and he challenges the constitutionality of the United States Sentencing Guidelines’ distinction between cocaine base and cocaine powder. Because we find no error, we affirm. * * *Finally, the appellant argues that the one hundred-to-one sentencing ratio for crack versus powder cocaine is unconscionable and unconstitutional. Whether the ratio is unconscionable is a matter for Williams to raise with the legislature. Whether the ratio is unconstitutional is an argument that was not made at sentencing, so we review it for plain error. As the appellant concedes, our circuit precedent is clear that the ratio is not a violation of the Constitution. See United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006). There was no error.
III. CONCLUSION. In ruling on the various motions to suppress, the district court did not make any findings of fact that are clearly erroneous and did not err on any questions of law. The district court did not deprive Williams of due process in violation of the Fifth Amendment. The sentencing regime in place under Booker remains constitutional, and the sentencing disparity between crack and powder cocaine has been considered on numerous occasions by this court. Accordingly the judgment and sentence of the district court are AFFIRMED.
Posted by Marcia Oddi on August 1, 2007 01:14 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - COA rules "Molester's sentence too long"
Patrick Guinane of the NWI Times writes today on yesterday's COA ruling in Rickey L. Schultz v. State of Indiana (NFP). Some quotes:
A repeat sex offender convicted of molesting several Portage children in 2005 was improperly sentenced last year, the Indiana Court of Appeals ruled Tuesday. * * *Schultz's status as a repeat offender allowed the trial court to enhance the consecutive eight-year sentences stipulated in his plea agreement. But the appeals court ruled Porter County Circuit Judge Mary Harper didn't follow sentencing guidelines when she added 10 years to Schultz's sentence.
The appeals court ruled only four years could be added to the plea deal and remanded the case to Harper with instructions she reduce Shultz's sentence from 18 years to 12 years.
Posted by Marcia Oddi on August 1, 2007 01:07 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (1):
Louis Townsend v. State of Indiana (NFP)
Posted by Marcia Oddi on August 1, 2007 01:04 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Court overturns conviction stemming from seat belt stop"
Charles Wilson of the AP writes today on yesterday's COA ruling in Gary W. Pearson v. State of Indiana. Some quotes:
A police officer exceeded the boundaries of the state's seat belt law when he asked a man following a stop if he was carrying anything the lawman should know about, the Indiana Court of Appeals ruled.The ILB thought it was odd that the COA was basing its ruling on an Attorney General's opinion and reread the ruling. Looking at p. 9 of the decision, the Court references the "Attorney General's assertion" - which presumably was made as a representative of the State in this and earlier appeals. No "AG Opinion" is mentioned.The court on Tuesday reversed Gary W. Pearson's conviction in Warrick County on charges of possession of methamphetamine and possession of marijuana _ along with the seat belt infraction.
Pearson was stopped for driving without a seat belt on Sept. 9, 2004, by a Chandler police officer who asked him to step out of the car so he could do a pat-down search for weapons.
During the search, Officer Matt Hastings asked Pearson if he was carrying anything the officer should know about, and Pearson told him he had marijuana in a pants pocket, according to court documents. Hastings then searched Pearson's car and found methamphetamine. * * *
In a 13-page opinion, the Court of Appeals said that the stop and the weapons search were legal. But, Judge Patrick Sullivan wrote, the attorney general had issued an opinion that legislators had sharply limited what police could do following a seat belt stop. Hastings had overstepped those limits, rendering the evidence inadmissible, the opinion said. [emphasis added by ILB]
"Notwithstanding the fact that Officer Hastings may have had reasonable suspicion to justify the pat-down search for weapons ... the marijuana was not discovered as a result of the pat-down search, but rather upon Pearson's response to Officer Hastings' question during the pat-down search," Sullivan wrote.
And on the basis of the attorney general's position, "we conclude that Officer Hastings was not justified in asking Pearson if he had anything on his person."
Posted by Marcia Oddi on August 1, 2007 12:33 PM
Posted to Ind. App.Ct. Decisions
Environment - "BP permit appeal may be possible"
That is the headline to this story today by Gitte Laasby of the Gary Post-Tribune. Some quotes:
Environmental groups and residents who commented on BP's new wastewater permit may be able to appeal the permit even though the appeal period is officially over.Well, not exactly. As the ILB pointed out near the end of its initial entry on the BP permit, from July 14th:The LaPorte County Environmental Association and the Alliance for the Great Lakes claim that the Indiana Department of Environmental Management failed to notify them that the permit was issued and inform them about appeal procedures. Several residents told the Post-Tribune the same.
State law requires that IDEM notifies "each person who submitted written comments" to a permit when a permit is issued or denied. That way people know when the appeal period starts.
IDEM says it did respond to comments, but could not confirm whether those responses included notification that the permit was issued.
IDEM spokeswoman Amy Hartsock said the state did notify a list of "interested parties," but a Post-Tribune analysis shows that list was outdated and did not include the addresses given by the people who commented.
If IDEM did, indeed, fail to notify people, that could be the basis for asking the Indiana Office of Environmental Adjudication for permission to file a belated appeal, said Lew Beckwith, a Baker & Daniels partner and environmental lawyer.
"You might be allowed to file a belated appeal. It's certainly an argument that ought to be addressed," Beckwith said.
Catherine Gibbs, environmental law judge with the OEA, confirmed that her office may give permission to file a belated appeal under certain circumstances.
"If you did not receive notice and you're not on time filing your appeal, we can possibly allow them to go forward with their appeal," Gibbs said.
Tom Anderson, who represented the LaPorte County Environmental Association in a letter to IDEM, said his group was never notified and that it appears IDEM did not follow the required procedure.
"That you have to find out for yourself even though you followed their process doesn't seem fair," he said. "They need to provide their notice." * * *
"The comments we received, along with the responses, were sent to the folks who submitted comments," Hartsock said. "I can promise you, we did mail or e-mail this post-public notice addendum. Staff confirmed that e-mail and mailings were sent."
She could not say when that information was sent.
IDEM did post a notice on its Web site that the final permit had been issued.
Want to know more? Currently one can view "BP Products North America Inc., Whiting Refinery NPDES Permit Information" at the IDEM site, at the bottom of this page.In short, IDEM appears to have made only a cursory effort to make even some of the BP documents accessible online. No one at IDEM appears to have taken a look at this page which it has referenced as the place to go for BP permit information, even after all the controversy. Particularly egregious, in my opinion, is (1) the fact that the cover letter to BP is in TIFF format, and only the first page is available, and (2) the fact that no Notice of Decision is posted. There should be little surprise then, that actual notice of permit issuance and opportunity to appeal was not mailed out as required by law.Oddly, these documents are not available as PDFs. The "final permit" is a 53-page Word document. The first page of the cover letter, where the date is, is available only as a TIFF document! There is no Notice of Decision (NOD) posted.
(The ILB has converted the 21-page Fact Sheet (see particularly pp. 15-17) and the 35-page Response to Comments to PDF files and posted them for its readers.)
Although the IDEM page states:
The permits listed for final issuance will remain open for appeal for a period of 18 days. This period is available for the request of an adjudicatory hearing (appeal) of a permit being issued, not for public comment.one cannot access the date the Final Permit was issued without opening and reading the TIFF document. Once opened, the first page of the cover letter, which indicates it was sent by certified mail, is dated June 21, 2007. The remaining pages of the cover letter are not posted.[More] The ILB has now been able to convert the TIFF document to PDF, using Photoshop. You may now access the first-page only (surely there were more pages ... ) of the dated letter to BP announcing issuance of the final permit here.
Posted by Marcia Oddi on August 1, 2007 09:48 AM
Posted to Environment
Courts - Problems in birthplace of the Missouri plan?
"Judicial process continues to roil Missouri" is the headline to a story earlier this week in the St. Louis Post-Dispatch that begins:
JEFFERSON CITY — The political tension gripping Missouri's judiciary grew more apparent Thursday as rival interest groups lambasted and lauded the three finalists among whom Gov. Matt Blunt is to appoint Missouri's newest Supreme Court judge.A group advocating an overhaul in Missouri's judicial selection process denounced the three candidates as "blatantly liberal." A group defending the status quo praised the trio as "diverse and well-qualified."
But just as revealing as their words was the mere fact that Missouri now has multiple interest groups intensely focusing on the way its judges are selected — a scenario that didn't exist when a governor last filled a Supreme Court vacancy three years ago. * * *
Dissatisfaction with the selection process has been building among some Republicans, including Blunt, who contend the nominating panels don't always give the governor choices that match his conservative philosophy.
Posted by Marcia Oddi on August 1, 2007 09:44 AM
Posted to Courts in general
Ind. Decisions - Impact of Fort Wayne Disability Center ruling in other areas of state?
The July 16th Indiana COA decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al, involving the now-closed Fort Wayne Disability Center (see initial ILB entry here, July 17th entry here, July 20th entry here) caused at least some concern re the Fort Wayne Harrison Square development project (see July 20th entry here).
Today, according to a story ($$$ only) in the Bloomington Herald Times by Sarah Morin, the decision raised at least in question involving a recent Bloomington contract. Some quotes:
A recent court ruling that found state officials violated state law by hiring a private firm to manage a facility without taking bids does not apply to the city of Bloomington — or its hiring of a private firm to manage its downtown parking garages.REI Real Estate Services takes over operations today of the three public garages.
The three-year contract, which guarantees the Indianapolis firm $11,100 a month for the remainder of 2007, was awarded without other companies placing an offer for parking management. That’s often the case when it comes to service contracts, city officials say.
City legal chief Kevin Robling said it’s different from contracting for products, in which a public bidding process is required by state law.
“One reason the state doesn’t require them (service contracts) to be competitively bid, you may not want to have the lowest bidder design your building,” he said as an example. “I’m guessing that’s the legislative intent.”
But a state law does go a step further in dealing with public-private agreements for services at the state and unigov — consolidated city and county — level, and any other government entity that chooses to adopt the law.
“We haven’t ever done that, don’t know of any that have,” Robling said.
IC 5-23 was cited by the Indiana Court of Appeals in its July 16 ruling that stated Gov. Mitch Daniels and other officials ignored the law when they privatized management of the Fort Wayne State Development Center without opening up a public bidding process.
Posted by Marcia Oddi on August 1, 2007 09:33 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - More on: 7th Circuit rules on Dunkin Donuts case out of Illinois
Following up on this brief ILB entry from July 10th, the Chicago Tribune has a long feature today on the dispute. Headed "Pork at issue in doughnut franchise row: Discrimination claimed in lawsuit as Muslim proprietor is threatened with loss of business," the article by Ameet Sachdev begins:
Every day for nearly 30 years, Walid Elkhatib has sold doughnuts. Glazed, chocolate frosted, Bavarian Kreme and other varieties. As a Dunkin' Donuts franchisee, he expanded the menu to include breakfast sandwiches, such as egg and cheese bagels.But he drew the line at serving sandwiches with sausage, ham or bacon because his Muslim faith forbids him from eating or handling pork -- a departure from company policy that led Dunkin' Donuts in 2002 to threaten it would take away his two Chicago-area franchises.
So for five years Elkhatib has been waging a legal battle against the Boston chain claiming racial bias, not religious discrimination. The federal court of appeals in Chicago last month reinstated the case, blurring the lines between religion and race.
Posted by Marcia Oddi on August 1, 2007 08:12 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - More on: Admissibility of electronic evidence -- is it "authentic"?
On June 14th the ILB posted this entry on the admissibility of electronic evidence, including links to my June Res Gestae article, "Assuring Authentic Legal Information in the Digital Age: Part I - the Acts of Indiana and the Indiana Code."
Today I am posting for ILB readers the draft of "Assuring Authentic Legal Information in the Digital Age: Part II - The Indiana Register and the Indiana Administrative Code." This article is slated to appear in the combined Aug-Sept. issue of Res Gestae. Don't miss the chart on p. 8.
Part II concludes: "[N]either the Indiana Code nor the Indiana Register and Indiana Administrative Code meet requirements for trustworthy state-level primary legal resources on the Web."
More: The June 14th ILB entry included discussion of the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel (D Md). Here is another take on that decision, this one from the July 27, 2007 issue of Legal Times. The article, by Bradford E. Biegon, of counsel at Washington, D.C.’s Spriggs & Hollingsworth, concludes:
These concerns are not merely academic. They go directly to the rising costs of litigation. Last year's amendments to the discovery rules opened the floodgates of electronic discovery, which can be expensive and time-consuming. Yet the changes did not address whether any of the resulting discovery materials were actually admissible at trial.To be sure, parties may seek discovery of materials that are not admissible. But courts are charged with weighing the burdens and benefits of discovery. If a party seeks discovery of electronically generated information such as metadata, which may not be evidence at all -- or at best, hearsay -- the courts might do well to consider such discovery unjustified, particularly considering that the desired information might be found through more traditional and less burdensome means.
But whether electronically generated information is evidence at all or hearsay, Grimm's opinion has given corporate counsel and their trial lawyers much to think about as they prepare to prove their cases with electronic information. Lawyers may ignore this opinion at their peril and hope that lightning strikes for them -- but as Grimm observed, "counsel would be wise not to test their luck unnecessarily. If it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied."
Posted by Marcia Oddi on August 1, 2007 07:27 AM
Posted to Indiana Courts
Law - "Annual Survey Shows the New Reality of Associate Life" [Updated]
The American Lawyer has an article today on "the state of associate life." The article begins with some findings:
# Associates aren't miserable, except perhaps in certain high-pressure New York precincts. The average satisfaction score hit a record high this year: 3.81 on a five-point scale.[Updated] For more, see today's posting in the WSJ Law Blog.# Associates don't plan on staying. Despite the high level of job satisfaction, only 44.9 percent of the respondents predicted that they would be at their firms in five years, and only 11.7 percent expected that they would become equity partners at their current firm.
# Despite all the hand-wringing over associate retention, law firms report that in nearly half the associate departures -- 49 percent -- the firms were either neutral about the departures or happy to have the associates leave. (This statistic comes from the latest survey by the National Association for Law Placement.)
# There may not be enough lawyers to feed the hiring appetite. According to our survey of summer associate hires, Am Law 200 firms expect to bring on roughly 10,000 associates next fall. That astonishing number equals about one-quarter of all the students who will graduate from U.S. law schools next year. To put it another way, the top 20 law schools will only produce about 6,500 graduates.
Posted by Marcia Oddi on August 1, 2007 07:21 AM
Posted to General Law Related
Tuesday, July 31, 2007
Ind. Decisions - 7th Circuit issues one today
In USA v. Hollingsworth (SD Ind., Judge Hamilton), a 19-page opinion, Judge Flaum writes:
Hollingsworth and McCotry moved to suppress the evidence uncovered during the search, and the district court granted Hollingsworth’s and denied McCotry’s motion. McCotry went to trial, and a jury convicted him on two counts of possession of crack cocaine, lesser offenses included in Counts One and Two, and possession with intent to distribute marijuana, Count Three. The district court imposed a 188-month sentence on the lesser offenses included in Counts One and Two and a concurrent 120-month sentence on Count Three.The government appeals the district court’s ruling on Hollingsworth’s motion to suppress, and McCotry appeals his conviction and sentence. For the following reasons, we reverse the district court’s ruling on Hollingsworth’s motion to suppress and affirm McCotry’s conviction and sentence. * * *
For the foregoing reasons, the Court REVERSES the district court’s ruling on Hollingsworth’s motion to suppress and AFFIRMS McCotry’s conviction and sentence.
Posted by Marcia Oddi on July 31, 2007 07:09 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 4 today (and 24 NFP)
A vertitable slew of decisions - details to follow ....
For publication opinions today (4):
Andre Williams v. William Maschmeyer and Paula Clarkston
Timothy Lee Swain v. State of Indiana
Gary W. Pearson v. State of Indiana
Visitation of M.S. and K.S.; Beverly R. Newman v. K.R.
NFP civil opinions today (6):
Wally Zollman, M.D. and Zollman Surgery Center, Inc. v. Shelley Ooley (NFP)
Jill Baird v. ASA Collections (NFP)
Baker Machinery, Inc. v. William O. Harrington (NFP)
Scott Hashberger v. Galloway Mortgage Services, Inc. (NFP)
NFP criminal opinions today (24):
State of Indiana v. Gregory Arnold (NFP)
Terrance Anderson v. State of Indiana (NFP)
Glenn A. Pharris v. State of Indiana (NFP)
Sarail Jamerson v. State of Indiana
Mark A. Roggenkamp v. State of Indiana (NFP)
Joseph Post v. State of Indiana (NFP)
Robert C. Howard v. State of Indiana (NFP)
LaDarrel Hicks v. State of Indiana (NFP)
Clifton E. Sharp v. State of Indiana (NFP)
Brian W. Sawyer v. State of Indiana (NFP)
Johnny Parker v. State of Indiana (NFP)
Jeremy A. Staats v. State of Indiana (NFP)
Johnny Walker v. State of Indiana (NFP)
Randy C. Cobb v.State of Indiana (NFP)
David Dozier v. State of Indiana (NFP)
Rickey L. Schultz v. State of Indiana (NFP)
Noel Edward Shuck v. State of Indiana (NFP)
William T. Chaney v. State of Indiana (NFP)
Nathan R. Sanders v. State of Indiana (NFP)
Joshua Cunningham v. State of Indiana (NFP)
Breond Yarbrough v. State of Indiana (NFP)
Donna Moore v. State of Indiana (NFP)
Larry Caldwell v. State of Indiana (NFP)
Ricky E. Graham v. State of Indiana (NFP)
Posted by Marcia Oddi on July 31, 2007 05:02 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Judge Van Bokkelen gets first slate of cases on docket
From today's Gary Post-Tribune:
HAMMOND -- Insurance companies suing businesses and businesses suing insurance companies. A family in Ogden Dunes suing the town for raiding their house. Another family suing the city of Gary for shooting their teenage son dead.All of them will share space on the docket of newly appointed U.S. District Court Judge Joseph Van Bokkelen, the former U.S. attorney who made his reputation on more colorful cases involving political corruption, drug dealing and other high-profile prosecutions.
All told, judges in the Northern District handed off 45 cases to Van Bokkelen, who begins hearing cases this week.
Van Bokkelen has said he will recuse himself from cases brought by the U.S. attorney's office that were filed or in the pipeline during his six-year term as head of the Northern District.
His courtroom will be in the current special proceedings courtroom. The judge Van Bokkelen is replacing, Rudy Lozano, has taken senior status and will continue hearing cases in his fourth-floor courtroom.
Posted by Marcia Oddi on July 31, 2007 08:26 AM
Posted to Indiana Courts
Environment - "Megafarms" appear to be a growing issue in Michigan
Christine Ferretti of the Detroit News reports today in a lengthy story:
The largest confined dairy operation in the state has about 6,000 cows, while the average non-confined large farm has closer to 500. In 2005, about 311,000 milk cows were on Michigan's 2,800 dairy farms, 95 of which had 500 or more cows, agricultural statistics show.A non-issue in Michigan before the 1990s, megafarms account for less than 1 percent of the state's 53,000 farms. But in less than a decade, the nearly 250 facilities -- mainly in the Thumb and near the Ohio border -- have become a growing source of contention among state lawmakers, a nuisance to neighbors and a concern to environmentalists.
The woes prompted a group of state senators last month to introduce a five-bill package seeking more state control over so-called animal factories. Current requirements, lawmakers say, aren't strict enough.
The legislation would require the state departments of agriculture and environmental quality to promote alternative means of manure disposal, require air emission plans and allow civil lawsuits to be filed against the facilities, said Sen. Ray Basham, D-Taylor, a co-sponsor of the bill.
"We've been trying to make it easier for family farms to survive and prosper, but now we're talking about factories," he said. "The animals don't move or graze … it is almost inhumane."
Neighbors claim extra precautions are necessary to prevent watershed pollution, but operators say they jump through enough hoops to protect the environment and are trying to survive in the industry.
A new condition imposed by the DEQ requiring the farms to apply for wastewater discharge permits also makes things tough, operators say.
Posted by Marcia Oddi on July 31, 2007 08:22 AM
Posted to Environment
Law - In Kentucky "Clash builds on benefits for domestic partners"
Nancy C. Rodriguez and Tom Loftus of the Louisville Courier-Journal report today:
FRANKFORT, Ky. -- While 200 opponents rallied yesterday for a ban on state universities offering domestic-partner benefits to employees, Attorney General Greg Stumbo said the University of Louisville has assured him it will make changes in its plan to make sure it's constitutional.Stumbo's office released a July 23 letter from U of L attorney Angela Koshewa that said "any changes in the University's healthcare offering for the 2008 benefit year will be consistent" with his June 1 attorney general's opinion.
The opinion said public universities could offer partner benefits if they include other people living with employees. Since then, the University of Kentucky has changed its policy to conform with the opinion, with eligible employees receiving the benefits beginning July 1.
U of L began its partner benefits Jan. 1. University officials said yesterday they have always said they would comply with Stumbo's ruling, but they are studying what changes will be needed. * * *
Stumbo's announcement came just hours before about 200 people rallied in the Capitol to urge the Kentucky House to pass a bill that would forbid universities and other public agencies from offering health insurance to domestic partners of employees.
"It is time to bear witness to the fact that the people of Kentucky have stood for marriage, and do stand for marriage now," said Kent Ostrander, executive director of the Lexington-based Family Foundation, which sponsored the rally.
Posted by Marcia Oddi on July 31, 2007 08:12 AM
Posted to General Law Related
Ind. Courts - Former Allen County judge Sheldon dies at 77 [Updated]
Dionne Waugh of the Fort Wayne Journal Gazette reports:
A former judge, soldier and Fort Wayne gentleman died Sunday after a short illness.See Mitch Harper's "Valedictory: Honorable Vernon Sheldon, Judge and son," here at Fort Wayne Observed.Senior Allen Superior Court Judge Vern E. Sheldon, who retired in 1998, was known by friends and colleagues as a smart and patient person both in and out of the courtroom.
“He was very intelligent man. I admired his mind. He remembered everything,” Judge Fran Gull said. “As a judge, he handled really complicated civil matters that I was always overwhelmed by. He was always very patient, particularly with those of us not as gifted as he.”
Sheldon, who was 77 and leaves behind his wife of more than 50 years and two daughters, was appointed to the bench in 1985 and elected in 1990. He was re-elected without opposition in 1996.
Posted by Marcia Oddi on July 31, 2007 08:02 AM
Posted to Indiana Courts
Ind. Law - Still more on: Daniels suggests rewriting the entire 1851 Indiana Constitution
Following up on its story yesterday (see ILB entry here), the Evansville Courier & Press today has an editorial expressing its views on an Indiana constitutional convention. Some quotes:
A constitutional convention to rewrite Indiana's 1851 state constitution would be a fascinating spectacle to watch. It's probably unnecessary, however, and the process could open up the constitution to mischief by special-interest groups. * * *The ILB hasn't had the time to do much research yet, other than the entry last evening on the "Report of the Constitutional Revision Commission 1969."Such a convention would be unprecedented in Indiana in modern times. The last one was in 1851, when the current constitution we all live under was adopted.
One obvious drawback to a convention is that every special-interest group that has ever tried to get an amendment passed — for and against abortion rights, the death penalty, same-sex marriage, even a constitutional right to hunt and fish — could try to get its language written into the new constitution.
While the governor is interested in eliminating obsolete layers of local government, convention delegates might not heed that call.
Theoretically, delegates could change anything about the structure of government. I * * *
Of greater concern than the organizational chart for politicians is the question of legal rights that all residents of Indiana enjoy. In some ways, the 1851 Indiana Constitution has stronger protections for citizens than does the U.S. Constitution. Throw open the door to changing that in a convention, and it could create new legal precedents that no one can foresee.
We look forward to hearing the Kernan-Shepard commission's non-binding recommendations on how Indiana's 19th-century government might be restructured, a goal we support. We suspect some changes can be made administratively, still others by the Legislature passing new statutes. Some changes might require a constitutional amendment to modernize offices for the 21st century, while keeping the underlying document intact.
But a constitutional convention just invites legal mischief and unintended consequences. We are opposed to one unless the governor can show the needed reforms cannot be achieved by less drastic, less radical means.
What I have turned up looks like the General Assembly would have to send a referendum on a constitutional convention to the voters, who could approve or reject the referendum. Potentially, the referendum could be narrower in scope than a rewrite of the entire document. But this is subject to revision when I get a few minutes to look into the matter further.
Posted by Marcia Oddi on July 31, 2007 06:52 AM
Posted to Indiana Law
Monday, July 30, 2007
Ind. Law - More on: Daniels suggests rewriting the entire 1851 Indiana Constitution
Earlier today I promised to post some parts of the "Report of the Constitutional Revision Commission 1969." Here it is, a scanned document, 577 K.
Some observations: This was a prestigious group, co-chaired by two former governors, Matt Welsh and Harold Handley. A governor to be, Bob Orr, was a member, as was IU President Elvis Starr. Also Dean Leon Wallace of IU Law, and Bill Ruckelshaus.
This study took place during a time when many states were undertaking updating their constitutions, several through constitutional conventions. I recall receiving a hardbound copy of the Constitutional Convention of the State of Maryland, complete with a full-page color photo of then-governor Spiro Agnew. I still have it somewhere.
Looking through the recommendations, I see that many more of them than I had remembered were not that good, and were not implemented -- they never made it to, or in some cases, through, the General Assembly. But that may be something worth thinking about. If you were to equate this body with a group undertaking a constitutional convention, this might be the kind of mixed result you would get.
As I noted earlier today, there were several endeavors going on simultaneously. The Judicial Revision Commission was completing its revision of Article 7 and this Commission endorsed its recommendations. An effort was underway to change Article 4 so that the General Assembly would meet annually, rather than every two years.
And this group successfully recommended changes to Article 5 that would allow a Governor to serve two consecutive terms, and that would have a party's candidates for Governor and Lt. Governor run as a team. At that time, having a Governor and Lt. Governor of different parties was not unusual.
Near the bottom of page 7 of the document starts a lengthy discussion of the amendment process as opposed to the constitutional convention.
Near the bottom of page 8 you will see this:
Our 1851 Constitution, unlike the 1816 document, contains no provisions for revision by constitutional convention, but does set out in Article 16 the amendatory procedures discussed previously. However, the Indiana Supreme Court has held that the lack of such provisions cannot prohibit the people of our state from requesting a convention if they so desire. Section 1 of Article 1 states, "... the People have, at all times, an indefeasible right to alter and reform their government." Therefore, if a referendum of the citizens of Indiana should indicate the desire for a constitutional convention, the fact that no express provisions for such procedure are set out in our present document could not prohibit the will of the people from being followed.I don't know why the Supreme Court case referenced is not identified.
Posted by Marcia Oddi on July 30, 2007 07:25 PM
Posted to Indiana Law
Ind. Decisions - One today from 7th Circuit
In USA v. Charles Johnson, Jr. (SD Ind., Judge Tinder), a 14-page opinion, Judge Ripple writes:
Charles Johnson was charged in a two-count indictment with production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). Mr. Johnson filed a motion to suppress certain evidence on the ground that his consent to the search was involuntary. He also claimed that his waiver of his Miranda rights was involuntary. The district court conducted an evidentiary hearing and denied Mr. Johnson’s motion to suppress. Mr. Johnson pleaded guilty but preserved his right to appeal the denial of his motion to suppress. The district court accepted his plea. After a sentencing hearing, Mr. Johnson was sentenced to concurrent terms of life imprisonment. He timely filed this appeal. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Posted by Marcia Oddi on July 30, 2007 02:34 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)
For publication opinions today (3):
Sharren M. (Garrity) Grathwohl v. Steven T. Garrity - "It has been repeatedly held that this statute [IC 31-15-7-4(a)] requires inclusion in the marital estate of all property owned by the parties before separation, including inherited property. * * * Regarding Sharren’s joint tenancy argument, as a general rule an asset of a party should be included in the marital estate so long as the party has a present interest of possessory value in the asset. * * * Thus, Sharren has a present right to enjoy the use of the Michigan property and a right to sell or mortgage her interest in it. This is sufficient to render her joint tenancy interest a present possessory interest for purposes of including the Michigan property in the marital estate. The trial court erred as a matter of law in excluding Sharren’s joint tenancy interest in the Michigan property from the marital estate. * * * [Re dissipation of marital assets] With respect to the Conseco stock, Steven is far from the only person who became “stuck” with worthless stock in that company. If it had not lost all of its value, it too would have been included in the marital estate. The fact that Steven ultimately made a poor decision in purchasing the stock does not render such purchase frivolous. * * * We remand for the limited purpose of requiring the trial court to include both parties’ inherited properties in the marital estate, to valuate those properties, and to issue a new order redistributing the marital assets accordingly. Otherwise, we affirm."
In William T. Armstrong v. Mary M. Gordon , an 18-page opinion, Judge Sullivan writes:
Appellant-Defendant, William Armstrong, appeals following a jury trial in which the jury awarded damages to Appellee-Plaintiff, Mary Gordon, in the amount of $452,200 for injuries sustained in a car accident. Upon appeal, Armstrong makes two claims, one of which we find dispositive: whether the trial court erred in excluding evidence of Gordon’s pre-existing medical problems with her neck, including those injuries allegedly related to prior automobile accidents. We reverse and remand for a new trial.In Nathaniel Grant v. State of Indiana , a 5-page opinion, Senior Judge Garrard writes:
In this appeal [defendant] challenges the proof necessary for the determination that he had committed the two prior unrelated felonies necessary to establish habitual offender status. * * *NFP civil opinions today (4):Here the state presented detailed evidence of Grant’s fingerprinting in 1979 and the establishment and use of “gallery numbers”. It presented evidence of the identification of Grant’s thumbprint in the present case and in the arrest reports for the 1983 felony and the 1984 felony, all under Grant’s unique gallery number, 270742. That same gallery number appeared on the chronological case summary for both prior cases.
With this evidence linking Grant to the prior felonies, a reasonable fact finder could well have concluded beyond a reasonable doubt that he was the same person convicted of the two prior unrelated felonies as required by I.C. 35-50-2-8(a).2 Moreover, we do not share counsel’s enthusiasm for bright line rules. The issue is proof beyond a reasonable doubt, and that proof may be achieved by the use of any properly admissible evidence sufficient to establish the ultimate fact. We find no error.
In the Matter of H.L.N.; Robert E. Chambers v. Rebecca J. Schooley (NFP) - "The trial court did not abuse its discretion in denying Chambers’ motion for the appointment of a guardian ad litem. However, the trial court’s order was not supported by either of the findings required by statute for such a decision. Remanded."
Reggie Carter v. United States Steel (NFP) - Workers compensation. "Given our standard of review on appeal, we cannot say that the Board abused its discretion when it denied Carter PTD benefits. While we might have weighed the evidence differently if we were the trier-of-fact, we are precluded from reweighing the evidence on appeal and must affirm the Board’s findings and conclusions."
Termination of the Parent-Child Relationship of M.M.J.R.; Melvin J. Nichols v. Indiana Department of Child Services, Decatur County (NFP) - "Concluding that the Indiana Department of Child Services, Decatur County Office (“DCDCS”), proved by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in M.M.J.R.’s removal will not be remedied and that the termination is in the best interests of M.M.J.R., we affirm the termination of Nichols’ parental rights to M.M.J.R."
William Glenn Sciscoe and Anita Michelle Sciscoe v. Marcella McDaniel, et al (NFP) - "William and Anita Sciscoe (collectively the Sciscoes) appeal the trial court’s denial of their summary judgment motion in their quiet title action, as well as the grant of summary judgment in favor of Marcella McDaniel, personal representative of the estate of John Davis (the Estate), on the Estate’s complaint for foreclosure. *** We affirm."
NFP criminal opinions today (9):
Jean Paul Nathan v. State of Indiana (NFP)
Joseph R. Williams-Bey v. State of Indiana (NFP)
Raven Belt v. State of Indiana (NFP)
Ezekiel I. Jones v. State of Indiana (NFP)
Robert Rogers v. State of Indiana (NFP)
Sean K. Ellison v. State of Indiana (NFP)
Kunta A. Steward v. State of Indiana (NFP)
Erick A. White v. State of Indiana (NFP)
Michael S. Boguskie v. State of Indiana (NFP)
Posted by Marcia Oddi on July 30, 2007 01:24 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Judge dismisses defendant's 'uppercase' case as 'frivolous'"
Andy Grimm of the Gary Post-Tribune writes today:
Larry Cochran will never get the chance to face LARRY COCHRAN in court.In a bizarre twisting of the notion of "capital" crimes, federal drug defendant Larry Cochran has apparently begun to annoy the judge presiding over his case.
Hoping to take advantage of a common practice of listing parties' names in legal filings using all capital letters, Cochran last month filed a lawsuit against the "fictional" LARRY COCHRAN whose name appeared in an indictment for drug dealing.
"Who is this (defendant) fictitious entity (LARRY COCHRAN)?" Cochran queried in his motion. "How can the Plaintiff (Cochran) a real live flesh and blood man, be an involuntary party ... to an action and/or claim involving ... fictitious and artificial entities?"
U.S. Judge James Moody, who also is presiding over Cochran's criminal case and the flurry of similar motions, letters and requests Cochran has filed from his cell in the Metropolitan Correction Center in Chicago, dismissed the case.
"Cochran is not as delusional as this sophomoric word game makes him appear," Moody wrote in his ruling. "He fully understands that he is LARRY COCHRAN and that he is in jail defending himself from a serious felony crime.
"Cochran is abusing the legal system in an attempt to waste judicial resources and harass (prosecutors)."
Posted by Marcia Oddi on July 30, 2007 11:57 AM
Posted to Ind Fed D.Ct. Decisions
Law - More on the student loan program
The ILB has had a number of entries about student loans - here is a list. Sunday's NY Times special education supplement included several interesting stories.
Joe Nocera, a Times business columnist, has this article titled "The Profit and the Pauper." He writes abut changes in the student loan program since he was a student:
My bank probably didn’t make a dime on me. It never raised my interest rate as punishment, nor did I ever have to pay any late fees. My chronic tardiness didn’t even affect my credit rating. And had I defaulted, I would not have had my wages garnished, or been stuck with the debt if I had filed for bankruptcy. All of which can happen today.Later in the lengthy article, a discussion of Sallie Mae:“Student loans have become big business,” says Barmak Nassirian, the executive director of the American Association of Collegiate Registrars and Admissions Officers — and high interest rates and hefty late fees are part of what makes it so profitable. Many a student comes out of college only to discover that his loan has become a noose around his neck.
For some months now, the news about student loans has largely been about scandal — how lenders have curried favor with financial aid officers to get on their “preferred lender” lists, for instance. Bills in both the House and the Senate aim to reform the system. But there is a larger, perhaps sadder story here: How did this critically important social program become so unmoored from its original intent, which was to help poor and middle-class students pay for college? To put it another way, why did student loans become more about shareholders than about students?
“Sallie revolutionized the industry,” says Representative Miller, and he doesn’t mean that as a compliment. It imposed fees and penalties that added costs when students were already having trouble repaying loans — while increasing Sallie’s profits. It bought its own collection agency. It lobbied to make it nearly impossible for borrowers to escape their student debt. (It was aided along the way by occasional reports of the wealthy reneging on their student debt, thus saddling the taxpayer with the bill.) * * *A second article, by Laura Pappano, is titled "Lessons From the Loan Scandal." It provdes "takeaway advice about where to borrow, how to borrow and how to avoid borrowing."But in our obsession with the market, we had forgotten that this stock’s performance resulted in no small part from Sallie Mae — like many of its competitors — making money on the backs of struggling college graduates. It was a little like the credit card business: the “best” customers aren’t the ones who pay off their monthly charges on time; they’re the ones who can’t. For the student loan industry, the best customers are the students who take on more debt than they can handle to get through school. What’s been lost is the idea that student loans are a service with benefits that transcend the financial.
Posted by Marcia Oddi on July 30, 2007 11:38 AM
Posted to General Law Related
Environment - "Decades After a NY Plant Closes, Waste Remains"
The lead story in the business section of the Sunday NY Times is on the failure of the Superfund cleanup program, at least at one ford plant in New York. Some quotes from the lengthy story:
From the mid-1950s to the late 1970s, Ford operated an assembly plant in northern New Jersey, in nearby Mahwah, that cranked out millions of passenger cars. Ford closed the plant in 1980, after dumping what the E.P.A. describes as thousands of tons of paint sludge and other waste in Upper Ringwood, a community of about 350 working-class residents located in the foothills of the Ramapo Mountains.An interesting sidelight to this story is that it was accompanied by a Google "keyword-targeted" ad titled "BP and Lake Michigan," which led to this site about the Whiting Refinery designed to "correct inaccurate media accounts and misleading statements that we believe have caused unnecessary concern about this project.."A few years later, the Environmental Protection Agency identified Upper Ringwood for priority cleanup under its Superfund program. Ford, deemed responsible for the pollution, spent the next five years assessing and removing sludge from a 500-acre site that included 50 homes. Satisfied with Ford’s cleanup, the E.P.A. dropped Upper Ringwood as a Superfund site in 1994, having determined, according to a public notice, that “no further cleanup by responsible parties is appropriate” and that “the current risk posed by the site is within an acceptable range.”
Yet recently, based on Ford’s and the E.P.A.’s own recent follow-up studies of the soil and groundwater in Upper Ringwood, those conclusions unraveled and became fodder in what environmental experts say is now among the messiest industrial cleanup efforts in Superfund’s 27-year history.
Since the E.P.A. relisted Upper Ringwood last year as a Superfund site, cleanup experts in the area have not only removed several thousand tons of waste that crews had previously overlooked, but workers have also identified substantial amounts of potentially hazardous paint sludge in the yards of at least two private homes, according to federal regulators and Ford. * * *
SOME environmental experts and analysts say the biggest problem in cleaning Upper Ringwood, as well as the nation’s more than 1,000 other Superfund sites, stems from the depleted resources of the Superfund itself. Superfund’s budget was built on an excise tax on crude oil and chemicals used for manufacturing. The tax lapsed in 1995, and the trust fund has shrunk from $1.5 billion in 1994 to insolvency today — leaving the E.P.A. struggling to find other sources of money to identify and assess the nation’s future cleanup needs, according to several recent studies. The E.P.A. says that Superfund’s shrinking resources don’t undermine its ability to monitor corporate polluters and that companies themselves can adequately manage and police cleanups on their own.
The price tag for all of this remains large: according to a 2005 Government Accountability Office report, it will cost $20 billion to remediate the 142 largest Superfund sites.
Superfund has proved to be effective in spurring corporate polluters to pay for their own cleanups, analysts say. Rather than face fines of as much as three times the actual cost of a cleanup if the E.P.A. undertook the effort on its own, most major corporate polluters have opted to clean the sites themselves. But that, in turn, has left the E.P.A. dependent on corporate polluters to oversee and clean up problem sites.
“Funding of cleanups is a really central issue now that the tax fund has been depleted,” says Katherine N. Probst, a senior fellow at Resources for the Future, a nonpartisan economic research group in Washington. “And there are issues about money, and issues about the future of the program, and questions about what you can expect to get in a cleanup these days.”
For its part, Ford says its efforts to clean the area through the years have been nothing less than rigorous, and that the company’s voluntary decision to study the area’s ground and streams for pollutants after closing its plant reflects its overall commitment to making the area safe for residents. The company says it is doing additional cleanup work at known landfill areas, including at two abandoned mine sites.
Posted by Marcia Oddi on July 30, 2007 11:18 AM
Posted to Environment
Ind. Courts - Delaware County Judge rejects proposed plea bargains
From today's Muncie Star-Press:
Delaware Circuit Court 3 Judge Robert Barnet Jr. has rejected proposed plea agreements in two more criminal cases.The story has no word from the Delaware County prosecutor's office.One of the deals -- negotiated by defense attorneys and the Delaware County prosecutor's office -- rejected last week called for Thelma Sollars, accused of stealing about $13,000 from her former employer, to spend no more than 60 days in jail.
The other agreement called for Daleville resident Joshua R. Thurston to plead guilty to driving while intoxicated -- resulting in his fourth felony conviction in as many years -- and receive a five-day jail sentence. * * *
Barnet in recent weeks rejected plea agreements in embezzlement cases involving a former school secretary accused of stealing more than $30,000 from the Liberty-Perry School Corp. and its parent-teacher organization, and an ex-welfare worker caseworker accused of receiving almost $45,000 in fraudulent benefits.
Posted by Marcia Oddi on July 30, 2007 10:47 AM
Posted to Indiana Courts
Ind. Law - Daniels suggests rewiting the entire 1851 Indiana Constitution
Bryan Corbin writes today in the Evansville Courier & Press:
[T]he 1851 Indiana Constitution has been the basic operating manual for state and local government for a century and a half. To restructure the multiple layers of local government contributing to high property taxes, Gov. Mitch Daniels is asking whether — after 156 years — the system established by the constitution ought to be replaced.I will review later this morning a copy of the 1969 Indiana Constitutional Revision Commission, on which I served as a lead staffer. This Commission, working in conjunction with the Judicial Revision Commission, which concentrated on Article 7, recommended significant revisions to the 1851 Constitution, most of which were approved by the General Assembly and ratified by the voters over the next few years. An important initial question addressed by the Commission was: "Amendment or Constitutional Convention?"The Republican governor has more in mind than just amending the state constitution, which has happened regularly in Indiana's history. Daniels has floated the idea of calling a constitutional convention, where delegates would rewrite the constitution from square one. Although parts of the current document could be retained, anything dealing with the structure of government and the legal rights of Hoosiers could potentially be changed.
Daniels has said he likes "big, bold solutions" and that dealing with high property taxes will involve modernizing what he calls Indiana's "antique system" established in 1851. He has appointed a panel of experts, led by his predecessor, former Democratic Gov. Joe Kernan, and Indiana Chief Justice Randall Shepard to study and recommend local government reforms.
Besides possibly consolidating schools or libraries and abolishing township-level and county-level assessors, the Kernan-Shepard commission was asked to find out whether a constitutional convention is "necessary or desirable as a means to achieve significant reforms in the structure and organization" of government.
"My point was, everything needs to be on the table, everything needs to be looked at," Daniels said recently. * * *
The idea of repealing the state constitution and starting over has been greeted with skepticism by legislators of the governor's own party.
For all its flaws, the 1851 state constitution has held up well in protecting individual rights, legal experts say. * * *
Delegates to a constitutional convention could alter basic features of government — not just the number and duties of state, county and township offices, but also the lengths of terms that officials serve — and they could change redistricting.
As a public defender in Vanderburgh County courts, Banks wonders about wholesale changes to the judicial system. Legal precedents may no longer apply, and the powers and six-year terms of circuit and superior court judges might change.
"A constitutional convention could cause the courts to be run on a state basis as opposed to a local basis, which might be good in some ways and bad in other ways," Banks said. * * *
[T]he risk of unintended political consequences concerns state Rep. Dennis Avery, D-Evansville.
"If we have a constitutional convention, there's no guarantee (the delegates) would do the things the governor wants," Avery said. "You're creating an unwieldy animal that could do what it wants to do, as long as the public supports the final project."
Avery recalled controversial social issues that special-interest groups have tried to amend into the state constitution in recent years. Much of this year's Legislature was consumed by debate on one proposed constitutional amendment, SJR 7, the same-sex-marriage ban, which was approved in the state Senate but did not pass in an Indiana House committee.
A constitution rewrite would open the door to adding SJR 7 while bypassing the time-consuming amendment process. But one of the most vocal supporters of SJR 7, lobbyist Eric Miller of the conservative group Advance America, said he opposes a convention. * * *
By year's end, the Kernan-Shepard commission will recommend ways of changing local government, which might involve changes to the state constitution. Its findings would be non-binding on the Legislature.
Concerns about a convention are "very legitimate," Daniels said. "I'm just framing questions that we'd like these very wise people (the Kernan-Shepard commission) to speak to the state. They could easily come back with exactly that point of view."
Posted by Marcia Oddi on July 30, 2007 06:31 AM
Posted to Indiana Law
Sunday, July 29, 2007
Ind. Courts - "Court caseload increase leaves Vigo judge ‘baffled’"
Deb McKee reported Saturday in the Terre Haute Tribune-Star in a story that begins:
One Vigo County court has been experiencing higher-than-normal caseloads during the first half of the year, causing some to wonder if certain types of offenses are being committed more often — or if increased patrols are catching more.Vigo County Superior Court Division 5, which handles all drug- and alcohol-related offenses, has seen an almost 17 percent increase in criminal cases filed in the first half of 2007, from those filed in the first half of 2006.
From Jan. 1 to June 27, 2006, 583 cases were filed in Division 5. During the same period in 2007, 684 cases have been filed.
Not all cases are drug- or alcohol-related, according to Division 5 Judge Barbara Brugnaux, but they make up the majority of the docket. So far in 2007, substance-related cases account for about 94 percent of new cases filed.
Brugnaux said one type of case, in particular, has court staff shaking their heads.
“We’ve really been rather baffled by the increase in drunk driving cases,” she said, “and we can’t pinpoint any one reason.”
Posted by Marcia Oddi on July 29, 2007 01:22 PM
Posted to Indiana Courts
Courts - New Albany, adult store still await ruling
Dick Kaukas writes today in the Louisville Courier Journal:
It's been almost two years since lawyers for the city of New Albany and for the adult bookstore presented arguments before the 7th U.S. Circuit Court of Appeals in Chicago in the city's fight to shut down the store. There still has been no ruling, and the lawyers say that's an unusually long time. Most cases are decided in a year or less, they said.Here is a long list of ILB entries in the New Albany case, the most recent (until today) being this one from Sept. 27th, 2005, headed "7th Circuit hears adult-store debate."In the meantime, the bookstore at 601 W. Main St. remains open 24 hours a day, seven days a week. * * *
New Albany DVD opened on Feb. 19, 2004. Within hours, the City Council adopted a six-month moratorium on any new sexually oriented businesses, and city officials ordered the store to close.
But a few days later, Mason sued in U.S. District Court in New Albany, claiming the store owner's right to free expression had been violated.
The case eventually went before U.S. District Judge Sarah Evans Barker, where lawyers for the city argued that city officials were simply enforcing a zoning ordinance -- passed several weeks after New Albany DVD had been ordered closed -- to regulate adult businesses.
Barker ruled against the city, saying the ordinance was too broad, and she ordered the city to let the store stay open pending a trial. But the trial was put on hold pending the appeal of Barker's ruling.
City Attorney Shane Gibson said last week he had no idea why the appeal has not been decided yet.
Scott Bergthold, a Chattanooga, Tenn., lawyer who also is representing New Albany and specializes in defending municipal adult business regulations, said the amount of time taken by the court seems unusual.
Bergthold said the court might be grappling with some difficult issues as well as with a similar case from Indianapolis. The judges, he speculated, might be trying to reconcile the issues raised by the two cases.
Mason made the same point, adding that it's possible documents filed by both sides are contributing to how long the court is taking. He said he has tried to keep the court current on rulings in similar cases and recently sent information on one case to the court.
Still, Mason said the wait has been puzzling, especially given the 7th Circuit's reputation for reaching decisions quickly.
"I really don't have a clue why it's taking so long," he said.
Posted by Marcia Oddi on July 29, 2007 01:16 PM
Posted to Ind. (7th Cir.) Decisions
Law - Lawyer in Kentucky schools case seeks fees, bonus
Early this month the ILB had an entry headed "Attorney who represented Seattle parents in a race-based lawsuit aims to recover his pro bono legal costs," and including this quote from the Seattle Post-Intelligencer:
Seattle Public Schools, already stung from losing its long-running legal fight over voluntary desegregation measures, now faces a new trial: paying the seven-figure legal fees of the parents who sued the district.A second ILB entry, on July 7th, quoted from an American Lawyer story headed "Shhh! Pro Bono's Not Just for Liberals Anymore: Very quietly, big law firms are taking on conservative causes as well,"Just one day after the U.S. Supreme Court ruled the district cannot use a racial tiebreaker in determining school assignments, the parents' "pro bono" attorney indicated he will try to recover legal costs he estimates will be seven figures.
"This stuff is expensive," attorney Harry Korrell, a partner at the Seattle law firm of Davis Wright Tremaine, said Friday. "There's no way to fight in federal court ... without racking up quite a legal bill." * * *
Pressing a public school district to pay more than $1 million in legal fees to a large law firm "is a little contrary to the idea that pro bono is for the public good," said Shannon McMinimee, an attorney for the district.
Recall that the Supreme Court's June 28th rulings involved two school districts, Seattle, Washington, and Louisville, Kentucky.
Today Chris Kenning and Andrew Wolfson of the Louisville Courier Journal have a story headlined "Lawyer in schools case seeks fees, bonus: Jefferson parents' attorney asks judge to set payment." Interestingly, there is no mention of "pro bono" in this Kentucky story, it is written solely in terms of civil rights laws, while there is no mention of "civil rights" in the Seattle stories, they are all couched in terms of "pro bono." Some quotes from today's story:
A Louisville lawyer who successfully challenged Jefferson County Public Schools' racial-integration policy wants the district to pay his legal fees, plus a bonus, according to a motion filed yesterday.At least one legal expert says the final figure could reach hundreds of thousands of dollars or more.
Attorney Teddy Gordon, who represented parents in a lawsuit decided by the U.S. Supreme Court last month, isn't saying exactly how much he thinks the district should pay him, but he wants more than $200 an hour, and a bonus to reflect the case's impact on schools nationwide.
"I have spent thousands of my own money on expenses and court costs," he said in a statement, while declining to say how much he thinks he deserves. "Because I am a sole practitioner who has worked hundreds of hours on these cases, I was not able to take on other clients."
Gordon's filing leaves it up to U.S. District Judge John Heyburn to determine how much he should be paid. School district lawyers declined to comment on his request.
But attorney David Friedman of Louisville, who has litigated many civil-rights cases, said Gordon almost certainly can expect to get a six-figure fee, partly because the case went all the way to the U.S. Supreme Court. * * *
The winning parties in civil-rights cases can recover attorneys' fees from the losers, and a premium or bonus can be added for complex cases. A judge usually considers the time spent, work quality and scope, experts and attorneys said.
In Gordon's case, Jefferson County Public Schools will be responsible for the fee. District officials said that insurance, after a $50,000 deductible, would cover the cost of any awarded fees and damages, and that it would not come out of the district's budget.
Before this request, Gordon sought $44,988 in fees after the initial U.S. District Court trial of the Meredith case, as well as a bonus that would bring his total fee to $150,000.
Heyburn, who was the judge in that trial, deferred ruling on the request and said he would reconsider it after the appeals had run their course, according to Byron Leet, a school district attorney. Gordon requested a fee of $60,000 for his hourly work in a 1998 Central High School case -- which led to a 2000 decision that limited the consideration of race in admissions to four magnet schools, including Central -- as well as a $150,000 bonus. Heyburn awarded him $38,800 for his hourly work and no bonus, according to court records and Leet.
In the Meredith case, Gordon said he wants a fee "equal to if not greater" than that paid to Leet and other school district attorneys, and all related costs. The district says it doesn't know that amount because insurance has paid the cost of contract attorneys. Leet also said he could not immediately provide that amount.
Civil-rights cases have allowed winning parties to recover their attorneys' fees since 1976, when Congress decided to level the playing field so that private citizens with little or no money could bring actions against state and local government to enforce civil-rights laws.
Courts elsewhere have approved some substantial awards. Last year, for example, the Dover School District in Pennsylvania was forced to pay $1 million in legal fees to the American Civil Liberties Union and the Americans United for Separation of Church and State, which successfully represented parents who sued the district for teaching the theory of intelligent design in ninth-grade biology classes.
Posted by Marcia Oddi on July 29, 2007 12:51 PM
Posted to General Law Related
Ind. Law - "Estate plans benefit all, local elder law experts say"
Dionne Waugh has two stories today in the Fort Wayne Journal Gazette about estate planning. The first begins:
Local attorney Stephen Adair, who has practiced elder law for 40 years, said it can be hard for people to know when to cede control and let others help them.The second is headlined "Brother's keeper can face legal quandary: Self-neglect cases present ‘real gray area' for law."That’s why he said families should do some estate planning, such as creating a living will or appointing someone to be their power of attorney should something happen to them.
When family members stop taking care of themselves, it puts caregivers in a really tough spot, he said.
Posted by Marcia Oddi on July 29, 2007 12:46 PM
Posted to Indiana Law
Law - "Sex offender limits: Too far?"
This ILB entry from last Wednesday, July 25th, reported on a suit in Lafayette challenging Indiana's law requiring that convicted sex offenders living within 1,000 feet of certain properties such as schools must move. The entry also referenced several successful similar challenges in Kentucky.
Today the Cincinnati Enquirer has a number of stories (a special report) devoted to requirements in both Kentucky and Ohio. The lead story, by Gregory Korte, is headlined: "Sex offender limits: Too far? Laws restrict where 2,400 can live; courts and neighborhoods struggle with consequences." Here are some quotes from the lengthy main story:
It seems like a common-sense precaution to protect children: Prohibit sex offenders from living within 1,000 feet of a school.An editorial today in the Enquirer warns of false security from these sex offender restrictions. Some concluding paragraphs:But that simple premise - which has been law in Ohio since 2003 and Kentucky since 2006 - is quickly degenerating into a legislative free-for-all, fraught with unintended consequences, controversy and constitutional questions.
The Ohio and Kentucky supreme courts are poised this fall to decide if the laws are unconstitutional because they subject offenders to further punishment after they've served their sentences.
Meanwhile, evidence suggests that residency restrictions may be counterproductive, forcing sex offenders underground and lulling parents into a false sense of security. Hamilton County sheriff's deputies, for example, have arrest warrants out for 49 sex offenders who should have registered their addresses - but who have dropped out of sight.
Seven of them simply stopped registering after the city of Cincinnati told them they couldn't live within 1,000 feet of a school.
And there's this: As more areas become off-limits, sex offenders are being concentrated into neighborhoods with few schools and inexpensive housing - neighborhoods like Westwood and Florence, an Enquirer analysis of sex offender registration data shows.
Even if they're not a threat, a concentration of sex offenders is bad news for property values. One study by the National Bureau of Economic Research suggests that a sex offender moving into a neighborhood can reduce a home's value by $5,500. * * *
Cincinnati's hard line also has prompted at least two townships - Anderson and Sycamore - to impose more restrictions there in the past two months. The townships say they have no choice: If Cincinnati's new law has the effect of pushing sex offenders out, the suburbs must counter with restrictions of their own.
Anderson Township says sex offenders can't live within 1,000 feet of parks and playgrounds. Sycamore Township followed with a 1,000-foot ban around day-care centers, playgrounds, parks, swimming pools, athletic fields and churches. * * *
The competition among cities to restrict sex offenders can take extreme forms.
The city of Reading passed an ordinance last year restricting sex offenders from within 2,000 feet of schools, day-care centers, public pools, parks, libraries and athletic fields. They encompassed virtually the entire land area of Reading.
In Northern Kentucky, local jurisdictions are on a playground-building binge.
Because sex offenders cannot live within 1,000 feet of a "publicly owned playground," authorities are getting requests from governments to reclassify vacant property as parks.
"What's happening with us is, all the little cities are saying, 'Here's a park, here's a park, here's a park,' " says Trisha Brush of the Northern Kentucky Regional Planning Commission. "Now a park is two pieces of playground equipment. Or a bench. They're taking any bit of green space and putting a bench there."
Sheriffs, who are responsible for checking up on sex offenders as often as four times a year, say residency laws are taxing their resources. * * *
The Jacob Wetterling Foundation helped pass the nation's first laws, in 1994, requiring sex offenders to register their home addresses.But Executive Director Nancy Sabin says research has shown no benefit to the laws, and they might make parents feel safe when they shouldn't.
The attention on convicted sex offenders ignores the fact that 90 percent of child sexual abuse is perpetrated by relatives or others who are invited into the home, she said.
"I don't want people looking for the wrong monsters," Sabin says. "I want them to be vigilant on the 10 percent. I want them to be really vigilant on the 90."
Several of these restrictions now face court challenges over their Constitutionality. Imposing penalties on someone who already has served a sentence sets a dubious precedent.As Ohio Rep. Bill Seitz, R-Green Township, noted the more communities ratchet up the restrictions, the less supportable they become, and the greater the risk that the whole concept will be thrown out.
But the biggest flaw with the restrictions is that they may lull people into a false sense of security. The problem with sexual predators is not where they live, but where they commit their offenses. A predator is not any less likely to prey on innocent children if his apartment is 1,001 feet from a school or park than he is if he lives 999 feet away. Increasing residential restrictions also tends to concentrate registered offenders in areas where restrictions are not so tight, or were there are no schools, parks or other banned facilities. That creates an unfair burden on the inhabited community and often prompts a new round of restrictions.
One other key statistic noted in today's report: 90 percent of child sexual abuse is committed by a family friend or relative that is permitted into the home.
Posted by Marcia Oddi on July 29, 2007 12:20 PM
Posted to General Law Related
Ind. Gov't. - "Is INDOT giving fair market value?"
Liza Danver of 14WFIE.com NEWS, reports:
The I-69 extension project may be costing some Indiana residents more than others.INDOT, the Indiana Department of Transportation, is buying property to build the interstate. One landowner who's been through this process before believes the price the state is offering is unfair.
When Jerry Lehman bought his land 30 years ago, he didn't think it would become part of a highway. A few years back INDOT told Lehman they needed to buy some of his land, but Lehman says the state's offer was 50 percent less than a court appointed assessor said it was worth, and Lehman believes tri-Staters facing I-69 buyouts are getting the same low estimates.
Lehman took the state to court and won. ALthough he didn't get paid until the two year long court battle was over.
Jerry Lehman, says, "You can fight this thing, spend attorneys fees and its going to be years before you get your money and they know that, and they take advantage of that."
Lehman says he's lucky because the state didn't take his home, but the same may not be true for the folks we've told you about in Gibson County, who have to move to make room for I-69. Jerry says these families usually can't wait for lengthy court proceedings, they need money to buy a new house.
Jerry Lehman, says, "There's a lot of things about this that aren't fair."
Kent Ahrenholtz, INDOT spokesman, says, "The reason they use independent appraisers to do that work is to make sure they get the property at fair market value."
Most homeowners we've talked to believe INDOT is not giving them a fair price for their property. Although some are willing to make concessions, saying it's the price of progress.
INDOT says it's buying some 400 parcels of land for the I-69 extension. Construction is expected to begin next year.
Posted by Marcia Oddi on July 29, 2007 12:16 PM
Posted to Indiana Government
Ind. Gov't. - "There's too much wrong to do anything but fix it"
The Indianapolis Star has an outstanding editorial today headed "There's too much wrong to do anything but fix it."
The ILB will pick up right now on just one of the many important points made, near the end of the Star's list:
Something is wrong when taxpayers have to pay $3 each time they want to go on their home computers to see their tax records, or lacking computers have to go down to the City-County Building for the information. This is government transparency at its worst.For sure. This is something the ILB has planned to write about for some time, but put off because the Star itself has helpfully provided online through its own resources at least some of the information citizens need to be able to understand their property tax situation.
Civicnet is the access-for-pay website Marion County has provided for its taxpayers to access property tax information. Here is the link, but this access-for-pay computer site is closed all day on Sundays and only open part of the day the rest of each week. When it is available it will cost you a minimum of $4.00 to access information about your own residence, and that much again for each additional residence you may want to look at to get an idea of how your assessment ranks against nearby properties. And you will not be able to get your assessment sheet here (the one with the little drawing of your lot and residence that has the assessor's figures). You will need to go downtown for that.
And there is no place in Marion County that the ILB knows of where you can access recent sales figures, a must if you are considering an appeal. That information is available for Boone, Hamilton County, Hancock, Hendricks, and Johnson counties here, via the Indianapolis Star. Each county's page is a little different, the Star's Hamilton County page includes this statement: "The Hamilton County Assessor's Office provides this information, which is available as a public record." Hancock, Hendricks and Johnson contain similar statements.
The ILB was impressed earlier this month by the Governor's appointment of Cheryl Musgrave as the new commissioner of the Department of Local Government Finance because when she was Vanderburgh County Assessor, she put in place a free county website providing all the information mentioned above, and more. See this ILB entry from Sept. 22, 2004. Here is a quote from the Evansville C&P at the time, about an upgrade to the database:
The photographs will be helpful for appraisers, real estate agencies and people shopping for homes, according to [Assessor Cheryl Musgrave ]. She said the goal of her Web site is to provide "everything you need when you're trying to learn about a piece of property," and a photograph "is worth 1,000 words." The feature was created at no additional cost to the county, said Musgrave.Here is a link to the Vanderburgh County internet database. According to the site description: "This is a website for viewing properties and associated assessment data. You can click on the map to identify or select properties. You can also search for properties and sales."
Posted by Marcia Oddi on July 29, 2007 08:19 AM
Posted to Indiana Government
Saturday, July 28, 2007
Ind. Courts - Lake jurors say instructions were confusing
Ruth Ann Krause reports today in the Gary Post-Tribune that begins:
About half of the jurors who acquitted Korey Juane Looney, 22, of attempted murder, confinement, aggravated battery and battery Thursday said afterward they were confused by the jury instructions.Jurors indicated they didn't understand that they could acquit Looney of some charges and convict him of others, according to individuals who spoke with them after about three hours of deliberation.
Posted by Marcia Oddi on July 28, 2007 10:29 AM
Posted to Indiana Courts
Law - Recovering damages from Chinese companies
The Washington Post today has a story reported by Xiyun Yang headlined "Liability Lawyers Struggle to Pierce the Chinese Curtain." A few quotes:
While suing companies in foreign countries is always more difficult than pursing a domestic lawsuit, the complexities of filing a case against a Chinese firm are compounded by the country's regulatory and legal systems and by political relations between Washington and Beijing. * * *A story in Fortune from July 5th reported:The problems begin before a lawsuit is filed. A Chinese company can only be sued in an American court if it does business on American soil, and not merely over the Internet.
Stephen A. Litchfield, a lawyer for Schneider Electric, is trying to sue two Chinese companies and accuse them of counterfeiting its Square D circuit breakers. "These companies only have Web addresses, no registered Chinese names. They don't appear to be real companies," Litchfield said. * * *
The opacity and scarcity of regulation of Chinese business practices make investigations and evidence-gathering cumbersome and frustrating. Headquarters offices, once found, are often bare-bones operations. Records may be spotty or nonexistent. Unaffected by court orders, the level of cooperation is low. Sometimes the Chinese company will not show up to a U.S. court.
"Getting records is virtually impossible. You can make requests until you're blue in the face. You'll just get some token response," said Stephen Ching, a Philadelphia lawyer with 20 years of experience in China. Ching has been involved in 25 lawsuits against Chinese companies in the last two years.
While Schneider Electric is attempting to obtain a default judgment against the Chinese, which is a judgment made in a company's absence, enforcement will be difficult. The United States and China have not signed an agreement to enforce one another's court judgments.
(Fortune Magazine) -- Not since exploding Ford Pintos in the 1970s has there been as incendiary a catalyst for recalls as China's recent spate of consumer product scares. Since March a cluster of incidents involving potentially deadly, defective, or contaminated products imported from China - pet food, toys, tires, toothpaste, cough syrup, shrimp - has awakened both that country and the United States to a latent crisis.A brief July 9th story in Business Week, titled "Made in China, Sued Here," includes the following:The larger question is just who is legally responsible when a chemical used in antifreeze ends up in a tube of toothpaste. U.S. companies are starting to find out as the lawsuits roll in that the tainted ingredients may come from China, but the liability is here. * * *
Menu Foods, the Ontario petfood maker whose China-sourced, melamine-laced gluten poisoned dozens of brands of American pet food, already faces more than 100 class-action suits. In its case, the big-name brands and retailers that it supplies - Procter & Gamble (Charts, Fortune 500), Wal-Mart (Charts, Fortune 500), Safeway (Charts, Fortune 500), Kroger (Charts, Fortune 500) - are showing up as defendants too, and could become the crucial deep pockets if Menu Foods runs out of insurance coverage. San Francisco plaintiffs lawyer William Audet explains, "For most states there's a duty on the seller to distribute a product that doesn't have poison in it." Indeed, with few exceptions, the retailers are typically on the hook, says Sheila Birnbaum, head of product-liability defense at Skadden Arps Slate Meagher & Flom.
They can seek indemnification from their Chinese exporters, but that will be their problem. (No American lawyer interviewed for this article was contemplating suing Chinese entities in Chinese courts, where tiny damage awards and frequently hostile local judges often make litigation pointless.) One way or another, if they want to stay in business, Chinese exporters will have to become accountable for injuries to U.S. consumers and businesses.
"If China wants to stay in the world market as a player, it's going to have to stand behind the products its companies manufacture," Birnbaum says. That means stronger regulation, more legal accountability - and maybe even more Chinese personal-injury lawyers.
Meanwhile, the Washington (D.C.) firm of Cohen, Milstein, Hausfeld & Toll is weighing litigation against Western distributors of Chinese-made counterfeit glycerin that found its way into cold medicine, killing hundreds of children in Panama and elsewhere. "Do people along the chain have responsibility for knowing where key ingredients are coming from? The answer you're going to find in an era of globalization is 'Yes," says Cohen Milstein's Michael Hausfeld.The WSJ Blog picked up the Business Week story in this entry. The story is picked up again by the Harris & Moure blog, China Law Blog. This blog has a number of interesting entries, including July 27th's "China Quality Control: Darkness Before The Dawn."Despite a wave of business-friendly legal reforms in recent years, companies can be held liable in most states in the U.S. even if they unwittingly sell a dangerous product. "All you have to show is that the product was defective," says William Ruskin, a defense litigator with Epstein, Becker & Green in New York. "It's no defense to say, 'We didn't know.'" Under product-liability law, one company often can be held 100% liable for all damages awarded to all consumers, regardless of its market share or the amount of tainted product it might have sold.
Don't expect plaintiffs' lawyers to make their way to China. They aren't likely to bother with small, far-flung producers that can't afford to pay big judgments.
Posted by Marcia Oddi on July 28, 2007 10:06 AM
Posted to General Law Related
Ind. Decisions - "High court to tackle corporal punishment"
Jeff Parrott of the South Bend Tribune writes today about the Supreme Court's decision Thursday to grant transfer in the case of Sophia Willis v. State. (The 5/17/07 ILB entry, 5th case, included this quote from the COA opinion: "We sympathize with Willis’s argument that she is a single parent who is doing the best that she can, but we cannot condone her choice to whip her child with an extension cord to the point of causing him bruises and extended pain.")
Some quotes from today's lengthy story:
The appeals court found that the trial court can best determine what is reasonable under any given circumstances.At the same time, the appeals court pointed to the lack of legal precedent from which to judge such cases.
"As we have noted in the past, 'there is precious little Indiana case law providing guidance as to what constitutes proper and reasonable parental discipline of children, and there are no bright-line rules,'æ" the judges wrote.
St. Joseph County Probate Judge Peter Nemeth, who handles child abuse and neglect cases, called the Supreme Court's decision to consider the case "an interesting proposition."
"That will be difficult," Nemeth said. "You almost have to look at each individual case."
Nemeth said it is similar to how then-U.S. Supreme Court Justice Potter Stewart in 1964 said that he might not be able to define hard-core pornography, or obscenity, "but I know it when I see it."
"Common sense has to prevail," Nemeth said. "I don't know if the state should be interfering in parent-child relations, but in cases where it becomes excessive, the state should step in."
Nemeth said the state's highest court could end up simply concluding that no clear statewide line should be drawn. * * *
These days, child protection agencies tend to have less tolerance for corporal punishment than was the case decades ago, Nemeth said. Their standard for intervening in a case tends to be if a mark is left on the child.
But Nemeth said his line isn't as sharp.
"It depends on the mark," he said. "A red mark, I think that can happen in the administration of legitimate corporal punishment. I think using the hand or a strap is OK."
However, a black-and-blue mark, or many red marks, crosses the line, the judge said.
Posted by Marcia Oddi on July 28, 2007 09:50 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - "Appeals court affirms killer Green's sentences"
Yesterday's Court of Appeals decision in David Michael Green v. State of Indiana is the subject of two stories today.
Ruth Ann Krause of the Gary Post-Tribune writes:
The Indiana Court of Appeals has upheld the conviction and sentence for David Michael Green, who was sentenced last year to 90 years in prison for killing his estranged wife, Stacy, and their unborn son.Keith Benman's story in the NWI Times also picks up on this part of the opinion:The court rejected claims that Green, 32, acted in self-defense against his wife, who was 39 weeks pregnant.
It also found that the Lake Superior Court Judge Thomas Stefaniak Jr. properly allowed Green's statement to police to be admitted as evidence.
Green gave the statement after defense attorney Sam Cappas secured a written agreement with Lake County Prosecutor Bernard Carter that the state wouldn't pursue the death penalty against Green.
The appeals court also found that Stefaniak was justified in imposing consecutive sentences for each of the victims, but questioned why Green was given the minimum of 45 years per count. * * *
While the appeals court agreed that David Green had no prior criminal history, the judges felt "mitigated sentences were inappropriate.
Nevertheless, lacking clear statutory or constitutional authority to revise sentences upward, we are constrained to affirm the 45-year sentences," the decision states.
The court rejected Green's claims that the trial court erred in allowing certain evidence and upheld Lake Criminal Court Judge Thomas P. Stefaniak Jr.'s imposition of consecutive 45-year sentences.In fact, the appellate court sentences could have been harsher.
"Our review of the character of the offender and the nature of the offenses as reflected in the record before us suggest Green's mitigated sentences were inappropriate," the court wrote. "Nevertheless, lacking clear statutory or constitutional authority to revise sentences upward, we are constrained to affirm the 45-year sentences."
Posted by Marcia Oddi on July 28, 2007 09:36 AM
Posted to Ind. App.Ct. Decisions
Friday, July 27, 2007
Ind. Decisions - Transfer list for week ending July 27, 2007
Here is the Indiana Supreme Court's transfer list for the week ending July 27, 2007.
There were six transfers granted this week; five were summarized in this ILB entry yesterday.
The sixth, in which there was no COA opinion, was "Granted and Remanded to the Court of Appeals."Over three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on July 27, 2007 02:34 PM
Posted to Indiana Transfer Lists
Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)
For publication opinions today (3):
David Michael Green v. State of Indiana - "The State presented sufficient evidence to negate Green’s defenses of self-defense and accident. Green has established no reversible error in the admission of evidence. Finally, he has failed to persuade us that his consecutive sentences are inappropriate. Affirmed."
Stephen M. Hay v. Ronald and Gloria Baumgartner - "[W]e conclude that the trial court properly determined that the use of the shared Driveway between both Properties resulted in a revocable license."
In Estate of Matthew Dyer, Betty and Jerry Dyer v. Thomas Doyle, individually, and as an Employee of Orkin Exterminating Co., a 23-page, 2-1 opinion, Judge Crone writes:
The Estate of Matthew Dyer (“Dyer”), Betty Dyer, and Jerry Dyer (collectively, “the Estate”) appeal the negative judgment on their wrongful death claim against Thomas Doyle, individually, and as an employee of Orkin Exterminating Co., Inc. (“Orkin”), and its parent corporation, Rollins, Inc. (“Rollins”) (collectively, “Defendants”). We reverse and remand for a new trial. * * *NFP civil opinions today (1):Here, the jury was erroneously instructed on sudden emergency, and the parties offered conflicting evidence as to whether Dyer’s speed caused his death. Given the undisputed evidence that Doyle’s vehicle was traveling in Dyer’s lane when the collision occurred, it is difficult to imagine that the verdict might not have been different if the faked left syndrome and the sudden emergency doctrine had not been improperly injected into the case. Consequently, we cannot say that the verdict could not have differed even had the jury been properly instructed.
As mentioned above, a party seeking a new trial on the basis of an improper jury instruction must show a reasonable probability that its substantial rights have been adversely affected. Elmer Buchta Trucking, 744 N.E.2d at 944. We believe that the Estate has met that threshold here. We therefore reverse and remand for a new trial. Reversed and remanded.
SULLIVAN, J., concurs. SHARPNACK, J., concurring and dissenting in part with separate opinion. [which begins] I respectfully concur in part and dissent in part. I agree with the majority’s conclusions in Issues I, II, III, and IV; however, I disagree with the majority’s ultimate conclusion that the judgment should be reversed and remanded for a new trial.
Inland Steel Company v. Armondo Martinez (NFP) - "The Worker’s Compensation Board (“the Board”) ordered Inland Steel to pay permanent total disability benefits to Martinez. Inland Steel appeals and argues that pursuant to Indiana Code section 22-3-3-13(b), the Second Injury Fund is responsible for payment of Martinez’s permanent total disability benefits. Concluding that Martinez does not qualify for Second Injury Fund benefits, we affirm."
NFP criminal opinions today (14):
Robert Webb v. State of Indiana (NFP)
Otis R. Jones v. State of Indiana (NFP)
Santonio Johnson v. State of Indiana (NFP)
Christopher C. Barnett v. State of Indiana (NFP)
Charlie Herbst v. State of Indiana (NFP)
Matthew Poisel v. State of Indiana (NFP)
John D. Wickersham v. State of Indiana (NFP)
Thurston McKelvey v. State of Indiana (NFP)
Olen Goins v. State of Indiana (NFP)
William Joseph Zapfe v. State of Indiana (NFP)
Randy Bolin, Jr. v. State of Indiana (NFP)
Jeffrey Pearson v. State of Indiana (NFP)
Frederick Cobb v. State of Indiana (NFP)
Dwight Sargeant v. State of Indiana (NFP)
Posted by Marcia Oddi on July 27, 2007 12:24 PM
Posted to Ind. App.Ct. Decisions
Ind. Gov't. - Fort Wayne meeting room size issue
The Fort Wayne Journal Gazette has a story today by Benjamin Lanka:
A city resident Wednesday filed a complaint with the Indiana public access counselor because dozens of people were not allowed into Tuesday night’s Fort Wayne City Council meeting.Mitch Harper of Fort Wayne Observed had an item about this July 24th, with a followup response July 25th.Jeff Pruitt wrote that almost 100 residents were barred from entering the meeting after the council’s meeting room was full. He said that action broke state law that requires government meetings be open for the public to observe and record.
“The meeting was not open for all of the public to observe and record as the doors were shut and citizens were not freely allowed to enter,” he wrote.
The council typically meets in a much larger room on the first floor of the City-County Building, but it has met in a smaller room on the second floor during the summer as its regular room undergoes renovations.
The room it used Tuesday seats about 50 people.
Clerk Sandy Kennedy said the room the council is using is the only place available for regular meetings. She said the council has no idea how many people are going to be at a particular council meeting, but the city wasn’t going to break fire code that limits the number of people in a room. * * *
Heather Neal, the Indiana Public Access counselor, said meetings are supposed to be open to everyone, but there is no specific requirement for how large a meeting room has to be for a public body. She said the fact the meeting was televised on public access television and held in a normal meeting room leads her to believe the meeting was held legally.
“It sounds to me they didn’t violate the spirit of the law, but I don’t know what a court would say,” she said.
The ILB has taken a quick look at opinions of past public access counselors and has found these:
May 31, 2000 [00-FC-13] - Anne Mullin O'Connor writes:
While I must conclude that the School Board did not violate the letter of the Open Door Law with respect to its April 24, 2000 meeting, I do disagree with the School Board's assertion that their actions conformed to the spirit of the Law. According to your complaints, and undisputed by Dr. Carver in his response, the School Board was made aware of the interest in the April 24th meeting two weeks in advance, but refused to move the meeting location. Fire officials were in attendance, obviously at the request of the School Board or their staff, to ensure that the meeting room capacity was not exceeded. Further, even when informed of the numbers of people standing outside wanting to attend, observe and record their meeting, they still refused to move to a larger room-either a gymnasium or auditorium in the nearby school buildings.Sept. 5, 2001 [01-FC-45] - Anne Mullin O'Connor writes:The conduct of the School Board with respect to its April 24, 2000 meeting did not, in my opinion, constitute compliance with the spirit of the Open Door Law.
The Commission does not set specific start times due to fact that the amount of time necessary for each application is unknown prior to the hearing time. As far as the meeting room is concerned, it has always been adequate to hold the persons interested in particular meetings and the reason many people are standing outside is that they have no interest in the Application being heard. * * *Jan. 9, 2004 [03-FC-138] - Michael A. Hurst writes:As to your additional complaints, it does not appear that they constitute violations of the ODL. There are no specific requirements under the ODL for meeting room size or to require that microphones or other amplification methods be used to ensure that all persons can hear the discussion of the governing body. Certainly, if the audience is having trouble hearing the discussion of the Commission, that fact should be brought to the Commission’s attention but it is not a violation of the letter of the ODL. Also, there are no requirements under the ODL that require a governing body to set specific times for hearings to take place within a meeting agenda to accommodate those who may want to attend a specific hearing. The fact that a person may have to wait to be heard on a specific application before the Commission is not a violation of the ODL.
The only specific requirement set forth for the meeting location and room is that the meeting room must be accessible for persons with disabilities. IC 5-14-3-8. There is no provision in the Open Door Law that requires a governing body to meet in a venue with a specific meeting room size or capacity. That said, if evidence indicates that the meeting room was so inadequate as to constitute an infringement on the public’s right to observe and record the meeting, the governing body may be found to have violated the Open Door Law. See IC 5-14-1.5-3(a); Advisory Opinion 00-FC-13, Alleged Violation of the Open Door Law by the Board of the Franklin Township Community School Corporation.March 12, 2007 [Informal] - Karen Davis writes:Based on the facts presented here, I decline to find that the Board violated the Open Door Law. The Open Door Law does not specifically require that a governing body meet in a room of any particular size, or that it meet in a room that can seat or otherwise accommodate every person that desires to attend that meeting. Indeed, such a requirement would be impractical for several reasons. A governing body cannot precisely predict the numbers of persons that will attend its meetings, and even where it can reasonably predict the attendance based on the issues to be presented, a room of adequate size may not be available to the governing body. This would be particularly problematic for those governing bodies that are required by other law to meet within a specific geographic location or in a particular building. Then too, the Open Door law would not be satisfied but rather would be undermined by a rule or an interpretation that would require a governing body to cancel a meeting attended by, for example, 101 persons simply because the meeting room could only accommodate 100 of those persons.
While the Open Door Law does not require a specific room meeting size, it nonetheless provides guidance to governing bodies to suggest that the meeting location be adequate to accommodate the public’s right to attend the meeting. See IC 5-14-1.5-3(a). A violation may be found if there is evidence to suggest that the governing body infringed on that right by meeting in a room or under circumstances that defeated the public’s right to observe and record the meeting. No such evidence is presented here. Indeed, the Board met in the room regularly utilized for Board meetings. That room is large and holds more than 100 people. More significantly, that room is apparently large enough to hold every person who wishes to attend in the overwhelming majority of meetings.2 Moreover, the Board’s attitude toward overflow crowds in general and specific to the meeting at issue suggests that the Board met the letter and spirit of the Open Door Law. The Board equipped the hallway with an audio system that permitted people attending the meeting in that location to hear what was occurring in the meeting room. And, with regard to this meeting, the Board momentarily suspended its business to allow for one contingent of the public to exit once their business was completed, and to allow for anyone in the lobby to at that time enter the vacated seats in the meeting room. There is no allegation or evidence to suggest that you were unable to observe and record the meeting from your vantage point in the lobby, or that you were precluded from entering the meeting room as the seats were vacated during the meeting. Neither is there any allegation or evidence that the Board sought to meet in a room too small to handle public attendance, or that it refused to try to accommodate any member of the public that desired to attend its meeting.
This Office has issued several advisory opinions concerning allegations that the meeting room for school board meetings is inadequate to accommodate the public. See Opinion of the Public Access Counselor 00-FC-13; Opinion of the Public Access Counselor 03-FC-138.The Open Door Law sets specific requirements for meetings to be conducted by governing bodies of public agencies in Indiana. Notices to the public and media must be posted and delivered as prescribed under Indiana Code section 5-14-1.5-5. If an agenda is used, it must be posted outside the meeting room immediately before the meeting begins under Indiana Code section 5-14-1.5-4. The meeting room must be accessible for persons with disabilities under Indiana Code section 5-14-3-8. There is no provision of the Open Door Law that requires a specific meeting room size or capacity. However, if evidence indicates that the meeting room was so inadequate as to constitute an infringement of the public’s right to observe and record the meeting, the governing body may be found to have violated the Open Door Law. * * *
If the Board did not hold its meeting in a room adequate to accommodate a substantial number of persons as has been the Board’s recent experience, this could constitute a violation of the Open Door Law’s requirement that the public be permitted to observe and record the meeting. On February 12 there were a substantial number of persons who had to observe the meeting from another room. It is not clear from the facts whether the video equipment allowed for all to observe, and whether the audio was clear enough for those present to hear the Board and to record the meeting. In addition, I note that providing video or audio of the meeting is but a substitute for actual attendance in the same room as the Board. Providing audio or video has been approved in circumstances where the Board had posted a notice for a particular room but had to accommodate a larger crowd than it could have anticipated.
Here, the Board was aware that the interest in the meetings ran high, and decided to revert to the Board room with full knowledge that the attendance would likely greatly exceed the size of the Board room. Even if the Board did not violate the letter of the Open Door Law, I find that the Board’s action to move the meeting to its regular Board room did not conform to the spirit of the Open Door Law.
Posted by Marcia Oddi on July 27, 2007 10:57 AM
Posted to Indiana Government
Ind. Decisions - More on "Insured's coverage passes to acquirer, court rules"
The Indiana Court of Appeals July 24th decision in Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al., (Marion Sup. Ct.; Cale Bradford, Judge) (see ILB entries here and here) is the subject of analysis at Business Insurance.com. Joanne Wojclk writes:
INDIANAPOLIS—Companies that acquire liabilities through mergers or acquisitions have the right to seek coverage under the acquired companies’ occurrence-based insurance policies for losses that occurred before the transaction, an Indiana appellate court has ruled.The Indiana Court of Appeals also found in Travelers Casualty and Surety Co. et. al vs. United States Filter Corp. that the insurance company doesn’t have to approve the transfer of coverage to the acquiring company for it to have the right to tap the policies when necessary.
The case stems from U.S. Filter’s and Waste Management Inc.’s efforts to seek coverage from insurance policies issued to Wheelabrator Technologies and several successor companies, which Waste Management acquired in 1990. U.S. Filter and Waste Management had been sued by thousands of claimants who claimed bodily injury as a result of exposure to silica while working near a metal-cleaning machine Wheelabrator manufactured in Mishawaka, Ind., in 1932.
The insurers maintained that while they had issued policies to Wheelabrator and its many successor companies, the coverage did not extend to Waste Management—nor to U.S. Filter, which acquired the assets and liabilities of Wheelabrator from Waste Management in 1996.
A trial court held for the plaintiffs, prompting the insurers to appeal the decision. The appellate court agreed with the trial court, finding that if U.S. Filter and Waste Management were unable to seek coverage under the policies, it “would provide an unfair windfall for insurers.” Moreover, the court found that it would deter companies from making acquisitions “if it were impossible for a business to insure against historic liabilities that may come with the new asset, especially when a purchaser could not purchase insurance retroactively to cover a past loss.”
The decision is significant because it counters a 2003 California Supreme Court decision in Henkel Corp. vs. Hartford Accident & Indemnity Co. that found that unless the acquiring company receives acknowledgment from the insurer that the coverage has been transferred to it as part of a merger or acquisition, the coverage “simply disappears” after such a deal has closed, according to William Passannante, co-chair of the insurance coverage group at Anderson Kill & Olick P.C., a New York-based law firm that regularly represents policyholders in coverage disputes.
Posted by Marcia Oddi on July 27, 2007 09:28 AM
Posted to Ind. App.Ct. Decisions
Law - Boston law firm uses web videos to attract new associates
The WSJ Blog has an entertaining entry this morning about Choate Hall & Stewart LLP, a Boston firm using videos to attract new legal talent.
Posted by Marcia Oddi on July 27, 2007 08:45 AM
Posted to General Law Related
Ind. Courts - Porter judge may order state to release court funding
Bob Kasarda reports today in the NWI Tmes:
VALPARAISO | Local judges don't typically order state officials around.But that is exactly what Porter Superior Judge Bill Alexa is considering if the state does not approve his request for an additional $25,000 for his court's pauper fund, which is used to cover legal expenses of defendants without money.
The issue arose during a hearing Thursday involving accused rapist Mark Hurst of Portage.
Porter County Public Defender Tony Bertig told the judge Hurst has nothing to wear during next week's trail other than his jail garb.
Alexa said he typically would dip into his pauper's fund to purchase clothing in these cases, but the fund is already $4,000 in the red. He asked Bertig to purchase the clothing and seek reimbursement later from the court.
Alexa said the Indiana Department of Local Government Finance was sitting on his request for additional funding and he was considering ordering the agency to approve the money.
A spokesperson for Local Government Finance was looking into the issue Thursday.
During a break in Thursday's hearing, Alexa said the $25,000 balance in his pauper fund was nearly wiped out this year by $16,000 in state public defender fees.
The judge said he won approval a month ago for another $25,000 from the county council, but the state agency has not yet given final approval for the funds.
Alexa said he thinks he might have the power to order the state agency to approve the funding request or at least order the county council to release the money and deal with the state later.
Posted by Marcia Oddi on July 27, 2007 08:38 AM
Posted to Indiana Courts
Courts - More on: 7th Circuit affirms CD Illinois ruling dismissing suit to stop Illinois base closure
This ILB entry from Sept. 9, 2005 quoted from a Chicago Tribune story that began:
SPRINGFIELD -- A federal appeals court on Thursday rejected Gov. Rod Blagojevich's attempt to stop the government from moving National Guard fighter jets to Indiana.Apparently, he has now done just that. An AP story today in the Terre Haute Tribune-Star begins:A three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled that Blagojevich was premature in protesting a commission's recommendation that Springfield's 183rd Fighter Wing and its 15 jets move to Fort Wayne as part of a nationwide reorganization of the U.S. military.
Two justices, with one dissenting, said Blagojevich could come back to court if the change is approved by President Bush and Congress. A spokeswoman for Attorney General Lisa Madigan said the state plans to do that.
SPRINGFIELD, Ill. — A federal judge has ruled against Gov. Rod Blagojevich’s attempt to keep 15 National Guard fighter jets from being moved from here to Indiana.U.S. District Judge Jeanne Scott granted the Defense Department’s motion to dismiss Blagojevich’s suit that challenged the move. The governor had claimed the federal government needed his consent to move the planes, and he sought a permanent injunction to block the transfer.
But Scott said the Department of Defense is protected from any injunction by the federal government’s sovereign immunity. She said her ruling Wednesday effectively closes the case.
Posted by Marcia Oddi on July 27, 2007 08:31 AM
Posted to Courts in general
Thursday, July 26, 2007
Environment - Several other Indiana permitting stories
Maureen Groppe of the Indianapolis Star Washington Bureau reports today in a story that begins:
WASHINGTON - Four Indiana power plants are among the nation's heaviest contributors to global warming, according to a report released today by an environmental group.Here is the 6-page summary of the report. Here is the entire 65-page report, it will take some time to load. Table 1 on p. 8 shows "Top 50 Dirtiest Power Plants for CO2" - Alcoa Warrick is #3 in the county, PSI Energy Wabash River is #4, NISSCO Schahfer is #31, and NIPSCO Bailly is #34. "Plants Ranked in Top 50 for Emission Rate and Total Tons SO2 (2006)" include Indiana's Cayuga, Gallagher, Warrick, Wabash River. The #1 in the country "Dirtiest Power Plants for NOx By Emission Rate – lbs NOx/MWh (2006) is Bailly. There are a lot more tables.
Only Texas has more power plants on the group's list of the 50 plants emitting the most carbon dioxide last year.That's despite the fact that three of the four Indiana plants in the top 50 had reduced their emissions from 2005.
The Environmental Integrity Project, which uses federal data to annually rank power plant emissions, emphasized carbon dioxide emissions this year because of increasing concerns about global warming. Indiana, however, also had power plants on the list of biggest releasers of sulfur dioxide, nitrogen oxide and mercury - pollutants that can cause health problems and create smog.
Power plants account for 40 percent of the nation's carbon dioxide emissions and the industry's emissions are projected to increase, according to the Environmental Integrity Group.
In a story yesterday Gitte Laasby of the Gary Post-Tribune reported:
The Indiana Department of Environmental Management has drafted a permit allowing U.S. Steel Gary Works to continue discharging an average of 2,802 pounds of oil and grease per day into the east branch of the Grand Calumet River -- the same branch of the river the company is still trying to clean up.U.S. Steel has removed more than 800,000 cubic yards of PCBs, heavy metals, benzene, oil and grease from the river in a $30 million government-ordered dredging of contaminated sediments.
The toxic sediment kills fish. It needed to be removed to avoid contaminating Lake Michigan, into which the Grand Calumet River discharges, said Jim Smith, project manager and senior environmental manager with IDEM.
"The contaminated sediment affects the whole river ecosystem and contaminated sediment in the river canal is constantly moving out into Lake Michigan. It results in impaired water quality in the Grand Calumet River," Smith said. "The fish are impacted because fish cannot breathe in there with the contaminants coming out from the sediment."
The U.S. Department of Justice ordered U.S. Steel to clean up five miles of the eastern portion of the river in 1998 after the company had violated the Clean Water Act and a court agreement by illegally discharging contaminated wastewater for years. The sediments were supposed to be removed in five years, but the initial cleanup wasn't good enough.
"We had to go back the second time because it wasn't cleaned up to the specs we needed to clean it up with to meet subsequent checks," said John Armstrong, public affairs manager of U.S. Steel. * * *
IDEM is holding a public meeting on the U.S. Steel permit at 6 p.m. Aug. 1 in the auditorium at the main branch of the Gary Public Library, 220 W. 5th Ave. in Gary. Public comments can be sent to IDEM until Aug. 11.
The draft permit is available on IDEM's Web site at www.in.gov/idem/permits/water/wastewater/public_notice/index.html#bp.
This is the same site where the BP permit information is located.
Posted by Marcia Oddi on July 26, 2007 06:57 PM
Posted to Environment
Ind. Law - When do you need a lawyer?
The Indianapolis Star has a feature today by Julie Cope Saetre headlined "When to lawyer up." In the article "Local legal experts weigh in on when you can go it alone and when to get a lawyer." An accompanying story provides a number of useful links to legal resources.
Posted by Marcia Oddi on July 26, 2007 06:51 PM
Posted to Indiana Law
Environment - More on: Details on the BP permit; more stories today
Earlier today I promised more reports of press coverage of the BP water discharge permit, but as I'm just getting back to it later in the day, a new entry is probably the best idea.
"Daniels won't budge on BP" is the headline to this story by Patrick Guinane in the NWI Times. He reported this morning:
INDIANAPOLIS | Despite intensifying pressure from environmentalists and lawmakers in neighboring states, Gov. Mitch Daniels on Wednesday declared Indiana will not retreat from its decision to allow the BP oil refinery in Whiting to release more pollutants into Lake Michigan.Re the U.S. House resolution, this Times report is headed "U.S. House rips BP, state." Some quotes:A few hours before the U.S. House overwhelming approved a resolution rebuking both BP and the state, the governor was asked whether he considered the more lenient wastewater permit a done deal.
"Yes," Daniels replied. "We've checked it and rechecked it. They're in complete compliance with Indiana law, which is tougher than the federal law." * * *
After a closed-door meeting Tuesday with members of Illinois' congressional delegation, BP officials agreed to review their water treatment options and report back to lawmakers in September.
But with Daniels expressing no interest in revising the state permit, any move to impose stricter wastewater controls appears to rest with the company.
"Since it's a final permit, we no longer have a final oversight role," U.S Environmental Protection Agency spokeswoman Phillippa Cannon said Wednesday. "We'd be very willing to participate in discussions if (BP officials) are willing to go beyond what the permit conditions say."
The controversy could land in the courts. Illinois Gov. Rod Blagojevich threatened Tuesday to pursue a federal lawsuit if Indiana does not rescind the permit.
WASHINGTON | The U.S. House overwhelmingly voted Wednesday to condemn Indiana's permit to allow BP to increase its Whiting Refinery's daily dumping of waste into Lake Michigan.The text of the brief resolution is available here, on Congressman Emanuel's website. The vote, according to this story from the Gary Post-Tribune, was "387-to-26" against the permit."This Congress will not simply stand by while our Great Lakes are treated like a dumping zone," said Illinois Rep. Rahm Emanuel, chairman of the House Democratic Conference and the bill's chief sponsor.
The resolution urges -- but does not require -- Indiana to reconsider the permit and asks that Congress take steps to protect the Great Lakes. * * *
All of Illinois' 19 House members voted in favor of the measure except Peoria Republican Ray Lahood, who was absent.
Indiana's nine-member delegation was divided along partisan lines. Four Democrats backed the resolution. One, Julia Carson, was a sponsor, but did not vote. The House Republicans from Indiana opposed the resolution.
Rep. Pete Visclosky, D-Ind., spoke in favor of the measure, citing the resources the Great Lakes provide.
"Lake Michigan and the Great Lakes grow more valuable each day, and in order to maintain and improve this important natural and global resource, it is crucial to reduce the level of pollution being discharged in them," he said on the House floor Tuesday.
U.S. Rep. Mark Souder, an Indiana Republican, disagreed.
The Gary Post-Tribune has an editorial that reads in part:
Although BP has put a hold on its plan to dump more waste into Lake Michigan, Indiana and Illinois officials must remain vigilant.Mike Clark, a Times columnist, follows a similar tack:The company said it will wait until Sept. 1 to see if it can come up with "feasible alternatives." While we wait to see what, if anything, the company proposes, we remain firm that we must have zero tolerance for the release of any additional pollution into our precious lake. * * *
With the billions BP is spending on the refinery project, we find it hard to believe BP can't do more.
More than 100 years ago, when the Whiting refinery was built, environmental concerns took a back seat to industry. Cleaning up the pollution in our lakes and rivers has taken decades and billions of dollars, and we still have a ways to go.
Now is no time to go backward.
Back in 1900, Chicago's civic leaders realized that dumping sewage and garbage and other miscellaneous crud into Lake Michigan wasn't such a good idea.Gitte Laasby of the Gary Post-Tribune, who has written a number of good stories on the BP issue, has another one today, looking at the economic development vs. environment issues. Some quotes:Too bad Mitch Daniels hasn't figured that out yet.
The Sanitary District of Chicago performed what was then considered an engineering miracle by reversing the flow of the Chicago River to route pollution away from Lake Michigan.
Here we are, more than a century later, and a company that was smart enough to make a profit of $6.087 billion in the second quarter of this year still can't figure out how to stop messing around with Mother Nature. * * *
Daniels justified his administration's decision by playing the old economic development card, as if it trumped everything else. In another time, it probably would have.
But we are awakening, slowly but surely, to the realization that there is only so much abuse our planet can take.
BP's argument is that the increased levels of junk being poured into the lake will remain below federal limits. That's like saying your credit's in the toilet, but you haven't filed for bankruptcy yet.
When word of BP's plan first came out, part of the rationale was that it would create 80 jobs. As everyone from Mayor Richard Daley to the Illinois congressional delegation started turning up the heat, Daniels reacted by upping the ante.
"We've got thousands of jobs that would be at risk if (the project) doesn't go forward," he said Wednesday.
Well, whether it's fourscore or four thousand, what good is it going to be if the people who hold those jobs find their health at risk because of this short-sighted move?
Someone needs to explain to BP that corporate greed and arrogance aren't in fashion anymore.
If we can change the course of the Chicago River, we should be able to do the same with Mitch Daniels' short-sighted policies.
For Illinois and Michigan residents, BP's wastewater permit is a matter of stopping increased pollution in Lake Michigan -- the source of drinking water and a destination for recreation.It is the same for Northwest Indiana residents, too, but the issue also forces them into a larger debate about how to balance industry and environmental interests decades from now.
Gary City Council member Marilyn Krusas, D-1st, said many of her constituents feel conflicted about asking BP to do better environmentally because the company also provides jobs in their neighborhood and economic development to the region.
"Whiting should have been at the forefront. But that industry has built Whiting and provided health insurance and benefits, so how hard do you bite the hand that feeds you? It's a difficult issue," Krusas said. "We need jobs. We want to make sure the company stays and improves their operation, especially along the lakefront. It's kept the economy going in the region and the area."
Still, residents have to decide whether the jobs are worth the trade-off or whether there's another way BP can deal with the pollution, she said. * * *
Michigan City Mayor Chuck Oberlie said he agreed with Daniels' statement Wednesday that BP's permit falls within state and federal standards, but said he still thinks BP should make another attempt to avoid increasing its discharge to Lake Michigan.
"Unfortunately, government policy sometimes lags behind the desires of the public and good management practice," he said. "While it may be consistent with the current law, it's currently against the intent of (initiatives), which is to end pollution in the lakes."
Oberlie said Michigan City has spent too much money on cleaning up brownfields and eliminating sources of pollution to Lake Michigan to allow BP to increase pollution without a fight.
"For a community to make that commitment flies in contrast of a new source of pollution into the lake," he said. "The long-term risk factors. Are there going to be other companies down the line wanting to do this and are we going to say yes to them?"
Posted by Marcia Oddi on July 26, 2007 06:12 PM
Posted to Environment | Indiana economic development
Ind. Decisions - Trial court issues a gag order in a lawsuit settlement involving Michigan City
According to this story in the Michigan City News-Dispatch:
A judge issued a gag order in a lawsuit settlement between Michigan City, its police department and supervisors and a girl who says she was molested by a former officer.Perhaps, but is it different when public money and a public agency is involved? The ILB is reminded of the Court of Appeals decision on Dec. 13 of 2005 in the case of the Knightstown Banner, LLC v. Town of Knightstown, et al. (see ILB entry here), where the newspaper sued to determine whether "the terms and conditions of a settlement of a civil rights lawsuit brought by a former employee against Knightstown, are public records under the Indiana Access to Public Records Act (APRA)." See also the coverage of the decision the following day, Dec. 14th, 2005.Circuit Court Judge Thomas Alevizos issued the order on details, including damages, in a settlement reached between the city, police and a girl identified as Jane Doe, who was 13 when, she says, she was molested by former police officer Gary James. * * *
"I have no comment on the case," said attorney Doug Bernacchi of Michigan City, who, on March 14, filed the Jane Doe suit naming James, Michigan City Area Schools, the City of Michigan City, Michigan City Police officers and supervisory personnel as defendants. * * *
Bernacchi said he cannot comment because of the gag order, a common practice when suits are settled out of court.
In another instance, on May 23, 2006, the AP reported, as quoted in this ILB entry:
CRAWFORDSVILLE, Ind. -- The city has settled with the mayor's former administrative assistant over her allegations that she was fired after spurning his sexual advances. * * *However, the next day the terms of the settlement were disclosed. A story by Maria J. Flora of the Crawfordsville Journal Review, as quoted here in a May 25, 2006 ILB entry, reported:"The case is resolved," said Keesee's attorney, Bruce Petit. "There is a nondisclosure required in the settlement, so we really can't say more than we've resolved it to a mutual satisfaction."
Peebles, the city’s attorney, released a copy of the settlement Wednesday after the Journal Review requested it under the Indiana Access to Public Records Act. The written request noted the Indiana Court of Appeals recently sided with the Knightstown Banner in its quest for public records written by an insurance carrier’s attorney.
Posted by Marcia Oddi on July 26, 2007 05:42 PM
Posted to Ind. Trial Ct. Decisions
Environment - More on: Update on fight over Pines transfer station permit
Earlier today, in this entry, I wrote that the ILB would like to post the July 13th Marion County ruling. Thanks to a kind reader, here it is, Porter Co. Bd. of Comm. v. Great Lakes Transfer (7/13/07, Judge Michael D. Keele)
Posted by Marcia Oddi on July 26, 2007 04:12 PM
Posted to Environment
Ind. Decisions - More on "Belated Appeals and Blakely (or is it Apprendi?) Retroactivity"
Updating this July 12th ILB entry promising to post the final print version of Michael Limrick's lengthy lead article for the upcoming JulyAugust issue of Res Gestae as soon as it was available in print, here it is.
Posted by Marcia Oddi on July 26, 2007 03:35 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - Judge Felts Named President of Indiana Judges Association
The ILB has just received this release:
Allen Circuit Court Judge Thomas J. Felts was elected President of the Indiana Judges Association July 1, 2007. The Indiana Judges Association (IJA), established in 1934, represents more than 460 members consisting of justices and judges of the Indiana Supreme, and Appellate Courts, trial courts and magistrates. Judge Felts has been a member of the IJA Board of Managers since 1999 and served as Secretary-Treasurer from 2003-2005 and Vice President from 2005-2007.Along with the Chief Justice, Judge Felts will be the principal spokesperson for Indiana’s judges generally and in all matters outside the courtroom, including governmental and legislative affairs.
When asked what Judge Felts goals for his term were he responded, “I will continue the Indiana Judges Association’s current efforts to: modify and upgrade the judicial pension and related benefits including Indiana’s magistrates; preserve the independence and integrity of the judiciary ; and assist the Indiana Supreme Court in its efforts to improve the delivery of services to Indiana’s citizens.”
Posted by Marcia Oddi on July 26, 2007 03:25 PM
Posted to Indiana Courts
Ind. Decisions - Five transfers granted today
Chi Yun Ho v. Loretta Frye (see 4/30/07 ILB entry here - medical negligence)
Erica Lockett v. Marion County OFC (this was a 4/27/07 NFP involuntary termination, affirmed)
State v. Universal Outdoors, Ind. (see 4/18/07 ILB entry here - timely filing of condemnation exceptions)
Sophia Willis v. State (see 5/17/07 ILB entry here, 5th case - "We sympathize with Willis’s argument that she is a single parent who is doing the best that she can, but we cannot condone her choice to whip her child with an extension cord to the point of causing him bruises and extended pain.")
Russell Prewitt v. State (see 4/30/07 ILB entry here, 8th case - sentencing)
Posted by Marcia Oddi on July 26, 2007 01:52 PM
Posted to Indiana Transfer Lists
Ind. Decisions - 7th Circuit posts two Indiana decisions
In Randy P. O'Brien v. Ind. Dept. of Corr. (SD Ind., Judge Hamilton), a 9-page opinion, Judge Kanne writes:
Randy O’Brien has been a prisoner in Indiana since 1996, having been convicted of rape, sexual battery, and burglary. In 2001, he was attacked and beaten by two other inmates. In 2003, he brought suit under 42 U.S.C. § 1983, alleging that the warden was deliberately indifferent to his safety in violation of the Eighth Amendment. In 2005, he sought to add additional defendants to his suit. That motion was denied. The district court entered summary judgment in favor of the defendants. He appeals the denial of the motion to add parties and the entry of summary judgment. For the reasons set forth below, we affirm.Noteworthy also in this opinion is the reference to O'Brien's "Indianapolis attorney C. Bruce Davidson, Jr. "On April 8, 2003, attorney Davidson filed a motion seeking an extra two days to respond to the court’s order. For the purposes of this case Davidson was never heard from again. * * * We now know that Davidson was busy robbing a bank in Cincinnati that November—the first of roughly twenty-five bank robberies that attorney Davidson would commit over the next two years. By January 2004, it became clear that Davidson had abandoned his practice of law."Before his conviction, O’Brien was a corrections officer at the Indiana Youth Center. Almost immediately upon his arrival at the Wabash Valley Correctional Facility in 1996 he was recognized by other inmates as being a former guard. Realizing that his former life was likely to make him a tempting target for other inmates, he requested that the prison take him into protective custody. * * *
Faced with O’Brien’s status as a former prison guard, the staff at Wabash Valley initially brought him into segregation for his safety. Having considered the nature of the threat against him and the availability of placing O’Brien among the at-risk population in D Housing, the prison chose to place him with the other former police officers, guards, and prosecutors in D Housing. As in Lewis, this decision does not amount to an unreasonable response to a known risk.
In Dorel Juvenile Group v. DiMartinis (SD Ind., Judge Hamilton), an 8-page opinion, Judge Rovner writes:
Lois DiMartinis (“DiMartinis”) left her job at Dorel Juvenile Group, Inc. (“Dorel”) to work for a competitor, Summer Infant, Inc. (“Summer Infant”). Both companies produce products for infants, children and their parents. * * * By all accounts, the industry is highly competitive and when DiMartinis began working at Dorel, the company asked her to sign a non-compete agreement. DiMartinis declined to do so but did sign a confidentiality agreement. She worked for Dorel for more than nine years, rising to the position of Director of Marketing. * * *[Eventually she left and went to work for a competitor.] Dorel filed a complaint for injunctive relief and money damages against DiMartinis. The complaint alleged trade secret misappropriation, unfair competition, a violation of the Computer Fraud and Abuse Act, breach of contract and breach of fiduciary duty. On the same day that Dorel filed the complaint, the company also filed a motion for a preliminary injunction. * * * At the hearing, Dorel clarified that it was seeking only a six month injunction because it expected that the products at the core of its concerns were going to be introduced to the public in the second quarter of 2007. In practical terms, that meant the injunction would stretch from October 20, 2006 through April 20, 2007. At the end of that time, Dorel expected the information would be public and therefore could no longer be considered confidential or a trade secret. * * *
The district court denied the motion. The court noted that, in order to show entitlement to a preliminary injunction, the plaintiff was required to demonstrate a reasonable likelihood of success on the merits and a substantial threat of immediate irreparable harm if injunctive relief was not granted. If those two thresholds were met, the court would consider the balance of harms to both parties and the public interest. Applying all of those factors, the court found that the principal information at stake in the case was brand positioning strategies in certain categories of the juvenile products industry. The evidence demonstrated that, although the information was sensitive and generally treated as confidential by Dorel, the information also was fairly general, subject to change and evolution, and had a very short shelf life. According to the court, because the industry worked on a cyclical calendar, DiMartinis’s new employer would be able to do little with the information before it became public when the products were released into the marketplace. The court found that the evidence did not support the defendant’s theory of inevitable disclosure and that there was no evidence of bad faith or purposeful disclosure by DiMartinis. * * *
The only injunction on appeal is the six month injunction that was set to expire on April 20, 2007. Because we cannot grant any meaningful relief in regards to the injunction that Dorel requested, the appeal must be dismissed as moot. We do not intend for our opinion to be construed as a judgment on the merits of the underlying dispute between Dorel and DiMartinis.
Posted by Marcia Oddi on July 26, 2007 01:19 PM
Posted to Indiana Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In Ronald C. Felder v. State of Indiana , a 10-page opinion, Chief Judge Baker writes:
Appellant-defendant Ronald C. Felder appeals the ten-year sentence that was imposed following his guilty plea to Robbery,1 a class B felony. Specifically, Felder argues that the sentence must be vacated because the trial court did not identify his decision to plead guilty as a mitigating circumstance. Felder also claims that the trial court erred “by failing to specifically grant [him] good time credit.” Appellant’s Br. p. 1. Finding that Felder’s decision to plead guilty should have been identified as a significant mitigating circumstance, but also determining that the ten-year sentence is appropriate, we decline to revise his sentence. We also find that there was no error when the trial court did not separately grant good time credit for the time that Felder was incarcerated prior to sentencing. Thus, we affirm the judgment of the trial court.NFP civil opinions today (3):
In Charles Dowell, et al v. Mary Scheurich, et al (NFP), a 9-page opinion, Chief Judge Baker writes:
Appellants-intervenors Charles Dowell, et al. (collectively, the intervenors), appeal the trial court’s denial of their motion to intervene in an action regarding the grant of a building permit that was initially brought by appellees-plaintiffs/property owners Sue Ann Bell, et al. (collectively, the plaintiffs). The intervenors argue that their motion should have been granted because their interests were directly affected by an agreed judgment involving the plaintiffs and the appellees-defendants, Mary Scheurich—Jasper County’s Director of Planning and Development (Director)—and other county officials, (collectively, the defendants). Specifically, the intervenors contend that the trial court erred in denying their motion because they were neighboring property owners and the prior judgment adverselyJames Loomis v. Barbara Loomis (NFP) - "Because there was no request that A.L. be reimbursed for the vehicle before us, we should not have directed the trial court to order James to pay $1,500 for one-half of the vehicle’s cost, and we hereby vacate that portion of our original decision. In all other respects—including the instruction to determine whether the cost of A.L.’s vehicle and related expenses are already included in James’s child support payment—we deny James’s petition for rehearing and leave our original decision unchanged."
affected their property rights. Concluding that the intervenors are collaterally estopped from challenging the judgment, we affirm the judgment of the trial court. * * *As our prior memorandum decision indicates, the individuals who filed the prior motion to intervene were not permitted to collaterally attack the agreed judgment in their separate litigation. Likewise, to allow the current intervenors to prevail would permit them to collaterally attack the judgment in the case. Although the intervenors in this case were individuals other than those involved in the first case, their arguments and interests were the same. They are simply not entitled to continue to file new motions based upon new theories or attempt to relitigate issues that have previously been decided. Put another way, having failed to establish a basis for intervention in the first motion to intervene, the Sculley Square neighbors were not entitled to make the very same arguments for intervention a second time. That said, the time for finality has arrived, and we conclude that the trial court properly denied the motion to intervene.
Paternity of N.S.L., Karen S. Gramling v. Steven A. LeFebvre (NFP) - "The analysis of these factors does not change when we apply the slightly altered standard of review described above, and we reach the same conclusion as we did in our original decision. Thus, we grant the petition for rehearing and revise the standard of review as stated herein. In all other respects, we deny the petition for rehearing and leave the original decision unchanged."
NFP criminal opinions today (5):
Ebony Dance v. State of Indiana (NFP)
Antoine Tinder v. State of Indiana (NFP)
Darryl Samuel Howard v. State of Indiana (NFP)
Ralph Patterson v. State of Indiana (NFP)
Korey A. Alwood v. State of Indiana (NFP)
Posted by Marcia Oddi on July 26, 2007 12:48 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Governor appoints Lake and Marion Superior Court judges
From a press release just issued:
INDIANAPOLIS (July 26, 2007) – Governor Mitch Daniels today announced the appointment of Superior Court judges in Indiana’s two most populous counties. Calvin Hawkins will serve as judge of the Lake County Superior Court replacing Judge Robert A. Pete who died on March 6. David Certo will fill the vacancy on the Marion County Superior Court created by the governor’s appointment of Judge Cale Bradford to the Indiana Court of Appeals last month.Hawkins, a private attorney in Gary, specializes in civil and church litigation, bankruptcy law, probate and family law. He also serves as a member of the Gary Police Civil Service Commission. Hawkins received his undergraduate degree from Huntington College and law degree from Howard University. He also received a Master of Divinity degree from Wesley Theological Seminary.
Certo, of Indianapolis, currently serves as legal counsel to the director of the Indiana Department of Natural Resources. He began his career in public service as a Governor’s Fellow under former Governor Evan Bayh. Certo has since worked in various capacities in local and state government including serving as director of the Indiana Board of Pharmacy, general counsel to former state treasurer Tim Berry, and special assistant to former Indianapolis Mayor Steve Goldsmith. Certo received his undergraduate degree from the University of Notre Dame and law degree from Indiana University School of Law – Indianapolis.
“Calvin Hawkins has a distinguished record of legal experience and Dave Certo exhibits an unwavering dedication to public service,” said Daniels. “I’m confident each will serve his county with distinction.”
Hawkins’ appointment will be effective in September at a date to be determined. Certo’s appointment will be effective August 1.
Posted by Marcia Oddi on July 26, 2007 12:33 PM
Posted to Indiana Courts
Ind. Decisions - Franklin County Commissioner wins in holdover case, now wants attorney fees
A story from last week in the Brookville American-Democrat relates that Don Vonder Meulen:
... a Democrat, won the Second District election against Republican incumbent Lou Linkel in the 2006 election.The story continues:However, Linkel’s was a holdover office, apparently the only commissioner holdover office in the state. It is believed the holdover office was created in the 1960s at the request of the Indiana Department of Election.
Therefore, Vonder Meulen’s Certificate of Election issued by Franklin County Clerk Marlene Flaspohler had a start date of Jan. 1, 2008.
Vonder Meulen filed a Quo Warranto suit in Franklin Circuit Court in December 2006 seeking a change in the Certificate of Election to Jan. 1, 2007.
Franklin County Commissioners and Franklin County Council decided to pay the legal fees for Linkel and Flaspohler because they were sued in their capacity as county officials.The story contiinues:Vonder Meulen said he unsuccessfully attempted to compromise with Linkel by offering Linkel a chance to serve the first six months in 2007 and Vonder Meulen become commissioner for the final six months.
Special Judge P. Thomas Snow, Wayne Superior Court I, ruled in Vonder Meulen’s favor in April, installing Vonder Meulen as the Second District commissioner.
Linkel then filed a motion asking Snow to pay both Linkel and Vonder Meulen for the entire year.
No ruling has come down from Snow on that motion. Snow’s office could not be reached for comment on Tuesday.
If Snow approves that motion and if council approves Vonder Meulen’s claim for $7,400 in attorney fees, the cost to county taxpayers for all the attorney fees and costs will be about $60,000.
Vonder Meulen’s claim was not signed by the other two Franklin County Commissioners, Tom Wilson and Eric Roberts, and it did not have a claim number. * * *More from the very long story:Roberts pointed out that in newspaper articles published during the lawsuit, Vonder Meulen pledged to pay his own attorney fees.
In a document Vonder Meulen presented to Wilson and Roberts, Vonder Meulen laid out his reasoning process.
“Lou’s fees were basically paid out of courtesy,” Vonder Meulen’s conclusion states. “The court determined that he was the former commissioner during the time when most of his fees were incurred. By paying his fees, the county took rightful responsibility for having an out-dated and illegal election practice.
“The fees on the claim that I submitted were necessitated because the former commissioner was attempting to continue as sitting commissioner,” the document continued. “I believe that the payment of these fees should hold priority over others because they were for services provided to the sitting commissioner and were made necessary by the same out-dated and illegal election practice.”
Most of the legal fees incurred in the case came after the first of the year when Vonder Meulen should have been the sitting commissioner, Vonder Meulen told Wilson and Roberts.
Commissioners voted to end the holdover office after Vonder Meulen served four years from 2008-2012. The next person holding that position would have a three-year term from 2013-2016, with four-year terms continuing after the 2016 election.For background, see this Dec. 28, 2006 ILB entry titled "Commissioner-elect's starting date on job being questioned in civil suit." Near the end of the entry the ILB observes: "A similar circumstance may have resulted in Martin County, where the appointed clerk was beaten in the May 2006 primary, but because of the timetable will serve all 2007. It won't be until Jan. 2008, when the new clerk will take over." It took an act of the General Assembly to put that election back on track.Vonder Meulen said he wanted the situation changed immediately because by continuing it, the county was breaking state law. Also, several people contacted him and wanted him to be commissioner immediately and not wait a year.
The ILB would like to post a copy of the April ruling of Special Judge P. Thomas Snow, Wayne Superior Court I, and would appreciate hearing from anyone who can fax or email the ruling. Pleadings would also be welcome.
Posted by Marcia Oddi on July 26, 2007 11:59 AM
Posted to Ind. Trial Ct. Decisions
Courts - More on local Louisiana school board prayer decision by the 5th Circuit
The ILB has had entries Feb. 12th and Jan. 20th, 2007, on a "three-year legal battle over prayers at Tangipahoa Parish School Board meetings."
[Following the Jan. 20th entry, the ILB wrote: "Oral arguments were held in Indiana's legislative prayer lawsuit on Sept. 7, 2006, in Hindricks v. Bosma, before the 7th Circuit . The ILB is anticipating a decision by the 3-judge panel any day now.]
Today, Howard Bashman of How Appealing has a report that an 8-7 en banc ruling of the Court of Appeals for the 5th Circuit threw out the case on standing grounds. From the AP coverage:
Writing for the majority, Chief Judge Edith Jones found that the court record had no evidence that the plaintiffs actually were exposed to the meeting invocations to claim a harm under the Establishment Cause of the U.S. Constitution.Although standing had not been an issue, attorneys for the School Board raised the issue in their brief to the appeals court.
"It is not this court's fault that the connection between their attendance and allegedly unconstitutional activity is not made in the record," the ruling said.
"Without the requisite specifics, this court would be speculating upon the facts. This is something we cannot do, particularly in the standing context, where the facts must be proven, not merely asserted or inferred. ... To find lack of standing at this late stage no doubt poses an inconvenience for the parties. On the other hand, it spares this court from issuing a largely hypothetically-based ruling on issues of broad importance to deliberative public bodies in this circuit and beyond."
Posted by Marcia Oddi on July 26, 2007 10:06 AM
Posted to Indiana Courts
Environment - Details on the BP permit; more stories today
In my opinion, the best report on the problems with the recently granted BP permit remains the initial story by Michael Hawthorne in the July 14th Chicago Tribune (originally quoted in this July 13th ILB entry). Hawthorne's story begins by acknowledging:
The refinery will still meet federal water pollution guidelines. But federal and state officials acknowledge this marks the first time in years that a company has been allowed to dump more toxic waste into Lake Michigan.Later in the story:
In sharp contrast to the greenways and parks that line Lake Michigan in Chicago, a string of industrial behemoths lie along the heavily polluted southern shore just a few miles away. The steady flow of oil, grease and chemicals into the lake from steel mills, refineries and factories -- once largely unchecked -- drew national attention that helped prompt Congress to pass the Clean Water Act during the early 1970s.The ILB posted the 21-page IDEM Fact Sheet that was prepared to explain the proposed permit to the public. NPDES permit's are very complex. Pages 15-17 discusses the application of the anti-backsliding and anti-degradation provisions of the environmental rules to the proposals to increase discharges of ammonia and total suspended solids. It begins:Paul Higginbotham, chief of the water permits section at the Indiana Department of Environmental Management, said that when BP broached the idea of expanding the refinery, it sought permission to pump twice as much ammonia into the lake. The state ended up allowing an amount more than the company currently discharges but less than federal or state limits.
He said regulators still are unsure about the ecological effects of the relatively new refining process BP plans to use. "We ratcheted it down quite a bit from what it could have been," Higginbotham said.
The request to dump more chemicals into the lake ran counter to a provision of the Clean Water Act that prohibits any downgrade in water quality near a pollution source even if discharge limits are met. To get around that rule, state regulators are allowing BP to install equipment that mixes its toxic waste with clean lake water about 200 feet offshore.
Actively diluting pollution this way by creating what is known as a mixing zone is banned in Lake Michigan under Indiana law. Regulators granted BP the first-ever exemption.
The U.S. Environmental Protection Agency has been pushing to eliminate mixing zones around the Great Lakes on the grounds that they threaten humans, fish and wildlife. Yet EPA officials did not object to Indiana's decision, agreeing with the state that BP's project would not harm the environment.
Federal officials also did not step in when the state granted BP another exemption that enables the company to increase water pollution as long as the total amount of wastewater doesn't change. BP said its flow into Lake Michigan will remain about 21 million gallons a day.
In response to public protests, state officials justified the additional pollution by concluding the project will create more jobs and "increase the diversity and security of oil supplies to the Midwestern United States." A rarely invoked state law trumps anti-pollution rules if a company offers "important social or economic benefits."
During the permit development period, BP Products North America requested that the effluent limits for TSS and Ammonia be increased due to material and substantial changes at the refinery. Regardless of the fact that these increases will be allowed by 327 IAC 5-2-10(11) [antibacksliding] due to substantial changes at the refinery, the increases must be in compliance with 327 IAC 5-2-11.7 (Antidegradation Implementation Procedures for Outstanding State ResourceThe IDEM 35-page Response to Comments, which may be accessed via the ILB here, contains much interesting information, including an IDEM response #91 to comments made by Save the Dunes, beginning on p. 33. Some quotes [emphasis added]:
Waters).The provision of 5-2-11.7 that can be used to allow an increase in the pollutant loading to Lake Michigan in this instance is 5-2-11.7(a)(1)(B)(iv). 5-2-11.7(a)(1)(B)(iv) allows the increase to be calculated on a case-by-case basis when the proposed increase in mass is not a result of an increase in discharge flow. The rules do not provide any guidance for determining the appropriate increase in mass when the increase is not a result of an increase in flow.
IDEM met with representatives of BP North America on October 4, 2006 to discuss how to implement 5-2-11.7(a)(1)(B)(iv). IDEM required BP North America to conduct an Antidegradation Analysis which evaluated the social and economic benefits, alternate wastewater treatment and the expected effluent quality after the refinery is reconfigured to process the CXHO. BP North America must demonstrate that all economically and technically feasible measures have been taken to avoid the action that will result in the new or increased discharge of the pollutant or pollutant parameter including a demonstration that it is not feasible to limit the new or increased discharge to a temporary or short term period. BP North America must demonstrate that any increase in pollutant loading is necessary. The new or increased pollutant loading shall be limited to the minimum necessary to allow the action to occur. The Commissioner has determined that BP has met these requirements, based on the facts described below. As a result, the increased limits requested are consistent with the provisions of 5-2- 11.7(a)(1)(B)(iv), and those limits have been incorporated into the permit.
Lake Michigan was designated as an OSRW [outstanding state resource water] by the state of Indiana. The federal government does not have a stream designation equivalent to an OSRW. There is no federal law regarding OSRWs. Therefore, no federal Laws were broken.More stories today. COMING LATERThe antidegradation rule found at 327 IAC 5-2-11.7(A)(1)(b)(iv) provides the Commissioner of IDEM with the authority to evaluate a proposed increase in the monthly average mass limits for a pollutant, when there is no increase in flow, on a case by case basis. IDEM knows that the increase in the effluent limits for ammonia and TSS will result in some degradation of the water quality of Lake Michigan. However the increase has been limited to the amount shown by BP to be necessary and this action does support important social and economic development in the area of the discharge. The antidegradation application and addendum plus the draft permit and fact sheet were sent to EPA Region V on January 9, 2007 for their review prior to sending a pre-public notice draft permit to BP. EPA has submitted a letter to IDEM expressing no objection to the draft permit as written.
The Biological assessment conducted by IDEM does identify issues of concern, but several of the concerns that you point out from that assessment are speculation based on what might happen.
Posted by Marcia Oddi on July 26, 2007 09:05 AM
Posted to Environment
Environment - Update on fight over Pines transfer station permit
The ILB may have temporarily lost track of this dispute. The last entry indicating its status is this one from Dec. 19, 2006, which began: "Our most recent earlier entry on the Pines transfer station in NW Indiana was posted Oct. 12 and reported that plaintiffs plan to appeal the environmental law judge's opinion."
Today Tom Wyatt reports in the Gary Post-Tribune:
Officials from Porter and LaPorte counties continue to fight a proposed waste transfer station on County Line Road.The ILB would like to post the July 13th Marion County ruling, just as it posted the Sept. 16, 2006 ruling of the Indiana Office of Environmental Adjudication (access it here). Please let me know if you can provide a copy of the July 13th ruling, either electronically or by fax.A Marion County judge earlier this month denied a petition by Porter and LaPorte counties, as well as the towns of Pines and Beverly Shores, that appealed a September 2006 ruling that upheld the granting of a permit to Great Lakes Transfer LLC for the transfer station.
Great Lakes is planning the waste transfer station on County Line Road north of U.S. 20 on the LaPorte County side of the road.
The Indiana Department of Environmental Management granted Great Lakes a solid waste facility permit in late 2005, but area residents raised pollution concerns and cited possible harm to nearby dunes.
Porter County officials have fought the station by denying to grant a driveway permit for the project. LaPorte County and town officials joined the fight by claiming IDEM issued the permit improperly, given the fact Porter County denied the driveway permit.
But an Office of Environmental Adjudication judge last September ruled the permit was properly granted. A Marion County judge upheld the ruling July 13.
Porter County attorney Gwenn Rinkenberger said she is filing a motion to correct errors made by the Marion County judge. Expecting the motion to be denied, Rinkenberger said she will then take it to the Indiana Court of Appeals. [emphasis added]
Posted by Marcia Oddi on July 26, 2007 08:45 AM
Posted to Environment
Ind. Decisions - Court of Appeals rules in Whitestown annexation battle
Robert Annis of the Indianapolis Star reports today on the Indiana Court of Appeals ruling last Friday, July 20th, in the case of Brenwick Associates, et al. v. Boone County Redevelopment, et al. (see ILB entry here). Some quotes:
The Indiana Court of Appeals issued a ruling Friday that partially resolves a land dispute betweeen the Whitestown Town Council and the Boone County Commissioners over a prime corridor in the county.
The dispute between the two entities involves nearly 4,000 acres on the west side of I-65 in Boone County that was annexed by Whitestown but claimed by the Boone County Redevelopment Commission as an economic development area.The Anson development is on the east side of I-65.
In 2005, First Industrial Acquisitions and Brenwick Associates asked Whitestown to annex 1,425 acres on the west side of I-65 to develop possibly as warehouses. First Industrial planned to purchase property within the area from Brenwick Associates and asked Whitestown to provide tax abatements for a proposed development.
In July 2006, the town began annexation proceedings. Soon after, the redevelopment commission started its own 4,000-acre economic development area that included the same area that Whitestown had begun to annex.
Whitestown amended its original annexation proceedings to include almost 2,500 more acres that made up the bulk of Boone County's EDA and filed suit against Boone County. Boone County argued that because the annexation wasn't completed, it still had jurisdiction over the property.
The appeals court ruled that Whitestown had jurisdiction over the original 1,425 acres since Boone County's EDA was filed after the annexation proceedings began. The court also ruled that Boone County's EDA for the remaining 2,500 acres was still valid.
Posted by Marcia Oddi on July 26, 2007 08:32 AM
Posted to Ind. App.Ct. Decisions
Wednesday, July 25, 2007
Ind. Courts - "Allen County Judge Felts new President of Indiana Judges Association"
So reports editor Mitch Harper today in the excellent Fort Wayne Observed.
Posted by Marcia Oddi on July 25, 2007 04:23 PM
Posted to Indiana Courts
Ind. Decisions - 7th Circuit rules in patent dispute today
In Jennings v. Auto Meter, et al. (SD Ind., William T. Lawrence, Magistrate Judge), a 17-page opinion, Judge Wood begins her opinion:
Plaintiff Douglas M. Jennings designed an aftermarket dashboard bezel—that is, a molded shape that fits over an automobile’s instrument panel. Hoping to make money from his design through manufacturing and selling his bezels in the auto parts aftermarket and to forestall copycats, Jennings applied to the U.S. Patent and Trademark Office (“PTO”) for a patent. As part of her review of Jennings’s application, the patent Examiner contacted defendants Auto Meter Products, Inc. (“Auto Meter”), Gauge Works, LLC (“Gauge Works”), and Gregory Day to inquire whether the bezel they were selling was on sale or publicly available before Jennings applied for his patent. Jennings believes that the defendants, in response to the Examiner’s inquiries, fraudulently misled her into believing that Jennings was not in fact the inventor of the bezel.In addition to continuing to pursue his patent application, Jennings filed this action against the defendants under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(a)-(d), as well as its Indiana counterpart, Ind. Code §§ 35-45-6-2. * * *
For the following reasons, we affirm the dismissal of all claims. Because we have resolved Jennings’s appeal this way, we have no need to reach the attorneydisqualification issue.
Posted by Marcia Oddi on July 25, 2007 03:51 PM
Posted to Ind. (7th Cir.) Decisions
Courts - Ohio Supreme Court rules domestic-violence law applies to unmarried couples [Updated]
From the Cincinnati Enquirer:
A Warren County man's attempt to invalidate the state domestic violence law has failed.From the Columbus Dispatch:In a decision released today, the Ohio Supreme Court has held that the state's domestic violence law does not violate Ohio's "defense of marriage" amendment. ***
[The court rejected an argument] that, under the state's ban on gay marriage, unmarried people lack the legal status of married people - and therefore, the domestic violence law cannot be applied to unmarried people.
Ohio's domestic-violence law applies to unmarried couples despite the state's 2004 constitutional ban of gay marriages, the Ohio Supreme Court ruled today.Here, thanks to How Appealing, is a link to the Ohio Supreme Court's ruling in State v. Carswell.Lower courts across Ohio had issued contradictory rulings on whether the 3-year-old amendment overturned domestic-violence statutes. By a large majority voters had agreed not only to define marriage as only between a man and woman, but also to mandate that the state and its political subdivisions could not "create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."
In a 6-1 ruling, the court said the domestic-violence law is not trying to define a legal relationship, but merely identifies one class of people who are protected from violence. The law lists 11 types of household relationships besides spouse, including other relatives, in-laws and ex-spouses.
“The state does not create cohabitation; rather it is a person's determination to share some of life's responsibilities with another that creates cohabitation,” Chief Justice Thomas J. Moyer wrote for the majority. “The state does not have a role in creating cohabitation, but it does have a role in creating a marriage.” * * *
A trial court had granted a defense motion to dismiss the case, ruling the law violated the state's anti-gay-marriage amendment. That decision was overturned by the 12th District Court of Appeals.
The Supreme Court agreed with the 12th District.
“While the intent of the domestic-violence statute is to protect persons from violence by close family members or residents of the same household, the intent of the marriage amendment was to prevent the creation or recognition of a legal status that approximates marriage through judicial, legislative or executive action,” Moyer wrote. “The statute and the constitution are not in conflict.”
Justice Judith Ann Lanzinger dissented, arguing, “Using the term ‘living as a spouse' within the definition of ‘family or household member' clearly expresses an intent to give an unmarried relationship a legal status that approximates the ‘effect of marriage.' ”
ILB readers will recall that the question of how the proposed amendment to Indiana's constitution (SJR 7) that would ban same-sex marriage would impact Indiana's existing domestic violence laws was raised during the House commitee hearings earlier this year. Here is a quote from a March 22nd story in the LCJ, reproduced in this ILB entry:
Yesterday, Kerry Hyatt Blomquist, chief counsel for the Indiana Coalition Against Domestic Violence, said she fears the language in the second section could lead a judge to dismiss domestic battery charges against a man accused of beating a woman simply because the couple isn't married. That happened in Ohio, where voters ratified a constitutional amendment that is similar in idea but worded differently.For background, start with this ILB entry from June 20th, which is headed "Status of same sex marriage in Ohio and Michigan." It begins: "During the legislative session earlier this year, there was much discussion about the constitutional bans on same sex marriage that have been approved in Ohio and Michigan and how they are being interpreted.""Section B of this amendment is vague, undefined and it's ambiguous," Blomquist said. "We have yet to see a proposed definition of 'legal incidents of marriage.' "
Here is a table the ILB has prepared setting out the provision proposed in Indiana's SJR 7, plus the wording of the ratified amendments to the Ohio and Michigan constitutions.
| Indiana [proposed] | (a) Marriage in Indiana consists only of the union of one man and one woman. (b)This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups. |
| Ohio | Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage. |
| Michigan | To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose. |
[Updated at 3:10 pm] The ILB has asked Kerry Hyatt Blomquist, Legal Counsel for the Indiana Coalition Against Domestic Violence, for reaction to today's Ohio ruling. She has responded:
We are very pleased that Ohio can continue to prosecute unmarried batterers under their existing domestic violence statutes. The Ohio Supreme Court must be commended for recognizing and noting the legislative intents of both the DV statute and the Ohio Constitutional amendment. ICADV remains, however, very concerned with the wording of SJR 7 here in Indiana. As we have said before, the second clause referring to the "legal incidents of marriage" is still undefined and ambiguous, lending itself to a variety of judicial interpretations and a similarly lengthy legal challenge. The devil remains in the details.The ILB has also received a press release from David Miller of Ohio Citizens for Community Values (CCV), which includes this statement:
"[I]n other states like Arizona, Indiana, Florida, and California, where same-sex marriage advocates were arguing that amendments like Ohio's would dismantle domestic violence laws, this argument now is moot and off the table in the public policy debate over marriage amendments. "Numerous organizations were attempting to dismantle marriage protection amendments, not only in Ohio but several other states a well, and the Court has gone out of its way to say NO."
Posted by Marcia Oddi on July 25, 2007 12:37 PM
Posted to Courts in general
Posted by Marcia Oddi on July 25, 2007 12:22 PM
Posted to
