Thursday, September 06, 2007
Ind. Courts - "New federal courts building planned in Terre Haute"
TERRE HAUTE - A downtown site has been selected as the location for a new building that will house federal courts and other agencies.A more detailed story, by Howard Greninger of the Terre Haute Trib-Star, is available here.The U.S. General Services Administration announced Wednesday it had agreed to lease the building from Thompson Thrift Development, a Terre Haute-based real estate firm.
The new building would replace the city's existing federal building that is to be turned over to Indiana State University as the new site for its College of Business.
Federal officials had announced plans in 2005 to close the court office, but reversed that decision to allow city officials time to find a new location. * * *
The federal court for the Southern District of Indiana covers about the southern two-thirds of the state, with other court offices at Indianapolis, Evansville and New Albany. The Terre Haute court typically has a part-time magistrate judge assigned to it.
Posted by Marcia Oddi on September 6, 2007 08:00 AM
Posted to Indiana Courts
Ind. Courts - More on: Another case today of missing court records
The Fort Wayne Journal Gazette has an editorial today about the the missing court records the JG reported about on August 30th (see ILB entry here). This is the case where the defendant's mother has the transcript and evidence and won't give it back. Some quotes:
Attorney Robert Gevers II took custody of the official trial record of the case involving a client, Daniel Favela. The record includes a 13-volume transcript of everything said during the trial. More seriously, the record also includes all of the trial evidence – the originals of paper documents and other written evidence, plus photographs of the physical evidence and audio and video recordings.The practice of an attorney taking the record to his or her law offices while preparing a criminal appeal is routine.
What happened later, though, is far from routine.
After the defendant’s mother said she wanted to talk to a different attorney, Gevers should have returned the official court record to the Courthouse or, at worst, the new attorney. Instead, someone in his office gave it to the mother, Adela Favela – who is not even a party in the case. She has refused to return the transcript and is in jail for contempt of court.
Adela Favela’s motivations are unclear, but it’s possible that in some ways, she may think she is entitled to the record. The side that seeks the appeal must pay the cost of the transcript, which can reach thousands of dollars. When the defendant has a public defender, the taxpayers foot the bill, but when the attorney is privately hired, the defendant pays. Daniel Favela’s family may have paid a large sum of money for the transcript.
Even though the defendant pays for the transcript, the original document is the property of the clerk of courts. Plus, remember that what Adela Favela has is not merely the transcript but the entire court record, complete with evidence. * * *
The knee-jerk reaction would be to call for tighter rules – yet officials in the judicial and legal communities can’t recall a similar incident ever happening, and the rules already state that only a party to the case may withdraw the file.
The courts could make copies of the official record – indeed, the rules expressly permit it – but it would cost taxpayers hundreds of dollars each time. The courts could forbid attorneys from taking records from the Courthouse, but that would punish the countless attorneys who have followed procedures without problems.
Now, the clock is ticking on Daniel Favela’s new attorney to file an appeal – which requires the official record. The accuracy of a re-created record will pose significant questions for the Indiana Court of Appeals.
Whatever is motivating Adela Favela from returning the record, with luck she will come to understand that this matter involves not just her son but the integrity of the court’s record-keeping system.
In any event, Daniel Favela’s trial record is destined to be used as an example in law schools and law firms, and indeed, to us all – don’t borrow something and lend it to someone else.
Posted by Marcia Oddi on September 6, 2007 07:50 AM
Posted to Indiana Courts
Law - Ohio federal judge rules sex offender living near school can't be evicted
Joe Milicia of Associated Press reports in a story in the Cincinnati Post:
CLEVELAND - Authorities cannot evict a convicted rapist whose home is near a school, a federal judge in Akron ordered Tuesday, ruling that the state's law limiting where sex offenders live is unconstitutional if applied to crimes committed before the law went into effect. * * *"Sex offenders ruling could have wide effect: Barring reversal on appeal, Akron decision is viewed as binding on other cases" is the headline to this story by Ed Meyer in the Akron Beacon Jounral. Some quotes:Judge James S. Gwin ruled that the law cannot be applied to sex offenders who committed crimes before July 31, 2003, the effective date of the Ohio legislature's ban on offenders living within 1,000 feet of school property.
Gwin ruled that the law punishes sex offenders and ordered county Prosecutor Sherri Bevan Walsh not to enforce the law against Mikaloff.
John Manley, chief counsel with the Summit County prosecutor's office in Akron, said the prosecutor's staff disagreed with the ruling and that an appeal was likely.
"We maintain it's not a punitive measure, it's merely a protective measure," he said.
If not considered punishment, the law wouldn't violate the constitutional prohibition against imposing a new penalty retroactively, Manley said.
Thousands of Ohio sex offenders could be affected by this week's federal court ruling that a law barring offenders from living near a school is unconstitutional, defense lawyers said.The same issue is pending before a number of state courts in Indiana - see this list of ILB entries.David A. Singleton, executive director of the Ohio Justice and Policy Center in Cincinnati, said Tuesday's ruling in U.S. District Court in Akron is binding on all similar cases that might arise in the court's northern district, unless it is reversed on appeal.
In a 21-page decision, Judge James S. Gwin found that the state law prohibiting sex offenders from living within 1,000 feet of a school is unconstitutional for those who committed their crimes before the law took effect on July 31, 2003.
[More] The Terre Haute Trib-Star has an article today by Laura Followell that reports:
BRAZIL — When it comes to the sex offender registry, Clay County Sheriff Mike Heaton has decided to relieve some of the taxpayers’ burden.As of Wednesday, sex offenders must pay a $50 yearly fee when they register in Clay County.
The money will help offset costs associated with processing, tracking and communicating with sex offenders, Heaton said.
“Right now the taxpayers are footing the bill for everything we do. But as part of these individuals’ sentences, for whatever their offense is, this is part of it. They have to register. It’s putting some of the cost off on them,” Heaton said.
The State of Indiana collects 10 percent of an offender’s first registration fee, thereafter Clay County gets 100 percent of the fee for the duration of the offender’s required registration. * * *
The registration fee is optional for every county in Indiana, and the Clay County Council passed Heaton’s proposal.
Each Indiana sheriff is responsible for the sheriff’s registry because of a state law mandating that their departments establish and maintain a Web site providing detailed information about sex offenders.
Posted by Marcia Oddi on September 6, 2007 06:17 AM
Posted to General Law Related
Wednesday, September 05, 2007
Ind. Decisions - "Clark County judge publicly discusses Knight case for first time"
Larry Thomas of the Clark County News and Tribune reports this afternoon that: "Nearly seven years after then-IU President Myles Brand fired basketball coach Bob Knight, a judge involved in one of the lawsuits related to Knight’s dismissal publicly discussed her role in the case for the first time." Some quotes from the two-part story:
In December 2000, Indiana Supreme Court Chief Justice Randall Shepard asked Clark Superior Court 2 Judge Cecile Blau to serve as special judge in a Monroe County suit filed by 46 IU basketball fans who claimed Brand lacked the authority to fire Knight without a vote of the IU Board of Trustees, and that Brand’s meeting with groups of trustees to discuss his decision to fire Knight on Sept. 9, 2000, represented a violation of Indiana’s open-door meetings law. * * *Check here for Part 2.During an address to the Jeffersonville Rotary Club on Tuesday at Clarksville’s Holiday Inn Lakeview, Blau recalled with some amusement the message to call Dave Remondini, Shepard’s legal counsel.
Blau said her staff puts urgent phone messages on her chair to ensure that she will see them, and that when she saw that Remondini had phoned her, she became concerned that a complaint had been filed against her.
“This call may change your life,” Blau recalled Remondini as saying.
She said Remondini told her that Shepard wanted her to serve as special judge in a case. While the appointment of special judges is a common practice in Indiana courts, Shepard is only involved in such appointments a few times a year, and those generally relate to high-profile murder or other criminal cases.
Then, Remondini told Blau about the case.
“He said, ‘It’s the Bobby Knight case.’
‘I thought, ‘Maybe a murder case would be better,’” Blau said.
When Blau accepted the assignment a day later, the first call she received — even before the case’s lawyers had been notified of her appointment — was from her son in Australia.
“Mom, you’re on ESPN,” Blau recalled her son as saying.
Posted by Marcia Oddi on September 5, 2007 06:41 PM
Posted to Ind. Trial Ct. Decisions
Law - " Authenticating E-Discovery As Evidence"
The Metropolitan Corporate Counsel has an article today on authenticating electronic evidence. A quote from the introduction:
Recent precedent confirms that courts are requiring rigorous electronic record authentication. In Lorraine v. Markel American Insurance Co ., 241 F.R.D. 534 (D. Md. 2007), United States Magistrate Judge Paul W. Grimm refused to allow either party to offer emails in evidence to support their summary judgment motions, finding that they failed to meet any of the standards for admission under the Federal Rules of Evidence. The emails were not authenticated but simply attached to the parties' motions as exhibits, as has become common practice. Magistrate Judge Grimm opined: "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."A quote from the conclusion, from the interviewee, who runs a data security software company :
We're working closely with the legal community to educate the industry on the evidentiary issues associated with electronic evidence. There are specific authentication issues associated with producing electronic records that lawyers haven't had to deal with in the past. Because we've been dealing with data authentication issues for years, a significant number of e-discovery leaders have been coming to us for advice on how to advise their clients, and what processes need to change in order to ensure the admissibility of critical electronic evidence. The attorneys I've talked to are worried about chain-of-custody issues associated with the electronic records of their clients. Without a method to authenticate content and its associated metadata, attorneys run the risk of losing the ability to enter key electronic records into evidence.Regular ILB readers may recall that the ILB has had a number of entries on this issue, including this one from June 18, 2007, headed "Ind. Courts - Admissibility of electronic evidence -- is it "authentic"?", including: (1) access to a copy of Lorraine v. Markel complete with a linked TOC to make review easier, plus a link to Part I of my three-part Res Gestae series on "Assuring Authentic Legal Information in the Digital Age." Part I deals with the Acts of Indiana and the Indiana Code.
Part II, dealing with electronic authentication issues involving the Indiana Administrative Code and Indiana Register, including a great overview in the way of a comparison table, is available via this August 1, 2007 ILB entry.
Posted by Marcia Oddi on September 5, 2007 03:16 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 4 today (and 16 NFP)
For publication opinions today (4):
In Cinergy Corporation, et al v. St. Paul Surplus Lines Insurance Co., et al, an 18-page opinion dealing with whether there was an "occurrence triggering the policies’ coverage provisions," the court finds in favor of the insurers. Judge Robb writes on p. 17:
Thus, in order for the Insurers to bear any responsibility for payment of costs, there must first be a claim or claims arising out of an occurrence. The insurance contract provides that the Insurers are liable for personal injury or property damage caused by an event taking place during the policy period. As the supreme court stated, “the installation costs for equipment to prevent future emissions . . . is not caused by the happening of an . . . event . . . but rather result from the prevention of such an occurrence.” 865 N.E.2d at 582 (emphasis in original). The preventive measures the underlying lawsuit seeks were not “caused by” the event in question. Thus, Cinergy’s arguments in this appeal are to no avail; not only was there no actual occurrence bringing the claims against Cinergy within the terms of the policies, but also there was never a potential occurrence under the terms of the policies. The trial court properly found that there was no occurrence during the relevant policy term, and the Insurers were entitled to judgment as a matter of law that they are not responsible for contributing to Cinergy’s defense costs.
Maureen Reel, Thomas Dullen and Ned Milby, et al v. Clarian Health Partners, Inc. - "In conclusion, Clarian correctly points out that it would be within its right to completely deny payment of PTO to terminated employees. ... However, having granted employees the right to their PTO upon termination, such PTO is a wage under the Wage Claims Statute. Thus, despite Clarian’s policy to the contrary, Clarian must pay the PTO in a timely manner as required in the Wage Claims Statute."
Donna Helm v. Steven D. Helm - a 13-page opinion that may be the first COA opinion authored by Judge Bradford, who writes:
Respondent-Appellant Donna Helm appeals from the trial court’s division of the marital estate following the dissolution of her marriage to Petitioner-Appellee Steven Helm. We reorder and restate Donna’s claims as whether the trial court erred in excluding unpaid future lottery payments from the marital estate and whether such exclusion, if erroneous, constituted harmless error. We affirm.George Evan and Christine Evan v. Poe & Associates, Inc. and Warren Tilford - "Because we find that the release is unambiguous, we need not look to parol evidence to determine the intent. The release unambiguously releases Poe and Tilford in addition to Safeco. We conclude that the trial court did not err by granting Poe and Tilford’s motion for summary judgment. See, e.g., Dobson, 634 N.E.2d at 1345 (holding that the trial court properly entered summary judgment because the release barred the plaintiff’s claims)."
NFP civil opinions today (3):
Harold Fields and Pamela Mae Fields v. Ralph Baker and Sue A. Baker (NFP) - "Harold Fields (Harold) and Pamela Mae Fields (collectively, the Fields) appeal the trial court’s Findings of Fact and Conclusions of Law granting Appellees-Plaintiffs’, Ralph and Sue Baker (the Bakers), request for a permanent injunction that prevents blocking part of a local roadway. We affirm."
NFP criminal opinions today (13):
Sadat A. Wade v. State of Indiana (NFP)
Robert Welches v. State of Indiana (NFP)
Kelly N. Raible v. State of Indiana (NFP)
Jan Waclaw Kosmuiski v. State of Indiana (NFP)
Todd L. Anderson v. State of Indiana (NFP)
Kevin Richter v. State of Indiana (NFP)
Dustin Maxwell v. State of INdiana (NFP)
Rodney L. May v. State of Indiana (NFP)
Brandon Custis v. State of Indiana (NFP)
George Crawford v. State of Indiana (NFP)
Ricky Lee Jackson v. State of Indiana (NFP)
Toni R. Bledsoe v. State of Indiana (NFP)
P.R.A. v. State of Indiana (NFP)
Posted by Marcia Oddi on September 5, 2007 02:52 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - One today from 7th Circuit
In USA v. Kollintzas, a 13-page opinion, Judge Sykes writes:
A jury found Frank Kollintzas guilty of converting large sums of money from the City of East Chicago, Indiana. After the trial Kollintzas disappeared. The district court sentenced him in absentia and ordered that he pay over $25 million in restitution. The government immediately initiated collection proceedings, including garnishment, under the existing criminal docket number. While the garnishment proceedings were pending, Kollintzas’s wife, Joanna, filed for divorce in Indiana state court. The government served her with notice of the garnishments pursuant to the requirements of the Federal Debt Collection Procedures Act (“FDCPA”), and she made a general appearance in the district court. She subsequently filed a brief asserting an interest in the property being garnished; she argued that her interest in the marital assets was a matter for the state court, not the federal court, to decide. The district court disagreed and ultimately concluded Mrs. Kollintzas had failed to establish her property interest under Indiana law. The court granted the government’s motion to release the funds for garnishment, and Mrs. Kollintzas appealed. We affirm.
Posted by Marcia Oddi on September 5, 2007 02:43 PM
Posted to Ind. App.Ct. Decisions
Ind. Law - Brooks role at Ivy Tech to include both general counsel and senior vice president of workforce and economic development
Per a statement from Ivy Tech posted this morning by the Indianapolis Star:
[US Attorney Susan W.] Brooks will serve as both general counsel and senior vice president of workforce and economic development starting October 1.In the vice president role, according to a statement from the college, "Brooks will provide vision, leadership and direction of Ivy Tech's workforce and economic development activities on a statewide basis. She will also serve as an integral part of the state's strategic initiative to develop a trained workforce and to attract and retain businesses in an effort to bolster the economic viability of the state."
Posted by Marcia Oddi on September 5, 2007 09:02 AM
Posted to Indiana Law
Ind. Law - ND Indiana decision on gender stereotyping cited
"Employers Should Be Mindful of Sex-Stereotyping Claims in Dealing With Gender Identity" is the title to an article by Jenner & Block's Carla J. Rozycki and David K. Haase available at Law.com. A few quotes:
Courts have long been in agreement that discrimination against a transgendered person is not sex discrimination actionable under Title VII of the Civil Rights Act of 1964, as amended, because "sex" means biological male or female status, not sexuality or sexual orientation. * * *The ILB has downloaded Chief Judge Robert L. Miller's August 3rd opinion in Creed, access it here.Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (finding that a post-operative transsexual was not protected by Title VII, the 7th Circuit held that "The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be female, or [vice versa]; a prohibition against discrimination based on an individual's sex is not synonymous with a prohibition against discrimination based on an individual's sexual identity disorder or discontent with the sex into which they were born."). * * *
Most recently, while finding no cause of action under Title VII for discrimination against a transgendered employee, the U.S. District Court for the Northern District of Indiana held that an employee going through the process of gender transition from male to female could proceed with claims that the employee was terminated for not meeting male gender stereotypes. Creed v. Family Express Corp., No. 3:06-CV-465RM, 2007 WL 2265630, at *2-4 (N.D. Ind. Aug. 3, 2007). Amber Creed presented as a male when hired by Family Express as a sales associate. Over the next six months, however, Creed began to wear clear nail polish, black mascara, trimmed eyebrows and a more feminine hairstyle while wearing the required polo shirt and slacks. Creed alleges she was finally told not to present herself in a feminine manner at work. When she told her employer that she was going through the process of gender transition and refused to present herself in a more masculine way at work, she was terminated.
While concluding that the 7th Circuit holding in Ulane -- that discrimination against transsexuals because they are transsexuals is not discrimination "because of sex" -- remains controlling law, the court held a transgender plaintiff can state a "sex stereotyping" claim under Price Waterhouse for discrimination due to the failure to act or appear masculine or feminine enough for an employer. Id. at *3. The court emphasized that such a claim could only be successful if the plaintiff could prove that the claim arose from the employee's appearance or conduct and that the employer acted with stereotypical motivation about how a male or female should present. Denying Family Express' motion to dismiss the sexual-stereotyping claim, the court concluded that Creed's allegations adequately supported a "plausible" claim of discrimination due to sex. Id. at *4. The court observed: "[A] man who is harassed because his voice is soft, his physique is slight, his hair is long, or because in some other respect he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave, is harassed 'because of' his sex." Id. at *4, quoting Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997), vacated and remanded on other grounds, 523 U.S. 1001 (1998).
Employers dealing with issues of gender identity need to carefully analyze their decisions to make sure they do not fall within this "sexual stereotyping" theory recently recognized by several courts. Further, employers need to check the laws of their state and local municipalities, which increasingly have added "gender identity" as well as "sexual orientation" to the protected classes of employees.
Posted by Marcia Oddi on September 5, 2007 07:03 AM
Posted to Ind Fed D.Ct. Decisions
Tuesday, September 04, 2007
Law - Federal Election Commission applies media exemption to political blogs
In a news release this afternoon, the FEC announcement begins:
WASHINGTON – The Federal Election Commission announced today that it has unanimously resolved two complaints alleging that Internet blog activity is subject to Commission regulation, finding that the activity is exempt from regulation under the media or volunteer exemption.In Matter Under Review (MUR) 5928, the Commission determined that Kos Media, L.L.C., which operates the website DailyKos, did not violate the Federal Election Campaign Act. The Commission rejected allegations that the site should be regulated as a political committee because it charges a fee to place advertising on its website and it provides “a gift of free advertising and candidate media services” by posting blog entries that support candidates. The Commission determined that the website falls squarely within the media exemption and is therefore not subject to federal regulation under the Act.
Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In March 2006, the Commission made clear that this exemption extends to online media publications and that “costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station. . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate. With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos website does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media, DailyKos.com, or Markos Moulitsas Zuniga violated federal campaign finance law.
Posted by Marcia Oddi on September 4, 2007 06:07 PM
Posted to General Law Related
Ind. Law - More on "Schools struggle to secure students in cyber world"
Supplementing this ILB entry from Sept. 2, see this posting today by Howard Bashman in his blog, How Appealing, re "a decision that U.S District Judge Mark R. Kravitz of the District of Connecticut issued last Friday" on student postings on blogs and social networking sites.
Posted by Marcia Oddi on September 4, 2007 03:21 PM
Posted to Ind. App.Ct. Decisions
Law - Two fascinating economics articles today in NY Times
The ILB has spent a lot of mornings sitting around in waiting rooms lately, reading the paper. This diligence was rewarded today by really interesting stories, one on electricity deregulation and one on the rise of milk, in the NY Times.
From a story headed "A New Push to Regulate Power Costs," by David Cay Johnston, some quotes:
More than a decade after the drive began to convert electricity from a regulated industry into a competitive one, many states are rolling back their initiatives or returning money to individuals and businesses. * * *From a story headed "A Thirst for Milk Bred by New Wealth Sends Prices Soaring," by Wayne Arnold, some quotes:Of the 25 states, and the District of Columbia, that had adopted competition, only one, California, is even talking about expanding market pricing.
The main reason behind the effort to return to a more regulated market is price. Recent Energy Department data shows that the cost of power in states that embraced competition has risen faster than in states that had retained traditional rate regulation.
One prominent critic of competitive pricing — Marilyn Showalter, a former Washington state utility regulator who has become an advocate of publicly owned power systems — has calculated that, in the year ending May 31, customers in competitive states paid an extra $48 billion for their power, compared with what they would have paid under rates in regulated states.
The combination of higher and faster-rising prices has outraged individual consumers and small businesses and prompted big electric customers to fight back on political, regulatory and legal fronts.
“It is fair to say that in the states that did restructure, we are on the defensive,” said John Shelk, president of the Electric Power Supply Association, which represents owners of competitive power plants. * * *
Big industrial and commercial customers, the very forces that agitated for competition originally, are leading the return to traditional regulation. Then, and now, these big customers say they are being charged too much.
Driven by a combination of climate change, trade policies and competition for cattle feed from biofuel producers, global milk prices have doubled over the last two years. In parts of the United States, milk is more expensive than gasoline. There are reports of cows being stolen from Wisconsin dairy farms.“There’s a world shortage of milk,” said Philip Goode, manager of international policy at Dairy Australia in Canberra.
But the biggest force driving up milk prices is the same one that has driven up prices for conventional commodities like iron ore and copper: a roaring global economy. Rising incomes in emerging economies from China and India to Latin America and the Middle East are lifting millions of people out of poverty and into the middle class.
It turns out that, along with zippy cars and flat-panel TVs, milk is the mark of new money, a significant source of protein that factors into much of any affluent person’s diet. Milk goes into infant formulas, chocolate, ice cream and cheese. Most baked goods contain butter, and coffee chains like Starbucks sell more milk than coffee. * * *
What is unusual, and somewhat confusing, about the milk boom compared with other booming commodities is that milk is not like oil: You cannot stick it in barrels and stockpile it. It goes sour. Even in powder form, the most commoditized version, milk has a shelf life. As a result, only about 7 percent of all the milk produced globally is traded across borders. The rest is consumed in domestic markets, which are protected by geography and just as often by tariffs or subsidies.
Big buyers like chocolate makers and grocery stores buy their milk under long-term contracts and so can smooth out sudden spikes or dips in prices. Thus, the full effect of the global shortage varies from country to country, and not all consumers are yet suffering the full impact.
But because of the local nature of the market, there is little spare capacity. In the past, the world could always count on the United States and Europe to fill shortages by exporting some of their subsidized stockpiles of cheese, butter and milk powder. But the United States has drawn down its butter mountain and other stockpiles; the same is true of the European Union, which started cutting dairy subsidies in 1993 and will finish this year. Rising dairy demand in the United States and among the European Union’s new members, moreover, is draining supplies. As a result, Mr. Hemme said, “This storage capacity is empty now.”
At the same time, rising demand for biofuels is pushing up the price of corn and other grains, which is what farmers in the United States, Europe, Canada and Japan feed their cows instead of grass. Rising feed costs help to push milk prices even higher.
Posted by Marcia Oddi on September 4, 2007 02:58 PM
Posted to General Law Related
Environment - More on: Study shows how BP could likely could expand its refinery without the added pollution
This ILB entry from August 25th quotes from an Aug. 23rd story in Crain's Chicago Business that BP's announcement that it was backing off on plans to sharply increase pollutants to Lake Michigan authorized by the controversial Indiana permit:
... came as word began to spread of a study that BP likely could expand its refinery without the added pollution if it spent “less than $30 (million) to $40 million” on technical tweaks.Today the Indianapolis Star catches up, in a story by Tim Evans. Some quotes:The study, a copy of which was made available to Crain’s, was prepared for the Chicago Department of Environment by Tetra Tech Inc., a prominent engineering firm. * * *
Howard Learner, executive director of the Environmental Law and Policy Center, termed BP’s announcement “absolutely the right step in the right direction.”
Mr. Learner said he believes BP had heard of the Tetra Tech study and similar conclusions by other technical experts that design changes and other revisions could be used to cut pollution.
Proceeding with the previous plan “would have made them a laughingstock,” Mr. Learner said. “This announcement was a recognition that there are technical things that can be done” to avoid pollution.
The Tetra Tech study concluded that Whiting could gain by installing one of several types of available anti-pollution equipment that have been used elsewhere to “effectively remove (increased) ammonia nitrogen and (suspended solids) from wastewater.”
Based on efforts at other refineries, such work at Whiting “is estimated to cost less than $30 (million) to $40 million,” a draft version of the firm’s report to the city states. “Actual cost is expected to be less than this.”
The expansion of the BP refinery in Whiting can move ahead with existing technology that would keep the pollution it dumps into Lake Michigan at current levels and would mean only a small increase in the cost of the project, according to environmentalists and a report commissioned for the city of Chicago.The report, prepared by Tetra Tech, a California-based engineering firm, concluded that BP could upgrade the Whiting refinery's wastewater treatment plant for less than $40 million.
Posted by Marcia Oddi on September 4, 2007 02:32 PM
Posted to Environment
Law - Legal aid in Louisville offering do-it-yourself divorce packet
Jason Riley reports today in the Louisville Courier Journal:
[E]ase and affordability, along with the goal of reducing crowded dockets, led the Jefferson Circuit Court Clerk's office -- working with Legal Aid, Family Court and the Louisville Bar Association, among others -- to make self-help divorce packets available recently.Indiana Courts has sets of forms online for divorce, child support, etc., at its Self-Service Legal Center. Here is an example of the instructions for the "divorce without children and without assets" form set.For $10, couples without major settlement issues can get a packet and quickly navigate the often treacherous and expensive path to divorce without attorneys or possibly even setting foot in a courtroom.
"The inability to pay should not be a barrier to accessing justice," said Chief Family Court Judge Stephen George, who worked with Legal Aid to create the packets. * * *
In recent years, George said, some people seeking more expedient and less costly divorces in Jefferson County have downloaded self-help divorce packets from the Internet -- sometimes for hundreds of dollars -- only to learn that the documents weren't usable in Kentucky. But the idea resonated with George and his staff.
The trend toward do-it-yourself divorces has grown across the country for a very simple reason, George said: money.
A typical attorney's fee will run $150 to $225 an hour, meaning even an uncomplicated and uncontested divorce will cost $750 to $1,500, he said. Complicated divorces can cost tens of thousands of dollars.
"It's a lot cheaper to get married than it is to get divorced," said Family Court Judge Jerry Bowles. "There's been a large segment in our community that before didn't have the resources" for a divorce.
Bowles said many couples who have been separated for years are coming forward to get divorces they hadn't been able to afford. * * *
Since Legal Aid started offering self-help divorce packets last August -- through what George called a pilot project for the packages now available -- about 600 people have at least started the process.
"The response has been overwhelming," said Nellie McCall , an attorney with Legal Aid who noted that they have been holding packed clinics to teach citizens how to use the packets. "All the judges we've talked to, from throughout the state, want something similar." * * *
Court officials, however, stress that the self-help packets are not for most divorces. If there's any disagreement over assets or custody, lawyers will most likely be necessary.
Divorce lawyers say they are not threatened by the self-help packets because getting a divorce is, in most cases, too complex for couples to do without legal help.
Posted by Marcia Oddi on September 4, 2007 02:09 PM
Posted to General Law Related
Ind. Decisions - More on federal Judge Tinder's wine shipping decision
The Richmond Palladium-Item has this editorial today, headed "Ending state's protectionism":
A federal judge has leveled the playing field for wineries seeking to ship their products.From a story ($$$) by Sarah Morin in the Bloomington Herald-Times:It's time Indiana get in step with the nation and discontinue old protectionist strategies.
The U.S. Supreme Court said as much in mid-2005 when it ruled that laws in Michigan and New York could not give state wineries special treatment.
Robert Garton, the former Indiana Senate president pro tem, did not lose his important seat last year over the wine issue. But he probably lost it over the arrogance that saw him unilaterally kill a bill that would have allowed wine to be shipped to customers in Indiana.
That kind of action necessitated last week's federal ruling clarifying and enforcing the Supreme Court's ruling.
The Wine and Spirits Wholesalers of Indiana no doubt harbors real concerns about protecting minors. But that concern is less apparent where its own members are concerned. Its first order of business seems transparently to be economic protectionism for its members.
U.S. District Judge John Daniel Tinder said as much in his ruling, calling the dual system for wine shipments employed by Indiana "a form of economic protectionism" because it favors in-state wineries at the expense of those in other states. Tinder's ruling allows Hoosiers to more freely make online and phone orders from wineries in Indiana and other states, while still being required to collect personal information and sworn statements from those placing orders to assure they are legal age and to enable prosecution for falsification.
This is a good day for Indiana's fledgling state wine industry. It's a good day for consumers.
It's a good day for equal and fair application of the law.
Jim Butler is excited that he can now sell his Bloomington wines to Indiana customers over the phone and from the Butler Winery Web site.A new ruling by a federal judge this week allows Butler and other wineries in the state to reach more customers by lifting previous shipping sales restrictions.
“It’s a very good outcome. It’s a good outcome for Indiana wineries and wine consumers,” Butler said Friday.
He predicts a 10 percent sales increase given the addition of telephone and Web sales of his local wines within Indiana.
State law had required customers to have a face-to-face transaction before receiving home shipments. The ruling by U.S. District Judge John Daniel Tinder called that unconstitutional. * * *
The ruling also struck down a provision that barred wineries that possess wholesale privileges in other states from seeking a direct wine seller’s permit in Indiana. But it hasn’t cleared up any confusion about whether Hoosier wine drinkers can order their favorite cabernet sauvignon or chardonnay out of state.
That depends on whether the winery has a direct-shippers permit that allows it to ship to individuals in Indiana.
“The law is still somewhat restrictive; (you’d) need enough business to make it worthwhile,” Butler said of the necessary permits to ship directly to customers. * * *
“We are elated with this decision,” Bill Oliver, president of Bloomington’s other winery, Oliver Winery, said in a prepared statement. “The customers that have continued to call from around the state for ours as well as many other Indiana wines will now have the opportunity to once again have wine shipped directly to them.”
Posted by Marcia Oddi on September 4, 2007 01:48 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Law - Gary Legal Services group providing free legal services in Jasper County
Dave Ake of The Rensselaer Republican reports:
Jasper County residents in need of a legal clarification or unable to afford the advice they may need to represent themselves, now have an alternative.Attorneys Gale Carmona and Sean Newberry of Indiana Legal Services, a pro se clinic based in Gary, are currently providing free legal services once a month to Jasper County.
“There is an initiative from the Indiana Supreme Court to provide 50 hours of pro bono service a year,” Carmona said.
One must understand, in the sometimes cloudy world of legal terms, there is what is referred to as ‘pro se’ and ‘pro bono’. Pro se is when a defendant appeals to their right for self representation. Pro bono is when a lawyer takes a case free of charge.On Thursday, Newberry and Carmona met with several people to answer questions they may have had regarding legal issues such as the plethora of forms a person may be required to fill out in the judicial system. In some other cases, a person may choose to go pro se and the Legal Clinic can also help them through that process.
“I need clarification on a child support order. I read about the free legal services in the paper. Karen Craig encouraged me to come up and see about it. Last time I spent over $4,000 and lost. That money is gone and it did no good,” a client stated last week.
The attorneys were there to help answer simple, but not always easy, questions that may have otherwise cost a citizen hundreds of dollars in legal fees. It should also be noted that the legal team does speak Spanish.“Sometimes the biggest thing they need on there [downloaded legal forms] is just a cause number,” Newberry said. * * *
The program started when Carmona asked Jasper County Superior Court Judge Philip McGraw for his approval on the program. Having known each other for a long time, McGraw gave Carmona his approval and the Legal Clinic was born.
Posted by Marcia Oddi on September 4, 2007 01:43 PM
Posted to Indiana Law
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
In Indiana Department of Transportation, et al. v. Robert Howard, et al. , a 5-page opinion, Judge Robb writes:
The State of Indiana and the Indiana Department of Transportation (collectively referred to as “INDOT”) appeal the trial court’s denial of their motion for summary judgment. Concluding that the order denying summary judgment is an interlocutory order that INDOT did not have certified by the trial court and accepted by this court as an interlocutory appeal, we do not have subject matter jurisdiction over this case and therefore dismiss. * * *NFP civil opinions today (0):The parties in this case have apparently proceeded under the assumption that the trial court’s order denying INDOT’s motion for summary judgment is a final appealable order under Trial Rules 54(B) and 56(C). * * *
However, to be a final judgment under Trial Rules 54(B) and 56(C), a judgment “must possess the requisite degree of finality and must dispose of at least a single substantive claim.” An order denying summary judgment is not a final appealable order, and cannot be made into one via Trial Rules 54(B) or 56(C), because no issues have been irretrievably disposed of and no rights have been foreclosed by such an order. Bd. of Tr. of Ball State Univ. v. Strain, 771 N.E.2d 78, 81 (Ind. Ct. App. 2002). Rather, a party seeking review of a denial of a motion for summary judgment must do so by seeking an interlocutory appeal pursuant to Appellate Rule 14(B). Cardiology Assocs., 804 N.E.2d at 155. * * *
For INDOT to appeal the denial of its motion for summary judgment, it was required to first seek and obtain certification from the trial court authorizing an appeal from the interlocutory order and then seek acceptance of the interlocutory appeal from this court. INDOT failed to do so. Because this is not a final appealable order and INDOT did not follow the proper procedure for bringing an interlocutory appeal, we do not have jurisdiction over this appeal. We therefore dismiss and remand to the trial court for further proceedings.
NFP criminal opinions today (4):
Darnell C. Miller v. State of Indiana (NFP)
Jason Middleton v. State of Indiana (NFP)
James F. Ruble v. State of Indiana (NFP)
James A. Shamp v. State of Indiana (NFP)
Posted by Marcia Oddi on September 4, 2007 01:37 PM
Posted to Ind. App.Ct. Decisions
Monday, September 03, 2007
Environment - Even more on: Pollution and justice: Kentucky judge orders state to rehear permit for coal-fired power plant
Updating this most recent ILB entry from August 31st, James Bruggers writes today in the Louisville Courier Journal about this controversy.
In the original ILB entry, from August 10th, I wrote: "Although the permit process is different, the facts echo many of the same themes as the NW Indiana situation. In this case, however, the pollution would originate in Kentucky and Indiana would be impacted." In NW Indiana, Indiana's allowing BP to increase pollutant discharges into Lake Michigan would impact other Great Lakes states. From today's LCJ story:
A Franklin Circuit Court ruling won by environmentalists threatens the state's coal industry and economy by requiring "drastic changes" in how power plants get approved, Kentucky regulators are asserting.At issue is a decision on Aug. 6 by Judge Thomas Wingate that rejected the air-quality permit for the 1,500-megawatt Thoroughbred plant planned by Peabody Energy for Muhlenberg County.
In newly filed court papers seeking an expedited appeal, attorneys for the state say the ruling jeopardizes all pending air-quality permits, including two more challenged by environmentalists: Louisville Gas and Electric's 750-megawatt expansion of its Trimble County electric generating plant, and East Kentucky Power's 278-megawatt expansion of its Spurlock Power Station in Maysville. * * *
The lawyers said Wingate's ruling had created "an uncertainty that is disruptive" to both state officials and industry, and has "implications that extend to the mining of coal, which is an essential element of the economy of Kentucky, and therefore raises an issue of public concern." * * *
Hank Graddy, a Midway attorney who represented the Sierra Club and others in the Thoroughbred case, said the state is exaggerating the ruling's impact.
The ruling, he said, "does not say that plants can't be built and electricity can't be generated," said Graddy, who is also involved in challenging the LG&E and East Kentucky Power permits. "The judge found (cabinet officials) weren't implementing the (federal) Clean Air Act and their own regulations. They should follow their own regulations." * * *
Environmentalists then took the matter to circuit court.
Among other problems, [Judge] Wingate found that the cabinet had not thoroughly evaluated the "best available" pollution control technology for the plant and had not fully alerted the public to its environmental consequences.
Posted by Marcia Oddi on September 3, 2007 04:51 PM
Posted to Environment
Law - "Is the Future of Legal Scholarship in the Blogosphere?"
Margaret A. Schilt of Legal Times had an interesting article Friday titled "Is the Future of Legal Scholarship in the Blogosphere?" The focus is on law professor blogs.
Posted by Marcia Oddi on September 3, 2007 03:33 PM
Posted to General Law Related
Sunday, September 02, 2007
Courts - Pressure continues in Missouri against the "Missouri plan" for judicial seelction; WSJ chimes in
"Is the "Missouri plan" in danger in Missouri?" is the title of an ILB entry from May 1, 2007, followed on August 1st with this entry titled "Problems in birthplace of the Missouri plan?." On August 14th the ILB quoted from a story in the Kansas City Star, including this quote:
State Senate Majority Leader Charlie Shields charged Monday that the Appellate Judicial Commission met in secret to pick the three finalists for the vacant Supreme Court seat “without giving the public notice of their meetings by date, time and place, all of which are required by the Sunshine Law.”Last Thursday the WSJ editorial section chimed in to what had been a local Missouri matter, writing under the heading "Review and Outlook". The article begins:
For the latest proof that you can't get politics out of politics, see the battle in Missouri over how the state selects its judges. All three branches of that state's government are arguing over a system that was designed to protect judicial independence from the rowdier environs of democratic elections. What it now has is worse.The following day, on Aug. 31st, the Columbia (Mo.) Daily Tribune opined:Launched in 1940, the so-called "Missouri Plan" was once considered state of the art and imitated by many other states. An ostensibly non-partisan seven-member commission chooses a slate of three nominees and the Governor chooses among them. The idea was to produce candidates based on merit while diluting political influence over courts.
But that was then. Anybody with the power to choose judicial candidates was also destined to become a political actor. And that's exactly what has happened to the Appellate Judicial Commission, made up of three members chosen by the Missouri Bar Association, three picked by current and past Governors, and the chief justice of the state supreme court. Now Republican Governor Matt Blunt finds himself battling the Missouri bar over the commission's latest panel of candidates to fill the seat of retiring state Supreme Court Justice Ronnie White.
All of a sudden this year, opponents of Missouri’s vaunted system for appointing judges to the state Supreme Court and appellate courts have mounted an offensive. The most aggressive among them want to throw out the so-called Missouri Plan altogether.Conservative Republicans think the Missouri Plan has of late produced too many “activist” judges — meaning too many liberals. They think this happens because the commission is dominated by trial lawyers who are able to manipulate the nomination process so a governor like Matt Blunt, who would like to appoint certified conservatives or “strict constructionists,” finds none to suit him among the three nominees.
Critics should make their case using specific criticisms of particular decisions to show a verifiable trend. Instead, they want a system more quickly reflective of the political philosophy of the party in power.
In their dreams, Blunt & Co. want the federal system in which the governor appoints any person he wants, subject to confirmation by the Senate. In the dreams of those who favor a less partisan system that would be a nightmare.
Posted by Marcia Oddi on September 2, 2007 05:43 PM
Posted to Courts in general
Law - Starting law school this month?
Then check out the WSJ Blog's entry "Advice For One Ls," which solicited advice from readers and so far has 94 responses. In earlier entries, editor Peter Lattman asked for suggestions from authors including Jeffrey Toobin and Scott Turow.
Posted by Marcia Oddi on September 2, 2007 04:51 PM
Posted to General Law Related
Ind. Courts - More on: Electronic trafic tickets
Updating this ILB entry from August 31st, Rob Schneider of the Indianapolis Star reported in detail yesterday on the new system, including this side-bar on how it will work:
The electronic ticketing system will mean big changes for the motoring public:• If you're stopped: The amount of time you spend squirming while the officer writes your ticket will be cut to about five to seven minutes from 15.
• If you get a warning: Police will be able to see almost immediately whether you were stopped earlier in the day by another officer and given a warning.
• If you're the officer: Worries about your handwriting will be a thing of the past. The system scans driver's license and registration information.
• If you're the courts: Say goodbye to typing ticket data into your computers. The new system does that for you.
Posted by Marcia Oddi on September 2, 2007 04:43 PM
Posted to Indiana Courts
Ind. Law - "Schools struggle to secure students in cyber world"
Sue Loughlin of the Terre Haute Tribune-Star writes today on "a whole new territory" - the impact of MySpace and Facebook on students. Some quotes from the long and excellent article:
From cyberspace threats and bullying to false teacher profiles, social networking sites such as MySpace and Facebook have opened a new frontier of safety, security, ethical and legal concerns for schools:The COA decision was the April 9th ruling in A.B. v. State of Indiana. See initial ILB entry here. Here is a list of later entires.• Teachers and administrators might be the victims of false profiles or inappropriate comments.
• Online threats can create school disruptions, even if the authors have no serious intent to carry them out. Also, what starts as an online dispute between students can carry over into the classroom.
“It’s worrisome” said Ray Azar, Vigo County School Corp. director of Student Services. “It’s a whole new territory.”
The Internet offers much that is good, but at the same time, “There’s so much out there [students] can get in trouble with,” he said.
The district has become aware of instances of false profiling and other cases involving inappropriate comments about staff members.
When that happens, school district security officers will contact MySpace administrators and ask them to review the site and take it down if it’s inappropriate.
“They don’t want illegal activity,” said Franklin Fennell, school district supervisor of security and support services.
MySpace has provided a telephone number that law enforcement officers can call if there are security concerns, inappropriate postings or false profiles, Azar said.
MySpace has become more cooperative, he said.
“A few years ago, you had to go through a lot of hoops to get anything done and they didn’t want to share any information because of confidentiality,” Azar said. “But now, if a school corp. is working with law enforcement, they’ve made it pretty easy to determine if something is inappropriate and to take it down … We find we can do that pretty easily.”
Other social networking sites aren’t as easy to work with, he said.
Just because someone posts inappropriate or false comments about a teacher or administrator doesn’t meant it’s illegal. It may come down to victims deciding if they want to pursue civil action and whether it’s worth the effort, Azar said.
While typically students use MySpace on a home computer, comments and threats can trickle over into the school setting.
Last year, some Terre Haute South Vigo High School parents became concerned about a MySpace posting that involved threatening comments toward black students. School officials and police investigated.
“We look really seriously at threats and anything that can cause a disruption in school,” Azar said.
Students might also say things about themselves online that are “really incriminating. We try to inform parents,” he said.
Because accounts are private, the school district won’t necessarily have direct access to what is on MySpace or other social networking sites. If parents become aware of something inappropriate or threatening, they should make a printout, if possible, so school officials and law enforcement can more easily investigate, Azar said.
The district doesn’t “go out and search” the sites, he added, but it does act on complaints.
MySpace and free speech. School officials can be limited in their response when it comes to students’ off-school use of MySpace, Azar said.
“One of the things we have to tread lightly on is the issue of free speech. We don’t want to infringe on someone’s free speech. But it’s a fine line sometimes,” Azar said.
“You have to determine what laws have been broken and what school rules have been broken. In some cases, it’s just distasteful, but it’s nothing we can really do anything about” except ask MySpace or other sites to remove the offensive material, he said.
Under the Constitution, a school cannot discipline a student for exercising protected speech. That First Amendment protection does not extend to speech that is criminal or defamatory, or speech that causes a substantial disruption.
Indiana law takes things a step further. A state law says that for a school to apply its disciplinary policies to off-school conduct — including off-school computer use — the incident must be unlawful and interfere with school purposes, said Dave Emmert, attorney with the Indiana School Boards Association.
The issue of false profiles raises another question, Emmert said. What did the General Assembly mean by “unlawful” in a statute that dates back to the 1990s — the pre-MySpace era? The Legislature didn’t clearly define “unlawful,” Emmert said.
He believes that if a student clearly defames a teacher or administrator online and makes false statements, that would be civilly unlawful and would interfere with school purposes, particularly if it led to an investigation of that individual.
In his opinion, a school could discipline a student for such online, defamatory remarks, even if those comments are made off school property.
The issues are complicated and often require school officials to consult attorneys about what they can and cannot do, Emmert said, something Azar acknowledged.
“It gets pretty complicated, and we deal a lot with lawyers,” Azar said. The district will seek a legal opinion about whether a certain course of action is appropriate. “We don’t want to subject the corporation to any kind of legal liabilities,” he said.
Student use and misuse of MySpace has prompted lawsuits and counter-lawsuits across the nation — including Indiana.
Earlier this year, the Indiana Court of Appeals ruled that a Putnam County judge violated a middle school student’s free-speech rights when he placed her on probation for posting an expletive-laden entry on a MySpace page.
The entry criticized a Greencastle Middle School principal over school policy on body piercings. The girl’s comments were posted on a page created by another student who falsely claimed it belonged to the principal, Shawn Gobert.
The three-judge panel ordered Putnam Circuit Court to set aside its penalty against the girl. She had been named in a juvenile petition, found to be delinquent and placed on nine months probation.
The Court of Appeals found that the comments were protected and that the juvenile court had unconstitutionally restricted her right of free expression, according to an Associated Press report.
The court determined the student’s comments were protected political speech relating to government [school district] policy on body piercings.
“While we have little regard for [the student’s] use of vulgar epithets, we conclude that her overall message constitutes political speech,” the court opinion states.
Posted by Marcia Oddi on September 2, 2007 12:56 PM
Posted to Ind. App.Ct. Decisions | Indiana Law
Ind. Gov't. - Indiana property taxes: Who benefits from taking property off the Center Twp. tax rolls?
Karen Eschbacher of the Indianapolis Star has a front-page story on the impact of tax abatements and tax increment financing districts in Marion County. A side-bar explains "How tax abatements, districts work."
Earlier, on August 19th, the Star ran this story on property tax exemptions, including this quote:
All told, Marion County exempts more than $2.7 billion worth of property. And that doesn't include Marion County's many government buildings, which are exempt, and breaks offered to prospective new businesses.So we in Marion County, and particularly Center Township, have the quadruple whammy: tax abatements, TIFs, permanently tax-exempt not-for-profit properties, and permanently tax-exempt state and local governmental properties. The properties remaining on the tax rolls after all these carve-outs finance the governmental operations and schools in the County.
The ILB resides in Center Township in a historic district and over the years has talked about the tax situation with a number of different residents who have moved into the downtown area from out-of-state to take prestigious jobs downtown at our major sports NFP, our university system, and our Fortune 500 pharmaceutical company, all of which benefit from major property tax breaks. In every case, she has heard that the strong advice these newcomers received from their recruiters and/or real estate agents was to purchase homes in the counties to the north of Marion, where "the schools were good, crime was not an issue, property taxes were lower," etc. These few people who did end up locating near the downtown did so only by ignoring such advice and acting on their own.
And to the ILB, that states the problem in a nutshell. Yes, there is much to be said for all these programs. But how on earth can it be reasonable to put the burden for them upon the taxpayers in one county, and one township, when the benefits are so much more diverse?
Eschbacher's story today makes the same point:
A big chunk of property value in Downtown Indianapolis doesn't help fill the public kitty: 14.5 percent of assessed value in Center Township was diverted in 2006.See also this Star editorial from August 23rd, including this list of questions:That translates into more than $35 million in property taxes that was siphoned off.
The situation there is magnified because of additional abated and exempted properties such as hospitals and churches.
Among the tax districts, abatements and exemptions, 28 percent of all assessed value in Center Township either is not taxed, or the revenue generated from it is diverted.
That chiefly affects Indianapolis Public Schools, the core of which is in Center Township and which relies on property taxes to pay for capital expenses and some operating costs.
The result: Other taxpayers must chip in more than they would have to if that revenue were on the rolls and available.
And unlike abatements, which last up to 10 years and require businesses to pay a growing portion of their tax bill each year, the tax districts can remain in place for up to 30 years. They used to be limitless, and some are grandfathered in under that rule. * * *
Incentive programs for businesses are unlikely to go away, but some are suggesting more oversight or spreading the burden.
As the General Assembly looks to ease the burden on property owners, abatements and special tax districts are certain to be discussed. Already this summer, a bipartisan legislative panel studying the property tax problem held a session mostly about the topic.
Rep. Craig R. Fry, D-Mishawaka, would like both incentive programs done away with.
"TIFS and tax abatements are a direct shift of responsibility from businesses to homeowners," Fry said. But he concedes that view puts him in the minority.
Others said they want to look at tweaking the programs.
Rep. David Orentlicher, D-Indianapolis, said the state could consider modifying the programs so homeowners in areas heavy with abatements and the tax districts -- such as the IPS taxing districts -- don't have to bear so much of the burden.
"If these (incentives) are appropriate for the region, we shouldn't put all of the burden on the taxpayers in IPS," Orentlicher said. "We need to figure out a way to make sure the costs are shared."
What might be done to help offset the disproportionate tax exempt property load carried by Center Township? Almost 22 percent of its land is tax exempt, and that does not include government buildings. It is the hub of our region, and its residents must pay for services used by all who visit, shop, work and use government services based Downtown.Lesley Stedman Weidenbener of the Louisville Courier Journal has a useful article today, complete with a number of links, on how the homeowner can have input in the current property tax crisis.Is it time to review all nonprofit exemptions to make certain they qualify for a break? Many states are looking at charging nonprofits fees for police, fire and other basic services. That's especially relevant to Indianapolis, where public safety has been chronically underfunded. The Town of Cumberland, for example, bills nonresidents for police services in an effort to shift some of the expense off property taxes.
Should nonprofits be required to pay for various public services in the same way they pay for other business expenses such as legal and banking fees?
Could user fees be charged to nonprofits on a sliding scale, or based on their ability to pay? Those with robust revenues and extensive resources cited in The Star would pay one rate, and those operating on a smaller scale would pay less. Those that showed a loss could be exempted from the fees.
Posted by Marcia Oddi on September 2, 2007 12:00 PM
Posted to Indiana Government
Friday, August 31, 2007
Ind. Decisions - Transfer list for week ending August 31, 2007
Here is the Indiana Supreme Court's transfer list for the week ending August 31, 2007. Be sure to view all three pages.
There was one transfer granted this week.
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 August 31, 2007 03:36 PM
Posted to Indiana Transfer Lists
Environment - Still more on: Pollution and justice: Kentucky judge orders state to rehear permit for coal-fired power plant
Updating this ILB entry from Aug. 26th, Mark Wilson of the Evansville Courier & Press reports today in a story that begins:
Kentucky environmental officials are asking the state's appeals court to speed up a ruling on its appeal of a lower court's decision ordering the state to redo an air pollution permit for Peabody Energy's proposed Thoroughbred power plant because it could affect other pending permits.
Posted by Marcia Oddi on August 31, 2007 02:55 PM
Posted to Environment
Ind. Courts - Electronic trafic tickets
The Supreme Court sponsored a media demonstration this afternoon of a "new electronic citation system that will record law enforcement officers’ information electronically in the field." Rob Schneider of the Indianapolis Star attended and writes about it here. A quote:
The system, called Electronic Citation and Warning System, is being tested by five departments, including the Indiana State Police, Fishers Police Department, Boone County Sheriff's Department and the Commercial Vehicle Enforcement Division. The state received $2.4 million to test and then implement the system statewide later this year.
Posted by Marcia Oddi on August 31, 2007 02:47 PM
Posted to Indiana Courts
Ind. Decisions - "Court stomps Indiana wine shipping laws"
Here is the report the ILB has been looking forward to, coverage by Dan and Krista Stockman, who write a wine column every Saturday for the Fort Wayne Journal Gazette, of this week's federal court decision impacting Indiana's wine shipping laws. For background, see the ILB entry from Wed., Aug 29th headed "Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit."
The Stockman's column today concludes:
We wrote a column earlier this year saying we hoped the General Assembly would use its next session to return some common sense to the law. It appears the federal court has done that work for them.To read more of their August 4, 2007 column, see this ILB entry.To that, we say cheers!
And here, from today's column:
Two years after wine lovers thought markets had been opened to them, a federal court in Indiana may have finally kicked down the doors.In 2005, the U.S. Supreme Court ruled state laws that set different rules for shipping wine to consumers based on whether the winery was in state or out of state were unconstitutional. At the time, the nation was a patchwork of 50 different sets of laws, creating a nightmare for wineries hoping to ship wine to out-of-state customers and for customers hoping to order hard-to-find wine.
At first, wine lovers thought all of that was going to change with the Supreme Court decision, which said the rules had to be the same. You could hear corks popping across the nation as wine lovers celebrated. Then reality hit.
Instead of simplicity, the picture got even more confusing.
Some states embraced direct-shipping, others tried to prohibit direct-shipping entirely and still others – like Indiana – created so many rules and regulations that they may as well have prohibited it outright.
On Wednesday, the federal court in Indianapolis ruled most of Indiana’s regulations on shipping wine directly to consumers are unconstitutional and struck them down. A separate order prohibits the state from enforcing the provisions the court declared unconstitutional. The suit was filed by five wine connoisseurs and Chateau Grand Traverse, a winery in Traverse City, Mich., that makes yummy Rieslings.
“It’s very good news for the consumers, and wineries like happy consumers,” said Larry Satek, president of the Indiana Winegrowers Guild and owner of Satek Winery in Fremont.
Among the provisions struck down was the one that was most burdensome and confusing for customers and wineries alike. The law said a winery could ship wine directly to customers but only if they had seen them at least once face-to-face to verify their age. That meant if you wanted to order Oliver’s limited-edition, impossible-to-find ice wine, you had to go to Bloomington and fill out a form at the winery first.
Of course, the same rule would apply to, say, a winery in Napa, Calif. Want a bottle of cult-favorite Screaming Eagle Cabernet Sauvignon? Even if Screaming Eagle had a permit to ship wine to Indiana (which it couldn’t get under the law, as we’ll explain below), you would have to go to the winery in person first before they could mail you a bottle.
The federal court, however, found that because the burden of complying with the law grew with the winery’s distance from Indiana, the law discriminated far more against out-of-state wineries, making it unconstitutional. The face-to-face transaction requirement is now history.
“Forcing nearly all out-of-state wineries to use a wholesaler or come to Indiana to sell gives in-state wineries a distinct competitive advantage,” the court wrote. “Indeed, virtually the entire direct shipping market is limited to in-state wineries.”
But the rules even for in-state wineries were such a pain that Indiana wineries were hurt, too.
A couple of months ago, Bill Oliver told us his winery had lost 75 percent of its shipping market under the new law. Satek said 80 percent of the wine he ships is out of state because the in-state shipping laws are so burdensome.
And worse than that, Terre Vin Winery, in Rockville north of Terre Haute, couldn’t survive without shipping. It closed early this year, citing the shipping mess.
Another piece of the law that was struck down was part of the $100 direct-shippers permit. Under Indiana’s law, wineries could ship wine directly to consumers if they had a permit from the state. But those permits could not be issued to any winery that is also allowed to sell wine wholesale. That provision eliminated any wineries in California, Washington and Oregon from getting permits – cutting off 90 percent of the wine in the national market. The court ruled the permit situation allowed Indiana wineries to ship but excluded most out-of-state wineries, making it unconstitutional.
The court batted down that provision with a vengeance.
“The wholesale prohibition is not aimed so much at protecting Indiana’s wineries as it is at guarding the bank accounts of Indiana’s wholesalers,” the decision said.
Larry Satek said that while wineries are hailing the decision, they also remember what happened in the past two years. After the U.S. Supreme Court decision came down, the state first tried to say all shipping to consumers – in-state or out-of-state – was illegal.
The wineries went to court and in the meantime tried to change the law. But the law was gutted by the wholesalers’ lobby and turned into one that not only made shipping illegal but would have killed almost the entire Indiana wine industry.
Thankfully, that effort was turned aside in favor of the “compromise” that became law – though it’s hard to call it a compromise when your other choice is being put out of business.
“Two years ago people were cracking open the champagne and then we ended up almost getting destroyed in the legislature,” Satek said. “We’re also cognizant of the fact we’re going to have to work very hard to protect ourselves in the future.”
Jim Purucker, executive director of the Wine and Spirits Wholesalers of Indiana, said the decision will hurt the state’s efforts to keep alcohol away from underage buyers. The court found the wholesalers’ arguments that kids will buy wine online rather than buying beer at the corner store unconvincing, at best. Not that they have ever been convincing.
Posted by Marcia Oddi on August 31, 2007 02:29 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Decisions - Court of Appeals issues 7 today (and 19 NFP)
For publication opinions today (7):
In Mari O. Hunter v. Anne Klimowicz, a 5-page, 2-1 an opinion on rehearing, Chief Judge Baker writes:
We grant the petition for rehearing filed by appellant-defendant Mari O. Hunter, individually and as trustee of the Anne Klimowicz Irrevocable Trust (the Trust), for the limited purpose of correcting the test applied to evaluate the capacity of appellee-defendant Anne Klimowicz to execute the Trust. In our opinion, we evaluated Anne’s capacity pursuant to Indiana Code section 30-4-2-10(c), which provides that to create an irrevocable trust, the settlor must “be of sound mind and have a reasonable understanding of the nature and effect of the act and the terms of the trust.” As Hunter points out in her petition, however, this section of the statute did not exist until the statute was amended in January 2006. Inasmuch as the Trust was executed in 2000, the statute is not the correct tool to use to evaluate Anne’s capacity. * * *In Asbestos Corporation Limited v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, an 8-page opinion, Judge Najam writes:Given this evidence, we are persuaded that the trial court properly concluded that Anne met her burden of establishing that she lacked sufficient capacity to execute the Trust. In all other respects, we deny Hunter’s petition for rehearing.
DARDEN, J., concurs. ROBB, J., dissents with opinion:
For the reasons set forth in my original concurring in result opinion, I dissent from the majority’s conclusion on rehearing that under the pre-2006 test, Anne met her burden of establishing that she lacked sufficient capacity to execute the Trust. As I previously noted, I do not believe Anne rebutted the presumption that she was of sound mind when she created the Trust, as the testimony shows that Anne did know the extent and nature of her property, the natural objects of her bounty, and their desserts. Therefore, I would reverse the decision of the trial court.
Asbestos Corporation Limited (“ACL”) brings this interlocutory appeal from the trial court’s denial of its motions for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield. We address a single dispositive issue on review, namely, whether Akaiwa presented sufficient evidence of exposure to ACL asbestos to survive summary judgment. * * *International Union of Police Associations, Local No. 133 v. George Ralston, et al - "Unlike Ind. Code §§ 19-1-29.5-1.5, 19-1-29-10, and 19-1-31.5-4, the statute applicable to Terre Haute, Ind. Code § 19-1-29.5-13, does not specifically limit the mayor’s power to appoint a chief of police. Rather, Ind. Code § 19-1-29.5-13 focuses on the protection of members of the police department that are appointed to the position of chief of police and this protection does not compel the conclusion that only members of the police department can be appointed as the chief of police. Accordingly, even assuming, without deciding, that the Police Merit Commission could not amend the merit plan, we cannot say that Ind. Code § 19-1-29.5-13 prevented the appointment of Ralston as chief of police. Thus, the trial court did not err by granting Terre Haute’s motion for summary judgment. See, e.g., Langman v. Milos, 765 N.E.2d 227, 236 (Ind. Ct. App. 2002) (holding that the trial court did not err by granting defendant’s motion for summary judgment). For the foregoing reasons, we affirm the trial court’s grant of summary judgment to Terre Haute."Thus, we do not consider the additional evidence proffered by Akaiwa on appeal, and we must conclude that Akaiwa has not produced sufficient evidence to support an inference that he inhaled asbestos dust from an ACL product. Reversed.
In DAP, Inc. v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, a 9-page opinion, Judge Najam writes:
DAP, Inc. (“DAP”) brings this interlocutory appeal from the trial court’s denial of its motion for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield. We address a single dispositive issue on review, namely, whether the trial court properly determined that the ten-year statute of repose contained in Indiana Code Section 34-20-3-1 does not apply to Akaiwa’s cause of action. We reverse. * * *Dawn Elizabeth McDowell v. State of Indiana - "The court did not abuse its discretion by admitting evidence or by prohibiting the re-opening of McDowell’s case. Neither did the court abuse its discretion by giving the jury an instruction regarding intent to kill. The evidence was sufficient to support McDowell’s conviction, and the court did not err in sentencing her. For all these reasons, we affirm."However, we need not address the contentions of the parties and amici concerning the operation and effect of Jarboe because DAP is protected by Section 1’s statute of repose.
In sum, we reverse the trial court’s denial of DAP’s motion for summary judgment. Because DAP is not a miner, Section 2 cannot apply to DAP, and Akaiwa’s cause of action is barred by Section 1’s ten-year statute of repose. Further, ITLA’s contention that the “Ott interpretation of Section 2 is unconstitutional,” ITLA’s Brief at 6, 8, is beyond the scope of our review. Akaiwa lacks a cognizable harm from which to challenge any constitutional defect, and DAP, as a non-miner, lacks standing to challenge Section 2.
TH Agriculture & Nutrition, LLC v. Frank Akaiwa, et al - "TH Agriculture and Nutrition, L.L.C. (“THAN”) brings this interlocutory appeal from the trial court’s denial of its motion for summary judgment on the claims of Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield.1 We address a single dispositive issue on review, namely, whether the trial court properly determined that the ten-year statute of repose contained in Indiana Code Section 34-20-3-1 does not apply to Akaiwa’s cause of action. We reverse."
Mary Ann Novatny v. Christopher S. Novatny - "Through the passage of time, by operation of law, Indiana may now be children’s home state, but the court did not have jurisdiction over Father’s Petition when he filed it. “When a court lacks subject matter jurisdiction, its actions are void ab initio and may be challenged at any time.” Allen v. Proksch, 832 N.E.2d 1080, 1095 (Ind. Ct. App. 2005). As noted above, Mother timely objected to the court’s jurisdiction, and the court overruled her objection. The court never reviewed Mother’s contention that the children had a home state that was not Indiana. Just as in Hepner, “[t]he Indiana court lacked power to act because of its failure to seriously address the issue of its jurisdiction under the [UCCJA].” Hepner, 469 N.E.2d 786. Thus, we are constrained to vacate the court’s modification order."
NFP civil opinions today (7):
In John and Dorothy Arndt & Arndt, LLC v. Porter County Plan Commission (NFP), a 6-page opinion, Judge May writes:
John and Dorothy Arndt, and John Arndt LLC (collectively, “Arndt”) appeal the denial of their application for a primary plat by the Porter County Plan Commission (“Commission”). Arndt asserts the Commission had no discretion to deny his application because he submitted all documentation required by the Porter County Subdivision Control Ordinance. The Commission did not abuse its discretion in finding Arndt failed to provide sufficient information to demonstrate compliance with Porter County’s Open Space Ordinance, and we accordingly cannot find the Commission erred when it denied his application. Therefore, we affirm. * * *In Stephen Summers v. Kenneth Davis and Jennifer Davis (NFP), a 13-page 2-1 opinion, Judge Najam concludes:The Commission had before it both lay testimony and scientific evidence regarding the soil, water table, “swampy conditions,” “undisturbed natural features,” and “fragile environment” at Rilan Acres. We must defer to the Commission’s expertise in finding “[s]tandard management practices may not be sufficient to protect this fragile environment” and “[n]atural features on this property . . . may require a greater set aside under the open space requirements.” Those findings support the Commission’s conclusion Arndt did not provide sufficient evidence to demonstrate the land was suitable for development under the Open Space Ordinance. Therefore, we affirm the denial of his application for primary plat approval.
Here, the court did not hold an evidentiary hearing on the attorney’s fee issue, and there is no indication that it considered the parties’ resources, economic condition, or other factors that would bear on the reasonableness of the award of attorney’s fees. When it awarded attorney’s fees without such a hearing, the trial court abused its discretion. Allen v. Proksch, 832 N.E.2d 1080, 1103 (Ind. Ct. App. 2005). Thus, we reverse the portion of the court’s order that Summers pay the Davises’ attorney’s fees in the amount of $907 and remand for a hearing for the court to consider the necessary factors bearing of the reasonableness of the award.George Long, Jr. v. Wood-Mizer Products, Inc. (NFP) - "Appellant-defendant George A. Long, Jr., d/b/a George’s Wood Yard (Long), appeals the trial court’s order finding Long liable for his breach of a promissory note and security agreement with appellee-plaintiff Wood-Mizer Products, Inc. (Wood-Mizer), for the purchase of a portable sawmill. Long makes a number of unsuccessful arguments that are supported by scant citations to the record and little supporting authority. Finding no error, we affirm the judgment of the trial court."In summary, the trial court correctly denied Summers’ Motion to Correct Error and it did not commit reversible error when it denied Summers’ the opportunity to make an offer of proof. The court, however, abused its discretion in awarding attorney’s fees, and we reverse that portion of its order. Affirmed in part and reversed and remanded.
MATHIAS, J., concurs. FRIEDLANDER, J., concurs in part and dissents in part with separate opinion:
I agree with the Majority in all respects except for its reversal of the award of attorney fees. It is clear from the material before us that Summers’s lack of cooperation drove up the Davises’ legal costs. Moreover, in the context of the amount of legal representation that was obviously required in this case, the amount of attorney fees awarded, i.e., $907, is simply too low to quibble about. I would affirm that award.
Sun Chemical v. Frank Akaiwa, Executor of the Estate of Bill Z. Littlefield, Deceased (NFP)
In Linda Harter v. Larry Couch and Rose Couch (NFP), a 9-page opinion, Judge Friedlander concludes:
At a deposition, Harter explained the incident, in pertinent part, as follows:NFP criminal opinions today (12):I – when I started out, I started out to start my car to warm it up and then go back in and finish getting ready for work. So I inched out. I held onto the side of the house and inched – I knew the ice was there. Now how bad it was. I didn’t know that until the EMTs came to get me. But I inched across there. I knew it was slick and made it to the last – the last step just before you step down to another step, and that’s when I went off.Appellant’s Appendix at 38-39 (emphasis supplied). Elsewhere in the deposition, Harter described the conditions outside when she awoke that morning: “It was raining a heavy – not a heavy rain but a mist. It had snowed though sometime during the night because there was snow and ice both on the – on the ground and on the porch.” Id. at 41. Clearly, Harter acknowledged not only that the ice on the porch was open and obvious, but also that she was specifically aware of its presence.Considering the facts most favorable to Harter, and after reviewing the materials designated by the parties, we affirm the grant of summary judgment in favor of the Couches.
Robertson Fowler v. State of Indiana (NFP)
Randy Beck v. State of Indiana (NFP)
Jodi Lynn Gillman v. State of Indiana (NFP)
Anthony Harvey v. State of Indiana (NFP)
Sheri K. Buston v. State of Indiana (NFP)
Mark A. Rodgers v. State of Indiana (NFP)
Donald E. Weaver, Jr. v. State of Indiana (NFP)
James Kanable v. State of Indiana (NFP)
Tyrone LaSalle Noble v. State of Indiana (NFP)
John Dean, Jr. v. State of Indiana (NFP)
J.R. v. State of Indiana (NFP)
Keith Derrick Bibbs v. State of Indiana (NFP)
Posted by Marcia Oddi on August 31, 2007 01:08 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Tippecanoe County Courthouse floor groans from paper weight gain
Dan Shaw reports today in the Lafayette Journal & Courier, in a story that begins:
Court files stuffed into the fifth floor of the Tippecanoe County Courthouse became such a weighty problem that maintenance crews finally issued a warning:Put much more up there and the fifth floor could collapse.
Pat Harrington, county prosecutor, said that warning hit home. Something had to be done to reduce the amount of documents his office stored.
In 2006, the prosecutor's office used 1,128,610 sheets of paper, more than any other county department. Altogether, the county, which employs about 620 people, went through slightly more than 7 million sheets that year. And the county is well on its way to surpassing that amount in 2007.
"We never had an engineering study done," said Mike Haan, the county maintenance director, about the courthouse's fifth floor. "But with the copy paper we store up there ... we were basically concerned about the amount of weight on that floor."
Harrington said he hopes the solution lies in storing old files on computers. The county has hired interns to undertake that work. They had scanned 245,421 pages by the end of last week, Harrington said.
The project has cleared out a room that used to be filled with boxes. Harrington afterward made it his office.
Even so, Harrington doubts county prosecutors could ever function without using large amounts of paper. Even with scanning, they still must furnish copies of criminal files -- which he estimated contain from 500 to 700 sheets -- to defendants, judges and jury members.
For others in county offices, the law is a hindrance to reducing the use of paper.
County clerk Linda Phillips said she would like to place more files on computers, but Indiana requires her to keep paper records. Criminal files, for instance, must be stored for 55 years, she said.
The recorder's office, on the other hand, has been scanning property records since 1992. And those paying child support at the Tippecanoe County Courthouse will soon notice a lot less paper floating around in the offices they visit.
Posted by Marcia Oddi on August 31, 2007 01:02 PM
Posted to Indiana Courts
Ind. Decisions - Continuing coverage of the appeal of Indiana voter ID case to U.S. Supreme Court
Richard Winger's Ballot Access News reports:
Start with this ILB entry from August 22nd for background.The U.S. Supreme Court will consider whether to hear Indiana Democratic Party v Rokita, 07-25, at its September 24 conference. This is the case challenging the Indiana law that requires voters at the polls to show government photo-ID. The 7th circuit had upheld that law by a vote of 2-1.
September 24 is also the day the U.S. Supreme Court will be considering whether to accept the Pennsylvania ballot access case, Rogers v Cortez.
Posted by Marcia Oddi on August 31, 2007 06:45 AM
Posted to Ind. (7th Cir.) Decisions
Thursday, August 30, 2007
Ind. Decisions - Still more on: Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit
Updating this ILB entry from earlier today, this press release has now been issued on behalf of the successful wineries:
Victory for Indiana Wine ConsumersIndianapolis, IN – Indiana wine consumers will once again be able to receive wine shipments from their favorite Indiana wineries without having to visit them first.
Judge John D. Tinder ruled yesterday that a 2006 Indiana law requiring Indiana residents to fill out a face-to-face verification form from any winery they wished to have wine shipped from is unconstitutional. This reinstates the legal privilege for a consumer that was in place for 28 years prior to the 2006 code change.
“We are elated with this decision,” said Bill Oliver, President of Oliver Winery. “The customers that have continued to call from around the state for ours as well as many other Indiana wines will now have the opportunity to once again have wine shipped directly to them,” he added. Prior to 2006 several wineries shipped as many as 1,000 cases to Indiana residents that did not live near a particular winery. All 34 Indiana wineries reported a dramatic drop in instate shipping once the face-to-face requirement was put in place.
Currently, several Indiana wineries are located in rural portions of the state that are not easily accessible from larger markets such as Indianapolis, Evansville and South Bend. “There is no doubt this ruling brings Indiana much more in line with the rest of the country that does not require their residents to provide a face-to-face verification in order to purchase state produced wine,” said Larry Satek, owner of Satek Winery. “We are pleased with the opportunity to welcome our state customers back,” he said. Currently, 80% of U.S. Consumers have free access to wine via direct shipment.
Indiana wines have gained international attention by winning numerous awards at many prestigious wine competitions including the Indy International Wine Competition and the Jerry D. Mead New World International Wine Competition. “Indiana wineries have worked hard at producing quality products that consumers not only in Indiana but around the world enjoy,” added Bill Oliver, “we appreciate every opportunity to compete with some of the well known wineries in California, New York and throughout the Midwest.”
In 2006, over 711,000 gallons of wine were sold instate by Indiana wineries. This number increases to nearly 800,000 when exports to other states and foreign countries are included.
Posted by Marcia Oddi on August 30, 2007 05:02 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Courts - Controversy in Kokomo over public defender punishment
On August 1, 2007 the Indiana Supreme Court suspended Steven K. Raquet for 30 days, beginning Aug. 31, 2007. The offense involved viewing child pornography online in 2001. See this ILB entry from March 25, 2004.
The Kokomo Perspective has three stories today on this matter. One is an editorial, which says in part:
If there is anything the ongoing debacle that is Howard County government's endorsement of Steve Raquet as chief public defender teaches us, it is that the rest of us just aren't special. The wheels of justice turn differently for those chosen to rub elbows with the elite. The evidence to support this becomes more apparent every day.This story is headed "Commissioners, county council members respond to public defender's 30-day suspension."Let's take at how Howard County government discerns between those who are "one of the boys" and those who are not. * * *
But Raquet -- he is clearly one of the boys. He takes pre-trial diversion for possession of child pornography and gets a promotion and a raise. He admits to bringing disrepute to the legal profession and gets suspended for 30 days, and Howard County government leaders say justice is served. Those same leaders said that Marr and others of prominence in the community should be held to a higher standard. Why wasn't Raquet held to that same standard?
And this article begins:
Some say the Indiana Supreme Court's Aug. 1 decision to suspend Steve Raquet's law license for 30 days might have consequences for the Howard County Bar Association and the local court system."Well, there is no other way to say it other than it clearly reflects very poorly on our local bar," said David Steele, Howard County Bar Association president for 2007.
He was unable to answer how the local bar might fix its image, saying, "You know what, I don't know how to answer that, but if anybody else does, I would love to hear their answer."
Another local attorney holds a different view on the situation.
Dennis Perry, former Superior Court I judge, feels that the Raquet 30-day license suspension by the Supreme Court helps the image of the bar.
"I think it shows that the self-imposed system of discipline and ethics by the law profession, through the Canons of Ethics, works," Perry said. "That is what it is all about; that is what it is made for, for attorneys that make grievous mistakes, or that make silly, inane mistakes. Either way, they should be subject to having a discipline for those mistakes, and I think that what happened to (Raquet) just indicates the system works."
Annette Rush, head of Legal Services for UAW, who does not try many cases in local courts, felt remorse for the local bar.
"I feel really sad for (Raquet) and the bar association," she said. "As a whole, attorneys take a bad rap, and this is a difficult situation."
Steele, however, defends Raquet's job as public defender, despite the seriousness of his actions.
"What (Raquet) did in his private life, I believe, and most people believe, to be reprehensible," Steele said. "The fact is, his private life is completely different from his professional life," Steele said. "You will find very few attorneys in this town who feel (Raquet) is anything other than a competent, talented and dedicated attorney. What he did in his private life will lose him some respect amongst members of the community, but it does not change the fact that he is an excellent public defender."
Posted by Marcia Oddi on August 30, 2007 03:43 PM
Posted to Indiana Courts
Ind. Law - Lebanon golf cart controversy destined for trial and possibly, state legislature
All has not gone smoothly with the Lebanon golf cart ordinance. The Indiana state police has been in opposition, as related in this ILB entry from June 9, 2006. Today Rod Rose of the Lebanon Reporter writes:
The controversy surrounding golf carts on city streets continues.In short, Indiana state police near Lebanon are ticketing golf carts, whether they are driving on designated city or town streets, or state highways.Superior Court II Judge Rebecca McClure ruled this week that only the Indiana General Assembly can decide whether golf carts are exempt from the state’s motor vehicle laws.
McClure denied a motion to dismiss a traffic ticket given March 27 by Indiana State Police Trooper Troy Sunier to Nadine Urban for driving a golf cart on city streets. The citation ticketed Urban for driving a motor vehicle — in this case, a golf cart — without a registration plate. The motion said the case should be dismissed because golf carts, while classified a motor vehicle, can’t be registered.
Urban’s attorney, Larry Giddings, also argued that other motor vehicles that can’t be registered can legally be allowed to drive on Indiana roads, so golf carts should be allowed, too.
Traffic violations are heard in Lebanon City Court or other town courts. But Urban appealed her ticket, which moved the case to Superior Court II.
“The impossibility of registration does not necessitate a dismissal of this case,” McClure wrote in her decision.
Only the General Assembly can change state law. * * *
A trial has been set for Nov. 13, unless Urban decides to pay the ticket, Giddings said.
If Urban wins the case, “it means (she) doesn’t have to pay a ticket,” Giddings said. “The city ordinance is not at issue; it’s never been raised.”
Other cities concerned with safety issues have passed golf cart control ordinances, Giddings said.
“Our ordinance excludes the operation of carts on state highways,” Giddings said. “I think that is something the state police should legitimately be concerned with.”
But Giddings believes state police are not enforcing the law equally.
In June, the Indiana State Police questioned the city ordinance’s legality and said troopers would ticket anyone driving a golf cart on a public street. * * *
In June, the Indiana State Police questioned the city ordinance’s legality and said troopers would ticket anyone driving a golf cart on a public street. * * *
Lebanon’s golf cart ordinance requires that:
Owners pay an annual fee of $30, by May 1; have proof of insurance on themselves or on the cart at all times; carts are allowed on city streets between 6 a.m. and 9 p.m. from May 1 to Sept. 30, and from 9 a.m. to 5 p.m. from Oct. 1 to April 30; only licensed drivers may operate a golf cart; carts must have rear view mirrors, are banned from Lebanon Street, Indianapolis Avenue and South Street because they are also state highways, and are prohibited from Lafayette Avenue. Violators can be fined up to $100; if they are ticketed twice in a calendar year, their golf cart permit will be suspended.
Posted by Marcia Oddi on August 30, 2007 03:18 PM
Posted to Indiana Law
Environment - Bush admnistration "Rule to Expand Mountaintop Coal Mining" [Updated]
The NY Times reported Aug. 22nd, in a story that begins:
The Bush administration is set to issue a regulation on Friday that would enshrine the coal mining practice of mountaintop removal. The technique involves blasting off the tops of mountains and dumping the rubble into valleys and streams.[Updated 9/4/07] The Indianapolis Star today ran a column by Froma Harrop on Big Coal, but does not appear to have made it available online. It is available here, however, via the Seattle Times.It has been used in Appalachian coal country for 20 years under a cloud of legal and regulatory confusion.
The new rule would allow the practice to continue and expand, providing only that mine operators minimize the debris and cause the least environmental harm, although those terms are not clearly defined and to some extent merely restate existing law.
The Office of Surface Mining in the Interior Department drafted the rule, which will be subject to a 60-day comment period and could be revised, although officials indicated that it was not likely to be changed substantially.
The regulation is the culmination of six and a half years of work by the administration to make it easier for mining companies to dig more coal to meet growing energy demands and reduce dependence on foreign oil.
Posted by Marcia Oddi on August 30, 2007 02:14 PM
Posted to Environment
Ind. Decisions - More on: Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit
Oddly, this decision which the ILB reported early last evening, has apparently only been picked up by one member of the media, Channel 6 NEWS. See their story here. Some quotes:
A federal judge Wednesday declared parts of Indiana law regulating wine sales unconstitutional, saying the state wrongly prohibits most out-of-state wineries from shipping wine directly to Indiana consumers.The law also erects an unfair trade barrier against out-of-state wineries that aren't directly prohibited from making those shipments, Judge John D. Tinder ruled in U.S. District Court in Indianapolis.
The law in question prohibits wineries that have wholesale privileges in states other than Indiana from seeking a direct wine seller's permit, which Indiana requires to ship wine to customers in the state.
The judge decided that the law discriminated against out-of-state wineries, noting that many states -- including the three states that account for 90 percent of U.S. noncarbonated wine -- automatically give wholesaling privileges to their wineries.
"This restriction bars the vast majority of out-of-state wineries from obtaining a direct wine seller's permit," the ruling said.
Tinder also ruled the law discriminates against out-of-state wineries by requiring an initial, in-person transaction between a customer and a winery before the winery can ship to the customer.
"This requirement erects a trade barrier to most out-of-state wineries by requiring them to establish a physical presence in Indiana or limit their potential market to those customers willing to (pay) the expense of travel to their states," the ruling said.
The judge said Indiana's law violated the commerce clause of the U.S. Constitution, and his order stops the state from enforcing the rules he declared to be unconstitutional. * * *
David Heath, Chairman of the Indiana Alcohol and Tobacco commission said the ruling also affects Hoosier wineries.
"They'll still have to verify that the person is 21 years of age and follow that through the entire process, even up to and including delivery of the wine, but it doesn't require that they meet face-to-face to verify it," Heath said.
Posted by Marcia Oddi on August 30, 2007 01:58 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Gov't. - More on "Storm Water Board resigns: Council criticized no-bid contract"
Updating the most recent ILB entry on this topic, from Aug. 18th, a story by Dick Kaukas in today's Louisville Courier Journal is headed "Council seeks to void 2 contracts: New Albany boards failed to obtain bids." The story begins:
The New Albany City Council asked Floyd Circuit Court yesterday to void two contracts, one awarded by the Sewer Board and the other by the Stormwater Board, because neither included competitive bidding.Both city panels "were required to solicit competitive bids for the work and services" described in the agreements, said the complaint filed by Jerry Ulrich, the council's lawyer.
Because the contracts are for public works projects and no bids were sought, the lawsuit said, the agreements are "voidable and/or void" under Indiana law. Earlier this month, the council voted 5-3 to authorize the litigation.
Posted by Marcia Oddi on August 30, 2007 01:51 PM
Posted to Indiana Government
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Roswell Properties, LLC, LTD v. Earl C. Mullins, Jr., Firstar Bank, N.A., et al. (NFP) - "Thus, as a matter of law, US Bank is entitled to foreclosure on its 2001 mortgage and the trial court properly granted summary judgment in its favor and denied summary judgment on Roswell’s foreclosure complaint. Affirmed."
NFP criminal opinions today (6):
Benjamin Wade Cochran v. State of Indiana (NFP)
Michael Alexander v. State of Indiana (NFP)
State of Indiana v. Douglas E. Shipman (NFP)
Terry Cooley v. State of Indiana (NFP)
Charles R. Thompson v. State of Indiana (NFP)
James M. Wright v. State of Indiana (NFP)
Posted by Marcia Oddi on August 30, 2007 01:43 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - 7th Circuit rules in Indiana medical malpractice case
In Lasley v. Moss (SD Ind., Judge McKinney), an 8-page opinion, Judge Bauer writes:
Angelica Lasley sued Dr. John A. Moss in Indiana state court for medical malpractice, claiming that Dr. Moss failed to reasonably disclose to her the available options for treating her thyroid condition and the risks associated with surgery. William G. Lasley, Angelica’s husband, sued Dr. Moss for loss of consortium. Following removal to federal court on diversity grounds, the case was submitted to a jury, which found in favor of Mrs. Lasley on her medical malpractice claim and in favor of Dr. Moss on Mr. Lasley’s consortium claim. Dr. Moss now appeals, challenging the district court’s rejection of a jury instruction that he had tendered to the court. He also challenges the district court’s decision to grant the Lasleys’ motion for judgment as a matter of law on Dr. Moss’ defense that Mrs. Lasley failed to mitigate her damages. We affirm.
Posted by Marcia Oddi on August 30, 2007 01:38 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Law - Indiana Law Journal Supplement announced
IU Law-Bloomington's law review is going to expand, according to this 10-page article by Doulas A. Hass posted on SSRN. The abstract:
While blogs or Wikis undoubtedly have an important, expressive place in legal discourse, these short-form outlets leave the demand for timely, interactive legal discourse unfulfilled. Printed law journals and online repositories like SSRN or Berkeley Electronic Press cannot address these needs either. This article introduces Indiana Law Journal's expanded publication, the Indiana Law Journal Supplement, and explains how the new online, short-form journal meets the Journal's original purpose and fills an important void left by other outlets.The announcement, however, may be somewhat premature, as noted in this entry in the Legal History Blog.The Indiana Law Journal has consistently been one of the few top-tier law journals to both encourage and publish significant student works. Ideas that advance the practice of law are no less vital simply because students - at Indiana or elsewhere - developed them. The article describes how the Supplement enables the Journal to amplify the focus on ideas, rather than who holds them. By offering both the interactivity and timeliness of blogs and the established path of legal scholarship provided by traditional law reviews, the Journal can further the purposes it first outlined in 1925.
Posted by Marcia Oddi on August 30, 2007 08:40 AM
Posted to Indiana Law
Ind. Decisions - Yet more on 7th Circuit decision re identity theft
This ILB entry from Aug. 25th, and its links, point to serious shortcomings in the Indiana laws said to protect Hoosiers against identity theft.
The one bright spot, the ILB wrote, is that "During this year's 2007 session, one of the deficiencies was addressed, the freezing of credit reports." Today with much fan-fare, the measure, which takes effect Sept. 1st, is announced. See this story by Mike Smith of the AP in the Indianapolis Star; this story by Lesley Stedman Weidenbener in the Louisville Courier Journal, and this story by Bryan Corbin in the Evansville Courier & Press. Corbin does mention: "Officials are touting the law, but acknowledge it is more effective as a preventive measure than as a remedy for the crime," which is the concern the ILB has raised since the initial law was enacted in 2006.
As to how the credit freeze provisions will operate, the LCJ story explains:
Advocates of the law say it will prevent thieves who have obtained a Social Security number or other personal data from using the information to open new lines of credit and sticking unsuspecting consumers with the bills."Consumers are going to be in control," Attorney General Steve Carter said yesterday. "You don't want to wait to become a victim of identify theft. We're all subject to the risks that are out there, and this is one way to reduce that risk significantly."
But at least for the next 16 months, taking advantage of the freeze will also make it somewhat less convenient for consumers to obtain credit themselves. That's because until Jan. 1, 2009, consumers can invoke or release the credit freeze only by writing letters to the credit agencies. After receiving the letters, the agencies then have five days to put the freeze in place or three days to lift it.
Starting in 2009, however, the law requires that credit bureaus have a system in place that will allow consumers to use the telephone or Internet to make changes in 15 minutes.
For now, Carter said, it's worth the nuisance of planning ahead.
Posted by Marcia Oddi on August 30, 2007 08:18 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - Another case today of missing court records
Two missing records stories in one today!
Rebecca S. Green of the Fort Wayne Journal Gazette reports that:
The mother of a convicted murderer sits in a jail cell because she refused a judge’s order to return the official court record of her son’s trial – which she obtained from the defense attorney preparing her son’s appeal.Adela Favela, 58, of the 2800 block of Westbrook Drive, likely will remain in the Allen County Jail until a hearing Friday, when Allen Superior Judge Fran Gull will again ask what happened to the official transcript and evidence from the September murder trial of her son, Daniel Favela.
The official court record for this case has 13 volumes. It includes transcripts of all the testimony given at the trial, as well as transcripts of pretrial hearings and the evidence produced during the four-day jury trial, Gull said.
The experience is new for Gull, who rarely uses jail as a punishment for being found in contempt of court.
“It’s not a power that we exercise often,” she said. “Usually folks comply with court orders.”
The experience is also new for the Allen County Clerk’s Office and the Indiana Court of Appeals – where Daniel Favela’s case would be reviewed.
“In the court’s living memory, nothing like this has ever happened before,” said Joe Merrick, staff attorney for the state appellate court. * * *
According to remaining court records, which include the clerk’s office file of motions and other filings, Gull issued her first order to Adela Favela to return the trial records Aug. 7.
[Defense attorney Robert] Gevers had checked out the file, given it to Adela Favela and, “(she) has refused their requests to return all volumes either to the office or the clerk’s office,” according to court records.
Tuesday morning, Gull ordered the Allen County sheriff to hand-deliver a second copy of the order demanding the return of the files; and if Adela Favela refused to comply, Gull ordered her arrest, according to court records.
Adela Favela was booked into the jail at 11:30 a.m. Tuesday. * * *
Indiana appellate court procedure allows both sides in a case to have absolute, unfettered access to the records related to the trial.
The appellate court reviews issues of law only from the official court records and then answers specific legal questions raised in the initial trial or by the trial court’s decision. The appellate court cannot review any new evidence.
These requirements make the transcripts and evidence critical.
If Adela Favela does not return the massive court file – or it has become lost or damaged – the local court, prosecution and defense can re-create the record using copies of the exhibits and re-transcribing the audio recordings from the hearings, Merrick said.
The re-created record would be considered with the same importance as the original, he said. However, Gull said actual trial evidence cannot be redone or re-created.
So now, everybody waits for Adela Favela to hand over the file.
Posted by Marcia Oddi on August 30, 2007 08:09 AM
Posted to Indiana Courts
Ind. Courts - Files on 191 defendants, hidden in the 1990s, discovered in 2005, announced this week
A pretty incredible story today, reported by Bill McCleery of the Indianapolis Star. Some quotes:
The Johnson County prosecutor was forced Wednesday to dismiss misdemeanor criminal charges against 191 defendants in Greenwood City Court because their files were hidden away for years and too much time has elapsed to prosecute the cases.More from the story:
The files, submitted from 1997 to 1999, were discovered in a box pushed under a former employee's desk."By the time the court found these cases, they were, in effect, legally dead," said Prosecutor Lance Hamner. "Prosecution was barred by Indiana (law), which requires that criminal charges be concluded within a year unless the delay was caused by the defendant, which did not happen here."
The charges include such offenses as minors in possession of alcohol, public intoxication and driving while suspended, Hamner said. The charges were dismissed Tuesday.
"None of them involve victims," Hamner said, adding that cases involving victims go to the county courts.
Neither Hamner nor Greenwood City Court Judge Lewis Gregory identified the person suspected of hiding the records, saying they were following the Greenwood city attorney's recommendation.
However, both said the employee was fired in 2005 and later convicted of theft.
When the files disappeared, Paula S. Borges, 43, Franklin, was court manager. She was fired in late 2005 and later convicted of stealing court funds.
Borges said Wednesday night that she knew nothing about any hidden or misplaced court files and declined further comment.
Greenwood City Court workers discovered the files in late 2005 in a brown cardboard box taped shut and slid far underneath the fired employee's desk, Gregory said.
The charge dismissals are being announced now, Gregory said, because the files were discovered at a time when officials were giving more priority to investigating Borges and the missing funds.Further, he said, officials decided when the files were found they needed to contact each defendant and schedule one court date for all 191 defendants -- a step that allowed the cases, he said, to be more easily resolved. But since the prosecutor has dismissed the cases, defendants do not need to attend a hearing.
"It had to be first put into the court's computer system so the dismissal could be properly handled," Gregory said.
"It's been a lengthy process of cleaning up." * * *
Officials have no reason to suspect the employee knew the defendants or was hiding the files for defendants' benefit, Hamner said. More likely, he said, hiding the files was simply a way to avoid processing them and reduce the employee's workload.
Posted by Marcia Oddi on August 30, 2007 08:01 AM
Posted to Indiana Courts
Wednesday, August 29, 2007
Ind. Courts - More on: Indiana Supreme Court only Supreme Court in Nation with No Women Members!
Indiana has the only top court in the nation with no women members, and many in the State of Idaho are doing their best to keep Idaho from becoming the second such state. See this ILB entry from Tuesday.
Currently the only woman justice on the Iowa Supreme Court is retiring and nominees are being selected to fill her spot.
Today the Twin Falls Iowa Times-News reports that two of the four nominees to be submitted to the Governor are women:
BOISE, Idaho - The Associated Press has learned that the Idaho Judicial Council has nominated 4th District Judges Joel Horton and Darla Williamson, 3rd District Judge Juneal Kerrick and Coeur d'Alene attorney Kenneth Howard for the Idaho Supreme Court.Two sources involved in the nomination process who requested anonymity confirmed the names Wednesday morning.
Now Gov. C.L. "Butch" Otter will select one of the four nominees to fill the spot on the bench being vacated by retiring Idaho Supreme Court Justice Linda Copple-Trout.
Two of the nominees - Williamson and Kerrick - are women, easing concerns from some legal experts that Idaho could become one of only two states without a woman on its highest courts. The other state is Indiana. [emphasis added]
Posted by Marcia Oddi on August 29, 2007 07:09 PM
Posted to Indiana Courts
Ind. Courts - US Attorney Susan Brooks moving on to Ivy Tech
This Indianapolis Star is reporting this afternoon, in a story by Jon Murray, that:
U.S. Attorney Susan Brooks has accepted a job as the top lawyer for Ivy Tech Community College, officials confirmed this afternoon.See updated Star story here.Brooks, who oversees federal prosecutions for the Southern District of Indiana, will start Oct. 1 as Ivy Tech’s general counsel. President Bush appointed Brooks as U.S. attorney in 2001, and legal experts say it’s unlikely he will appoint a successor before his second term ends in January 2009.
Brooks said the job seemed to be the opportunity of a lifetime when Ivy Tech officials approached her.
“I believe in their mission,” she said. “They’re reaching all types of people. They are working to make sure people are trained for the kind of jobs they need.”
Brooks, 47, a Republican, previously was a deputy mayor under Indianapolis Mayor Stephen Goldsmith.
Posted by Marcia Oddi on August 29, 2007 07:01 PM
Posted to Indiana Courts
Ind. Decisions - Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit
An opinion has been issued today by Judge John D. Tinder in the case of Baude v. Heath - access the 71-page decision here. The ruling contains an excellent introductory section:
This litigation challenges the constitutionality of Indiana laws that allegedly restrict the ability of wineries, and out-of-state wineries in particular, to sell their product directly to Indiana residents, primarily by orders placed by telephone or over the Internet.Here is the order.The Plaintiffs are a Michigan winery, Chateau Grand Traverse, Ltd. (“Grand Traverse”), and five individuals, Patrick L. Baude, Larry J. Buckel, Kitty Buckel, J. Alan Webber, and Jan Webber (collectively the “Consumer Plaintiffs), who may be characterized as wine connoisseurs. They have filed a civil rights action, pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment that Indiana’s regulatory scheme violates the Commerce Clause of the Constitution. They also are seeking a court order requiring the State of Indiana (“State”) to permit out-of-state wineries to sell and deliver their product directly to Indiana residents.
This is not the first time that a group of wine connoisseurs has challenged Indiana’s authority to regulate direct shipments of wine. Several years ago, another group of wine consumers represented by two of the same attorneys in this action, brought a similar suit that was ultimately unsuccessful. The Seventh Circuit ruled that Indiana could prohibit the direct shipment of wines to Indiana residents. Bridenbaugh v. Freeman-Wilson, 227 F.3d 848, 854 (7th Cir. 2000). Since then, the legal landscape has changed. In 2005, the Supreme Court held that a state could not discriminate against out-of-state-wineries by prohibiting them from shipping wine directly to consumers if the state’s laws allow in-state wineries to do so. Granholm v. Heald, 544 U.S. 460, 493 (2005). The Court ruled that the Twenty-first Amendment, which repealed Prohibition but allowed states to regulate the sale and distribution of alcohol, did not override the requirements of the Commerce Clause. Id. (This is the constitutional provision that gives Congress the authority to regulate interstate commerce and by implication restricts states from interfering in the interstate flow of goods, an implication often referred to as the Dormant Commerce Clause.)
In keeping with Granholm, the regulatory setting changed, also. Indiana revised its laws to allow wineries to sell their product on their premises, at a non-profit farmer’s market, at three alternative locations, or directly to non-Indiana customers. Wineries could also obtain a permit allowing them to ship wine directly to Indiana customers with whom there had been at least one face-to-face transaction, allowing the winery to verify the customer’s age.
Grand Traverse contends the rules governing this scheme effectively prevent it, and other out-of-state wineries, from competing in the direct sale market in Indiana. The Consumer Plaintiffs contend they are barred from obtaining many wines they desire because of the impracticality of traveling to out-of-state wineries to purchase these wines or to complete the “face-to-face” transaction needed to place further sales over the Internet, by telephone, or by mail.
Additionally, the Plaintiffs contend that Indiana’s regulations effectively discriminate against out-of-state wineries because Indiana prohibits a winery from obtaining a direct sales permit if it holds a wholesale license. They note that many states, including the heavy wine-producing states of California, Oregon, and Washington, provide wholesale privileges to all wineries as part of their basic licensing procedures. These wineries are therefore excluded from obtaining a direct wine shipping permit regardless of whether they wholesale any of their wine, in Indiana or elsewhere.
The Defendant, who is Indiana Alcohol and Tobacco Commission Chairman David L. Heath in name but the State in fact, and the Intervenor-Defendant, the Wine and Spirits Wholesalers of Indiana (“Wholesalers”), contend the laws do not discriminate against out-of-state wineries. They assert that the laws are needed to prevent the sale of alcohol to minors and that the State’s interest in protecting its youth outweighs any incidental burdens on interstate commerce.
The Wholesalers, joined by the State in part, also argue that the litigation is not yet ripe, that Plaintiffs have not shown that they have any interests at stake, and that the laws are needed to protect Indiana’s three-tier system in which producers must sell their liquor to wholesalers who in turn must sell to retailers before the alcohol reaches consumers.
Similar post-Granholm litigation contesting state laws that limit the ability of outof- state wineries to sell their goods directly has occurred in Delaware, Kentucky, Maine, evolution of the Internet, and the challenges it presents to traditional three-tier regulatory structures such as Indiana’s.
Indiana’s current laws are not unique in their general outline. First they protect wholesalers from any substantial encroachment upon their hold over the wholesale wine market in Indiana. Second, they allow Indiana’s still relatively small wine industry, many with sales too inconsequential for a wholesaler’s profitable consideration, to sell directly to the public. This much is plain – from the wording of statutes and the record of this case.
The issue before the court is whether this regulatory scheme clearly discriminates against out-of-state wineries, and if so, whether the State has shown it has a legitimate purpose for this discrimination and that it cannot achieve its ends through less discriminatory means. If the statutes are not clearly discriminatory, then Plaintiffs must show that the burden on interstate commerce is clearly excessive.
All three parties are seeking judgment as a matter of law. Before the court are Plaintiffs’ Second Motion for Summary Judgment (Doc. No. 89), State’s Second Cross Motion for Summary Judgment (Doc. No. 102), and the Wholesalers’ Cross-Motion for Summary Judgment (Doc. No. 106). Additionally, Plaintiffs contend that the Wholesalers disregarded the court’s scheduling deadlines for argument. Plaintiffs have filed a Motion to Strike Wholesalers’ Unauthorized Supplemental Brief Denominated a “Notice of Supplemental Authority” (Doc. No. 146).
This court has jurisdiction over this litigation pursuant to 28 U.S.C. § 1331, and the parties have briefed the pending motions. Also participating, as amicus curiae on the issue of remedy, is the Indiana Winegrowers Guild (“Winegrowers”), an organization representing Indiana wineries.
The court rules as follows. * * *
For the reasons discussed above, the court finds the wholesale prohibition, Ind. Code § 7.1-3-26-7(a)(6), to be unconstitutional insofar as it bars wineries that possess wholesale privileges in states other than Indiana from seeking a Direct Wine Seller’s permit. The court also finds the requirement of an initial face-to-face transaction between a winery and customer prior to direct shipment, as described in Ind. Code §§ 7.1-3-26-6(4), 7.1-3-26-9(1)(A), to be unconstitutional. These two conditions constitute a form of economic protectionism and violate the Commerce Clause of the Constitution.
The court does not find Indiana’s general prohibition of direct shipping, Ind. Code Ind. Code § 7.1-5-11-1.5, to be unconstitutional except with respect to the two specific conditions in the statutory provisions cited above. Nor does the court find the statute allowing an Indiana farm winery to sell its product onsite and at certain other locations, Ind. Code § 7.1-3-12-5, to be unconstitutional. * * *
Entry of Judgment will be by separate order.
For background, there are a number of ILB entries on "wine shipping," including this one from Nov. 17, 2005 ("Wineries sue over in-state shipments in Indiana, related matters"), and this one from Feb. 2, 2007 ("Wineries sue over in-state shipments in Indiana, related matters").
Posted by Marcia Oddi on August 29, 2007 06:02 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Decisions - Note 7th Circuit sanctions in Illinois case
Thanks to Robert Loblaw of the blog Decision of the Day for picking up on Judge Easterbrook's opinion today in the case out of the ND Illinois, Wade v. Soo Line RR Corp.
In an entry titled "More Trouble for 7th Circuit Lawyers," Lobloaw writes:
Discovery sanctions are pretty common these days. Questions about who should pay sanctions - attorney or client - are usually dealt with in private rather than in appellate briefs. And for good reason. In this Seventh Circuit appeal, the plaintiff’s attorneys argued that their client should be personally liable for sanctions relating to withheld documents. Bad idea. The Court finds this to be a clear conflict of interest, and Chief Judge Easterbrook’s opinion suggests that the attorneys are going to be in for a serious spanking from the Court, and perhaps from the state bar as well.Indeed, Easterbrook's opinion concludes:
Arguments designed to protect the attorney at the expense of the client are precisely the sort of acts that invite discipline. An attempt to defraud the court (and the defendant) by withholding vital documents has been compounded by an effort to make the client bear the consequences.The judgment of the district court is affirmed except for the amount of fees and costs awarded to Soo Line; that portion of the judgment is vacated and remanded for recalculation. Wade’s attorneys, Steven P. Garmisa, George T. Brugess, Richard A. Haydu, Frank E. Van Bree, and Robert A. Montgomery, are ordered to show cause by September 19, 2007 why they should not be disciplined by this court pursuant to Fed. R. App. P. 46(b)–(c) for conduct unbecoming members of the bar. We will forward a copy of this opinion to the Northern District of Illinois and the Attorney Registration and Disciplinary Commission of Illinois for such consideration as they deem appropriate.
Posted by Marcia Oddi on August 29, 2007 02:28 PM
Posted to Indiana Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)
For publication opinions today (0):
In Michael L. James v. State of Indiana , a 6-page opinion, Judge Robb writes:
Case Summary and Issue. Following a jury trial at which he was found guilty of possession of methamphetamine, a Class C felony, Michael James appeals the trial court’s denial of his motion to correct error. Specifically, he raises the issue of whether the trial court properly refused to give him credit for the time he spent incarcerated and on house arrest while awaiting trial on two charges, which were eventually dismissed, for dealing in methamphetamine and possession of methamphetamine. We conclude the trial court did not abuse its discretion in refusing to give James credit for the time he spent on pre-trial house arrest; however, the trial court did commit error in denying James credit for the time he spent in pre-trial confinement. We therefore affirm in part and reverse in part.NFP civil opinions today (1):
Larry W. Haynes v. Lisa M. Haynes (NFP) - "Larry and Lisa Haynes’s marriage was dissolved in Madison Superior Court. Larry appeals and raises three issues; however, we find the following issues to be dispositive: whether the trial court abused its discretion when it found that Larry’s alcohol use constituted dissipation of marital assets, but that Lisa did not dissipate marital assets when she transferred a three-quarters interest in the marital residence to her children. Concluding that the trial court’s finding that Larry dissipated marital assets is not supported by the evidence, we affirm in part, reverse in part, and remand this case to the trial court with instructions to recalculate its division of the marital estate. * * *
"The trial court’s finding that Larry dissipated marital assets is not supported by the evidence. Because the trial court relied on this finding at least in part in issuing its judgment, we remand this case to the trial court with instructions to recalculate its division of the marital estate."
NFP criminal opinions today (4):
Arvin Cruite v. State of Indiana (NFP)
William Mays v. State of Indiana (NFP)
August Trotter v. State of Indiana (NFP)
Lester T. Smith v. State of Indiana (NFP)
Posted by Marcia Oddi on August 29, 2007 01:05 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court issues one
In Spenser A. Krempetz v. State of Indiana, a 15-page opinion, Judge Rucker writes:
Spenser A. Krempetz appeals his sentence of life imprisonment without parole (LWOP) after pleading guilty to murder, a felony, conspiracy to commit murder, a Class A felony, and criminal confinement while armed with a deadly weapon, a Class B felony. Krempetz presents three issues for review which he phrases as follows: 1. Was there sufficient evidence to establish the two aggravators relied upon by the trial court to support the sentence of life without parole? 2. In imposing the sentence of life without parole on the conviction for murder and enhancing the sentences for the other two felonies, did the trial court properly weigh the aggravating and mitigating circumstances? 3. Was the sentence inappropriate under Indiana Appellate Rule 7(B)? We affirm.
Posted by Marcia Oddi on August 29, 2007 01:00 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Still more on: "'Honk for peace' case tests limits on free speech"
"High court weighs Hoosier free-speech case: Ex-Bloomington teacher says school fired her for comments on Iraq war," is the headline to this story today by Fort Wayne Journal Gazette Washington editor, Sylvia A. Smith. Some quotes:
WASHINGTON – The Supreme Court will decide whether a Bloomington school system went overboard in 2003 when it fired an elementary teacher after comments she made to her class on the eve of the invasion of Iraq or whether her contract wasn’t renewed because she was a poor teacher.Earlier ILB entries on this case may be found here (the Jan. 24, 2007) 7th Circuit opinion, here (May 14, 2007 LA Times story), and here (June 24th report).Deborah Mayer told her students she would “honk for peace” when driving by war protests. Some parents complained, and the Monroe County Community School Corp. did not renew her teaching contract.
Mayer, who now teaches seventh grade in Florida, sued. She lost her case, and the appeals court sided with the school. Mayer asked the Supreme Court to take her case on free-speech grounds.
The Bloomington school district said the court should uphold the appeals court’s ruling that schools have the right to tell teachers what to teach and that “job-related speech by an elementary school teacher is not protected by the First Amendment.” * * *
The Supreme Court will either agree to hear the case – ultimately choosing between Mayer and the Bloomington school system – or refuse to consider it, which would be a victory for the school board. The justices have not yet said whether they will accept or reject the case.
“The school system does not regulate teachers’ speech as much as it hires that speech,” the appeals court in Chicago said when it ruled against Mayer in January.
“A teacher hired to lead a social-studies class can’t use it as a platform for a revisionist perspective that Benedict Arnold wasn’t really a traitor, when the approved program calls him one; a high-school teacher hired to explicate ‘Moby-Dick’ in a literature class can’t use ‘Cry, The Beloved Country’ instead, even if Paton’s book better suits the instructor’s style and point of view; a math teacher can’t decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz,” the appeals court wrote.
Mayer’s attorney, Michael Schultz, said she did not subvert the school board’s curriculum because the class was about current events, and “opinions were the curriculum.” He said Mayer appropriately responded when a student asked whether she would ever march in a peace protest, as was described in the “Time for Kids” article the class read.
The judges said Mayer was told she could teach the controversy about the war “as long as she kept her opinions to herself. The Constitution does not entitle teachers to present personal views to captive audiences against the instruction of elected officials.”
In papers Mayer’s attorney filed with the Supreme Court, this description of the situation was called “blatantly false.” Mayer “was never told to keep her opinions to herself until after her class discussed a ‘Time for Kids’ article” about the upcoming war, Schultz told the justices. He said the appeals court implied that Mayer was disobedient when she was not. He said she was following the curriculum to teach current events.
He said the Supreme Court should determine whether teachers have any free-speech protection under the First Amendment.
The school system argued that the justices should take a pass on the case because “Mayer was a failing teacher headed for termination who sought to avoid this outcome by injecting her personal opinions regarding the Iraq war into her elementary school classroom” and then hiding behind the First Amendment.
Posted by Marcia Oddi on August 29, 2007 10:38 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - "Appeal, sentence reduction denied in Grayson murder case"
Reporting on yesterday's COA's decision in the case of Robert Schutz v. State of Indiana (NFP), Sophia Voravong of the Lafayette Journal & Courier writes today:
In a nine-page opinion issued Tuesday, a panel of the Indiana Court of Appeals rejected Robert J. Schutz's claim that a trial court committed double jeopardy by sentencing him to murder and criminal deviate conduct based on the same evidence.The panel also denied Schutz's argument that his sentence be reduced from 110 years to 92 years and that the sentence was inappropriate, based on the homeless man's character and the crime itself.
The 29-year-old -- who was homeless -- pleaded guilty but mentally ill in February 2006 to murder and an elevated Class A felony charge of criminal deviate conduct. * * *
"The State recognized that Schutz received a traumatic brain injury when he was seventeen. ..." Judge James Kirsch wrote in Tuesday's opinion.
"However, the State recognized that this brain injury did not diminish Schutz's ability to understand his actions."
Posted by Marcia Oddi on August 29, 2007 10:31 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - More on: Muncie attorney fails to appear for plea hearing
Updating this ILB entry from Aug. 25th, the Muncie Star-Press reports today:
WINCHESTER -- Muncie attorney Donald McClellan pleaded guilty Tuesday to possession of cocaine and public intoxication, more than a year after he was found urinating on a highway in July 2006.Under a proposed plea agreement, the cocaine charge against McClellan would be reduced from felony to misdemeanor status. The public intoxication charge is also a misdemeanor.
"I have done a lot of recovery," McClellan, 51, said during an interview. "It has been a great process of recovery."
Special Judge Brian Hutchison of Jay County accepted McClellan's guilty plea on Tuesday in Randolph Superior Court, but took the case under advisement until an proposed agreement McClellan has reached with the Indiana Supreme Court Disciplinary Commission is approved.
Under the terms of that agreement, McClellan said he would receive a 30-day suspension from the practice of law and serve two years of probation.
The Muncie attorney entered an outpatient program at Fairbanks Hospital, Indianapolis, for drug and alcohol abuse last year, and participated in a judges and lawyers assistance program to recover from substance abuse.
Posted by Marcia Oddi on August 29, 2007 10:26 AM
Posted to Indiana Courts
Tuesday, August 28, 2007
Environment - "BP gets break on soot limits: Indiana decision insulates firm from new federal rules" [Updated]
Michael Hawthorne of the Chicago Tribune reports today:
Indiana regulators have granted BP another exemption from environmental standards, this time relaxing rules requiring a sharp drop in harmful soot pollution from the company's Whiting oil refinery.See also a similar story, this one from the Gary Post-Tribune, quoted in the second part of this ILB entry from Aug. 25th.The decision by the Indiana Department of Environmental Management would allow BP to keep releasing the same amount of microscopic air pollution as it does today, despite changes in federal rules that would have required the refinery to cut emissions in half.
Lawyers for the city of Chicago, state of Illinois and environmental groups are asking an Indiana environmental judge to overturn the ruling. They contend that BP should be forced to prove its emissions of particulate matter, commonly known as soot, won't worsen the region's dirty air problems.
Federal environmental regulators, who must sign off before the Indiana ruling takes effect, also are questioning the decision.
[Updated 8/29/07] See also this April 29th Gary P-T story, headed "Critics doubt emission limit promise by BP," and this NWI Times story of the same date, headed "Complaint: IDEM let BP skip air rule."
Posted by Marcia Oddi on August 28, 2007 02:50 PM
Posted to Environment
Ind. Courts - "Lawmakers should look at model diversion programs"
Picking up on their news story yesterday headed "Vanderburgh County diversion program to expand," the Evansville Courier & Press editorializes today:
There was a time when people who committed crimes while under the influence of drugs or alcohol would serve their sentences and then be released — right back into the environment that led them to jail in the first place.Increasingly, however, the criminal justice system recognizes that alcohol and drug offenders need follow-up treatment and monitoring to prevent them from relapsing into the same criminal conduct.
That's the rationale behind Vanderburgh County's Day-Reporting Drug Court, founded and administered by Superior Court Judge Wayne Trockman. * * *
Initially, Vanderburgh County Prosecutor Stan Levco was opposed to placing drunken drivers in the Forensic Diversion program, but said he changed his mind after determining the program was run exceptionally well.
"I think they monitor them very well," Levco told Courier & Press staff writer Kate Braser. "I am not expecting hordes of drunk drivers will get into this. It will be a very limited number every year."
This development in the program comes as a summer study committee of the Legislature is looking at how to improve Drug Court and Forensic Diversion programs, and whether they could be expanded to more counties. There are now 25 such programs for adults and three for juveniles scattered across the state — meaning some Hoosiers can be sentenced to participate in them while others can't.
The legislative study committee heard testimony last week from the city court judge in Greenwood, Ind., Lew Gregory, who started his own Drug Court program in that fast-growing Indianapolis suburb. Gregory said his program is very similar to Trockman's.
Both programs can point to a track record of success, where records show participants are less likely to be arrested again for committing new crimes than for similar defendants who did not enter Drug Court.
Trockman cited a study showing the average costs to the criminal justice system for Drug Court offenders are about $6,700 less per person than for nonparticipants — most of the difference being in prison and probation costs.
Drug Court and Forensic Diversion is intended for a select group of people who suffer from the disease of addiction or some other mental disorder. It is not intended for violent predators and career criminals, who belong locked up in prison.
But Judge Trockman's program has demonstrated real results in taking people who are on a downward spiral and redirecting them back into law-abiding lives. This is a model program, and state lawmakers ought to look at examples like Vanderburgh County's as they consider how best to replicate drug courts elsewhere.
Posted by Marcia Oddi on August 28, 2007 02:32 PM
Posted to Indiana Courts
Ind. Decisions - More on "County shouldn't have issued hog farm permit"
Updating this ILB entry from August 18th, referencing the August 15th Court of Appeals ruling in the case of Rick Cook & Daniel Funk v. Adams County Plan Commission, Eric Mann of the Decatur Daily Democrat writes today:
What began as a local dispute over a large hog-raising operation in central Adams County could have some national repercussions. That was mentioned in passing on Monday as two lawyers from Decatur, Adam Miller and Jeremy Brown, received the approval of the county commissioners to go ahead with an appeal to the Indiana Supreme Court of a recent decision against the county plan commission by the Indiana Court of Appeals.Speaking of that 2-1 ruling, Brown said, "If we leave it as is, it's bad law for various reasons." Brown, who wrote the county's appeal that was filed with the appeals court, said the three appellate judges were split on the matter.
Brown noted that, although the appeals decision of a ruling in favor of the plan commission by Adams Circuit Court Judge Fred A. Schurger, was 2-1 against the county, the two judges who said the county was in error offered different reasonings for that belief, while the third judge said the matter should have been left up to the county to handle.
Because of no unified opinion by the two-judge majority, Miller, who is the attorney for the plan commission, and Brown said the case must be carried to the state's highest court to seek a more definitive viewpoint. However, Brown added, he is not certain the high court will accept the case. If the court does accept it, a ruling could come this year, he stated.
The matter could have national implications, said Brown and Miller, because people in other states are looking at how this case comes out, since large livestock operations and disposal of waste products are big issues in many places around the country.
The plan commission approved an arrangement last year for Jonas Hilty of rural Monroe to start an intensive livestock operation on County Rd. 100 South. However, two of his neighbors, Rick Cook and Dan Funk, filed a civil lawsuit, saying Hilty did not follow county regulations by having a "long-term lease" from someone on whose land he will spread the manure from his pigs as fertilizer. The lease was for one year with automatic renewal year by year.
In the initial case, Judge Schurger upheld the plan commission's decision to approve the Hilty request. Cook and Funk appealed and won at that level, with one appellate jurist saying that one year is "not long-term."
Miller defended the plan commission, calling Hilty's one-year lease with automatic rewewal "a good lease" and indicating that the plan commission is to be notified immediately if the lease is ever cancelled. Miller further said a supreme court ruling is important because there are many other livestock operations in Adams County with the same lease provisions as the one Hilty has.
Posted by Marcia Oddi on August 28, 2007 02:23 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - One from 7th Circuit today
In Campbell v. Miller (SD Ind., Judge Barker), a 16-page opinion, Judge Wood writes:
James Campbell was arrested in the front yard of his friend’s house by Officer Frank Miller, an Indianapolis police officer who suspected that Campbell possessed marijuana. Miller and another officer each conducted an initial patdown search, which did not reveal any sign of weapons or contraband on Campbell. They decided, however, pursuant to an Indianapolis policy that instructs officers to conduct “immediate and thorough body search[es]” of those under arrest, to take Campbell into the open backyard of his friend’s house and subject him to a strip search involving a visual inspection of Campbell’s anal cavity. The backyard area was in plain sight of those inside both Campbell’s friend’s house and some of the neighbors’ houses; indeed, Campbell’s friend watched the search take place from his kitchen window. After the search, Campbell was issued a citation and released.Campbell sued Officer Miller, other Indianapolis police officers involved in the arrest, and the City of Indianapolis (“the City”) under 42 U.S.C. § 1983, claiming that the search and the City’s policy that authorized it were unconstitutional under the Fourth Amendment. (He also raised various state law claims not relevant to this appeal.) The case was tried by a jury, which found for the defendants. Campbell appeals, arguing that no reasonable jury could have concluded that this was a reasonable search. He also challenges the instructions to the jury, as well as the district court’s decision to exclude the testimony of three of his potential witnesses. We agree with Campbell in part. While there was evidence to support the jury’s conclusion that Officer Miller had reasonable suspicion to conduct the search, we conclude that no reasonable jury could find that a strip search conducted in public for no identifiable reason conformed with the Fourth Amendment. We therefore reverse the judgment in favor of Officer Miller and remand for entry of judgment in Campbell’s favor on his Rule 50(b) motion. This will necessitate further proceedings on the appropriate remedy. We affirm the judgment for the City, because what was objectionable about the search—that is, its public nature—was not caused by the City’s policy or practice, and there was nothing in the court’s evidentiary rulings that require us to set aside that part of the verdict. * * *
We AFFIRM the judgment in favor of the City, REVERSE the judgment in favor of Officer Miller and REMAND for further proceedings consistent with this opinion.
Posted by Marcia Oddi on August 28, 2007 02:01 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)
For publication opinions today (2):
In Johnny Melvin Holland v. Raymond Rizzo, Valerie Parker, Thor Miller and Randall Gentry, an 11-page opinion, Judge Sharpnack writes:
Johnny Melvin Holland appeals the trial court’s dismissal of his complaint against the members of the Indiana Parole Board (“Parole Board”). Holland raises one issue, which we revise and restate as: I. Whether the trial court abused its discretion by treating the Parole Board’s motion as a motion to dismiss rather than a motion for summary judgment; II. Whether the trial court erred by concluding that Holland was not eligible for parole consideration under Ind. Code § 11-13-3-2; and III. Whether the trial court erred by concluding that Holland was not subjected to cruel and unusual punishment in violation of the Eighth Amendment. We affirm.In Carol Bay and David Bay v. Michael Pulliam and Cardinal Transportation, LLC, a 6-page opinion concerning binding settlement offers, Senior Judge Sullivan writes:
In the case before us, Zurich did not ascertain that the Nunn Office had authority to approve the $16,700 settlement offer, it merely assumed that to be the case. Accordingly, Zurich acted at its peril with regard to the settlement.NFP civil opinions today (2):For the reasons heretofore stated, we conclude that the acceptance of the settlement by Claims Manager Pryor was not binding upon the Bays. The Order of the Marion Superior Court is therefore reversed and the case is remanded for further proceedings.
In Ace Radiator Works, John Wood, Penny Wood and Ace Radiator, Inc. v. Dennis Runkle and Davenport Insurance Agency, Inc. (NFP) , a 6-page opinion, Judge Kirsch writes:
Ace Radiator Works, John Wood, Penny Wood, and Ace Radiator, Inc. (collectively “Ace”) appeal the trial court’s grant of summary judgment to Dennis Runkle and Davenport Insurance Agency, Inc. (collectively “Runkle”). Ace raises the following dispositive issue: whether the trial court erred in granting summary judgment on the basis that its claims against Runkle were barred by the statute of limitations. We affirm. * * *Rhonda Dammeyer v. Jerald Miller (NFP) - "In summary, we conclude, based upon Miller’s designated evidence, that questions of fact exist as to whether Miller committed attorney malpractice. Thus, the trial court erred by granting summary judgment to Miller. Because we conclude that the trial court erred by granting summary judgment to Miller based on the designated evidence, we need not address Rhonda’s argument that the trial court erred by failing to consider the application of Indiana Trial Rule 6(B)(2) to Rhonda’s belated response to Miller’s motion for summary judgment. For the foregoing reasons, we reverse the trial court’s grant of summary judgment to Miller and remand for proceedings consistent with this opinion."Assuming a duty by Runkle and a breach of that duty, we conclude that the information contained in these annual statements was sufficient to put Ace on notice that a claim existed against Runkle. When Ace began receiving annual reports from Cincinnati Life that did not conform to the original projection by Runkle, it knew of or, in the exercise of ordinary diligence, could have discovered the alleged breach by Runkle. Therefore, under either a two-year or a ten-year statute of limitations, Ace’s claims were barred because they were not raised within the limitations period. The trial court did not err when it granted summary judgment in favor of Runkle.
NFP criminal opinions today (12):
Walter Blake, Jr. v. State of Indiana (NFP)
Douglas Bullock v. State of Indiana (NFP)
Christopher Gray v. State of Indiana (NFP)
Robert Schutz v. State of Indiana (NFP)
Christopher J. Mathis v. State of Indiana (NFP)
Reginald Orrin Sistrunk v. State of Indiana (NFP)
Arnold Burton v. State of Indiana (NFP)
Howard Harris v. State of Indiana (NFP)
Donald W. Snover v. State of Indiana (NFP)
Tabrina Watts v. State of Indiana (NFP)
John R. Crump v. State of Indiana (NFP)
Todd Murray v. State of Indiana (NFP)
Posted by Marcia Oddi on August 28, 2007 12:04 PM
Posted to Ind. App.Ct. Decisions
Law - Illinois Governor sues over special sessions
Earlier this summer there were stories out of Illinois that the Governor had called their General Assembly into special session, but one house had then simply convened, adjourned, and gone home. Today Jeffrey Meitrodt of the Chicago Tribune reports:
SPRINGFIELD - Gov. Rod Blagojevich has sued House Speaker Michael Madigan for allegedly concocting a scheme to let lawmakers ignore the governor's frequent calls for special legislative sessions. In the lawsuit, Blagojevich accused Madigan of acts "aimed at eradicating the governor's constitutional and statutory powers."He is asking a judge to order Madigan to hold special sessions at times and dates of the governor's choosing.
Blagojevich did not sue Senate President Emil Jones (D-Chicago), his chief legislative ally, even though few senators have shown up for the same weekend sessions.
The lawsuit comes after months of finger-pointing between the Blagojevich and lawmakers, who are angry about being called to Springfield by the governor almost every weekend in July and August. Many accused Blagojevich of calling "do nothing" sessions as punishment for a summer-long budget impasse.
The unusual suit, filed Friday in Sangamon County, raises questions that sound like something out of a civics test: Can the executive branch ask the judicial branch to compel the legislative branch to meet?
Governors and legislative leaders have battled before over the mechanics of how the General Assembly meets, but the disputes have rarely, if ever, turned into lawsuits, said Richard Winkel, a state lawmaker for 12 years who is now an adjunct professor at the University of Illinois College of Law. Winkel said the courts could refuse to rule on the suit because it would entangle all the three branches of government in the dispute.
"This lawsuit is really a further manifestation of the ongoing power struggle between the governor and the House speaker in Springfield," said Winkel, a Republican.
He pointed out that the judicial branch can be reluctant to intervene in political disputes between the executive and legislative branches.
"There's a separation of powers issue," he said. "They may be unwilling to venture into that."
The Illinois Constitution gives the governor the power to call a special session of the state legislature. But the constitution is not explicit about whether the governor can dictate the exact date and time of the session.
In the lawsuit, which was filed by Blagojevich's general counsel William Quinlan, the governor asks for a court order compelling Madigan to convene a special session with enough members present to vote on legislation on any date or time specified by the governor. Blagojevich also asks the court to order Madigan to follow the governor's special session proclamations in the future.
Though Madigan has not challenged the governor's authority to convene a special session, he has said the governor cannot compel attendance on any specific date or time.
In the lawsuit, Blagojevich claims he does have that authority, pointing to a state law that says the governor shall file any proclamations for a special session with the secretary of state, who "shall take whatever reasonable steps necessary to notify members of the General Assembly of the date and time of the special session."
Though the law doesn't specifically say the governor may set the date and time, Blagojevich says that is exactly what the law means.
Madigan's spokesman, Steve Brown, dismissed the lawsuit as a "farce," adding, "We convened every special session the governor has called."
Typically, each chamber of the legislature has met for 30 minutes or so and has conducted no major business during the weekend sessions. Lawmakers sometimes fell short of a quorum.
Posted by Marcia Oddi on August 28, 2007 07:54 AM
Posted to General Law Related
Ind. Law - Attorney General opines that seat belt law covers occupants of truck beds
On July 10, 2007 the ILB posted an entry titled "New seat belt law may not cover occupants of truck bed." It quoted from a story by Bryan Corbin of the Evansville Courier and Press:
Still irked at law enforcement's interpretation of the new truck seat belt law, Senate Transportation Chairman Thomas Wyss hand-delivered a letter Monday to the state attorney general, asking him to render a legal opinion as to whether riding in the beds of pickups is legal.Today Corbin reports that the AG has ruled, issuing "a legal opinion that said the state's new seat belt law — which requires all vehicle occupants to wear seat belts — also applies to truck beds, too." Read the opinion itself here. More from Corbin's story:Wyss hopes Steve Carter's legal opinion will hold greater sway with police than one posted recently by the Indiana Criminal Justice Institute, which recommended police not write tickets for riders in truck beds.
The issue has been in dispute since the law took effect July 1. A legal opinion posted on the Web site of the Indiana Criminal Justice Institute, the policy and planning agency for law enforcement, specifically recommended police officers not ticket adult passengers for riding in cargo areas. The institute warned the law was not specific enough for such a ticket to stand up in court — and a legally unjustified traffic stop could lead to more serious charges being dismissed.The state attorney general's opinion reached the opposite conclusion, however. The seat belt law, House Enrolled Act 1237, intended for all pickup occupants to be belted in with a manufacturer-installed restraint.
"The law does not make an exception for occupants in the cargo bed of a pickup truck, nor does it provide an exception for occupants in the passenger area of a motor vehicle when the number of riders exceeds the number of available safety belts installed by the manufacturer," said the four-page opinion, signed by Carter and Chief Deputy Attorney General Gregory Zoeller.
While the attorney general's official opinion is nonbinding, Senate Transportation Chairman Thomas Wyss, the law's author, said he hopes police agencies will interpret it the way Carter has. Wyss was dismayed by the Criminal Justice Institute's legal opinion and requested Carter review the issue.
Posted by Marcia Oddi on August 28, 2007 06:43 AM
Posted to Indiana Law
Ind. Courts - Indiana Supreme Court only Supreme Court in Nation with No Women Members! [Updated]
Betsy Z. Russell of the The Spokesman Review - Spokane, WA (registration required), writes today in a story that begins:
BOISE – Depending on the outcome of daylong interviews today, Idaho could become one of just two states with no women on its highest state court.[Emphasis added.] The ILB has of course pointed to the absence of women justices on the Indiana Supreme Court before, but did not recognize that Indiana stands alone in this regard.Idaho Supreme Court Justice Linda Copple Trout, the only woman on the court now, is retiring at the end of the month, and the pool of 12 applicants to replace her includes just four women. When Idaho last filled a Supreme Court position earlier this summer, just two women were among the 19 applicants, and none made the short list passed on to the governor for appointment.
Gov. Butch Otter said then that he was hopeful more women would apply, but he declined to comment Monday on the upcoming appointment. "He is not going to do anything to interfere with the process," said Otter's spokesman, Jon Hanian.
Right now, Idaho is among 20 states with just one woman serving on its highest court, according to the National Center for State Courts. Only Indiana has none. Washington has four.
Peg Dougherty, vice president of Idaho Women Lawyers Inc., said her group is concerned about a lack of women and minorities throughout Idaho's judiciary. Although women make up 24 percent of Idaho's lawyers, only 1.5 percent of Idaho's female lawyers are judges. Just six of 42 state district court judges are women, and only 10 of 87 magistrate court judges.
"These numbers should be alarming not only to women lawyers in Idaho but to every Idaho citizen," Dougherty said.
Nationally, 12.9 percent of female lawyers are members of the judiciary.
[Updated 8/29/07] See also this AP story.
Posted by Marcia Oddi on August 28, 2007 06:28 AM
Posted to Indiana Courts
Monday, August 27, 2007
Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (8):
In the Matter of J.C.R. v. State of Indiana (NFP)
Patrick A. Bennett v. State of Indiana (NFP)
Michael Keller v. State of Indiana (NFP)
Jason Sowers v. State of Indiana (NFP)
Terrance Bridgewater v. State of Indiana (NFP)
Eugene Wells, Jr. v. State of Indiana (NFP)
Omond Smith v. State of Indiana (NFP)
David A. Cavinder v. State of Indiana (NFP)
Posted by Marcia Oddi on August 27, 2007 12:47 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Watch the April 23rd robing ceremony of new COA Judge Cale Bradford
Watch it via Real Video from this link - length approximately one hour. Press release here.
Posted by Marcia Oddi on August 27, 2007 10:27 AM
Posted to Indiana Law
Ind. Law - "Push to create dogfight felony - Opponents seek spectator arrests"
Strengthening the Indiana law against dogfighting, and specifically against attending dogfights, is the subject of a story today in the Evansville Courier & Press reported by Thomas Langhorne. It begins:
In the wake of the Michael Vick dogfighting case, local animal welfare and neighborhood activists are pushing to have attendance at a dogfight declared a felony in Indiana.Using an animal in a fighting contest, bringing an animal to a contest, promoting or staging such contests and buying or owning animals for fighting are Class D felonies in Indiana, punishable by six months to three years in prison and fines of up to $10,000.
But Indiana is one of 26 states in which watching an animal fight is a misdemeanor offense.
"Spectators provide much of the profit associated with dogfighting," said Marlin Beck, a nationally certified dog trainer and president of the Evansville Animal Control and Education Commission. "The money generated by admission fees and gambling helps keep this so-called 'sport' alive."
Beck said he has enlisted United Neighborhoods of Evansville and Proving Animals Are Worth Saving (PAAWS), a regional no-kill animal rescue organization, in the campaign. Leaders of those organizations confirmed they are contacting local legislators to express support for tougher penalties or enforcement.
Deputy Prosecutor Donita Farr, who handles animal-related criminal cases in Vanderburgh County, endorsed the campaign, while Vanderburgh Humane Society Executive Director Kendall Paul said it is an idea worth exploring.
"If nobody is attending these dogfights, there would be no dogfights," said Farr.
Posted by Marcia Oddi on August 27, 2007 09:57 AM
Posted to Indiana Law
Ind. Gov't. - Miller wants to be separated from Gary
"Divorcing Gary is hard to do: Residents of the Indiana city's lakefront region are divided about legal secession" is the headline to a long story today by Lolly Bowean of the Chicago Tribune.
Posted by Marcia Oddi on August 27, 2007 09:53 AM
Posted to Indiana Government
Ind. Law - "In Indiana, it's war on property tax"
The LA Times today picks up on the Indiana property tax brouhaha/scandal/mess.
P.J. Huffstutter reports, in a lengthy story datelined Indianapolis:
Indiana homeowners are waging war against a system they see as inconsistent and unfair. Many politicians agree with their view. Property tax revenue traditionally helps fund local governments, which set the amounts and help distribute the money to local entities that provide services.[More] Niki Kelly of the Fort Wayne Journal Gazette writes today about options to the property tax, in a story that begins:In Indiana, state officials said, there are about 1,000 local township assessors. These elected officials are responsible for, among other tasks, evaluating a property's worth and sending that information on to the state's 92 county assessors, who use the assessments to help set the property tax bills.
State law requires that assessments be based partly on a property's market value, how much it could be sold for. But not all assessors follow state guidelines on how local tax assessments should be conducted -- or are even formally trained to do the job in the first place, said Gov. Mitch Daniels.
"As a result, the process can be unfair," Daniels said in a recent interview. "The local assessments are in some cases outright botched." * * *
"No one understands how the government's figured out how much their property is worth, or why their tax bill is so high. Especially when a neighbor across the street, with the exact same floor plan, has a bill that's half the price," said Melyssa Donaghy of Indianapolis, an activist against property taxes.
But it's not so much the size of the bills that has sparked the public backlash, said D. Eric Schansberg, a professor of economics at Indiana University Southeast in New Albany.
"It's the unpredictability -- of what the assessments are, of what the tax bill's going to be, of how the system even works in the first place -- that gets to people," said Schansberg, who tracks economic issues in the state.
It’s easy to say get rid of property taxes. The hard part is choosing what tax to increase to replace the lost revenue.And of course if the property tax remains in any form, its inequities also must be addressed.Basically, Indiana has the big three – sales, income and property tax.
A brief by the Indiana Fiscal Policy Institute shows that property taxes account for about 31.2 percent of all state and local tax revenue – a percentage that many insiders say is out of balance.
To reduce one, another has to go up. Or does it?
Some Hoosiers are pushing officials to think outside the box.
For instance, Indiana is one of only six states that do not have a graduated income tax – instead charging one state rate to all taxpayers regardless of income. Other states have reaped hundreds of millions in new tax revenue by broadening the base and charging a state sales tax on services.
And some on the federal level – as well as angry Hoosiers – are pushing for a more radical shift to a pure consumption tax only.
“I think everything – even those options I don’t think much of – ought to be on the table,” Gov. Mitch Daniels said. “The urgent need is to reduce property taxes. We’ve talked about it for a long time and now trends and decisions made years ago are all coming together to make this an urgent matter, and in that situation I don’t think you exclude very many options out of hand.”
Posted by Marcia Oddi on August 27, 2007 09:36 AM
Posted to Indiana Law
Sunday, August 26, 2007
Ind. Courts - Vanderburgh County diversion program to expand
Kate Braser of the Evansville Courier & Press writes:
A program that for four years has provided a sentencing alternative for convicted drug addicts in Vanderburgh County will expand soon to accept impaired drivers.Vanderburgh Superior Court Judge Wayne Trockman and Forensic Diversion Program and Drug Court Director Debbie Mowbray said the county's forensic diversion team has planned for years also to address impaired driving. * * *
The Forensic Diversion Program was launched in 2003 with the goal of helping — rather than just punishing — nonviolent criminals.
The three-year program is aimed at offenders with addictive disorders or mental illness and offers treatment instead of simple lockup.
"We had asked Stan Levco from the get-go if we could have drunk drivers, because a drug is a drug is a drug," Mowbray said. "He was adamant about not having drunken driving in our program."
Vanderburgh County Prosecutor Stan Levco said he's been asked a few times a year to expand the program to impaired drivers.
"All these years, they've asked me a few times, and I've said no," he said. "Ultimately, I determined the Forensic Diversion Program is being run exceptionally well."
Levco said the program will be limited to "people who have a chance at success."
"I think they monitor them very well," he said. "I am not expecting hordes of drunk drivers will get into this. It will be a very limited number every year."
Posted by Marcia Oddi on August 26, 2007 01:08 PM
Posted to Indiana Courts
Environment - More on: Pollution and justice: Kentucky judge orders state to rehear permit for coal-fired power plant
Following up on this ILB entry from August 10th about a power plant permit in Kentucky, where I wrote: "Although the permit process is different, the facts echo many of the same themes as the NW Indiana situation. In this case, however, the pollution would originate in Kentucky and Indiana would be impacted."
Mark Wilson of the Evansville Courier & Press reported yesterday:
Kentucky environmental officials have decided to appeal a judge's decision ordering the state to redo parts of the air pollution permit for Peabody's proposed Thoroughbred power plant in Muhlenberg County.The Kentucky Environmental and Public Protection Cabinet filed the notice of appeal Thursday — putting plant opponents on notice they will appeal the decision to the Kentucky Court of Appeals. * * *
Peabody Energy has been proposing to spend $2.5 billion to build the 1,500-megawatt, coal-burning power plant since early 2001.
While state officials have filed the notice of appeal, an actual appeal with specific areas of contention has not yet been filed. Peabody, which is joining in the appeal, also offered no specific areas on which it would seek to overturn the judge's decision.
"We're evaluating the court's decision and the options that are available to us," said Beth Sutton, a Peabody spokeswoman. "We believe that the record clearly shows Thoroughbred is designed to achieve state and federal regulations to protect the environment."
However, in his order related to the Thoroughbred project, Franklin (Ky.) Circuit Court Judge Thomas Wingate ruled:
o The state should have required Peabody to look at using low-sulfur coal (instead of locally mined polluting coal) in its evaluation of the Best Available Control Technology for reducing pollution;
o The state should have looked at how the power plant's pollution, in combination with already existing pollution, would affect the environment;
o "Commercially and recreationally significant" vegetation could be affected;
o The state's analysis on how the plant might affect air quality was incomplete because it didn't include all the potential sources of pollution at the plant;
o State officials wrongly based the power plant's permit on what other utility companies had been able to do to reduce pollution instead of considering what could be done specifically with Thoroughbred.
He also noted that the "sheer magnitude" of the project would cause its environmental effects to be felt not only in Kentucky but potentially other states too.
Environmentalists argue the plant would emit tons of pollution that would harm Tri-State air quality and the region's ability to meet national standards, especially if the U.S. Environmental Protection Agency passes a stricter standard for ozone pollution.
Posted by Marcia Oddi on August 26, 2007 01:00 PM
Posted to Environment
Ind. Gov't. - More on: Open up Commission on Local Government Reform
Following up on yesterday's ILB entry quoting from the Fort Wayne Journal Gazette, Lesley Stedman Weidenbener of the Louisville Courier Journal writes today:
The open-door law requires those agencies, commissions and boards to provide notice about their meetings, post any agenda and keep minutes of the proceedings. The public must be allowed to attend any meeting during which those groups receive information, deliberate, make recommendations, establish policy, make decisions or take final action.The website for the Indiana Commission on Local Government Reform is available here.But in this case, the governor's Commission on Local Government Reform is actually an advisory group, meaning it was created not to take any official action but to make recommendations to others for action.
Advisory commissions also can be required to meet in public -- but the law says that's only if they are "created by statute, ordinance, or executive order to advise the governing body of a public agency."
In this case, Daniels didn't use an executive order to create his commission, so it's not subject to the law.
That's certainly not without precedent. Governors and other office holders sometimes bring in groups of advisers to help them tackle difficult problems. Kernan did that when he was lieutenant governor. An informal group helped him create his tax-reform proposal in 2002.
But the difference was that Kernan didn't make a showy announcement introducing his group. Daniels made a big splash, appointing Kernan and Shepard with much fanfare to lead the group as he was trying to deal with a growing property-tax problem, particularly in Indianapolis.
The moment harked back to when the late Gov. Frank O'Bannon announced what he dubbed a "blue ribbon" commission to look at ways to reduce property taxes. That group -- led by two university professors -- had all its meetings in public, even those that included difficult deliberations and political battles over the right course to take.
Ultimately, that commission became so bogged down that O'Bannon finally told the members they didn't have to agree on recommendations. Instead, he just wanted them to offer possible scenarios.
That kind of public discord might be just what Daniels, Kernan and Shepard are trying to avoid with the government-reform group. Daniels said last week that he didn't instruct the group to deliberate in private and it's not clear whether he intentionally chose not to create it by executive order to avoid the open-meetings law.
Instead, Daniels said he's confident there will be plenty of public input on the issue.
"I trust Chief Justice Shepard and Gov. Kernan, the co-chairs, both of whom are extremely sensitive to the need for transparency and openness, to find the right balance here," Daniels said last week. "As in any such context, there will be the need for at least some private deliberations."
Posted by Marcia Oddi on August 26, 2007 12:53 PM
Posted to Indiana Government
Law - Retirement planning for same-sex couples
Martha M. Hamilton, business columnist for the Washington Post, has a comprehensive article today on retirement planning for same-sex couples. A few quotes:
Unmarried couples lack the automatic legal protections that kick in when one member of a married couple dies. And they lack other advantages in planning for financial security in retirement that are taken for granted by most couples. * * *Normally workers with traditional pensions can choose at retirement whether to take the full monthly payments or a reduced amount each month in order for those benefits to continue for a spouse's lifetime, should the pension beneficiary die first.
It's a benefit considered so important for the surviving spouse that he or she has to sign a waiver for the worker receiving the pension to qualify for the higher benefits. But pensioners in same-sex couples can't leave survivor benefits to their partners.
Legal experts from the gay and lesbian community say that is just one of many ways in which financial planning for retirement is complicated for same-sex couples. Other examples were given by Susan Sommer, senior counsel for Lambda Legal; Joan M. Burda, who wrote "Estate Planning for Same-Sex Couples"; and Michael Adams, executive director of Senior Action in a Gay Environment: * * *
Long-term care. To qualify for long-term care under Medicaid, individuals need to demonstrate that they have few assets. A married couple isn't forced to sell the house to cover expenses as long as one member still lives in it. Unmarried couples don't have that protection. * * *
Health insurance. Some companies provide health insurance coverage to domestic partners, although it's treated as taxable income.
Posted by Marcia Oddi on August 26, 2007 12:42 PM
Posted to General Law Related
Saturday, August 25, 2007
Ind. Decisions - Still more on 7th Circuit decision re identity theft
The 7th Circuit issued an opinion Thursday in Pisciotta et al v. Old National Bancorp (see ILB entry here). Yesterday the ILB posted a story by Wired Magazine on the opinion. From the story:
The plaintiffs did not allege direct financial loss and did not claim they had been the victim of identity theft. They alleged they suffered "substantial potential economic damages" and demanded compensation for emotional harm out of fear they would suffer economic damages by those who stole their information.The ILB posted on March 11, 2006 a lengthy entry criticizing HEA 1101 (now PL 125), the identity theft law. Expressing "some thoughts", the ILB wrote near the end of the entry:The bank's customers also demanded a "monitoring procedure to insure prompt notice to plaintiffs of any attempt to use their confidential personal information stolen from the defendants."
The appeals court also ruled that the law in Indiana, where the bank is located, did not protect the customers either.
"Had the Indiana Legislature intended that a cause of action should be available against a database owner for failing to protect adequately personal information, we believe that it would have made some more definite statement of that intent," the court wrote.
The court added that the plaintiffs "have not come forward with a single case or statute, from any jurisdiction, authorizing the kind of action they now ask this federal court, sitting in diversity, to recognize as a valid theory of recovery under Indiana law."
HEA 1101's new IC 24-4.9 offers no remedies to those consumers whose security has been breached, other than requiring that they be notified of the breach. What of the remedies that would pause or help repair the damage the breach has caused -- the remedies of security freezes, credit monitoring and credit repair. ...See also this entry from July 27, 2006.Short of that, the biggest question here is: Is the new IC 24-4.9 now to be the exclusive remedy available to Indiana residents for these security breaches resulting in disclosure of their information? Or can consumers whose records have been released bring suit for negligence and ask for damages, costs, security freezes, and credit monitoring or credit repair? Will the companies whose negligence resulted in the disclosure be able to claim compliance with the minimal notification requirements of the new law as a defense?
During this year's 2007 session, one of the deficiencies was addressed, the freezing of credit reports. See this April 22, 2007 ILB entry. For background on this issue, see this Feb. 10, 2007 ILB entry.
Now for more on Thursday's 7th Circuit opinion. Computerworld has a story today headlined "Are data breach lawsuits just tilting at windmills? Personal data stolen? Go ahead, sue -- see what it gets you." Read the whole story. Here are some quotes:
For all the concern expressed about companies' exposure to lawsuits in the wake of of data breaches, a decision earlier this week by a federal appeals court shows yet again what a challenge it can be for consumers to actually win redress when one occurs.The story goes on to look at the status of other states. It concludes:The United States Court of Appeals for the Seventh Circuit on Thursday rejected a proposed class-action lawsuit against Evansville, Ind.-based Old National Bancorp (ONB) over a 2005 data-breach incident.
In dismissing the proposed suit, the judges argued that damages were unavailable to the plaintiffs in this case because they had failed to show how they had been monetarily affected by the breach at the bank. * * *
The complaint charged ONB with failing to properly secure personal data that it had solicited from customers through its Web site. The plaintiffs in the case sought compensation from ONB for past and future credit monitoring services that they said they needed to obtain in response to the compromise.
The three judges of the United States Court of Appeals for the Seventh Circuit who heard the case ruled that mere "allegations of increased risk of future identity theft" were insufficient grounds for claiming damages from ONB. "The plaintiffs have not suffered a harm that the law is prepared to remedy," the judges wrote in their decision.
The judges pointed to Indiana's existing data breach disclosure law and said that that statute only required companies to inform individuals of compromises involving personal data. The law does not require "the database owner to take any other affirmative act in the wake of a breach," the judges noted. Its only in situations where a breached entity fails to notify affected individuals that the law can be enforced, and that too only by Indiana's Attorney General, the judges noted.
The law does not provide for private right of action by consumers and neither does it allow them to ask for compensation in breach situations, they noted.
"Had the Indiana legislature intended that a cause of action should be available against a database owner for failing to protect adequately personal information, we believe that it would have made some more definite statement of that intent," the judges said.
Legal experts have said such cases highlight the need for an overhaul of state data breach laws. Indeed, some states have already done just that or are working towards that goal. Minnesota, for instance, recently passed a new Plastic Card Security Act that holds breached entities responsible for reimbursing banks and credit unions the costs associated with notifying and reissuing cards after a breach.The law also allows private citizens to bring lawsuits against breached companies. California passed a similar law recently, though it does not provide for private right of action.
"The current case is in line with recent and past decisions regarding potential future economic harm" resulting from data breaches, said Christopher Pierson, partner at Lewis and Roca LLP a Phoenix-based law firm. "The courts have pretty much decided that if you don't have a cognizable case of current harm you are not going to be able to receive damages," Pierson noted.
"Lawsuits brought under traditional negligence norms will not be successful. Courts are just not going to award damages and let these cause of action go forward unless there is actual harm," from a data breach.
Even in those cases, actually proving that the harm resulted from a specific data breach can be incredibly hard especially given the high number of data breaches being disclosed these days, Pierson said. "It's going to be difficult for an individual to prove that it was actually company A's breach as opposed to company B's breach that caused them harm."
Posted by Marcia Oddi on August 25, 2007 11:41 AM
Posted to Ind. (7th Cir.) Decisions
Environment - Study shows how BP could likely could expand its refinery without the added pollution; air variance challenged
Crain's Chicago Business posted some interesting news August 23rd, in a story by Greg Hinz. Some quotes:
Bowing to a storm of political pressure — and to an unreported study suggesting that the company was needlessly soiling its reputation — BP America Thursday backed off plans to sharply increase the pollution it dumps into Lake Michigan.On another tack, BP's application for an air variance is under attack, according to this story today by Gitte Laasby in the Gary Post-Tribune:The U.S. subsidiary of the London-based petroleum giant announced that it will not make use of higher discharge limits for ammonia and suspended solids that have been approved by authorities in Indiana as part of a proposed $3.8-billion expansion of its Whiting refinery.
The company said it will work to develop an expansion that will avoid boosting pollution but, if need be, will cancel the project. * * *
The announcement also came as word began to spread of a study that BP likely could expand its refinery without the added pollution if it spent “less than $30 (million) to $40 million” on technical tweaks.
The study, a copy of which was made available to Crain’s, was prepared for the Chicago Department of Environment by Tetra Tech Inc., a prominent engineering firm. * * *
Howard Learner, executive director of the Environmental Law and Policy Center, termed BP’s announcement “absolutely the right step in the right direction.”
Mr. Learner said he believes BP had heard of the Tetra Tech study and similar conclusions by other technical experts that design changes and other revisions could be used to cut pollution.
Proceeding with the previous plan “would have made them a laughingstock,” Mr. Learner said. “This announcement was a recognition that there are technical things that can be done” to avoid pollution.
The Tetra Tech study concluded that Whiting could gain by installing one of several types of available anti-pollution equipment that have been used elsewhere to “effectively remove (increased) ammonia nitrogen and (suspended solids) from wastewater.”
Based on efforts at other refineries, such work at Whiting “is estimated to cost less than $30 (million) to $40 million,” a draft version of the firm’s report to the city states. “Actual cost is expected to be less than this.”
BP spokesmen failed to return calls seeking comment on whether it was aware of the Tetra Tech study.
But the firm said it has agreed to work with Argonne National Laboratory and the Purdue Calumet Water Institute “to identify and evaluate emerging technologies with the potential to improve wastewater treatment across the Great Lakes.”
BP previously had argued that it was using the best available technology.
BP and the Indiana Department of Environmental Management are facing new opposition against BP's air variance.See this earlier P-T story on the air variance from August 9th.The City of Chicago, the Illinois Attorney General, the Natural Resources Defense Council and the Environmental Law and Policy Center filed a petition Friday for administrative review of the air variance IDEM Commissioner Tom Easterly granted BP on July 5.
The variance allows BP to continue to emit the same amount of tiny particles into the air as now.
Because the U.S. Environmental Protection Agency doubled its estimates of how much particulate matter is emitted from gas, BP would have to reduce its emissions by about 50 percent to comply with its current limits.
But the Illinois petitioners argue that BP and IDEM haven't proven that can't be done.
"The Variance and Order provide no evidence of technical infeasibility or economic infeasibility for BP. The burden should be upon BP to demonstrate that all feasible engineering alternatives have been considered and evaluated," the petition states.
"BP should be required to submit detailed cost data for all technically feasible alternatives considered as well as detailed analysis of why implementation of the most protective alternatives would result in 'severe economic hardship.'"
The petitioners say that the emissions may contain heavy metals such as lead and can cause respiratory conditions.
Because the emissions sometimes blow the three miles into Illinois and Chicago, air quality there would be affected.
IDEM argued that the Office of Environmental Adjudication (OEA) should reject Illinois' petition because it was incomplete.
Illinois countered that rejecting the petition would prevent a "meaningful public review of IDEM's decision."
An OEA environmental judge is expected to respond in the coming weeks.
Meanwhile, environmentalists in Indiana and Illinois are putting pressure on BP to formalize its pledge not to increase pollution into Lake Michigan.
They want BP to file for a new or modified permit with the old limits so IDEM can legally enforce them.
Posted by Marcia Oddi on August 25, 2007 11:03 AM
Posted to Environment
Ind. Gov't. - Secretary of State's new online Business Entity Creation site
A reader writes: "The new site, just up, apparently has been promised since before Sue Ann Gilroy was elected, and now that it is up, I thought the lawyers around the state ought to know." Access it here.
Posted by Marcia Oddi on August 25, 2007 10:59 AM
Posted to Indiana Government
Ind. Gov't. - Henry County zoning amendment would allow the CAFOs closer to some homes
Joy Leiker of the Muncie Star-Press reports today, in a story that begins:
NEW CASTLE -- Homes built on residentially-zoned land would have more protection from confined feeding operations than homes built on property zoned for agriculture if the Henry County Board of Commissioners edits current zoning law.The difference comes down to a single phrase in the zoning rules, and on Thursday the Henry County Planning Commission voted 5-4 to recommend that county commissioners make the change to the law, which was adopted in 2004. County commissioners likely will consider the amendment at a meeting next month.
And though the change in wording from "residential use" to "residential district" might appear minor, it affects many rural Henry County residents, though county officials have no count or estimate of the number.
During Thursday night's meeting, Emily Hammersmith chastised the nine members of the planning commission for not knowing, or researching, how many people would be affected by the change. Hammersmith lives southeast of Mount Summit, and said the commission was "stripping all rural residents of any protection that they have."
For years, farmers have sold small sections of their land to people wanting to build a house in the country. They've also spliced their farm land for their own homes or for homes for other family members, and as a result, homes now stand on land zoned for agriculture. Homeowners could have sought to have their rural property rezoned, and can still do so now, but many don't.
Hammersmith was one of about 100 people to attend Thursday's meeting and participate in a public hearing that lasted 90 minutes. She asked the commission to give every homeowner who lives on property zoned for agriculture an opportunity to be rezoned, and also asked that the county send a certified letter to every affected resident, rather than just publish the required legal notice in the newspaper.
The change in wording affects more than just the distance between confined feeding operations and a neighbor's property line. There are 19 "uses" that stipulate a minimum setback from residential-zoned properties, including everything from an airport (2,000 feet) or junk yard (1,320 feet) to nursing home (75 feet) or prison (2,000 feet).
But those distances decrease if those institutions neighbor property zoned for agriculture, and in the case of a neighboring confined feeding operation, the distance drops from 2,000 feet to 300 feet. The distance requirement for a livestock sale barn next door would decrease from 2,000 feet to 40 feet.
And though planning commission members didn't want to discuss those numbers, or specifically talk about CAFOs, that's what was on the minds of most of the 20-plus people who addressed the group in a former courtroom.
Posted by Marcia Oddi on August 25, 2007 10:48 AM
Posted to Indiana Government
Ind. Gov't. - Open up Commission on Local Government Reform
So opines the Fort Wayne Journal Gazette in an editorial today:
The Indiana Commission on Local Government Reform could lead to significant changes in how government serves, represents and taxes Hoosiers, but it got off to an inauspicious start Wednesday by meeting behind closed doors.Niki Kelly of the Journal Gazette reported Thursday on the new Commssion. Some quotes:Yes, the respected co-chairmen – former Gov. Joe Kernan and Indiana Chief Justice Randall Shepard – briefed reporters on what happened. To its credit, the commission plans to gain public input in several ways, accepting e-mails and letters, and planning public testimony at hearings.
And no, the commission does not appear to be subject to Indiana’s Open Meetings law, which requires much of the rest of Indiana government to meet in public.
But the commission is most certainly dealing with the public’s business. And it’s difficult to believe the first meeting would involve material so secret and sensitive that allowing the public to listen and watch would derail its mission: Making local government more efficient by eliminating or consolidating certain offices and services.
Gov. Mitch Daniels is right to seek ways to improve the structure of local government. Starting with a commission is a sound idea, and most of his appointments have been both appropriate and politically astute.
In some ways, appointing the commission acknowledges that a bill adopted in 2006 allowing local governments to restructure themselves has not succeeded. A statewide approach is both appropriate and, most likely, necessary.
But the commission can learn one lesson from so far unsuccessful efforts to combine Fort Wayne and Allen County governments: Secrecy breeds distrust. Many of the earlier efforts to seek ways to combine the two governments were conducted by government and business elite without informing or involving the public, giving opponents credibility when they attacked the process.
The commission should make private meetings the exception, not the rule. All its meetings should arguably be open.
If the commission thinks some private meetings are really necessary, they should be limited to subject matter similar to what state law allows to be discussed behind closed doors – personnel and strategy.
All of the commission members are well accustomed to working under public scrutiny. Collectively, they would best serve Hoosiers and have the best chance of success if future meetings are open to the public.
Besides seeking input from Hoosiers, the commission will have at least three public moderated forums statewide – possibly in October – where Hoosiers can come speak their minds.The new Commission has a website, I'm told, but the ILB does not have the link.But the real decisions will be made behind closed doors – as the group’s first meeting was Wednesday.
And virtually all the grunt work will be done by the Indiana University School of Public and Environmental Affairs – including interviews with those who have direct interests in various levels of government.
“Part of our task here is the very short time frame under which we’re operating and an incredibly complex matter. That’s part of it. And the ability to tease out and challenge ideas without worrying about whether somebody gets the idea that that’s the answer we think in the end will make for a better product,” Shepard said.
Recommendations are due from the group in December, which Daniels originally said would make the ideas available for the 2008 legislative session starting in January.
Recently, though, Daniels has said he believes there should be a yearlong debate on the ideas during the 2008 election year, with the legislature considering proposals in 2009 and 2010.
Posted by Marcia Oddi on August 25, 2007 10:30 AM
Posted to Indiana Government
Ind. Decisions - "Appeals judge vacates charge: But won't affect man's time in jail"
Friday's Court of Appeals NFP decision in the case of Gerald A. Norrell v. State of Indiana is the subject of a story today by Kate Braser in the Evansville Courier & Press. Some quotes:
A judge with the Indiana Court of Appeals agreed in part with an appeal from an Evansville man convicted on charges that were based on accusations he bound his sleeping roommate at the wrists, beat her and nearly strangled her to death with an electrical cord.A jury previously convicted 31-year-old Gerald Norrell of attempted murder, aggravated battery and criminal confinement in the July 30, 2005, attack on Jessica Conner, 22. * * *
However, the Sharpnack also agreed in part with Norrell, ruling the convictions were based on one continuous act, and therefore Norrell should not have been convicted separately for the same offense.
Explaining it was "impossible" to know which acts the jury based its convictions on, Sharpnack vacated Norrell's conviction for criminal confinement as a class D felony.
"We conclude there is reasonable possibility that the jury used the same evidence, the placing of an extension cord around (Conner's) neck, to establish the essential elements of both the attempted murder and criminal confinement convictions," Sharpnack said.
Vanderburgh County Prosecutor Stan Levco said Norrell was sentenced to serve his convictions concurrently, so the ruling won't alter the 30-year sentence. The appeal was the latest move in a case that suffered repeated delays during its course in the local courts.
Norrell's original defense attorney removed himself from the case after it was reported Norrell had shared plans to hire a hitman to kill the attorney. Before his sentencing, Norrell was admitted to the hospital after a suicide attempt.
Posted by Marcia Oddi on August 25, 2007 10:13 AM
Posted to Ind. App.Ct. Decisions
