Thursday, December 04, 2008

Ind. Courts - "Judge Cecile Blau passes Clark County Drug Court to Judge Jerry Jacobi"

Jerod Clapp reports today in the Jeffersonville News & Tribune, in a story that begins:

After more than six years of serving as the judge for the Clark County Drug Treatment Court, Judge Cecile Blau is stepping down from her seat at the beginning of 2009.

Blau said working with the program has been both exhausting and rewarding, but she said she also has confidence in her successor, Judge Jerry Jacobi.

“I think the changing of hands will be good for drug court,” Blau said. “I think he’ll bring some new ideas and new energy to the program.”

The program provides treatment for nonviolent drug offenders rather than going straight to incarceration.

Blau said since the program started in May 2002, 40 people have graduated from the program. She said graduation isn’t the only measure of success for drug court.

“The real success of this program is that everyone learned their own individual tools to beat their addiction,” Blau said. “Sometimes, when you’re exhausted, one of your participants tells you they’re sober, and it re-energizes you.”

Posted by Marcia Oddi on December 4, 2008 02:02 PM
Posted to Indiana Courts

Environment - "BP's sale of pollution-control bonds is part of a controversial plan to expand its refinery in Whiting, Ind."

For a good update on the BP project in NW Indiana, see this report today in The Bond Buyer that begins:

CHICAGO - BP this week sold $200 million of tax-exempt bonds to launch a roughly $1 billion pollution-control project that's part of a controversial expansion of a crude oil refinery located in northwest Indiana.

Issued through the city of Whiting, the $200 million bond issue comes a few weeks after Whiting officials authorized the issuance of up to $1 billion in additional tax-exempt pollution control bonds to finance the four-year, $3.8 billion expansion project.

Posted by Marcia Oddi on December 4, 2008 01:57 PM
Posted to Environment

Courts - "if an emoticon amounts to government inducement, then an exclamation point must be, too"

To understand the context, see this WSJ Law Blog entry, headed "Emoticons on Trial at the Nebraska Supreme Court."

Posted by Marcia Oddi on December 4, 2008 01:54 PM
Posted to General Law Related

Law - Just out: 2nd GAO report on TARP (Troubled Asset Relief Program)

The GAO has just released a 24-page report, subtitled "Status of Efforts to Address Defaults and Foreclosures on Home Mortgages."

The link to the 1st report, released Tuesday, subtitled "Additional Actions Needed to Better Ensure Integrity, Accountability, and Transparency," is here.

Posted by Marcia Oddi on December 4, 2008 12:48 PM
Posted to General Law Related

Ind. Decisions - 7th Circuit issues one today

In Kevin Unthank v. Brian Jett, Warden (SD Ind., Judge McKinney), a 5-page opinion, Judge Easterbrook writes:

More than a decade ago, we affirmed Kevin Unthank’s conviction and 262-month sentence for violating federal drug laws. United States v. Unthank, 109 F.3d 1205 (7th Cir. 1997). Ever since, he has been trying to have the conviction vacated or the sentence reduced. * * *

If Unthank wanted to use §2255 to argue for a lower sentence after asking a state court to vacate one or more of his prior convictions, he had only to refrain from filing a collateral attack until the state court had acted. He may have used unwisely the one §2255 motion allowed as of right, but he did use it in 1998 and has not met the statutory requirements for an additional round of collateral review. * * *

Unthank does not contend that a glitch in §2255 prevents application to his situation of a retroactive decision of the Supreme Court. Nor does he claim to be innocent of the current crime. He says only that his sentence is too high, and as we explained in Hope v. United States, 108 F.3d 119 (7th Cir. 1997), this differs from a claim that he is innocent of the crime of which he was convicted. AFFIRRMED.

Posted by Marcia Oddi on December 4, 2008 12:08 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Jack D. McArdle III v. State of Indiana (NFP)

Travis Stout v. State of Indiana (NFP)

Jerome Reed v. State of Indiana (NFP)

Posted by Marcia Oddi on December 4, 2008 12:06 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - "Another Indy law firm acquired in merger"

Tom Spaulding of the Indianapolis Star reports today:

Partners at the law firms Frost Brown Todd LLC and Locke Reynolds LP of Indianapolis approved a merger agreement late Wednesday, according to a published report.

The Business Courier of Cincinnati reported about the merger on its Web site today.

The firm will continue to operate as Frost Brown Todd, with the Locke operations transitioning to that name around Jan. 5.

The merger is the second announced this year in which a major Cincinnati law firm has acquired a large Indianapolis firm. In May, Indianapolis-based Sommer Barnard PC merged into Taft Stettinius & Hollister LLP. Sommer Barnard had about 100 lawyers.

See ILB entry here from April 20th for more on the Taft merger.

Here is the Locke Reynolds announcement, dated Dec. 4, on the Frost Brown Todd website.

There have also been reports that the venerable Ice Miller intends to merge with Louisville-based Greenebaum Doll & McDonald, but no announcements as of this writing.

Posted by Marcia Oddi on December 4, 2008 08:07 AM
Posted to Indiana Law

Ind. Courts - Fink named Vanderburgh Circuit Court magistrate

Libby Keeling reports in the Evansville Courier & Press:

A woman who is no stranger to the work of Vanderburgh Circuit Court has been named its new magistrate.

Kelli E. Fink, Posey County's chief deputy prosecutor for the past four years, previously served Vanderburgh Circuit Court for about eight years in a variety of capacities, including court administrator, staff attorney, law clerk and adult probation intern and bailiff. * * *

Circuit Court Judge Carl A. Heldt noted Fink's previous experience in the office and as chief deputy prosecutor as well as her work ethic and judicial temperament in his selection of her from a pool of 18 applicants. * * *

The process of replacing Circuit Court Magistrate David D. Kiely began Nov. 4 after he was elected to fill the bench of retiring Vanderburgh Superior Court Judge Scott R. Bowers. Bowers has served four six-year terms as judge. * * *

The primary differences between judge and magistrate include the fact judges are elected while magistrates are appointed, and judges countersign magistrates' rulings in civil, but not criminal, matters.

Posted by Marcia Oddi on December 4, 2008 08:02 AM
Posted to Indiana Courts

Wednesday, December 03, 2008

Courts - NY Commission nominates 7 men to replace Judith S. Kaye, chief judge of the New York State Court of Appeals

"Lack of Women on Court List Draws Fire" is the heading to this entry in the NY Times City Room blog, written by Sewell Chan.

Posted by Marcia Oddi on December 3, 2008 05:48 PM
Posted to Courts in general

Ind. Law - Report on the current status of the Indiana statutes on the General Assembly website

I am delighted to report that within the last few days the General Assembly has made available online the Session Law Disposition Table I wrote about in my November 2008 Res Gestae article, "Recodifications, legislative histories and tables - Part 1)."

The version of the Table that has now been posted covers "the disposition of each section of every law enacted by the Indiana General Assembly from 1852 through 2001, with the exception of those laws repealed by the blanket repeals contained in IC 1-1-1-2 and IC 1-1-1-2.1." The Table is 1,796 pages long and over 6 MB.

I'll have more to say about the newly posted Table in a later entry dealing with the question of whether all the viable statute law is in the Indiana Code. But for today, I'd like to provide an update on the status of the other issues I have raised over the past years about the General Assembly website as it relates to the Indiana statutes.

Concerns Raised in 2006 Article about the Indiana Code.

Since I wrote, now over two and one-half years ago, my initial article on the Indiana Code, several of the problems I pointed to on the General Assembly website have been addressed. The 2006 Res Gestae article, "The General Assembly's Role in Making Indiana Rules and Statutes Available to the Public," begins its discussion of the Indiana Code and the Acts of Indiana on p. 22 (p. 4 of PDF) by detailing a number of concerns.

You may review the details on pp. 22-23 (pp. 4 to 5) of the article. For our purposes here, I will simply list in bold the 2006 concerns, followed by the current status:

• The current online Indiana Code is accompanied by no explanatory materials. This is still the case today. However, at a meeting of the Code Revision Commission Nov. 20th of this year, a Legislative Services Agency staffer said they were were considering adding such materials.
• Error-ridden? At the time the 2006 article was written, numerous obvious errors such as the one quoted in the article existed. As far as I can tell, these obvious problems have now been remedied. (However, I have heard from LSA staffers that the HTML online version is not as reliable as the PDF version. If this is the case, the HTML version of course should be corrected ASAP.)
• For much of the year, the online Indiana Code is not current. And worse, from a user's point of view, it did not indicate that it was not current. This situation has been addressed. The current online version of the Indiana Code states that it is updated through the 2008 session, and presumably it will continue to so indicate until it is updated with the laws passed in 2009. As most of these changes will take effect on July 1 of 2009, that date would seem to be be the best time to post - and announce - the new version.
• Retention Issues. This is related to the previous issue. Once the 2009 version of the Indiana Code replaces the 2008 version, the former version is nowhere to be found. I have heard of no plans to address this issue. (Why it is important is addressed at p.23 (p. 5) of the article.)

Praise in 2006 Article for the Public Bill System.

There is one area that I highly praised in the 2006 article and continue to do so today. Here is what I wrote:

The Public Bill system. Something done well be the General Assembly and its staff is the online public bill system, allowing users to access legislation as it goes through the session, along with committee reports, vote sheets, and items.

I have nothing but praise for this part of the system. It is good, I think, because it is intensively used during the session by people who know who to talk to if they run into problems.

The materials from each session are retained online and can be readily accessed.

Even here, however, I have a suggestion. Why should it be necessary for the researcher to continually reference tables going back and forth between enrolled act numbers and public law numbers? Why not either facilitate this electronically, or implement a public law number that incorporates the enrolled act number.

Earlier this year I created my own resource to make research earlier, and I have shared it online.

Concerns Raised Over the Years about the Availability of the Acts of Indiana.

An ILB "wish list" I first posted on 12/31/03 (reproduced here in 2004) included wishes for:

3. The Debates of the Indiana Constitutional Convention of 1850, the Convention Journal, and related documents made readily available on CD-ROM or DVD, and priced right for the student. Incredibly, these books are out-of-print -- I had to slowly assemble my collection from dealers all over the country.

4. I've got more CD/DVD wishes - the House and Senate Journals since Indiana became a State; the Acts of Indiana for the same time-span. Scanned [OCRed], so that we can see the printed pages. Electronic finding aids would also be nice, but the important thing right now is to capture all this history and make it available before it totally disintegrates.

I've included #3 only to give context. All these documents on the Indiana Constitution are now available online! They are both searchable and downloadable. Wonderful! (I believe this was through the cooperative efforts of the Historical Bureau and the Court - please correct me if I'm wrong.) Note also that quantum leaps in the availability of low cost memory make use of an intermediary media such as CD/DVD no longer necessary.

But as for #4 on the wishlist, only a little progress. This July 13th I wrote in the ILB, complaining that although the General Assembly had just posted the Acts of 2008, it had at the same time removed the link for the Acts of 2007. I continued:

This despite the urging of myself and many others that the files for ALL the volumes of the Acts of Indiana be made available to the public. (I've been urging this for five years; obviously to no effect.)

Shortly thereafter, as I note here on July 23rd, back years of the Acts of Indiana began appearing. As of today they go back to 2000. This is good, so far.

How to go back to 1816? Five years ago this looked impossible. That was before Google began its march across the country, scanning all the volumes in major university library collections. Now a number of copies of various years of the Acts of Indiana may be found online, with imprints such as the Stanford Law Library.

For instance, here are the Indiana Acts of 1865. Hopefully, someone from the State Historical Bureau or Supreme Court will be able to coordinate with Google to assemble a complete collection of these invaluable volumes.

So this report concludes - There has been much progress over the past few years, and kudos to all those involved. But much yet remains to be accomplished to make Indiana's statute laws available to the citizens of Indiana.

Posted by Marcia Oddi on December 3, 2008 04:40 PM
Posted to Indiana Law

Ind. Decisions - Tax Court posts one

Dated Dec. 2, 2008, the Tax Court has posted Clark-Pleasant Community School Corp. v. Dept. of Local Government Finance (NFP), a 14-page opinion where Judge Fisher concludes:

This Court will give deference to whatever factor or reason the DLGF bases its final determination on as long as the DLGF’s reasoning is supported by the evidence. Here, the DLGF’s reasoning is not supported by the evidence and, as a result, the DLGF’s final determination must be REVERSED. The matter is hereby REMANDED for a final determination to be issued consistent with this opinion.

Posted by Marcia Oddi on December 3, 2008 12:26 PM
Posted to Ind. Tax Ct. Decisions

Environment - More on "High Court Case Tests Power Plants' Water Rules"

The Washington Post today has an editorial on the power plant intake cases argued yesterday before the Supreme Court. The editorial concludes:

A plain reading of the intake provision strongly suggests that Congress intended the agency, first and foremost, to identify the best technology -- not the best technology for the money.

Does this mean the agency can never consider costs? No -- and the approach outlined by the 2nd Circuit judges allows for that. After identifying the best technology, the agency may allow power plants to use less expensive means that achieve similar results. Individual plants may seek a variance if even the cheaper method proves too burdensome.

The approach outlined by the appeals court is reasonable and provides the least convoluted reading of the statute. If the industry does not like this result, it should go to Congress and ask that the law be rewritten.

An article by Adam Liptak of the NYTimes today ends with the water intake case:

In a second argument Tuesday, the court considered whether the Environmental Protection Agency may use cost-benefit analysis to regulate cooling structures that draw water from rivers and lakes to absorb heat generated by power plants and manufacturing facilities. The process kills aquatic organisms.

The argument in the case, Entergy Corporation v. Riverkeeper, No. 07-588, mostly concerned the meaning of a phrase in the Clean Water Act that requires the structures to “reflect the best technology available for minimizing adverse environmental impact.”

Richard J. Lazarus, representing the environmental groups that brought the case, said the agency may consider whether companies can bear the cost of less harmful technologies but may not balance cost against environmental harm.

Chief Justice John G. Roberts Jr. cautioned that the test Mr. Lazarus suggested might not result in much protection these days.

“Maybe the industry could have borne these costs two years ago, but they probably can’t today,” the chief justice said. “Nobody has money in the bank today.”

Posted by Marcia Oddi on December 3, 2008 10:19 AM
Posted to Environment

Ind. Courts - "Clerks find ways to shuffle county history"

Jane Huh of the Gary Post-Tribune reports today:

Organizational skills are a prerequisite for those who work at county clerk offices, a depository for local public records.

At the Lake and Porter county clerk offices, categorized documents are kept in files. The record-keeping function lends itself to a never-ending shuffling game and crowded spaces.

"Every county runs into the same problem," said Karen Johnston, chief deputy clerk in Porter County.

Following state law, all counties must maintain public records, including traffic violations and small court claims, for a certain number of years.

Some documents can be removed and destroyed. However, certain specified documents, like wills and estates, must be maintained permanently.

The perpetual incoming flow necessitates a "destruction" process once every year, said Porter County Clerk Pam Fish.

"For certain kinds, we have to hold them for three years, some for 10 years and some for a lifetime," Fish said. "But for each instance you have to follow the rules and document exactly what you're getting rid of, definitely not prior to that."

The clerk's office makes up several stacks for removal every year. Traffic tickets, small claims court papers and ledgers are some documents Porter County will remove this year.

Fish and Johnston will review submitted requests for destruction on Friday at the county circuit courtroom. At the meeting, they decide whether to transfer requests for destruction to the state's records commission for permission.

At Lake County, the clerk's office hold records destruction meetings on a quarterly basis. Given the size and scope of the county, one of the largest in the state, it's only logical.

"The volume is huge," said Susan Gilyan, records manager at the Lake County Clerk's Office. "It would be just so cumbersome."

Gary, Hammond and East Chicago each have clerk offices since the courts are located there. * * *

At the Porter County office, employees are getting more and more squeezed in the narrow spaces they have to maneuver around the tall shelves. * * *

To make the best use of space, constant reorganization and transfer of files to other locations is an essential part of the job.

Then, there's also the responsibility of keeping close track of records and putting them into computer databases and microfilms.

"It's very labor-intensive,"Gilyan said "Many times, I wear jeans and not-so-nice clothes. I'm up on ladders."

Gilyan was overwhelmed when she began work at the clerk's office in 2004. Cardboard boxes stuffed with files covered the floors, making it challenging to sort through. But, the office has "come a long way," since 2004 when Clerk Thomas Philpot placed a cleanup as a high priority, she said. * * *

Tucked inside the rows of movable storage units and shelves are remnants of local history. Records date back to the early 19th century.

At least one person shows up at Lake County's government building in Crown Point to trace ancestors through the heavy books, including marriage record books and estate records. On some weeks, more than 20 people come in, Gilyan said.

Earlier this past spring, the filming John Dillinger's 1934 jail escape scenes for the upcoming movie "Public Enemies", starring Johnny Depp, piqued the interest of dozens of people who trekked to the clerk's office to look up public records on the legendary gangster, Gilyan said.

Dillinger's criminal case files included court papers that charged him with embezzlement and first-degree murder during a robbery.

Posted by Marcia Oddi on December 3, 2008 08:55 AM
Posted to Indiana Courts

Ind. Decisions - "Weidas lose appeal; West Lafayette law called 'vague'"

Yesterday's Court of Appeals decision in the case of Jerry M. and Patti A. Weida v. City of West Lafayette (see ILB summary here - 3rd case) is the subject of a story today in the Lafayette Journal Courier, reported by Sophia Voravong. Some quotes:

Property owners and managers Jerry and Patti Weida did not do enough to monitor how many people were living in one of their rental homes, the Indiana Court of Appeals has ruled.

The unanimous opinion, issued Tuesday, ruled in favor of the city of West Lafayette and its over-occupancy ordinance, which allows only up to three unrelated people to live together in areas zoned residential.

The decision also echoed the findings of Judge Thomas Busch of Tippecanoe Superior Court 2, who presided over a bench trial last year in which the Weidas were sued by the city. They were accused of allowing five women to live in a home at 112 Sylvia St. during Purdue University's 2005-06 academic year.

"The Weidas did not present any evidence from which we can infer that they satisfied their duty to personally monitor the occupancy of each dwelling unit." Judge Patricia Riley wrote in the 19-page ruling.

"Rather, the evidence suggests that the Weidas had been put on notice that more than three unrelated persons were occupying their rental property prior to the city filing its complaint. ... The Weidas never conducted any follow-up on the notice." * * *

The civil complaint against the Weidas, who own several rental properties in portions of West Lafayette largely populated by Purdue students, was one of three lawsuits over alleged code violations by landlords.

The city's legal fees mounted to tens of thousands of dollars fighting the court battles.

In its ruling, however, the appeals court also chided West Lafayette's ordinance for "being poorly written ... in places, highly ambiguous."

The purpose of West Lafayette's occupancy ordinance is to "protect neighborhoods and provide safe and decent housing," according to the city's Web site.

For much more, see this ILB entry from Oct. 4th.

[More] A reader writes to say:

The headline of the Journal Courier article about the Weida case says that the Court of Appeals called the West Lafayette ordinance (quote) "vague." The word "vague" does not appear in the opinion.

Posted by Marcia Oddi on December 3, 2008 08:44 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Indiana prosecutor is under investigation for alleged misconduct in forfeiture cases"

That is the headline to a long story, dated Nov. 25th, reported by Mary Spicuzza in the national blog Asset Forfeiture Watch.com. The report begins:

An Indiana prosecutor is under investigation for a scheme that allowed him to personally collect a percentage of the proceeds of civil forfeitures from suspects against whom he was simultaneously pursuing criminal charges.

A judge found that between 2000 and 2008, Prosecutor Mark R. McKinney collected more than $100,000 in attorney fees from local drug task force funds under secret agreements with suspects in drug cases.

McKinney's work for the drug task force was done on a private contract basis, and was not part of his official duties as Prosecuting Attorney of Delaware County, a position he assumed in 2007, or of his previous position as a Deputy Prosecutor.

His contract with the task force entitled him to as much as 25% of the cash and proceeds from civil forfeitures.

In a pair of scathing reports, one in August and one in November, Delaware County Circuit Court 2 Judge Richard A. Dailey found that McKinney had deliberately kept the District Court uninformed of secret settlement agreements involving the Muncie-Delaware County Drug Task Force. Under the settlements, individuals would agree to surrender money and property-seemingly in exchange for the dismissal of more extensive civil forfeiture actions and reduced criminal charges.

Posted by Marcia Oddi on December 3, 2008 07:59 AM
Posted to Indiana Courts

Tuesday, December 02, 2008

Law - "A simple checklist for legislators to follow that could dramatically reduce the number of unnecessary lawsuits"

Peter H. Schuck, a professor at Yale Law School, a very interesting article in The American Lawyer. It begins:

Every once in a while, legislators can learn from doctors. In late June, the World Health Organization issued its first guidelines for reducing the complications and deaths from medical procedures. These guidelines list simple safety checks that WHO believes could halve the rate of surgical complications.

What does this have to do with law? Potentially a lot. Simply read the advance sheets of any federal or state court that spends a considerable fraction of its time interpreting statutes-which is to say, all courts-and you will quickly see that a vast amount of litigation is devoted to relatively technical or uncontroversial statutory issues. Congress or the relevant state legislature could and would probably have resolved clearly and authoritatively had it simply given those issues a little thought. By the simple expedient of reviewing a checklist of such issues when drafting laws and then including provisions to address some or all of them, a legislature could in a few strokes reduce significantly the amount of wasteful litigation, just as WHO's checklist will likely reduce costly surgical errors.

Many issues generate a great deal of litigation even before the court can reach the merits of the procedural or substantive questions that lie at the heart of the dispute. There are many examples; here are just a few: Does the statute permit a private cause of action for damages? Which courts have subject-matter jurisdiction and where must appeals be lodged? Is the statute retroactive? In the case of a federal statute, is it intended to preempt state law? Who has standing to sue? Is there a statute of limitations, and if so what is the limitations period? Is arbitration permitted? Which types of relief are available? Most important-but also perhaps more controversial-how should the key statutory terms be defined?

I am not the first to propose using a legislative checklist to reduce litigation costs and economize on limited judicial resources. Earlier proponents include a Federal Courts Study Committee report to the Judicial Conference of the United States, the U.S. Department of Justice in congressional hearings, and the late F. Reed Dickerson of the Indiana University Law School. Despite support from these heavy hitters, however, legislative bodies have not adopted this approach. Why not?

That is just the start.

Thanks to this WSJ Law Blog entry for the heads up.

Posted by Marcia Oddi on December 2, 2008 06:58 PM
Posted to General Law Related

Law - Just out: GAO report on TARP (Troubled Asset Relief Program)

The GAO has just released a 72-page report, subtitled "Additional Actions Needed to Better Ensure Integrity, Accountability, and Transparency."

Posted by Marcia Oddi on December 2, 2008 05:04 PM
Posted to General Law Related

Environment - Legislator to introduce two CAFO bills

From a press release issued this afternoon:

INDIANAPOLIS – People seeking to start confined feeding operations in Indiana would be required to submit to a background check in order to receive a license, according to legislation authored by State Rep. David Cheatham (D-North Vernon) that will be considered during the 2009 session of the Indiana General Assembly.

Cheatham intends to file a pair of measures in 2009 that will deal with public concerns over the rapid expansion of Confined Feeding Operations (CFOs) and Concentrated Animal Feeding Operations (CAFOs) across the state.

The first proposal would require CAFO operators to meet “good character” standards as part of the process of receiving a license. A second bill would prohibit anyone from locating a CFO or CAFO within two miles of a state park or reservoir.

CAFOs are facilities that house and feed a large number of animals in a confined space. Because CAFOs produce a large amount of manure, many people express concerns about contamination of surface and ground water, particularly when the operations are located close to residential areas or schools. * * *

The latest CAFO controversy erupted in August, when manure from a facility near Union City in Randolph County was washed into the Little Mississinewa River and caused thousands of fish to die. The state had to warn residents to stay away from the water.

“By including good character requirements in the permitting process for CAFOs, we are asking that the operators submit to a background check that reveals their history in running facilities of this type,” Cheatham said. “If they are honest and reputable, they should have no problem demonstrating their past history as an example of their willingness to run a business that responds to public concerns and moves to protect the health of residents who live near a CAFO.

“We seek similar information from applicants to other critical positions, including teachers,” he continued. “If a CAFO operator has had past problems about meeting environmental regulations, we should know about these things, how these problems were answered, and if they were addressed in a timely fashion.”

Cheatham’s second proposal stems from a presentation made over the interim to the Water Resources Study Committee that the lawmaker chairs. Residents from Union County in east-central Indiana asked for a change in state law that keeps CAFOs at least two miles away from state-owned properties.

“These folks believe that the same rules of safety that apply for locating a CAFO near a community should also apply for those areas of Indiana that are nationally-recognized attractions for their natural beauty,” Cheatham said. “I feel that these measures should be part of the ongoing discussions over CAFOs, and I intend to pursue debate on them in the 2009 session.”

Here are some ILB entries about the Union City fish kill mentioned above.

Posted by Marcia Oddi on December 2, 2008 03:50 PM
Posted to Environment

Ind. Courts - Governor appoints Miami Superior Court judge

From the news release:

INDIANAPOLIS (December 2, 2008) - Governor Mitch Daniels today announced the appointment of Daniel C. Banina as judge of the newly created Miami Superior Court II.

Banina, of Peru, has served as judge of the Miami Superior Court I since 1996. Previously, he served as the Miami County chief deputy prosecuting attorney for nine years and Franklin County chief deputy prosecuting attorney for two years. Banina is a member of the Indiana State Bar Association and a past president of the Miami County Bar Association.

He received his undergraduate degree from St. Joseph's College and law degree from Valparaiso University School of Law.

His appointment will be effective January 1.

Posted by Marcia Oddi on December 2, 2008 03:38 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (3):

In Termination of Parental Rights for S.B. and D.B., a 10-page opinion, Judge Riley writes:

Appellant-Respondent, Daniel Bailey, Sr. (Father), appeals the trial court’s involuntary termination of his parental rights to his children, S.B. and D.B. We affirm. * * *

Although not raised by either party, we find the dispositive issue in this case to be whether the trial court committed reversible error when it postponed its pronouncement of judgment and failed either to (1) terminate Father’s parental rights or (2) dismiss DCDCS’s termination petition at the conclusion of the termination hearing. Resolution of this issue requires that we interpret Indiana Code section 31-35-2-8. * * *

The trial court’s decision to postpone its pronouncement of judgment and give Father one final chance despite its conclusion that DCDCS had already satisfied its burden of proof was in direct violation of Indiana Code section 31-35-2-8 which clearly provides that a trial court shall either find the allegations in the petition to be true and terminate the parent-child relationship, or find the allegations not to be true and dismiss the petition.

Because the trial court failed to comply with Indiana Code section 31-35-2-8, its judgment terminating Father’s parental rights to S.B. and D.B. is erroneous. Nevertheless, given the circumstances before us, we find the trial court’s error to be harmless. To be sure, while we do not approve of the trial court’s postponement of its ruling pursuant to Indiana Code sections 31-35-2-8 and 31-35-2-4, remanding this cause to the trial court with instructions to hold a new termination hearing would be against the twins’ best interests. The children have lingered in the system six months longer than needed while Father dabbled with services, continued to use alcohol, and failed to maintain regular contact with the twins. The twins need and deserve stability and permanency now. The current system has already been criticized for putting children in limbo too long, thereby fostering instability and unhinged relationships. See Baker v. Marion County Office of Family and Children, 810 N.E.2d 1035, 1040 (Ind. 2004). It is undeniable that it is within a child’s best interest and overall well being to limit the potential for years of litigation and uncertainty. See id. In light of these considerations and the trial court’s clear determination that the DCDCS satisfied its burden of proof on November 5, 2007 and again on February 26, 2008, we affirm the trial court’s termination of Father’s parental rights to the twins.

CONCLUSION Based on the foregoing, we hold that, although the trial court violated Indiana Code section 31-35-2-8 by postponing its pronouncement of judgment, this error was, given the circumstances, harmless. Affirmed.

In Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes II , a 24-page opinion, Judge Riley writes:

Appellant-Defendant, Clay City Consolidated School Corporation (Clay City Schools), appeals the trial court’s denial of its motion to correct error and Order on remittitur awarding Appellees-Plaintiffs, Ronna Timberman (Mother) and John Pipes II (Father), $300,000 after a jury verdict. We reverse and remand.

ISSUES. Clay City Schools raises seven issues for our review, one of which we find dispositive and restate as: (1) Whether the trial court abused its discretion by instructing the jury in Final Instruction No. 20 that a thirteen-year-old boy is presumed to be incapable of contributory negligence.

Because we conclude that the trial court committed reversible error by issuing Final Instruction No. 20, we also consider the following issues to forestall unnecessary disputes upon remand and duplicative issues for another appeal, * * *

CONCLUSION For the foregoing reasons, we conclude that the trial court committed reversible error when instructing the jury that Indiana law contains a rebuttable presumption that children between the age of seven and fourteen cannot be contributorily negligent. Therefore we must reverse and remand for further proceedings consistent with this opinion.

In Jerry M. and Patti A. Weida v. City of West Lafayette, IN, a 19-page opinion, Judge Riley writes:

Appellants-Defendants, Jerry M. Weida (Jerry) and Patti A. Weida (Patti) (collectively, the Weidas), appeal the trial court’s Findings of Fact and Conclusions of Law entered following a bench trial in favor of Appellee-Plaintiff, City of West Lafayette, Indiana (the City), on the City’s allegation that the Weidas’ five-bedroom rental house was overoccupied during the 2005-06 Purdue school year. We affirm in part and reverse in part.

The Weidas raise six issues on appeal, which we consolidate and restate as the following four issues: (1) Whether the trial court erred by concluding that the Weidas permitted or allowed the overoccupancy of their rental house; (2) Whether the trial court properly admitted the testimony of the City’s witnesses, whose testimony was induced by the City’s promise of post-trial consideration if they testified truthfully at trial; (3) Whether the trial court erred by ruling on claims pending in other actions and other courts; and (4) Whether the trial court’s award of costs was contrary to law. * * *

In a nutshell, the Weidas now essentially assert that the pivotal duty under the Ordinance is not to permit or allow overoccupancy at 112 Sylvia Street, whereas the duty to monitor, as included in the Ordinance’s first sentence, is merely a secondary obligation. Additionally, they allege that the “permit or allow” language includes a culpability element, i.e., the Weidas argue that the City was required to prove that they intended to permit or allow the overoccupancy. As the City cannot prove that they affirmatively permitted the overoccupancy, the Weidas maintain that no investigation into the secondary duty needs to be made and the trial court’s judgment should be reversed.

The City, on the other hand, asserts that the Weidas’ proposed interpretation would make a violation of a duty to monitor without consequence. Instead, the City proposes an interpretation of the entire section—without parsing out the sentences one by one—whereby the landlord would be under a duty to monitor and to ensure proper occupation. As such, the City maintains that when a landlord fails this double duty, he ‘permits or allows’ overoccupancy. * * *

In sum, based on the evidence before us, we conclude that the trial court properly determined that the Weidas permitted or allowed the overoccupancy of their rental house in violation of City Ordinance 117.08(d). However, we hasten to add that our decision today should not be interpreted as an approval of the City’s Ordinance. Not only is the Ordinance poorly written, it is also, in places, highly ambiguous. We echo the sentiment expressed in Bowden v. City of West Lafayette, 79A05-0802-CV-66 (Ind. Ct. App. Oct. 17, 2008), slip op. 1 n.1, that this discussion is better saved for another day when these issues are not beyond the scope of our review and are properly presented to this court. Nevertheless, the issues, as raised by the Weidas, compel us to affirm the trial court. * * *

CONCLUSION. Based on the foregoing, we hold that (1) the trial court properly concluded that the Weidas permitted or allowed the overoccupancy of their rental house; (2) the Weidas waived their argument regarding the admission of the City’s witnesses at trial; (3) the trial court did not rule on claims pending in other actions and other courts; and (4) the trial court erred in its award of transcription costs. Affirmed in part, reversed in part.

[ILB - Note that Bowden, cited above, was a NFP.]

NFP civil opinions today (4):

Jeffrey L. Huntsman v. Patricia Cline-Asher (NFP) - "Based on the foregoing, we conclude that Huntsman [Appellant pro se] has waived all of his contentions but one: that the trial court was biased. However, we conclude that Huntsman has failed to establish that the trial court exhibited bias. "

In Oscar Guillen, Sr. v. City of Hammond, IN (NFP) - "Oscar Guillen, Sr., an inmate at Wabash Valley Correctional Facility, appeals the trial court’s dismissal of his claims for wrongful arrest and constitutional violations. In his pro se appeal, Guillen raises five issues, which we consolidate and restate as whether the trial court properly dismissed his claims pursuant to Indiana Code section 34-58-1-2. Concluding that Guillen’s claims are barred because he filed them after the expiration of the statute of limitations, we affirm."

In the Matter of the Adoption of B.J.L. and M.J.L. (NFP) - "C.L. (Appellant) appeals the adoption of his children, then thirteen-year-old B.J.L. and then nine-year-old M.J.L. (collectively, the Children) by the Children’s step-father, D.D. Appellant contends the trial court erred in (1) finding that he failed to communicate significantly with the Children, while able to do so, for a period of at least one year under Ind. Code Ann. § 31-19-9-8(a)(2)(A) (West, PREMISE through 2007 1st Regular Sess.), (2) concluding that the adoption could be granted without Appellant’s consent, and (3) ultimately granting the adoption. We affirm. "

David Tower v. Mark Johnson (NFP) - "David Tower appeals a declaratory judgment in favor of Mark Johnson in an action pertaining to a dispute arising from a partnership that the two had formed. Upon appeal, Tower presents the following restated issue for review: Did the trial court err in determining that Tower purchased Johnson’s interest in the partnership before the partnership assets were sold to a third party? We affirm. * * *

"Constrained by our standard of review, we conclude that this evidence supports the findings, which in turn support the judgment that Tower’s buyout of Johnson’s partnership interest was a fait accompli by the time of the January 25, 2005 closing. Thus, Tower has failed to demonstrate that the judgment is clearly erroneous."

NFP criminal opinions today (2):

Alfred W. Comer, Jr. v. State of Indiana (NFP)

Christopher Montgomery v. State of Indiana (NFP)

Posted by Marcia Oddi on December 2, 2008 01:17 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In U.S. v. Prieto (ND Ind., Judge Simon), a 27-page opinion, Judge Manion writes:

After a traffic stop, officers found over four kilograms of methamphetamine hidden in the bumpers of the Honda Civic in which the defendants Thomas Prieto and Fernando Sanz (collectively “the appellants”) were traveling. The appellants were both charged with possessing with the intent to distribute more than 500 grams of a substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1). After a three-day trial, a jury found Prieto and Sanz guilty. They appeal, alleging a variety of trial errors. We affirm. * * *

The evidence against the appellants was overwhelming. Thus, the district court did not err in briefly admitting Martinez’s stray comments about the appellants’ post- arrest silence. Nor, for the same reason, did it err in admitting Agent Ritchie’s statement about Prieto and Sanz’s possible connection to another drug investigation. The district court also did not abuse its discretion by admitting Nuco’s statements from the jail telephone conversation because the evidence supported the court’s finding that the call was in furtherance of a conspiracy involving Nuco and the appellants. In addition, the district court did not abuse its discretion in admitting the methamphetamine exhibits because any minor break in the chain of custody went to the weight of the exhibits rather than their admissibility. Finally, since the jury could have inferred the identification of Prieto and Sanz from all the facts and circumstances in evidence, the appellants were not entitled to a mistrial due to the lack of a formal in-court identification. We AFFIRM.

Posted by Marcia Oddi on December 2, 2008 01:12 PM
Posted to Ind. (7th Cir.) Decisions

Environment - More on: Who is responsible for cleanup costs?

Updating yesterday's ILB entry, WLKI News is reporting today:

(ANGOLA) - Steuben County Commissioners and Angola City Council members met with representatives from Univertical yesterday and last night to discuss solutions to enviromental problems at the former Dana Corporation site in Angola which may force Univertical to leave Indiana.

Company President Chuck Walker was seeking support on a proposal to clean up the property which the state estimates will cost between $6 million and $8 million.

Attorney Richard Baron said there is no firm proposal yet because discussions are still being held with IDEM. Commissioners including Commission Chair Mayo Sanders were hesitant to make any sort of commitment until they get some answers from the state. Sanders said he did not want to buy a "pig in a poke".

Dana had an agreement with IDEM to clean up the property after they left Angola some 15 years ago. But Dana is no longer liable for the clean up after they went into bankruptcy. Angola Mayor Dick Hickman said during last night's City Council meeting that solutions were still being explored by company, state and local officials.

Jim McGoff from the Indiana Finance Authority said financing options for the city included low interest loans or brownfield grants.

An angry City Council Member David Olson blasted IDEM over how they handled the situation. He said the agency still has some accountability.

No IDEM representative was at last night's City Council meeting which prompted Council Member David Martin to say that spoke volumns to him. Steuben County Commissioners are expected to discuss the matter further during their December 18th meeting. A representative from IDEM has been invited to attend.

Posted by Marcia Oddi on December 2, 2008 01:03 PM
Posted to Environment

Environment - "High Court Case Tests Power Plants' Water Rules"

Today, according to SCOTUS Blog, the U.S. Supreme Court "will hear argument in Entergy Corp. v. EPA (07-588) and two consolidated cases, on the regulation of cooling water intake structures under the Clean Water Act." The issue:

Whether the Clean Water Act permits the EPA to undergo a cost-benefit analysis in determining the most environmentally friendly technology at cooling water intake structures, and to regulate such structures at existing as well as new facilities.

See all the filings at the above-link to the SCOTUS Blog Wiki link.

Nina Totenberg of NPR reported on the upcoming argument this morning. Her story, headed "High Court Case Tests Power Plants' Water Rules," is available here. It begins:

The U.S. Supreme Court hears an important environmental case Tuesday, testing whether utilities must use the best technology available to minimize harm to the nation's waterways. At issue is the physical impact on fish and the financial impact on companies.

Posted by Marcia Oddi on December 2, 2008 09:17 AM
Posted to Environment

Law - "Obama To Tackle Explosion In Federal Contracts"

Outsourcing government work - the explosion in government contracts under the Bush administration - is the subject of a two-part NPR story by Daniel Zwerdling. Part I, which ran yesterday, is here - you can read it or listen to the 7:30 minute report. And here is Part II, which ran this morning, headed "New President Faces Powerful Federal Contractors." It runs 7:48 minutes.

Posted by Marcia Oddi on December 2, 2008 09:06 AM
Posted to General Law Related

Ind. Decisions - Still more on Indiana's Little Hatch Act

Following up on its two stories Sunday, the Evansville Courier & Press today has an editorial headed "Not everyone is a federal employee."

Posted by Marcia Oddi on December 2, 2008 08:55 AM
Posted to Ind. App.Ct. Decisions

Monday, December 01, 2008

Ind. Decisions - Federal district court sanctions city of Madison over strip-search

Brian Jones of the Madison Courier reported Saturday in a story that begins:

The United States District Court has set sanctions against the city of Madison, former Mayor Al Huntington, former Madison Police Chief Robert Wolf, Madison City Councilman Jim Lee and former city attorney Rob Barlow for not producing documents in a lawsuit filed by three Madison women who say their constitutional rights were violated when they were strip-searched by the Madison Police Department in January 2007.

The sanctions require the city and the other defendants in the case to pay a fine of $1,000, complete all requests for documents by the plaintiff by Dec. 5, and pay the three women's attorney fees for filing the motion which resulted in the sanctions.

U.S. Magistrate Judge William G. Hussmann Jr., decided to apply the sanctions after the defense repeatedly promised to produce evidence and depositions in the case but failed to do so as ordered by the court.

"The testimony of Mr. Barlow in particular indicates to the court that these defendants were not taking their obligations to comply with discovery in a serious matter, and in many instances did not attempt to comply at all," Hussmann wrote in his decision.

Hussmann's decision also pointed out, when the initial request for documents outlining the Madison Police Department's standard operating procedure was given to the women's attorney in December 2007, it contained directions for 31 procedures. However, when Wolf's deposition was taken in April of this year, he revealed new standard operating procedures numbered 32 through 35 which had been prepared prior to Dec. 21, 2007, but had not been revealed to the women's attorney.

Standard operating procedure 35 addresses warrantless searches and provides detailed rules concerning matters relevant to strip-searches.

Here is a copy of the 9-page order of William G. Hussmann, Jr., United States Magistrate Judge, dated Nov. 20, 2008.

Posted by Marcia Oddi on December 1, 2008 05:22 PM
Posted to Ind Fed D.Ct. Decisions

Environment - Who is responsible for cleanup costs?

From WKLI News:

(ANGOLA) - The future of the Univertical plant in Angola is scheduled to be discussed during tonights Angola City Council meeting.

The company is threatening to leave Angola for North Carolina if enviromental problems which go back to when the property on Weatherhead Street was owned by Dana Corporation are not taken care of.

At issue is an agreement that the now bankrupt Dana Corporation entered into with the Indiana Department of Envriomental Management when its Angola facility closed 15 years ago. Univertical bought the property in the mid 90's under the assumption the clean up of pollutants was going to be handled by Dana and IDEM.

But Dana's bankruptcy has changed things and it has led to a series of closed door discussions between local, state and company officials over how the pollution will be cleaned up and who will pick up the costs.

We tried to contact company president Chuck Walker last week. While our phone call was not returned he was quoted in yesterdays Herald-Republican as saying he and IDEM will present a proposal to the City Council tonight in which $6.5 million would be spent on the clean up, with the state and Univertical picking about $1.6 million of the costs.

Walker also told the newspaper he wants to keep the company in Angola. The company was founded in Detroit 70 years ago. It manufactures materials for the plating industry.

A question would be, would Univertical's moving to North Carolina change the obligations of the various parties for cleaning up the property?

I've looked for the Angola Herald-Republican story, but it turns out to be accessible online only to subscribers to the paper.

Posted by Marcia Oddi on December 1, 2008 04:07 PM
Posted to Environment

Courts - Still more on: U.S. seeks clarity on muddy Rapanos ruling

Apparently it isn't going to get it. Updating this earllier entry, Lyle Denniston of SCOTUSBlog writes today:

The Supreme Court refused on Monday to reopen the issue of the kinds of wetlands that are protected from pollution discharges under the federal Clean Water Act. Without comment, the Court denied review of a Justice Department appeal and a cross-appeal on the issue; the cases were sequels to the Court’s splintered 2006 ruling in Rapanos v. U.S. (04-1034). * * *

The Court’s refusal to consider anew the scope of wetlands protection leaves lower federal courts to continue to struggle over the meaning of the Rapanos decision. The Court in that decision provided three separate approaches to the Clean Water Act’s scope –one embraced by four Justices, one by a different group of four, and one by Justice Anthony M. Kennedy. The Justice Department asked the Court to clear up the matter, appealing in U.S. v. McWane (08-233); the other side filed a conditional cross-appeal on a Double Jeopardy issue in McWane v. U.S. (08-364). The case now returns to lower courts for a new trial on criminal charges of dumping industrial waste water into a creek next to a pipe-making plant in Birmingham, Ala.

Posted by Marcia Oddi on December 1, 2008 01:23 PM
Posted to Courts in general | Environment

Ind. Decisions - Transfer list for week ending Nov. 26, 2008

Here is the just issued transfer list for the week ending Nov. 26, 2008. It is one page.

No transfers were granted last week.

Over 4.5 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 December 1, 2008 01:17 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Darvay Mashawn Sallee v. State of Indiana (NFP)

Larry F. Anglin v. State of Indiana (NFP)

Posted by Marcia Oddi on December 1, 2008 12:46 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit on service of process

In a 16-page Illinois decision today, U.S. v. Ligas, the panel splits 2-1 on the question of whether service of process was properly effectuated. Judge Sykes writes:

Lawrence Ligas appeals the district court’s grant of summary judgment to the government for $319,883.60 in unpaid taxes, interest, and penalties. Although Ligas raises multiple arguments in support of reversal, we need only consider one: lack of personal jurisdiction. The government never properly served Ligas. It sought multiple extensions of time to effectuate service, asserting that if the case was dismissed for lack of personal jurisdiction, it could not be refiled because the statute of limitations had expired. After giving the government nearly a year to serve Ligas, the district court dismissed the govern- ment’s complaint for failure to serve process as required under Rule 4 of the Federal Rules of Civil Procedure. * * *

Ligas was never properly served, and the court’s decision to reconsider and vacate the Rule 4(m) dismissal order and reinstate the complaint was based on a legally erroneous conclusion that Ligas’s motion to quash waived his objec- tion to personal jurisdiction. Accordingly, we REVERSE the judgment of the district court and REMAND the case to the district court with instructions to dismiss the complaint.

[Judge Evans' dissent begins on p. 14.]

Posted by Marcia Oddi on December 1, 2008 12:38 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Indianapolis Star editorial praises state BMV

An editorial today in the Indianapolis Star begins:

This week brought the revelation of good news regarding the Indiana Bureau of Motor Vehicles. The agency both received and gave.

In down-to-earth business that matters most to the motoring public, the BMV was lauded by the State Board of Accounts for "extraordinary improvement" in its operations, which were the stuff of sick jokes a mere two years ago.

In the more ethereal, and headline-making, realm, BMV Commissioner Ron Stiver announced he is dropping a new policy that banned mention of the deity on personalized license plates.

Both current BMV head Ron Stivers and former head Joel Silverman come in for praise:

Crowning two years of top-to-bottom effort led by Stivers and his predecessor, Joel Silverman, the board of accounts closed its report with two minor "corrective action recommendations," compared to 33 just 18 months ago. The independent auditor cited long-overdue accomplishments such as "installation of a comprehensive accounting system" and "implementation of sound internal controls that strengthen financial oversight." Those dry phrases translate into taxpayer savings and customer satisfaction.

Ironically, a computer network upgrade, whose disastrous startup figured in Silverman's departure, has been a key to the turnaround. But so have simpler measures, from better labor-management communication to incentive bonuses to spiffed-up decor and lighting in the branches. Waiting time has been slashed, thanks to harder work by staff and the shift of a million customers a year to the Web, auto dealer outreach and other options.

Posted by Marcia Oddi on December 1, 2008 07:52 AM
Posted to Indiana Government

Ind. Law - "State legislators unlikely to tackle same-sex marriage amendment in 2009"

Bill Ruthhart of the Indianapolis Star has a lengthy front-page story today reporting:

Though the number of states adopting bans on same-sex marriage grows, the odds appear slim that Indiana lawmakers will give serious consideration to such a constitutional amendment next year.

It's not because social conservatives won't push for it again.
Advertisement

But after the effort died twice, the long and complicated process of amending the constitution would have to start all over again, and no one in the Statehouse seems prepared to go to the ramparts.

Even the Republican lawmaker who has pushed the measure in the past says he doesn't plan to do so in the 2009 session.

"I think the issue is still relevant in that it continues to be debated in a variety of states and continues to be heard by a variety of courts," said state Sen. Brandt Hershman, R-Wheatfield.

"However, if action is to be taken this time, it would be my intent to see it start in the House, because that's been the holdup in the past, and until that legislative entanglement is resolved, there's not much to be achieved through the Senate yet again."

The Indiana Senate, controlled by Republicans, has voted three times to pass the amendment. The House, however, is controlled by Democrats, and Speaker B. Patrick Bauer has not shown a willingness to allow a floor vote on the issue.

Bauer, D-South Bend, has said he thinks Indiana's law prohibiting same-sex marriages is enough.

"I've been asking people to show me that the current law has been broken, and they haven't showed me yet. I want to see the couples that were illegally married," he said earlier this year when asked about the prospects of a constitutional amendment. * * *

Though marriage under Indiana law is defined as the union between a man and a woman, proponents of the amendment say they want to protect their position in the state constitution to prevent judges from misinterpreting the law or overruling it.

Opponents contend not only that current law is sufficient but that an amendment would constitutionally shield a form of discrimination.

Nationwide, 30 states have passed constitutional amendments banning same-sex marriages. Arizona, California and Florida approved their measures in November.

A side-bar to the story gives "key dates" in the "history of same-sex marriage laws," as compiled by the National Conference of State Legislatures.

Posted by Marcia Oddi on December 1, 2008 07:47 AM
Posted to Indiana Law

Ind. Courts - "A statewide court system?"

Reprinted with permission from the Dec. 1, 2008 issue of Ed Feigenbaum's Indiana Legislative Insight, the lead story:

For at least two decades, concerns have been raised about just how constitutional the state court system might be due to disparities in funding at the local level. While there has been less public discussion of the issue in the past few years than in the early 90s, the issues have not faded away, and, indeed, there may now be a new focus.

The Chief Justice was one of the two marquee names on the Kernan-Shepard Commission that issued a report suggesting a major overhaul of the local government structure (and shifting Indiana’s trial courts to a state funding model), and, to a certain extent, the impetus of this study and the sense of the overall atmosphere – that the time was ripe to examine different ways of organizing government, including the courts – has led the Supreme Court to quietly undertake a review of the state court system.

In addition, the Indiana Judicial Conference, through a smaller committee, is examining broad strategic planning issues involving court organization that, those involved expect, would ultimately lead to more efficient and equitable judicial operations.

The Supreme Court’s Division of State Court Administration is actually conducting three related studies that it believes will result in information that will help guide any reform.

One study is being led by Purdue University economic guru Larry DeBoer, the go-to outside guy for state officials on property tax fiscal matters. Dr. DeBoer and his Purdue colleagues are conducting a statewide study to assess the current costs of court operations statewide. You may recall that Dr. DeBoer conducted a related examination more than a decade ago during an earlier attempt at organizing a more centralized court system.

At the same time, the multi-disciplinary staff at the Center for Urban Policy and the Environment at the Indiana University School of Environmental and Public Affairs is conducting a broader study on the assorted potential impacts of a move from local to state funding, and analyzing various statewide governance models employed by other states that have undergone similar changes. CUPE brings an extensive knowledge of practical local government operations to the table, serving as home to the Indiana Advisory Commission on Intergovernmental Relations and also staffing the Kernan-Shepard Commission.

The third prong involves H.J. Umbaugh and Associates, independent financial advisors to local governments, conducting a study on the cost projections for a statewide system, focusing on the services currently provided by the county clerk, sheriff, and other officials and entities vital to court operations. Umbaugh’s component is being led by former Indianapolis Comptroller Bob Clifford. Clifford, who also served as executive director of the Indianapolis Bond Bank, was an executive assistant to former Gov. Evan Bayh (D), where the former Arthur Andersen audit manager was in charge of all government efficiency efforts.

We’re not picking up any definitive timetable yet . . . but stay tuned.

For related ILB entries, see this one from Nov. 28th headed "IU Center for Urban Policy and the Environment to study court reform," and this one from Nov. 24th headed "Court's FY 2009-2011 request to the State Budget Committee," which includes links to several earlier entries.

Posted by Marcia Oddi on December 1, 2008 07:25 AM
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week; includes school finance challenge

This week's oral arguments before the Supreme Court:

This Thursday, Dec. 4th:

9:00 AM - Philip A. Bonner, et al. v. Mitch Daniels, et al. - A student brought a class action suit seeking a declaration that the State's school funding system violates the state constitution. The Marion Superior Court dismissed the action. A divided Court of Appeals reversed. Bonner v. Daniels, 885 N.E.2d 673 (Ind. Ct. App. May 2, 2008), vacated. (See ILB summary here.) The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Appellant: Ronald J. Waicukauski and Jana K. Strain, Indianapolis, Indiana. Michael D. Weisman and Rebecca P. McIntyre, Boston, Massachusetts. Attorneys for Appellee: Steve Carter, Thomas M. Fisher, Heather L. Hagan, Indianapolis, Indiana. Attorneys for Amicus Tax Foundation: Joseph D. Henchman, Washington, D.C. John M. Mead, Indianapolis, IN. Attorneys for Amici National Access Network, Education Law Center, and The Rural School and Community Trust, Inc.: Jerry Garau, Indianapolis, IN. Molly A. Hunter, New York, NY. Ellen Boylan, Newark, NJ. Amanda G. Adler, Columbia, SC.

Here is a list of earlier ILB entries on the school finance case.

9:45 AM - George Jackson v. State of Indiana - The Madison Superior Court denied Jackson's motion to suppress certain evidence, and Jackson was subsequently convicted of unlawful possession of a firearm. The Court of Appeals reversed, holding the search warrant was invalid and the evidence was not otherwise admissible under the good faith exception to the warrant requirement. Jackson v. State, 889 N.E.2d 830 (Ind. Ct. App. July 8, 2008), vacated. (See ILB summary here, 2nd case.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Jackson: Anthony C. Lawrence, Anderson, IN. Attorney for State: Justin F. Roebel, Indianapolis, IN.

Webcasts will be available here.

This week's oral arguments before the Court of Appeals that will be webcast:

None scheduled.

This week's oral arguments before the Court of Appeals that will NOT be webcast:

This Wednesday, Dec. 3rd:

1:30 PM - Indianapolis-Marion County Public Library vs. Charlier Clark, et al - Appellant, Indianapolis-Marion County Public Library, argues that the judgment entered for the appellees, Charlier Clark & Linard, Thornton Tamasetti Engineers and Joseph G. Burns, on its negligence claims was erroneous because those claims were not barred under the economic loss doctrine, as espoused by our Supreme Court. The Scheduled Panel Members areL Chief Judge Baker, Judges Mathias and Brown. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on December 1, 2008 07:20 AM
Posted to Upcoming Oral Arguments

Sunday, November 30, 2008

Environment - "At the Last Minute, a Raft of Rules"

This lengthy story today in the Washington Post, reported by R. Jeffrey Smith and Juliet Eilperin, gives good background on the procedural issues relating to pushing federal rules through at the end of a term. Here is how it begins:

In a burst of activity meant to leave a lasting stamp on the federal government, the Bush White House in the past month has approved 61 new regulations on environmental, security, social and commercial matters that by its own estimate will have an economic impact exceeding $1.9 billion annually.

Some of the rules benefit key industries that have long had the administration's ear, such as oil and gas companies, banks and farms. Others impose counterterrorism security requirements on importers and private aircraft owners.

The rules cover obscure as well as high-profile social and economic issues: spelling out what kinds of records must be kept by sexually explicit performers and publications, exempting hobbyists' rocket motors from federal explosives controls, expanding the collection of DNA samples from federal prisoners.

In most cases, the new regulations are meant to spell out precisely how federal employees and private citizens must comply with laws passed by Congress. But the language in those laws often had ambiguities -- reflecting lawmakers' uncertainties or disagreements -- that gave Bush's appointees broad discretion to follow their policy preferences. Similar "midnight regulations" were approved by previous presidents.

In the environmental area, the latest rules indicate that the Bush administration wants to lend a final assist to industries that feel burdened by looming pollution controls or wilderness-protection laws. A rule approved by the White House three days after the presidential election, for example, would ease constraints on environmentally damaging oil shale development throughout the West, despite objections from Colorado Gov. Bill Ritter (D) and a majority of the state's congressional delegation.

On Nov. 17, Ritter called the decision "not just premature, it's hasty and I would even argue reckless." The Interior Department published it in the Federal Register Nov. 21, and it will take legal effect in 60 days from that date, or shortly after Congress reconvenes with a larger Democratic majority.

Top officials are still finishing work on other industry-friendly measures, including a regulation inhibiting the ability of Congress to halt logging, mining, and oil and gas extraction on public lands. Another rule would allow federal agencies to proceed with development projects without undergoing independent scientific review under the Endangered Species Act.

The Bush administration's impetus for hurrying to approve and publish so many of these regulations in the Federal Register is that those deemed to have a major economic impact -- defined by the Office of Management and Budget (OMB) as more than $100 million a year -- take legal effect after 60 days.

That means Nov. 21 was an important political deadline to ensure they become effective before President-elect Barack Obama's Jan. 20 inauguration. Less significant regulations, including many still in final stages of preparation, can take effect in 30 days or less.

Once the new rules take the form of law, Democrats can undo them only by three complicated means: through a new regulatory rulemaking that would probably take years; through congressional amendments to underlying laws; or through special, fast-track resolutions of disapproval approved by the House and Senate within a few months after the start of the new congressional session on Jan. 6.

Such a quick congressional rebuke has occurred only once before, in 2001, when a Republican-controlled Congress with President Bush's backing blocked a workplace safety regulation completed in the Clinton administration's final months. But recently, spokesmen for Senate Majority Leader Harry M. Reid (Nev.) and House Speaker Nancy Pelosi (Calif.) said Democrats were prepared to use that regulatory reversal power in consultation with Obama.

Posted by Marcia Oddi on November 30, 2008 04:25 PM
Posted to Environment

Ind. Law - Still more on "Approving a proposed constitutional amendment that would put limits on property-tax bills, so it can be put on the ballot for ratification in 2010"

Updating this Nov. 9th entry quoting a story by Lesley Stedman Weidenbener of the Louisville Courier Journal, and an entry from Nov. 11th quoting an editorial from the Fort Wayne Journal Gazette, today we have another Weidenbener article, plus an editorial from the Indianapolis Star.

"Property tax battle turns to timing of vote: Some want to wait to see effects" is the heading of today's LCJ story, that begins:

When it comes to timing, it doesn't matter whether the Indiana General Assembly approves a proposed constitutional amendment limiting property tax bills in 2009 or 2010.

Either way, the question would appear on the ballot for voter ratification in 2010.

Yet whether lawmakers should tackle the amendment next year could prove one of the most contentious debates of the upcoming session.

Republican leaders say the vote should take place in 2009 because it's a continuation of a larger property tax package passed this year, a sort of promise they feel they made to voters and one that they're not willing to ignore.

"I'm not convinced -- when I think about how upset people were with their property tax bills before we did this reform and the level of concern and outright suspicion that these were only going to be temporary fixes -- that we can afford to backslide on the issue," said Senate Appropriations Chairman Luke Kenley, R-Noblesville.

But local officials and Democratic lawmakers favor waiting until 2010 so they can better gauge how the limits will reduce revenue for many local governments and schools. They'll get their first glimpse of that impact next year, as the limits -- which have already been written into state law -- are phased in.

"We're going to have an experimentation with property tax caps," House Speaker Pat Bauer, D-South Bend, said about the phase-in.

"We'll see what happens," he said. "Experience is a great teacher."

Starting next year, homeowners' bills can be no more than 1.5 percent of assessed values -- unless local voters have agreed to spend more through a referendum. That means the annual tax bill for a $100,000 house could be no higher than $1,500.

For the owners of rental and agricultural property, the limit will be 2.5 percent of assessed value. For businesses, it will be 3.5 percent.

In 2010, the law requires that the limits be lowered to 1 percent for homeowners, 2 percent for landlords and farmers, and 3 percent for businesses. For a $100,000 house, the bill could then be no higher than $1,000.

Gov. Mitch Daniels and some lawmakers are concerned that future legislatures might eliminate or adjust the limits if they exist only in state law. So as part of the larger tax package, the General Assembly earlier this year took the first step to put the limits in the Indiana Constitution.

But in Indiana, amendments must be passed by two, consecutively elected legislatures before they can be placed on the ballot for ratification. That means lawmakers must approve the same amendment in either 2009 or 2010 to make it eligible for voter consideration in the next general election. There is no 2009 general election.

Daniels -- who pushed for the tax caps -- plans to ask lawmakers to approve the amendment next year rather than wait another year.

"The public wants it. The public wants a chance to vote," Daniels said. "It's really a matter of trusting the people."

But Bauer seems just as vehement that lawmakers wait. He wants to see how the caps affect communities because when property owners hit their limits, local governments and schools collect less money.

"Wait for shake-out before setting tax caps in stone" is the headline to today's Indy Star editorial:

Gov. Mitch Daniels is right when he argues that Hoosiers need a permanent fix in the state's approach to property taxes, a system that has frustrated homeowners and their elected leaders for decades.

But amending the state constitution should be done carefully and slowly to ensure that proposed changes don't give rise to unintended consequences that would be difficult to repair.

It's partly for that reason that the authors of the constitution set up a multiyear process that requires two separately elected legislatures to approve a proposed amendment before the state's voters are given a chance to voice their assent.

The proposed property tax amendment, which would make permanent a three-tiered system of caps, cleared the first stage this year, winning the General Assembly's initial approval. The measure will return for a second vote in the Statehouse in the weeks ahead and could go before voters in 2010.

Yet, the newly enacted caps are still being rolled out, with the top rate on homeowners fixed at 1.5 percent next year and set to drop to 1 percent in 2010. Eventually, the cap will rest at 2 percent for rental properties and at 3 percent for businesses.

The phase-in means that the potential consequences of the caps won't be felt fully until after the current timetable for the amendment plays out.

The fast-track scenario worries local government and business organizations, including the state Chamber of Commerce.

"Of course there's a sense of urgency from homeowners and businesses to put the caps into the constitution. Who wouldn't want to have that kind of cost savings?'' Matt Greller, executive director of the Indiana Association of Cities and Towns, told The Star's Bill Ruthhart. "But I think it's urgency without knowing the full picture.''

Which is precisely why lawmakers should be cautious about pushing the amendment onto a statewide ballot before all of the consequences are known.

Daniels acknowledges that critics have a point about waiting to gather more information, but he argues that voters should be trusted to make a sound decision about the amendment's fate.

That sounds noble. The problem, however, is that because of the phase-in voters in 2010 likely would not know the full consequences of the caps before casting their ballots.

Daniels and other supporters of the amendment are certainly correct when they point to a long history of supposed property tax solutions that were wrecked by subsequent decisions made by the General Assembly and local governments. An amendment likely will be needed at some point to secure the permanency that the governor and others want.

For now, however, it's better to wait for all the consequences of the caps to play out. Adjustments may be needed, without having to endure the prolonged process of fixing an amendment once it's grafted into the constitution.

Hoosiers are understandably fed up with high property taxes. They demanded -- and the governor and the General Assembly delivered -- a solution, one that appears fair, despite the concerns of certain business interests.

But appearances can be misleading and consequences often emerge over time.

Prudence is in order any time a change in the constitution is considered. That's especially true when addressing an issue as complex and far-reaching as property taxes.

Posted by Marcia Oddi on November 30, 2008 01:47 PM
Posted to Indiana Law

Ind. Decisions - More on Indiana's Little Hatch Act

Updating what is now a very long list of ILB entries quoting stories relating to the Little Hatch Act and the Court of Appeals decision Nov. 13th in the case of Kevin D. Burke v. Duke Bennett, Thomas B. Langhorne of the Evansville Courier and Press has two stories today on the topic.

The first, headed "Little Hatch Act losing focus," begins:

Applying the Little Hatch Act to employees of nonprofit agencies means perspective has been lost, says a national consultant who blogged about the Vanderburgh County case. [ILB - see note at end of this entry]

Mike Burns, a partner in the nonprofit management and governance consulting firm of Brody Weiser Burns, said he felt compelled to speak out after reading about Republican lawsuits challenging the eligibility to seek office of Democratic Commissioner-elect Steve Melcher. Brody Weiser Burns has offices in New Haven, Conn., and just outside Washington, D.C.

"There's a huge difference between a federal employee who's not supposed to be engaged in partisan political activity and someone who works for a nonprofit, even if that nonprofit is doing work for the federal government," Burns said.

County Commissioners President Jeff Korb dropped his lawsuit days after filing it. As Korb had, the GOP contends the Little Hatch Act made Melcher ineligible to challenge Korb because Melcher is facilities manager for the Community Action Program of Evansville, a not-for-profit agency that runs a federally funded Head Start program.

The cases were filed after the Indiana Court of Appeals' finding that Terre Haute Mayor Duke Bennett, a Republican, was ineligible to run for that office in 2007. Bennett was director of operations from 2005 until 2007 at the Hamilton Center, a not-for-profit community behavioral health services center that operates a federally funded Head Start program.

That case, which is expected to be appealed to the Indiana Supreme Court, inspired the suits challenging Melcher's eligibility to run.

In his "Nonprofit Board Crisis" blog, which examines relationships between government and nonprofit agencies, Burns blasted the appeals court for its ruling in the Bennett case.

"Private nonprofit organizations are just that: private," Burns wrote. "Yes, they may be doing work for the U.S. government and therefore their employees are doing such work, but that does not make them employees of the government."

But the Office of Special Counsel, the federal agency charged with investigating and prosecuting Hatch Act and Little Hatch Act cases, says it uses its power judiciously and recognizes that not all employees of nonprofit agencies that receive federal funds are violating the law.

"We look at the individual employee's job duties and what his responsibilities are, and we look at the Head Start funding, what programs it's funding and how the money is being used, if the employee has duties in connection with Head Start," said Erica Hamrick, deputy chief of the OSC's Hatch Act unit.

In Bennett's case, the Office of Special Counsel issued an advisory opinion after his election that the law prohibited

The second, headed "Rule treads muddy waters," begins"

Don Schneider still isn't sure exactly what he was supposed to have done that was against the law.

Schneider, an employee of the Charlevoix County (Mich.) Sheriff's Department, was elected sheriff without opposition on Nov. 4. But Schneider, a Republican, says he got all the opposition he could ever want from Hatch Act enforcers.

Among its other restrictions, the 70-year-old federal law forbids employees of the federal government's executive branch from running in partisan elections. The Little Hatch Act covers employees of state and local government and other agencies who work with federal funds or programs fully or partially financed by them. Full-time incumbent officeholders are exempt from the candidacy prohibition.

Like pending cases in Vanderburgh County and Terre Haute, Ind., Schneider suspects his case was called to the Office of Special Counsel's attention by a political opponent.

In the Vanderburgh County case, the local GOP and Republican County Commissioner Jeff Korb seek to reverse the election of Democrat Steve Melcher. And the Terre Haute case centers on the Indiana Court of Appeals' Nov. 13 finding that Mayor Duke Bennett was ineligible to run for that office in 2007.

"There are people who are using the Hatch Act against their opponents," Schneider said. "It's being abused."

In a case that was publicized widely in northern Michigan, Schneider told the Courier & Press he had to go through an arduous, monthslong negotiation with the U.S. Office of Special Counsel just to be cleared to run. The Washington, D.C.-based federal agency is charged with investigating and prosecuting Hatch Act and Little Hatch Act cases.

Note: The ILB has located the blog of Mike Burns, mentioned above. But I could not immediately locate any entries about the Hatch Act or the Vanderburgh County case.

Posted by Marcia Oddi on November 30, 2008 12:57 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Jeffersonville annex could go to high court"

The Court of Appeals decision August 15th in the case of Bruce Herdt, Louis Evans and Charlie Milburn v. City of Jeffersonville, Indiana and Common Council for Jeffersonville, Indiana (see ILB summary here, 6th case; see list of entries here), is the subject of a story today in the Jeffersonville / New Albany News & Tribune. David A. Mann reports in a long story that begins:

Plaintiffs in remonstrance of last year’s annexation of the Oak Park Conservancy District have asked the Indiana Supreme Court to hear their case.

That’s after the Clark County Circuit Court and the Indiana Court of Appeals dismissed the case earlier this year.

According to Bruce Herdt, lead plaintiff in the remonstrance, the petition to the Indiana Supreme Court was made Nov. 21. There is no deadline by which the court has to decide to hear the case or not.

The protest relates to a 2007 annexation by the Jeffersonville City Council, which — according to the fiscal plan that passed with it — took in 7,806 acres of land and an estimated 3,360 households north and east of the old city limits. Herdt and others dispute the number of households.

The annexation was done in six tracts, four of which were made final earlier this year. Two areas — known legally as area B and area E — were protested. The case on which the courts have been deciding isn’t on the annexation itself, but on the legal procedure of the protest.

Under state law, a remonstrance to an annexation has to be filed within 90 days and signatures of 65 percent of those affected by the annexation have to be included with the legal complaint.

Derrick Wilson, the attorney representing those remonstrating, filed paperwork on the 90th day of the period without the signatures. They were filed as an amendment to the original complaint a few days later.

Earlier this year, former Clark Circuit Judge Daniel F. Donahue granted a motion to dismiss from the city, which argued that the needed materials weren’t filed on time.

Wilson argued that the amendment containing the signatures related back to the original filing.

Both the trial court and the appeals court sided with the city.

Posted by Marcia Oddi on November 30, 2008 12:51 PM
Posted to Ind. App.Ct. Decisions

Saturday, November 29, 2008

Law - "Victory for wine lovers sours as Michigan tries again to ban direct shipping"

Updating this long list of ILB entries on wine shipping, including this most recent entry from Nov. 1st headed "Judge orders Michigan to Allow Wine Shipping by Out-of-State Retailers," Dawson Bell reports today for the Detroit Free Press:

LANSING -- Joe Chess, an orthopedic surgeon from Kalamazoo, said his passion for fine wine is deep.

Deep enough that he regularly seeks hard-to-find varieties in remote places, and deep enough to get him into a lawsuit fighting Michigan regulations stopping him from buying wine from out-of-state retailers. Two months ago, Chess won the suit when a federal judge in Detroit ruled that the state couldn't ban out-of-state retailers from shipping wine directly to customers while allowing Michigan firms to do it.

So why doesn't Chess feel like a winner?

On Nov. 11, Lansing lawmakers introduced a bill to solve the problem by banning all direct wine shipments by retailers, whether they're Michigan merchants or those in another state. The bill was approved in committee the next day and could sail through the Legislature in the lame-duck session beginning Tuesday and be on the governor's desk before Christmas.

"That's crazy," Chess said last week. "The state loses a lawsuit, and they respond by punishing consumers and retailers. It seems to me Michigan can ill afford to be hurting businesses right now."

State regulators, some legislators and the Michigan Beer and Wine Wholesalers Association, the powerful lobby for beer and wine distributors, said it's not crazy at all. All they're trying to do, they said, is preserve an orderly system that dates pretty much from the repeal of prohibition. The system was designed to keep tight control over who gets to buy and sell alcoholic beverages. Michigan Liquor Control Commission spokesman Ken Wozniak said the system actually helps some in-state business by protecting them from competition.

Opening up Michigan's consumer market to outsiders would "turn it upside-down ... wide open," Wozniak said.

Money also is a factor. The LCC is the nominal distributor of liquor in Michigan and reaps more than $200 million a year in revenue. Wozniak said the state wants to limit shipments from out of state out of "self-interest."

Attorneys for Chess dispute the notion that the government would collect less in fees and taxes by opening up the market. Michigan could impose the same rules on outsiders that are imposed on Michigan retailers, said Alex Tanford, an Indiana University law professor engaged in an effort to open up the market for alcoholic beverages around the country.

"They can pretty much engage in any regulation they want," Tanford said. "They just can't impose different regulations on out-of-staters."

The Legislature authorized shipments by in- and out-of-state wineries three years ago after losing another court case. How much traffic would be generated in an open market for direct shipment is unclear.

Chess said he believes it is relatively small, mostly confined to people like him who are interested in buying hard-to-find, high-end wine. But the attitude of the beer and wine wholesalers group suggests its members are concerned about serious erosion of market share. The group intervened in the lawsuit to defend the so-called three-tier system, which gives its members monopoly distribution rights within specific territories.

Posted by Marcia Oddi on November 29, 2008 06:12 PM
Posted to General Law Related

Ind. Courts - "Local judicial posts in question in Obama administration"

Dan Hinkel reports today in the NWI Times:

A presidential nomination of a Hammond-based judge to a federal appeals court has died in Congress.

That nomination's resurrection or burial could serve as an early test of President-elect Barack Obama's approach to shaping the judiciary.

Hammond-based U.S. District Court Judge Philip Simon was nominated by President George W. Bush in September to an open seat on the 7th Circuit Court of Appeals in Chicago. That nomination will expire without a hearing, said Andy Fisher, a spokesman for Indiana Sen. Dick Lugar.

Meanwhile, Senate Democrats are preparing for their chance to influence judicial nominations. By custom, the president considers the recommendations of his party's senators when nominating judges. That should mean increased influence for Democratic Sens. Evan Bayh, of Indiana, and Dick Durbin, of Illinois.

"We expect President-elect Obama to continue this practice," said Eric Kleiman, Bayh's spokesman.

A staff member for Judge Simon -- a two-time Bush nominee for the federal bench -- said White House officials have asked Simon not to talk about the nomination.

Would Obama renominate a judge twice nominated by Bush? Curt Levey, executive director of the Committee for Justice, a Washington, D.C.-based conservative advocacy group, noted that bipartisan cooperation on federal judges is not unprecedented.

"I'd point out that Bush, very early in his first term, appointed two Clinton nominees," Levey said.

Levey also said, however, that partisan nomination blocking reached a "very high level" under Bush. Recent news reports have indicated Republicans might be preparing to block Obama's judicial nominations.

Speculation abounds on who might replace Simon if he is renominated and confirmed. Also in question is the future of acting U.S. Attorney David Capp, a Democrat who has served under Republicans in the Hammond branch of the federal office. U.S. attorneys frequently are tapped for federal judgeships. Obama also will get to fill an opening in South Bend-based district court.

Posted by Marcia Oddi on November 29, 2008 08:36 AM
Posted to Indiana Courts

Friday, November 28, 2008

Environment - "EPA, Interior Dept. Chiefs Will Be Busy Erasing Bush's Mark"

The Washington Post today has two stories on prospects for heads of EPA and Interior. See them here and here.

Posted by Marcia Oddi on November 28, 2008 01:55 PM
Posted to Environment

Environment - "'Clean coal' plant rises amid ill winds"

Updating a long list of earlier ILB entries on the Edwardsport plant, Rick Callahan of the AP has this lengthy report today, subheaded "Indiana site faces rising costs, future greenhouse curbs," that begins:

In the heart of southwestern Indiana's coal country, Duke Energy Corp. crews are building what the company's chief executive calls the power plant of the future -- a $2.35 billion complex where coal will be turned into a gas, stripped of pollutants, then burned to generate electricity.

The project, one of the "clean coal" technologies supported by President-elect Barack Obama, will become by far the nation's largest coal-gasification plant when it goes online in 2012, generating enough power to light more than 200,000 homes.

But opponents suing to halt the 630-megawatt plant near Edwardsport call it a colossal waste of money that will saddle the utility's Indiana customers with years of rate increases and release tremendous amounts of carbon dioxide, a greenhouse gas tied to global warming.

"Once you do all the cost assessments, the fact is this is going to gouge ratepayers. The cost of this just continues to skyrocket," said Bruce Nilles, a Madison, Wis.-based attorney for the Sierra Club, which is suing to stop the plant.

Indiana regulators approved the project a year ago, even though utilities nationwide have pulled the plug on 65 coal power plants since early 2007 amid rising construction costs and expectations that Congress will limit greenhouse gas emissions.

Just this week, Indiana Gasification withdrew its application with the Indiana Utility Regulatory Commission for permission to build a coal gasification plant near Rockport, about 25 miles east of Evansville.

The U.S. Department of Energy in January yanked funding for the FutureGen coal plant in Mattoon, Ill., after its price ballooned to $1.8 billion, nearly double the original cost. And in July, NRG Energy's CEO canceled a coal-gasification plant in New York, declaring it had become too costly and was "ahead of its time."

Posted by Marcia Oddi on November 28, 2008 01:43 PM
Posted to Environment

Environment - Landowners in the West forming cooperative associations to deal with wind power developers

Following on a list of earlier ILB entries on the development of wind power, the NY Times has a long story today by Felecity Barringer titled "A Land Rush in Wyoming Spurred by Wind Power." Some quotes:

WHEATLAND, Wyo. — The man who came to Elsie Bacon’s ranch house door in July asked the 71-year-old widow to grant access to a right of way across the dry hills and short grasses of her land here. Ms. Bacon remembered his insistence on a quick, secret deal.

The man, a representative of the Little Rose Wind Farm of Boulder, Colo., sought an easement for a transmission line to carry his company’s wind-generated electricity to market. His offer: a fraction of the value of similar deals in the area. As Ms. Bacon, 71, recalled it: “He said, ‘You sure I can’t write you out a check?’ He was really pushy.”

A quiet land rush is under way among the buttes of southeastern Wyoming, and it is changing the local rancher culture. The whipping winds cursed by descendants of the original homesteaders now have real value for out-of-state developers who dream of wind farms or of selling the rights to bigger companies.

The next line is my favorite part:

But as developers descend upon the area, drawing comparisons to the oil patch “land men” in the movie “There Will Be Blood,” the ranchers of Albany, Converse and Platte Counties are rewriting the old script.

Ms. Bacon did not agree to the deal from the Little Rose representative, Ed Ahlstrand Jr. Instead, she joined her neighbors in forming the Bordeaux Wind Energy Association — among the new cooperative associations whose members, in a departure from the local culture of privacy and self-reliance, are pooling their wind-rich land.

This allows them to bargain collectively for a better price and ensures that as few as possible succumb to high-pressure tactics or accept low offers. Ranchers share information about the potential value of their wind.

Posted by Marcia Oddi on November 28, 2008 01:31 PM
Posted to Environment

Law - "Pro Se Litigants: On the Rise and Mucking Things Up"

That is the heading to this WSJ Law Blog entry today, written by Jennifer Forsyth. She references this AP story by Margery A. Gibbs, dated Nov. 24. Some quotes from the Gibbs story:

The number of people serving as their own lawyers is on the rise across the country, and the cases are no longer limited to uncontested divorces and small claims. Even people embroiled in child custody cases, potentially devastating lawsuits and bankruptcies are representing themselves, legal experts say. * * *

The trend has resulted in court systems clogged with filings from people unfamiliar with legal procedure. Moreover, some of these pro se litigants, as they are known, are making mistakes with expensive and long-lasting consequences — perhaps confirming the old saying that he who represents himself has a fool for a client.

Paul Merritt, a district judge in Lancaster County, Neb., said he knows of cases in which parents lost custody disputes because they were too unfamiliar with such legal standards as burden of proof.

"There is a lot on the line when you have a custody case," Merritt said. "There are a lot of things that judges take into consideration in determining what's in the best interest of the child, and if you're a pro se litigant, the chances that you will know what those things are, and that you will present evidence of all those issues, are really small."

While the fees lawyers charge vary widely, the average hourly rate ranges from around $180 to $285 in the Midwest, and from $260 to more than $400 on the West Coast, according to legal consultant Altman Weil Inc.

Tim Eckley of the American Judicature Society in Des Moines, Iowa, said no national figures are kept on how many people represent themselves, "but I don't think anybody who's involved in the courts would deny that this is a growing trend in the last 10 to 15 years."

In California, about 80 percent represent themselves in civil family law cases — such as divorce, custody and domestic violence cases — according to the Self-Represented Litigation Network. In San Diego alone, the number of divorce filings involving at least one person not represented by a lawyer rose from 46 percent in 1992 to 77 percent in 2000.

In Nebraska in 2003, 13,295 people represented themselves in civil cases in state district courts. By 2007, the number had risen to 32,016, or 45 percent.

The result?

"Courts are absolutely inundated with people who do not understand the procedures," Talia said. "It is a disaster for high-volume courts, because an inordinate amount of their clerks' time is spent trying to make sure that the procedures are correctly followed." * * *

Many states offer self-help Web sites or desks at court offices that offer standard legal forms for such things as simple divorces. In some states, volunteer lawyers are made available to give legal advice to those who cannot afford an attorney.

The legal profession may not like the trend but realizes it is here to stay, and has gotten behind the effort. The American Bar Association is encouraging states to set up self-help desks and adopt standard forms.

Also, a majority of states have amended their attorney ethics rules to promote a growing practice known as "unbundling," in which a lawyer handles just part of a contract, lawsuit, divorce or other litigation for a small fee, rather than taking on the entire case.

The ethics rules have been changed to make it clear that lawyers can do this without being held responsible for the entire case. That can ease their fears of being sued for malpractice.

Related is an announcement from our Supreme Court, reported in this ILB entry from Nov. 25th titled "Ind. Courts - Court posts video for people considering representing themselves in family law cases."

Posted by Marcia Oddi on November 28, 2008 01:20 PM
Posted to General Law Related

Thursday, November 27, 2008

Ind. Courts - "Lake County spent bulk of state grant on uncertified interpreters"

So reports Marisa Kwiatkowski in this story today in the NWI Times:

CROWN POINT | Certified Spanish interpreter David Araujo said he doesn't want justice lost in translation.

Lake County has relied heavily on uncertified interpreters for its criminal court proceedings.

It spent the bulk of its state-funded grant money on uncertified interpreters, a Times review of grant spending shows. Indiana started its certified interpreter program in 2004.

About 14.2 percent of the grant money Lake County spent this fiscal year into November was paid to certified interpreters, data shows. The state requires 60 percent of the grant be spent on certified interpreters unless a waiver is given.

"That's not due process," Araujo said.

But Lake County Court Administrator Marty Goldman said by his count, 51.5 percent of the grant money spent so far has been approved by the state.

Nationwide, there have been "widespread breakdowns in due process and equal protection for non-English speaking litigants who appear before the courts," according to the National Center for State Courts.

Many hitches to the justice system on a national level were caused by improperly trained and unqualified interpreters, the center said.

Araujo said he has seen studies in which an average of 40 percent of what's happening in a trial is not interpreted.

"That's not enough," he said. "You're left with a huge void if everything isn't being conveyed to the defendant."

Araujo and certified Spanish interpreter Guillermo Romo said they have struggled to break into interpreting for the Lake County court system. The two said they have been passed over in favor of uncertified interpreters.

But one Lake County judge said certified isn't always better.

Lake Criminal Court Judge Salvador Vasquez admitted he preferred to use the services of a Spanish interpreter who, until recently, was not certified. The interpreter, Gloria Lupo, passed the certification test in September, and is waiting for her criminal background check to be completed.

"I speak Spanish, and her interpretation orally is phenomenal," Vasquez said.

Vasquez said Lupo and another interpreter also reduced their fees, saving taxpayers money.

He said he will make a concerted effort to use the rest of the grant money on certified interpreters.

Posted by Marcia Oddi on November 27, 2008 10:18 AM
Posted to Indiana Courts

Wednesday, November 26, 2008

Courts - James Bopp Jr. to represent newly elected Wisconsin Supreme Court Justice

The Capital Times, from Madison Wisconsin, reports today:

[Newly elected Wisconsin Supreme Court Justice Michael Gableman], who is facing charges that he violated the Wisconsin Judicial Code of Conduct during his spring race against incumbent Justice Louis Butler, is being represented by prominent Republican attorney James Bopp Jr. who serves as counsel to the National Right to Life Committee and the James Madison Center for Free Speech.

Posted by Marcia Oddi on November 26, 2008 01:56 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 25 NFP)

For publication opinions today (5):

In Patricia Popovich v. John R. Danielson, M.D. , a 12-page opinion, Judge May writes:

Patricia Popovich appeals the dismissal of her complaint against Dr. John R. Danielson. Because the Medical Malpractice Act governs three of Popovich’s claims, she needed to obtain an opinion from a medical review panel prior to filing her complaint, and the trial court properly determined it lacked jurisdiction over those claims. Popovich’s fourth claim, for fraud, was insufficiently specific for us to determine whether it falls under the Malpractice Act; as such it did not meet the pleading requirement of Trial Rule 9(B). Accordingly, the trial court properly dismissed that portion of her complaint, and we affirm. * * *

Because a medical review panel needed to first review Popovich’s claims of assault and battery, defamation, and “contractual obligation to accurately and correctly report necessary medical findings and observations in medical records,” the trial court properly dismissed them without prejudice. The court also properly dismissed without prejudice her claim of fraud, as that claim was insufficiently specific to meet the requirements of Trial Rule 9(B).

In In Re: The Paternity of A.M.P. , an 8-page opinion, Judge Robb writes:

In this Title IV-D proceeding, the State appeals the trial court’s order granting the State’s motion to correct error. Although the trial court’s order was technically favorable to the State, it contained a provision that prevented the State from withholding additional amounts from the Title IV-D obligor’s paycheck to satisfy an arrearage unless the State successfully moved the trial court to enter an additional order authorizing such withholding. On appeal, the State contends this provision is inconsistent with federal and state laws governing Title IV-D income withholding procedures. Concluding that the State is not statutorily required to seek judicial authorization under such circumstances, we reverse. * * *

We conclude Indiana Code section 31-16-15-2.5(f) does not permit the trial court to limit the State’s authority to increase the weekly withholding amount to satisfy an arrearage. Thus, the State has demonstrated that the trial court’s interpretation of that statute was prima facie error.

Frank P. Barbera v. AIS Services - "Frank P. Barbera, pro se, appeals from the trial court’s judgment confirming an arbitration award in favor of AIS Services, LLC, as assignee of MBNA America, N.A. (“AIS”). Barbera presents a single issue for review: whether the trial court erred when it refused to vacate the arbitration award for insufficient service of process. We reverse."

In Save the Valley, Inc., Thomas and Jae Breitweiser, et al v. David Ferguson, Daveco Farms, et al, a 5-page opinion, Judge Riley writes:

The Residents raise three issues on appeal. However, we address the following dispositive issue: whether the trial court lacked subject matter jurisdiction over a private claim for declaratory and injunctive relief arising from activity regulated by the Indiana Department of Environmental Management (“IDEM”). * * *

From these statutes, it is clear that the Indiana General Assembly has charged IDEM with the responsibility of regulating potential harm from the operation of CFOs.

Our Supreme Court addressed a very similar claim in Town Board of Orland v. Greenfield Mills, Inc., 663 N.E.2d 523 (Ind. 1996). Orland applied for an IDEM permit to construct a municipal sewage treatment facility. While the application was pending, nearby landowners filed suit to enjoin the construction. As here, there was no claim for monetary damages. The Orland Court held that the trial court lacked subject matter jurisdiction to consider the complaint. [Quoting Orland: "If landowners included in their complaint a request for monetary damages for any taking, trespass, or nuisance caused by discharge from the sewage treatment project, the case might well present issues for ultimate determination by the trial court following completion of the permitting process (including administrative and judicial review thereof).] * * *

We follow the dispositive precedent of Orland, affirm the trial court’s dismissal of the Residents’ complaint, and remand with instructions to vacate the existing orders and to enter an order dismissing the complaint for lack of subject matter jurisdiction.

Randell R. Rhodes, Jr. v. State of Indiana -" In light of the nature of the offense and the character of the offender, Rhodes has not convinced this Court that his advisory sentence of thirty years is inappropriate. "

NFP civil opinions today (6):

Christine (Tisdale) Bolick v. Raymond C. Tisdale (NFP) - " Concluding that the trial court’s determination of Father’s income was not clearly erroneous and that the trial court did not abuse its discretion in awarding an additional parenting time credit to Father, we affirm. "

Haag Trucking Co. and Rose Maxine Haag v. Mark E. Haag and Perfect Pallets, Inc. (NFP) - " This litigation concerns a family’s battle over the pieces of three Indianapolis- based family businesses left behind after the 2003 death of Robert Haag. Rose Maxine Haag (“Maxine”), Robert’s widow and one of the plaintiffs below, appeals from the trial court’s judgment against her personally for a breach of fiduciary duty as a shareholder of Perfect Pallets, one of the three businesses. Mark Haag, Robert’s and Maxine’s son and one of the defendants below, cross-appeals the trial court’s judgment that he was not frozen out as a shareholder of Haag Trucking, another one of the family businesses. Concluding that the trial court’s decision regarding Maxine is not clearly erroneous and that the trial court’s decision regarding Mark is not contrary to law, we affirm. "

City of Gary, Gary Police Civil Service Commission, Nathaniel Brannon and Anthony Stanley v. Thomas Pawlak and Ronald Pineda (NFP) - "Therefore, the Appellants have not established inexcusable delay or implied waiver, nor have they identified any evidence of prejudice. The trial court did not err by granting the preliminary injunction."

Joshua L. Overton v. Review Board, and Brad A. Renfro (NFP) - "Under the circumstances, we conclude that Overton?s continued unexcused and unexplained absences, despite a prior warning about such practices, justified his termination for just cause. The determination of the Board is affirmed. "

Janeen L. Mathes v. Joseph W. Mathes (NFP) - a 2-1 opinion reversing the trial court’s division of the marital estate.

In the Matter of D.A. (NFP) - "The Crawford County Department of Child Services (CCDCS) appeals the trial court’s judgment denying its petition to terminate T.G.’s (Mother) parental rights to her children. In so doing, CCDCS alleges that the trial court’s findings and conclusions are not properly supported by the evidence and that the trial court impermissibly subordinated the children’s interests to those of Mother. We affirm."

NFP criminal opinions today (19):

Joshua Borden v. State of Indiana (NFP)

Bert E. Black v. State of Indiana (NFP)

Tyrone Mathis v. State of Indiana (NFP)

Robert Earl Gent v. State of Indiana (NFP)

John A. Tate v. State of Indiana (NFP)

David Drew v. State of Indiana (NFP)

Rodney L. May v. State of Indiana (NFP)

Gregory L. Saylor v. State of Indiana (NFP)

Thomas K. Miller v. State of Indiana (NFP)

Benjamin Claunch v. State of Indiana (NFP)

Gerald Rickert v. State of Indiana (NFP)

Tricia M. Pingilley v. State of Indiana (NFP)

Bert E. Black v. State of Indiana (NFP)

Kirk Isom v. State of Indiana (NFP)

Alberta J. Otto v. State of Indiana (NFP)

David D. Foster v. State of Indiana (NFP)

Michael Baker v. State of Indiana (NFP)

Tommy P. Sanders, Jr. v. State of Indiana (NFP)

Donald Mallard v. State of Indiana (NFP)

Posted by Marcia Oddi on November 26, 2008 12:13 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: God and prayer continue in Indiana headlines

Updating this ILB entry from Nov. 20th, where the head of the BMV defended "the BMV's new policy that bars references to religion or a deity" in a license plate, the Indianapolis Star has a story today headed "God once again welcome on license plates." Mary Beth Schneider's report begins:

Ron Stiver, commissioner of the Bureau of Motor Vehicles, said Tuesday he is reversing a recently adopted agency policy that had barred the mention of religion or a deity, ending a monthlong controversy that had resulted in a lawsuit.

The short-lived policy was "well-intended and legally defensible," Stiver said. "At the end of the day, it comes down to what makes the most common sense."

The answer, he said, was to revert to the previous policy, in which a committee of BMV employees weighs each request for a personalized license plate, deciding whether the plate "carries a connotation offensive to good taste and decency or would be misleading."

That wording, he said, "sufficed before; it should suffice now."

Posted by Marcia Oddi on November 26, 2008 11:36 AM
Posted to Ind. App.Ct. Decisions

Courts - RI paper asks high court to make juror questionaires public

An interesting story from the Providence Rhode Island Journal, reported by Mike Stanton. Some quotes from the lengthy story:

Two years after 421 prospective jurors filled out questionnaires eliciting their opinions about the tragic Station nightclub fire that claimed 100 lives, The Providence Journal’s fight to open those records is bound for the Rhode Island Supreme Court.

In a case with implications for the openness of the jury-selection process, the newspaper has challenged a lower-court ruling denying access to the 32-page questionnaires, which were filled out in anticipation of the trial of former Station owner Michael A. Derderian. The case never went to trial, as Derderian and his brother Jeffrey Derderian entered into plea agreements, but lawyers for The Journal argue that the issue remains relevant to determining what kind of access the public and the press can expect in future cases.

The Supreme Court has scheduled oral arguments for Dec. 8.

In recent years, judges have used written questionnaires to weed out biases of potential jurors and streamline the selection process in high-profile corruption cases here in Rhode Island and nationally.

But while oral questioning of potential jurors is open, the written questionnaires have not been released. Even though they carried the disclaimer that the answers were not confidential, and “may be included in the public record,” Superior Court Judge Francis P. Darigan denied The Journal’s request to see them. Although the press and the public have “the presumptive right” to see jury questionnaires, Darigan cited “uniquely compelling situations” in sealing them in the Station fire case.

The ILB has reported on the juror questionaire issue before, in this entry from March 28, 2006, headed "Courts - Juror problems in federal trial of former Illinois Governor Ryan; thoughts on Indiana jurors," and in this entry from April 7, 2004, headed "Indiana Law - More on Juror Secrecy." Both ILB entries quote from a 2004 Fort Wayne Journal Gazette editorial, which included this:

Why should anyone care about this issue? The new jury privacy decree affects journalists, historians, advocates, researchers and anyone else who may want to ask jurors how a decision was reached. It is conceivable that jury tampering or a previously unknown connection between a juror and key player may not be revealed until an outside investigator lifts the veil. Undoing private deceit brings about reform and keeps down public cynicism and apathy.

[More at 11:10 AM] A reader writes:

Interesting issue on juror questionnaires. Had a friend on a jury a couple months ago, a trial on "precursor to meth" and "conspiracy to manufacture" charges. She called me after the trial to see if the questionnaires were made available to the defendant, since he had scared several of the jurors by the way he looked at them during the trial. I assured her that he might have looked over the info to help in choosing jurors, but would not have "access" to them. I confirmed with the attorney for the def. that this was accurate before telling her.

I think the rights of jurors have to be weighed in with the other rights you and other reporters/editors list. Home addresses, work addresses and questions about family members who are police might be of too much interest to a disappointed criminal defendant.

Good point. Here is more from the RI story:

It is important for the Supreme Court to set guidelines, said Journal lawyer Kristin E. Rodgers, citing a case that followed Darigan’s ruling, in which Superior Court Judge Edward C. Clifton destroyed questionnaires used to select a jury in the sexual-assault trial of a longtime East Providence councilman.

Furthermore, lawyers for the newspaper argue in court papers that Darigan and the attorney general “wholly ignore” the explicit instructions on the front of the questionnaire to mark sensitive questions as “personal” and circle them. The newspaper is not seeking unfettered access, but asking that the judge balance the privacy interests of certain information that might be too personal against the public interest of other information contained in the questionnaires.

Lynch counters that it’s not practical to redact all of the personal information scattered throughout the questionnaires, even to innocuous questions regarding family, friends and neighbors.

The Journal counters that Darigan, by withholding the questionnaires, “`has unnecessarily closed the criminal justice system from public view, thereby frustrating the broad public interest in knowing that laws are being enforced and the courts and the criminal justice system are functioning.”

Here are the Indiana juror rules, see particularly Rule #10.

Here are 123 questions from a 24-page California juror questionnaire in 2002. (I had no idea why is is on an Indiana TV station's webpage.) Here is a general juror questionnaire from Washington County Superior Court in Salem, IN.

Here is the Indiana Judicial Center's "Jury Rules FAQ," including specifically Rule 10.

Posted by Marcia Oddi on November 26, 2008 10:23 AM
Posted to Courts in general

Ind. Decisions - "Judge gives reprieve to Hoosier Energy"

John Russell of the Indianapolis Star reports today on the SD Ind. decision yesterday in the case of Hoosier Energy v. John Hancock Life Ins. Access the 37-page opinion here. Some quotes from the story:

Customers of rural electric cooperatives in Indiana will not face immediate rate increases, as some had feared, after a federal judge agreed Tuesday to grant their key power provider a preliminary reprieve in a tangled financial deal with an insurance company.

But the judge had harsh words for nearly everyone involved in the deal, which he called "a sham" and "a case study of some of the worst aspects of modern finance." * * *

In 2002, Hancock put together a deal under which it bought the generating station and leased it back to Hoosier. The utility received a $20 million fee, and Hancock was able to take a tax deduction from owning an industrial property.

"Despite the reams of paper and the circular flow of hundreds of millions of dollars, the transaction appears to have been a sham, without economic substance," the judge wrote in his ruling.

He said the court "will face some challenging problems" in crafting a remedy. Yet he said allowing Hancock to demand $120 million immediately would produce an unfair result by letting the insurer walk away "with the windfall of fraudulent tax benefits."

"The more prudent, risk-minimizing course at this point is to grant injunctive relief to prevent irreparable harm and to sort out later the difficult terms of final equitable relief," Hamilton wrote.

Posted by Marcia Oddi on November 26, 2008 08:15 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Casino worker loses round: Flea bites suffered while she was dealer"

The Court of Appeals decision yesterday in the case of RDI/Caesars Riverboat Casino Inc. and M/V Glory of Rome v. Tina Conder (see ILB summary here) is the subject of a story today by Grace Schneider in the Louisville Courier Journal. Some quotes:

The Indiana Court of Appeals has rejected a former casino dealer's attempt to win compensation under federal maritime law for alleged injuries she suffered while working aboard the Harrison County riverboat.

In a ruling yesterday, the court said Tina Conder of Clarksville doesn't qualify as a maritime worker because the former Caesars Indiana boat where she dealt cards is primarily used for gambling, not navigation.

The court left open the possibility that Conder could recoup some workman's compensation benefits for serious medical complications that her lawyers said stemmed from flea bites she received while dealing poker. * * *

Conder's lawyer, Karl Truman of Jeffersonville, said he intends to ask the Indiana Supreme Court to consider the case and, if necessary, may go to the U.S. Supreme Court.

"It seems the (appeals) court relied heavily on what Caesars said their intent was with the boat," Truman said. * * *

Conder sued the casino in 2005 in Harrison Circuit Court seeking unspecified damages for medical expenses, legal fees and pain and suffering from a disabling condition caused by flea bites to her legs, arms, head and torso.

Conder's doctors blamed the bites for triggering a serious blood disorder. She also suffered two heart attacks from massive doses of steroids used to suppress the reaction.

Harrison County health department records showed the casino had battled a flea infestation during the time Conder said she was bitten. Her lawyers asserted that the casino had been negligent for failing to maintain a seaworthy vessel as required by the Jones Act.

The 1920 law was enacted to ensure that maritime workers were fairly compensated for injuries while facing the heightened risks posed by serving aboard ships and towboats.

A year ago, Harrison Circuit Judge H. Lloyd "Tad" Whitis ruled that Conder was a Jones Act seaman and therefore was eligible for the far more generous compensation for medical expenses and lost wages than is usual under workman's compensation.

Casino lawyers responded by appealing the Jones Act portion of the ruling to the appeals court.

Chief Justice John G. Baker wrote for the appeals court that Whitis erred in denying Caesars' motion to dismiss the Jones Act count. He cited a 7th U.S. Circuit Court of Appeals ruling that said a casino boat that was indefinitely moored no longer qualified as a vessel in navigation.

Conder is not "the type of employee that the Jones Act is intended to cover and protect," Baker wrote.

But Truman said federal appeals courts have been split on what types of workers the Jones Act covers, making the issue worthy of U.S. Supreme Court review.

Posted by Marcia Oddi on November 26, 2008 08:02 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - In Indiana the judiciary is held – publicly and appropriately – to a high standard.

That is the conclusion of this editorial today in the Fort Wayne Journal Gazette. Some quotes:

An Allen Superior Court judge’s hearing scheduled for today before a special disciplinary panel is not taking place because his case was settled last week. Much to the credit of the Indiana Supreme Court and the state’s judiciary in general, that out-of-court settlement is available for all Hoosiers to see, weeks after the court made public details of the judge’s actions. * * *

The Supreme Court decided that the judge should be punished but should not be removed from the bench. That decision more appropriately rests with Allen County voters, who can decide for themselves – if the judge faces any opposition when he runs for re-election in 2010. Some voters may believe his action should not be forgiven, while others may well empathize with the circumstances: The judge berated – but did not shout at – a man he believes sold drugs to Scheibenberger’s son, whose death last year was drug-related. * * *

The incident is the latest in which the state’s highest court has made clear that judges who act inappropriately will face public discipline. Scheibenberger’s actions certainly did not rise to the level of a Marion Court judge who recently appeared before the same type of disciplinary panel Scheibenberger was to face.

On Tuesday, the Indiana Supreme Court suspended Marion Superior Court Judge Grant Hawkins and is weighing removing him from the bench permanently for dereliction of duty. Hawkins, the panel and a state judicial commission decided, was derelict in his duty for allowing a man to remain in prison for two years after DNA tests cleared him of a rape.

The public may believe that judges generally cover for one another, that they are allowed to get away with mistakes anyone else would pay for. That is not the case in Indiana, where the judiciary is held – publicly and appropriately – to a high standard.

Posted by Marcia Oddi on November 26, 2008 07:57 AM
Posted to Indiana Courts

Tuesday, November 25, 2008

Ind. Courts - Supreme Court suspends Marion County Superior Court Judge Grant W. Hawkins with pay [Updated]

Updating this ILB entry from Nov. 21st, wherein the Indiana Commission on Judicial Qualifications asked the Court to immediately suspend Judge Hawkins with pay pending the Court's decision, the Court has now issued this Order Suspending Judge With Pay.

In addition, the Court has issued an Order Appointing Judge Pro Tempore -- Judge James B. Osborn, to be effective at the close of business today, Nov. 25th, and to continue until further order to the Court.

[Updated at 5 PM] Jon Murray of the Indianapolis Star has posted this story that reports:

The court’s justices today appointed Judge-elect James B. Osborn to sit in for Hawkins during his suspension. Osborn, newly elected this month, is set to take the bench in another court in January but will preside in Hawkins’ major-felony court as a pro tem judge in the meantime.

Posted by Marcia Oddi on November 25, 2008 03:20 PM
Posted to Indiana Courts

Ind. Courts - Court posts video for people considering representing themselves in family law cases

From a release just issued by the Supreme Court:

The Indiana Supreme Court’s Division of State Court Administration has released an informational video for people considering representing themselves in family law cases. The video is available online and will be distributed in DVD format across the state. To watch the video visit courts.IN.gov/webcast.

“Family Matters: Choosing to Represent Yourself in Court” was developed by the Supreme Court’s Family Court Project to help people make informed decisions regarding legal representation. It provides important information about the legal process and the responsibilities that a person takes on when they decide to appear in court without an attorney.

The video runs 46 minutes and is divided into short segments. Each segment is designed to provide viewers with information about different stages of a case. For example, there is a section on general responsibilities and another on preparing for court. The video also provides resources for viewers who decide against self-representation and are interested in finding an attorney. * * *

The video was produced in partnership with the Indiana Bar Foundation by Innovative, an Indianapolis production company. In addition to the online posting, more than 500 DVDs will be distributed to all Indiana public library districts, law schools, pro bono districts, and other legal aid organizations.

Posted by Marcia Oddi on November 25, 2008 02:30 PM
Posted to Indiana Courts

Ind. Decisions - Tax Court issues one

In U-Haul Co. of Indiana, Inc. v. Indiana Dept. of State Revenue, a 14-page opinion, Judge Fisher writes:

Evidence of the routine practice of an organization is relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice. See Ind. Evidence Rule 406. See also, e.g., Morphew v. State, 672 N.E.2d 461, 463-64 (Ind. Ct. App. 1996) (finding that the Indiana Bureau of Motor Vehicles’ evidence of its routine business practices could have led a jury to reasonably conclude that it timely mailed notice of a suspension of driving privileges to a defendant), trans. denied. The Court therefore finds and concludes that the Department’s designated evidence leads to the reasonable inference that it timely mailed the 1999 proposed assessment. Accordingly, the issue as to whether the 1999 proposed assessment was timely mailed to U-Haul Indiana is reserved for trial. * * *

[As to] Whether the Department’s retroactive imposition of gross income tax, based on its admitted change in interpretation of that tax, was proper [the Court concluded that] this theory does not support the Department’s change in position and retroactive imposition of gross income tax. Accordingly, U-Haul Indiana’s motion for summary judgment as to this issue is GRANTED.

For the above stated reasons, the Court DENIES U-Haul Indiana’s motion for summary judgment as to Issue I. As a result, the issue of whether the Department timely mailed the 1999 proposed assessment is reserved for trial. The Court, however, GRANTS U-Haul Indiana’s motion for summary judgment as to Issue II. The Department’s cross-motion for summary judgment is therefore DENIED. The Court shall set a case management conference to discuss the remaining matters for trial by separate order.

Posted by Marcia Oddi on November 25, 2008 02:21 PM
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "IU Center for Urban Policy and the Environment to study court reform"

From an IU press release dated Nov. 24:

INDIANAPOLIS -- The Indiana University Center for Urban Policy and the Environment (CUPE) will work with the Indiana Supreme Court's Division of State Court Administration to study ways to make the state's system of trial courts more equitable and efficient.

The Division of State Court Administration plans to use the court system study to assess the viability of one of the many reforms called for in the extensive report issued last year by the Indiana Commission on Local Government * * *

CUPE will partner with the Indiana University School of Law-Indianapolis Program on Law and State Government to analyze Indiana's current system and assess the ways other states manage and fund court operations. The study will pay particular attention to governing, budgetary and personnel issues. Next summer, the center plans to present its findings to the Supreme Court's Division of State Court Administration, along with a series of options to consider for coordinating and streamlining Indiana's court system.

"This study will take a critical look at how other states have approached managing and paying for their local courts," said CUPE Director John Krauss. "Our goal is to identify ways Hoosiers can be assured equal access to services from the courts and that they're being funded in the most cost-effective way."

Krauss and his team of researchers last year staffed the Indiana Commission on Local Government Reform. Their work included organizing community meetings across the state to gather testimony and data, and assisting in drafting the commission's final report.

Posted by Marcia Oddi on November 25, 2008 02:17 PM
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending Nov. 21, 2008

Here is the just issued transfer list for the week ending Nov. 21, 2008. It is 3 pages long.

No transfers were granted last week.

Among the cases denied transfer, Lauth Indiana Resort & Casino v. Lost River Development, et al., summarized in this ILB entry from July 15th.

Over 4.5 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 November 25, 2008 02:09 PM
Posted to Indiana Transfer Lists

Law - Still more on: "Lawyers worry about liability if banks holding client trust accounts fail"

Updating earlier ILB entries, the most recent here, Marcia Coyle of The National Law Journal is reporting, in a story to appear next Monday:

WASHINGTON — The Federal Deposit Insurance Corp. (FDIC) has announced that, effective immediately, client funds deposited in Interest on Lawyer Trust Accounts (IOLTA) — regardless of amount — are eligible for full deposit insurance coverage under the Temporary Liquidity Guarantee Program (TLGP) through June 30, 2009.

The American Bar Association, state and federal lawmakers, community and consumer groups, law firms and individual lawyers had mounted a nationwide campaign to persuade the FDIC to include IOLTA funds in the expanded insurance program.

Posted by Marcia Oddi on November 25, 2008 01:29 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In RDI/Caesars Riverboat Casino Inc. and M/V Glory of Rome v. Tina Conder, an 18-page opinion, Chief Judge Baker writes:

Here, we must decide whether a riverboat casino that is indefinitely moored to the shore is a “vessel in navigation” for the purpose of the federal Jones Act. 1 We hold that it is not. Appellants-defendants RDI/Caesars Riverboat Casino, Inc., and the M/V Glory of Rome (collectively, Caesars) appeal the trial court’s order granting appellee-plaintiff Tina Conder’s motion for partial summary judgment and denying Caesars’s motion to dismiss Conder’s complaint. Caesars argues that the trial court erred as a matter of law by concluding that an indefinitely moored, dockside casino was a “vessel in navigation” pursuant to the Jones Act and that Conder was a Jones Act Seaman. Finding that the Jones Act does not apply, we reverse in part and remand with instructions to dismiss Conder’s Jones Act claim and for further proceedings on her Sieracki seaman claim. * * *

In sum, the Riverboat has been moored to the dock since 2002. It has had no transportation function since that time. It is joined to the land by a number of cables. It is connected to land-based utilities. Its owners intend that it remain stationary for the foreseeable future. Thus, the Riverboat’s operations are gaming-related, rather than maritime in nature, and that has been the case since 2002. Conder, as a table games dealer for the Casino, is simply not an employee who is regularly—or at all—exposed to “the special hazards and disadvantages to which they who go down to sea in ships are subjected.” McDermott, 498 U.S. at 354. Under these circumstances, we cannot conclude that the Riverboat is a vessel in navigation or that Conder is the type of employee that the Jones Act is intended to cover and protect. We find, therefore, that the trial court erred as a matter of law by granting Conder’s motion for partial summary judgment and denying Caesars’s motion to dismiss the Jones Act count of Conder’s complaint.

In Bernice M. Reedy, b/n/f Mentoria Headdy v. Indiana Family and Social Services Administration, a 10-page opinion, Judge Barnes writes:

Bernice Reedy appeals the trial court’s affirmation of the decision by the Indiana Family and Social Services Administration (“FSSA”) denying Reedy’s request to include her out-of-pocket payments to her nursing facility as an allowable spend-down expense. We reverse.

Issue. Reedy raises one issue, which we restate as whether the trial court properly affirmed the FSSA’s decision not to include Reedy’s nursing facility payments as an allowable spend-down expense. * * *

For these reasons, the FSSA’s determination that Reedy’s nursing facility expenses cannot be credited toward her spend-down is contrary to law. Accordingly, the trial court erred in affirming the FSSA’s decision.

In the Matter of the Paternity of E.C. - " Matthew Cole (“Father”) filed a petition to modify his child support obligation in Johnson Circuit Court due to his incarceration. The trial court denied his petition. Father appeals pro se and argues that his incarceration has resulted in a substantial change in his income, and therefore, he is entitled to a reduction of his child support obligation. We reverse and remand for proceedings consistent with this opinion. * * *

"Because we conclude that Father has established prima facie error, and that the trial court abused its discretion when it denied his motion to modify his child support obligation, we reverse and remand for proceedings consistent with this opinion. "

In Kevin M. Weldon v. Asset Acceptance , a 15-page, 2-1 opinion, Judge Baker writes:

Appellant-defendant Kevin M. Weldon appeals the trial court’s orders denying his motion to vacate an arbitration award and for summary judgment and entering summary judgment in favor of appellee-plaintiff Asset Acceptance, LLC (Asset Acceptance). Finding that Weldon failed to file his motion to vacate within the three-month deadline set forth by the Federal Arbitration Act1 and that under the circumstances presented herein, the trial court was required to confirm the arbitration award, we affirm. * * *

MATHIAS, J., concurs.
BROWN, J., dissents with opinion. [which begins] I respectfully dissent. The majority holds that Weldon waived his argument that the FAA’s three-month time limit does not prevent a party from challenging the validity of the award at any time. The majority then addresses Weldon’s argument, waiver notwithstanding, and concludes that “the arbitrator properly assumed jurisdiction over the arbitration proceedings.” I disagree with the majority’s conclusions that Weldon waived his argument regarding jurisdiction and that Weldon assented to the terms of the credit agreement.

Royal Amos v. State of Indiana - "Royal Amos was convicted after a jury trial of two counts of murder,1 four counts of attempted murder,2 each as a Class A felony, one count of burglary3 as a Class B felony, and one count of carrying a handgun without a license4 as a Class A misdemeanor, and he was sentenced to an aggregate sentence of 271 years executed. He appeals, raising the following issues: I. Whether the trial court abused its discretion when it admitted hearsay statements of one of the victims into evidence based on the present sense impression exception; II. Whether the trial court abused its discretion when it submitted questions to a witness that had been posed by the jury; and III. Whether sufficient evidence was presented to support Amos’s convictions. We affirm."

NFP civil opinions today (1):

Charles W. Marlowe v. Katherine D. Marlowe (NFP) - "Appellant-Respondent Charles W. Marlowe (“Father”) appeals from the trial court’s order determining Father’s college-expense arrearage for his two sons, B.M. and D.M. to be $10,780.50. Father contends that the trial court abused its discretion in imposing a retroactive support order and imposing a 50-50 shared expense standard on all prior college education expenses despite the court’s findings that the Mother’s income accounted for roughly seventy percent of the parties’ net income. We reverse and remand to the trial court with instructions. "

NFP criminal opinions today (8):

Kevin Dean Stanifer v. State of Indiana (NFP)

Melvin Muhammad v. State of Indiana (NFP)

Gregory S. Taylor v. State of Indiana (NFP)

David Kist v. State of Indiana (NFP)

Jason L. Becraft v. State of Indiana (NFP)

Timothy L. Wilson v. State of Indiana (NFP)

Thurman Lee v. State of Indiana (NFP)

Theodore Suel v.State of Indiana (NFP)

Posted by Marcia Oddi on November 25, 2008 12:30 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana decision today from the 7th Circuit

In Kelly, et al v. Med-I Solutions (SD Ind., Judge Barker), a 15-page opinion, Judge Flaum writes:

Med-1 Solutions, LLC (“Med-1”) is a debt-collector that filed lawsuits in Indiana state small claims court to collect hospital charges owed by debtors to its client, St. Vincent Carmel Hospital, Inc. (“St. Vincent”). Med-1 filed these suits in its own name. Med-1 demanded and received attorney fees in these proceed- ings. Debtors then sued in federal district court, contend- ing that Med-1, its owner, and its in-house lawyers violated the Fair Debt Collection Practices Act (“FDCPA”) when they demanded attorney fees in the small claims pro- ceedings. The district court dismissed the case for lack of subject matter jurisdiction based on the Rooker-Feldman doctrine. For the reasons discussed below, we affirm. * * *

The Rooker-Feldman doctrine derives its name from two Supreme Court decisions, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). It “precludes lower federal court jurisdiction over claims seeking review of state court judgments . . . no matter how erroneous or unconstitutional the state court judgment may be.” Brokaw v. Weaver, 305 F.3d 660, 664 (7th Cir. 2002) (citing Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 996 (7th Cir. 2000)). The doctrine applies not only to claims that were actually raised before the state court, but also to claims that are inextricably intertwined with state court determinations. See Feldman, 460 U.S. at 482 n.16. A state litigant seeking review of a state court judgment must follow the appellate process through the state court system and then directly to the United States Supreme Court. See GASH Assocs. v. Village of Rosemont, Ill., 995 F.2d 726, 727 (7th Cir. 1993).

The Supreme Court recently revisited the doctrine in Exxon Mobil Corp. v. Saudi Basic Industries, 544 U.S. 280, 284 (2005). The doctrine previously had been applied expan- sively. See Exxon Mobil, 544 U.S. at 283 (describing how lower courts at times had interpreted the doctrine “to extend far beyond the contours of the Rooker and Feldman cases”). In Exxon Mobil, the Court explicitly limited the doctrine. The Rooker-Feldman doctrine now “is a narrow doctrine, ‘confined to cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejec- tion of those judgments.’ ” * * *

Even in light of the Supreme Court’s nar- rowing of Rooker-Feldman in Exxon Mobil, we conclude we are still barred from evaluating claims, such as this one, where all of the allegedly improper relief was granted by state courts. * * *

Because of plaintiffs’ opportunities to raise their FDCPA claims in state court upon transfer of their cases to the plenary docket, we conclude that plaintiffs in this case had reasonable op- portunities to raise their claims in state court. * * *

The “reasonable opportunity” exception was developed during a time when federal courts applied Rooker-Feldman much more expan- sively. Post-Exxon Mobil, the “reasonable opportunity” exception to the Rooker-Feldman doctrine is of question- able viability.

Conclusion. We AFFIRM the district court’s holding because the Rooker-Feldman doctrine applies and there is no federal subject matter jurisdiction in this case. Therefore, we need not address defendants’ arguments related to res judicata and collateral estoppel.

Posted by Marcia Oddi on November 25, 2008 11:02 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Girl sues IHSAA to play baseball"

Charles Wilson of the Associated Press has this story this morning. Some quotes:

Being a girl hasn't kept Logan Young from playing baseball with the boys for nine years, and she and her parents don't think that should change now that she's in high school.

The 14-year-old and her family have filed a federal lawsuit over an Indiana High School Athletic Association rule that prohibits the Bloomington South freshman from trying out for the high school baseball team because she is female.

"In this day and age, a girl should have the opportunity to participate on an equal footing with the boys in high school sports, and the IHSAA precludes that," Fishers attorney Tae Sture said Monday.

"Our feeling is, quite frankly, there's no rational reason for it," he said.

An IHSAA rule prohibits girls from trying out for baseball if their school has a softball team on the basis that the sports are comparable. But the lawsuit filed Friday in U.S. District Court in Indianapolis argues that baseball and softball aren't really the same sport, so girls should be able to try out for baseball.

The suit seeks to have the IHSAA rule thrown out based on the equal protection clause of the 14th Amendment to the Constitution and Title IX, the federal law that mandates equal educational opportunities for boys and girls. * * *

Her family contacted the IHSAA in May to see whether Logan could participate in baseball during the 2008-09 season. Commissioner Blake Ress said she couldn't because Bloomington South has a softball team, the lawsuit said.

Ress said Monday he had not seen the lawsuit but that the girl's family and the school had not applied for a waiver from the rule.

"Last spring we had a girl from Wabash and gave her a waiver to allow her to play," Ress said. "Our intent was, if we had others, we would do that. This (lawsuit) is kind of out of the blue to me."

The high school, which has a female kicker on its football team, supports Logan's desire to play and will seek a waiver so she can try out for baseball, said Bloomington South athletic director J.R. Holmes.

But the lawsuit argues that a waiver shouldn't be necessary.

"Softball and baseball are not the same sport, so she has the right to try out," said Sharon F. McKee, the lead attorney in the case. Under current rules, a boy wanting to play softball also would have to seek a waiver, she said.

Precedent may be on Logan's side, according to McKee. The West Virginia Supreme Court ruled in a similar case in 1989 that baseball and softball are not substantially equal sports, she said, and 24 state athletic associations already allow girls to choose between softball and baseball.

Here is a copy of the 15-page complaint.

Posted by Marcia Oddi on November 25, 2008 09:06 AM
Posted to Indiana Courts

Law - "Grinches target Light Up Louisville"

The Louisville Courier Journal today has this not surprising story. My first thought when I read the report was - whatever were they (the City of Louisville) thinking? The story begins:

Lawyers for the company that owns rights to the Dr. Seuss Christmas classic "How the Grinch Stole Christmas" have become real-life Grinches, threatening legal action unless Louisville cancels plans to use any part of the book for this year's Light Up Louisville holiday celebration.

"It appears these lawyers' hearts are two sizes too small," Mayor Jerry Abramson said in a news release.

DLA Piper, the law firm representing Dr. Seuss Enterprises, has sent a "cease and desist" letter to the Louisville Convention & Visitors Bureau.

The letter, dated Nov. 13, said the convention bureau "has not been authorized or licensed by Seuss to use its protected works. We therefore demand that the (bureau) immediately cease and desist from using any references to or images of Who-ville, the Grinch, or any other name or character from How the Grinch Stole Christmas."

Posted by Marcia Oddi on November 25, 2008 08:54 AM
Posted to General Law Related

Monday, November 24, 2008

Ind. Decisions - Transfer list for week ending Nov. 21, 2008

The ILB hasn't received any information yet for last week.

Posted by Marcia Oddi on November 24, 2008 03:01 PM
Posted to Indiana Transfer Lists

Ind. Decisions - COA ruling in "In God We Trust" case changed to "for publication"

The opinion in the case of Mark Studler v. Indiana Bureau of Motor Vehicles and Ronald L. Stiver as Commissioner of the Indiana BMV (NFP), issued by the Court of Appeals on Nov. 17th, was designated "not for publication," as discussed in this ILB entry from that day.

Last Thursday, Nov. 20th, an order was issued re-designating the opinion as "For publication." I received information that the original designation was an oversight.

The Clerk's docket has now been updated with this information:

11/20/08 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:

THIS COURT'S OPINION HANDED DOWN IN THIS CAUSE ON NOVEMBER
17, 2008, MARKED MEMORANDUM DECISION, NOT FOR PUBLICATION, IS
NOW ORDERED PUBLISHED.

FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE
ROBB, BARNES, CRONE, J.J., CONCUR. KM

11/24/08 ****** ABOVE ENTRY MAILED ******

The reclassification has also been added to the useful Court page, "Memorandum Decisions Reclassified as For Publication," available here.

Posted by Marcia Oddi on November 24, 2008 02:14 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - Still more on: Other mayors' races still at issue?

This Nov. 21 ILB entry promised the Special Judge's decision in the City of Anderson mayoral election dispute. Here it is, dated March 3, 2008.

Also promised were the COA briefs in the challenge to the Muncie mayoral election. Here are the Appellant's brief and the Appellee / Cross-Appellant Reply Brief, and the Appellant's Reply Brief.

Posted by Marcia Oddi on November 24, 2008 01:41 PM
Posted to Indiana Law

Ind. Decisions - Still more on: Terre Haute paper loses $1.5 million defamation suit

Updating earlier ILB entries, a press release today from the Society of Professional Journalists announces:

INDIANAPOLIS – The Society of Professional Journalists has joined other media organizations in an amicus brief initiated by the Hoosier State Press Association that defends the essential free press reporting rights of an Indiana newspaper.

On July 25, 2008, an Indiana jury awarded Clay County Deputy Sheriff Jeff Maynard $1.5 million, reasoning the Terre Haute Tribune-Star libeled the officer by printing an article that reported misconduct allegations a woman had made against him. The allegations were later found to be false.

The newspaper is appealing the verdict to the Indiana Court of Appeals. By supporting the newspaper in the amicus brief, SPJ agrees with the newspaper’s appeal that such a verdict fails to recognize the neutral reportage privilege. The privilege gives protection to journalists who neutrally report allegations between two parties, even if the allegations are later proven untrue.

“This situation is disturbing,” SPJ President Dave Aeikens said. “You have a newspaper being sued because it accurately reported about a complaint against a law enforcement officer. It is critical to the public interest that journalists be able to report issues from the public record and be free from lawsuits.”

By printing the allegations against the deputy, the Tribune-Star was following its watchdog role to monitor and report about citizens’ interactions with public officials. The evidence at trial demonstrated that the news reports in question were not published with actual malice, a necessary standard in determining claims of libel and defamation. SPJ is confident the Court of Appeals will overturn the previous verdict once it realizes the importance of the neutral reportage privilege.

In addition to HSPA and SPJ, a number of other journalism organizations are supporting the Tribune-Star in its appeal, including the Indiana Broadcasters Association, the Associated Press, the American Society of Newspaper Editors and the Newspaper Association of America.

Posted by Marcia Oddi on November 24, 2008 01:34 PM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - One today from 7th Circuit

Christine In Sandage, et al. v. Bd. of Comm., Vanderburgh Co. (SB Ind., Judge Barker), a 11-page opinion by Judge Posner begins:

The plaintiffs’ decedents, Sheena Sandage-Shofner and Alfonzo Small, along with a third person, were murdered in Sandage-Shofner’s apartment by a man named Moore, who then killed himself. Moore had been serving a four-year sentence, in the custody of the county sheriff, for robbery. But he was on work release, employed cleaning parking lots. It was while he was on work release that he committed the murders. Twice—once one month before the murders, the other time two days before—Sandage-Shofner had called the sheriff’s department to complain that Moore was harassing her. * * * The plaintiffs, in this suit under 42 U.S.C. § 1983 against county officials, claim that the department’s failure to act on the complaint of harassment by revoking Moore’s work-release privilege and reimprisoning him deprived their decedents of their lives without due process of law, in violation of the Fourteenth Amendment. The district judge dismissed the complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6).

We assume, given the procedural posture, that the defendants were reckless in failing to act on the complaint of harassment. (If they were merely negligent, the plaintiffs would have no case.) The judge was nevertheless right to dismiss the suit. There is no federal constitutional right to be protected by the government against private violence in which the government is not complicit. So the Supreme Court held in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), affirming a decision by this court, in which the principle was already well established. In Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982), for example, we had said that while “there is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law, . . . there is no constitutional right to be protected by the state against being murdered by criminals or madmen . . . . The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.” See also Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983). There is a moral right to such services—protection against violence is the single most important function of government—and a government that fails in this duty invites well-deserved political retribution. But there is no enforceable federal constitutional right.

Posted by Marcia Oddi on November 24, 2008 01:21 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Judge Kirsch honored

Judge James S. Kirsch was awarded the Paul H. Buchanan Jr. Award of Excellence at the Indianapolis Bar Association/Indianapolis Bar Foundation Recognition Luncheon held on November 20, 2008. Read more here.

Posted by Marcia Oddi on November 24, 2008 10:40 AM
Posted to Indiana Courts

ind. Courts - Court's FY 2009-2011 request to the State Budget Committee

The ILB has obtained a copy of the Indiana Court's biennial budget request to the State Budget Agency / State Budget Committee. As noted by the Court's representative:

To avoid confusion it should be made clear that the documentation being provided sets forth the Court’s desired budget, but it probably will not match the initial budget presented to the legislature. Under the budget process, the Court’s submission will be reviewed by the Budget Agency and will result in the submission of a recommended budget to the legislature. Typically, the recommended budget does not include all of the funding requested by the Court. During the legislative session it is possible that funding not recommended by the Budget Agency will make its way back into the Court’s budget.

Here, for those unfamilar with the process, is the outline of the state budget process prepared by the SBA.

Here is the 26-page FY 2009-2011 initial budget request prepared by the Court.

More interesting than the numbers to many will be the 15-page transmittal letter from Chief Justice Shepard. Beginning on p. 11 is a section headed OBJECTIVES AND CHALLENGES IN THE NEXT BIENNIUM, focusing on the following:

• Providing cost-effective, legally effective indigent representation in in a manner that
  relieves pressure on tire property tax system.
  
• Improving public safety through state financing of probation.
  
• Increasing "automated record keeping fee" from $7 to $10.
  
• Staff Needs; One new employee for Supreme Court Administration and twenty-five new employees (formerly contract workers) for JTAC.
  
• Microfilming and digitization of appellate court records.
  
• Technology needs for continuing appellate operations during times of disaster.
  
• Providing skilled interpreters for Spanish-speaking residents.

Past ILB entries of related interest:

"Making Sense of Court Fees" posted Nov. 6, 2008.

This ILB entry from Sept. 6th discussing the Kernan-Shepard Report's Recommendation #7: Transfer the responsibility for all funding of the state’s trial court system to the state, including public defenders and probation.

Posted by Marcia Oddi on November 24, 2008 09:10 AM
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

None scheduled.

This week's oral arguments before the Court of Appeals that will be webcast:

None scheduled.

This week's oral arguments before the Court of Appeals that will NOT be webcast:

None scheduled.

Posted by Marcia Oddi on November 24, 2008 06:32 AM
Posted to Upcoming Oral Arguments

Sunday, November 23, 2008

Ind. Courts - Yet more on: Robert Cantrell found guilty on all charges

This ILB entry from June 12th quoted a story by Andy Grimm in the Gary Post Tribune headed "Legal 'oversight' not likely to modify Cantrell's conviction."

Today Grimm reports under the headline "New trial for Cantrell denied." Some quotes:

HAMMOND — Political power broker Robert Cantrell was in fact seated at the defense table throughout his five-day fraud trial in May, U.S. Judge Rudy Lozano stated Friday in a ruling denying Cantrell’s motion for a new trial.

Cantrell, who was convicted of 11 counts of honest services and mail fraud, had asked for a new trial, noting that no witnesses called to testify specifically identified him in the courtroom.

“At no time did any witness formally identify (Cantrell) sitting at the defense table with counsel as the person who commited the crimes charged in the indictment,” Lozano wrote.

“Despite this lack of formal identification” Lozano continued, “nine witnesses testified about their interaction with ‘the defendant, Robert Cantrell.’” Witnesses in criminal trials typically are asked by prosecutors if they know the defendant and if the defendant is present. Then, they often are asked to describe what the defendant is wearing, or to point the defendant out for the jury.

Prosecutors scrupulously asked the first two questions, but failed to ask the third — a fact pointed out by defense attorney Kevin Milner after the government rested its case, and in a motion for new trial. * * *

In his 16-page opinion, Lozano included numerous excerpts from witness transcripts where Cantrell was identified as the defendant.

Cantrell also argued that the government failed to provide adequate evidence he was guilty of the charges. Lozano said the defense motion did not include legal citations or arguments explaining shortcomings in the prosecutors’ case.

Cantrell, 66, is scheduled to be sentenced Feb. 19.

Here is a copy of the ruling.

Posted by Marcia Oddi on November 23, 2008 12:44 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Retiring Clark County judges were tough but caring"

The Louisville Courier Journal has a column today by Dale Moss that begins:

Cecile Blau and Steve Fleece lock up criminals. Not many judges in Indiana do it more often.

They can throw the book like Peyton Manning throws the football.

Blau and Fleece leave the Clark County bench at year's end, though, proud to distinguish bad people from bad choices. Being tough mattered less than being fair. Judging is part social work, or it should be.

Blau and Fleece set up surely enduring programs less to punish people than to help them. These Superior Court judges survived politically, nonetheless. They retire, instead of being retired by voters.

Steve Stewart, the county prosecutor, agrees Blau and Fleece are right not to mete out justice as if they were cutting cookies. "It's a misconception that you can't be tough and caring at the same time," Stewart said.

Their backgrounds reflect the approach of Fleece and Blau on the bench. Fleece studied awhile to be a Roman Catholic priest and worked in the Clark welfare office when he went to law school. Blau was in the Peace Corps and then taught and coached at Providence High School.

The column ends:

Neither Blau nor Fleece signs off on all plea bargains. Each is known to add to sentences more than to reduce them. To assume them softies is to underestimate their determination to do whatever is right.

"It was a rare case I didn't think (the adjudication of) was harsh enough," Stewart said.

Blau, 63, and Fleece, 58, both seek the status of senior judge, which will allow them to fill in. They look forward to more family time -- especially a treat for Blau, whose four grandchildren live overseas. Not yet ready to kick back, the judges are open to new opportunities and grateful for the ones that came their way.

"The county can be proud of this crop of judges, I think," Blau said.

Posted by Marcia Oddi on November 23, 2008 12:37 PM
Posted to Indiana Courts

Ind. Decisions - Even more on: Another New twist on Terre Haute mayorial race dispute

Updating earlier ILB entries, the most recent being this one from Nov. 22nd, Thomas B. Langhorne of the Evansville Courier & Press reports today in a lengthy story headed "Election lawsuits examined":

The recent Indiana Court of Appeals ruling that inspired three lawsuits last week contesting Vanderburgh County election results flies against precedent and "may very well" be reversed by the Indiana Supreme Court, said a local attorney who has argued before the court.

Cole Banks, an Evansville attorney and political science instructor at the University of Southern Indiana, said case law does not support the Court of Appeals' Nov. 13 finding that Terre Haute Mayor Duke Bennett was ineligible to run for that office in 2007.

In the 2-to-1 opinion, the appeals court decided Bennett was prohibited from seeking office under a federal law limiting the political activities of people whose jobs are funded at least in part by federal money.

Bennett was director of operations from 2005 until 2007 at the Hamilton Center, a not-for-profit community behavioral health services center that operates a federally funded Head Start program.

"I believe the Supreme Court will revisit all the issues involved (on appeal) and may very well reach a different conclusion," Banks said. "The ruling is contrary to prior case law. The basic principle that the courts operate on is, 'Wait a minute, these people have voted. There has to be a really good reason to throw out their votes.'"

Banks said state courts' traditional reluctance to overturn election results also should provide a stiff headwind against Republican County Commissioner Jeff Korb and the local GOP as they seek to reverse the election of Democrat Steve Melcher to Korb's seat and Ed Bassemier to an at-large County Council seat on the strength of similar claims.

In cases that Banks said will be watched by legal and political professionals across the state, Korb and the GOP separately seek hearings in Vanderburgh Circuit Court to declare Melcher and Bassemier disqualified from being candidates and ineligible to serve. * * *

The appeals court cited a 1958 Indiana Supreme Court case, Oviatt vs. Behme, in which a losing candidate unsuccessfully challenged the winner's eligibility to run.

In a lengthy explanation of that case, the appeals court repeatedly cited the Supreme Court's finding that voters' ballots should not be discounted unless it can be shown that they were aware of a candidate's ineligibility and willfully disregarded it.

Support for Banks' argument can be found in the dissent filed by Appeals Court Judge Edward W. Najam, who also argued that the court disregarded the Oviatt case and other case law.

"For almost 150 years, our Supreme Court has consistently held that a successful post-election challenge cannot be maintained on the grounds of the winning candidate's ineligibility unless the voters knew of that ineligibility and wasted their votes accordingly," Najam wrote.

Here is the initial ILB entry on the Nov. 13th Court of Appeals decision In the case of Kevin D. Burke v. Duke Bennett.

Posted by Marcia Oddi on November 23, 2008 12:23 PM
Posted to Ind. App.Ct. Decisions

Legislative Benefits - "Miller to seek lobbying curbs again"

The Indianapolis Star's "Behind Closed Doors" column today includes this item, headed "Miller to seek lobbying curbs again":

Sen. Patricia L. Miller, R-Indianapolis, once again will push for a cooling-off period for former lawmakers who want to lobby the General Assembly.

Last week, Miller filed a bill that would require retiring lawmakers to wait one year before lobbying.

Miller points to Gov. Mitch Daniels' rules that prohibit former executive branch employees from lobbying state agencies for at least one year after leaving the state.

Last session, Miller's bill failed to reach the Senate floor. She's hoping for a better result this time.

"Lobbyists are an important part of the legislative process because they are informed on particular and important issues," she said in a news release. "But having legislators sit out a year before taking on a lobbyist job is better public policy and can establish a better, more trusting relationship with Hoosiers."

The statement "Last session, Miller's bill failed to reach the Senate floor" doesn't begin to describe the brohaha that ensued when Senator Miller's bill, SB 165, was "heard" in Senate Committee in January of 2008.

"'Legislator to Lobbyist' slowdown bill gets cold shoulder" is the heading to this ILB entry from Jan. 17th. Several papers editorialize in favor of the bill in this ILB entry from Jan. 20th.

What came next, however, was this Jan. 27th entry, quoting a front-page Star story headed "Insulted, senators kill legislator-to-lobbyist bill": What followed was another round of editorials, quoted in this Jan. 29th ILB entry.

Unfortunately, in the end, as reported above, "Miller's bill failed to reach the Senate floor" in 2008.

Posted by Marcia Oddi on November 23, 2008 11:09 AM
Posted to Legislative Benefits