January 29, 2004
WE ARE BACK, BUT NOT HERE!!!Sadly, the Indiana Law Blog has been unavailable since last Sunday, because of problems of the internet company hosting this site. The good news -- The Indiana Law Blog is back, better than ever, starting this weekend, at a new, easy-to-remember location: IndianaLawBlog.com.
Not Law but Interesting - Indiana Boy Makes Good in the Blog World"
[A] 25-year-old with a laptop and some backers can in two years do what it took others decades to accomplish: become the central clearinghouse of information about the presidential primary, from schedules to hourly updates on who's trashing whom," according to this lengthy and fascinating story today in the Washington Post about "James Pindell, editor of PoliticsNH.com, the newest arrival on the New Hampshire primary media scene." Talking about changes in primary coverage, the Post story reports:
In many ways the New Hampshire primary exists in a time warp. Every four years, candidates come and campaign in the same diners serving the same menus, open the same offices on the same sagging downtown street, court the same state representatives and union bosses who seem to have been around forever, all in the service of old-fashioned retail politics.
But change is eating away at the edges. Commuters from Boston and the Northeast have flooded the state in the last five years, and many are indifferent to its arcane political traditions. New young campaign workers come here to work and stay during the off years, forming their own political establishment. The Dean campaign takes the New Hampshire traditions and upends them, using the Internet to reach out to voters, one by one.
Embedded reporters follow candidates everywhere, making it nearly impossible to have an exclusive, much less a private dinner. And now there is James Pindell, who estimates he can broadcast the latest mud-throwing so quickly on his Web site that soon candidates will come to rely on him to find out what their opponents are saying about them, instead of using those campaign spies they send to one another's events.
The description of Pindell's role as techno-vanguard would not sit well with him. Not too far out of graduate school in journalism, Pindell sees himself in the old-school model: a political junkie, a newsman chasing the scoop, thinking "every news cycle, how can I own it." "We're just like the boys on the bus," he says of his news staff of two, plus three interns. "Only we're the boys on the bus with laptops."
Pindell grew up in Indiana, where in eighth grade he began writing congressmen he saw on C-SPAN. When Rep. Dana Rohrabacher (R-Calif.) left him a response on his voice mail, an addiction was born. He graduated from Drake University in Des Moines early so he wouldn't miss the last Iowa caucuses. He spent that year working for Yepsen, for whom he toiled away, a happy factotum, soaking up the master's lessons.
Two years ago, while covering the statehouse in West Virginia for a small newspaper, he got a strange offer. It came by e-mail from PoliticsNJ.com and invited Pindell to work at a similar site in New Hampshire. The sender was anonymous. Pindell has still never met his backers or talked to them by phone. He communicates with them by e-mail and deals with an accountant, who is regular with the checks. He guesses they are not journalists, but still Pindell felt a kinship: "They were junkies worse than I am."
Law - Martha Stewart's courtroom has a history
Built in 1936, the Thurgood Marshall Courthouse (a name it received only last year, though it often still is referred to as Foley Square) has 23 courtrooms. But Courtroom 110 is among the largest of the lot, with a seating capacity of about 150, which is why it gets some of the most prominent cases.Imelda Marcos was tried there, as was Leona Helmsley. But that is just the beginning of the list.
January 24, 2004
Indiana Law - Allow ex parte meetings with Indiana Utility Regulatory Commission?
It sounds innocent enough: A telephone company or electric utility has filed for a rate increase, and representatives of the company want to stop by the Indiana Utility Regulatory Commission offices to chat with commissioners or staff members about the case. * * * Under House Bill 1084, sponsored by Rep. Edmund Mahern, D-Indianapolis, parties to a pending IURC case no longer would be banned from meeting individually with IURC commissioners, staff or administrative law judges as long as those parties later summarized the meeting in a report available to other parties and the public.The editorial concludes:
Clearly, what the utilities want to do with the IURC is what they do so aggressively and lavishly with the legislature: lobby. Their resources would give them a huge advantage in ex parte meetings and intensify the pressure IURC already feels from pro-utility lawmakers. Pro-citizen lawmakers should expel ex parte and keep the governance of public service businesses where the public can see it.Here is a link to the introduced version of Representative Mahern's bill, HB 1084. Currently the bill is still in first-house committee. Here is the site where action on the bill may be followed. The existing law is found at IC 8-1-1. Subsection IC 8-1-1-5(e) reads:
(e) Except as otherwise provided in this chapter, no member or employee of the commission assigned to make findings of fact and conclusions of law in a formally docketed evidentiary proceeding may communicate in connection with any issue of fact or law disputed in that proceeding with any party or his representative, except on notice and with opportunity for all parties to participate. A person who violates this section commits a Class C infraction.
Law - Several States Seek Constitutional Restrictions Against Same-Sex Marriage
"Lawmakers in several states seek tougher bans on gay marriage," is the headline to an AP analysis piece this morning published in a number of papers, including the Detroit News and the Evansville Courier & Press. Some quotes:
Despite laws on the books already barring gay marriage, legislators in at least nine states are pushing for new, more sweeping measures in hopes of preventing any ripple effect from laws and court rulings elsewhere.A front-page story this morning in the Indianapolis Star, headlined "Kernan: Marriage law is adequate: Others move to have the state constitution amended to ban same-sex marriages," reports:
In most cases, Republican lawmakers in states with existing Defense of Marriage acts seek to go a step further by amending their constitutions to specify that marriage must be heterosexual. State Rep. Bill Graves, a bill sponsor in Oklahoma, wants to stipulate that same-sex unions are repugnant to the public policy‰ of the state.
Supporters say the constitutional amendments are necessary to ensure that legislation and court judgments in other states -- such as the recent ruling in favor of gay marriage by the Massachusetts Supreme Judicial Court -- will not compel recognition of same-sex unions in their own states. Gay-rights activists see the amendment campaign as vindictive and partisan. * * *
In all, 37 states [including Indiana] and the federal government have Defense of Marriage acts that say marriage can only be between a man and a woman. Ohio may soon become the 38th state * * * Proposed constitutional amendments that would ban gay marriage have been introduced in Arizona, Georgia, Indiana, Oklahoma, Kentucky and Michigan; one is expected soon in Alabama. * * *
Pending final resolution of the Massachusetts court ruling, no state allows full-fledged same-sex marriages. Vermont recognizes marriage-like civil unions, while California, Hawaii and New Jersey grant various rights to same-sex couples registered as domestic partners. Legislators in Maryland and Colorado hope to get civil union legislation considered by their colleagues this session. * * *
If Ohio enacts its pending Defense of Marriage act as expected, only 12 states, including Massachusetts, would be without one. The others are Connecticut, Maryland, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Wisconsin and Wyoming.
Gov. Joe Kernan said Friday he sees no need to change an Indiana law that prohibits same-sex marriages, despite a move in the General Assembly to put that ban in the state constitution. "Indiana law is pretty clear on that right now," Kernan, a Democrat, said.Meanwhile, this editorial, titled "An Unncessary Offensive," on the combined Cincinnati Enquirer & Kentucky Post site, begins:
But Indiana Attorney General Steve Carter, a Republican, said Friday that state law isn't enough. "The institution is still under legal attack," he said, noting court challenges in other states and Indiana, including one case awaiting a decision in the Indiana Court of Appeals. [access info here] Carter is backing Senate Joint Resolution 7 by Sen. Brandt Hershman, R-Wheatfield, to amend the state constitution to ban same-sex marriages.
Judging from the words and votes emanating from Washington, Frankfort, Columbus and other legislative parlors, gay marriage is one of the more pressing concerns in the land today. * * * In Kentucky (where lawmakers couldn't even manage to pass an operating budget in the last cycle) legislators are talking about amending the state's constitution to ban same-sex marriage.
Indiana Decisions - Follow-up on 7th Circuit Curfew Ruling
Indianapolis likely will ask the General Assembly to rewrite the state's curfew law after it was declared unconstitutional this week, city officials said Friday.Access earlier Indiana Law Blog coverage here (or simply scroll down to Thursday).
City Attorney Scott Chinn said city and state lawyers would discuss an appeal of the decision by a federal appellate court, but he said tweaks to the state law could prove to be the easier fix. "Quite honestly, the 7th Circuit's decision gives a road map to what would be constitutional," Chinn said.
The 7th U.S. Circuit Court of Appeals pointed to inadequate protections in the law for minors participating in First Amendment activities, such as religious and political activities.
January 23, 2004
Law - Illinois Supreme Court Rules Former Governor Could Commute 167 Death Row Sentences
In a ruling that could end the legal battle over former Gov. George Ryan's decision to clear Death Row, the Illinois Supreme Court affirmed Friday that Ryan had the power to commute the sentences of all 167 inmates awaiting execution.Access the Illinois ruling here.
The court, without dissent, rejected Atty. Gen. Lisa Madigan's argument that Ryan overstepped his authority in the case of 32 inmates who either had not asked for clemency or whose death sentence was not final.
While criticizing the idea of granting blanket clemency, the seven justices said the Illinois Constitution gave Ryan essentially unfettered authority to handle pardons as he saw fit.
Law - 7th Circuit issues interesting ticket scalping decision
In Chortek v. City of Milwaukee (1/23/04 USCA 7th Cir.) the 15 plaintiffs alleged that the defendants had violated their constitutional rights when the plaintiffs were arrested for selling tickets in the vicinity of the Bradley Center, Milwaukees sports and entertainment arena. Apparently on-the-scene citations were not enough to deter the scalpers. [T]hats when we decided to take a more affirmative action as it relates to arresting and detaining people violating the scalping ordinance.‰ The officers at the scene made the decision to arrest summarily all offenders, regardless of whether they were first-time‰ offenders or regular‰ ticket sellers.
The plaintiffs were detained at PPS from approximately three to fourteen and one-half hours while the administrative processing steps were completed. They underwent the procedures previously described. With one exception, the plaintiffs were not allowed to make phone calls during their detention.The district court granted summary judgment to the defendants; the plaintiffs appealed the district court's entry of summary judgment on their Fourth Amendment claim. The Court of Appeals concludes:
Because the plaintiffs arrests and detentions did not violate the Fourth Amendment and because the plaintiffs cannot establish an official policy or custom, the district court correctly entered summary judgment in favor of the defendants on the plaintiffs § 1983 claims. We affirm the decision of the district court.
Indiana Decisions - Three Opinions Released Today by Court of Appeals
Linda Johnson v. Parkview Health Systems (1/23/04 IndCtApp) [Wrongful Death]
Sedona Development Group, Inc. v. Merrillville Road Limited Partnership (1/23/04 IndCtApp) [Contracts]
Travis Stephens v. State of Indiana (1/24/04 IndCtApp) [Criminal Law & Procedure]
The Supreme Court of Indiana has posted the schedule for the February 2004 Sitting of the Indiana Supreme Court.
Environment - Some recent midwest stories
This story, from the Louisville Courier-Journal, titled "Rubbertown plants balk at deal on emissions: Reluctance upsets neighborhood groups," caught my eye in light of this earlier ILB Rubbertown coverage.
And this looks like a success story, albiet long in coming. Headlined "Ex-recycling site judged fit to sell: Toxic cleanup wins state's OK," the lead is:
At last, Allen County's long environmental nightmare is over. Nearly 13 years after taking over the former I.J. Recycling site, county officials can sell the once-contaminated land. The Allen County commissioners announced Wednesday they have received a letter from the Indiana Department of Environmental Management verifying all cleanup requirements have been met, which clears the land for sale.Another Fort Wayne story from the Journal-Gazette, this one on confined feeding, reports:
A local dairy operator no longer has to operate under the tight restrictions of state regulators.Finally, for now, this story from the Lexington Kentucky Herald-Leader, headlined "Fine for sludge spill is reduced by 90%," begins:
But Johannes De Groot has to comply with existing environmental laws when spreading manure on the fields of his Andrews commercial dairy farm, according to Indiana Department of Environmental Management officials.
An administrative judge in Washington, D.C., has greatly reduced a federal fine for a mining company responsible for what federal regulators in 2000 called the South's worst environmental disaster.
What began as a $110,000 fine against Martin County Coal Corp., which leaked 306 million gallons of coal sludge into Eastern Kentucky streams, apparently will wind up costing the company only $5,500.
Indiana Decisions - Transfer List for Week Ending Jan. 23, 2004
Here is the Indiana Supreme Court transfer list for the week ending January 23, 2004.
The lists are also always available via "Categories" in the right column.
Indiana Law - Uncertified Touch Screen Voting Machines Used in Indiana Elections
At least three Indiana counties used illegal voting equipment in November's general election, and the Indiana Election Commission is demanding answers from the company that sold the machines. The commission is issuing a subpoena to Election Systems & Software requiring it to provide information on why it provided Johnson, Wayne and Henry counties -- and possibly three other counties -- with touch-screen equipment that had not been certified as accurate and approved for use in Indiana.The story points out that "While Indiana law requires that only certified voting systems be used, there is no penalty for using illegal equipment." However, the story continues:
It's the second time the Nebraska firm, one of the nation's largest suppliers of voting equipment, has come under fire in Indiana. In October, Marion County learned the company had provided uncertified equipment to count absentee ballots. It was an error that forced the hand-counting of thousands of ballots, delaying election results.
That could change under a bill filed by Sen. Connie Lawson, R-Danville. Senate Bill 422 would bar a company that provides nonapproved voting systems from selling its equipment in Indiana for five years.SB 422, a 33-page bill covering a number of election issues, is still in first house committee this morning. A copy of the introduced version is available here. To follow the latest information, use this link.
The Indiana Law Blog has published a number of entries about electronic voting machine issues; access a list here.
January 22, 2004
Indiana Decisions - 7th Circuit reverses SD Ind Ruling on Indiana Curfew Law
Hodgkins v. Peterson, Mayor of Indianapolis (1/22/04 USCA 7th Cir.)
Rovner, Circuit Judge
This was an appeal from the ruling of USDC SDInd; Tinder, Judge. As stated by the Court of Appeals in a 29-page opinion:
A parent and her minor children challenged Indianas curfew law (Ind. Code §§ 31-37-3-2 and 31-37-3-3.5 (curfew law‰)) claiming that the law violates the First Amendment rights of minors and impinges on the substantive due process rights of parents to raise and control the upbringing of their children. The district court denied the plaintiffs motion for a preliminary injunction, holding that the curfew lawwhich contains an affirmative defense for minors arrested while participating in, going to, or returning from an activity protected under the First Amendment to the United States Constitution did not threaten to curtail the First Amendment rights of juveniles and did not impede the due process rights of parents to direct their childrens upbringing without undue interference from the government. Even with the affirmative defense, however, the new curfew leaves minors on their way to or from protected First Amendment activity vulnerable to arrest and thus creates a chill that unconstitutionally imposes on their First Amendment rights. Consequently, we reverse the decision of the district court. * * *[Update 1/23/04] The Indianapolis Star gives this decision front page coverage this morning - access it here in a story headlines "Court strikes down state curfew law: U.S. appeals panel: Statute violates First Amendment." Some quotes:
Although this disposition renders it unnecessary to reach the plaintiff parents due process claim, the nature of the curfews affirmative defenses leads us to make one final observation about that claim. The premise of the due process claim is that parents have a right to make decisions about their childrens upbringing without undue interference by the state. Courts sustaining curfew laws against this type of claim typically cite the laws exceptions and defenses as evidence that the laws interfere only minimally with parental authority. [citations omitted] In this case, the exceptions covering a broad variety of circumstances do give parents greater flexibility to allow their children to stay out after hours and in that way minimize the interference with parental autonomy. But the affirmative defenses in the Indiana curfew statute present a risk that a minor will be arrested whenever the arresting officer lacks direct knowledge that the minor is on an emergency errand, coming from a school sanctioned activity, or engaging in some other activity encompassed by the specified defenses. For that reason, we are not convinced that the affirmative defenses actually do minimize the states restraint on parental authority in a manner sufficient to overcome a constitutional attack. Nevertheless, we leave that determination for another day.
REVERSED AND REMANDED.
A federal appeals court ruled Thursday that Indiana's curfew law was unconstitutional because it could dissuade children from exercising their First Amendment rights for fear of being arrested. The city of Indianapolis will stop enforcing the law immediately, police officials said. * * * The case now will be returned to the U.S. District Court in Indianapolis, where Judge John Tinder is expected to place an injunction on the law so it is no longer enforced. City officials have not decided whether to appeal, said Scott Chinn, the city's corporation counsel, adding they could seek a trial in District Court or ask the legislature to amend the curfew law again.
Law - Mayor Daley fights gun-sales bill that would block city suit
Chicago Mayor Richard Daley called on Congress Wednesday to reject legislation that would block cities from suing gun dealers and firearms manufacturers for sales practices that allegedly ease weapons purchases by street criminals. The legislation, which has passed the U.S. House, would invalidate a lawsuit that Chicago has filed seeking damages for the cost of gun violence on the city's streets. * * *You may recall that our Indiana Supreme Court ruled on Dec. 23, 2003 "ruled that the city of Gary may proceed with its lawsuit against gun manufacturers and sellers. The court reversed a lower court ruling dismissing the city's claims and rejected virtually every argument made by the industry against the suit." [Quote from the Indianapolis Star story of that date.] See the ILB's initial entry on the Indiana ruling here. See this entry from the same date for links to the pending congressional legislation.
Chicago, which has banned handguns, filed a public nuisance lawsuit in 1998 seeking $433 million in damages against certain suburban gun dealers and national firearms manufacturers. The suit contends that the businesses' design, marketing and distribution practices combine to foster the flow of handguns to street criminals in Chicago.
The suit was dismissed by a state trial court and later reinstated by an appeals court. The Illinois Supreme Court is considering whether to allow it to proceed.
More from the Tribune story:
Gun control advocates have vowed to filibuster the legislation. But a spokesman for lead sponsor Sen. Larry Craig (R-Idaho) said the senator has enough commitments of support to muster the 60 votes necessary to overcome any attempt to block the measure.
Backers of the legislation say the gun industry needs to be protected against frivolous litigation and potentially expensive court judgments that could put manufacturers out of business.
"The gun industry is being sued for the criminal acts of third parties. The legislation would protect this industry from being bankrupted by greedy trial lawyers and grandstanding mayors," said Kelly Hobbs, a spokeswoman for the National Rifle Association.
Indiana Decisions - Three Posted Today by Court of Appeals
Jeremiah Beverly v. State of Indiana (1/22/04 IndCtApp) [Criminal Law & Procedure]
Law - More on the U.S. Supreme Court CAA Ruling Yesterday
A number of stories today on the U.S. Supreme Court's decision in Alaska Dept. of Environmental Conservation v. EPA. (Scroll down for yesterday's ILB coverage and links.) David Savage reports here in the LA Times:
The U.S. Supreme Court on Wednesday strengthened the power of federal antipollution regulators to enforce the Clean Air Act, ruling that they could overrule lax state officials and block new plants that would emit dirty air.The lead to Charles Lane's story this morning in the Washington Post is:
The Supreme Court ruled yesterday that federal air-quality regulators may overrule their state counterparts when Washington can show that state regulators have unreasonably given industry the right to expand emissions in pollution-free areas.And Linda Greenhouse, writing for the NY Times, reports:
By a vote of 5 to 4, the justices said that the Clean Air Act empowered the Environmental Protection Agency to block the expansion of a huge zinc mine in northwestern Alaska because Alaska's Department of Environmental Conservation, citing cost concerns, had allowed the mine to install pollution-control technology that reduced emissions by less than an alternative device would have.
In an opinion by Justice Ruth Bader Ginsburg, the court majority said that the EPA plays a "limited but vital role" in preventing states from straying too far from the overall purposes of the Clean Air Act. Without such federal oversight, Ginsburg argued, states could engage in a competitive lowering of environmental standards to attract industry. * * *
Ginsburg emphasized that the court was not abolishing states' "considerable leeway" to issue environmental permits; it was, she wrote, simply ensuring that the EPA can step in when it has evidence that state regulators acted without good reason, given the Clean Air Act's overall objectives.
The question for the Supreme Court was whether federal or state environmental officials should have the final word on whether the mine's proposal to control its new emissions was the "best available control technology" [BACT] that the law requires.In another CAA story, the Washington Post reports today in its business section:
Alaska's Department of Environmental Conservation had accepted Cominco's proposal to install an anti-pollution technology known as Low NOx, for low nitrogen oxide, as "logistically and economically less onerous" than an alternative that, while more expensive, was more efficient. The E.P.A. vetoed that decision on the ground that the state had not justified its refusal to insist on the alternative as the best available. * * *
The dissent by Justice Anthony M. Kennedy accused the majority of "relegating states to the role of mere provinces or political corporations, instead of coequal sovereigns entitled to the same dignity and respect." But the states were divided in this case, with a group of mostly Western states siding with Alaska, and Northeastern states siding with the federal regulators. States including New York, New Jersey and Connecticut told the court that E.P.A. oversight "provides a necessary backstop" to clean air enforcement. These states' attorneys general recently declared that they intend to bring their own enforcement suits if the E.P.A. will no longer do so.
In an important turnabout, the Bush administration has decided to bring new court actions to force cleanups of aging coal-fired power plants under a provision of the Clean Air Act that officials and their industry allies have sought to weaken for the past three years. * * *
In a speech before the National Association of Manufacturers, [Environmental Protection Agency Administrator Mike] Leavitt also stepped up his call on utility industry leaders to begin "cleaning up" their coal-fired power plants in anticipation of proposed new rules designed to sharply reduce major pollutants in the coming decade. He had warned, during a closed meeting with utility executives in Scottsdale, Ariz., two weeks ago, that the government intends to bring new cases.
January 21, 2004
Indiana Law - More on the Line Item Veto and the Budget
"Maryland's governor ranks second to none in chief budget power: Funds' control rests with executive, not legislators, unlike most other states." This story, published to day in the Baltimore Sun, describes the Maryland budgetary process thusly:
On days like today, Gov. Robert L. Ehrlich Jr. is no doubt thankful he was elected to lead Maryland rather than Texas, Colorado or Arizona. In those states, the chief executive proposes a budget that is usually tossed aside by lawmakers, who start from scratch and frequently ignore what the governor wants. But Maryland is unique in the nation in the strength of budgetary powers granted to its governor.The Maryland governor's budget powers are set out in the Maryland Constitution, at Article III, section 52. Section 52 is a very lengthy and detailed set of requirements, reading more like a statute than a constitutional provision. According to my copy of the Report of the 1967 Maryland Constitutional Convention Commission, the language came about as the result of a 1916 report of a Commission on Economy and Efficiency, headed by the then-president of the Johns Hopkins University. That report summarized the purposes of the proposed amendment as follows:
This morning, Ehrlich is scheduled to unveil a $22 billion spending blueprint for the fiscal year that begins July 1. He will then sit back and watch as that framework pretty much becomes reality.
In no other state do lawmakers play such a limited role in the budgeting process - and, by extension, in setting policy through what state government does. Even the president of the United States has less say over the federal budget.
Senators and delegates here cannot add money to the budget, and they can't move funds from one program to another. Their tools are few. They can cut and threaten. They can write mandates into law. Sometimes, they can only beg.
1st. To impose upon the Governor the sole responsibility, within the limits of the Constitution and the provisions of existing law, of presenting to the Legislture a complete and comprehensive statement of the needs and resources of the State ... .The Maryland Governor also has a line item veto, found at Article II, section 17(e):
2nd. To make it impossible for the Legislature to change the plans proposed by the Governor as to produce a deficit.
3rd. To permit the Legislature to make provisions for any purpose not included in the Governor's plan, on the condition that it provide also for the revenue, which the accomplishment of its purpose necessitates.
The Governor shall have power to disapprove of any item or items of any Bills making appropriations of money embracing distinct items, and the part or parts of the Bill approved shall be the law, and the item or items of appropriations disapproved shall be void unless repassed according to the rules or limitations prescribed for the passage of other Bills over the Executive veto.As the Baltimore Sun story concludes, Maryland's "executive budget" system "grants the Governor more power than is now permitted by any other state in the nation."
[Update 1/22/04] Of course, all that power can also make a governor the focus of critiicism, as this editorial today in the Washington Post blasting the Maryland Governor's budget for the coming fiscal year ably demonstrates. The titled: "Mortgaging Maryland."
Environment - More News re Indiana Environmental Matters
This interesting story was published today in The Decatur Daily Democrat. A city of under 10,000, Decatur is located near the eastern border of Indiana. The story, titled "City's newest department close to reality," gives an inside view of the impact of environmental compliance on a small municipality. Some quotes:
The City of Decatur's newest department, forced upon it by the federal government, moved a giant step nearer reality Tuesday night during a brief Decatur City Council meeting in City Hall.
The ordinance creating the new agency - the Department of Stormwater Management - was unanimously adopted by council after some changes were made and approved. * * *
Although the department itself is not federally mandated, all sorts of new rules and regulations governing stormwater, under the Federal Clean Water Act, along with the enormous amount of paperwork which will be involved, are forcing the city to create the new department. * * *
The Department of Stormwater Management, under the supervision and control of city council, will administer the acquisition, design, construction, maintenance and operation of the stormwater system, including capital improvements designated in the capital improvement program [, as well as] "administer and enforce the ordinance and all regulations and procedures adopted relating to the design, construction, maintenance, operation and alteration of the utility stormwater system..."
The department will be funded, in the main, by user fees plus permit and inspection fees. One of its key functions will be generating data which must be presented to the Indiana Department of Environmental Management (IDEM) to demonstrate that the city is in compliance with federal rules on managing stormwater.
Indiana Decisions - Five Opinions Posted Today
Antwain James Hines v. State of Indiana (1/21/04 IndSCt) [Criminal Law & Procedure]
Star Wealth Management, Company v. Lloyd Brown (1/21/04 IndCtApp) [Torts]
Robert J. Cox v. Diane L. Anderson (1/21/04 IndCtApp) [Family Law & Procedure]
Law - Supreme Court Affirms 9th Circuit in Alaska CAA Case
The U.S. Supreme Court today, in a 5-4 decision, upheld the ruling of the 9th Circuit in the case of Alaska Dept. of Environmental Conservation v. EPA, concerning EPA's overide of Alaska's exercise of delegated regulatory authority under the Clean Air Act. Access the opinion here. The majority opinion concludes:
In sum, we conclude that EPA has supervisory authority over the reasonableness of state permitting authorities' BACT determinations and may issue a stop construction order, under §§113(a)(5) and 167, if a BACT selection is not reasonable. We further conclude that, in exercising that authority, the Agency did not act arbitrarily or capriciously in finding that ADECs BACT decision in this instance lacked evidentiary support. EPAs orders, therefore, were neither arbitrary nor capricious. The judgment of the Court of Appeals is accordinglyAccess earlier Indiana Law Blog entries here and here.
January 20, 2004
Environment - News re Indiana Landfills, Wetlands
contacted the Indiana Department of Environmental Management about purchasing the interest of a proposed landfill there. The proposed landfill, known as Mallard Lake Landfill, is located in Anderson, about 30 miles northeast of Indianapolis. It is owned by J.M Corp., owned by Jeff, Mark and Ralph Reed."Environmentalists fear House wetlands vote: Lawmakers expect to override veto," is the headline of this story published yesterday in the South Bend Tribune. Some quotes:
"Believe it or not, we've been battling the opening of this landfill for 25 years now," Wean said. "The proposed site is 21/2 miles from an airport and only 1,250 feet from an elementary school." Wean said the Reeds were finally granted a siting permit a little over five years ago by IDEM and were allotted up to five years in which to begin construction on the landfill.
Apparently due to financial constraints -- the corporation is saddled with $7.5 million in unsecured loans -- the landfill never was built and now the five-year deadline imposed by IDEM has passed.
A long battle over wetlands is about to end in the House of Representatives, with environmentalists the apparent losers. The winners will be lawmakers who want more say in setting wetlands policy, and the commercial, agricultural and development interests who want more leeway to drain and fill wetlands.
The fulcrum for those results is a 2003 bill, vetoed by then-Gov. Frank O'Bannon, that the House will push into law by overriding the veto. The voting date has not been scheduled, but lawmakers familiar with the issue say an override is all but certain. The same will hold in the Senate, lawmakers say, although no vote is scheduled there, either. * * *
The bill addresses so-called isolated wetlands, which lack a surface connection to navigable waters or their tributaries. Isolated wetlands account for about one-third of Indiana's 800,000 remaining wetlands acres, according to state agencies. And many are in north central and northeast Indiana, the residue of glaciation.
Indiana Decisions - One ruling posted today by Court of Appeals
Dorothy McKnight v. Marion County Office of Family & Children (1/20/04 IndCtApp) [Family Law & Procedure]
Law - Judge Poser on asylum on the basis of religious persecution
In Yordanos Muhur v. Ashcroft (1/20/04 USCA 7th Cir), Judge Posner, in reviewing an order of the board of immigration appeals that denied Yordanos Muhur's request for asylum and ordered her deportation, said at pp. 5-6:
But the fatal flaw in the immigration judges opinion lies elsewhere, not in the weight he accorded to the lack of documentary proof of Muhurs being a Jehovahs Witness but in the assumptiona clear error of lawthat one is not entitled to claim asylum on the basis of religious persecution if (a big if, by the way, Najafi v. INS, 104 F.3d 943, 949 (7th Cir. 1997); Bastanipour v. INS, 980 F.2d 1129, 1132-33 (7th Cir. 1992)) one can escape the notice of the persecutors by concealing ones religion. Christians living in the Roman Empire before Constantine made Christianity the empires official religion faced little risk of being thrown to the lions if they practiced their religion in secret; it doesnt follow that Rome did not persecute Christians, or that a Christian who failed to conceal his faith would be acting unreasonably.‰ (I do not believe that she would unreasonably draw attention to herself or her purported religion.‰) One aim of persecuting a religion is to drive its adherents underground in the hope that their beliefs will not infect the remaining population.
The immigration service may be overworked because of additional duties placed on it in the aftermath of the September 11, 2001, terrorist attacks on the United States. But the service does not suggest that the kind of analytical error that we have just identified is justified, or should be excused, by a lack of resources. Such a suggestion would invite the service to try to dilute judicial review by asking for less money from Congress for adjudication, in the hope that courts would be forgiving of errors precipitated by the agencys financial inability to hire the number of competent adjudicative officers needed to handle the workload without constantly committing errors.
Indiana Law - Thoughts on the Line-Item Veto
In his State of the State last week, Governor Kernan called for line-item veto authority. But as reported here in the Indianapolis Star last Friday: "Thursday's deadline for filing bills passed without any lawmaker willing to sponsor a bill to give governors the power to strike individual items from the state budget. [Indiana] Governors can only veto the entire budget without removing any parts they find extravagant or unacceptable."
Many legislators have commented that the Governor already has the equivalent of line-item veto authority, via the power of impoundment:
"Where do you think our Build Indiana Fund projects went?" said House Majority Leader Russ Stilwell, D-Boonville, referring to the pet projects for each lawmaker that have been put on hold during Indiana's budget crunch.Or, as the IndyChannel.com reported here in an AP story:
Another item Kernan requested was the ability to veto specific spending items in the state budget without rejecting the entire bill, but Republicans said Kernan already has the power to control spending. If the governor doesn't like a particular part of the budget, he can choose not to spend the money allocated for it, they said. "The governor can already control the budget," said Republican Rep. Jeffrey Espich.The Louisville Courier-Journal reported (here) much the same:
Indeed, governors in Indiana are able to pick and choose what they want to spend from the dollars authorized by lawmakers. Former governors have often ignored spending the General Assembly approved, choosing instead to save the money or shift it to other purposes. The House Republican fiscal leader, Rep. Jeff Espich of Uniondale, said yesterday that governors have recently used their authority to avoid distributing dollars that legislators authorized for raises. Earlier this week, Kernan's budget director indicated that he would not be spending millions of dollars the General Assembly authorized for capital projects.Here is a chart from the National Council of State Legislatures surveying "Gubernatorial Veto Authority with Respect to Major Budget Bill(s)." And here is a chart surveying the varous states' "Executive Authority to Cut the Enacted Budget." In Indiana the Governor, through the Budget Agency, has the authority to make intragency transfers though the allotment process. As provided at IC 4-12-1-12.5:
(e) The budget agency may transfer, assign and reassign any appropriation or appropriations, or parts of them, * * * made for one specific use or purpose to another use or purpose of the agency of state to which the appropriation is made, but only when the uses and purposes to which the funds transferred, assigned and reassigned are uses and purposes the agency of state is by law required or authorized to perform. * * *The State Budget Agency itself describes the allotment process and its powers to transfer funds in these paragraphs from its description of the budgetary process, available here. Some quotes:
Allotments. Allotments are used to control spending. An allotment limits the amount of an appropriation that may be expended during a given time period. Appropriations are not available for expenditure until allotted by the State Budget Agency. The Budget Agency generally develops a quarterly allotment schedule for each account, to ensure that sufficient funds are available throughout the year and that expenditures do not exceed revenues. The Budget Agency may hold a small percentage of agency funds in reserve, to ensure adequate fund balances. The allotment schedule may be adjusted over the course of the fiscal year as conditions change.My thoughts. In short, the Governor has the power of impoundment/allotment, but often only in conjunction with the State Budget Committee (made up of members of the General Assembly) and the State Board of Finance (consisting of the governor, and separately-elected state treasurer and state auditor). The State Board of Finance was created in 1941 via one of a number of bills passed by that General Assembly to weaken the authority of the Governor by granting other state-wide elected officials in the executive-administrative branch co-equal authority over various state agencies. Although a handful of these "Tucker" laws were specifically thrown out by the Indiana Supreme Court's ruling in Tucker v. State, some of these laws, including that creating the State Board of Finance, have not been specifically challenged and remain on the books.
Budget Committee Role. The Budget Committee provides continuing legislative oversight of budget implementation. The Budget Committee meets during the interim between legislative sessions. Many appropriations contained in the Budget require Budget Committee review before any funds may be allotted or spent. In addition, the Budget Committee must review all construction projects that have a cost greater than $100,000 prior to proceeding with construction.
Transfers. Budgets are dynamic financial plans based on hopes and predictions made as much as thirty months in advance, so some variances are bound to occur as events unfold. Most budget variances are minor and are handled in the ordinary course of business by the agencies. When this is not the case, financial adjustments or transfers of appropriation authority may be necessary.
Statute authorizes the Budget Director to transfer, assign, or reassign appropriations within a state agency [intra-agency transfers] as long as the uses and purposes to which transfers are made are authorized or required by law. Such transfers must be at the request and with the consent of the agency whose appropriations are involved. The Budget Director is also authorized to make transfers from contingency or emergency appropriations for purposes authorized by law. The Budget Director may also reduce allotments to prevent a deficit if revenues fall short of forecast levels.
The State Budget Agency may also make inter-agency transfers with the approval of the State Board of Finance. The State Board of Finance is composed of the Governor, Treasurer, and Auditor of State, and has wide statutory authority to make transfers of appropriations between funds and entities of the State.
I've covered both the State Board of Finance issue and the Budget Committee's role in the budgtary process in detail in my recent article, "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," available here, which argues that these restrictions upon the authority of the Indiana Governor violate the separation of powers. With respect to the State Budget Committee's powers, I would also direct your attention to Bowsher v. Synar (1986), a U.S. Supreme Court decision where:
the Court invalidated a provision of the Balanced Budget Act that authorized Charles Bowsher, as Comptroller General of the U.S., to order the impoundment of funds appropriated for domestic or military use when he determined the federal budget was in a deficit situation. The Court concluded that allowing the exercise of this executive power by the Comptroller General, an officer--in the Court's view--in the legislative branch, would be "in essence, to permit a legislative veto."(The preceding summary of Synar is from an excellent site, Exploring Constitutional Law, by Doug Linder of the UMKC School of Law.)
Another problem overlooked in the recent discussion about the line-item veto, and in my view the most serious problem, and one that the line-item veto couldn't begin to impact, is that the "budget bill" has grown over the past 20 years to become a container for practically any individual piece of legislation the leadership decides to include and the Governor is presented this bill on a "take it or leave it" basis. Many of the provisions in recent budget bills have nothing directly to do with appropriations. One of many possible examples is the inclusion in the 2003 "budget bill" of the law creating the Indiana economic development corporation.
I'll conclude with this quote from an editorial titled "Logrolling: how bad laws get passed," from the Indianapolis Star, Sunday, January 7, 2001, that I used as the lead into my paper, "Enforcing Indiana's Constitutional Requirement that Laws be Limited to One Subject," (available here):
For years now, Indiana lawmakers have blithely ignored a section of the Indiana Constitution that bluntly mandates that every bill passed into law be confined to one subject.‰
Despite this admonition lawmakers passed a bill in 1991 that combined hold-your-nose legislative redistricting with the school funding formula, a bill that
absolutely had to be passed. Thats how Indiana got such heavily gerrymandered districts that favor Democrats in the House and Republicans in the Senate.
In 1993, lawmakers again used the budget and school funding formula to pass a riverboat gambling that would never have passed on its own merits. And in 1995, Republican lawmakers rammed through a repeal of the states prevailing wage law by stuffing it into a bill cutting auto excise taxes. It was a hard-to-swallow sandwich for many lawmakers, but they didnt have much choice. Who wants to vote against a tax cut?
The constitutionality of these efforts has often been challenged in lawsuits, but the Indiana Supreme Court has been reluctant to strike down laws solely because they originated in multi-subject bills.
. . . [L]ogrolling has reached such outrageous levels that lawmakers might as well just stuff everything they do into one giant bill each session and send the entire mess to the governor in a wheelbarrow with a take-it-or-leave-it note.
January 19, 2004
First anniversary of Southwest Virginia law blog
The SW Virginia Law Blog, published by attorney Steve Minor, is celebrating its first birthday today. Steve's is an excellent law blog, aimed at lawyers in beautiful southwest Virginia, but also of interest to outsiders, and is one of the blogs I check in on regularly. Keep up the good work Steve!
And for those of you who may be wondering, the Indiana Law Blog will be celebrating its first birthday in mid-March.
January 18, 2004
Law - Voting Problems Highlighted in NY Times Editorial
"Fixing Democracy" is the title of this editorial today in the NY Times. The Times says that the key principle behind our system of government is"that our leaders govern with the consent of the governed, [which] requires a process that accurately translates the people's votes into political power. Too often, the system falls short. Throughout this presidential election year, we will be taking a close look at the mechanics of our democracy and highlighting aspects that cry out for reform." The editorial lists three "key issues:" voting technology, voter participation, and competitve elections.
The Times gives a good summary of the problems facing voting technology, beginning with the now discredited punch cards and moving on to touch-screen machines with no paper records, and continues:
Fortune magazine named paperless voting its "worst technology" of 2003. To address these concerns, electronic voting machines should produce a paper trail hard-copy receipts that voters can check to ensure that their vote was accurately reported, and that can later be used in a recount. * * *The Times concludes this section with a discussion of internet voting, including this: "Internet voting raises all of the security concerns of electronic voting and more. Given that major corporations regularly find their Web sites and databases hacked, and 'Trojan horses' can take over home computers, it's questionable whether any Internet voting can be made completely secure."
Compounding the technology issues are the political entanglements of voting machine companies. Walden O'Dell, the head of Diebold Inc., has raised large sums for President Bush, and pledged in a fund-raising letter that he was "committed to helping Ohio deliver its electoral votes to the president" in 2004. Diebold is hardly alone among major voting machine manufacturers in contributing to elected officials, who represent virtually their only market. But the public has a right to expect that voting machine companies that run elections will not also seek to influence them.
Competitive elections. The Times continues:
[W]ith the rise of partisan gerrymandering, redistricting to favor the party in control of the process, competitive House elections are becoming virtually obsolete. Only four challengers defeated incumbents in the 2002 general elections, a record low, and in the nation's 435 Congressional districts, there may be no more than 30 this year where the outcome is truly in doubt. * * *
Partisan gerrymandering takes control of Congress away from the voters, and puts it in the hands of legislative redistricters. It can also profoundly distort the political direction of the country. In four states that are almost precisely evenly divided between Republicans and Democrats Florida, Pennsylvania, Ohio and Michigan Republican legislators drew district lines so that 51 of the 77 seats are Republican, a nearly two-to-one edge.
Law - Federalization of Common Crimes
"Making Federal Cases Out of Common Crimes: Robbers, pimps, wife-beaters, deadbeat dads and carjackers all have been targeted by Congress. These offenses could be prosecuted locally." So reads the headline today to this AP story in the LA Times. The lead:
The federal government has broadly extended its power in recent decades to fight common crimes, from murder to unpaid child support, and critics say needless federal prosecutions waste money, jeopardize civil rights and divert law enforcement from true national threats. Such cases "clog the federal courts and utilize very limited federal resources in matters that are being prosecuted very well by local authorities," said former U.S. Atty. Gen. Edwin Meese III, who chaired a 1998 study sponsored by the American Bar Assn. Others worry about freedoms. "The historical fear against federalizing crime has always been we don't want a national police power," said Gerry Moohr, a law professor at the University of Houston. "We're very near that."Here are some additional quotes from this lengthy story:
Congress has created so many national crimes in so many sections of legal code that no one has an exact count. There are about 3,500, according to legal surveys. More than 45% have come onto the books since 1970, around when President Nixon declared the first national war on crime. More than 30 federal agencies now have authority to make arrests. In the latest federal data, the justice work force has doubled since 1982 to 194,000. The number of U.S. attorneys and assistants tripled to 5,300. They handled 67,000 new criminal cases in 2002 more than twice the number 20 years before. * * *
There's hardly a type of criminal that Congress hasn't targeted in past decades, often by overwhelming votes with little debate: armed robbers, pimps, carjackers, along with mileage cheaters (Federal Odometer Act), wife-beaters (Violence Against Women Act) and animal-rights militants (Animal Enterprise Protection Act). "It's politically tempting. It's an easy mark," said retired Sen. Fred Thompson, a Tennessee Republican who chaired the Committee on Governmental Affairs. "You'll get very little push-back from people who oppose it."
Environment - Roundup of Mostly Local Stories from the Past Week
A state panel [the Water Pollution Control Board]unanimously approved a new rule Wednesday spelling out how 500 of Indiana's largest livestock farms will be regulated beginning this spring. The rule will put into effect a new federal permit system, which state environmental officials say will give them a stronger hand in protecting waterways from large amounts of manure produced by sprawling hog, dairy and poultry farms. The rule's provisions encompass the same federal pollution controls that have governed discharges from municipal sewage plants and factories for more than 30 years. * * *A story today in the Muncie StarPress, headlined "Water pollution focus of dairy farm permit," reports:
About 500 of Indiana's roughly 2,400 state-regulated livestock farms are factory-style farms known as concentrated animal feeding operations. They generally are defined as having 10,000 or more swine, 1,000 or more young cattle, 1,000 or more veal calves or 125,000 or more chickens.
The U.S. Environmental Protection Agency approved its own rule in late 2002 requiring all such farms to apply for discharge permits under the Clean Water Act. The federal system requires the farms to develop a plan that sets limits on how much animal manure can be applied as fertilizer on farm fields. It also places more emphasis on monitoring phosphorus. When manure is overapplied to land as fertilizer, phosphorus can be washed into rivers and streams, fueling algae growth that can suffocate fish.
Indiana's large livestock farms are currently regulated under an emergency rule that will remain in effect until the new rule's legality is reviewed by the Indiana Attorney General's office, the governor's office and the secretary of state's office. The new rule is expected to take effect in April or May.
WINCHESTER - The Indiana Department of Environmental Management plans to conduct a public hearing here in 4-6 weeks on the proposed 1,650-cow Union-Go Dairy. The dairy would be the latest of a dozen dairies to be developed in Indiana since 1999 by Vreba-Hoff Dairy Development, Wauseon, Ohio. * * *This interesting story appeared earlier this week in Blackford-Warrick's Warrick News. The headline is "Local toxic waste site under scrutiny." Some quotes:
"We know from letters and e-mails we've received that there is a large group of concerned people," said Dennis Lasiter, land use technical advisor in IDEM's office of land quality. But there are limits to IDEM's authority. "We will be very much interested in [what opponents have to say about] water pollution," Lasiter said. "That's our target." Concerns about other issues, such as noise, odor, property values, and wear and tear on roads, should be addressed to local government, Lasiter said.
Large amounts of toxic waste were dumped at the Squaw Creek Mine in Warrick County during its operation. Now, the United Mine Workers Local 1189 says it wants to know the current state of that toxic waste dumped by Alcoa over two decades ago. Union members say they fear the waste--as much as 65 million gallons of it--could still pose serious environmental dangers. Many former mine workers voiced their concerns at a meeting concerning a mine permit renewal conducted by the Indiana Department of Natural Resources. * * *[Update - Another story from Sunday 1/16/04] This story from the South Bend Tribune, titled "NIPSCO sued for fly-ash releases: Waste contains toxic metals that seeped into water, suit claims."
Alcoa spokesperson Sally Lambert says that the company has performed environmental assessments of the former Squaw Creek Mine, and none of those surveys have shown that the waste has had a negative environmental impact.
"We've done three studies since the disposal of the material stopped in 1979," said Lambert. "All of those studies have been reviewed by the Indiana Department of Environmental Management (IDEM) and the EPA, and they have confirmed that there is no remediation of the site necessary. There has been no migration of materials. Unless we are told that it is safer to move those materials, we want to leave them intact and continue to monitor around the site." * * *
The Indiana State Board of Health approved a one-time disposal of 34,800 tons of weathered potlining at the Squaw Creek Mine in 1977. The material can contain cyanides and fluorides, and was listed as a toxic waste by the State of Indiana in 1992. All material was dumped at the mine legally, and Alcoa received permission for each of the materials that went into the site. Alcoa says all of the dumping occurred prior to the implementation of the Resource Conservation and Recovery Act. * * *
In response to concern from IDEM that the toxic waste could affect the local water supply, Alcoa contracted with Civil and Environmental Consultants in 1996 to complete a Phase III Environmental Site Assessment. Four of the pits used for dumping have drainage in open watersheds that eventually lead off the North Field and into Cypress Creek.
Lambert says Alcoa believes that there is no evidence that the waste has migrated or affected any local water supply or had any other negative impact on the local community. The IDEM State Superfund Group informed Alcoa in 1994 that no further action was required at the Squaw Creek Mine. Now, miners want IDEM and other environmental enforcement organizations to change that decision.
The Sunday LA Times has this good overview of the Clean Water Act and the Surface Mining Act as they relate to mountain-top mining in West Virginia, titled "Damage in Appalachia Trickles From Top: Resident's argue in court that leveling peaks for mining is destructive, as the Bush administration revises the law in favor of the coal industry."[Update 1/21/04] Here is a 1/13/04 editorial from the NY Times I'd missed, headlined "Decapitating Appalachia."
Finally, the Munster NWIndiana Times today has a very interesting peice on the dry-cleaning industry and hazardous waste, headlined "The dirt on dry cleaners, Industry anything but clean : Indiana dry cleaners face perc cleanup without state help; dry cleaners liable for cleanup, but insurance may pay." According to the story, although Indiana does not have a trust fund the clean up hazardous contamination from drycleaners (similar to the undergound storage tank trust fund), "it's better to be in business in Indiana because dry cleaners don't have to pay the hefty tax on cleaning solvents." The story says "Currently 12 states including Illinois have the trusts fund which are funded by licensing fees and taxes on the solvents used by the industry." This part caught my eye:
An Indiana dry cleaner who has been in the business for almost 50 years but didn't want to be identified because of a pending sale of her facilities said the cleanup costs for her business, which has multiple locations, is between $4 million and $5 million.The sentence I underlined above caught my eye because I am unaware of this Indiana statute. Any thoughts? Perhaps the reference is to several Indiana Supreme Court decisions refuting insurers' denials of coverage in pollution cases.
For her and others, the saving grace is the Indiana law -- the only one of its kind in the nation -- which requires insurance companies to pay for cleanup of pollution which occurred prior to 1989 if a cleaner can prove the insurance was in force. The cleaner, who is selling the business, was able to establish insurance coverage. "Indiana recognizes old policies have liability," Armstrong said. "In about 1989, insurance companies started changing the policy to give you only $10,000 in coverage."
If there is no insurance coverage or if a cleaner can't prove the business had insurance, they have to either file a lawsuit to prove insurance coverage, pay for the cleanup or find a previous owner to pay. The process can be costly. "It can cost $50,000 to 60,000 in legal fees and nothing is done in cleanup," Armstrong said. "If that money went to cleanup things would have been a whole lot better."
January 16, 2004
Indiana Decisions - 7 opinions released today by Court of Appeals
Here of 6 of the opinions. The 7th, PSI Energy, Inc. v. The Home Insurance Company, et al., a 61-page major environmental cleanup / insurance decision with 20 different law firms listed (that was "affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion"), I'll summarize separately. I've converted it to pdf for easier reading.
Rust-Oleum Corporation v. Carol and Theresa Fitz (1/16/04 IndCtApp) [Civil Procedure]
Spencer Sherrell v. Northern Community School (1/16/04 IndCtApp) [Schools]
Robert Wright v. State of Indiana (1/16/04 IndCtApp) [Criminal Law & Procedure]
Nicholas R. Brannon v. State of Indiana (1/16/04 IndCtApp) [Criminal Law & Procedure]
Anthony T. Herron v. State of Indiana (1/16/04 IndCtApp) [Criminal Law & Procedure]
State of Indiana v. Ritter (Eric) (1/16/04 IndCtApp) [Criminal Law & Procedure]
Indiana Decisions - Transfer list for week ending Jan. 16, 2004
Here is the Indiana Supreme Court transfer list for the week ending January 16, 2004.
A link to earlier Indiana transfer lists is available here. (The lists are also always available via "Categories" in the right column.)
Indiana Law - Lake County fight between steel industry and county officials over assessed valuation
Lake County's industrial giants believe a tax relief law passed last year is critical to their survival in a global economy. And, they say, the region's prosperity depends on their viability. On Thursday, they criticized county officials who have attacked the law and charge it will shift more than $657 million in assessed value from the county's "big three" -- Ispat Inland Inc., U.S. Steel Corp. and BP -- to the county's homeowners and small businesses.
The law's impact is being scrutinized now because the county recently released data showing the three companies' assessed values dropped almost in half under the new law. * * *
The bill was introduced after U.S. Steel had withheld $45 million in taxes annually in 2001, 2002 and 2003, and the county believes the Gary Works mill now owes more than $180 million in late fees and taxes. By passing the depreciation law, legislators gave away millions in disputed tax dollars before the courts could decide the matter, county officials said. Essentially, the new law created a special tax bracket for the three companies by allowing them to depreciate their personal business property by up to 90 percent.
In exchange, they agreed to give up any future claims of "abnormal obsolescence" on their personal business property. The companies have withheld a portion of their taxes since 2001 based on those claims.
Law - More on the Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA)
Yesterday morning NPR.org had a very interesting piece on the RLUIPA, a federal law that exempts religious groups from most land-use regulations. Listen to it here.
January 15, 2004
Environment - VP Lands in Jail for Lying to IDEM
A U.S. Department of Justice press release today reports that:
a former vice president of one of the largest producers of printed labels for branded consumer products in the United States was sentenced yesterday to 18 months in jail, 50 hours of community service and ordered to pay a fine of $4000 for making a false statement to the Indiana Department of Environmental Management (IDEM).Multi-Color entered into an Agreed Order with IDEM, dated 1/30/98, where it was assessed a civil penalty of $625,000. However, it "adequately demonstrated an inability to pay" and by the terms of the Order was allowed to undertake one of four specified Supplemental Environmental Projects (SEPs) to offset a part of the penalty.
John Littlehale, 49, of Terrace Park, Ohio, was the Vice President for Manufacturing at the Multi-Color Corporation, an Ohio-based company. Multi-Color owns and operates a plant in Scottsburg, Indiana, that makes labels for mass-marketed products. In 1997, Multi-Color produced labels for a variety of consumer products including: liquid detergents, fabric softeners, liquid soaps, anti-freeze, motor oil, chewing gum and food products.
Littlehale pled guilty in front of U.S. District Judge David Hamilton on September 8, 2003. During that hearing, Littlehale admitted that he falsely represented to the IDEM that a new press at Multi-Colors Scottsburg Label Division was not operating and that once it began operating, it would have the proper air pollution control devices as required by the Clean Air Act. In fact, Mr. Littlehale directed subordinates to begin operation of the press six months prior to his false submission to the IDEM and, at the time of his false submission, knew the press had been operating without any air pollution control.
Commencing in 1996, the Clean Air Act required certain facilities, including Multi-Color, to apply for facility-wide operating permits, commonly referred to as Part 70 or Title V permits. In December 1997, Littlehale filed the permit application, but falsely certified that Press #3 was not in operation and that when it became operational, it would be in compliance with the Clean Air Act.
In a related matter, Roger Taylor, the former Plant Manager of the Scottsburg Label Division from 1996 until early 1998, was sentenced to six months of home detention and five years of probation and ordered to perform 500 hours of community service. In June 2003, Taylor pled guilty and admitted that he was aware that his supervisor, John Littlehale, made the false statements in the application for the Scottsburg Label Divisions facility-wide operating permit. Taylor acknowledged that he did nothing to report their falsity to the proper authorities, including during subsequent discussions with IDEM employees and contractors.
In handing out yesterdays sentences, Judge Hamilton noted that Littlehales acts were deliberate, calculated violations of the Federal Clean Air Act and stressed the need for criminal enforcement of environmental laws in appropriate circumstances, like this one.
The Multi-Color Corporation was not charged. In January 1998, as the company was going through a management change, it uncovered and immediately disclosed these violations to the IDEM pursuant to a Voluntary Disclosure Program. The IDEMs Voluntary Disclosure Program, based on the U.S. Environmental Protection Agencys self-disclosure policy, encourages the regulated community to report environmental violations in exchange for potential leniency in subsequent enforcement actions, including the potential for avoiding criminal charges. In November 1998, Multi-Color entered into a civil resolution of the case with the IDEM. In the civil matter, the company agreed to pay a fine, perform supplemental environmental projects and cooperate with the government's continuing investigation.
Indiana Decisions - Opinions released today
Robert Henke v. State of Indiana (1/15/04 IndSCt) Criminal Law and Procedure; Constitutional Law
Here all charges were based on Henkes driving in the eastbound lanes of 96th Street where that street forms the boundary between Marion and Hamilton Counties. The parties agree for the purposes of this appeal that the eastbound lanes are in Marion County and that Henke drove only in Marion County. IC 35-32-2-1(i) provides:
for venue in either county when an offense is committed on a highway sharing the common border. Henke moved to dismiss on the ground that the statute was unconstitutional as applied to him. Henke argued that when the evidence is clear that the defendant never crossed the border into another county, the Indiana Constitution limits venue to the county where driving occurred. The trial court denied the motion, holding that the venue statute conferred venue on Hamilton County. On interlocutory appeal, the Court of Appeals reversed, relying upon its opinion in Baugh v. State, 781 N.E.2d 1141 (Ind. Ct. App. 2002), which involved virtually identical facts. In Baugh, the Court of Appeals agreed that the portion of the venue statute granting concurrent jurisdiction could not constitutionally confer venue over crimes where the evidence pointed to only one county as the location of the offense.
In a companion case today, Baugh v. State, __ N.E.2d __ (Ind. 2004), we hold that concurrent venue is constitutional for offenses committed by operating a vehicle on a highway forming the boundary between two counties. We grant transfer, and for the reasons given in Baugh, affirm the trial court in this interlocutory appeal and remand for proceedings consistent with this opinion.
Harry Baugh v. State of Indiana (1/15/04 IndSCt) Criminal Law and Procedure; Constitutional Law
Harry Baugh was arrested for driving while intoxicated on a street whose center lane is the border of two counties. He contends that the statute allowing for a trial in either county is unconstitutional because he drove on only one side of the road and has a right to be tried in the county where the crime occurred. We hold that dangerous driving on a highway creates risk on all lanes of the highway, and invades interests of both counties in the case of a road that forms their common border. Therefore venue in either county was proper. * * * In short, we agree with those courts in other states with similar constitutional venue limits who have held that the legislature may establish concurrent venue for violations on or near borders.Gloria McGill v. John Ling, et al. (1/15/04 IndCtApp) Civil Procedure
Bank of New York v. Stephen H. Nally, et al. (1/15/04 IndCtApp) Property. Real Estate
Bank of NY petitioned for rehearing of this Court's 2003 opinion, where:
we found that a purchaser of real property is held to constructive notice of those documents recorded in the grantor-grantee index and the mortgagor-mortgagee index. In arriving at this conclusion, we distinguished Hartig v. Stratman, 729 N.E.2d 237 (Ind. Ct. App. 2000), rehg denied. In Hartig, John Connell sold real property to Sean Holmes. On the same day, Connell also gave an easement over the same property to the Stratmans. Thereafter, Holmes recorded his deed one minute before the Stratmans recorded their easement. Holmes subsequently sold the property to Timothy Hartig, who did not know about the easement and refused to honor it. This Court determined that Hartig was not deemed to have constructive knowledge of the easement because a search of the grantor-grantee index would not have disclosed it. Id. at 240. In distinguishing the instant case from Hartig, in our original opinion we transposed the names of Holmes and Hartig in our discussion of the recording sequence. Despite this transposition, we continue to find that Hartig is inapposite because it dealt with an easement instead of a mortgage. Because [IC] 36-2-11-12(b) requires mortgages to be kept in a separate index from the grantor-grantee index, we stand by our previous holding that Bank of New York is held to constructive notice of documents contained in both indexes. The petition for rehearing is granted. We affirm our original opinion in all respects, except as clarified in this opinion on rehearing.
Environment - U.S Supreme Court hears Everglades CWA Test
The NY Times' environmental writer, Felicity Barringer, had this front page story yesterday on the Supreme Court arguments Wednesday in the case of South Florida Water Management District v. Miccosukee Tribe of Indians, 02-626. The suit involves a pumping station, "S-9," that for 50 years "has been pouring millions of gallons of storm runoff annually into the Everglades, keeping the farms and backyards of western Broward Country dry but filling the wetlands with water often tainted by pollutants, mainly from phosphorus-rich fertilizers." Some quotes:
[I]ts role in raising the level of phosphorus in the Everglades puts it at the center of a Supreme Court battle that could end up changing the reach of the Clean Water Act, the landmark 1972 law that established a federally controlled system for keeping the nation's waterways clean. The core question is this: Is S-9 a polluter, subject to regulation by the Environmental Protection Agency and state agencies that protect the nation's water supply? Or is it merely a neutral conveyor of water, a cog in a vital infrastructure that, along with thousands of other water systems, keeps flood plains dry and reservoirs full while slaking the thirst of cities, subdivisions and farms? * * *Charles Lane of the Washington Post writes here today:
In 2002, a federal judge ruled that the pump should be regulated under a section of the Clean Water Act requiring "point" sources of pollution like factories and mines to obtain permits under a program run by states.
The suit, now before the Supreme Court, pits the Bush administration which filed a brief in support of the water district and a broad array of city water planners, Western water districts and 11 Western states, led by Colorado and New Mexico, against 14 mostly Eastern states, led by New York and Pennsylvania, as well as the Association of State Wetlands Managers and environmental groups like the National Wildlife Federation.
The Eastern and Midwestern states that have sided with the Miccosukee have an abundance of water and of polluting industries, and thus a keen interest in controlling water quality. New York, for example, filed a brief in the case arguing that the states needed to ensure that their "finely tuned programs to assess, protect and improve the water quality of each surface water body within their borders are not frustrated."
Representing the 500-member Miccosukee Tribe, Dexter W. Lehtinen told the court that, under the federal Clean Water Act, the South Florida Water Management District (SFWMD) must seek a permit from the Environmental Protection Agency to operate a pump that sends phosphorus-contaminated runoff from the lawns and shopping malls of western Broward County back into the Everglades.
Allowing the water district to continue pumping without a federally approved pollution-control plan, Lehtinen said, "would decimate Clean Water Act protections not only for the Everglades," but also for jurisdictions around the country.
But Jeffrey P. Minear, a lawyer for the Justice Department, which supports the SFWMD, told the court that the pump is not covered by the Clean Water Act because it is merely moving polluted water around, not adding pollution to the water, and that "the costs would be very substantial" if permitting were required.
January 14, 2004
Indiana Decisions - One Court of Appeals Opinion Today
Midwestern Indemnity Company, et al. v. System Builders, et al. (1/14/04 IndCtApp) Insurance
Environment - DC Circuit Rules in CAA Suit
In Sierra Club v. EPA, the USCA for the DC Circuit yesterday (1/13/04) rejected the Sierra Club's challenge to the EPA's promulgation, pursuant to sec. 112 of the CAA, of regulations governing the emission of hazardous air pollutants from primary copper smelters. Some quotes from the 25-page opinion:
This is the latest in a series of challenges to rulemakings establishing emission standards for hazardous air pollutants in various industries under the Clean Air Act, see, e.g., Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (hazardous waste combustors); National Lime Assn v. EPA, 233 F.3d 625 (D.C. Cir. 2000) (portland cement manufacturing facilities); Sierra Club v. EPA, 167 F.3d 658 (D.C. Cir. 1999) (medical waste incinerators); Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C. Cir. 1998) (electric utility boilers). We review such challenges under a familiar test and may set aside the standards only if we find them to be ŒŒarbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 42 U.S.C. § 7607(d)(9)(A); see Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1982). ŒŒThe Œarbitrary and capricious standard deems the agency action presumptively valid provided the action meets a minimum rationality standard. Natural Res. Def. Council, Inc. v. EPA, 194 F.3d 130, 136 (D.C. Cir. 1999). After considering Sierra Clubs arguments and reviewing the record, we reject its challenges to the rulemaking in this case and conclude that EPAs emission standards are not arbitrary, capricious, an abuse of discretion, or contrary to law. We therefore deny the petition for review.
Biotech - Pig cells and human cells create hybrid cells
Pigs grown from fetuses into which human stem cells were injected have surprised scientists by having cells in which the DNA from the two species is mixed at the most intimate level. It is the first time such fused cells have been seen in living creatures. The discovery could have serious implications for xenotransplantation - the use of animal tissue and organs in humans - and even the origin of diseases such as HIV. The adult pigs that had received human stem cells as fetuses were found to have pig cells, human cells and the hybrid cells in their blood and organs. * * *Here is another report, this one from ScienceDaily and titled "Mayo Researchers Observe Genetic Fusion Of Human, Animal Cells; May Help Explain Origin Of AIDS."
[M]ost surprisingly, the hybrid cell nuclei were found to have chromosomal DNA that contained both human and pig genes. The researchers found that about 60 per cent of the animals' non-pig cells were hybrids, with the remainder being fully human.
Law - U.S. Supreme Court Today Affirms 7th Circuit Bankruptcy Ruling
Indiana Decisions - Court of Appeals and Tax Court Decisions Released Yesterday
Cathy & Mark Thayer v. Charles Vaughn (1/13/04 IndCtApp) Employment Law
Chanelle Linet Alexander v. Jack Cottey, et al. (1/13/04 IndCtApp) Procedure
As stated by the Court, plaintiffs are:
family members, friends, and attorneys who pay for collect telephone calls from inmates incarcerated in Indianas State prisons and County jails. The Class contends that the trial court erred in granting a motion to dismiss filed by the appellees-defendants, Sheriff Jack Cottey (the Sheriff), et al., (collectively, the defendants) for lack of subject matter jurisdiction. Specifically, the Class maintains that the claims it asserted are within the trial courts original subject matter jurisdiction and there were no administrative remedies for the Class to exhaust. Additionally, the Class maintains that the filed-rate‰ or filed-tariff‰ doctrine does not apply in these circumstances because no regulated utility had filed a petition to fix rates. Finally, the Class argues that Indiana decisions, federal statutes and regulatory decisions requiring de-tariffing have resulted in the demise of the filed-rate doctrine. * * *Victor & Maria Lepucki v. Lake County Sheriff's Department (11/14/03 (really) IndCtApp) Procedure
[W]e conclude that the trial court erred in granting the Defendants motion to dismiss for lack of subject matter jurisdiction. In sum, the trial court must exercise its jurisdiction and determine whether the authority exists that would permit the Sheriff and the State to enter into the contracts with Ameritech and AT&T and to reap a profit in accordance with those agreements. Moreover, we agree with the IURCs pronouncement in Sims that it should not interfere with the contracts here, inasmuch as deference should be given to the DOC to restrict the telephone privileges of inmates. However, should it be found that the State and the Sheriff are entitled to reap profits in accordance with the contracts, the trial court may determine the reasonableness of the rates and profits, or it may refer the cause to the IURC for such a determination. The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.
In the end, we cannot conclude that Marias substantial rights were not affected by the admission of the evidence that she had been found liable for the traffic citation. While there appears to be a trend toward the admission of such evidence, the law has not yet reached this point. Reversed and remanded.Vaidik, J., concurs; Bailey, J., concurs with separate opinion.
Craig W. Glass v. State of Indiana (1/13/04 IndCtApp) Criminal Law and Procedure
William Blanchard v. State of Indiana (1/13/04 IndCtApp) Criminal Law and Procedure
Heart City Chrysler/Lockmandy Motors v. Department of Local Government Finance (1/12/04 IndTaxCt) Valuation of Real Property
Law - U.S. Supreme Court Rules on Illinois Police Checkpoint Case
The issue the Court decided yesterday was: Whether Indianapolis v. Edmond, 531 U.S. 32 (2000), prohibits police officers from conducting a checkpoint organized to investigate a prior offense, stopping all oncoming motorists to hand out flyers about the offense and arresting motorists for drunk driving. The Court ruled, as reported here in a NY Times story this morning:
"The checkpoint stop here differs significantly from that in Edmond," the majority said today. "The stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals."The Chicago Sun-Times headline to their coverage reads: "High court: Car not a 'castle'". Charles Lane writes here in the Washington Post:
Roadblocks like the one that was Mr. Lidster's undoing are normally neither lengthy, intrusive or intimidating, the majority said today. Joining Justice Breyer were Chief Justice William H. Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.
Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg dissented on some issues. But the dissent, written by Justice Stevens, was not an indignant repudiation of the majority's stance. Rather, the dissenters said some of the issues at hand would have been better resolved by the Illinois courts.
In the past, the Supreme Court has approved checkpoints for such special purposes as checking for drunk drivers or hunting contraband near U.S. borders. But in 2000, the court invalidated police checkpoints in Indianapolis at which officers stopped cars at random and searched them for drugs using sniffer dogs. In that case, the court held that "the ordinary enterprise of investigating crimes" was not sufficient justification.See additional discussion of the DNA issue in the IBL entry of last Friday (scroll down) titled "Law - 7th Circuit Rules on Constitutionality of Wisconsin DNA Statute."
Yesterday's decision narrowed the scope of the 2000 ruling. The checkpoint approved was different from the one in Indianapolis, Breyer wrote, because "police expected the information elicited to help them apprehend not the vehicle's occupants, but other individuals." * * *
Legal analysts said a ruling limiting the Indianapolis precedent could affect a current case on mandatory DNA testing of former federal prisoners. A 2000 federal law required federal parolees to give blood samples so authorities could keep their DNA profiles on record. But in October, a San Francisco-based federal appeals court, citing the Indianapolis case, said the law violates the Fourth Amendment. That ruling is now on appeal to a larger panel of the same court.
The Supreme Court's decision in Illinois v. Lidster may be accessed here, via Findlaw.com.
For background on Lidster, see this Indiana Law Blog entry from 11/6/03.
January 13, 2004
Environment - Hog farms in the news; confined feeding
I'm writing in response to the recent series of articles on Hoosier farms, particularly hog farms and their impact on Indiana's waterways (J&C, Jan. 4-6). The Associated Press report suggests that pork producers and their livestock operations are destroying our state's waterways because the Indiana Department of Environmental Management doesn't regulate the livestock industry enough. * * *It looks like the Indianapolis Star carried the two AP stories referenced on Dec. 28 ("Hoosier farms, large and small, taint waterways with manure, pesticides, fertilizers") and Dec. 29th ("More regulation of giant hog farms sought"), although I sure didn't see them. Some quotes from the lengthy stories, beginning with the Dec. 28th story:
Indiana's confined feeding livestock operations have been regulated since 1971. Under current state laws and rules, livestock operations (over a certain size determined by IDEM) must have a permit from IDEM in order to operate in this state. Along with this permit, livestock producers have specific construction criteria for their buildings, prepare manure management plans for IDEM, and emergency contingency plans in case of a manure spill. This month the state and the EPA will institute another set of more stringent rules which even further regulates today's larger livestock operations.
Pork producers operate under a zero-discharge rule, which means we cannot discharge -- unlike your local municipality, which releases human waste into the state waterways on a regular basis. Section 319 of the Clean Water Act says it is against the law for any discharge from a pork operation to find its way into groundwater, streams, lakes or rivers. Those who do so are subject to heavy fines. The AP series states that IDEM has never imposed the maximum daily fine ($25,000) in a livestock incident; however, the recent ruling on the Pohlmann operation near Crawfordsville resulted in a $434,000 settlement against the owner.
In Indiana, the biggest livestock farms are permitted to house a total of 4.1 million hogs, according to the state's environmental agency, the Indiana Department of Environmental Management. In 2001, however, those farms raised only 3.1 million hogs. From birth until their trip to market about six months later, each of those hogs produces about 300 gallons of manure and urine that is diluted with water sprayed during stall cleaning. With 3.1 million hogs, their excrement would amount to 960 million gallons -- enough to fill 1,430 Olympic-sized swimming pools stretching 58 miles if they were lined up. * * *Some quotes from the Dec. 29th AP story:
In Indiana, the state places several requirements on large livestock farms, including an approval process for manure storage lagoons, or pits, to ensure that they are built to protect the state's waters. Farm owners also must develop plans for how they intend to apply the manure their livestock generate onto their farmland as fertilizer -- the most common method of disposing of manure. And they must have an emergency response plan in case of a spill.
About 500 of Indiana's largest livestock farms, those factory-style farms called concentrated animal feeding operations, now have to apply for the same pollution permit the government grants to automotive plants, steel mills, coal-fired power plants and other industries.
Under a rule imposed in December 2002 by the Bush administration, the nation's largest livestock farms must obtain a federal permit to control pollution under the Clean Water Act. That rule, which was drafted by the Environmental Protection Agency, more than tripled -- from 4,500 to 15,500 -- the number of farms that had get the federal permit.
The new federal requirement shifts the emphasis on pollution monitoring on livestock farms from nitrogen in the soil to phosphorus. Both can be beneficial nutrients, but in high levels can set off ecological chain reactions that kill fish.
The rule also prohibits liquefied manure from being applied to frozen or snow-covered ground unless the farm has an approved plan. Applying manure to frozen surfaces is risky because it can more easily wash off fields and into creeks and streams. * * *
In 2002, the most recent year for which records are available, IDEM inspected 62 percent of the state's active livestock farms -- 1,383 of 2,225 farms. They found no violations at 82 percent of the farms and maintenance concerns at 18 percent. One percent -- about seven farms -- had violations that required enforcement action.
IDEM's Method agrees that if the agency had more inspectors it could conduct more inspections and identify more problem operations. But he believes the current number of inspectors is adequate since the agency focuses on operators with histories of discharges.
The agency has been increasing the percentage of active livestock farms it annually inspects -- from about 10.5 percent in both 1999 and 2000 to 31 percent in 2001, and to 62 percent in 2002, according to IDEM records.
Indiana Decisions - A number of Decisions Issued Today, from all Three Courts
First, from the Supreme Court, this brief Per Curiam opinion (in which Justice Dickson dissents), which appeared on the Court of Appeals site yesterday, apparently in error, and which is dated 1/9/04:
State of Indiana v. Alan Lee Berryman (1/9/04 IndSCt) - Criminal Law & Procedure
The Supreme Court has also released a decision dated 1/13/04 in which Justice Boehm writes the majority opinion reversing the decision of the trial court, and Justice Sullivan dissents, with opinion:
Board of School Commissioners of the City of Indianapolis v. Michael Walpole (1/13/04 Ind SCt) - Schools
Holding. The relationship between a school board and its teachers is governed in Indiana by statute. The Teacher Tenure Act provides that upon request of the teacher, a school board must conduct a hearing to consider the termination of a permanent or semi-permanent teachers contract. Indiana Trial Rule 28(F) provides for trial discovery procedures to apply in certain administrative proceedings. We hold that this Rule does not apply to a termination hearing under the Tenure Act.
Note that the Supreme Court heard this case pursuant to Rule 56(A), stating that:
The Board took this interlocutory appeal of the trial courts granting of a preliminary injunction pursuant to Appellate Rule 14(A)(5) and petitioned for emergency transfer to this Court pursuant to Indiana Appellate Rule 56(A). The Board argued that this appeal presents a Œsubstantial question of law or fact of great public importance and an emergency exists which makes a speedy determination of the question desirable in this Court.‰ This Court granted transfer.Here is the text of Rule 56(A):
Motion Before Consideration by the Court of Appeals. In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination. If the Supreme Court grants the motion, it will transfer the case to the Supreme Court, where the case shall proceed as if it had been originally filed there. If a filing fee has already been paid in the Court of Appeals, no additional filing fee is required.
I will cover the remaining opinions released today, by the Court of Appeals and the Tax Court, in subsequent entries.
Law - Legislative Ethics Reports Online in Maryland
Five years after twin ethics scandals roiled both houses of the Maryland General Assembly, a public interest group is hoping to "shine a light" on the conflicts of interest that still confront lawmakers by doing what 188 delegates and senators have consistently declined to do: Put their financial disclosure forms online for anybody to see.Here is the link to Common Cause Maryland's report, "A Study of All 188 Financial Disclosure Forms Filed by The Maryland General Assembly in 2003," and related materials.
Common Cause Maryland is turning to cyberspace on the eve of the 2004 legislative session with a report today that cites hundreds of instances in which legislators' public business intersected with their private interests during last year's session. The organization suggests that many situations were inappropriate and recommends further strengthening of laws that apply to elected state officials and the people who lobby them. * * *
[A] reform panel [had] advocated making annual financial disclosures available to the public via the Internet. The General Assembly refused. So a citizen who wants to review any filings instead must visit the ethics commission or legislative ethics committee offices and sign in. Legislators can request to be notified whenever their records are pulled. In Common Cause's view, it all has "a chilling effect on the public's access to public records."
The group is urging that disclosures, committee votes, amendments and motions be put online. It recommends that the annual reporting deadline be moved up to Jan. 31 so that the latest information is available during a legislative session. Currently, financial disclosure for a calendar year is not due until April 30 of the following year.
And what about Indiana? I'm told that re the General Assembly's committee votes, amendments and motions: House committee votes are not available online, votes on House motions and amendments are available online; Senate committee votes, and votes on motions and amendments are not available online.
With respect to financial disclosures, the State Ethics Commission site has the brief reports required of the state-wide elected officials. For instance, here is Superintendent of Public Instruction Suellen Reed's statement dated 1/28/03 and here is then-Lieutenant Governor Joe Kernan's from 1/30/03. The Ethics site reports that "Economic disclosure statements for some legislators are available from the legislative branch" and links to this page, where House financial statements as recent as 2001 are located. Note that, if I understand this correctly, the filings in 2002 are for the preceding year - 2001. Unfortunately, the posted documents do not appear to be dated, but begin: "This statement shall be filed by members not later than seven days following the first session day in January of each year and covers only activity occuring in the preceding calendar year." The Legislative Ethics Law is found at 2-2.1-3; section 2 deals with the statement of economic interest.
Please let me know if you think any of this information needs modification.
Indiana Law - Same Sex Marriage Argued Before Court of Appeals Panel
Yesterday was the oral argument before the Indiana Court of Appeals in the case of Ruth Morrison, et al., v. Doris Ann Sadler, et al., challenging Indiana's prohibition against same sex marriage, found at IC 31-11-1-1. You may listen to the argument online here via the Indiana Judiciary site. Earlier Indiana Law Blog coverage may be found here and here.
The debate over same-sex marriage has been heating up since summer, when Canada began allowing gays and lesbians to marry. It intensified in November, after the Massachusetts Supreme Judicial Court ruled that state's ban on same-sex marriages was unconstitutional.In an interesting juxtaposition, the Star today is running this opinion piece by Ellen Goodman (that we linked to on Saturday via the Washington Post) where she begins with the line "Who would have believed that Britney Spears would end up striking a blow for gay marriage? and continues:
In New Jersey, where a legal challenge similar to the one in Indiana is pending, legislators on Monday recognized same-sex partnerships, giving domestic partners access to medical benefits, insurance and other legal rights. Gay-rights activists said they would continue to push for the right to marry. * * *
The case before the Court of Appeals stems from a suit filed by three same-sex couples -- Ruth Morrison and Teresa Stephens, David Wene and David Squire, and Charlotte and Dawn Egler. The Eglers traveled to Canada in July to wed legally there, and before that had gone to Vermont to form a civil union. But all three couples were denied marriage licenses in 2002 by clerks in Hendricks and Marion counties.
Marion Superior Judge S.K. Reid, who ruled the state is justified in allowing only opposite-sex couples to marry, dismissed the original suit. The law, she wrote, "promotes the state's interest in encouraging procreation to occur in a context where both biological parents are present to raise the child."
In arguments before James S. Kirsch and Michael P. Barnes and Friedlander, Deputy Attorney General Thomas Fisher said the union of a man and a woman is the basic building block of society. He also said allowing gay and lesbian couples to marry would lead to the downfall of traditional marriage. * * *
But Ken Falk, legal director for the ICLU, said the notion of family has evolved to the point that the sex of those involved should not be a factor. "I challenge you to look at Dawn and Charlotte Egler and their son and say that's not a family," he said. "This is change. This is difficult. This is something the founders weren't thinking about in the 1850s," Falk said. "But they also weren't thinking about women being attorneys or blacks marrying whites. The Constitution evolves from a common understanding that the state is not to intrude on fundamental life choices."
After 55 hours, the "I dos" became "I don'ts," the vows were annulled and assorted folks chimed in with the same thought: Hey, a man and woman can get married on a lark, but when a committed gay couple wants to make it legal, they're accused of wrecking the institution?
January 12, 2004
Indiana Decisions - Two from the Court of Appeals Today
Bart Alan Bales v. Sharon Lynn Bales (1/12/04 IndCtApp) - Family Law & Procedure
James C. Mesarosh v. State of Indiana (1/12/04 IndCtApp) - Criminal Law & Procedure
Environment - Papers weigh in on wetlands veto override
Having lost roughly 85 percent of its original wetlands, fourth worst in the nation, Indiana should err on the side of preservation and expansion of this precious asset. Development, property rights and local control have their place, but they've also had their way.The Munster NWI Times also weighs in today (access the editorial here) in favor of not reviving the vetoed bill.
That historical pattern certainly appears to hold true in the wetlands bill that the late Gov. Frank O'Bannon vetoed last May. Gov. Joe Kernan is right to stand behind the veto, and the General Assembly should resist pressure from shortsighted forces to override. * * *
The principal problem [with the vetoed bill], as the governor's office and environmental groups point out, is that much if not most of the affected wetlands would be exempt from state control by virtue of their size (10 acres or fewer) or prior human impact (for example, a nearby subdivision that's disrupted their water flow). Drainage and construction could proceed without review by, or permits from, state agencies.
Proponents of the legislation insist it strikes a balance between protecting wetlands and safeguarding property rights and local government authority. But given the broad categories of exemption and the tiny amount of wetlands not already lost to property rights and local authority, the scales clearly needed the governor's weight on the side of the natural resource. The legislature should repent of its own slapdash handling of the issue and craft a better bill.
See also the Jan. 7 Indiana Law Blog entry, below.
January 11, 2004
Indiana Decisions - Addendum to Transfer List of Jan. 9, 2004
EAST CHICAGO -- George Pabey's voter fraud case against Mayor Robert Pastrick will be heard by the Indiana Supreme Court. The announcement came as a surprise Friday afternoon, when Indiana Supreme Court Chief Justice Randall T. Shepard issued the order for oral arguments to commence sometime in early March. * * *An earlier Indiana Law Blog entry is here. See also this AP story via the Indianapolis Star. Here is the Supreme Court's 1/9/2004 order (Case Number: 45 S 04 - 0401 - CV - 00014, PABEY, GEORGE -V- PASTRICK, ROBERT A., ET AL.):
Pabey's last hope of contesting the election was having the case heard before the Supreme Court, although the November election passed without a decision from the court in Indianapolis. [Carmen Fernandez, attorney for Pabey] said she had nearly given up hope that the Supreme Court would opt to hear the case.
In agreeing to hear the case, the court overruled the appellate court's ruling on the basis of procedural matters and will therefore allow arguments on substantive issues.
ACCORDINGLY, THE COURT GRANTS TRANSFER PURSUANT TO INDIANA APPELLATE RULE 58 AND ASSUMES JURISDICTION OVER THE APPEAL. THE COURT NOW DIRECTS FURTHER PROCEEDINGS AS FOLLOWS. THE APPELLANT HAVING ALREADY FILED HIS OPENING BRIEF, THE COURT ESTABLISHES FEBRUARY 9, 2004, AS THE DUE DATE FOR ANY BRIEFS OF THE APPELLEES. ANY APPELLANT'S REPLY BRIEF WILL BE DUE PURSUANT TO THE TIME LIMIT IN INDIANA APPELLATE RULE 45(B)(3). NO EXTENSIONS OF TIME TO FILE BRIEFS WILL BE GRANTED. BY A SEPARATE ORDER, THE COURT WILL SCHEDULE AN ORAL ARGUMENT, WHICH WILL BE HELD IN EARLY MARCH, 2004.
RANDALL T. SHEPARD, CHIEF JUSTICE MS
Indiana Law - Full-time legislature; appointed Superintendent of Public Instruction?
There are several interesting law/politics stories in today's Indianapolis Star. The first, available here, is titled "Assembly unlikely to work full time: Concerns about increased costs, legislative staffing slow call for state to abandon its part-time legislature." Some quotes:
[F]ew, if any, expect the Indiana legislature to join the nine other states in the nation with full-time legislators -- "not in my lifetime," said Rep. Charlie Brown, D-Gary. * * * More and more often, Indiana's lawmakers -- who pride themselves on being a citizen assembly -- are finding themselves in the Statehouse. It worries lawmakers like Sen. Beverly Gard, R-Greenfield, who's beginning her 16th year in the legislature. She -- like most legislators -- opposes Indiana joining states whose legislatures are considered full time: California, Illinois, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania and Wisconsin. [Note - I've highlighted the midwestern states with fulltime legislatures]A second piece, also by the Star's political reporter, Mary Beth Schneider, talks about the possibility of changing the office of state Superintendent of Public Instruction from an elected to an appointed office. Some quotes:
[The idea] had failed under Republican Gov. Robert Orr in the mid-1980s. John Hammond, who then was a top aide to Orr, still remembers the crushing emotions he felt when he told Orr the measure failed by one vote in the Indiana Senate. * * * "We thought it was absolutely essential," Hammond said. "But it was controversial, because it took the office out of the political system."The story does not mention that both the Office of Superintendent of Public Instruction and the office of Clerk of the Courts were established as constitutional state-wide elected offices in Indiana's 1851 Constitution. This November 2003 Indiana Law Blog entry discussed how the office of Clerk of the Courts was removed from the Indiana Constitution in 1970, leaving only a statute providing for the state-wide election of the Clerk. This change paved the way for the conversion of the office from elected to appointed, as is now being proposed with the bills introduced in this session (see my entry from Jan. 10, below, re the pending legislation).
Attitudes, though, are changing. There are several legislative efforts to reduce the size of government, including bipartisan bills to make the state clerk of the courts an appointed, rather than elected, position. State Rep. Ed Mahern, D-Indianapolis, who is sponsoring one of those bills, said it may be the first step toward eliminating other elected offices -- from the state level down to counties and townships. [State Superintendent Sue Ellen] Reed thinks it's time to make the education job part of a governor's Cabinet. Only 12 states elect a chief education official; the rest let either the governor or a state education board make the appointment.
The same type of constitutional amendment was approved by the voters in 1972 relating to the Superintendent of Public Instruction. The Constitution now reads:
Article 8. EducationPrior to that change, the constitutional provision had read:
Sec. 8. There shall be a State Superintendent of Public Instruction, whose method of selection, tenure, duties and compensation shall be prescribed by law. [emphasis added]
(History: As Amended November 7, 1972. The schedule adopted with the 1972 amendment to Article 8, Section 8 was stricken out by the November 6, 1984, amendment)*
Sec. 8. The General Assembly shall provide for the election, by the voters of the State, of a State Superintendent of Public Instruction; who shall hold his office for two years, and whose duties and compensation shall be prescribed by law. [emphasis added]The result is that at this point (and indeed for over 30 years now) the General Assembly has the ability to change both the office of Clerk of the Court and the office of Superintendent of Public Instruction from elective to appointive simply by the passage of a bill.
*In an entry last week the Indiana Law Blog added to its wish list for 2004 the publication of Volume V, 1961-2000, of Constitution Making in Indiana, access to which would make it simple to track down the content of the "schedule" mentioned here without a trip to the library!
January 10, 2004
Indiana Law - Legislation Introduced to Make the Clerk of the Courts an Appointed Position
In a press release yesterday, Representative Ed Mahern announced that he has filed legislation to make the Indiana Clerk of the Courts position appointive, rather than elected. This complete release:
INDIANAPOLIS --- State Rep. Ed Mahern (D-Indianapolis) announced today that he has filed legislation that would make the Clerk of Indiana's Supreme Court, Court of Appeals and Tax Court an appointed rather than elected position. Joined by Indiana Supreme Court Chief Justice Randall Shepard and current Clerk of Courts David C. Lewis, Mahern said he has authored House Bill 1152, which would give the state Supreme Court the ability to select the clerk, rather than have the position up for statewide vote.The Indianapolis Star has a brief story this morning, headlined "Chief justice backs bill to appoint court clerk," available here. The story notes:
"Indiana is one of only two states in the country that elects its clerk of state courts," Mahern said. "As time goes by, it makes more sense to have an administrative position that carries little or no policymaking authority to be appointed rather than elected."
By bringing the clerk's office under the control of the Supreme Court structure, the legislator said greater oversight would be provided by the judicial body most interested in ensuring that the office is properly managed. Mahern said justices would not have to deal with the uncertainty of not knowing who will be elected into the office every four years.
Mahern's sentiments were echoed by Shepard and Lewis. "Rep. Mahern's proposal is one that will serve the public's interest in having an effective Clerk's office," Shepard said. "We are certainly willing to accept the responsibility to assure that the Clerk's office is run in an efficient and user-friendly manner."
Lewis added, "Gov. Joe Kernan appointed me for the purpose of ensuring the integrity of this office and to serve the people of Indiana. I have always stated that I will do my best to make sure that this office is run efficiently and effectively throughout my tenure as Clerk. That is why, after spending my first 45 days assessing this position, I truly believe that the Supreme Court should have the authority to designate the Clerk of its choosing, without reference to a political party.
"This position should be appointed in the same manner that Gov. Kernan employed in making previous appointments, which bases a selection on an individual's qualifications and abilities," he added. "I feel Chief Justice Shepard and the rest of the Supreme Court should have this authority."
Currently, only Indiana and Montana let statewide voters pick the clerk of the courts. Mahern, who is sponsoring House Bill 1152 to make the clerk an appointed position, said that now is the right time for the measure because there is no elected officeholder currently holding the job. * * * The job currently pays $60,000, plus a $12,000 living stipend. The court would set the salary once it begins hiring a clerk at the end of Lewis' term, Jan. 1, 2007. The measure has bipartisan support, with a similar bill -- Senate Bill 93, sponsored by Sen. David Ford, R-Hartford City -- introduced in the Senate.Rep. Mahern's version of the legislation (HB 1152) is not yet available. Sen. Ford's bill, as introduced, is available (SB 93) here.
For background on the proposal to make this office elective and on the history of the office of Clerk of the Court, see the Indiana Law Blog enties of Nov. 3, 2003 and Nov. 10, 2003. See also the Nov. 14, 2003 entry on the Governor's appointment of David Lewis to fill a vacancy in the office.
Environment - Hearing granted on plan for former Jefferson Proving Ground
An administrative judge at the Nuclear Regulatory Commission has granted Save the Valleys request for a hearing on the U.S. Armys plan for the former Jefferson Proving Ground. The Armys plan will deal with what it will do with munitions containing depleted uranium that were tested for a decade at JPG and remain there. Depleted uranium is radioactive and the area where they lie is surrounded by a security fence.
January 09, 2004
Law - Supreme Court to hear Superfund case
The U.S. Supreme Court today agreed to hear Cooper Industries Inc. v. Aviall Services, Inc., 02-1192. According to the Washington Post, the Court will consider "whether companies can be forced to pay to clean up polluted property after they've sold the land, even if the government doesn't demand it." More:
The case, involving contaminated property in Dallas, asks if companies can be forced by other businesses to pay for cleanup that is not sought by the government.The report notes that "The Bush administration has urged the court to overturn that ruling by the 5th U.S. Circuit Court of Appeals in New Orleans [that Aviall could sue]."
The company that bought contaminated land in this case sued the former owner under the Superfund law. Aviall Services Inc. had been prodded to start cleanup by a state conservation agency and argued that the past owner, electrical product maker Cooper Industries, should share the costs.
Cooper contends that the law can only be used for cleanups ordered by the federal government. If that were not the case, William Bradford Reynolds, Cooper's attorney, said that companies could face multiple lawsuits over a myriad of voluntary cleanup projects.
Solicitor General Theodore Olson said the law doesn't allow companies to sue each other "whenever they please" over the many contaminated sites.Or, as stated in terms more familiar to a Superfund attorney, "An en banc Fifth Circuit Court of Appeals overruled an earlier panel ruling and held that a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) s. 113 contribution claim may be brought even though there is not otherwise a CERCLA s. 107 cost recovery claim or an administrative order under s. 106 pending." Read the rest of this summary here.
Twice in the last decade justices have sought to clarify the law, which was intended to finance cleanups of abandoned waste disposal sites and promote cleanup of other sites with shared financial responsibilities. In 1994, the court ruled that the Superfund law does not allow those who clean up their environmental contamination to recover legal fees they incur in getting other polluters to help pay for the cleanup. Then in 1998, the court made it harder for the federal government to force companies to pay for cleaning up hazardous waste disposed at sites owned by subsidiaries.
The Nov. 14, 2002 5th Circuit en banc opinion may be accessed here. Judge Edith Jones wrote the opinion and was joined by 9 other judges. The dissent, by Judge Emilio Garza (joined by two other judges) begins on page 29.
Law - 7th Circuit Rules on Constitutionality of Wisconsin DNA Statute
GREEN, NORMAN C. v. BERGE, GERALD A. (1/9/04 CA 7th Cir.)
Evans, Circuit Judge
The Court here upholds the Wisconsin law compelling felons in Wisconsin prisons to submit a DNA sample for analysis and storage in a data bank.
The plaintiffs contend that taking samples of their DNA pursuant to the law is an unconstitutional search and seizure in violation of the Fourth Amendment of the United States Constitution. * * *
All 50 states and the federal government have adopted DNA collection and data bank storage statutes that, although not identical, are similar to the one in Wisconsin. See Robin Cheryl Miller, Annotation, Validity, Construction, and Operation of State DNA Database Statutes,‰ 76 A.L.R.5th 239 (2000). Challenges to these statutes as a whole and to their subparts have almost uniformly been unsuccessful. Thus, the plaintiffs in this suit face a decidedly uphill struggle on their one claim that their constitutional rights were violated when DNA was extracted from them in the absence of a warrant, probable cause, or an individualized and reasonable suspicion to believe they committed a crime. * * *
Wisconsins DNA collection statute is, we think, narrowly drawn, and it serves an important state interest. Those inmates subject to testing because they are in custody, are already seized,‰ and given that DNA is the most reliable evidence of identificationstronger even than fingerprints or photographswe see no Fourth Amendment impediments to collecting DNA samples from them pursuant to the Wisconsin law. The Wisconsin law withstands constitutional attack under the firmly entrenched special needs‰ doctrine.
Judge Easterbrook's concurring opinion has an interesting analysis, based on the premise that:
there are at least four major categories, potentially subject to differing legal analysis.Additional discussion of Kincaide may be found in my Jan. 6 Indiana law Blog entry (scroll down).
Prisoners make up the first category. Their privacy interests are extinguished by the judgments placing them in custody. * * * Persons on conditional releaseparole, probation, supervised release, and the likeare the second category. * * * One common condition of release is submission to tests for drugs, without the need for person-specific suspicion. DNA may be extracted from samples obtained through these tests without any incremental invasion of privacy. * * * Felons whose terms have expired are the third category. Established criminality may be the basis of legal obligations that differ from those of the general population. A broad range of choices that might infringe constitutional rights in free society fall within the expected conditions . . . of those who have suffered a lawful conviction.‰ McKune v. Lile, 536 U.S. 24, 36 (2002). One need only think of Megans Law and its variations across the nation. * * *
Those who have never been convicted of a felony are the last distinct category. What is reasonable‰ under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population. Just as parolees homes may be searched without a warrant or probable cause, while both are required to search a free persons home, so it may be that collection of DNA samples from the general population would require person-specific causeor at least a special need,‰ whatever the meaning of that phrase in recent decisions turns out to be. See Indianapolis v. Edmond, 531 U.S. 32 (2000); Ferguson v. City of Charleston, 532 U.S. 67 (2001). The majority in United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003), which held that the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. §14135a, violates the fourth amendment, made a fundamental error when it applied the special need‰ approach of Edmond and Ferguson to persons on supervised release from criminal sentences that have yet to expire. That confuses the fourth category with the second. Knights, which held that conditions of supervised release may be enforced without regard to whether they would be reasonable‰ as applied to the general population, was issued after Edmond and Ferguson; the Justices evidently perceive that these decisions cover different domains.
This appeal does not present the question whether DNA could be collected forcibly from the general population, and I understand the courts reference to Edmond and Ferguson to mean no more than that these decisions are compatible with collecting and preserving DNA from persons in the first two categories, and likely from those in the third. There will be time enough to address the fourth if and when a more general statute about the collection and use of medical information should be enacted. [emphasis aded]
Indiana Decisions - Transfer List for Week Ending Jan. 9, 2004
Here is the Indiana Supreme Court transfer list for the week ending January 9, 2004.
A link to earlier Indiana transfer lists is available here. (The lists are also always available via "Categories" in the right column.)
Environment - NW Indiana group sues NIPSCO seeking water well testing
Responding to the lawsuit, NIPSCO issued a statement saying it was "committed to working on a satisfactory resolution to the groundwater problem." No time frame for that work was given. The statement also noted that NIPSCO collaboration with the Environmental Protection Agency and Brown Inc. had resulted in the extension of municipal water to 130 residences in the town. Members of the citizens group say that figure represents only one-third of homes in the town and is inadequate.
Murray said citizens had been doing the job of the government. For more than two years, she said, she had implored the EPA and the Indiana Department of Environmental Management to test all the wells in town, to no avail. Last fall, the citizens group identified wells with dangerously elevated levels of boron within areas previously declared safe by the EPA. The results later were confirmed by the EPA, which then added the affected residences to the roster of homes receiving Michigan City water from the pipeline completed in December.
Law - RE FOIA, be careful what you ask for
The U.S. Bureau of Land Management answers about 100 Freedom of Information Act requests a year in California, usually without charging fees for its services. So it came as a shock to Sierra Club representative Edie Harmon of San Diego to learn recently that it would cost her group $25,280 for the BLM to provide the information she had sought in seven FOIA inquiries about off-road vehicle activity in California desert land managed by the agency. * * * BLM officials said that the fee is fair given the work, which involves rooting out a couple of thousand pages of agency documents. * * * The Sierra Club plans to appeal the bureau's denial of a fee waiver in Harmon's case, and incorporate it into a lawsuit filed in March against the U.S. Department of the Interior, which oversees the BLM.[Link via How Appealing.]
Indiana Decisions - 7th Circuit hears reargument in City of Lafayette case
The 7th Circuit yesterday heard reargument in banc in the case of John Doe v. City of Lafayette. See the Indiana Law Blog's original writeup of the case. As the Indianapolis Star wrote at the time, "Lafayette may not ban a convicted sex offender from its parks because of his immoral thoughts, a divided federal appeals court ruled Friday. The Lafayette Parks Department had permanently barred the former inmate after discovering he had visited a park in January 2000 and thought about having sexual contact with children playing."
January 08, 2004
Law - Dissemination of secrets uncovered in products liability lawsuits
Whether "design secrets uncovered in a product liability lawsuit can be disseminated to the public to protect consumer safety" is the subject of this article in Law.com. A quote:
The case illustrates the continuing battle between corporate defendants and plaintiffs lawyers over dissemination of potentially damaging design and manufacturing information in product liability lawsuits. Companies fear that dissemination of such information on national electronic databases compiled by plaintiffs attorneys, such as the Attorneys Information Exchange Group, will hurt them in future lawsuits. At the same time, the case shows how judges continue to struggle with the issue of whether to grant confidentiality orders to shield trade secrets of corporate defendants when the disclosure of such information could protect consumers.
Indiana Law - Same Sex Unions to be Argued Next Week
Morrison v. Sadler is scheduled for argument before the Indiana Court of Appeals next Monday, January 12, 2004. Here is the Case Summary from the Indiana Judiciary website:
Ruth Morrison, et al., v. Doris Ann Sadler, et al. Appellants are three same-sex couples challenging the constitutionality of Indiana Code Section 31-11-1-1, which provides that only a male may marry a female and only a female may marry a male. Appellants contend the statute violates Article I, § 23, Article I, § 1, and Article I, § 12 of the Indiana Constitution. This appeal was brought after the Appellants were denied permission to receive marriage licenses by the Hendricks and Marion County clerks, Appellants sued the clerks, and the Marion County Superior Court dismissed Appellants complaint. Indiana Attorney General Steve Carter has intervened in this case on behalf of the clerks.The time for the argument on Monday is 11:00 a.m. It may be viewed online in realtime or later, via this link. Many of the documents from this case may be found here, including the briefs of the parties and the Marion County Superior Court 5/7/03 order. An earlier ILB entry is available here.
A number of interesting articles on the legal aspects of same sex marriage/civil union have been published recently, including:
[Update 1/10/04] "Oops! Help for Same-Sex Unions," by columnist Ellen Goodman, makes a quick survey of marriage through the ages. Access it here, via the Washington Post.
Indiana Decisions - One Decision Today
Allstate Insurance Company v. Tim L. Scroghan (1/8/04 IndCtApp) - Civil Procedure - Allstate Insurance Company appeals from the trial courts order requiring it to produce documents, which Allstate claims will cost approximately $12 million to produce. In response to the insured's argument that this Court does not have jurisdiction to hear the case, Allstate claims this is an interlocutory appeal as of right under: (1) Indiana Appellate Rule 14(A)(1), pertaining to the payment of money; (2) Rule 14(A)(3), dealing with orders compelling the production of certain documents; and (3) the holding of State v. Hogan, 582 N.E.2d 824 (Ind. 1991). "Even if we do not have jurisdiction under Rule 14(A), Allstate urges us to exercise our discretion to hear this appeal pursuant to Indiana Appellate Rule 66(B)." The Court here rules that "this Court does not have jurisdiction to hear this interlocutory appeal under Rule 14(A)" and that "If we were to allow the use of Rule 66(B) to supplement our jurisdiction to hear interlocutory appeals under Rule 14, then the limitations of Rule 14 would become meaningless. Accordingly, we refuse to exercise discretion to hear this appeal under Rule 66(B). Appeal dismissed."
Law - Outlook for corporate fraud
This analysis, titled "Trials, Trials, Trials, and Then What?" appears on the front-page of the business section of today's NY Times. The writer, Gretchen Morgenson, was awarded the Pulitzer Prize last year for beat reporting "for her trenchant and incisive Wall Street coverage." Some quotes from the article:
"It is still a bull market for prosecutors because there are enough improprieties from years past that are bubbling up from the surface to keep us busy," said Eliot Spitzer, the New York attorney general, who has led the regulatory charge against dubious practices in the financial industry in the last two years. "Having said that, I do sense a genuine shift in behavior in boardrooms, which would suggest that the number of gross abuses occurring right now may be on the decline."
Almost no one would deny that Mr. Spitzer has good instincts on corporate fraud. But some investors and experts on white-collar fraud remain convinced that misdeeds at American businesses are not subsiding, and they expect them to continue this year at or above their recent pace. * * *
With executive pay packages still munificent at many companies, even those that have been poor performers, the temptation among managers to burnish results remains strong. Indeed, some investors argue that the lure may be greater this year than it has been, for several reasons.
One, according to accounting experts, is that some of the tried-and-true tricks for gussying up financial results are no longer easy to put over on investors. So managers who are determined to make their earnings numbers have to resort to new methods.
Not law but cool - Snow globe repairman
Dick Heibel [is] a small, thin man with a neat mustache and graying hair. Working from a basement workshop in Northfield, his strong, nimble fingers will mend these mournful relics. He'll add new glass and water, fresh snow or glitter. Broken figures will be repaired or replaced and musical movements fixed and tucked back into the bases.
His workshop, where he unpacks and reassembles the snow globes, is as pristine as a dental office. He reaches behind him into a recently arrived box from Oregon and pulls out a letter. "You know, every one comes with a letter," says Heibel, 74. "I get the most wonderful letters."
January 07, 2004
Indiana Law - Wetlands Veto Override a Distinct Possibility
The late Gov. Frank O'Bannon's veto of a severely flawed wetlands regulation bill was the right decision in May and remains so today. The General Assembly should reject efforts to override it. * * *The Muncie Star Press has an interesting story here, titled "Vetoed wetland bill re-surfaces," touching on possible strategies.
The bill sprang from a U.S. Supreme Court decision that stripped the federal government of authority to regulate isolated wetlands - defined as pools, bogs and other swampy areas with no surface connection to lakes, streams and other navigable waters. Such areas constitute about a third of the state's remaining wetlands.
IDEM tried to take over wetland regulation from the federal government. But a lawsuit filed by an Allen County developer stopped the agency from doing so. An Indiana Supreme Court decision reversed the lower court ruling late last year and upheld IDEM's authority to regulate isolated wetlands.
Developers and environmentalists expect another mud fight this year over a wetlands regulation bill vetoed last year by the late Gov. Frank O'Bannon. One of six vetoed bills eligible for an override during the legislative session that begins this week, the wetlands bill pits developers against those who want to preserve isolated tracts of wetland that provide flood control, natural water filtration and wildlife habitat.
Law - More on Texas redistricting decision
Following up on our report yesterday (below) on the federal district court three-judge panel's (ED Tex) upholding of the Texas congressional redistricting plan are these stories from today's paper:
The special panel made clear its unease with the GOP's raw partisan tactics, and acknowledged that the new map -- which was approved by the Justice Department late last month -- may diminish the influence of some minority voters in Texas. But it said Texas had no legal, constitutional or judicial prohibition against mid-decade redistricting, and that even if the new map does carve up some black and Hispanic communities, the Republicans' intent was to secure partisan advantage, not to discriminate along racial lines."Texas G.O.P. Is Victorious in Remapping," from the NY Times:
"While heavily aware of the long history of discrimination against Latinos and Blacks in Texas . . . we are compelled to conclude that this plan was a political product from start to finish," wrote Judge Patrick Higginbotham of the U.S. Court of Appeals for the 5th Circuit, a Reagan appointee, and Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas, an appointee of the first President Bush.
The third member of the panel, Judge Thomas J. Ward of the U.S. District Court for the Eastern District of Texas, a Clinton appointee, agreed that the Republicans were within their rights to carry out a mid-decade redistricting. But he objected to other aspects of the GOP plan, including the redrawing of the 25th Congressional District in southern Texas to exclude Hispanic voters who have become disenchanted with the conservative Republican incumbent, Rep. Henry Bonilla.
The judges ruled that there was no bar to mid-decade redistricting, even though redistricting normally occurs after the once-a-decade census. They also found that politics not illegal racial discrimination prompted the redrawing of district lines. * * *"Judges Uphold Texas' Contested Election Maps: The GOP-drawn plan will likely extend the party's dominance in the state," from the LA Times:
The court ruled on four issues: whether Texas could redistrict mid-decade; whether the plan discriminated on the basis of race; whether it was an unconstitutional gerrymander; and whether it diluted the voting strengths of minorities. In all cases, the judges decided, it did not violate the Constitution. But they said, "Whether the Texas Legislature has acted in the best interest of Texas is a judgment that belongs to the people who elected the officials whose act is challenged in this case."
The judges, referring to the maps by their formal name, "Plan 1374C," made it clear that their opinion should be seen as a narrow interpretation of election law, not an endorsement of the maps. "We decide only the legality of Plan 1374C, not its wisdom," the judges said.Here is the link to the opinion in Session v. Perry from the federal district court's site.
Election maps, the judges pointed out, have historically been drawn every 10 years, after completion of the census. The judges called on Congress to ban states from drawing new maps mid-decade an effort to dampen the effect of partisan politics on voting rights. "Whether the Texas Legislature has acted in the best interest of Texas is a judgment that belongs to the people," the judges wrote. "We are compelled to conclude that this plan was a political product from start to finish." * * *
Barring intervention by the Supreme Court, the maps will be first used in the March primaries in Texas. The state's congressional delegation is currently evenly split, 16-16, between Democrats and Republicans. By the end of the year, the new maps are expected to allow the GOP to take as many as seven seats away from Democrats. * * *
The decision is the latest twist in a political war that has torn at the seams of Texas for a year, as Republicans worked tirelessly over three special legislative sessions to approve new congressional maps.
Republicans, long the minority party in Texas, now hold every statewide elected position, and control the governor's mansion, the state House and the state Senate for the first time in 130 years. The maps were designed to overcome their last political hurdle in the state winning a majority of the state's congressional seats.
Legal analysts said it is unlikely that the Supreme Court will hear an emergency appeal of the Texas decision in time to block its effect on the March primaries.
MORE MAY BE COMING
January 06, 2004
Law - Interesting DNA/privacy rulings by 9th Circuit
The facts are sketchy in this intriguing AP story published by Find.law, which reports that the 9th Circuit "reversed a three-judge panel's October ruling to stop [DNA] testing for federal inmates and parolees because it is an illegal invasion of privacy. The DNA tests are forwarded to a database maintained by the FBI to solve other crimes."
The court's original decision in the case found that the DNA Analysis Backlog Elimination Act of 2000 amounted to a violation of inmates' 4th Amendment protection against illegal searches.Yesterday the Court set aside this October ruling:
The blood samples "violate the 4th Amendment because they constitute suspicionless searches with the objective of furthering law enforcement purposes," Judge Stephen Reinhardt wrote in the October decision.
Without commenting on the merits, the U.S. 9th Circuit Court of Appeals announced that it would reconsider its decision in which a three-judge panel ruled that requiring blood samples from thousands of federal convicts was an illegal invasion of privacy.I believe this document to be the 1/5/04 court order. Here is the 10/2/2003 ruling of the 3-judge panel. As stated in yesterday's order: "The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court."
The original decision, which had been stayed pending appeal, was viewed as a crime-fighting blow because blood samples culled from prisoners and stored in a DNA database maintained by the FBI can help solve crimes. The decision also threatened state laws that require prisoners to provide DNA samples, which are often forwarded to the FBI's database.
The San Francisco-based court, acting on a petition by the Justice Department, did not indicate when it would rehear the case, this time with 11 judges.
Law - Court upholds Texas redistricting law
This just posted on the Fort Worth Star-Telegram.com site:
A three-judge panel Tuesday upheld Texas' new Republican-drawn boundaries for state's 32 congressional districts, ruling that the plan complies with both the U.S. Constitution and the federal Voting Rights Act.Check our earlier entry here.
The ruling handed down from the federal courthouse in Marshall means that the new lines will be in place for the 2002 elections and that the candidates who have filed to run for Congress might have to reassess their plans. In North Texas, it could mean the end of U.S. Rep. Martin Frost's 25-year congressional career.
Law - Price fixing in Genetically Modified Seed World?
Senior executives at the two biggest seed companies in the world met repeatedly in the mid- to late 1990's and agreed to charge higher prices for genetically modified seeds, according to interviews with former executives from both companies and to court and other documents.An earlier, no longer freely available, NY Times article from Nov. 2, 2003, titled "Saving Seeds Subjects Farmers to Suits Over Patent," is discussed in the ILB entry here.
The Monsanto Company and Pioneer Hi-Bred International Inc. acknowledge that their executives met to discuss genetically modified seeds. Monsanto also said the companies discussed prices, but added that they were engaged in legitimate negotiations about changes to an existing licensing agreement, not illegal price fixing.
Law - CA for 7th Circuit ruling in Lilly DES case
ALBERS, KATHERINE M. v. ELI LILLY & COMPANY (1/6/04 CA 7th Cir)
Per Curiam (before Easterbrook, Manion and Kanne)
PER CURIAM. More than a decade after she was diagnosed with a malformed uterus that the physician attributed to her mothers ingestion of DES, Katherine Albers filed this tort action seeking damages from the drugs maker, Eli Lilly & Company. Lilly invoked the statute of limitations, which (the parties agree) is supplied by the local law of the District of Columbia because the suit was filed there and then transferred to Illinois under 28 U.S.C. §1404(a). The District of Columbias rule has been authoritatively stated:The district court granted summary judgment for Lilly, holding that reasonable diligence would have led her to commence investigation in 1991 when her doctor diagnosed her as having classic T-shaped, DES exposed uterus.‰ As even a modest investigation would have turned up some evidence‰ that administration of DES toIn every case, the plaintiff has a duty to investigate matters affecting her affairs with reasonable diligence under all of the circumstances. Once the plaintiff actually knows, or with the exercise of reasonable diligence would have known, of some injury, its cause-in-fact, and some evidence of wrongdoing, then she is bound to file her cause of action within the applicable limitations period, measured from the date of her acquisition of the actual or imputed knowledge.Albers concedes that she knew both her injury and its cause well outside the period of limitations (three years, see D.C. Code §12-301(8)) but denies that she had some evidence of wrongdoing‰ until 1999 or 2000 when she saw in a newspaper an attorneys advertisement about DES.
pregnant women could cause defects in their daughters
reproductive systems, that made the suit untimely. The Court here rules:
Her only contention is that she did not need to search. That line of argument, if adopted, would effectively abolish the D.C. objective rule allowing the imputation of evidence that would have been gathered from a reasonable search and would convert the standard to an entirely subjective one. Like the district judge, we hold that there is no material dispute requiring a jurys resolution. On the undisputed facts, a reasonable person would have commenced an inquiry in 1991 and swiftly would have found some evidence of wrongdoing. Thus the claim accrued in 1991, and this suit is untimely.
Indiana Decisions - One decision today
As noted in the Indiana Law Blog's New Year's resolution, starting in 2004 "the ILB will endeavor to at least list the general category of, and provide a link to, every decision of the Indiana appellate courts (Supreme, Appeals, and Tax) in a timely manner."
Only one decision has been posted today on the Courts' website.
American Family Mutual Insurance v. Federated Mutual Insurance, et al. (1/6/04 IndCtApp) - Insurance, where the question was "which insurer is obligated to provide uninsured motorist coverage for plaintiffs."
Also, our decision is guided by long-standing considerations in appellate forums: the avoidance of piecemeal litigation, the concerns regarding expenditure of resources, and disallowing a "second bite at the apple." * * * Here, Federated's attempt at a second bite at the apple should have been rejected. We do so now.
Again, we reverse and remand to the trial court with instructions that Federated must honor its policy and provide uninsured motorist coverage to the Browns, consistent with our earlier opinion.
Indiana Law - More on What the Indiana Law Blog Would Like to See in 2004
One more wish, to add to our 2004 Wish List, published here on New Year's Eve. The Indiana Historical Bureau puts out an invaluable series titled "Constitution Making in Indiana." Volume I, 1780-1850; Vol. II, 1851-1916; Vol. III, 1916-1930; and Vol. IV, 1930-1960. These volumes are compilations of source materials. As stated in the Preface to Volume III:
As in the preceding volumes, the field has been limited to documents bearing some sanction of authority, including in this instance, activities of the General Assembly, governors' messages, party platforms, official ballots, court decisions, and opinions of attorney-generals. They have been taken from the printed House and Senate Journals, the Laws, and the Court Reports, supplemented when necessary by original documents, printed bills, or manuscript records from the office of secretary of state.What we'd like to see in 2004, of course, is: Volume V, 1961-2000! Plus a plan for the future of this publication , which is such an invaluable historical resource for the Courts, the Indiana General Assembly, and all of us citizens of Indiana.
Environment - 3 top EPA enforcement officials to resign; More
I-69 Route. The Evansville Courier&Press had an interesting story yesterday -- reporter Jennnifer Whitson had studied "the 1,000-plus pages of the phase one final environmental impact statement for the Evansville-to-Indianapolis leg of Interstate 69," and reports on a number of interesting details. See also this earlier IBL coverage of the final impact statement.
Kentucky power plant. The Courier&Press has a story this morning with this lead: "Developers are moving ahead with a power plant proposed for Henderson County, Ky., despite Vanderburgh and Warrick counties' air quality woes."
Confined feeding. An AP story yesterday carried in the Fort Wayne News-Sentinel reports: "While most hog farms stink, and some contaminate waterways with waste-laden runoff, [Mark] Legan's operation is one of Indiana's model farms, earning praise for consistently exceeding environmental requirements." Legan is:
a former agent with Purdue University's agricultural extension who holds bachelor's and master's degrees from the school. He also serves on the Indiana Water Pollution Control Board. * * *
While most hog farms stink, and some contaminate waterways with waste-laden runoff, Legan's operation is one of Indiana's model farms, earning praise for consistently exceeding environmental requirements. Legan's business, Legan Livestock and Grain, experts say, exemplifies how modern pork producers can balance responsible farming and smart business.
January 05, 2004
More on How to Read a Blog
A reader wrote to tell me that he enjoyed my "How to Read a Blog" entry last Friday, but added:
I use Netscape, not Explorer, and your blog is very strangely formatted when viewed in Netscape (I have to scroll to the bottom for the ad and related admin stuff), and I switch to Explorer to view it only when I need to access a link (which I can't do from your blog in Netscape, for some reason, though I can from Hasen, Still, Bashman, and SCOTUS blogs). That's why I had to smile -- and wince -- when reviewing your great user's guide this weekend . . .Well, I hated to read that! I sent him a picture of what the Indiana Law Blog should look like (although the green column in the picture is somewhat truncated) and later received this response:
that was helpful. After viewing the .pdf, I was able to get your site to look like that in Explorer -- after I changed the size of the text to "smallest."I mention this in case you too do not see the green column running down the right side of this blog, etc. If you think you may be missing something, check this picture. And please let me know (and tell me what browser you are using) so that I can attempt to make adjustments on my end.
Looks great -- far better than the white on blue title box and white box with black text on ugly brown bkgd and bizarre formatting that I get in Netscape!
Indiana Laws - Bingo
Several stories in the past few days talk about a new requirement, set to go into effect in May [of presumably 2004], that (as reported in this Indianapolis Star story) "bingo parlors with income in excess of $500,000 must give 10 percent of their revenue to charity, regardless of expenses." The report also notes: "Several bingo parlors have sued the department over the regulations." However, no further mention is made of any lawsuits.
The mention of lawsuits rang a bell, however, and I found this June 28, 2003 Indiana Law Blog entry linking to a no longer available Star story about the new rules and pending suits.
With the limited information available, the two stories don't seem to add up. According to the June 2003 story the requirements were already in effect and "the Indiana attorney general's office agreed to stop enforcing the new regulations until a July 25 court hearing;" while this week's story says the requirement does not go into effect until May 2004.
Here are the relevant provisions of the rule (emphasis added):
45 IAC 18-3-7 Use of proceeds[Update] Thanks to Ed Feigenbaum of Indiana Gaming Insight for a quick response to my inquiry. He writes: "The confusion may come from some of the rolling dates even in the original plan (see Revenue news release of 04/16/03):
Sec. 7. (a) In accordance with IC 4-32-9-16, as a condition of receiving a charity gaming license or nonlicense letter issued on or after May 1, 2003, the following minimum percentage of charitable gaming gross receipts shall be used for those lawful religious, charitable, community, or educational purposes for which the organization is specifically chartered or organized, or those expenses relating to the acquisition, construction, maintenance, or repair of any interest in real property involved in the operation of the organization and used for lawful religious, charitable, community, or educational purposes:(1) Five percent (5%) for organizations with annual gross receipts less than one hundred fifty thousand dollars ($150,000).(Department of State Revenue; 45 IAC 18-3-7; filed Feb 28, 2003, 2:16 p.m.: 26 IR 2308; errata filed Mar 10, 2003, 11:43 a.m.: 26 IR 2375)
(2) Eight percent (8%) for organizations with annual gross receipts between one hundred fifty thousand dollars ($150,000) and five hundred thousand dollars ($500,000).
(3) Ten percent (10%) for organizations with annual gross receipts over five hundred thousand dollars ($500,000). * * *
New regulations governing charity gaming events in Indiana are now in effect. According to the Indiana Department of Revenue, most of the new regulations became effective March 28, 2003. The main exception is a new provision whereby a nonprofit organization must now attain a certain percentage of gaming profit and apply it towards the organizations legal purpose as specified in its bylaws. After May 1, 2004, those organizations that renew their annual bingo licenses and do not attain the applicable percentage will be put on probation for one year and if they fail the second year could lose their license beginning May 2005.Ed also reported in his publication in early December that the "December 5 hearing on the lawsuit filed by assorted charitable gaming advocates challenging the 2003 Department of Revenue regulations (now in abeyance) slated for Marion County Superior Court has been postponed yet again."
Law - The Constitution and the War on Terrorism
In this story today, Charles Lane of the Washington Post sets the stage for "key cases on the court's docket for early 2004 [that] will, to some extent, define the human rights of both Americans and non-Americans."
That is because the justices will, for the first time, consider key elements of the Bush administration's aggressive assertion of executive authority in the global war against terrorism. The results will help determine not only the court's power vis-à-vis the executive branch, but also the place of the U.S. judiciary, and of the U.S. Constitution, in the international sphere.The analysis ends with a series of quotes from five of the justices, preceded by this introduction:
Along with these debates over the substantive meaning of national safety and individual liberty, the court will tackle an emotionally charged case about how Americans honor the flag that symbolizes those values: a California atheist's challenge to the words "under God" in the Pledge of Allegiance.
"The spring certainly will produce a series of blockbuster decisions that'll have the nation's attention," said Tom Goldstein, a Washington lawyer who practices regularly before the court. "And they could even create issues for next year's elections, because they involve questions of patriotism and terrorism and the role of government that are absolutely fundamental."
The court's plunge into the legal issues raised by the war on terrorism did not come precipitously -- the justices have rejected pleas to hear some terrorism-related cases. Yet it is a role that several of the justices, conscious of the court's crucial rulings on civil liberties in conflicts such as World War II and the Civil War, seem to have been anticipating almost since Sept. 11.Earlier Indiana Law Blog entries in this same vein may be found here and here.
Linda Greenhouse has an article today in the NY Times "about a post-Sept. 11 detention case now before the Supreme Court that has been handled with unusual secrecy both there and in the lower federal courts."
Much of the information available now comes from a series of articles in The Miami Daily Business Review, which learned about the case in March when it was pending before the United States Court of Appeals for the 11th Circuit, in Atlanta. The clerk's office of the appeals court inadvertently and briefly listed the case on a public docket. Previously, not even the existence of the case had been made public.
The publicly available version of the Supreme Court petition omits many details, including even the identities of the lower courts, and includes blank pages. The justices received complete versions.
January 04, 2004
Environment - Water, water, water
Three stories in today's Sunday LA Times about water. This long and very interesting story, headed "Bush Makes Time for 'Hook and Bullet' Set: Fishing and hunting groups have the administration's ear and are emerging as a lobbying force for environmental issues," talks about a meeting President Bush had last month:
The National Rifle Assn. was represented at the White House meeting; so were Ducks Unlimited and Pheasants Forever. Altogether, President Bush spent more than an hour with the leaders of some 20 hunting and fishing groups in the room named for Theodore Roosevelt, the first conservationist president.The article points out that "When Christie Whitman was the Environmental Protection Agency administrator, she understood the 'hook and bullet' crowd's clout at the White House."
Top on the visitors' list of concerns at the session in December was a plan by some administration officials to rewrite the 1972 Clean Water Act in a way that could damage millions of acres of wetlands and countless miles of streams prime habitat for the wildlife that these groups hunt and fish.
Without specifying his position on the issue, Bush assured those in the room that he understood the value of wetlands and would not let his administration do anything that would spoil them, participants in the meeting said. Just four days later, Bush killed the plan to rewrite the Clean Water Act.
About six months ago, Whitman called Jim Range, chairman of the Theodore Roosevelt Conservation Partnership, a nonprofit advocacy group focused on issues affecting hunting and fishing, and asked if he would gather representatives of member groups to talk with her about wetlands policy. "It was her analysis that because of the importance the hunting and fishing community has always placed on wetlands, they would be the most influential people on this administration and this president," Range recalled.A second LA Times story tells the tale of a reformed "in-your-face" environmentalist, Michael Hazzard:
Whitman, whose goal at the EPA was to protect wetlands and streams, knew that others in the administration were eager to limit the scope of the Clean Water Act. By asking the sportsmen groups to play a role, she was hoping to "help facilitate bringing the other members of the team on board," said a former senior EPA official who spoke on the grounds that he not be named.
The conservationists told her that the decision facing the administration on wetlands protection was the most important issue for their community, Range said. At her request, they drafted a letter to the president expressing their "strong opposition" to the proposed policy change.
"America's rich hunting and fishing traditions are inextricably tied to the protection of habitat, and as sportsmen and Republican presidents have known for over 100 years, isolated wetlands and small ponds are among the most important habitat," said the letter, which was signed by the leaders of 31 fishing and hunting groups. Whitman gave Bush the letter during a meeting in late June before she left her post.
[W]hen it comes to combating water pollution, Hazzard is showing signs of mellowing: Environmentalists and friends say he's gotten smarter, gaining new tact in his approach to developers and polluters.The third story is about one of the West's main concerns, water conservation. Titled "Water: A New Cash Crop," the subtitle reads: "Strapped growers are selling their rights to thirsty cities and suburbs, a transfer that can parch farmland, businesses and jobs." The lead:
His new job of six months as Orange County area manager for Santa Rosa-based Drainage Protection Systems, a company that provides devices for storm-water pollution, may also have changed his attitude toward strip malls, restaurants and developers. "I've gone from someone who agitated against them and am now helping them comply," he says.
ROCKY FORD, Colo. Ron Aschermann could barely eke out a living raising melons, cucumbers, tomatoes and other crops on his 300-acre farm. But quitting the business will earn him more than $1.2 million. Aschermann and scores of other farmers on the high plains of southeastern Colorado are selling water, which once produced melons, to the Denver suburb of Aurora. The prairie will retake land that has long known the plow.
January 03, 2004
Environment - EPA May Expand Focus re Sewage Sludge
The Environmental Protection Agency says it may start regulating 15 pollutants, beyond the 9 it currently regulates, in sewage sludge used or disposed of in the United States. The 15 chemicals are already considered hazardous enough to be a potential threat to the health of people and wildlife, the agency said in its announcement, issued Wednesday. But new assessments of those risks will be undertaken before any final regulations are proposed, the agency said.The story also reports that EPA's announcement comes "a year and a half after a panel of the National Research Council, in a review the agency had asked for, criticized what the council described as outdated science in the agency's assessment of health risks from treated sludge used as fertilizer."
The Fact sheet for US EPA's 12/30/03 "Final Response to the National Research Council Report on Biosolids Applied to Land and the Results of the Review of Existing Sewage Sludge Regulations" may be found here. All relevant documents, including the 12/31/03 FR notice, and the NRC Report itself, may be found here.
Today the NY Times has this story headed "E.P.A. to Study Use of Waste From Sewage as Fertilizer."
The studies, in combination with the agency's announcement on Wednesday that it will more closely regulate 15 chemicals found in sewage sludge fertilizer, are part of the agency's efforts to address public concerns about an agricultural practice that has grown rapidly around the country over the last decade. The announcements also reflect the agency's shifting public stance toward the practice. Currently, 54 percent of the six million tons of sewage sludge generated every year is processed, rechristened as biosolids and used as fertilizer more sludge than is disposed of through incineration and landfill combined.
Law - Interesting Stories in Today's Washington Post
"Sikhs Seek Exemption From Ban In France: Community Fears Chirac Proposal's Effect on Turbans," found here, relates to the "planned French law to ban Muslim head scarves and other religious symbols from schools."
"Guidelines for Mass," a short article found here, begins "So that Roman Catholic Masses are celebrated uniformly, the Vatican has issued a document explaining how Mass should be conducted anywhere in the world. Although the new 'General Instruction for the Roman Missal' allows for some minor national or diocesan differences, its directives are extremely detailed."
"Muslim Law to Be Used in Some Disputes in Canada," found here, begins: "Some Canadian Muslims will soon be able to use an Islamic tribunal to arbitrate civil disputes, bringing Muslim sharia law to a largely secular society and raising concerns about the extent to which it might be applied."
"Bush Aides Face Request To Free Media To Give Names," found here, reports that:
Federal investigators plan to ask White House officials to release journalists from any pledge of confidentiality given during discussions about CIA operative Valerie Plame, a senior administration official said Friday.
The official said that several aides to President Bush whose names have come up in interviews with FBI agents will be asked to sign a one-page form giving permission for journalists to describe any such conversations to investigators, even if the journalists promised not to reveal the source.
January 02, 2004
How to Read a Blog
The first time I looked at a web log ("blog") I was totally confused. Even after some time of reading blogs, I did not know all the ins and outs. I still may not know all the tricks, but I hope the following will be of help to many of you.
(1) When you go to The Indiana Law Blog, you see the Main Page. The wide left column contains my entries, with the most recent first. All the entries I've posted in any one day will appear under a heading for that day, such as "January 02, 2004."
If you scroll down the page you will see earlier entries, in reverse chronological order. The entries for the past 30 days will always appear here.
(2) Four things to know about the links that appear within an entry:
First, say an entry begins: "This story in today's NY Times...". The link for "this story" will lead directly to the story on the NY Times site. The link for "NY Times" will lead to the main page ("portal") of the NY Times site. Why both? This practice is a generally accepted courtesy, which I think derives from the objections some portal owners have had to what is called "deep linking" -- links that bypass the web portal. Nowadays it would seem to be less necessary, as all pages in major sites will generally identify that it is a page from, say, the NY Times and will provide links to get to other places on the Times site.(3) What if you want to bookmark a specific entry, or send a link to it to someone? Go to the end of the entry. You will see, for instance, "Posted by Marcia Oddi at 03:37 PM" Click on the time link. That entry, and no more, will appear, filling the entire page (or you can right click, as above, to open it in a new window). You can bookmark this page (via "favorites"), or you can pull down "File" and select "Send" the page, or the link to the page, via email. Or you can highlight all or part of the entry, select "copy" from the Edit menu, then "paste" it into an email message box.
Second, particularly with newspaper stories, be aware that a link will not last forever. At some point, you may click on a link in any entry and get nothing, or a notice that the page is not available, or a link to "pay for view" archives. There is no general rule, some pages disappear the next day (eg the Gary Post Tribune's stories); some are good for a week or for months; some may be good forever.
Third, some links will lead to sites that require to you to register the first time you visit (on each different specific computer you use). The NY Times and Chicago Tribune are examples. Registration is free (I do not link to stories on pay sites, such as the Wall Street Journal), but some free sites may request what you may consider to be overly intrusive information and you may decide to forgo reading the story.
Fourth, how to open a link in a new window? If you want to click on a link and have it open a in new window, rather than replacing the screen you are viewing, do this if you are using MS Windows: right click the link; a box will appear; the second option down in the box will be "open in new window"; click it.
Once you are done with the entry, look at the top of the page, right below the blue title box, and select "Main" to return to the main page. Or use your browser's "back" arrow or command. Or, if you opened a new page, simply close it.
(4) What if you want to go back and read more than the past 30 days' worth of entries? (I'm flattered.) Look at the narrow green right-hand column, and scroll down until you see a list of the months, under the heading "Archives." If you click on "September 2003," for instance, all the entries for September 2003, beginning with the last one made on September 30, 2003, will appear. (This, incidentally, is the way to go if for some reason you should want to print out or save all the entries in this or a similar blog.)
(5) What is the Calendar for? The calendar highlights the days during the current month when at least one new entry has been posted. In this blog the color blue is the highlighter. Clicking on a highlighted date will take you to that day's entries. The calendar is probably most useful for blogs where entires are sporatic. You can tell at a glance whether the owner generally posts new material daily or weekly, or only once in a while.
(6) Two features I feel make this site much more valuable to the user are the "Categories" links and the "Search this Site" box.
Each time I post an entry, I categorize it. Generally I also identify the category at the beginning of the heading -- such as "Environment - Land Use and Water Quality in Floyd and Hendricks Counties." All my category headings are listed under the heading "Categories" in the right column. (I add new category headings occasionally - you may notice I just added one called "How to Use this Blog" so that you will always be able to quickly find this post.)
If you click on one of the category headings in the right column, such as "Indiana Decisions," you will get a list of every "Indiana Decisions" entry since this blog started, in reverse chronological order, along with the first few lines of the entry. A click will take you to the full entry.
Search! I use the search box all the time. If I'm posting an entry about X and I know (or don't recall whether) I've written about X before, I use the search box. The result I receive is a page listing every entry containing X, in reverse chronological order, with a few lines from the beginning of each such entry. If you wanted to see all the entries that included the term "eminent domain," regardless of category, you could use the search box.
(7) A few other features in the right column. "Other Law-Related Blogs," "Blog Tools," "Indiana Legal Resources," and "Tech and Biotech Blogs," are lists of links to sites I like or use frequently. Occasionally I go through these links and may toss out some or add others.
"Recent Entries" lists the headings of my last ten entries. This feature is, I feel, of questionable usefulness on my blog and I may discard it.
(8) Other information for you. Except for correcting grammar or spelling errors I may notice later, I generally do not change an entry once I have publicly posted it. However, I may add to it within the next day or two, generally via an addition at the end labeled "[Update]" if I obtain more information. Thus it may be useful to you to check back on an entry from yesterday that you found useful or interesting to see if I've added anything.
Most days I post a number of entries during the course of the day. If you want to check in several times during the day, remember that you may need to refresh your browser. In addition, some services, such as AOL, cache pages during the day on their own servers. So even if my page has been updated, the page AOL has cached and you access (if you are, for instance, an AOL user) may still be an earlier version. So you may be seeing one thing, while your friend on the phone who is looking at her computer may be seeing something else on the same main page. Yes, I've had this happen.
Finally, although I have several hundred visitors a day, I'm nowhere in the league of Howard Bashman (How Appealing). So tell your friends about this site. And let me know what you think -- my email address is right there, at the top of the green column.
And thanks for visiting the Indiana Law Blog!
Law - The Law of Holiday Decorations
A useful article (for next year) is "Holiday Decorations, and the Religion Clauses: What the Rules Are, And Why the Supreme Court Was Prescient to Clarify Them Decades Ago," by Professor Marci Hamilton, appearing here in the 1/1/04 Findlaw.com Legal Commentary section.
Environment - Land Use and Water Quality in Floyd and Hendricks Counties
The Louisville Courier-Journal has this story today "Protecting water, natural resources: Meeting will examine Floyd water management," about a meeting next week sponsored by Purdue's Cooperative Extension Service.
The goal, according to a Purdue Web site, is to educate residents and officials "about the links between land use and water quality" and give them "tools to take action at the local level."The story goes on to discuss how the program has worked in Hendricks County:
The initiative called Planning with POWER, which stands for Protecting Our Water and Environmental Resources is intended to encourage residents and community leaders to think about environmental issues such as water quality and drainage, as well as the conservation of other natural resources.
The idea is to find ways to incorporate those concerns into local ordinances and planning-and-zoning practices.
Jon Cain, the Purdue extension agent in Hendricks County, just west of Indianapolis, believes the Planning with POWER program can produce important changes in a community.The Purdue site lists (here) several other communities it is working with. The site also provides links to a number of results-oriented publications such as: "How to Get Started: Protecting Your Community from Polluted Runoff," available in both PDF and HTML. Other titles: "The Relationship Between Land Use Decisions and the Impacts on Our Water and Natural Resources," "Protecting Our Water and Environmental Resources," "Nonpoint Source Pollution: A Threat to Our Waters," and "How to Get Started: Protecting Your Community from Polluted Runoff."
Robert McCormick, coordinator of the Purdue University program, took it to Hendricks County about two years ago, Cain said, leading several meetings on water and natural-resource planning. Since then, Cain said, a committee of the county Plan Commission has been formed to write a conservation subdivision ordinance.
The committee's goal, Cain said, is to create an ordinance that will incorporate the protection of water and other natural resources in a document that will:- Encourage developers to set aside perhaps 50 percent of the land in a subdivision as open space.The committee of 15 to 20 people, including professional planners, builders and environmental consultants, expects to submit the goals it's developed for the ordinance to the Plan Commission soon, Cain said. Once the commission approves the goals, the committee will focus on getting the document written, Cain said.
-Provide developers incentives, including permission to build on smaller lots than would be allowed in traditional subdivisions.
- Hold down the "front-end" costs of development.
- Provide mechanisms for the permanent ownership and management of protected open space.
After the Planning with POWER meetings two years ago, Cain said, community residents and leaders who took part decided that creating an effective ordinance would be the best way to protect Hendricks County's water quality and other natural resources and to manage drainage.
January 01, 2004
Law - Ted Kennedy and Chief Justice Agree on Feeney Amendment
Chief Justice William H. Rehnquist criticized Congress in unusually pointed terms on Wednesday for a recent law that places federal judges under special scrutiny for sentences that fall short of those called for by the federal sentencing guidelines.Greenhouse also reports that:
The legislation, enacted last spring as a little-noticed amendment to the popular Amber Alert child protection measure, "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties," the chief justice said in his annual year-end report on the federal judiciary. "It seems that the traditional interchange between the Congress and the judiciary broke down" when the amendment passed without any formal evaluation from the judiciary, he added.
Senator Edward M. Kennedy of Massachusetts, a leading Democrat on the Senate Judiciary Committee, called the chief justice's criticism "extraordinary" and said he agreed that the amendment was undermining judicial independence, by creating "blacklists based on the sentencing practices of individual federal judges." Mr. Kennedy said he had introduced a bill to repeal the amendment.Actually, this is nothing new from either Senator Kennedy or Justice Rehnquist. A statement Kennedy released on May 22, 2003 after "the Judiciary Committee Executive Business Meeting Regarding the Nomination of Michael Chertoff to the United States Court of Appeals for the Third Circuit," contains this quote:
At his hearing, I asked Mr. Chertoff extensive questions about the Justice Department's advocacy on behalf of the Feeney Amendment to the AMBER Alert bill. This Amendment has nothing to do with protecting children, and everything to do with handcuffing judges and eliminating fairness in our federal sentencing system. Its provisions effectively strip federal judges of discretion to impose individualized sentences, and transform the longstanding sentencing guidelines system into a mandatory minimum sentencing system. As Chief Justice Rehnquist has said, they "do serious harm to the basic structure of the sentencing guideline system and . . . seriously impair the ability of courts to impose just and responsible sentences."(Interestingly, Kennedy's quote may also be found on this page, dated 6/3/03, from www.uscourts.gov, in a discussion of S. 1086, H.R. 2213, an effort to repeal "a number of controversial sentencing provisions that were added to the recently enacted 'AMBER Alert' law.")
Although Justice Rehnquist is not speaking out on this issue this week for the first time, Greenhouse's point is this:
[T]he chief justice's choice of subject for his year-end statement this was his 18th is never casual, and by making the sentencing debate the focus of the report, he was clearly trying to raise the issue's public visibility and bring it more forcefully than before to the attention of Washington policy makers. He has long been concerned about guarding judicial independence, and it was in those terms that he framed his critique of the Feeney Amendment.[Earlier Indiana Law Blog coverage of the Feeney Amendment dispute may be accessed here.]
December 31, 2003
Indiana Law - New Year's Wishes: What the Indiana Law Blog Would Like to See in 2004
This is New Year's Eve. Here is what the Indiana Law Blog would like to see for Indiana in the New Year. Maybe not all at once, but at least a start.
1. Women (note the plural) on the Indiana Supreme Court. Current status: Five men, no women.
2. Copies of briefs for cases before the Indiana Supreme Court made available online. When? At the same time they are filed with the Clerk of the Court.
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, 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.
5. A booklet containing the Constitution of the State of Indiana, and including all the changes that have been made over time. Also the 1816 Constitution.
6. And finally, all the best in the New Year for all you Indiana Law Blog readers!
Law - 7th Circuit Ruling on "Fair Use" Defense
Chicago Bd. Education v. Substance, Inc. (12/31/03 CA 7th Cir.)
Posner, Circuit Judge
Here the Board of Education sued the publisher, Schmidt, of a newsletter that quoted from the Board's copyrighted tests. Just a few quotes from the 14-page opinion (cites mostly omitted):
[Schmidt] was entitled to criticize the tests and to do that effectively he had to be able to quote from them, just as a parodist has to be able to quote, sometimes very extensively, from the parodied work in order to make the criticism of it that is implicit in parodying it comprehensible. * * *
So where to draw the line? The question cannot be answered precisely. The fair use defense defies codification. As we said in Ty, the four factors that Congress listed when it wrote a fair use defense (a judicial creation) into the Copyright Act in 1976 are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically. The general standard,
however, is clear enough: the fair use copier must copy no more than is reasonably necessary (not strictly necessary room must be allowed for judgment, and judges must not police criticism with a heavy hand) to enable him to pursue an aim that the law recognizes as proper, in this case the aim of criticizing the copyrighted work effectively. * * *
SchmidtŒs opening brief cites the memorandum that he had filed in the district courtthe memorandum the judge had overlooked in rejecting the fair use defense on the pleadings. In the memorandum, Schmidt did offer answers
to these questions. Only the answers are no good, so that even if incorporation by reference were a valid method of bringing facts and arguments to the attention of an appellate courtwhich it is not, DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999) (a brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record‰); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1430 (7th Cir. 1986) (our rules do not permit issues to be preserved by references to documents filed in the district court ) treating the memorandum as if it were a brief in this court would merely confirm that Schmidt has no fair use defense.
Indiana Decisions - 7th Circuit Rules in Thermostat Case
Eco Mfg. LLC v. Honeywell Int'l Inc. (12/31/03 CA 7th Cir.)
Easterbrook, Circuit Judge
The Court here upholds the interlocutory decision of Judge Hamilton, SD Ind:
Thus the district court did not abuse its discretion in holding that Eco may go forward with a round thermostatat its own risk, of course, should the decision come out otherwise on the merits. Although we have not endorsed all of the district courts legal analysis, it would be pointless to remand for another hearing on interlocutory relief. The case should proceed expeditiously to final decision; another preliminary‰ round would waste everyones time. It would be especially inappropriate to direct the district judge to issue a preliminary injunction when issues other than functionality remain to be addressed. Eco contends, for example, that Honeywell bamboozled the Patent and Trademark Office when seeking registration during the 1980s, and material deceit would scotch this enforcement action whether or not the trade dress is functional. We do not express any view on that issue, or any ultimate view about functionality; it is enough to say that the record compiled to date adequately supports the district judges interlocutory decision.
Indiana Decisions - Announcement
Since its inception in March of 2003, the Indiana Law Blog has attempted to highlight Indiana Supreme Court and Court of Appeals "decisions of interest" on the same day that they are issued. Of course, not everyone may agree as to what are the "decisions of interest" on any particular day.
New Year's Resolution. Starting this afternoon, the Eve of 2004, the ILB will endeavor to at least list the general category of, and provide a link to, every decision of the Indiana appellate courts in a timely manner.
Today the Indiana Supreme Court issued one opinion, summarized in the last post. The Court of appeals issued four opinions:
Estate of Penzenik v. Penz Products (12/31/03 IndCtApp) - Estates and Trusts
Mark C. Dawson v. Karen A. Dawson (12/31/03 IndCtApp) - Family Law
Michael T. Lewis v. State of Indiana (12/31/03 IndCtApp) - Criminal Law & Procedure
Theodore Alexander v. PSB Lending Corporation (12/31/03 IndCtApp) - UCC, Banking, Lending; Statutory Interpretation (Any opinion with 22 different law firms listed as representing the appellees may be a "decision of interest." Therefore I have converted it to PDF for the readers' convenience.)
Indiana Decisions - Supreme Court adddresses new questions in eminent domain proceeding
State of Indiana v. Stephen Bishop, et al. (12/31/03 IndSCt)
Shepard, Chief Justice
The questions, as set forward by the Court:
This is an eminent domain proceeding in which the State condemned land adjoining an interstate highway in order to build an interchange. We consider two questions we have never addressed before. First, does a party who has filed objections to the report of court-appointed appraisers have an absolute right to withdraw the objections? Second, by what method does one assess the fair market value of a billboard that is taken in condemnation?The Court rules here that:
a party does not have an absolute right to withdraw exceptions to the appraisers' report; rather, the withdrawal of exceptions is subject to the trial court's discretion. While the court in the exercise of such discretion may ordinarily allow the withdrawal, it may deny the request to withdraw or condition the withdrawal upon such terms and conditions as the court deems necessary to avoid injustice.As for the method of determining the fair market value of property taken by eminent domain:
Three widely accepted approaches to estimating the fair market value of property taken by eminent domain are: (1) the current cost of reproducing the property less depreciation from all sources; (2) the 'market data' approach or value indicated by recent sales of comparable properties in the market, and (3) the 'income-approach,' or the value which the property's net earning power will support based upon the capitalization of net income. * * * Because this Court has not previously addressed the question of the appropriate way to value billboards in an eminent domain case and because we are remanding this case for a new trial on values, we address the question now.After setting out rules for assessing the fair market value of a billboard that is taken in condemnation, the Court concludes: "We affirm the trial courts refusal to permit the State to withdraw its exceptions. We otherwise reverse the judgment and remand for a new trial."
Indiana Law - Standards for Gated Communities
In the far western reaches of Aboite Township, just shy of the Whitley County line, two developments are springing up with characteristics foreign to the area. One, Heron Preserve, has been approved as Allen County's first gated community. Virtually next door, The Cliffs sports an equally impressive front entrance, although its status as a gated community is undecided. * * *
Heron Preserve's gatehouse will be staffed continuously with off-duty sheriff's deputies.
Terry Ternet is still seeking approval for gates at The Cliffs, a development adjacent to Heron Preserve on Aboite Center Road. If approved, The Cliffs will have a closed gate in what Ternet calls the "vandalism hours," roughly 8 p.m.-6 a.m. * * *
The Cliffs won't have a person at the gatehouse, and therein lies a problem with the county. Citing emergency access concerns, the Allen County Plan Commission approved the development, but not the gate. Ternet has offered to put in "every backup system we could find" so fire and police personnel would have a way to open the gates should an emergency arise when they're closed.
"A lot of states have gates like this," said Ternet, who has researched the issue.
Kim Bowman, county director of planning, said Ternet needs to go back to the commission to ask for the initial approval to be amended to allow him to put in a gate.
Part of the problem is the county doesn't have standards for gated communities. The commission could make a decision based on precedent, but the only precedent so far is Heron Preserve's 24-hour manned security. Ternet won't go that route and continues to hope for a resolution with the county.
December 30, 2003
Indiana Decisions - Another FSSA case
Governor Joseph Kernan, et al. v. Richard Schindler, et al. (12/30/03 IndCtApp)
This is a short opinion on a petition for rehearing and would best be appreciated by reading in full. The issue is whether the trial court's order to increase staffing at Logansport State Hospital violated the separation of powers. The Court states: "We grant the Appellees petition insofar as is stated in this opinion to clarify our prior holding."
In their petition for rehearing, the Appellees contend that the trial court order merely directed the State to maintain staffing ratios which are mandated by certain federal and state regulations and, therefore, [Logansport State Hospital v. W.S., 655 N.E.2d 588 (Ind. Ct. App. 1995)] does not apply. If that were the effect of the trial court order, we would agree. The trial court order, however, does more than direct the maintenance of staffing ratios which are required by applicable regulations. It mandates staffing levels in absolute terms and without regard to regulatory requirements. It does not provide for the State to reduce staffing in relation to a reduction in patient population as permitted by the regulations. For these reasons, the trial courts restraining order in its present form contravenes our holding in Logansport State Hospital. Neither this opinion, nor our Opinion in this case should be construed to prevent the trial court from issuing an order that the State shall maintain staffing ratios in accordance with applicable governmental regulations.Najam, J. concurs.
Hoffman, Sr. J., dissents with separate opinionHere is the dissent, in full:
I respectfully dissent from the majoritys decision to grant rehearing.Note: The last sentence of the concurring opinion in Armstrong, referenced above, reads: "This court does not and should not issue advisory opinions. See Richardson v. Calderon , 713 N.E.2d 856, 863 (Ind. Ct. App. 1999), trans. denied (2000)." And the last sentence of the opinion in Richardson reads: "We do not issue advisory opinions. Hill v. State, 592 N.E.2d 1229 (Ind. 1992)."
The majoritys opinion on rehearing merely agrees with our original opinion that the trial court erred in prohibiting the State from reducing or removing existing staffing levels at Muscatatuck State Development Center. As both our original opinion and the majority on rehearing state, the trial courts order violates Article III, § 1 of the Indiana Constitution.
The majoritys opinion on rehearing has the sole effect of advising appellate counsel as to how they may word a further request to the trial court. The opinion does not address the issue set forth in this appeal. In effect, the majoritys opinion serves as an advisory opinion. This court does not and should not issue advisory opinions.‰ Armstrong v. Federated Mutual Insurance Co., 785 N.E.2d 284, 294 (Ind. Ct. App. 2003) trans. denied.
I would deny the Appellees petition.
Indiana Law - Supreme Court Announces Availability of a Business Counsel License
A release just issued by the Supreme Court of Indiana:
BUSINESS COUNSEL LICENSE FOR ATTORNEYS AVAILABLE JANUARY 1
Indiana residents who are admitted to the bars of other states and who do legal work for their companies will be able to apply for a new Business Counsel License‰ beginning January 1, 2004, Chief Justice Randall T. Shepard announced today.
The Business Counsel License will cost $800 and will be good for one year. It can be renewed for four years at the cost of $50 per year. Attorneys with this license can only practice law for their business.
After five years, these lawyer can then apply for the existing out-of-state or foreign license.‰ To obtain a foreign license, lawyers must have been actively engaged in the practice of law for at least five or the seven years preceding the application and must fulfill all other requirements. Indiana joins 14 other states which have similar licenses.
Specific admission requirements for the Business Counsel License are set out in Indiana Admission and Discipline Rule 6 and are available on the Board of Law Examiners web site, www.IN.gov/judiciary/ble. After January 1 application forms will be available also from the Board of Law Examiners office. Call 317.232.2552 or email Becky Sutton at firstname.lastname@example.org.
Environment - Ruling in DC Circuit decision on CAA
I've been checking the site of the Court of Appeals for the DC Circuit for a copy of the order in their Dec. 24th decision to stay the taking effect of EPA's CAA changes (which were scheduled to go into effect Dec. 27th).
The Indiana Law Blog writeup of the Dec. 24th action is here (or simply scroll down to the 24th).
This morning I contacted the Clerk of the DC CA and asked why the "opinion" was not posted. I was pleased to receive an immediate response from the Clerk, Mark Langer: "That was not an opinion. It was an unpublished order. It should be available, for a fee on the PACER site attached to the docket entry. A copy can also be obtained by coming to the Court."
[Update] Here is the Dec. 24th stay order. Thanks to my friends at B&T.
Law - Supreme Court of United States "opens up" somewhat
... which has long resisted many aspects of the Information Age, is beginning to get more comfortable with greater transparency and openness. There were other illustrations of the trend in 2003. An expanded and increasingly useful Web site. More frequent early release of oral argument audiotapes. An end to the ban on note-taking in public sections of the Court. Briefing its Capitol Hill neighbors on courthouse renovation plans. * * *The Supreme Court site now links to an ABA page with the merit briefs. Access it directly here. Use the "Argument Date Menu" on the right to select the month the argument for the case you are interested in is scheduled.
The Court's unheralded decision to allow public spectators to take notes during its proceedings -- reversing a decades-long policy against it -- has also had a subtle but important impact. Both developments signal that oral arguments are not just for the benefit of the justices, but have a public dimension as well.
The justices still appear far from ready to take the next step: allowing cameras inside the Court. They prize their anonymity and traditions too much, for now. But short of camera access, its actions in 2003 have made it easier for the public to glean and record information on its proceedings -- both inside and outside the courtroom.
Lawyers who practice before the Court are also benefiting from a more public-oriented attitude. Roy Englert Jr. of Robbins, Russell Englert, Orseck & Untereiner says that it has become easier to file briefs and other documents with the Court electronically. * * *
Englert also points to the increasing usefulness of the Court's official Web site, www.supremecourtus.gov, launched in April 2000. It has detailed docket information, and through a new arrangement with the American Bar Association, the site also includes briefs on the merits filed by both sides in all cases docketed for oral argument.
Thanks to How Appealing for the link to the Mauro article.
Indiana Law - Property tax deductions on Indiana returns
Environment - More on Regulation of Mercury in Coal-Fired Power Plants
The Environmental Protection Agency-sponsored working group had a well-regarded mix of utility industry representatives, state air quality officials and environmentalists. Without settling on specific emission reductions, the panel agreed that all 1,100 of the nation's coal- and oil-fired power plants must use the "maximum achievable control technology" (MACT) to reduce mercury and other hazardous pollutants.Also of interest is this AP story from 12/27/03, published in the Pioneer Press: "Mercury Regulation: EPA rule could pre-empt stronger state action."
But in April, the EPA abruptly dismantled the panel. John A. Paul, its co-chairman, said members were given no clue why their work was halted -- that is, until late last month, when the Bush administration revealed it was taking an entirely different approach, using a more flexible portion of the Clean Air Act.
The new approach would still cost the industry billions of dollars to meet long-term goals. But it was far cheaper and less onerous than the MACT approach that most experts had assumed the EPA was developing to meet a court-imposed deadline of Dec. 15.
December 29, 2003
Indiana Law - Expand Sex Offender Registry to Include Murderers?
All sorts of alarm bells were going off that raised suspicions about David Edward Maust, the Hammond tenant suspected of killing three teenagers. Maust was acting suspiciously, neighbors and friends of the victims say. There also is the matter of Maust's criminal record. He murdered a 15-year-old Chicago boy in 1981. He served time in Texas for severely injuring a Galveston County child.Later in the editorial:
A 1986 report from Dr. Matthew Marcos of The Psychiatric Institute of the Circuit Court of Cook County said Maust "has a very long and significant history with multiple suicide attempts and homicidal activities."
It would be difficult for the neighbors to find out about Maust's background on their own, however, because there's no easy way for them to do so.Had he been a registered sex offender, it would have been a different matter. They could have followed up on their suspicions by going to one of the Internet sites that post names, photos and descriptions of registered sex offenders.
Legislators throughout the nation should start thinking about how to make this registry for violent criminals work. Each registry must not only track offenders convicted in that state but also link to those in other states as well.Here is the Porter County registry; I actually could not find Lake County's.
Porter County's sex offender registry, for instance, tracks not only the criminals living in that county but also those who work there. That's something to keep in mind while designing the violent criminals registry. Porter County's sex offender registry is far superior to that of Lake County, which links to an Indiana Sheriffs Association site that cannot be search geographically, which is what neighbors need.
As Maust's case shows, the ability to keep tabs on violent criminals in our communities, regardless of where they live or were convicted, is necessary.
A day earlier the NWIndiana Times ran this story that began: "David Edward Maust had a criminal history of strangling and stabbing young boys, but because he was never convicted of molesting them, his Hammond neighbors knew nothing of his violent past."
This story in the Chicago Tribune from Dec. 16 reports that Illinois is considering such a law. And this story from today's (12/29/03) Boston Globe reports that both Illinois and Indiana are considering expanding their registries to include murderers. A quote:
Now, officials in both Indiana and Illinois, where Maust spent 17 years in prison for killing a teenager, are considering whether those states should create a registry for convicted murderers. Montana has one for violent offenders, including murderers, but it appears no other state has followed suit.
"I don't understand our laws," said Raganyi, the uncle of James Raganyi, 16, one of the slain boys. "The justice system has me completely baffled now."
Last week, two Indiana representatives, Robert Kuzman and Linda Lawson, Democratic leaders of House Judiciary committee, announced they would introduce a bill or an amendment next month to change the sex-offender registry law to include murderers.
For a good survey of sex offender directories, see this article, titled "Megan's Law," in the excellent LLRX.com. Indianapolis WISH TV did a feature on Indiana's law earlier this month, titled "Compliance spotty for sex offender registry." A taste:
I-Team 8 found compliance levels literally all over the map. Shelby County has photos for all 67 of its registered offenders. Morgan County still doesn't have any of its offenders online yet and while Hamilton County has 109 offenders listed there's not a single photograph posted.The story includes links to a WISH-TV survey of compliance by 33 counties in central Indiana.
Links to earlier Indiana Law Blog entries regarding the Indiana sex offender registry may be found here.
December 28, 2003
Law - The Election of 1800 and the Slave Vote
Garry Wills' latest book, Negro President, examines the election of 1800, which Thomas Jefferson won over John Adams in the Electorial College. As Wills explains in an article in the New York Review of Books (which appears to have been adopted from his forward to the book itself):
If real votes alone had been counted, Adams would have been returned to office. But, of course, the "vote" did not depend solely on voters. Though Jefferson, admittedly, received eight more votes than Adams in the Electoral College, at least twelve of his votes were not based on the citizenry that could express its will but on the blacks owned by Southern masters. A bargain had been struck at the Constitutional Conventionone of the famous compromises on which the document was formed, this one intended to secure ratification in the South. The negotiated agreement ... decreed that each slave held in the United States would count as three fifths of a person in setting the members of the Electoral College.The result of this compromise was that slaveholders had additional votes, three for every five slaves they held.
The Federalists predicted that this Negro "representation" would grow year by year so long as the federal ratio was retained. This prospect is what they meant by "the slave power." They did not mean the power that plantation owners exerted over their black slaves, or the power slaves might someday use in retaliation. They meant the power that slave states wielded over nonslave states. The Federalists said that the plantation men were their masters. As William Plumer wrote in a public appeal to his New Hampshire constituents:The NY Times carried a review of Wills' book on Christmas Day. A quote:Every five of the Negro slaves are accounted equal to three of you.... Those slaves have no voice in the elections; they are mere property; yet a planter possessing a hundred of them may be considered as having sixty votes, while one of you who has equal or greater property is confined to a single vote.Wills explains that the three-fifths clause affected not only the election of 1800, but it gave disproportionate voting power to the South. * * *
On crucial matters, when several factions were contending, the federal ratio gave the South in Congress a voting majority. Without the federal ratio as the deciding factor in House votes, slavery would have been excluded from Missouri; Andrew Jackson's policy of removing Indians from territories they occupied in several states would have failed; the 1840 gag rule, protecting slavery in the District of Columbia, would not have been imposed; the Wilmot Proviso would have banned slavery from territories won from Mexico. Moreover, the Kansas and Nebraska bill outlawing slavery in Nebraska territory and allowing it in Kansas would have failed. Other votes were close enough to give opposition to the South a better chance, if the federal ratio had not been counted into the calculations from the outset. Elections to key congressional posts were affected continually by the federal ratio, with the result that Southerners held "the Speaker's office for 79 percent of the time [before 1824], Ways and Means for 92 percent." * * *
Even when it did not affect the outcome of congressional votes, it dominated Democratic caucus and convention votes, since the South had a larger majority there than in the larger body. This meant that it guaranteed presidential nominations that would be friendly to the slave interest. When control of the caucus seemed to be slipping from Southern hands, a two-thirds requirement for nominating candidates gave them the power to veto men unacceptable to them. The federal ratio was, therefore, just the starting point for seizing and solidifying positions of influence in the government. It was a force supplemented by other maneuvers.
Jefferson's reliance on the slave count did not go unobserved by the party he ousted. In New England the Federalist Timothy Pickering labeled Jefferson a Negro president, elected by Negro electors and Negro Congresses. Or as one Boston newspaper put it in 1801, the sage of Monticello, famous for humbly walking through Washington's muddy streets to his own inauguration, had ridden "into the temple of Liberty on the shoulders of slaves."Garry Wills appears on BookTV tonight (12/27/03) at 11:00 p.m. discussing his book. The appearance was also broadcast yesterday evening. Presumably starting tomorrow you will be able to view the show online via this link (via the word "Watch" which will appear right under the book title).
How could the Constitution set the apportionment of delegates to the national legislature, Mr. Wills asks, so as to allow a man to gain 300 extra votes in Congress by owning 500 human beings? His answer recovers for modern readers the intensity of the debate over the three-fifths clause, as when Gouverneur Morris declared at the Constitutional Convention, "The admission of slaves into the representation, when fairly explained, comes to this: that the inhabitant of Georgia and South Carolina who goes to the coast of Africa and, in defiance of the most sacred laws of humanity, tears away his fellow creatures from their dearest connections and damns them to the most cruel bondage, shall have more votes in a government instituted for protection of the rights of mankind than the citizen of Pennsylvania or New Jersey who views with a laudable horror so nefarious a practice."
Law - 1789 Alien Tort Act Under Review
What is this dangerous act? The commotion concerns a hitherto obscure provision in the law that created our federal court system, the Judiciary Act of 1789. It reads: ''The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.'' In other words, foreigners can sue in US courts for violations of international law. It is a potentially powerful weapon. And now, more than two centuries after its adoption, the Supreme Court has finally agreed to rule on its use.Linda Greenhouse of the NY Times had a column on the challenges to this law on December 1. Here is some of what she wrote:
For two centuries, the Alien Tort Statute received little attention, and much about its origins and even its name is obscure. It is sometimes called the Alien Tort Act or the Alien Tort Claim Act. A 1980 decision by the federal appeals court in New York allowed a Paraguayan family to sue a Paraguayan police official in Federal District Court in Brooklyn for a kidnapping and murder that occurred in Paraguay and gave the old law a new visibility. It was not until the mid-1990's that the law was used to sue corporations.An interesting perspective on the use of the Alien Tort Act is found in this well-worth-reading report, titled "A New Moral Compass for the Boardroom," that appears in the current issue of Corporate Board Member Magazine. The premise pf the report:
The administration's basic argument is that the law provides jurisdiction in a general sense but conveys no specific rights that can be enforced by a private lawsuit. The lawsuits on behalf of those being detained by the United States at Guantánamo Bay, Cuba, included allegations under the Alien Tort Statute, but that question is not before the Supreme Court in the detainees' appeals that the justices accepted three weeks ago.
Directors are broadening the horizon of their responsibilities at a growing number of successful companies. But sorting out exactly what to do is not easy. Balancing obligations to workers and shareholders, deciding whether or not to operate in countries that tolerate child labor, assessing a fair share of environmental-cleanup costsquestions like these can tax and divide even the best-motivated businesspeople. Directors thoughts on such topics, as expressed to Corporate Board Memberplus the thinking of academics, ethicists, and governance activistspoint the way toward a new moral compass for corporations.About halfway through the review is this paragraph (emphasis added):
Directors are being bumped and prodded from three directionsexternal pressures, personal values, and changing definitions of corporate successto increase their focus on social responsibility. There is a hugely heightened public scrutiny,‰ notes Steven Shapiro, executive vice president and corporate secretary of First Midwest Bancorp in Itasca, Illinois. That ratchets up the bar, because now, besides asking themselves all the usual questions, directors are asking themselves, ŒDo we want this on the front page of the New York Times or the Wall Street Journal?‰
Myanmar has some of the worst labor conditions on the planet and the lowest wages, about 4 cents a day. Building that 39 milesat an estimated cost of $1.2 billionhas generated all kinds of horror stories: of men beaten into working on the project, of women raped by its military guards, of families forcibly relocated to make way for it. EarthRights International, a Washington, D.C.-based group run by Katie Redford, wants to hold Unocal, a 28% investor in the pipeline, accountable for the atrocities directly connected to it. Redford, 35, is working on behalf of a dozen Burmese villagers who are using a 1789 law called the Alien Tort Claims Actwhich some people say was originally intended to fight piracyto sue Unocal in the United States. The law says that foreign citizens can claim violations of international law in U.S. courts. Other plaintiffs are employing it to sue ChevronTexaco for alleged abuses in Nigeria, DynCorp for alleged misdeeds in Ecuador, and Occidental Petroleum for alleged illegalities in Colombia. Unocal maintains that the Yadana project has brought significant benefits in health care, education, and economic opportunity‰ to the area. The company says that it and the other project investors do not defend the actions and policies of the government of Myanmar,‰ but that it believes that engagement is by far the more effective way to strengthen economies and promote more open societies.‰Finally, Charles Lane of the Washington Post also wrote here about this law on December 1. Some quotes:
Though rarely invoked throughout most of U.S. history, the law has been interpreted by several federal appeals courts since 1980 to open the federal courts to suits for monetary damages based on alleged violations worldwide of internationally recognized human rights norms.
Among the defendants who have been sued are Radovan Karadzic, the Bosnian Serb leader allegedly responsible for mass killings of Muslim civilians, and Unocal, the petroleum multinational, which is fighting a lawsuit over its alleged collaboration with the use of forced labor by Burma's government on a natural gas pipeline.
That interpretation of the Alien Tort Act is vigorously defended by human rights and environmental activists, who see it as a powerful tool for reining in the unlawful conduct of individuals, companies or government officials that might otherwise escape justice. * * *
The cases are Sosa v. Alvarez-Machain, No. 03-339, and U.S. v. Alvarez-Machain, No. 03-485, consolidated. Oral argument is to take place in the spring, and a decision is expected by July.
December 27, 2003
Indiana Decisions - More on gun ruling
Today's Indianapolis Star has this editorial, headlined "Blame gun dealers, not manufacturers," reacting to the Indiana Supreme Court's ruling of 12/23/03 that Gary may proceed with its 1999 lawsuit against gun manufacturers and dealer. The conclusion:
Unscrupulous dealers may be to blame in part for the city's murder rate, but it makes no sense to indict an entire industry. A bill pending in Congress could make the Gary court case irrelevant. Legislation that would protect companies that make, import or sell guns from civil claims filed by shooting victims has passed the House and appears headed for approval in the Senate.Indiana Law Blog coverage of the decision may be found here and here (or simply scroll down this page).
Unfortunately, the bill goes too far in protecting dealers as well as manufacturers. The nation is confronted with two extremes on this issue. Congress is on the verge of exempting the industry from lawsuits; cities like Gary, meanwhile, are targeting manufacturers as well as dealers. A middle ground is desperately needed.
December 25, 2003
Law - More on redistricting
"The Supreme Court Considers Sophisticated Political Gerrymandering: Are Voting Rights Preserved If Boundaries are Drawn to Ensure Particular Election Outcomes?" So asks the title of this lengthy opinion piece today at Findlaw.com. Authored by Edward Lazarus, the article begins:
In Isaac Asimov's science fiction classic, The Foundation Trilogy, the science of statistics has become so advanced that the future of government and society can be predicted with terrifying accuracy. Although free will may exist at the individual level, it effectively disappears in every circumstance of group behavior, because the ultimate outcome of all group conduct can be known by statisticians in advance.News of the Texas redistricting case. The trial before a federal three-judge panel has concluded and a ruling is theoretically possible as soon as next week. Here are two stories from the San Antonio Express, this one published 12/25/03, and this one 12/24/03. Here is a Houston Chronicle story from 12/24/03. And here is the Austin American-Statesmen piece from the same date.
Life is once again imitating art. Armed with the data-manipulating power of new computers, political operatives can now effectively predetermine the results of most elections. All they must do to accomplish this, is to re-jigger the boundaries of electoral districts to include certain voters and exclude others.
This improved predictive capability opens the door to at least two kinds of mischief. First, it allows the political party that controls a state legislature at the time of redistricting to reconfigure electoral districts to lock in its partisan majority. Second, it allows incumbent legislators an ability to design safe seats for themselves and, thus, preclude meaningful competition in subsequent elections
Does the Constitution prohibit this kind of outcome-determinative political "gerrymandering" - as the practice is known? That is the question now pending before the U.S. Supreme Court, in the case of Vieth v. Jubelirer.
During the December 10 oral argument in the case, the Justices showed little inclination to curb the practice. However, it would much better for our democracy if they would do so. A pre-decided election is perilously close to no election at all -- no matter who is favored. And incumbents, in particular, already have such a great advantage, that their attempts to amplify that advantage through gerrymandering ought to be especially troubling to us all. [my emphasis]
Stewart Taylor of National Journal has this opinion piece in The Atlantic Monthly, dateline 12/23/03, titled "Should the Supreme Court Clean Up Its Own Mess? The justices have destroyed all the rules, customs, and traditions that used to restrain gerrymanders."