The Indiana Law Blog

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

"If These Walls Could Testify: A Famed Courtroom For Martha Stewart," is the headline to a nice feature this morning in the Washington Post on the history of "Courtroom 110":

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.

Indiana Law - Allow ex parte meetings with Indiana Utility Regulatory Commission?

This editorial today in the Indianapolis Star begins:

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.

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.

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:

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.

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.

Meanwhile, this editorial, titled "An Unncessary Offensive," on the combined Cincinnati Enquirer & Kentucky Post site, begins:

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

"City looking for ways to revive state curfew," is the headline to this front-page story this morning in the Indianapolis Star. Some quotes:

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.

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.

Access earlier Indiana Law Blog coverage here (or simply scroll down to Thursday).

Law - Illinois Supreme Court Rules Former Governor Could Commute 167 Death Row Sentences

As reported here this afternoon by the Chicago Tribune:

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.

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.

Access the Illinois ruling here.

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.
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.

Finally, for now, this story from the Lexington Kentucky Herald-Leader, headlined "Fine for sludge spill is reduced by 90%," begins:

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

"Illegal voting gear used in 3 counties: State election panel demands answers from company that sold the machines," headlines this story this morning in the Indianapolis Star. Some quotes:

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.

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.

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:

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.

[Update] The NY Tmes has this opinion piece today about the risks of electronic voting.

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. * * *

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.

[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:

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

"Daley fights gun-sales bill that would block city suit," is the headline to this story today in the Chicago Tribune. Some quotes:

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. * * *

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.

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.

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]

Gerald L. Stokes v. State of Indiana (1/22/04 IndCtApp) [Criminal Law & Procedure]

Walter McGill v. Jayne Franklin McGill (1/22/04 IndCtApp) [Family 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.

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.

And Linda Greenhouse, writing for the NY Times, reports:

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.

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 another CAA story, the Washington Post reports today in its business section:

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.

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.

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.

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:

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 ... .

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 Maryland Governor also has a line item veto, found at Article II, section 17(e):

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]

Donald Land v. State of Indiana (1/21/04 IndCtApp) [Criminal Law & Procedure]

Marcella Keith, et al. v. Pauanani Dooley, et al. (1/21/04 IndCtApp) [Estates & Trusts]

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 ADEC’s BACT decision in this instance lacked evidentiary support. EPA’s orders, therefore, were neither arbitrary nor capricious. The judgment of the Court of Appeals is accordingly
Affirmed.

Access earlier Indiana Law Blog entries here and here.

[Update] Here is early coverage from the LA Times (AP), as well as the NY times, and a detailed story from Reuters.

Environment - News re Indiana Landfills, Wetlands

The Carbondale, Illinois paper, The Southern Illinoisan, reported in this story today that the same investment company that owns the rights to several landfills in Illinois has:

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.

"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.

"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:

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.

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.

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.

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.

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.

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. * * *

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.

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."

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

As reported in this AP story carried in the Indianapolis Star earlier this week, "State panel approves new federal rule for largest livestock farms." Some quotes:

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. * * *

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.

A story today in the Muncie StarPress, headlined "Water pollution focus of dairy farm permit," reports:

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. * * *

"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.

This interesting story appeared earlier this week in Blackford-Warrick's Warrick News. The headline is "Local toxic waste site under scrutiny." Some quotes:

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. * * *

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.

[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."

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.

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."

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.

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

This interesting story today in the Munster NWIndiana Times, headlined "Steel firms: Tax shift necessary for survival," begins:

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.

Read earlier Indiana Law Blog entries on this law here, here and here.

Here is a column in RealtyTimes titled "Does RLUIPA Mean Houses Of Worship Get Anything They Want?"

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).

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.

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.

Indiana Decisions - Opinions released today

Robert Henke v. State of Indiana (1/15/04 IndSCt) Criminal Law and Procedure; Constitutional Law
Boehm, Justice

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

Boehm, Justice

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
Vaidik, Judge

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? * * *

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."

Charles Lane of the Washington Post writes here today:

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.

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

I haven't posted anything on biotech for a while, but this article in NewScientist.com is pretty incredible. Some quotes:

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. * * *

[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.

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."

Law - U.S. Supreme Court Today Affirms 7th Circuit Bankruptcy Ruling

Kontrick v. Ryan (02-819) affirms the 7th Circuit decision of 7/8/02, on an appeal from the ND Illinois, eastern division.

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
Baker, Judge

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. * * *

[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.

Victor & Maria Lepucki v. Lake County Sheriff's Department (11/14/03 (really) IndCtApp) Procedure
Kirsch, Judge

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."

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.

The Chicago Sun-Times headline to their coverage reads: "High court: Car not a 'castle'". Charles Lane writes here in the Washington Post:

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.

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.

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."

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.

Environment - Hog farms in the news; confined feeding

A guest column today in the Lafayette Journal&Courier by Terry Fleck, executive vice president of the Indiana Pork Advocacy Coalition, begins:

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. * * *

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.

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:

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. * * *

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.

Some quotes from the Dec. 29th AP story:

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

"Legislative Ethics Data Find Outlet On Internet," is the headline to this story today in the Washington Post. Some quotes:

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.

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. *