Check out the new Indiana Board of Law Examiners Website. It contains everything you want to know about The Bar Exam; Admission of Out-of-State Attorneys; Forming Professional Corporations, Limited Liability Companies and Limited Liabilities Partnerships; Legal Internships; and more.
Edward Tufte is the author of a number of acclaimed books, including: Visual Explanations, Envisioning Information, The Visual Display of Quantitative Information, and Data Analysis for Politics and Policy. Today the web log Living Code: biology & information has an excellent piece (access it here) on Tufte's analysis of the evidence in the Columbia shuttle disaster. Here is a quote:
His books are wonderful works that help you understand the principle behind accurate data presentation. For example, he demonstrated how the data explaining the O-ring problems in Shuttle rockets was actually there to see but presented in such a horrible fashion as to be virtual invisible. Well, he has done a similar analysis of the Boeing presentation to NASA regarding the foam impact on Columbia. He hates the way Powerpoint helps mangle scientific data and especially eschews the use of bullet points. I feel the same way. In a scientific presentation, the more bullet points, the less meaningful data. His examination of an important slide the Boeing engineers used to buttress their belief that the foam impact would not hurt the shuttle instead demonstrates that they should have been worried.My own favorite example of Tufte's work can be found here. Tufte discusses how to present new information on cancer survival rates in a meaningful manner. First, he shows how the material was presented in the newspaper. Later, in the third table, Tufte shows a really striking way to convey this otherwise indigestible material. See for yourself! (In the remainder of his article he shows how Powerpoint makes a total mess of the same data.)
Indianapolis, Indiana, home of the NCAA. The NY Times has a story today fronting its Sports Section, titled: "NCAA's Proposal to Make the Grade May Not Make the Cut." Access it here. The introductory paragraphs talk about new NCAA President Myles Brand's plan "to punish or reward college teams according to academic performance. His initiative may prove to be the most revolutionary move the NCAA has made in at least half a century." Later the story talks about one of the NCAA's most important legal decisions:
The genius of the NCAA was in transforming players into student-athletes, and the man who did it, as he admitted in his 1995 book "Unsportsmanlike Conduct," was the former NCAA president Walter Byers. In fact, Byers was quite candid about inventing the student-athlete designation to protect the NCAA's interest when an injured football player sued his college for worker's compensation.Update: I can't resist adding this link to the "graphic of the day" from the Edward Tofte site mentioned in the entry just above! See also this story, "With the top four seeds failing at graduation, the NCAA looks at changes," from the Oklahoma Daily.
Stop calling them players, Byers told college sports publicists in a widely circulated memo. Call them student-athletes. The distinction is subtle but all-important: a player, particularly one who qualifies for worker's compensation, is an employee, while a student-athlete is an amateur.
City of South Bend v. Kimsey, et.al. (Ind.S.Ct. 1/15/03).
Boehm, J.
In a much discussed opinion issued earlier this year, the Indiana Supreme Court ruled:
Article IV, Section 23 of the Indiana Constitution prohibits special legislation where a general law can be made applicable. We hold that this provision is violated by a 1993 law applicable only to St. Joseph County and permitting a majority of landowners in an affected area of that county to block annexation by a municipality.
Here is a quote from an Indianapolis Star story dated 1/17/03, headlined "Court challenges hundreds of Indiana laws":
The state's highest court ruled Wednesday that an annexation law that applies only to St. Joseph County violates the Indiana Constitution's prohibition against special or local laws. Legislators routinely circumvent this by writing bills listing only populations, and not the name of the city or county. But the Indiana Supreme Court, which has sanctioned this practice in earlier decisions, said that isn't good enough anymore. Yet the justices offered little guidance on how lawmakers should proceed.To the contrary, however, this decision builds upon the Court's earlier rulings, and provides an explicit set of criteria to be used in crafting future legislation.
The constitutional provision at issue is Article IV, Section 23, which provides the following limitation upon the Indiana General Assembly:
Section 23. In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.The Court states that the terms “general law” and “special law” have widely understood meanings and cites Black’s Law Dictionary for the following definitions: A statute is “general” if it applies “to all persons or places of a specified class throughout the state.” A statute is “special” if it “pertains to and affects a particular case, person, place, or thing, as opposed to the general public.”
[Access all of Article IV here.]
The Court points to its decision in Williams v. State, (Ind. 2000), in which it introduced a two-step test to be used in analyzing a law under Article IV, Section 23:
(1) Is the law is general or special?To determine whether special legislation is “constitutionally permissible” (as in 2, above), the ruling also makes use of its test in Collins v. Day (Ind. 1994), which identified two requirements that must be met in determining whether legislation that singles out one person or class of persons to receive a privilege or immunity not equally provided to others withstands the strictures of the Art. I, Sec. 23 “privileges and immunities” clause:
(2)(a) If the law is general, is it applied generally throughout the State? (b) If it is special, is it constitutionally permissible?
(1) It must be based upon distinctive, inherent characteristics which rationally distinguish the unequally treated class, and the disparate treatment accorded by the legislation must be reasonably related to the distinguishing characteristics.In applying the Collins privileges and immunities test, the Court states:
(2) Any privileged classification must be open to any and all persons who share the inherent characteristics which distinguish and justify the classification, with the special treatment accorded to any particular classification expended equally to all persons.
[Access all of Article I here.]
Article IV issues, though distinct from Article I considerations, remain closely related to them. If special legislation passes the first test of Collins, i.e., the legislation is reasonably related to “inherent characteristic” of the affected locale, and it also passes the second by applying wherever the justifying characteristics are found, then the statute necessarily passes Article IV muster because the presence of those “inherent characteristics” means a general law cannot “be made applicable.” Otherwise stated, if the conditions the law addresses are found in at least a variety of places throughout the state, a general law can be made applicable and is required by Article IV, and special legislation is not permitted.In the instant case, the Court concluded (1) the legislation here was “special” and (2) it was not constitutionally permissible special legislation because no facts have been provided to show why a general law may not be made applicable (“In short, we are directed to nothing in the record and no relevant facts susceptible of judicial notice that are unique to St. Joseph County. Accordingly, this legislation is unconstitutional special legislation.”):
[emphasis added]
Despite its facial generality, this Court finds that subsection (g) does, and was intended to, specifically target St. Joseph County. Thus, subsection (g) is special legislation. Although reasons have been advanced to explain why annexation in St. Joseph County must be handled differently than it is in every other county in the state, no facts supporting those reasons have been set forth in the record by the proponents of the special legislation, and we are directed to judicial notice of none. Therefore, under Article IV, Section 23, the application of subsection (g) to prevent the City of South Bend from annexing the Copperfield area is unconstitutional.The majority opinion disagrees with J. Sullivan’s dissent describing “this Court’s Article IV, Section 23 precedent as uniformly deferring to the legislature’s judgment. ... [The decisions referred to] plainly found that the issues presented by an Article IV, Section 23 challenge were within the province of the judiciary to decide. Indeed, that is what judicial review means.”
Justice Sullivan in substance argues for a doctrine of nonjusticiability of Article IV issues. But for over seventy years precedent has uniformly rejected that view. We think Article IV presents a powerful case for judicial enforcement of a constitutional provision. ... [T]he appropriateness of entertaining claims of unconstitutional special legislation is fortified by the express constitutional provision found in Article IV, Section 23. Moreover, both the 1816 and 1851 constitutions were adopted at a time when judicial review of legislation for conformity to constitutional text was well established. As we held in Dawson v. Shaver, 1 Blackf. 204, 206-07 (1822), citing Marbury v. Madison, 5 U.S. 137 (1803): “The task is delicate and unpleasant, but the duty of the Court is imperative, and its authority is unquestionable, to declare any part of a statute null and void that expressly contravenes the provisions of the constitution, to which the legislature itself owes its existence.” This case adds no new doctrine to the analysis of Moseley, Hoovler, and Williams, and the legislature has taken no steps to eliminate Article IV, Section 23 in the years since those cases were decided. Because “special legislation” doctrine derives solely from Article IV, Section 23, it can readily be repealed if two sessions of the General Assembly approve that decision and the voters ratify it. We neither advocate nor oppose the wisdom of Section 23. Rather, the Constitution makes that decision for us.As indicated above, in reaching its conclusion, the Court relied upon its analysis of three relatively recent decisions, Williams (Ind. 2000), Indiana Gaming Comm. v. Mosely (Ind 1994) and State v. Hoovler (Ind. 1996). Although each of the statutes involved in these three cases was found by the Court to be special legislation, in each case the legislation was upheld by the Court. The difference is that in the instant case, the Court found that the special legislation at issue did not meet the tests used in these prior decisions.
Although there is a lot more to be mined from this decision, I will limit myself to one more quote.
We agree with the view that a statute with a population category is a special law if it “is designed to operate upon or benefit only particular municipalities and thus is essentially no different than if the statute had identified the particular municipalities by name.” City of Miami v. McGrath, 824 So.2d 143, 148 (Fla. 2002). Moseley, Hoovler, and Williams clearly implied that those pieces of legislation would have been permissible under Article IV if they had identified the affected counties by name. Indeed, Article IV issues will be simplified if that is done, accompanied by legislative findings as to the facts justifying the legislation’s limited territorial application. Legislation applying by its terms to areas with identified characteristics would be equally permissible under Article IV.In short, in drafting legislation, I take this decision to mean: (1) identify the locality that is the intended objective of special legislation by name, preferably, or by other identifying characteristic, and (2) include legislative facts that justify why general legislation can not be made applicable, if the identifying characteristics used have not accomplished this.
* * * * * In sum, if there are characteristics of the locality that distinguish it for purposes of the legislation, and the legislation identifies the locality, it is special legislation. The identification of the locality may be by name (“Tippecanoe County”), by the characteristic that justifies special legislation (a unique Superfund liability), or otherwise (population parameters that include only the locality).
[emphasis added]
Do you have comments? Let me know at: moddi@iquest.net
Today's (3/29/03) Indianapolis Star editorial calls for "Going whole hog against spill ills." Access it here. This follows on the Star's 3/27/03 story titled: "Manure spill kills fish for 5 miles: Farm is facing fines of up to $25,000 a day." Access it here. In another story today the Star reports: "Tougher EPA rules could stun state. More than 30 counties may face new air pollution control measures as 1997 limits are finally enforced."
The U.S. Supreme Court announced today that:
In light of the public interest in Grutter v. Bollinger and Gratz v. Bollinger, scheduled to be heard by the Court at 10 a.m. and 11 a.m. respectively on Tuesday, April 1, 2003, an audiotape of the U. S. Supreme Court oral arguments will be made available by the Court that day on an expedited basis shortly after the conclusion of both arguments at noon.As reported in the Detroit Free Press: "The court has done that only one other time: in Bush v. Gore, the case which decided the outcome of the 2000 presidential election. Typically, tapes of oral arguments aren't released until the end of the court term." Linda Greenhouse of the NY Times has a story here.
For comprehensive coverage of these University of Michigan affirmative action cases, use this link to the SCOTUSblog, which includes links to all the briefs, including the 60-some amicus briefs.
Peterson v. Borst (Ind.S.Ct. 3/19/03) [Access Appendices here]
Per curiam
This opinion begins:
At issue in this appeal is the validity of the redistricting plan for the City-County Council of the City of Indianapolis and of Marion County, Indiana (“Council”), which was adopted in the final judgment of the Marion Superior Court, sitting en banc. We reverse because we conclude that the Superior Court’s adoption of a plan that has been uniformly supported by one major political party and uniformly opposed by the other is incompatible with applicable principles of both the appearance and fact of judicial independence and neutrality. Because of the emergency nature of this appeal, we adopt a plan that we have drawn with the consideration of only factors required by applicable federal and State law, and without consideration of party affiliation or incumbency. This plan will be in effect for the May 6, 2003, primary election unless a different plan is adopted by ordinance prior to March 26, 2003.
This opinion concludes:
It is with great reluctance that we embark on resolving this politically-charged redistricting issue. We conclude, however, that when the Council and the mayor are unable to reach a suitable political solution, the Redistricting Statute calls on the judiciary to resolve the deadlock through a judicial decision, marked by the principles of independence and neutrality. The decision by the Marion Superior Court to adopt, by a close, party-line vote, a plan that has been uniformly supported by one major political party and uniformly opposed by the other, cannot be reconciled with both the appearance and fact of scrupulous judicial neutrality. Rather, a judicial decision calls for the adoption of a plan that considers only politically neutral factors required by federal and State constitutions and statutes.In-between is an important discussion of the judiciary's role in redistricting disputes. The 1969 Univgov Act, which reorganized the governance of Indianapolis/Marion County, contains a "Redistricting Statute" that provides that the city-county legislative body shall, by ordinance, divide the whole county into 25 districts meeting specified criteria. IC 36-3-4-3. Subsection (d) provides for court review. In this regard, the Court writes:
If we remanded this case, we have no reason to doubt the Superior Court’s ability and willingness to follow our guidance on this issue of first impression in this State. However, due to severe time constraints involved, we have chosen instead to adopt a plan consistent with the principles we have set forth, subject to redrawing through an appropriate legislative process.
The Court’s plan was drawn with strict neutrality, without consideration of party affiliation or incumbency. The Court imposed neither the Borst Plan proposed by the Republican majority of the Council ... nor the Boyd Plan proposed by the Democratic minority....
For the reasons above, the judgment of the Marion Superior Court is reversed. The redistricting plan attached to and incorporated by reference into this opinion will govern the district boundaries of the Council unless and until a different plan is enacted. ...
This is the first time that the Redistricting Statute has ever been invoked, and none of the parties have called to our attention, and we are not aware of, any Indiana state court decisions resolving partisan redistricting disputes. Thus, we write on a clean slate as to the duties and obligations of the Indiana judiciary in such circumstances.The Indianapolis Star had a number of stories on the Court's decision, including those on 3/20/03 "Supreme Court redraws districts: Move creates 11 open seats on council and pits incumbents against each other," and 3/25/03 "Council map agreement is hopeless: Leaders call off meeting to craft deal; both sides seek new high court rulings," and an editorial on 3/22/03 "New council map is best for voters."
* * * * * Based on the unchallenged principle of judicial independence and neutrality, we hold that in resolving partisan redistricting disputes, Indiana judges must consider only the factors required by applicable federal and State law. We conclude that this was the intent of the legislature in providing both the criteria for district boundaries and the dispute resolution mechanism that it did. Whatever role politics may legitimately play in the decisions and maneuverings of the legislative and executive branches, if those branches cannot reach a political resolution and the dispute spills over into an Indiana court, the resolution must be judicial, not political. Thus, Indiana judges may not consider the partisan political consequences of redistricting plans because this is not among the constitutional and statutory factors that inform a judicial decision.
* * * * * A court called upon to draw a map on a clean slate should do so with both the appearance and fact of scrupulous neutrality.
* * * * * [W]hen faced with a politically polarized redistricting dispute like the one in this case, a court’s adoption of a plan that represents one political party's idea of how district boundaries should be drawn does not conform to the principle of judicial independence and neutrality.
* * * * * Having concluded that the Superior Court’s adoption of the Borst Plan cannot stand, we turn to the question of what to do next. If time were not of the essence and the administrative complexities of a 32-member court reaching a decision not so daunting, we would remand this matter to the Superior Court with instructions to redraw the district boundaries, with the aid of a master if the court found it necessary, considering only the factors required by applicable federal and State law. But time is of the essence. ... Given these time pressures, we find it appropriate and necessary to draw the district boundaries ourselves.
* * * * * In redrawing the district lines, we gave primary consideration to the following factors mandated by the Redistricting Statute: equality of population, compactness, and the prohibition against crossing precinct boundary lines. We also considered township lines, major rivers and thoroughfares, and school districts. These criteria were used as parameters for a leading computer program designed for redistricting. This program, in fact, was the same one used by both parties in this appeal. The program was used to draw a plan based solely on the identified criteria without consideration of party affiliation or incumbency. In fact, this Court had no data available on these political factors. A description by precinct of that plan is attached as Appendix A. A map reflecting the district boundaries is attached as Appendix B. Appendices A and B are hereby incorporated into this opinion by reference. In addition, maps of the Borst Plan and the Boyd Plan are attached as Appendices C and D, respectively.
The ideal population of each Council district is 34,418. The deviation from this ideal for most of the districts in the plan adopted by this Court is less than one percent, and none deviates by more than 1.8 percent. The attached Appendix E provides further statistical information about this plan. The districts are as compact as possible, given the goal of maximizing population equality and the mandate to respect precinct lines. In many instances, straight lines between districts were rendered impossible by the irregular and widely varied shapes and sizes of precincts. Nearly all of the irregular protrusions from one district into another resulted from irregularly shaped precincts. Just a very few irregularities were needed to maintain population balance. ... As a practical matter, rivers, thoroughfares, and school districts ended up playing a fairly minor role in the process because of the statutory requirement that precincts be used as the basic building blocks of districts and because we gave a higher priority to population equality and compactness.
Nothing in this opinion prevents the Council, subject to veto by Mayor Peterson, from redrawing these boundaries at any time under I.C. § 36-3-4-3(a). ...
Subsequent action. A copy of the Supreme Court's 3/27/03 order denying a peitition for rehearing and its orders denying a motion to modify deadlines and a motion to modify residency requirements may be accessed here.
Technology in the voting booth: The Washington Post has a story today (3/28/03) titled "New Voting Systems Assailed: Computer Experts Cite Fraud Potential," discussing new "foolproof" electronic voting terminals. "Under the new systems, voters touch the screen or turn a dial to make their choices and see a confirmation of those choices before casting their votes, which are tallied right in the terminal. Recounts are just a matter of retrieving the data from the computer again. The only record of the vote is what is stored there." And that is the problem, according to these experts. "Critics of such systems say that they are vulnerable to tampering, to human error and to computer malfunctions -- and that they lack the most obvious protection, a separate, paper receipt that a voter can confirm after voting and that can be recounted if problems are suspected."
Update: Interesting addendum to this in today's (3/29/03) Indianapolis Star -- a brief, easy-to-miss story concerning "one of the county's new electronic election machines" titled "Slating challlenge may be linked to partial printout", that reports, in part: "The machine's audit report, which apparently did not print fully, is not used to determine the vote, which is stored, retrieved and tallied electronically." Followup: However, in a 3/1/03 story the Star reports that in a subsequent hand recount no discrepancy was found: "'The bottom line is, the machines did exactly what they were supposed to do,' Marion County Clerk Doris Anne Sadler said of the county's new $11.1 million optical-scan machines."
Technology at War: Another Washington Post story headed "Soldier Toys Today, Civilian Toys Tomorrow," talks about duct tape in WWII, GPS in Desert Storm, etc. Read it here. Another Post story 3/29/03, found here, is titled "Computer Support Staff at Home Is Crucial To War Effort ." The NY Times had a good story 3/24/03 titled "Improved Tools Turn Journalists Into a Quick Strike Force." Read it here. And this (another Washington Post story), "Casting A Wider Net For World News," is a fascinating view at how the globalization of the news impacts viewpoints worldwide. The reporter, Leslie Walker, asks:
The key question is what people are finding online and whether it will ultimately influence their perceptions of war. Will the Internet bear out Marshall McLuhan's 1960s predictions of electronic media shattering the homogeneity of print-dominated culture and ushering in a return to diversity in a "global village"?Update: Here is a 3/29/03 story from the Post titled: "Computer Support Staff at Home Is Crucial To War Effort." Sample: "To a greater extent than any war before it, Operation Iraqi Freedom depends on an elite group of technicians, engineers and other specialists in the United States who are standing by 24 hours a day, seven days a week to assist the troops."
I think so. McLuhan wrote a lot about the participatory nature of electronic media and how profoundly technology affects the content it delivers: "The medium is the message." Increasingly, I am conscious of how the global computer network is starting to shape my understanding of the war as I read foreign news accounts on my computer and search Google News for information on facets that puzzle me most -- all while watching the live commentary from the Gulf via CNN on a TV set.
The Washington Post on 3/26/03 had an interesting story titled "States Seen As Lax on Database Security." According to the story, "Only 14 states, including Virginia, comply with federal mandates to help ensure the protection of computer systems that hold confidential information about millions of people." But you can rest easy, here is another Post story headlined: "Taxpayers' Online Data Protected, IRS Says: Filing Program Had Drawn Fire." And our ally Great Britain seems to have its own privacy problems, according to Wired News, which has this story titled "Blair Tagged as Privacy Threat."
In a series of decisions issued Tuesday, 3/25/03, the Indiana Supreme Court analyzed the interaction between, and the constitutionality of, two statutes governing lawsuits alleging injuries caused by products (IC 34-20-3-1), and special rules in asbestos cases (IC 34-20-3-2). The two statutes can be accessed here. And here is the main opinion, Allied Signal, et.al. v. Ott, by Justice Sullivan, C.J. Shepard and J. Boehm concurring. J. Dickson dissented in a separate opinion, with J. Rucker concurring.
[The Fort Wayne Journal Gazette ran an analysis of this case on 3/26/03. Access it here.]
The Court first looked at both IC 34-20-3-1 and 2:
... [T]he Indiana legislature has outlined the specific time requirements for at least some asbestos-related negligence actions in Section 2, a section distinct from the statute of limitations and period of repose for all other product liability actions outlined in Section 1. While product liability actions under Section 1 have a two-year statute of limitations and a ten-year statute of repose, asbestos-related actions under Section 1 enjoy a different timetable. When a product liability action qualifies under Section 2, there is no firm statute of repose. Rather, a lawsuit must be commenced within two years “after the cause of action accrues,” which is defined as “the date when the injured person knows that the person has an asbestos related disease or injury.” Sections 2(a) & (b).After analysis, the Court agreed with Defendants, limiting the application of Section 2: "We think the language used by the Legislature represents its conscious intent to subject to Section 2 only those persons who produce raw asbestos - 'persons who mine and sell commercial asbestos' - and leave those who sell asbestos-containing products within the ambit of Section 1."
The crucial language for our purposes arises in Section 2(d)(1). There the Legislature provided that Section 2 only applies if the defendant is a “person[] who mined and sold commercial asbestos." Defendants who do not fall within this classification are entitled to the protection offered by the ten-year statute of repose in Section 1. As such, Defendants argue vigorously that they are not “persons who mined and sold commercial asbestos”; the Otts argue that Defendants are.
Next, the Court addressed Otis' contention that, if only Section 1 was applicable, then that statute was unconstitutional under both Art. I, sec. 12 (... every person, for injury done to him .. shall have remedy by due course of law) and Art I, section 12 (privileges or immunities) of the Bill of Rights of the Indiana Constitution. The Court rejected Ott's efforts to make this case "virtually identical" to the Court's decision in Martin v. Richey (Ind. 1999), where the Court held that the application of a two-year medical malpractice statute of limitations was unconstitutional under Art. I, sec. 12 "when the plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations woul dimpose an impossible condition on plaintiff's access to courts and ability to pursue an oherwise valid court remedy."
The Court said "We think this analysis paints too broad a brush." Instead, refering to the decision in Jurich v. Garlock (Ind.Ct.App. 2001), the Court adopted Judge Barnes' framework of three contexts:
1. Where plaintiff was exposed to and injured by a product containing asbestos more than 10 years after the product's initial delivery. [The Court said the application of the statute of repose here would be constitutional under Art. I, sec. 12, citing earlier cases.]
2. Where plaintiff is injured by a product within 10 years of its initial delivery, but has neither knowlege of, nor an ability to know of, that injury until more than 10 years have passed. [See discussion below]
3. Where plainitff was injured by a product before the passage of Section 1. [After noting that this situation was unlikely to arise because a cause of action would have had to accrue before 7/1/1978, the Court said that a plaintiff's right to pursue a claim may in some circumstances be subject to changes in common law or statute.]
With respect to the situation outlined in #2, the Court ruled:
We hold that, with respect to asbestos claims under Section 1, a cause of action accrues at that point at which a physician who is reasonably experienced at making such diagnoses could have diagnosed the individual with an asbestos-related illness or disease. ... In this regard, we disapprove Judge Barnes's and the trial court’s formulations to the extent that they hold that a cause of action accrues when exposure to asbestos occurs even though a disease does not manifest itself until many years later. In our view, it is only when the disease has actually manifested itself (and therefore could be diagnosed by a reasonably experienced physician) that the cause of action accrues. Jurich, 759 N.E.2d at 1075. Thus, Martin is implicated only where a cause of action in fact accrues (i.e., a reasonably experienced physician could have diagnosed the plaintiff with an asbestos-related illness or disease) within the ten-year statute of repose, yet the potential plaintiff had no reason to know of the diagnosable condition until the ten-year period had expired.As for the privileges or immunties argument, the Court said: "[W]e find it unnecessary to determine whether the distinction is constitutionally permissible because the classification resulting from the distinction of which plaintiffs complain, as we have seen, works in favor of asbestos plaintiffs."
Based on the foregoing, the statutory scheme might be unconstitutional as applied to the plaintiff if a reasonably experienced physician could have diagnosed Jerome Ott with an asbestos-related illness or disease within the ten-year statute of repose, yet Ott had no reason to know of the diagnosable condition until the ten-year period had expired. We direct the trial court to examine this possibility on remand.
Finally, the Court examined its holding in Covalt v. Carey Canada (Ind. 1989).
In Covalt, this Court held that Section 1 did not apply to asbestos cases given the long latency periods for asbestos-related diseases and a resulting inability to discover the injury prior to the expiration of the period of repose. The rationale for the Covalt opinion was that the Court “[could not] say that the Legislature intended the ten year statute of repose to bar claims such as this one, where the injury is the result of protracted exposure to a hazardous foreign substance.” ... . The adoption of Section 2 renders that analysis obsolete.The Court concluded: "Having previously granted transfer pursuant to Indiana Appellate Rule 56(A), we now reverse the judgment of the trial court. We remand this matter to the trial court for further proceedings consistent with this opinion."
In addition, there are key factual differences between Covalt and the present case. Covalt involved a plaintiff who worked with raw asbestos. We stated in Covalt that the applicability of the holding in that case was limited to “the precise factual pattern presented,” which involved exposure to raw asbestos fibers. Thus, Covalt can be read as consistent with the effect of Section 2 in that it relieved asbestos plaintiffs from the statute of repose in a lawsuit against a supplier of commercial asbestos. To the extent that Covalt is inconsistent with today’s opinion, it is overruled.
The dissent of J. Dickson (J. Rucker concurring) begins with this paragraph:
I strongly disagree with the majority's decision to reverse the trial court's denial of summary judgment in this case. In particular, I believe that the majority is incorrect in: (1) limiting the statutory term "commercial asbestos" to mean only raw asbestos; (2) construing "mined and sold" contrary to legislative intent; (3) failing to find a violation of Article 1, Section 12, of the Indiana Constitution; (4) failing to find a violation of Article 1, Section 23, of the Indiana Constitution; and (5) overruling rather than following Covalt v. Carey Canada, Inc.
Today (3/26/03) the U.S. Supreme Court, in Brown v. Legal Foundation of Washington, upheld the use of income generated by interest on lawyers' trust accounts ("IOLTA") to pay for legal services for the needy. The issues were whether such use constitutes a taking by the State, and if so, what "just compensation" is due to the respondents. Read the entire analysis of this decision on the excellent law blog, SCOTUSblog. Access the decision itself here.
Update: Here is the 3/27/03 Washington Post coverage of the IOLTA decision. And here is LA Times law reporter David Savage's analysis: "Legal Aid Survives Challenge in Supreme Court." And the Linda Greenhouse story from the NY Times: "Supreme Court Backs Plan on Financing of Legal Aid."
The LA Times today (3/25/03) has a story titled "Rules Loosened for FBI Crime Database: The Justice Department removes a requirement that information be confirmed before being included. Change upsets civil liberties advocates." Access the story here.
The change to the 1974 U.S. Privacy Act was disclosed with an announcement published in the Federal Register. The Privacy Act previously required the FBI to ensure that information was "accurate, relevant, timely and complete" before it could be added to the system.The Federal Register document referred to in the above quote is found at 56 FR 14140-41. Access it here. Another story from today's LA Times, headlined "Justices Reject Challenge to Surveillance: High court refuses to intervene in a case involving government's expanded powers to wiretap, search people linked to terrorists" may be accessed here.
Update. The 3/26/03 LA Times has this story: "Secret Papers' Release Delayed: Bush extends review of classified documents, scheduled to expire in April, through 2006." Listen to the NPR Morning Editon story "Executive Order Delays Declassifying Documents" here. And here in c/net's News.Com, is a story headed: "Bush order covers Internet secrets."
Interesting lead editorial in today's (3/25/03) Indianapolis Star urging the Governor of Virginia to allow a DNA test to prove the guilt or innocence of a man executed in that state in 1992. The editorial is headlined "DNA testing needed to bring closure." The editorial concludes: "Virginia should not fear the truth. If Coleman didn't commit the crime, his friends and family members deserve to know it. And the state should want to know if the real murderer is walking around with impunity."
The Star joins a number of other newspapers in calling for the DNA testing. Check this 2/28/03 story from the Washington Post and its 3/5/03 editorial, titled "Why Not Know?"
Thanks to Howard J. Bashman of the very popular How Appealing, for mentioning The Indiana Law Blog yesterday (3/23/03) as "Interesting Law Blog of the Day."
And thanks to law professor Jeff Cooper from my own Indiana University-Indianapolis School of Law for mentioning me, also yesterday, in his law blog - Cooped Up, under the heading "New Hoosier Law Blog."
In the Matter of Anonymous (Ind.S.Ct. 3/4/03)
Per Curiam
The Court issued a private reprimand to two attorneys for violating the Rules of Professional Conduct for Attorneys at Law by advertising themselves as "specialists" when they had not been certified as such. Specifically, they placed an ad in the 2001-02 edition of a small, privately-owned directory service in NW Indiana, prominently including the words "Elder Law Specialists."
The Court states "In order for an attorney in this state to hold herself out to the public as a 'specialist,' the attorney must be certified as such pursuant to the provisions of" Rules 30, section 5 and 6 of Indiana Rules of Court - Rules for Admission to the Bar and the Discipline of Attorneys. Note: These Rules can be accessed here, then turn to pp. 64-65 to find sections 5 and 6.
The respondents were not certified as “Elder Law Specialists” pursuant to Admis.Disc.R. 30. Because the respondents advertised themselves as specialists when in fact they had not been so certified, we find that they violated Ind. Professional Conduct Rule 7.1(b) by using or participating in the use of a form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim. Within the non-exclusive list of such statements or claims is any statement or implication that “a lawyer is certified or recognized as a specialist other than as permitted by Rule 7.4.” ... A lawyer is not prohibited from communicating the fact that the lawyer does or does not practice in particular fields of law, but may not express or imply any particular expertise except as otherwise provided in Prof.Cond.R. 7.4(b). Prof.Cond.R. 7.4(a).
Today's NY Times editorial, titled "Invoking War to Ease Rules."
An excellent web log, called "LIVING CODE: biology & information" had a fascinating writeup posted March 13 about "using siRNAs to inhibit the production of the mutant protein involved in Huntington's." The writeup was inspired by this story "Gene therapy may switch off Huntington's" at NewScientist.com.
Use of computer-animated videos in the courtroom is featured in a LA Times story titled "Computer Artists Draw Interest From Attorneys: High-tech animation is becoming a popular tool in court cases. Critics say it 'Disney-ups' evidence." Read it here.
Yesterday (3/21/03) the 8th Circuit, in Missouri v. American Blast Fax, ruled:
We conclude that 47 U.S.C. § 227(b)(1)(C) [the Telephone Consumer Protection Act of 1991 (TCPA)],satisfies the constitutional test for regulation of commercial speech and thus withstands First Amendment scrutiny.
There is a substantial governmental interest in protecting the public from the cost shifting and interference caused by unwanted fax advertisements, and the means chosen by Congress to address these harms directly and materially advances the governmental interest. The statute is also narrowly tailored to create a reasonable fit with its objective. Accordingly, we reverse the judgment dismissing the claims asserted under § 227(b)(1)(C) and remand the case to the district court for further proceedings consistent with this opinion.As reported in the Washington Post yesterday (thanks to How Appealing for the link) in a story headlined "Court Rules Against Unsolicited Fax Ads": "The suit cited American Blast Fax's own claim boasting that it sent ads to 125,000 fax machines in St. Louis alone." Find the Post story here.
These three concepts and their interplay are a particular interest of mine. Today's (3/21/03) NY Times has a story headlined: "U.S. Ready to Rescind Clinton Order on Government Secrets." Access it here. A related 1/03/03 NY Times story, also by Adam Clymer, is titled "Government Openness at Issue as Bush Holds On to Records." And a 3/13/02 story headlined "Presidential Papers as Smoking Guns" can be found here. Update. The 3/22/03 Washington Post has this brief story. Also today the NY Times's Adam Liptak, in a story titled "How Much Freedom is Too Much", reviews Steven Brill's new book, After: How America Confronted the September 12 Era, wherein, as reported in the Times story, Brill calls for "a recalibration between freedom and security." 4/4/03 Update: Here is a 4/3/03 NY Times review of Brill's new book.
The Indianapolis Star has a lengthy article in this morning's paper on the federal New Source Review (NSR) rules, headlined "Air pollution rules have many fuming: New industry emission standards draw cloud of criticism, could have big impact on state." Access it here.
Microsoft is working on software to let you digitally preserve your entire life. Seriously. And it sounds somehow neat (al least to someone who keeps a web log ... ). The NY Times story begins: "SAMUEL PEPYS, the great English diarist, might have appreciated this invention. A small team of Microsoft researchers is devising software for an electronic diary that can keep track of a multitude of everyday details in a person's life - the e-mail sent, the family photographs taken, the phone calls made, the Web pages visited - in a single database." Read it here.
Indiana Family & Social Services Adm. v. Walgreen (Ind.S.Ct. 5/28/02)
Shepard, C.J.
To address a Medicaid shortfall, FSSA conducted a rulemaking to reduce the drug dispensing fee. The permanent rule, first published 4/1/01, was effective 9/28/01. While the permanent rule was in the pipeline, FSSA adopted an emergency rule. FSSA signed an emergency rule that was substantively identical to the permanent rule, effective 8/27/01.
Walgreens obtained a temporary retraining order to delay implementation of the emergency rule and sought an injunction against implementation of both rules. Following a hearing, the trial court granted the permanent injunction on October 9. The Supreme Court accepted jurisdiction over the ensuing appear to expedite a resolution and reversed the trail court's order of a preliminary injunction.
The challenge to the emergency was particular to the FSSA, but the challenge to the permanent rule reviewed several issues of general interest to all involved in Indiana administrative rulemaking.
Walgreen argued that FSSA's failure to obtain preadoption Administrative Rules Oversight Committee (AROC, an interim legislative committee) review pursuant to IC 4-22-2-46 invalidated the rule. The Court, however, stated: "This statute plainly governs only the conduct of AROC, which is not a party to this action. FSSA did not violate the statute by adopting the rule without AROC's review."
Re IC 4-22-2-19.5, which requires that to the extent possible, a rule minimize expenses to those affected and "achieve the regulatory goal in the least restrictive manner", the Court concluded that "FSSA's failure to offer evidence of any formal analysis to satify this statute does not invalidate the permanent rule."
Re the requirements of IC 4-22-2-28(b), the Court said that:
... after an agency has preliminarily adopted any rule with an estimated economic impact on regulated entities exceeding $500,000, it must submit the proposed rule to the Legislative Services Agency (LSA) so that LSA can prepare a fiscal analysis on the effect of compliance on the state and the regulated entities. The analysis must include an estimate of the proposed rule’s economic impact and a quantification of any unfunded mandate. The agency “shall consider the fiscal analysis as part of the rulemaking process.”
FSSA concedes that this was not done, but argues that this requirement only applies to rules that create unfunded mandates. This reading contradicts the explicit statutory language that requires “an estimate of the economic impact of the proposed rule and a determination concerning the extent to which the proposed rule creates an unfunded mandate ... .” IC 4-22-2-28(b) (emphasis added). FSSA also argues that the exclusive focus of the statute is increased regulatory burdens on businesses, and that this rule does not create such a burden. Again, however, nothing in the statutory language supports such a narrow construction.We agree with the trial court, therefore, that FSSA should have obtained an LSA fiscal analysis. The question then becomes, what is the proper remedy. Per IC 4-22-2-44, “A rulemaking action that does not conform with this chapter is invalid, and a rule that is the subject of a noncomplying rulemaking action does not have the effect of law until it is adopted in conformity with this chapter.” Before the permanent rule may take effect, therefore, FSSA must obtain LSA’s fiscal analysis.
Because the requirement does not attach until after preliminary adoption, FSSA need not go all the way back to square one. Rather, once it has obtained and properly considered an LSA fiscal analysis, it may resubmit the proposed rule to the Attorney General’s office and proceed toward permanent adoption should it so choose.
Bourbon Mini-Mart, Inc. v. Gast Fuel, et.al. (Ind.S.Ct. 2/14/03). Sullivan, J.
In this important decision, the Court addressed two issues regarding the retroactive application of Indiana's underground storage tank (UST) laws:
First, do the remedial provisions of Indiana’s UST laws in general and the Amended Statute in particular apply to contamination that occurred prior to its enactment? Second, is a party such as Mini-Mart entitled to use the contribution provisions of the Amended Statute to recover from third parties clean-up costs that were incurred prior to the amendment?
To the first question, the Court agreed with the Indiana Court of Appeals below and the SD Ind. (in The Pantry, Inc. v. Stop-N-Go Foods, SD Ind. 1991) that the Indiana UST law (including the amended statute) should be applied retroactively to contamination that occurred prior to enactment. As to the second question, the Supreme Court said:
We disagree with the federal court and the Court of Appeals and hold instead that the Legislature intended that an owner or operator be able to seek contribution from responsible owners and operators for the costs of remediation incurred prior to the effective date of the Amended Statute. ... There is no doubt that the Legislature intended to encourage owners and operators voluntarily to remediate contaminated sites. And we find, for three principal reasons, that the Legislature also intended the contribution provision to apply to pre-enactment response costs. ... Given the equitable principles of CERCLA, the legislature’s use of contribution as a remedy, and the general retrospective nature of CERCLA, we find that the Legislature intended the amendment to apply to pre-enactment incurred response costs.
We hold that Mini-Mart is entitled to seek contribution under the Amended Statute from Supplier for Supplier’s proportionate share, if any, of the costs of corrective action paid or undertaken in connection with the petroleum contamination, irrespective of the date on which such costs were incurred.
Interesting article excerpted by Nature News Service titled "Purple bugs freshen pig waste: Bacteria save nostrils from stench of swine" tells of using a new strain of the bacterium Rhodobacter to successfully reduce odor-related problems.
In a press release issued 3/18/03 and quoted below, Governor O'Bannon announced an interim appointment to the Office of Environmental Adjudication, the office charged with hearing state environmental appeals. Chief environmental law judge/director Wayne Penod has resigned, effective April 1, 2003. For more information about the agency, check the statute, IC 4-21.5-7, here, via the Indiana General Assembly website.
O’Bannon: Annette Biesecker to be interim director of environmental adjudication. Governor O'Bannon today announced that Annette S. Biesecker, chairperson of the Indiana Board of Tax Review, will serve as interim director of the Office of Environmental Adjudication. She will not leave her position at the tax review board. The Office of Environmental Adjudication is an independent agency that provides administrative review of decisions of the Indiana Department of Environmental Management. The current director, Wayne Penrod, is taking early retirement effective April 1. By law, Penrod's permanent replacement will be selected by the governor from names submitted by a four-person nominating commission composed of members appointed by the governor, Senate president pro tem, House speaker and chief justice. The governor has 90 days from April 1 to make the permanent appointment. “I’m grateful that Annette Biesecker has agreed to take on this temporary assignment so that environmental matters are not delayed,” O’Bannon said. “Her professional experience and her ‘can do’ attitude make her the ideal candidate to take on this important assignment.” Biesecker has been chairperson of tax review board since Jan. 1, 2002, when the agency was formed. The board provides administrative review of local property tax assessment decisions. She previously was chief counsel for the Department of Workforce Development from August 2000 until June 2001. Biesecker, a lawyer, has wide-ranging experiences in the law, having worked as a staff attorney for corporations; a criminal prosecutor in Indiana and New York; a staff attorney for the Legislative Services Agency; an administrative law judge for the Family and Social Services Agency; and a deputy attorney general in the government litigation section.
State Board of Tax Com. v. Ispat Inland (Ind.S.Ct. 3/6/03). Shepard, C.J.
The Indiana Tax Court, after rejecting a challenge to its subject matter jursidiction, enjoined the Lake Co. Bd. of Comm. from outsourcing a personal property tax audit to a third party contractor. Reversed:
Applying standard principles of statutory construction and administrative law, we hold that the Tax Court does not have subject matter jurisdiction to enjoin an audit being pursued by the assessor's contractor. We therefore reverse. ... Generally, two jurisdictional requirements must exist for the Tax Court enabling statute to apply. First, the case must arise under the tax laws of Indiana. Second, the must must be an initial appeal of a final determination made by the appropriate agency, the State Board in this case. ... The central issue in this case is whether the State Board issued a final determination. ... In effect, Ispat argues that the Indiana Code should provide for "interlocutory appeals." It is not the law at the moment. A final determination requires the completion of a two-part test, and Ispat has not satisfied the requirements. ... Under Indiana law, if a party is required by the Administrative Orders and Procedures Act to exhaust its administrative remedies before any agency prior to obtaining judicial relief of the agency decision, courts are completely ousted of subject matter jurisdiction to hear the case at all. A party is not entitled to judicial relief for an alleged or threatened injury until the prescribed administrative remedy has been exhausted. [citations omitted]
The U.S. Court of Appeals for the D.C. Circuit, in Sierra Club and NY Public Interest Research Group v. EPA, today (3/18/03) held:
The Clean Air Act [at section 307(f)] authorizes an award of attorney’s fees ‘‘whenever [the court] determines that such award is appropriate.’’ In this case, organizations that settled their Clean Air Act suit against the Environmental Protection Agency prior to adjudication on the merits move for an award of fees.
The EPA opposes the motion, arguing that only parties who obtain court-awarded relief may recover fees. Applying relevant Supreme Court precedent, we hold that the Clean Air Act, unlike statutes that authorize fee awards only to ‘‘prevailing part[ies],’’ permits awards to so-called catalysts—parties who obtain, through settlement or otherwise, substantial relief prior to adjudication on the merits. Because we find an award of fees ‘‘appropriate’’ under the circumstances of this case, we grant the motion.
A per curiam order of the D.C. Circuit issued 3/7/03 on a motion for attorney's fees under the same CAA section held: "A remand occasioned by an agency’s failure to respond to comments is a purely procedural victory for the petitioner and is therefore insufficient to support an award of attorneys’ fees under 42 U.S.C. § 7607(f)." Appalachian Power Co vs. EPA
The Boston Globe today has an editorial on DNA testing that concludes with the statement that Congress should craft "a DNA-testing package that, by speeding justice, will benefit both victims and the unjustly accused." Last week the Washington Post ran a news story on this plan to spend more than $1 billon on DNA analysis in criminal cases over the next five years, to eliminate a backlog of hundreds of thousands of untested genetic samples. Another aspect of this issue is illustrated by a story earlier this year from the NY Times headlined "Police Dragnets for DNA Tests Draw Criticism." And then there is this story from Sunday's NY Times, titled "You think DNA Evidence is Foolproof? Try Again."
Howard Bashman, author of the justly highly regarded law blog, How Appealing, is conducting a monthly series of interviews with judges of the various federal judicial circuits. Here is the link to his first two interviews, the March interview with Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit, and the February interview with Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Click here for information on how Mr. Bashman schedules the interviews.
Science, law, public policy, and theology intersect on this issue. Sunday's NY Times has a good survey article titled "Broad Movement Is Backing Embryo Stem Cell Research."
DNA turned 50 last month, or, more precisely, James D. Watson and Francis Crick devined the chemical structure of DNA 50 years ago. To commerate that event, the NY Times devoted its entire Tuesday Feb. 25, 2003 Science Section to mark the event. Access the stories here.
Today's Indianapolis Star has an article headlined "Deadline looms for state to meet new feedlot rules." Also of interest is an article that appeared last week (3/11/03) in the Washington Post titled "Groups Challenge EPA On Rules for Farm Runoff." The Star story refers to deadlines set by Judge Sarah Evans Barker (SD Ind). At the US DC site for the Southern District of Indiana you can access the relevant court documents, known as Save the Valley v. US EPA 2 (5 page order) and Save the Valley v. US EPA 3 (35 page opinion), both signed 9/17/02.
WSJ.com - Mossberg's Mailbox had a good answer to this question in a recent column:
A: A blog, short for Web log, is a type of Web site in which the owner posts frequent musings or reports about topics of interest. These postings are usually filled with numerous links to other Web sites of interest, including other blogs. It's a sort of instant, constantly updated, electronic journal and guide to other items of interest.
Here are two really interesting articles I've read recently. The first, "The Power of the Fourth", an article that appeared in the NY Times' March 9, 2003 Sunday Magazine, features the U.S. Court of Appeals for the 4th Circuit. The second, titled "Clerking for the Supreme Court", appears in the March 2003 issue of the DC Bar's Washington Lawyer. Six former clerks contributed to this story.
Welcome to the Indiana Law Blog. I am an attorney in Indiana and something of a computer geek. Several years ago I published a locally popular web column titled The Indiana Environmental Professional. Apparently I was somewhat ahead of the curve. Recently software has been developed that takes all the hassle out of doing such a daily column. So I've decided to publish again. My research shows that the best of this software is called Moveable Type; that is what I will be using here.
My plan is to focus in several areas. First, administrative law, mainly Indiana, but also federal insofar as it may be of interest here. This coverage will include some news of the Indiana agencies such as the Departments of Environmental Management (IDEM) and Natural Resources (IDNR) -- mainly administrative orders and court appeals. It will take a while to get this all up and running -- you can help by sending me news, particularly of actions that move from the administrative bodies to the court system. Indiana Court of Appeals and Supreme Court decisions of interest will be noted, as well as federal decisions. Again, you can help.
Second, other court decisions that I find of interest, on both the state and federal level. For instance, I find the developing concept of "federalism" by the U.S. Supreme Court to be worth following.
Third, interesting developments in science and technology, and their intersections with law. As those of you who follow intellectual property law know, technology is running well ahead of the law. And legislative efforts, such as the Digital Millennium Copyright Act (DMCA), have had unintended consequences.
My undergraduate major was in the biological sciences. Much of what I learned then is now outdated or just plain wrong. We are in the midst of a revolution in this area. With the unraveling of the genome, the sequences of adenine (A), guanine (G), cytosine (C) and thymine (T) that make up the genes can be modeled on the computer. Biology is the true new "hot area". I hope to provide brief comments on, and links to, some of the high points of this changing paradigm.
Why am I doing this blog? Partly because of the discipline -- in sharing information with you, I will of necessity be ordering it and preserving it so that I can find it easily again in the future. And because, although there are several outstanding law blogs out there that I find invaluable (check the links column), none cover the subject matter mix I've outlined above.