As reported here on April 24, the position of Director/Chief Environmental Law Judge of Indiana's Office of Environmental Adjudication is now open. Applications must be returned to the Office of Chief Justice Shepard no later than 4 p.m. on May 16. This full-time position is compensated at $59,500 per year, and its term expires upon resignation or removal for cause. For more details, you may access the April 24th Indiana Law Blog posting here. (Or you may simply scroll down this page until you reach it.)
A copy of the 5-page Application Form for the position of Director/Chief Environmental Law Judge of Indiana's Office of Environmental Adjudication may be reviewed here.
In a story in today's Indianapolis Star headed "Hearing today on abortion mandate: State law requiring in-person counseling before procedure has never taken full effect," (access the story here) the Star reports that:
Indiana is one of only a handful of states that require in-person counseling from a health care provider before a woman has an abortion. Mississippi, Utah, Louisiana and Wisconsin have similar requirements.An earlier Nuvo story headed "Seesaw for Indiana pro-choice" may be accessed here.But Indiana's law, passed in 1995, has never taken full effect because of court challenges. Since 1997, the counseling requirement has been met by phone.
After losing their bid to get a hearing before the U.S. Supreme Court, attorneys for providers obtained a temporary restraining order in March that blocks the law from taking effect. That order is due to expire Wednesday, setting the stage for today's hearing.
The Indiana statute at issue, IC 16-34-2- 1.1, is available here.
A 2/25/03 AP story reporting on the U.S. Supreme Court's denial of a hearing in the case of A Woman's Choice-East Side Women's Clinic v. Newman may be accessed here. The 9/16/02 opinion of the U.S. Court of Appeals for the 7th Circuit, reversing the 3/2001 U.S. District Court, S.D. Ind. opinion of Judge Hamilton, may be accessed here. (Note that the 7th Circuit opinion is 64 pages in total: Judge Easterbrook's opinion is 18 pages, Judge Coffey's concurring opinion runs from page 18 to 40, and Judge Wood's dissent runs from page 40 to 64.)
I have been unable to locate an Internet source for Judge Hamilton's opinion.
[Updated] Yesterday (4/28/03) the U.S. Supreme Court denied another abortion appeal:
The high court rejected a challenge to [South Carolina's] plan to catalog medical records from clinics and doctors who perform abortions. The court's action, taken without comment, ends a lengthy legal challenge that had kept the law on hold. South Carolina is the only state whose law allows regulators to see, copy and store abortion patients' medical records without stiff requirements that the information be kept confidential, said lawyers representing a clinic and outside medical organizations. "For every individual, having your private medical records kept confidential is important. In the abortion context, it's even more important," said Bonnie Scott Jones of the Center for Reproductive Rights * * *This report was from the LA Times, access the complete story here. Another story on this case can be found here, at Charleston.net. Neither story, howver, addresses the question of whether the South Carolina statute will be impacted by the new federal medical privacy regulations that went into effect last week. These regulations, which implement "the Health Insurance Portability and Accountability Act (HIPPA) -- curtail the disclosure of health information and allow people to file complaints with the Department of Health and Human Services (HHS) if they believe their records have been shared improperly." Washington Post stories about the HIPAA (or sometimes "HIPPA") regs may be accessed here and here. (For more on HIPPA, access this HHS page.)
Patient medical records ordinarily are a private matter, although there are exceptions. Doctors, hospitals and insurers can share information among themselves, and police or other authorities can seek records in criminal investigations, public health emergencies or, for example, when child abuse is suspected.
[Updated 4/30/03] It turns out Joan Biskupic of USAToday did briefly mention HIIPA in a story (access it here) yesterday: "Earlier this month, the confidentiality guidelines of the federal Health Insurance Portability and Accountability Act took effect. Aimed at limiting the disclosure of personal health information, the guidelines require health care providers to tell patients about their new rights and how their medical information will be used. The guidelines do not restrict the state gathering of medical information that was at issue in South Carolina."
In the Matter of Anonymous (Ind.S.Ct. 4/25/03)
Per Curiam
The Disciplinary Commission contended that, by communicating with the judge in connection with the restraining order without notifying the husband, Respondent violated Ind. Professional Conduct Rule 3.5 (b) which provides that: A lawyer shall not … communicate ex parte with [a judge] except as permitted by law.
In this attorney discipline case, the Commission contends that the respondent lawyer violated the ethical prohibition on ex parte communication with a judge when she sought and obtained a temporary restraining order without notice in a marriage dissolution case. While we agree with Respondent that notice is not necessarily required to obtain a temporary restraining order in a domestic relations case, compliance with the trial rules’ prerequisites to obtain an order without notice is required, even in domestic relations cases. We also write to detail the lawyer’s obligations when seeking a temporary restraining order without notice in a domestic relations matter. * * *The Rules of Professional Conduct may be accessed here; the Trial Rules, here.
In determining the appropriate sanction for Respondent’s misconduct, we acknowledge that we have never before explicitly said that temporary restraining orders in domestic relations cases are subject to the requirements of both T.R. 65(B)(2) and T.R. 65(E) and that Respondent's position on this issue is reasonable. As such, we impose no sanction for her failure to provide the court with reasons that notice should not be required. However, as noted above, even if we accepted Respondent's argument that restraining orders in domestic relations cases are subject only to the requirements of T.R. 65(E) and not T.R. 65(B), we would still find her guilty of misconduct for engaging in an ex parte communication with the judge without complying with the requirements of T.R. 65(E) in that she failed to allege that "an injury would result to the moving party if no immediate order were issued." For this misconduct, we find that the appropriate sanction is a private reprimand.
National Public Radio (NPR) has an interesting segment this morning about how some attorney legislators in Texas may be misusing their ability to obtain automatic "legislative continuances." Listen to the story here.
Wired News this morning has a story (access it here) discussing the technological and legal issues facing an effort at building an online:
. . . comprehensive, searchable image database of the tens of thousands of objects that are missing and presumed to be in the hands of professional art thieves. The Lost Iraqi Heritage project is a joint effort of over 80 universities, museums and individuals working to create a tool that law enforcement, customs officials and art dealers can use to prevent the sale and export of stolen objects. The group, which is coordinated by professors at the University of Chicago, includes the Archaeological Institute of America, University of California at Berkeley and the University of Michigan.
Today's Indianapolis Star contains a short AP story (access it here) about the IU trustees meeting in private to consider candidates to fill the position of president of Indiana University. Is there anything wrong with that under the state's Open Door Law? The answer appears to be no, as the story reports:
IU officials and the trustees' search consultant have insisted on secrecy, arguing that good candidates will be lost if their names are made public. State law allows government bodies to "receive information about and interview prospective employees" at executive sessions, those closed to the public. Trustees who argue in favor of secrecy point to an August 2001 Indiana Court of Appeals decision that broadens the actions that can be taken in executive sessions. The decision held that the Indiana Open Door Law does not prevent a government body from the practice as long as the decisions are ratified later in public.The Court of Appeals decision referred to is Baker v. Town of Middlebury (Ind App 8/6/01). Access it here. In Town of Middlebury the Court found that the Town had met the criteria required under the Open Door Act (IC 5-14-1.5, access it here) and specifically section 6.1:
In the case at bar, the Council’s discussion was held in a noticed executive session, the Council made decisions in that session as it is authorized to do by statute, and it instituted its decisions by an actual vote at the subsequent public session. There were no unauthorized private meetings or public announcements prior to the public session ... . emphasis added]
Finally, the Indiana Public Access Counselor has a very useful publication available on her state site. It is called Indiana's Public Access Laws: A Handbook, and it answers just about every question one could have about public access. (The City of Indianapolis also has a public access site - view it here.)
I just finished reading a very interesting article by Marci Hamilton, a law professor at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton represented the City of Boerne in Boerne v. Flores, where, as she reports in her article, the U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) "violated the principles of federalism and the separation of powers."
Now Congress has enacted the Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA) and Professor Hamilton is representing a number of cities across the country who are challenging it. Her article (which may be accessed here, via FindLaw) is titled: "How Congress Undermined the American Dream: The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods." Some quotes from the article:
Across the country, cases where religious landowners are seeking to get around residential zoning requirements abound. [After listing some examples, the article continues] Every one of these projects changes the residential quality of the neighborhood in which it is planned. That is because every one is inconsistent with the character of the neighborhood, and involves a dramatic increase in the intensity of the use of the property, far above normal residential usage. Traffic (both pedestrian and automobile), lighting, setbacks, height, bulk, noise, and parking are all elements that contribute to the degradation of residential character; each project would alter at least one, and often several, of these elements.An article written earlier this year by Professor Hamilton is also available via Findlaw (access it here). Titled "Struggling with Churches as Neighbors: Land Use Conflicts Between Religious Institutions And Those Who Reside Nearby," Professor Hamilton discusses the "changing nature of the way religious buildings and land are used in our country."The religious organizations' neighbors are fighting mad, and they should be. They were never asked whether they should have fewer property rights than their religious neighbors. Their interests apparently were never considered by Congress. And the people they normally hold accountable for zoning issues--mayors, city councils, and zoning boards--were kept out of the loop as well. * * *
[T]he unfairness of allowing religious groups to ignore zoning laws is plain. The federal government has floated the argument that RLUIPA is constitutional because it enforces constitutional guarantees, but the First Amendment has never guaranteed that religious landowners are to be treated better than their neighboring landowners. To the contrary, land use laws--even when they are applied to religious entities--have been subjected to rationality review under the Constitution, not the strict scrutiny mandated by RLUIPA.
There was a time when such buildings were solely "houses of worship," as many local codes still identify them. In other words, congregants met one day each week for religious services, making them ideal residential neighbors. But times have changed.As the Fifth Avenue Presbyterian Church dispute shows so well, these buildings are now being used far more intensively and frequently than they were when they were solely houses of worship. Now they are also being employed as homeless shelters, soup kitchens, senior or child day care centers, or schools.
These new uses generate a slew of negative secondary effects--traffic, noise, sanitation issues - that neighbors find burdensome, and rationally so. It is one thing to buy one's family home next door to a house of worship, and quite a different matter to buy one next door to a homeless shelter. When the one transforms into the other, it is reasonable for neighbors to be concerned.
The new issue of the Indiana Lawyer (April 23 - May 6, 2003) has a front page story headlined "Proper care required of gun owners: State Supreme Court's landmark opinion allows family to sue owners of gun used to kill son." You can access their story here -- it should remain available until their next issue comes out, May 6th.
However, if you are a daily reader of this Indiana Law Blog, you will have learned about this decision over two weeks ago, on April 8, 2003 (jump back to it here). The April 8th entry includes a link to a pdf version of the opinion itself.
The gun issue has been in the news nationally in recent days because Congress is considering legislation to protect gun makers from liability. As reported Thursday, 4/24/03 in an opinion piece in the Modesto Bee (access the story here):
When Congress returns from its Easter recess next week, it most likely will take action to absolve the nation's arms manufacturers from any responsibility for the death, mayhem and economic loss their products cause annually.The Balimore Sun had a comprehensive story 4/25/03 (access it here) on both the pending federal legislation and the lawsuits facing the gun industry:
With more than 33 lawsuits filed by cities, counties and states during the past five years, the gun industry is reeling from legal bills and the possibility of expensive damage awards. The industry also has been hit with lawsuits from individual victims or their family members, some of which have already resulted in jury verdict. On Monday, an Oakland, Calif., jury found a gun maker and its main distributor partially liable for an accidental shooting that left a 7-year-old boy paralyzed. The boy was hit in the chin by a .38-caliber bullet fired from a defective handgun a baby sitter was trying to unload. Damages have not been assessed.[Updated 4/28/03] Anna Quindlen has a powerful opinion piece in this week's issue of Newsweek about the pending Congressional legislation, titled "Tort Reform at Gunpoint." Access it here. She asks: "Ought the gun industry, of all businesses, be the only one to be exempted from exercising reasonable care to prevent injury to others?" She concludes:
The man who taught my kids everything they need to know about gun safety taught them a one-word mantra: redundancy. The gun is not put away loaded. But even if the gun is not loaded, you put on a trigger lock. And even if you put on a trigger lock, you put the gun in the gun safe. Layers of protection between them and an accident, them and a mistake, them and injury or death.
There used to be redundancy in the system, too. Good manufacturers. Good dealers. If not, sanctions. Even lawsuits. If the NRA manages to intimidate the Senate into making its industry the only one in the nation with blanket protection from most lawsuits, what will be the premium in building a safer gun, in taking care when selling one? Not much. And the message from Congress will be clear: it’s the NRA’s country. The rest of us just live in it.
The excellent law blog, How Appealing, quotes from and comments on an opinion from the Court of Appeals for the Sixth Circuit issued today (4/25/03) that includes this statement:
For all of the foregoing reasons, we join the many circuits that have explicitly disallowed the incorporation by reference into appellate briefs of documents and pleadings filed in the district court. Further, we have no hesitancy in applying our holding in the case before us. The Federal Rules of Appellate Procedure, the commentaries, and the published law of other circuits are sufficiently clear to put Stewart on notice that it could not properly incorporate into its appellate brief the materials filed in the district court.Read the How Appealing comments here.
The NY Times today has a lengthy human interest story (access it here) about a fellow who is the head (and only employee) of the newly founded Westchester County, New York's Department of Environmental Security:
County Executive Andrew J. Spano, who created the position and hired Mr. Gatto personally, said that he hoped to coordinate environmental safety countywide for properties in need of increased security after the Sept. 11 terrorist attacks. These include office buildings, parkland and the county airport, as well as its sewer system, treatment plants and transfer stations. In hiring Mr. Gatto, Mr. Spano said he hoped to begin consolidating security for areas long under the jurisdiction of many different departments. "I wanted someone who would keep a single focus on environmental issues from a law perspective and also protect the watershed from terrorism after 9/11," he said. "Ron knows the watershed inside and out, coming from the D.E.P., so it was an easy choice." Mr. Gatto reiterates what many environmentalists have claimed for years: that environmental enforcement in Westchester suffered because of piecemeal jurisdictions and agency overlap.
First off, be aware that the term "Supreme Court judges" in New York refers to county court judges, not members of that state's highest court (which is called the NY Court of Appeals). Today's NY Times has a story titled: "Investigation of Judge Touched Off Wider Inquiry." Access the story here.
A State Supreme Court judge in Brooklyn and five other men, including his former court clerk, a court officer and a divorce lawyer who frequently appeared before him, were arraigned yesterday on charges that they ran a bribery scheme to rig the outcome of divorce and child custody cases. Based on evidence developed in the case, prosecutors said yesterday that they would be convening a grand jury to investigate corruption in the nominating of Brooklyn judges. * * *Accompanying this story is a sidebar titled "How to Fix a Divorce: Prosecutors Spell It Out." Access it here.
Brooklyn district attorney, Charles J. Hynes, said some of the evidence in the case indicated that the entire system by which State Supreme Court justices are chosen to appear on the ballot in New York City, particularly in Brooklyn, was "nothing less than a sham" run by power brokers of the local Democratic organization. * * *
Upon learning that investigators had hidden a video camera in Justice Garson's robing room at the matrimonial court, in the Municipal Building on Joralemon Street, something state court officials said was unprecedented, Brooklyn's judges "flipped out," one lawyer said. They received only partial reassurance in a meeting called by Brooklyn's chief administrative judge, Ann T. Pfau, the lawyer said. "She told them that their offices weren't also being bugged," he said, "but that if there was anybody out there who's dirty, now would be a good time for them to come forward.
In addition, the NY Times story includes a link to a copy of the actual felony complaint (access it here). I took a look at it - you may want to do the same - it is presumably erroneously signed and dated 2004.
NY Newsday also has comprehensive coverage of the story - access it here.
As noted in our April 15, 2003 entry, the position of Director/Chief Environmental Law Judge of Indiana's Office of Environmental Adjudication is now open. The following press release was issued today:
Applications for environmental judge position now availableApplications for the Director/Chief Environmental Law Judge of Indiana's Office of Environmental Adjudication will be available starting on April 24 at the office of the Chief Justice Randall T. Shepard, Room No. 304, in the Indiana State House.
The statutory qualifications require each applicant to:
1.) Be an attorney admitted to the bar of Indiana;
2.) Have at least five years of experience practicing administrative or environmental law in Indiana;
3.) Be independent of the department of environmental management; and
4.) Be subject to all provisions applicable to an administrative law judge under IC 4-21.5 et seq. [access the statute here]Applications must be returned to the Office of Chief Justice Shepard no later than 4 p.m. on May 16. This full-time position is compensated $59,500 per year, and its term expires upon resignation or removal for cause.
The nominating panel, who will submit three names to Governor Frank O'Bannon for selection, consists of Chair Ernest E. Yelton, Clay Circuit Court; Senator Beverly Gard, Greenfield; Representative James Bottorff, Jeffersonville; and Miriam Dant, Baker & Daniels. Questions may be answered by any of the panel members.
This morning's NY Times has a major front-page story (access it here) reporting that an agreement to create a national asbestos trust may be near:
Companies, insurers, unions and Democratic and Republican senators are nearing an agreement in principle to end all asbestos lawsuits and instead pay people with asbestos-related diseases from a national privately financed trust, according to people from all sides who have participated in the talks. The trust, which would be subject to approval by Congress and President Bush, would pay more than $100 billion to hundreds of thousands of asbestos victims over the next 30 years. It would stop the flood of asbestos lawsuits, 200,000 in the last two years alone, that have strained businesses and the court system. It would be the second-largest lawsuit settlement ever, exceeded only by tobacco companies' agreement in 1998 to pay states $246 billion for their Medicaid spending on victims of cigarette smoking. ***
Unlike the fund Congress created to compensate victims of the Sept. 11 attacks, an asbestos trust would not allow people to opt out and sue instead. All new and existing claims would be settled through the trust, which would largely or entirely be financed by businesses and insurers, people involved in the talks said. Victims would receive payments more quickly, while businesses would avoid the risk of huge verdicts. And both sides would pay much less to lawyers, who now receive more than half of all the money spent on asbestos litigation, studies say.
Be sure to check out the two graphics that accompany the NY Times story: a chart showing how the cost of dealing with the problem has soared since 1982; and a chart on the cost to business. (Remember the NY Times now removes free access to the full-text of its stories after one week.)
Use the search box in the right column to seach this site for other entries on "asbestos".
[Updated 4/25/03] Another report (access it here) on the progress of the proposed accord, from today's Washington Post. Also see this story from the Sacramento Bee and don't miss the quotes from the president of Georgia-Pacific in this story from the Atlanta Journal-Constitution.
The Journal Nature has provided free access this week to a number of articles having to do with the DNA 50th anniversary. One, an article (access it here - note that there may be free registration requirement) on the sequencing of rice DNA, makes a good companion-piece to the article I mentioned earlier today on genetically engineered wheat. The Nature article is subheaded: "Sequencing the DNA of the world’s leading food crop was the easy part. Now comes the tricky task of turning our new knowledge of the rice genome into agricultural and economic gains." The article makes the point that "although enthusiasts for rice genomics remain confident that the investment in the rice genome will eventually yield a valuable harvest, ... those who were led by some of last year's headlines to expect an imminent agricultural revolution will have to learn to be patient."
And here is a real prize, Nature's special "Double helix: 50 years of DNA" FREE online issue, filled with fascinating articles, including "James Watson and Francis Crick's classic paper that first describes the double helical structure of DNA in April 1953."
[Updated 4/24/03] This morning's Washington Post has a story headlined: "Firm Fined for Spread Of Altered Corn Genes: Government Wasn't Told Soon Enough." Access the story here. The lead paragraph:
The nation's leading seed company was fined $72,000 yesterday for violating government requirements in testing experimental corn in Hawaii, the latest setback for a biotechnology industry struggling to comply with government rules.
[Updated 4/25/03] "Little Oversight of Altered Crops Beyond the Farm, U.S. Lacks System to Track Engineered Food, Report Says" is the headline in a Washington Post story today. Access it here. Mentioned in the story are the Pew Initiative on Food and Biotechnology and the Biotech Industry Organization.
Worth reading: An analysis (access it here) headlined "Tobacco's New Troubles: Profits, Sales Are Down, and Illinois Case May Open Way to More Lawsuits" published 4/22/03 in the Washington Post.
"The Heartland Wrestles With Biotechnology" is the headline to a lengthy and important story (access it here) published yesterday (4/22/03) in the Washington Post.
For the first time in its decade-long push to win acceptance of genetically altered crops, Monsanto Co. of St. Louis faces significant opposition from farmers. Across the northern Great Plains and neighboring Canada, skepticism toward a forthcoming Monsanto product, called Roundup Ready wheat, has solidified into a political movement. Some farmers are so worried they want their state governments to wrest authority from federal regulators and adopt formal moratoriums on the crop. * * *For a somewhat related story, today's NYT has a Marian Burros review of: "Marion Nestle's provocative new book, 'Safe Food: Bacteria, Biotechnology and Bioterrorism' (University of California Press, 2003)." (Access it here.)Roundup Ready wheat is emerging as a key test of whether the biotechnology industry can take charge of the destiny of a major crop used primarily as food, something it has yet to accomplish despite successes in other crops.
And the fight is becoming a prime symbol in another way, too. As genetic science creates opportunities to manipulate the plants and animals people eat, associated battles are migrating out of Washington. In the next few years, state and even local governments will confront new kinds of crops, as well as gene-altered animals and even a genetically engineered salmon. Some of these products require state permits before they can be commercialized, and many state and local governments will hear demands to keep them out. The new biology, in other words, is coming soon to state legislatures and county commissions across the land.
Today's Indianapolis Star story about Pohlmann Hog Farms is headlined: "Spill-prone hog farm agrees not to spread manure on land." Access the story here. Access a 4/23/03 Lafayette Journal & Courier story on the agreement here.
Access the 4/15/03 Indiana Department of Natural Resources' press release reporting that it is citing "Pohlmann Farms for damages of more than $230,000 to Little Sugar Creek" here.
Finally, you can access Hageman Realty's listing for Pohlmann Hog Farm here.
The Indiana Court of Appeals on Monday, 4/21/03, issued an important decision concerning regulatory takings. The case is Town of Georgetown v. Sewell, and it may be accessed here. The case is difficult to summarize, but here goes (paraphrasing from the opinon).
Subject property is located in Floyd County and in the late 60s and early 70s it was a landfill for the Town of Georgetown. The town board capped the landfill sometime in the early 70s. In 1985 Georgetown sold the property to Mr. Teeter. Georgetown placed no restrictions upon the use of the land. Teeter applied for and received both a septic system and building permit from Floyd County. He subsequently placed a mobile home on the subject property, where he lived for approximately three to four years.
In 1996, Teeter sold the property to the Hertels for $40,000. The Hertels had lived across the street from the subject property for approximately ten years. The Hertels were aware that the subject property had been a landfill, but were unaware of any restrictions regarding the use of the subject property. The Hertels intended to build and sell homes on the subject property. In 1996, the Hertels obtained a new construction permit for a private sewage disposal system.
In 1998, the Sewells purchased a one acre tract of the subject property from the Hertels for $14,000. There is a dispute regarding whether the Hertels informed the Sewells that tract one had previously been a landfill. On May 26, 1998, the Sewells obtained a new construction permit for a private sewage disposal system from the Floyd County Health Department. On June 3, 1998, the Sewells obtained a building permit from Georgetown. Barbara Zoeller, the Deputy Clerk, authorized the building permit. When Zoeller issued the building permit she was not aware that tract one had once been a landfill. A few days after Georgetown issued the building permit, Zoeller received phone calls from citizens who were concerned that there was going to be some type of development on the subject property, which had been the Georgetown landfill. On June 17, 1998, Georgetown issued a stop work order.
The Hertels and Sewell appealed the issuance of the stop work order for the subject property to the Georgetown Board of Zoning Appeals. At one of the Board meetings, the Hertels questioned why Georgetown had sold the subject property in 1985 if it was not suitable for development. According to Mrs. Hertel, one of the women at the meeting acknowledged that possibly Georgetown should not have sold the property, and a gentleman at the same meeting stated that Georgetown initially sold the subject property so that it could purchase a police car. Moreover, Huff testified that Georgetown did not have the Indiana Department of Environmental Management (IDEM) inspect the subject property and placed no restrictions upon the subject property, because “everyone on the board at that time and, ninety nine per cent of the population knew that that was the Town dump.” He also stated that, “we put the subject property up for bids because we needed the money out of the land . . . for a garbage truck.” The Board of Zoning Appeals subsequently denied the appeal, because “it didn’t think it would be proper to allow any homes to be built there.”
On January 19, 2000, the plaintiffs below filed a complaint for damages from inverse condemnation. On April 16, 2002, after a bench trial, the trial court issued its order, determining that the plaintiffs established that a taking had occurred with respect to the property. This appeal ensued.
The Court of Appeals reversed the judgment of the trial court:
The Court cited IC 32-24-1-6, "which provides the statutory remedy for inverse condemnation." It said there are two stages in an action for inverse condemnation: (1) determining whether a taking of property has occurred, and (2) determining damages.
In determining whether a taking has occurred, the Court referred to Bd. of Zoning Appeals, Bloomington, Ind. v. Leisz, 702 N.E.2d 1026, 1028 (Ind. 1998).
[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” ... Although no precise rule determines when property has been taken, the question necessarily requires a weighing of private and public interests. In Leisz, our supreme court acknowledged that there are “two discrete categories of regulations that violate the Takings Clause regardless of the legitimate state interest advanced.” ... The first category encompasses regulations that require the property owner to suffer a physical “invasion” of his or her property. ... The second category encompasses regulations that deny all economically beneficial or productive use of land.The Court here said there was no physical invasion, so the question was whether the regulation [presumably the "regulation" referred to is the Clerk's denial of a building permit, but that is not altogether clear] denied plaintiff "all economically beneficial use of his property."
The Court listed three factors to be used in determining whether a taking may have occured, although a regulation's limitations on land fall short of eliminating all economically beneficial use:
(1) the regulation's economic effect on the landowner.
Here the Court said: "[Plainiff] argues that Georgetown's denial of a building permit constitutes a taking because it denies [plaintiff] of economically viable use of his property. ... A landowner is not entitled to the highest and best use of his land, and a taking only occurs when the land use regulation prevents all reasonable use of the land. ... Moreover, a diminution of property value, standing alone, will not establish a taking. ... Georgetown argues that economically viable uses for tract one do exist. For example, Georgetown contends that [plaintiff] could build a slab type structure such as a tool shed or he could use the property for recreational or grazing activities." The Court agreed, finding that plaintiff's "property continues to have an economically viable use, even if it is somwhat diminshed."(2) the extent to which the regulation interferes with reasonable investment-based expectations.
Quoting [Lucas v. S. Car. Coastal Council (1992)], 505 U.S. at 1027, 112 S. Ct. at 2899, the Court states: "A 'property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers.'” Continuing, the Court states that plainiff "fails to establish that his investment-backed expectations have been frustrated to the extent necessary to establish a taking in violation of the Fifth Amendment. Property owners are charged with knowledge of relevant statutory provisions affecting the control or disposition of their property. ... Waste dumps are heavily regulated for the protection of human health and the environment. See [329 IAC 10] (outlining IDEM guidelines for solid waste management). Specifically, 329 IAC 10-23-3(c)(3) provides, in pertinent part, that: 'post-closure use of the property must not disturb the integrity of the final cover, liner, or any other component of the containment system, or the function of the monitoring system, unless necessary to comply with this article.'"(3) the character of the government action.
Here ... the regulations detailing the guidelines for solid waste management apply to all Indiana property currently or previously used as a landfill. Furthermore, when Georgetown issued the stop work order it did not act arbitrarily; rather, it acted in accordance with the recommendation of representatives from the IDEM. Moreover ... Georgetown issued the stop work order to prohibit a potential threat to human health and safety. In addition, Schroeder [IDEM inspector] testified that tract one is not suitable for human habitation because it could be dangerous to human health as well as the environment. As such, an examination of the character of the government action reveals that Georgetown acted within its police power to protect and promote health and safety.The Court of Appeals conclusion:
Therefore, after a careful consideration of: (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action, we hold that Georgetown’s issuance of a stop work order for tract one did not amount to a taking in violation of the Fifth Amendment. As such, the trial court’s finding that a taking occurred with respect to tract one of the subject property was clearly against the logic and effect of the facts and circumstances before the court. Because we hold that a taking has not occurred, Timothy’s inverse condemnation claim fails.
For the foregoing reasons, we reverse the judgment of the trial court. Reversed.
A paragraph in a Financial Times story about the Iraq oil ministry certainly caught my eye. In a story titled "Confusion over who controls Iraq's oil ministry" (access the story here) a man in the lobby of the ministry building told the reporter: "I was a DG (director general) in the old administration, and no one has told me I'm not a DG anymore." The story continues:
The director general said he was confused by the lack of any formal notices, and had a only a vague idea of the committee, backed by the Iraqi National Congress, the formerly exiled opposition group. "I don't honestly know who they are, who chose them, how they are being motivated. I know I am in contact with no one and no one is in contact with me."However, he lamented the whole US approach to dealing with post-war Iraq. "We have a lot of experience with coups d'etat and this one is the worst," he said. "Any colonel in the Iraqi army will tell you that when he does a coup he goes to the broadcasting station with five announcements.
"The first one is long live this, down with that. The second one is your new government is this and that. The third is the list of the people to go on retirement. The fourth one, every other official is to report back to work tomorrow morning. The fifth is the curfew."
This is usually done within one hour, he added. "Now we are waiting more than a week and still we hear nothing from them."
The Indianapolis Star ran a very nice story yesterday by Abe Aamidor titled "Life's secret code: The famed discovery of DNA's double helix grew from James Watson's studies at IU." (Access the story here.) Some quotes:
Watson, now president of the Cold Spring Harbor Laboratory in New York state, was awarded the Nobel Prize in Physiology or Medicine in 1962 for his work on DNA, along with Crick and Maurice Wilkins, whose earlier work provided useful data for Crick and Watson. Rosalind Franklin, who died in 1958, also contributed to the effort.After Watson graduated from the University of Chicago (he entered at 15): "He won a fellowship for graduate-level study of zoology in Bloomington at 19."
Though Watson officially enrolled as a zoology student ... it was Hermann J. Muller and Salvador Luria, two spectacular molecular biologists at IU, who really attracted Watson to Bloomington. Muller had just come to IU after allegedly being forced to leave Amherst College by an anti-communist "Red scare," and Luria was a World War II refugee from Italy. Muller already was a Nobel Prize winner when Watson arrived in Bloomington in 1947; Luria would win his in 1969. Legendary IU president Herman B Wells was credited with bringing Muller to Bloomington.Watson left IU in 1950 and did his DNA work in Cambridge:
On April 25, 1953, the British scientific journal Nature published a "letter" from Indiana University alumnus James D. Watson and Cambridge University scholar Francis Crick declaring that they had discovered a new model for the physical structure of DNA, the material for transferring inheritable traits from one generation to the next.The story brought back memories: I majored in Zoology at I.U. in the early 60s. Hermann J. Muller was still teaching; I had him for a course on evolution. Jim Watson had made a big impression on everyone in the Zoology Department during his time there; more than a decade later they were still talking about him, even before it was announced in 1962 that he had won the Nobel Prize.
[Update 4/24/03] Here is a link to a great story I've located on an Indiana University site. The story, which may be accessed here, is titled: "In an IU lab where Nobel laureates past and future flourished, the discoverer of DNA's double helix worked on a doctorate in genetics." A quote: "Watson, who received his Ph.D. in 1950 from IU, spoke from what seemed to be personal history. Late in the 1940s, he was one of three brilliant young scientists working in the attic of IU Bloomington's Kirkwood Hall. They had only a portable air conditioning unit to ward off the sweltering heat of southern Indiana summers. In every sense of the word, the attic was a hothouse of activity. All three would eventually win Nobel Prizes."
Someone should write a history of IU's Zoology Department in the late 40s and early 50s.
An interesting State of Washington decision issued 4/17/03 is discussed in a story today (access it here) in the NY Times headlined: "Lawyer Whose Disclosure Brought Down a Judge Is Punished." It begins:
A lawyer who divulged a client's confidences to bring down a corrupt judge acted improperly, the Washington Supreme Court ruled on Thursday. It suspended the lawyer, Douglas Schafer, for six months. "Because of Schafer's actions, a corrupt judge was exposed and the public was served by the judge's removal from office," Justice Bobbe J. Bridge wrote for the majority in the 6-to-3 decision. But "in light of the importance of maintaining client confidences and Schafer's willful, unnecessary and repeated violation of his ethical duty not to betray his client's trust, we hold that a six-month suspension is appropriate."I've located the Supreme Court of Washington's opinions: the majority opinion can be accessed here; the concurrence here; and the concurrence/dissent here.
"Cleanup of Industrial Sites Faces a Question: How Clean Is Clean?" is the headline to a story in today's (Sunday, 4/20/03) NY Times. Access the entire story here. Using the polluted land along the Hudson River waterfront in Troy, N.Y. as an example, the article begins:
These abandoned industrial sites, known as brownfields, have long been contaminated with chemicals, fuel and other pollutants that seeped deep into the ground. Until the brownfields are cleaned up, they cannot be used for other purposes, frustrating the city's plans for a $100 million effort to redevelop the waterfront. * * *Access information about the State of Indiana's brownfields cleanup programs here and its voluntary cleanup program here. This page gives links to all the Indiana land cleanup programs and standards.
While Gov. George E. Pataki and state leaders say that something must be done to reclaim these blighted urban areas, they have remained deadlocked for nearly four years over how to clean up brownfields. Environmental groups and lobbyists routinely point to the issue as one of the most blatant examples of dysfunction in the Capitol, where impasses often paralyze legislation for years.
At the heart of the legislative standoff is a disagreement over how clean is clean. Democratic Assembly leaders have pushed for rigorous and costly cleanups of all brownfields. Mr. Pataki, a Republican, and the Republican-controlled Senate, so as not to scare off developers, have advocated less stringent cleanups of sites that are to be used for commercial and industrial projects.
Incidentally, a paper titled "Assuring Adequate Notice and Enforceability of Environmental Covenants: A Key to Brownfields Redevelopment" that I co-authored is to be published this month in Res Gestae, the journal of the Indiana State Bar Association.
The Washington Post had a major write-up on Justice Thomas last August. It is still available here, along with links to his key opinions and other resources.
In addition, CNN.com carried a story last Friday, 4/18/03, titled "Justice Thomas seems more at ease, willing to engage public." Access it here.
Today's NYT Sunday Magazine has a must-read article by Anthony Lewis titled "The Silencing of Gideon's Trumpet." Access it here. Its logical companion piece (highlighted here in the Indiana Law blog on 4/16/03), "County Says It's Too Poor to Defend the Poor, " can still be accessed here in the NY Times.
(Remember the NY Times now removes the full-text of its stories after one week.)
The NY Times today has a story titled: "Brazil to Let Squatters Own Homes: Formal property rights could benefit millions of slum dwellers." Access it here. As the Times explains:
The idea is similar to programs long advocated by proponents of "popular capitalism" like Hernando de Soto, a Peruvian author. His books, including "The Mystery of Capital," have laid out a blueprint for freeing the untapped entrepreneurial potential of Latin America's impoverished masses."When you give the poor assets that can be represented and defended by property law, you get an enormous formation of wealth," Mr. de Soto, director of the Institute for Liberty and Democracy, said in a telephone interview from Lima. "A land title is like a credit card or a share in the stock market."
* * * * * But Mr. de Soto, who has visited here at the invitation of the municipal government, cautioned that "though the principle is right, most property creation schemes have been badly done." Besides issuing titles for land parcels, he said, it is important to streamline property law, simplify bureaucracies and ensure uniform national standards while also allowing communities to use traditional ways of recognizing land ownership. "This isn't a bright new idea," he said. "The history of Latin America, including that of Brazil, is littered with property schemes for the poor that were not done correctly and ended with broken illusions and money thrown out the window. "When these programs fail," he added, "it is not because poor people don't like owning property but because the reformists don't know what they are doing."
A quick search with Google led to much material by and about Mr. de Soto (but not the interview with Brian Lamb of C-Span I recall from some time ago). The World Bank, for instance, writes (access the entire article here):
De Soto argues that every person who owns property, no matter where he or she lives, is entitled to a legal document—a title—that certifies that property’s value in the eyes of the law. While the concept seems simple, very few property owners actually hold official government-licensed titles outside the United States, Canada, Australia, Western Europe, and Japan. De Soto estimates that nearly five billion people are legally and economically disenfranchised by their own governments. Since these people do not have access to a comprehensive legal property system, they cannot leverage their assets to produce additional wealth. They are left with what De Soto calls "dead capital".ReasonOnLine ("Free Minds and Free Markets") carries this interview.
The 2003 US News Ranking of Law Schools is out and available here. Thanks to Greg Goelzhauser's Blog for alerting me to its availability. Greg also has an interesting analysis of the new ups and downs. However, I can't agree with his comments about my alma mater, about which he opines . . .
Indiana University-Indianapolis [in a 5-way tie for 64th place]: most students would not have considered IUPUI as being of the same quality as the other schools it is tied with: Florida State, Temple, Kansas, and Nebraska.(BTW, Indiana University-Bloomington is ranked 38th in the poll, tied with Ohio State; Notre Dame is tied for 22nd; and Indiana's fourth law school, Valparaiso, is ranked in Tier 3.)
[Updated 4/19/03] I now find that Professor Jeff Cooper of IU Law-Indianapolis posted a nice writeup about the US News rankings on April 4 on his fine blog, Cooped Up. Access his take here.
In this ruling, LaCedra v. EOUSA (access it here), decided 2/7/03, the D.C. Circuit's Chief Judge Ginsburg sums matters up in the opening paragraph:
Glenn LaCedra wrote a letter to the Executive Office for United States Attorneys requesting documents pursuant to the Freedom of Information Act. He first asked generally for ‘‘all documents pertaining to’’ the criminal case against him; he then enumerated certain specifically requested items. The EOUSA construed the letter to request only the specifically enumerated items and therefore produced only 14 of the approximately 6,000 pages of documents it had concerning LaCedra. The district court, determining that the EOUSA adequately responded to LaCedra’s request, granted summary judgment for the Agency. We hold the EOUSA’s interpretation of LaCedra’s request was not reasonable. Accordingly, we reverse the judgment of, and remand the case to, the district court for further proceedings.
An interesting decision issued last month by the D.C. Circuit, Aid Association for Lutherans v. U.S. Postal Service (3/14/03) (access the decision here), involved the Postal Service adoption of regulations that precluded appellees from mailing certain materials at the non-profit rate. Appellees sued the Postal Service, claiming it had exceeded its statutory authority in promulgating the cited regulations. The District Court granted judgment for appellees, finding that the regulations ‘‘constitute an impermissible reading of the statute.’’ The Court of Appeals affirmed:
The Postal Service claims its its regulations were not subject to judicial review, because 39 U.S.C. § 410(a) exempts the Postal Service from the judicial review provisions of the Administrative Procedure Act (‘‘APA’’). The Postal Service claims further that, if judicial review is proper, the court should defer to the agency’s statutory interpretation under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because the regulations reflect a permissible construction of [the statute]. Appellees, in turn, argue that, because the Postal Service acted in excess of its delegated authority under the statute, judicial review is available outside of the APA and the disputed regulations cannot possibly survive scrutiny under any standard of review.We affirm the judgments of the District Court. Judicial review is available in this case, because, as appellant concedes, appellees may challenge actions by the Postal Service that are outside of the scope of its statutory authority. Appellees’ principal claim here is that the challenged regulations emanated from an ultra vires action by the Postal Service. We agree. Therefore, it does not matter whether [the statute] precludes traditional APA review. On the merits, we hold that the Postal Service’s regulations exceed the agency’s delegated authority under the statute. The statute permits the agency to regulate solely with respect to ‘‘coverage provided by [an insurance] policy.’’ The agency ignored this limitation and focused instead on ‘‘types of insurance.’’ ‘‘Coverage’’ under a policy does not mean the ‘‘type of insurance’’ offered. Therefore, the regulations totally pervert the meaning of the statute. And, in so doing, the regulations effectively exclude nonprofit organizations from using the reduced nonprofit postage rate for insurancerelated mailings in markets in which they previously had access to the reduced rate. There is nothing in this record to indicate that this was the intention of Congress in enacting [the statute]. Quite the contrary. Both the clear terms of the statute and the legislative history suggest otherwise.
* * * * * Appellees’ principal claim here is that the challenged regulations emanated from an ultra vires action by the Postal Service. We agree. This being the case, the regulations cannot survive judicial review under National Association or Chevron.
In State v. Courchesne (officially released 3/11/03) the Connecticut Supreme Court has:
expressly rejected the "plain meaning rule" of statutory construction ... . "It's a case of giant importance," said appellate expert Wesley W. Horton. "Basically all the briefs pending before the court on statutory construction can be thrown in the wastebasket."This from a story published 3/10/03 in the Connecticut Law Tribune and available at law.com. Access the story, headlined "Connecticut Supremes Radically Change Statutory Tack: Death penalty case alters rules for legislative interpretation" here. More:
The majority sets forth a road map for statutory interpretation that makes Courchesne a milestone, restating how the high court functions. Statutory interpretation is a "reasoned search for the intention of the legislature [that] requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus we do not follow the plain meaning rule."Access the Connecticut Supreme Court's majority opinion here, the first concurrence here, the second concurrence here, and the dissent here.
The Indianapolis Star's David Woods has an interesting story (access it here) this morning titled: "Lickliter's new deal has protections for Butler." Woods calls attention to two clauses in the agreement, designed to help the school retain Lickliter. "The agreement includes a buyout in which Lickliter or any school hiring him must pay Butler a sum in the 'low six figures,' according to athletic director John Parry." Noting that "Such buyouts have become standard in the sport," Woods' story continues:
Not so typical is the Butler clause requiring schools in the biggest six conferences, plus select others, to play the Bulldogs if they hire Lickliter. The provision creates a four-game, home-and-home series that can be completed within six years. A school can buy its way out of the series at a cost of $100,000 per game.Butler has had a recent history of losing successful coaches. As reported in USA Today yesterday (access the story here), headlined "Butler locks up Lickliter through 2010:"
The Bulldogs' two previous coaches were Barry Collier, who left for Nebraska in 2000, and Thad Matta, who went to Xavier in 2001. Lickliter, who turns 48 on Thursday, was a Butler assistant and was named head coach in May 2001. Only two coaches in NCAA history — Bill Guthridge of North Carolina (58 victories) and Everett Case of North Carolina State (55) — compiled more victories in their first two seasons than Lickliter.
The Chicago Tribune has an article today about --- Blogs! It is mostly about "blogs at war." Access it here. (Warning - you may have to do a free registration first.)
And, BIG news! This is the one month anniversary of The Indiana Law Blog. I'm really enjoying doing it.
In a 3-2 opinion dated 4/15/03, the Indiana Supreme Court held: "damages for an allegedly negligent sterilization procedure may not include the costs of raising a subsequently conceived normal, healthy child." J. Dickson wrote:
Although raising an unplanned child, or any child for that matter, is costly, we nevertheless believe that all human life is presumptively invaluable. This Court has held that "life . . . cannot be an injury in the legal sense." ... A child, regardless of the circumstances of birth, does not constitute a "harm" to the parents so as to permit recovery for the costs associated with raising and educating the child. We reach the same outcome as do the majority of jurisdictions, and hold that the value of a child's life to the parents outweighs the associated pecuniary burdens as a matter of law. Recoverable damages may include pregnancy and childbearing expenses, but not the ordinary costs of raising and educating a normal, healthy child conceived following an allegedly negligent sterilization procedure.The opinion, Chaffee, M.D. v. Seslar, may be accessed here.Conclusion. We hold that the costs involved in raising and educating a normal, healthy child conceived subsequent to an allegedly negligent sterilization procedure are not cognizable as damages in an action for medical negligence.
The April 14-20, 2003 Indianapolis Business Journal at page 15 reported that "The Court of Federal Claims in Indianapolis has reaffirmed an earlier judgment in the case of Rose Acre Farms v. United States, and awarded the Seymour-based egg producer a judgment of more than $12 million."
From the Sommer Barnard Ackerson PC web site:
This regulatory takings case focused on regulations enacted by the United States Department of Agriculture, which placed restrictions on chicken farms suspected of selling salmonella-infested eggs. These restrictions resulted in the taking of Rose Acre Farms’ healthy eggs, hens and hen houses. The restrictions had a severe economic impact on its operations and interfered with its investment-backed expectations.At trial, Rose Acre proved that although 700,000,000 eggs were taken by the government action, not one single Rose Acre egg had been tested for salmonella.
“Agriculture has been especially affected by regulatory takings of private property,” according to Thomas A. Barnard, a Partner/Director at Sommer Barnard Ackerson, the law firm that represents Rose Acre Farms. “This case promises to be a landmark decision in that line of cases. It establishes a standard for enforcing the Fifth Amendment guarantee that private property cannot be taken by the government without just compensation, and it is likely to be relied on by other courts across the nation,” he said.
Access the March 20, 2003 U.S Court of Claims opinion here. Here are a few quotes from Judge Futey's 39-page opinion:
Plaintiff is asserting a regulatory taking and a categorical taking of its property. The main difference between the two is the amount of the economical viable use of the property that has allegedly been appropriated. This distinction results in the application of different analyses. Compare Penn. Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978) (applying a three-part regulatory takings test), with Palm Beach Isles Assoc. v. United States, 231 F.3d 1354, 1357 (Fed. Cir. 2000) (explaining that it is unnecessary to consider whether there was an investment-backed expectation). ... A regulatory taking does not involve a physical invasion or seizure of property. Instead, it concerns action that affects an owner’s use of property, and is based on the general rule “that ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’” ... A categorical taking is one in which all economically viable use has been taken by the regulatory imposition. ... This takings claim is distinct from a general regulatory taking which “prohibits or restricts only some of the uses that would otherwise be available to the property owner.” There is no need for the property owner to prove an investment-backed expectation for a categorical takings claim. Indeed, a categorical taking is akin to a physical taking.
* * * * * Plaintiff has filed a motion for the award of attorney fees and expenses. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA), 42 U.S.C. § 4654(c), provides reimbursement in takings cases brought under the Tucker Act for “reasonable costs, disbursements, and expenses, including reasonable attorney . . . fees, actually incurred because of” such proceeding. ... Relying on Florida Rock Indus. v. United States, plaintiff contends that “the Court should defer to the market’s discipline and treat the fees and other expenses that [plaintiff] actually paid as presumptively reasonable.” ... Defendant asserts, however, that “plaintiff has the burden of proving a reasonable fee” and argues that the court should use the lodestar method in calculating an appropriate fee award. That method consists of “determining first the reasonable hours expended and then multiplying that figure by each attorney’s reasonable hourly rate.” ... The lodestar formula is routinely used, but the court has stated that “where there is a bona fide contractual arrangement whereby the client has committed to pay the amount billed by the attorneys . . . the court should not secondguess the workings of the market in determining the reasonableness or appropriateness of the fees and expenses.” ... This reasoning is particularly persuasive where plaintiff has not only actually incurred and committed to pay, but has in fact paid all of the fees and expenses submitted for the court’s review.
"DNA profiles from juvenile offenders and from adults who have been arrested but not convicted would be added to the FBI's national DNA database under a Bush administration proposal." This from a USA Today story this morning. Access it here.
The NY Times had an excellent front-page story yesterday (access it here) on this issue. A Mississippi County is suing the State of Mississippi on the grounds that it is too poor "to provide defendants with anything more than assembly-line justice. Mississippi is among a handful of states that provide no money for the defense of the indigent in noncapital cases." More:
The lawsuit, which will go to trial here this month, is in its way a commemoration of the 40th anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, which held that poor people accused of serious crimes are entitled to legal representation paid for by the government. The new case is being litigated by the same firm, Arnold & Porter, that represented Clarence Gideon, a Florida drifter accused of breaking into a poolroom who was tried and convicted without a lawyer. (The firm was appointed after the Supreme Court agreed to hear the case based on Mr. Gideon's handwritten petition.) And the lawsuit is seeking answers to some questions left open by Gideon that legal scholars, government officials and advocates for the poor have been asking for years: How decent a lawyer does the constitution require? Who should pay for that lawyer? And how much money should be paid?
As reported late yesterday, the Illinois judge reduced the $12 billion appeal bond requirements for Philip Morris and that company in turn has now been able to make its payments to the states. So is the crisis entirely over? Some say, not really, as the confidence of investors has been shaken. Here, for instance is a quote from the middle of a NY Times story today:
Shares of the company's parent, the Altria Group, tumbled and credit agencies downgraded the ratings of bonds issued by Altria, Philip Morris and Altria's other subsidiaries, like Kraft Foods. In addition, the market for state-issued bonds backed by lawsuit settlement payments from Philip Morris and other cigarette makers wobbled. Faced by the fallout from the Illinois case, several states also pulled back temporarily on plans to raise money by issuing such bonds. Martin Feldman, a tobacco industry analyst with Merrill Lynch, said that yesterday's decision removed the immediate cloud hanging over Philip Morris. "The most significant aspect of the reduced bond is that it removes the specter" of a Chapter 11 filing, Mr. Feldman said. He noted, however, that the new reduced pledge was the largest ever required of a tobacco company and that other cigarette makers could soon face claims similar to the one that yielded the huge judgment against Philip Morris. "It's a temporary reprieve," he said.A brief Washington Post story may be accessed here. Finally, you can access the order of the Illinois court order here, via Findlaw.
Updated 4/16/03. This morning's Indianapolis Star reports that Philip Morris did indeed meet Tuesday's deadline for this year's $52 million payment to Indiana. Access the entire story here.
And a Fortune article, dated 4/14/03 but just published today (4/16/03), gives a good, in-depth analysis of Altria, headed: "Hit by cut-rate competitors, taxes, and most of all, litigation, the company that owns Philip Morris faces its worst crisis in years." This quote, written the day before the Illinois judge lowered the appeal bond, thus averting the current crisis, shows what may still be ahead for Philip Morris:
However Philip Morris resolves its Madison County problem, there are plenty more fights to come. Two more consumer fraud class actions have been certified in Massachusetts and Florida. Two additional personal injury cases are slated for trial in California this year. And there are ten plaintiffs' verdicts that Philip Morris is appealing. One is the Engle case, which awarded $145 billion in damages to Florida smokers three years ago; Philip Morris is on the hook for $74 billion. Every Wednesday at 10:30 a.m., the folks on Altria's 22nd floor wait in hope that a Florida appellate court has reversed the verdict or sent the case back to trial court.Access the Fortune article here.
"'We have before us the instruction set that carries each of us from the one-cell egg through adulthood to the grave,' Dr. Robert Waterston, a leading genome sequencer, said at a news conference here at the National Institutes of Health." This from a comprehensive NYTimes story this morning in its Tuesday Science Times section. Access the story here. If you are asking, "wasn't this announced three years ago?" you are in part correct. According to the Times:
A "working draft" of the human genome sequence was announced with much fanfare three years ago in a White House ceremony. But at that stage the Human Genome Project had completed only 85 percent of the genome and its commercial rival, the Celera Corporation, using the project's data as well as its own, had attained somewhat more. The project's draft was not a thing of beauty. It consisted of thousands of short segments of DNA, whose order and orientation in the full genome was largely unknown. Three years later, the international consortium of genome sequencing centers has now put all the fragments in order and closed most of the gaps, producing an extensive and highly accurate sequence of the 3.1 billion units of DNA of the human genome.For another take, see this story from the Washington Post.
Last week we reported (here) on the use of a new microassay to identify the SARS virus. Now two different labs have sequenced the entire genetic code of the virus believed to cause SARS (severe acute respiratory syndrome). Read the story here in the Washington Post and here in the NY Times.
In a story today headlined "Documents 'Public" But Kept from View," (access it here), the Indianapolis Star reports:
A Hamilton County court decision has made the financial records of a privately owned global-accounting firm public, but they remain shielded from view. Hamilton County Superior Court Judge Steven Nation has denied a request from New York City-based Ernst & Young to seal and expunge financial information about the company from court records. Nation, however, did not lift a stay on the information, which blocks public access. He made the ruling last week in response to a request from The Indianapolis Star. Nation said he refused to lift the stay because lawyers from Ernst & Young have indicated they will file an appeal. "If the Indiana Court of Appeals disagrees with me, it wouldn't be (any) good for their side," Nation said.What are these documents? According to the abstract (access it here) of a 1/14/03 NY Times story titled "Ernst & Young Financial Details Are Disclosed In Divorce Case," the documents include:
Every detail that accounting firm Ernst & Young told American partners about its financial performance through late 2000 becomes public as part of divorce case involving chief executive Richard S Bobrow. ... Every detail that the global accounting firm Ernst & Young told its American partners about its financial performance through late 2000 became public late yesterday, including its profits, details of its capital structure, the hours billed to clients and the average earnings per partner. Many aspects of foreign operations were also disclosed.
The Indiana General Assembly is on its way to wrapping up its work and there are several environmental bills still alive, including SB 440 (access here a somewhat hard-to-follow Post-Tribune story about this bill).
"Wetlands protection efforts appear to have ended in a standoff involving Senate Republicans, House Democrats, the Indiana Department of Environmental Management, the Indiana Water Pollution Control Board, environmentalists, farmers, developers and other interested parties." That from an interesting story (access it here) this morning in the Muncie Star Press, burdened with the headline: "Wetland protection bogs down."
Confined feeding continues to be an issue. The Indianapolis Star has several stories this morning: a report on another suspected spill at Pohlmann Hog Farms; a Ruthie Holladay column titled "Senate's livestock operation bill is hogwash, critics say"; and an editorial headed (trust me) "Oinker of a bill deserves to die."
[Update] The Washington Post had a story this morning (4/15/03) (access it here) relating to the monitoring of air emissions at confined feeding operations, titled "From EPA Plan, a Whiff of Danger: Something smelled funny."
[Update] This morning's (4/16/03) Indianapolis Star reports that: "The Indiana Department of Natural Resources is seeking $230,000 in environmental damages from a Montgomery County hog farm because of a manure spill last month that killed more than 3,000 fish in a nearby creek." Access the entire story here.
Following up on our entry of March 19, 2003, announcing the appointment by the Governor of an interim director to the OEA, the Indianapolis Star reports today: "Law judge quits; he's to pay fine: Man billed state for days not worked, owes $10,000." Access the entire story here.
Meanwhiile, pursuant to IC 4-21.5-7-4(b), a selection panel has been created to fill the OEA vacancy. This panel is to "nominate three candidates for each vacancy and certify them to the governor as promptly as possible, but not later than sixty days from the date a vacancy occurs. Not later than thirty days after receipt of the panel's list of three candidates, the governor may select one candidate from the panel's list, or the governor may request that the panel nominate three additional candidates." According to the governor's 3/18/03 press release, Mr. Penrod's resignation was effective 4/1/03.
My understanding is that the members of the OEA selection panel are: Judge Ernie Yelton, chair, the chief justice's appointment; Senator Beverly Gard, the senate pro tem's appointment; Representative James Bottoff, the house speaker's appointment; and Miriam Dant, the governor's appointment. When there is an announcement that applications are being accepted, I plan to post it here.
In Indiana Bell d/b/a Ameritech v. Time Warner Communications (4/14/03), an appeal from the Indiana Utility Regulatory Commission (IURC), the Indiana Court of Appeals discussed the applicable standard of review where the IURC had entered summary judgment:
Initially, we address the conflicting standards of review the parties propose. Ameritech asks us to review the IURC’s decision de novo, because it concerned the interpretation of a contract and thus addressed a pure question of law requiring no deference to the administrative agency. See Cowper v. Collier, 720 N.E.2d 1250, 1255 (Ind. Ct. App. 1999), trans. denied (2000). AT&T urges that we review the decision under an arbitrary and capricious standard; however, it cites no authority for applying this standard. In fact, the usual standard of review for IURC decisions is two-fold: first, whether the decision is supported by specific findings of fact and sufficient evidence, and second, whether the decision is contrary to law. Knox County Rural Elec. Membership Corp. v. PSI Energy, Inc., 663 N.E.2d 182, 189 (Ind. Ct. App. 1996), trans. denied. That standard is inapplicable here, with the case having been resolved on summary judgment.[ftn.4]Access the entire opinion here.The standard of review for summary judgment orders under Indiana Trial Rule 56 is de novo, and we must determine that no genuine issues of material fact exist and that the movant is entitled to judgment as a matter of law to affirm a grant of summary judgment. See Greater Hammond Cmty. Servs., Inc. v. Mutka, 735 N.E.2d 780, 782 (Ind. 2000). We are aware that this is not a typical contract at issue here because it is intertwined to a certain degree with statutes and regulations that the IURC is charged with administering, which might ordinarily require some deference to its reading of the contract. See Department of Natural Res. v. Peabody Coal Co., 740 N.E.2d 129, 134 (Ind. Ct. App. 2000). Nevertheless, because this case involved the interpretation of a written contract decided on summary judgment, and because AT&T cites no authority for applying its suggested arbitrary and capricious standard of review, we grant Ameritech the benefit of the doubt and review the IURC’s decision de novo.
________
Ftn. 4. On appeal, although Ameritech argues that the IURC substantively erred by entering summary judgment, it does not challenge the IURC’s use of the summary judgment procedure in an administrative setting. See Ind. Admin. Code tit. 170, r. 1-1-22(b) (incorporating Indiana Trial Rules “in all cases not specifically provided for” by the IURC’s own procedures).
[Updated at 4:30 p.m.] The Illinois judge today reduced the appeal bond from $12 billion to $6 billion, as reported here and here.
[Earlier today] Sunday's (4/13/03) New York Times' business section looked at the impact of the Illinois court's action on the value of already-issued tobacco bonds (access the entire story here):
About $18 billion in tobacco bonds have been issued by states and municipalities, backed by $206 billion that is expected to flow over 25 years from the four major tobacco companies as a result of a 1998 settlement. So far, 17 states and many local governments have borrowed millions to billions of dollars to spend now against that future revenue.The Chicago Tribune ran a very interesting story Sunday (4/13/03) on the judge in the Illinois tobacco case that begins: "A low-profile judge in this Downstate town has stirred up state governments from Washington to Vermont, shaken Wall Street and pushed one of America's biggest companies to the brink of bankruptcy. In the past three weeks, 73-year-old Madison County Circuit Judge Nicholas G. Byron has been the subject of criticism from business groups and newspaper editorial pages. The newfound attention stems from a 3-year-old lawsuit Byron presided over dealing with the marketing of "light" cigarettes made by Philip Morris USA." Access the entire Tribune story here. (Although if you have not accessed the Tribune before, you will be required to complete a free registration, if you have been following these issues the story is well worth the effort.)
Since March 21, however, these bonds have been plummeting, with some prices down 12 to 14 percent. The selling started when investors suddenly became troubled by what Thornburg money managers had worried about all along: the continued ability of the tobacco companies to make the payments to the states that cover the principal and interest on these bonds.
The doubts became widespread after a $10.1 billion judgment in Illinois against the Philip Morris unit of the Altria Group; the company said it might have to file for bankruptcy if it had to post a $12 billion bond to appeal the verdict. Its credit rating dropped to the low end of investment grade. The ratings on the outstanding tobacco bonds were cut by two notches, prompting Virginia to cancel its $767 million tobacco bond sale and California to delay its $2.3 billion sale scheduled for this week.
The Louisville Courier-Journal reports (access the story here) this morning:
Gov. Frank O'Bannon eased his push last week for his plan to mortgage the state's future tobacco payments to generate immediate cash that would fund economic development. It's not that O'Bannon no longer supports "securitization" — selling bonds and using future tobacco-settlement allotments to pay them off. But he's starting to face political reality: The market for such bonds is a mess, and Republicans in the Senate don't want to do it anyway.And finally, this morning's Indianapolis Star has a story (access it here) that begins: "Indiana will go to court if necessary if tobacco giant Philip Morris USA doesn't make a scheduled $52 million payment to the state, Attorney General Steve Carter said Sunday."
"In Senate bill, farms won't need building permits: Livestock operators would not be required to consult state before constructing facilities." So reads the headine in today's Indianapolis Star. Access the entire story here. According to the story:
Senate Bill 533 would eliminate the need for the state's 550 largest cattle, pork and poultry operations to obtain a state construction permit and give the state's 2,000 smaller operations a way to avoid getting the permits as well. Its sponsor, Sen. Robert Jackman, R-Milroy -- who also is a hog farmer -- says the bill's main goal is to simplify the permitting process. Currently, large confined livestock operations must obtain federal water discharge permits, so the bill's supporters say there is no need to also get a state operating permit. But critics say the bill goes too far by also eliminating the state's ability to approve construction. The federal permit does not include construction approval. And that, they say, increases the risk of shoddy workmanship, which could lead to manure spills that endanger public health, foul waterways and kill fish.
This morning's (4/14/03) Indianapolis Star has a lengthy and well-worth reading writeup on Bill McCarty, Chairman of the Indiana Utility Regulatory Commission, headlined "Utility overseer strikes balance." Access the entire Star story here. Of particular interest is discussion of McCarty's approach to regulation:
The commission long has had statutory powers to investigate. But utilities did not feel threatened that they would be used -- until McCarty came along. "They got very unsettled," observed Anne Becker, the state's utility consumer counselor who has negotiated some high-profile settlements. "It was a wake-up call: Bad and unreliable service won't be tolerated."
* * * * * During his tenure, the commission has:
• Negotiated an alternative regulatory plan with SBC, threatening it with up to $30 million a year in fines if certain service standards are violated. For example, the company must restore phone service in 24 hours in at least 95 percent of out-of-service reports in 2003 or face fines.
• Approved a settlement with Indianapolis Power & Light Co. in 2002 that allows penalties of up to $7 million if IPL fails to meet certain performance guidelines. IPL credited $100 to customers who were left without power for more than 36 hours during a summer storm in 2001.
• Allowed PSI Energy to buy two power plants from parent Cinergy Corp. for roughly $400 million to ensure reliable and affordable power.
• Approved a settlement with Northern Indiana Public Service Co. in 2002 that requires the electric utility to credit $55 million each year to its customers for the next four years. At issue were allegations that a typical NIPSCO customer was paying $25 to $30 per month more than customers of similarly sized utilities.
"If problems flare up, this commission has always said, 'How can we solve it?' " McCarty said. "That's where the IURC became more aggressive, holding companies responsible for better service and better rates."
In decisions yesterday, the Madison County Superior Court decided what happens when individuals, who are not statutorily eligible to hold elective office because of past felony convictions, are in fact elected to office and are then challenged by the losing candidates. As reported (access the full story here) in this morning's (4/11/03) Indianapolis Star:
A Madison County court decision that keeps two convicted felons from taking public office has set a legal precedent for the way the state will handle future disputed elections, officials say. Madison Superior Court Judges Dennis Carroll and Jack Brinkman have ruled that Republican Thomas Jackson and Democrat Buddy Patterson cannot take seats on the Madison County Council because they are ineligible to serve.A story (access it here) also appears in the Anderson, IN Herald Bulletin. It begins:
Incumbent members of the Madison County Council Dan Dykes and John Bostic Jr. have been named to serve another four-year term after winning a court battle. Both Dykes and Bostic lost bids for re-election in November to Buddy Patterson and Thomas Jackson. But after the election it was learned that both Patterson and Jackson were convicted felons and thereby ineligible to serve.
IC 3-8-1-5 deals with disqualification "from holding or being a candidate for an elected office." Access it here.
[I am trying to obtain a copy of the Court rulings for posting here. If you can help, please contact me.]
Following up on our earlier posting about recent asbestos verdicts is this story from law.com on the same decisions - one being the verdict of an Illinois Court where:
U.S. Steel quickly settled following a $250 million verdict last week favoring a long-time employee who suffers from cancer attributed to asbestos exposure during 31 years of working in the company's mill in Gary, Ind.Here is an interesting connection:
The Illinois verdict was returned in the courtroom of Circuit Judge Nicholas G. Byron, who set an Illinois record for damages the week prior with a $10.1 billion verdict in a class action against Philip Morris USA.Access the entire story here.
The LA Times had a story 4/8/03 on the impact of the U.S. Supreme Court's ruling 4/7/03 limiting punitive damages, titled: "Attorneys Scramble to Highlight Damage Ruling: Corporate lawyers work the high court's decision into pending lawsuits. Consumer advocates fear a chilling effect." Access this LA Times story here. The decision, State Farm Mutual Insurance vs. Campbell, may be accessed here. A brief UPI analysis of the State Farm decision may be found here.
The story this morning (4/10/03) in the LA Times is headlined "Bush Administration Touts Agreements to Reduce Pollution: Archer Daniels Midland Co. and Alcoa Inc. will cut emissions by about 130,000 tons a year, improving air quality in 16 states." Access it here. A briefer version of the same AP story may be found here in the Indianapolis Star. A Washington Post story may be found here.
Updating our 4/3/03 posting on the $12 billion appeal bond Phillip Morris is required to post in an Illinois court by April 20, and how this impacts the monthly settlement payments Phillip Morris is scheduled to make to a number of states, including Indiana, on or before April 15, and how it also impacts several states' plans to "securitize" this anticipated future flow of revenues though bond issues, here are links to several stories:
The AP reports this morning (4/10/03), in a story carried by the Baltimore Sun, that: "Plaintiffs' lawyers are insisting that Philip Morris USA pay a $12 billion bond due before the company can appeal a $10.1 billion court loss, despite the judge's suggestion that a compromise be reached. " Access the story here.
In the Memphis Commercial Appeal, a story headlined "Tobacco Funds Up in Smoke?" begins:
NASHVILLE - The state's budget woes went from bad to worse Wednesday. Gov. Phil Bredesen announced that money awarded to the state as part of a settlement with a tobacco company that was included in Tennessee's budget will more than likely not arrive April 15 as scheduled. The $60 million awarded to the state in the settlement with Phillip Morris has been in jeopardy since a judge in Illinois hit the tobacco company with a $12 billion bond in a case there last week. "I had already gotten out of bed, so I couldn't pull the covers over my head," Bredesen said of hearing the news.
Finally, the NY Times this morning has excellent comprehensive coverage of the issues in a story headlined "Shift in Bonds Has States Rethinking Tobacco Plans." Access it here. But I repeat the caution I posted last week:
(I post the link here with this admonition -- read it fast, as the NY Times has, within the past few days, halted free access to its stories over one week old. After the time has passed, the link will lead you to a brief summary of the story, plus the opportunity to purchase the article for $2.95. Unfortunately, you will find that this cutoff applies to any other Times stories cited in this Blog that are now over one week old.)
Another interesting 7th Circuit decision, issued 4/7/03, Lewis v. Methodist Hospital, takes on the task of deciding whether the Indiana Supreme Court would characterize the claim before it as a tort or a contract:
Our task is to predict how the Supreme Court of Indiana would characterize Lewis’s claim that Methodist Hospital failed to provide proper billing and fee collection services for his cardiology practice. ... If, as the district court held, Lewis’s first count in the complaint is properly characterized as a tort, then it is barred by the two-year statute of limitations for injury to personal property found in Ind. Code § 34-11-2-4. On the other hand, if Lewis’s claim against the Hospital is, as Lewis argues, for breach of contract, then it is governed by the ten-year statute of limitations found in Ind. Code § 34-11-2- 11, and Lewis’s March 19, 2001, filing was timely.The Court reversed the decision of the district court (ND Ind) and remanded for further proceedings on the breach of contract claim, stating:
Bearing in mind the Supreme Court of Indiana’s admonition not to collapse all contract claims into tort, we conclude that under prevailing Indiana law Lewis’s first count in his complaint against Methodist Hospital seeks relief for breach of contract and is thus governed by the ten-year statute of limitations. In reaching this conclusion, we suggest nothing about the merits of Lewis’s claim against the Hospital.
The U.S. Court of Appeals for the 7th Circuit (J. Manion), in the the case of Indiana Forest Alliance v. U.S. Forest Service (4/8/03), affirmed the district court's (SD Ind) grant of summary judgment to the Forest Service:
In 1999, the United States Forest Service proposed a comprehensive plan to maintain forest openings in the Hoosier National Forest. Pursuant to the National Environmental Policy Act, the Forest Service prepared an environmental assessment and found that the project would have no significant environmental impact and therefore would not require a more extensive environmental impact statement. Several groups of conservationists appealed the decision through administrative channels and then filed a claim in district court. On a motion for summary judgment, the district court held that because the Forest Service had not acted arbitrarily or capriciously in concluding that an environmental impact statement was not required, that decision must be upheld. We affirm.Thanks to Statutory Construction Zone for flagging this ruling.
* * * * * The Forest Service has complied with NEPA and the NFMA in making its decision to implement the forest openings maintenance project. The administrative record demonstrates that the agency followed required procedures and considered relevant data, and therefore did not act arbitrarily or capriciously in arriving at its conclusion.
A new type of microarray or "gene chip" was used last week to identify the virus family behind the SARS virus (severe acute respiratory syndrome). Increasingly more sophisticated microarrays have been in use over the past few years, but this is the first chip built specifically to identify viruses. As described in an AP story yesterday, 3/7/03:
The "virus chip" DeRisi and his colleagues created could come in handy as epidemiologists try to identify and contain emerging diseases — including pathogens that bioterrorists could launch. What DeRisi did was build upon the microarray, or gene chip, an 8-year-old invention that melds DNA onto glass using some of the same technology that makes computer chips. Microarrays allow biologists to analyze thousands of genes simultaneously instead of one at a time. With microarrays, scientists break small bits of DNA's double-helix of each of the genes and attach one side to the chip, with its unique set of chemicals sticking up like tines on a comb. Researchers then pour solutions containing other broken strands of DNA to see which strands bond together. About two years ago, DeRisi and two colleagues brainstormed about what tools would be vital to virus hunters. Instead of outfitting chips with human genes, the trio decided to put virus genes on their microarray instead. Then, as now, there were no commercially available virus chips. So DeRisi and David Wang set up their own "home-brew operation," as DeRisi called it.Access the AP story, by Paul Elias, here in the Seattle Times, or here in the Rocky Mountain News.
Good coverage can also be found in this article at SFGate.com.
DeRisi's microarray is an ordinary, 1- by 3-inch microscope slide, on which 12,000 different samples of genetic material have been deposited with the same precision used to etch electronic circuits in a semiconductor chip. Each sample appears as a microscopic dot on the slide, the dots organized into squares of precisely 400 dots per square. In fact, the robots that "pick and place" each sample from a small reservoir onto its spot on the slide are descendants of the machines used to build electronic chips. When a sample of viral genes is washed over the slide, each of those 12,000 dots seemingly reaches out for pieces of viral gene that match. When a match is made, the viral gene clings to the dot like a burr to wool. After the slide is rinsed, all that is left are the genes and their matching dots.
For all the detail, read the excellent 11/26/02 scientific paper from the DeRisi Lab: "Microarray-based detection and genotyping of viral pathogens," which may be accessed here.
The Indiana Supreme Court yesterday (4/7/03) ruled unanimously, in an opinion written by Chief Justice Shepard, that "Guns are dangerous instrumentalities that in the wrong hands have the potential to cause serious injuries. It is a responsible gun owner’s duty to exercise reasonable care in the safe storage of a firearm." The decision, Estate of Eryk T. Heck v. Stoffer, may be accessed here. Today's (4/8/03) Indianapolis Star coverage may be found here. The Star story begins:
Gun owners must safely store firearms and can be held liable for failing to do so, the Indiana Supreme Court said Monday in a landmark ruling. In a 5-0 decision, the court reversed the Allen Circuit Court's dismissal of a 1999 lawsuit against the owners of a handgun used to kill an Allen County sheriff's deputy.
The lead paragraph in a story (access it here) this morning (4/8/03) in the Indianapolis Star headlined "Stalemate endangers wetlands protection law," summarizes the siutation:
An almost yearlong effort to craft a law protecting Indiana's most vulnerable wetlands is in danger of going down the drain unless a bipartisan committee can work out a last-minute deal.
Silicon Valley's major newspaper, the Mercury News, reports today (access the story here) on its SiliconValley.com website: "Internal auditors valley's newest stars: Headhunters Can't Find Enough Candidates to Meet Demand."
Forget flamboyant chief executives, high-rolling venture capitalists and fast-talking analysts. These days, the hottest job in Silicon Valley is . . . internal auditor. Internal auditors are the folks paid to sniff out problems like embezzling chief financial officers or fraudulent bookkeepers, and set up the controls to prevent them. But during the bubble many companies, especially young Silicon Valley start-ups, saw little need for such corporate overseers.This interesting article concludes with this quote: "Still, not everyone's holding his breath for a new Law & Order spinoff, 'Law & Order: Internal Audit division.'"
That's all changed.
Internal auditors note proudly that their jobs are no longer viewed as low-level compliance posts, but instead have become influential executive-level positions with clout and muscle. After all, wasn't it an internal auditor -- Cynthia Cooper -- who discovered the massive fraud at WorldCom and became a Time Magazine Person of the Year?
This morning's papers have an interesting contrast in stories. I first read this story in the Washington Post, headed "A Case of Questionable Judgment," that begins:
A senior federal judge has opened a consulting firm and begun marketing efforts that offer to put "a judge in the boardroom of a corporation" despite federal laws restricting commercial activities of judges and court rules banning the use of judicial titles for profit.Then I found this story by Tony Mauro of Legal Times at
Eugene R. Sullivan, a senior judge of the U.S. Court of Appeals for the Armed Forces, has formed a firm called Gavel Consulting Group, which will advise corporations, law firms and foreign governments on how to handle or avoid "litigation and investigations." He said he had undertaken the venture with five prominent former federal judges, though one of those judges said Sullivan is the owner of the firm and the rest are "advisers" with no financial interest in the firm.
Your client asks you if it can do something that veers close to the line ethically. You don't want to offend the client, you don't want to lose the business, but you also don't want to get snared in scandal. Who you gonna call?Finally, I checked the website of the new firm, Gavel Consulting Group. It is currently all black, as reported in the Post's story.
The principals of Gavel Consulting Group hope you'll call them for help.
Gavel is a startup firm marketing itself on the strength of six big-name former federal judges -- including Kenneth Starr and former FBI Directors Louis Freeh, William Sessions, and William Webster -- who have agreed to work with the company.
The former judges won't be giving up their day jobs at major law firms and corporations. But if they have no conflicts, they will be available as independent contractors to offer strategic legal advice to corporations, law firms and even pro bono clients such as foreign governments.
Howard Bashman of How Appealing reports today: "Wisconsin joins New York, Washington, and Ohio as States in which the highest court has a majority of female justices/judges." The Supreme Court of the United States currently has two women justices. The Supreme Court of Indiana -- zero.
This weekend I watched the C-SPAN version of the 4/1/03 arguments before the Supreme Court of the United States in the University of Michigan affirmative action cases. As noted earlier in this Indiana Law Blog, the Supreme Court , for only the second time in its history, made audio tapes available within hours of the oral arguments. C-SPAN plays the two hours of audio along with video displaying photos of each speaker or questioner in turn. If you are interested in watching or videotaping this event, keep an eye on the C-SPAN schedule for a repeat, as this network tends to replay items at odd times. Or you can listen on demand to the C-SPAN audio via RealAudio at this link, labeled "Supreme Court Oral Argument Audio of U. of Mich. Affirmative Action Cases." The problem with these on-demand audios is that you have to be prepared listen to all of it (in this case 2 hours and 5 minutes) at one time.
I also took the opportunity this weekend to watch and listen to an argument before the Supreme Court of Indiana. Many recent arguments before our Indiana Supreme Court (and some Appellate Court arguments) are available for viewing online, going back to 2001. You may choose to watch an argument in real time, or later. Here is the link to the April 2003 docket, plus the archive. The oral argument I watched took place March 14, 2002 -- it was the case of City of South Bend v. John Kimsey, et al. , involving the Art. IV, sec. 23 Indiana constitutional prohibition against special legislation where a general law can be made applicable. My 3/30/03 Indiana Law Blog report on the 1/15/03 opinion the Court issued in this case can be found here. It was very interesting to hear the attorneys' arguments and the give and take with the Justices after having studied the Court's opinion in detail. This oral argument archive is a tremendous resource.
One other resource: The briefs of arguments before the U.S. Supreme Court are available online at no charge only at this link via Findlaw.com. Findlaw gives you the entire docket for the month with links to the lower court opinions, relevant statutes, briefs, etc. Unfortunately, as far as I can determine there is no equivalent electronic resource for Indiana briefs. (Copies may be purchased for the statutory fee of $1.00 per page from the Indiana Clerk of Courts office.)
Update: I see that the NY Times' Linda Greenhouse has a related story today titled "Justices Enter the Radio Age." (I post the link here with this admonition -- read it fast, as the NY Times has, within the past few days, halted free access to its stories over one week old. After the time has passed, the link will lead you to a brief summary of the story, plus the opportunity to purchase the article for $2.95. Unfortunately, you will find that this cutoff applies to any other Times stories cited in this Blog that are now over one week old.)
The Washington Post today (4/6/03) has an editorial (access it here), titled "Listen to the Court," that begins:
Access the 3/10/03 U.S. Supreme Court decision in Norfolk & Western Railway Co. v. Ayers here [via Findlaw.com] or here [via Cornell LII].
LAST MONTH'S Supreme Court [of the United States] decision in the case of Norfolk & Western Railway Co. v. Ayers didn't attract much attention. This is hardly a surprise, as the question the justices tangled over is technical: whether asbestos victims suffering from a disease called asbestosis can recover damages for their fear that they will later develop a horrible cancer as well. Yet the obscurity of the case masks the important statement that the justices made, even as they divided by an ideologically eclectic 5 to 4 vote over the merits of the case. For all nine justices, in different ways, once again emphasized the severity of the asbestos litigation crisis and the urgent need for congressional action.
The Indiana Supreme Court has scheduled for oral argument: Thomas and L. Jae Breitweiser v. Ind. Office of Environmental Adjudication (Case No. 49S04-0303-CV-115). The date/time is Thursday, April 17, 2003 at 9:45 a.m. The oral arguments will be available for viewing online, both in real time and on-demand, via the Court's Oral Arguments Online website.
Here is a copy of the Court of Appeals opinion, issued 10/2/02. Appellee's petition for rehearing was denied 11/13/02. Appellee's petition to transfer to the Supreme Court was granted 3/20/03. Here is the information about this case provided on the Court's "April Sitting of the Supreme Court" page:
The Breitweisers asked the Office of Environmental Adjudication to review a decision of the Department of Environmental Management granting their neighbor, Ferguson, a permit to conduct a confined animal feeding operation. They also asked the Environmental Law Judge (ELJ) to disqualify himself. The ELJ refused to disqualify himself and found the Breitweisers in default for failing to respond promptly to a proposed order of default. The Breitweisers petitioned for judicial review, but the Marion Superior Court dismissed the petition after concluding that the Breitweisers’ default precluded judicial review. The Court of Appeals reversed. 775 N.E.2d 1175 (Ind. Ct. App. 2002). The Supreme Court has granted transfer, vacating the Court of Appeals’ opinion, and has assumed jurisdiction over the appeal.
Attorney for the Breitweisers: E. Scott Treadway, Indianapolis, IN
Attorney for the OEA and Chief ELJ Wayne E. Penrod: David Steiner, Indianapolis, IN
Attorneys for Ferguson: George T. Patton, Jr., Daniel P. McInerny, Melinda R. Shapiro, Indianapolis, IN
An editorial today (3/4/03) in the Washington Post makes a plea for, if not cameras, at least timely audio tapes of the arguments in all cases before the Supreme Court of the United States:
Oral arguments in federal appeals courts are among the most educational and majestic events of American government -- a real-world application of the rule of law. This week's baby steps toward greater openness represented just the second time the justices allowed such transmission; the first was the oral argument in Bush v. Gore. Few cases before the high court will draw the same degree of attention as those two matters. Yet there is no reason that such access should not be provided as a matter of course in all arguments.
The Indianapolis Star reports today, in a front page story, that the: "State sues to close spill-prone hog farm: Officials want Pohlmann operation near Crawfordsville shut down by June 1." For background see our 3/29/03 entry. [Try out the search function, at right. Search, for example, for "confined".]
The best writeup I've seen on this national story that has implications for Indiana appeared in The Motley Fool yesterday, April 2. The header:
Altria, née Philip Morris, got nailed between the eyes late last month when an Illinois court hit it with a $10 billion fine for claiming that light cigarettes were healthier than regular smokes. The company, of course, wants to appeal, but Illinois requires that the entire judgment be put into a bond first -- plus interest. State budgets hinge on the balance.
A quote from the story itself (read the entire story here):
Late last month, an Illinois court smacked Philip Morris USA with a $10.1 billion verdict in Susan Miles, et al. v. Philip Morris Cos. for marketing light cigarettes as healthier than your everyday Marlboro Heavy. The verdict represents a potential hit to Altria's bank account, but a more immediate problem lies in the laws of Illinois. In order for Philip Morris to appeal the verdict, it must post a bond for the full value of the verdict plus interest, in this case a whopping $12 billion. Philip Morris USA doesn't have that kind of cash lying around. Nor does mama Altria.Mississippi, the first state to sue the tobacco industry in 1994, says it won't join in on trying to rescue Phillip Morris from its financial crisis: "'If they don't pay Mississippi every penny they owe us, I will be first in line to take them to court again,'" said Attorney General Mike Moore," in this AP story published in the Jackson Mississippi The Clarion-Ledger this morning (3/3/03). According to a story in the Chicago Sun-Times dated 3/2/03, "Philip Morris USA failed Tuesday to reach a compromise to reduce a $12 billion bond required to appeal a verdict against it over deceptive advertising." A Sun-Times story today, 3/3/03, begins: "Illinois, California and New York, three of the five biggest U.S. states, may shelve plans for billions of dollars of bonds backed by tobacco sales because of a verdict in a Downstate lawsuit that may threaten Philip Morris USA with bankruptcy."
The choices for the company at this moment thus appear to be: Don't appeal the verdict, which equals probable bankruptcy for Philip Morris USA, or appeal the verdict, the process of which means probable bankruptcy for Philip Morris USA. Credit agencies responded to the crisis by lowering ratings on Altria, Philip Morris, and Kraft (NYSE: KFT) debt to just above junk status. This for a company with billions in free cash flow!
Philip Morris informed the states late last week that it was unsure whether it could make a $2.5 billion payment scheduled for April 15 under its previous settlements under the 1998 Master Settlement Agreement. Given that state governments in the U.S. are already straining from substantial budget shortfalls, you can bet that this disclosure was met with alarm. Several state attorneys general, for whom this hearing suddenly becomes a big deal, are considering helping the company through the potential cash crunch required by the bond. The Illinois Legislature may rush through a cap on appeals bonds -- something that many states already have.
That's right. The states, terrified of losing their massive $200 billion-plus cash cow, are rushing to assist a company they've demonized more than any other, excepting perhaps Enron. They don't want to lose Flip Mo's portion of a cash annuity from the 1998 settlement that is supposed to be paid out over the next 20 years. Those revenues, naturally, are baked into their already-strained budgets.
The Wall Street Journal has had several stories, but you must be a paid subscriber to access them. Yesterday's front page story was headed: "Once Tobacco Foes, States Are Hooked: Philip Morris Verdict Sparks Scramble by States Hooked on Settlement Cash to Protect Company."
The NY Times had a story yesterday, 3/2/03, titled "Suits Seen if Philip Morris Skips Payment." Today's Times story, headlined "Decreasing Prices Ignite a Sell-Off in Tobacco Bonds," begins:
The recent slide in tobacco bonds issued by the states has touched off a bout of panic selling among many investors and raised speculation about possible improper trading. Many states have sold bonds backed by the money they expect to receive over 25 years from the tobacco companies, under an industry settlement reached in 1998. But the prices of those bonds have fallen in recent weeks on growing fears that the tobacco companies might not complete their payments.
Here is a link to the 51-page Illinois Circuit Court (Madison County) decision, via Findlaw. The relevant language starts on page 48, setting compensatory damages at $7.1005 billion, to be paid to Plaintiffs in the class action, and punitive damages of $3 billion, awarded to the State of Illinois. Attorneys fees are granted in the amount of 25% of the $7+ billion. Plaintiffs Price and Fruth are awarded $11,384,77 and $17,811,64, respectively, plus all costs of suit. A stay of 30 days is allowed, "Thereafter, enforcement of this judgment will be stayed only if an appeal bond is presented and approved pursuant to Supreme Court Rule 305. Bond is set in the amount of $12 billion." Entered March 21, 2003.
3/4/03 Update. Today's NY Times has an editorial, "Too Costly an Appeal," saying that "Whatever the merits of the underlying decision, it is absurd to require someone — even a cigarette manufacturer — to put up $12 billion to file an appeal. That is the kind of ruling that erodes the credibility of our legal system. ... Many states will now be filing legal briefs and lobbying Illinois officials on Philip Morris's behalf. Still, the terms of the appeal bond should not be struck down to ameliorate states' fiscal crises, but rather to uphold principles of due process."
[If there are additional updates, they will be posted here, at the end of this entry.]
Thanks to Robert J. Ambrogi, whose syndicated column appears monthly in the ISBA's publication, Res Gestae, for the mention last evening in his law blog, LawSites.
Thanks also to the ISBA itself for the link to the Indiana Law Blog in their weekly electronic newsletter, ISBA E-NEWS & EVENTS.
Today (4/2/03) a three judge panel of the U.S. Court of Appeals for the 7th Circuit, Judge Posner presiding, upheld the right of Wisconsin correctional authorities to fund "Faith Works, a halfway house that, like Alcoholics Anonymous, incorporates Christianity into its treatment program. The plaintiffs argue that this funding constitutes an establishment of religion, in violation of the Constitution." The opinion, Freedom From Religion Foundation, et.al. v. McCallum, can be found here.
The district judge was right to dismiss the suit. A city does not violate the establishment clause by giving parents vouchers that they can use to purchase private school education for their children, even if most of the private schools in the city are parochial schools—provided, of course, that the parents are not required to use the vouchers for a parochial school rather than for a secular private school. Zelman v. Simmons-Harris, 122 S. Ct. 2460, 2467-70 (2002). The practice challenged in the present case is similar. The state in effect gives eligible offenders “vouchers” that they can use to purchase a place in a halfway house, whether the halfway house is “parochial” or secular.
Here is an excellent article on instant messaging (IM) titled "'Teenager Technology' Offers Law Firms New Ways to Connect with Clients." It hits all the points in some detail, starting with "It should come as no real surprise that law firms have been slow to adopt instant messaging. The legal industry has a history of resisting technologies that ultimately prove essential; fax communication was initially shunned by many firms, as was the use of email." Then it discusses the valid reasons why this is so, among them being the need for security and the need to keep a record of messages for billing and auditing purposes. Thanks to Jaffee Associates.
To listen to the two hours of oral arguments made before the U.S. Supreme Court this morning (4/1/03), in the University of Michigan affirmative action cases, go to this C-Span.org location. Or go to this page at NPR.org for comprehensive on air and online coverage of the lawsuits.
Update: Today's (4/2/03) papers have comprehensive coverage of yesterday's oral arguments. The NY Time's Linda Greenhouse has this story, "On Affirmative Action, High Court Seeks Nuance." And, if you don't want to listen to the oral arguments, the Times now has complete transcripts of both the undergrandute admission argument (Gratz v. Bollinger, available here) and the law school admission arguments (Gruter v. Bollinger, available here). And excerpts of both arguments are available here. Plus an article by Ms. Greenhouse in last Sunday's (3/30/03) Times that puts the issue posed in context: "Can the Justices Buck What the Establishment Backs?"
Washington Post coverage is available here, and here is the Post's comprehensive resource page. And here is the LA Times coverage, headed "Justices Hear Affirmative Action Cases: Despite a robust challenge, most on the bench signal that they are not ready to ban all use of race as a factor in university admissions."
The LA Time's David Savage today (4/1/03) reports on the oral agrument yesterday before the U.S. Supreme Court in the case of Stogner v. California.
Until now, most legal experts have assumed the Constitution's ex post facto clause bars the government from reopening a case after the time limit for prosecution has expired. But the California Legislature in 1994 repealed the time limit for filing charges against the perpetrators of sex crimes against people who were younger than 18 at the time. *** While the state law reopened cases involving past crimes against children, its legal brief argued that the government could reopen past criminal cases of all sorts without violating the ex post facto ban. Bush administration lawyers joined the case on California's side, arguing that Congress too can revive old cases by repealing the time limits. Breyer said he was taken aback by this claim. "I had thought this was absolutely contrary to the Constitution. What has changed?" he asked. A Justice Department lawyer replied that the high court had never said it was unconstitutional to reopen cases after the time for prosecution had expired. Stevens said that was so because it was presumed to be unconstitutional. "Is there any precedent of this court that supports this view?" he asked, referring to California's argument. No, the government lawyer acknowledged.Read the entire story here. More: In this morning's (4/1/03) NY Times, Linda Greenhouse, multiple Pulitzer Prize winning law reporter for the Times, had this somewhat more nuanced analysis of the same oral argument, headlined: "Justices Hear Debate on Extending a Statute of Limitations: The Supreme Court and both sides in a case look at a 1798 decision for guidance in 2003." Access it here. And NPR.org had a story this afternoon (4/1/03) on the same issue: "Several states are reacting to the clergy child abuse scandal by lengthening the statute of limitations for civil lawsuits." Listen to it here (simply click on the speaker symbol near the top of the indicated page).
A 3/31/03 NY Times story headed: "Suit Challenges Right to Report Political Slurs" examines "one of the hardest issues of libel law:"
May the news media report, without endorsement on the one hand or skepticism on the other, wild charges made by one politician against another?Access the story here."It is an open and difficult question in libel law because there are convincing arguments on each side," said Rodney A. Smolla, a law professor at the University of Richmond, in Virginia. Professor Smolla said the relatively few courts that had considered the question were about evenly split on whether the law should recognize what libel lawyers call the neutral report privilege.
Today's (4/1/03) NY Times contains a story in the Business Section that begins:
Even as Congress debates limiting asbestos lawsuits, juries in New York and Illinois have reached two of the largest verdicts yet in cases where workers are dying of asbestos-related cancer.
The verdicts, reached last week, are part of a new wave of cases against companies that did not make asbestos or use it in their products but used products containing asbestos in their buildings or factories.